A. Mohideen v. M. K. Chandra Kant — 1984 DIGILAW 211 (MAD)

Judgment :- 1. This civil revision petition at the instance of the tenant/petitioner is directed against the order of the appellate authority (III Judge, Court of Small Causes), Madras, in H.R.A. No. 1351 of 1980 holding that the Rent Controller is the appropriate authority for taking the necessary steps to prosecute the petition under S. 195 of the Code of Criminal Procedure and allowing an application in that regard taken out by the respondent herein in M.P. No. 152 of 1980 in H.R.C. No. 2613 of 1978. The facts giving rise to the civil revision petition are as follows: 2. Admittedly, the respondent is the landlord of the building bearing door No. 34, Old No. 37/38, Evening Bazaar, Madras-3. The Petitioner is a tenant in occupation of the corner shop of the said building on a monthly rent of Rs. 225. In H.R.C. No. 2613 of 1978, before the Rent Controller (13th Judge, Court of Small Causes) Madras, filed on 20th September, 1978 under S. 10(2)(i) and S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as the Act), the respondent herein prayed for an order of eviction against the petitioner on the grounds that the petitioner had committed wilful default in the payment of rents and that the respondent bona fide required the premises in the occupation of the petitioner for purposes of carrying on his own business. That application was posted for hearing on 22nd November, 1978 and as the petitioner did not contest the same, ex parte evidence was recorded and an order for eviction was passed, which was subsequently set aside on an application made by the petitioner. Later, the matter was posted to 5th December, 1978, for the filing of the counter by the petitioner and was subsequently adjourned to 2nd January, 1979 on which date the petitioner filed the counter stating that the respondent is not carrying on business under the name and style of Senthil Traders at No. 9, Poonamallee High Road and that he is a permanent resident of Coimbatore and as such, his need is not bona fide. The application for eviction was posted for trial and on 9th April, 1979 and on 11th April, 1979, the respondent was examined in chief. The application for eviction was posted for trial and on 9th April, 1979 and on 11th April, 1979, the respondent was examined in chief. Thereafter, on 11th April, 1979, the petitioner filed M.P. No. 343 of 1979 in H.R.C. No. 2613 of 1978 praying for permission to file an additional counter statement. On 20th April, 1979, the learned Rent Controller allowed the application filed by the Petitioner in M.P. No. 343 of 1979 and permitted the filing of an additional counter and adjourned the case to enable the petitioner to cross examine the respondent. However, the petitioner did not avail of the opportunity so given to him even though the matter was adjourned to several dates and ultimately, a memo was filed on behalf of the respondent before the Rent Controller setting out that the petitioner has not availed of the opportunity afforded and praying that the eviction petition should be further proceeded with. On 24th April, 1979, since the petitioner did not turn up when the matter was posted and the learned counsel for the petitioner was also absent, the Rent Controller passed an ex parte order of eviction against the petitioner. On an application filed by the petitioner, the Rent Controller set aside the ex parte order and restored the application for eviction and thereafter, the petition for eviction was posted for the cross-examination of the respondent from day to day from 6th August, 1979, till about 17th August, 1979. On 16th August, 1979, in M.P. No. 647 of 1979, the petitioner prayed that he should be permitted to file an additional counter in which he has Stated that there are other tenants in other portions of the building which are bigger and the respondent can occupy those portions and that the claim for an order of eviction against the petitioner only from the building in his occupation is not bone fide . That application was rejected on 27th August, 1979 and an appeal against that order was preferred by the petitioner in H.R.A. No. 1493 of 1979 before the appellate authority (4th Judge, Court of Small Causes), Madras. In the affidavit in support of the application filed by the petitioner therein for obtaining stay of the enquiry in H.R.C. No. 2613 of 1978, in paragraph 9, the petitioner stated that the grounds of appeal filed by him may be treated as part and parcel of that affidavit. In the affidavit in support of the application filed by the petitioner therein for obtaining stay of the enquiry in H.R.C. No. 2613 of 1978, in paragraph 9, the petitioner stated that the grounds of appeal filed by him may be treated as part and parcel of that affidavit. In ground No. 4 in the memorandum of appeal in H.R.A. No. 1493 of 1979, the petitioner has stated that the learned Judge should have seen that in the ground floor one portion was under the occupation of the landlord Mr. Chandra Kant. The respondent filed a counter denying the allegations in the affidavit as well as the correctness of the grounds of appeal and prayed for the cancellation of the stay and in paragraph 6 of the counter, the Respondent has stated that the allegation that “one portion is under the occupation of the landlord Chandra Kant” is false to the knowledge of the petitioner and he is liable to be prosecuted for perjury. By an order dated 24th November, 1979, the appellate authority, without entering into a consideration of this aspect of the matter, allowed the appeal and permitted the petitioner to file a second additional counter. 2 -A. Subsequently, the application for eviction was enquired into by the learned Rent Controller on the basis of such oral and documentary evidence as was placed by the parties before him and on 1st December, 1981 the Rent Controller found that the respondent is not in occupation of any non-residential building of his own in the city of Madras and that the requirement by the respondent of the building in the occupation of the petitioner for his own occupation for carrying on his business is bona fide and further that the petitioner has committed wilful default in the payment