P. v. THOMAS VS M. V. RAJAN — 1983 DIGILAW 307 (KER)

Judgment :- 1. This revision petition filed by a tenant in a proceeding, R.C.P. No.1/82 on the file of the Rent Control Court, Parur, instituted under the Kerala Buildings (Lease & Rent Control) Act, is directed against an order passed in I.A. No. 2130/82, which was a petition for issue of a commission to ascertain the value of certain matters mentioned therein. This order was challenged by the petitioner herein in R.C.A. No. 25/83 before the Appellate Authority. This appeal was dismissed as not maintainable. The appellate order was challenged in R.C.R.P. No. 20/83 before the District Court, Parur. The learned Addl. District Judge, who heard the revision found that the appeal is maintainable; but, on merits dismissed the petition upholding the order of the first court. 2. Strongly assailing this order, Shri M. K. Narayana Menon, learned advocate appearing for the petitioner urged three points before this Court. (1) Whether S.17(2) of the Act is a bar for claiming improvements in a proceeding under the Act? (2) Whether the Rent Controller can go into the question of improvements? (3) The revisional court having found that the appeal is maintainable should not have gone into the merits of the case but ought to have remitted the case to the appellate court. 3. The learned advocate very vehemently contended that what was claimed in the petition was issue of a commission to ascertain the improvements effected on land as well as on the building and therefore S.17(2) is not a bar for consideration of such an application as that section applies only to repairs and maintenance of buildings. It was also contended that the right to claim improvements is a substantial right conferred on the petitioner under S.4 of Act 29 of 1958 and that right is not taken away by the provisions of S.17(2) of the Act. It was argued that S.17(2) is only an enabling provision and that this section does not curtail or reduce the right of a tenant under Act 29 of 1958. The counsel also pointed out that the Rent Control Court has jurisdiction to issue a commission by virtue of the provisions in S.23(1)(g) of the Act. It was argued that S.17(2) is only an enabling provision and that this section does not curtail or reduce the right of a tenant under Act 29 of 1958. The counsel also pointed out that the Rent Control Court has jurisdiction to issue a commission by virtue of the provisions in S.23(1)(g) of the Act. The counsel placed reliance on a decision of this Court reported in 1981 KLT.179 in support of the contention that the Rent Control Court has power to issue a commission for ascertaining the existence of improvements and their value. It was further argued that the court below did not consider the question whether Act 29 of 1958 applied to the present case or not. According to the counsel, the decision reported in 1972 KLT.188 has no application to the facts of the case and a decision of the erstwhile Cochin High Court in 39 Cochin 194(D. B.) is exactly on the "point, which decision has clearly laid down that in a case of this nature the tenant is entitled to claim value of improvements. 4. The learned advocate appearing for the respondent pointed out that none of these points has been raised or urged by the tenant or on behalf of him before the courts below; that the claim for improvement is a new case put forward for the first time before this Court; that what the tenant wanted before the Rent Control Court was only to issue a commission to ascertain the amount incurred by him for effecting repairs and maintenance so that the amount so assessed may be set off from the arrears of rent due from him. A copy of the petition and the affidavit filed in support of the petition were shown to me in the Court. What is claimed in the affidavit in support of I. A. 2130/82 in R C.P. 1/82 is that the tenant is entitled to get Rs. 2500/- being amounts spent by him for the maintenance of the building and Rs. 2000/-for levelling up the lands and the same may be set off towards the arrears of rent due from him. The counsel for the respondent submitted that this is a frivolous petition filed only to protract the proceedings and that subsequent to this petition about half a dozen petitions have been filed by the tenant to protract the proceedings. 2000/-for levelling up the lands and the same may be set off towards the arrears of rent due from him. The counsel for the respondent submitted that this is a frivolous petition filed only to protract the proceedings and that subsequent to this petition about half a dozen petitions have been filed by the tenant to protract the proceedings. From the petition and affidavit, it is clear that the tenant is only claiming amounts spent by him on the building by way of repairs under S.17(2) of the Act and claiming set off as enjoined therein. The tenant is said to be a Degree-holder in Medicine conducting his practice in the building in question. The order of the Rent Control Court shows that the request made before it was to issue a commission to ascertain the expenses met by the petitioner. Petitioner was definite before the Rent Controller that what was claimed by him was not improvement. The order reads: "According to the counsel appearing for the petitioner, it is not improvement, but a necessity and he wants to effect set off the amount on arrears of rent." 5. The case put forward before the District Judge in revision, as could be seen from the order, is that the original landlord one Karthiayani Amnia on the basis of an oral arrangement let out the building to the revision petitioner herein and the understanding was that the annual repairs and maintenance should be done by the tenant and the expenses should be adjusted towards the rent; that the same arrangement continued; that the annual maintenance and repairs were done by the tenant; that he had expended about Rs. 11,000/-; that he is entitled to get this amount as of right; that as per order on I. A. 894/81 in O.S. 255/81 filed by the tenant against the landlord, the right of the tenant was confirmed and that it was to ascertain the amount incurred by the tenant for effecting the repairs and maintenance to the building that I. A. 2130/82 in R.C.P. 1/82 was filed. This shows that the tenant had been putting forward inconsistent pleas and versions in this regard from court to court. This shows that the tenant had been putting forward inconsistent pleas and versions in this regard from court to court. The claim for effecting repairs and maintenance has now been developed and highlighted as a claim for improvements, although one of the specific grounds taken in this revision petition is that "the lower court ought to have found that the tenant is entitled to the value of repairs and maintenance works as claimed in T. A. 2130/82 and that the lower court ought to have found that the petition for the issue of a commission to assess the value of repairs and maintenance works is maintainable in law and on the facts." Now for the first time, at the time of hearing the counsel has advanced an argument that the revision petitioner is entitled to the benefits of S.4 of Act 29 of 1958; that this is a very valuable and substantial right and that this cannot be taken away or abridged by S.17(3) of the Act. The Rent Control Court as well as the revisional court have considered T. A. 2130/82 on merits and dismissed the Same. The only section in the Act which is a self-contained one for claiming set off and expenditure for the maintenance or repairs of the building is sub-s. (2) of S.17. The courts below found that the tenant has not invoked the provisions of S.17(2) and that is not disputed also. The courts below also rightly found that without invoking the remedy prescribed under S.17(2) of the Act, the tenant cannot claim set off. The Rent Control Act is a special Act and the same deals with the rights and liabilities of the landlord and tenant. There is no provision in the Act which permits a tenant to effect improvements in the sense that expression is used in Act 29 of 1958. Although the counsel for the petitioner argued at length on the rights of the revision petitioner under S.4 of Act 29 of 1958, at one stage he submitted that this Court should not consider the question whether Act 29 of 1958 applies to the petitioner or not, as that point has not been considered by the courts below. The decision of the Cochin High Court has only a persuasive value and that was a decision rendered under House Rent Control Order, 1117. The decision of the Cochin High Court has only a persuasive value and that was a decision rendered under House Rent Control Order, 1117. The Kerala High Court had occasion to consider the question whether in a proceeding under the Act a tenant can put forward a claim for value of improvements. The counsel for the petitioner wanted to distinguish this decision on the ground that what was directly considered by the Court in that decision was the question regarding jurisdiction. This Court in Sivarama Menon v. Raghavan (1972 KLT.188) held: 'The Rent Control Court is not expected to go into the question of value of improvements. It is not a matter falling within the jurisdiction of the Rent Control Court. The Act is a complete Code on the rights and liabilities of the landlord and tenant in respect of matters falling within the purview of landlord and tenant in respect of building and it is not permissible for a landlord or tenant in cases governed by the Act to fall upon the provisions of the Transfer of Property Act or the contract of tenancy or other extraneous circumstances." I am in respectful agreement with the dictum laid down in the above decision. On a careful consideration of the various provisions in the Act and in the light of the above decision, I do not think a tenant coming under the Act is entitled to claim benefits under S.4 of Act 29 of 1958. As already pointed out, the case of the petitioner herein before the District Judge was that the right of the tenant to get the amount for effecting repairs was confirmed in I.A. 894/81 in O. S.255/81. This order has not been produced either before the District Court or this Court. If there was such an order, nothing prevented the revision petitioner herein from moving that court for issue of a commission. It is seen that after filing of the written statements, the case underwent a few adjournments and it was only thereafter, an additional written statement claiming amount by way of repairs, maintenance and levelling up of the land, was filed by the petitioner. In the light of these facts and circumstances there is considerable force in the contention of the counsel that the object of the petitioner is only to protract the proceedings. 6. S.23 (g) has no application to the facts of this case. In the light of these facts and circumstances there is considerable force in the contention of the counsel that the object of the petitioner is only to protract the proceedings. 6. S.23 (g) has no application to the facts of this case. The only provision in the Act which confers powers vested in a civil court when trying a suit, on the Rent Controller, Accommodation Controller and the Appellate Authority is S.23. But it may be noted that the power conferred under this section is subject to such conditions and limitations as may be prescribed and is only in respect of certain matters enumerated in clauses (a) to (g) of sub-section (1) of S.23. Powers conferred under this section are therefore for limited purposes and only in respect of matters stated in the various clauses. Under clause (g) of the section, power has been conferred for issuing commission only for the limited purposes of examination of witnesses and for local inspection. On reading the section as a whole and duly considering the same in the light of the aim and object of the Act, it is clear that by necessary implication there is a prohibition to issue commission for any other purpose. 7. The decision reported in 1981 KLT.189 was cited in support of a further contention that Rent Control Court has inherent powers and the commission applied for should have been issued in exercise of the inherent powers. The question that came up for decision is Deputy Conservator of Forests v. Sarojini (1981 KLT.179) was whether, in an appeal filed under S.61D of the Kerala Forest Act before the District Court, the District Judge has power to pass an interlocutory order in exercise of the powers under S.151 and Order XLI rule S of the Code of Civil Procedure. While holding that the power to pass interlocutory order is a necessary corollary to the power to entertain an appeal or revision, my learned brother Chandrasekhara Menon J. also observed that inherent jurisdiction is there even with the Tribunals of limited jurisdiction. 8. The inherent powers covered by S.151 of the Code of Civil Procedure are with respect to the procedure to be followed by the court in deciding the case before it. Specific procedure is laid down in S.75 and Order XXVI of the Code for issue of commissions. 8. The inherent powers covered by S.151 of the Code of Civil Procedure are with respect to the procedure to be followed by the court in deciding the case before it. Specific procedure is laid down in S.75 and Order XXVI of the Code for issue of commissions. S.75 of the Code empowers the court to issue commission only for four purposes subject to the conditions and limitations prescribed Order XXVI lays down the rules relating to issue of commission and incidental matters. When the Code of Civil Procedure has expressly dealt with the subject matter of commission in S.75, the court has no inherent power to appoint a commissioner for a purpose different from and not covered by S.75. It is well settled that the inherent power is not to be exercised in a manner which will be contrary to or different from the, procedure expressly provided in the Code. Inherent power cannot be exercised when the Code itself provides for a particular situation or contingency or points Out the procedure to be adopted (see Padmasen v. State of UP: AIR. 1961 SC. 218; AIR. 1978 A.P. 403 and AIR. 1978 Patna 339 (F.B.)). Even if it is assumed that the Rent Control Court can exercise inherent power, the same principle stated above applied to it also. Inherent powers are not powers over the substantive right of a party or powers which can confer a substantive right over a party. Right to value of improvements under Act 29 of 1958 is a substantive right. No such right can be conferred on a party in exercise of inherent powers. Specific powers have to be conferred on a court for passing orders, which will affect the rights of parties or which will create or confer substantial rights on parties. As pointed out earlier, under S.23(g) it is only in respect of examination of witnesses and for local inspection that the power to issue commission has been conferred. There is therefore no substance or merit in the contentions raised in this regard. There is no illegality or irregularity committed by the revisional court in having disposed of the revision on merits. After duly considering the arguments advanced on either side and the materials on record, I find that this revision is devoid of any merit and deserves only to be dismissed. Dismissed. No costs. Dismissed.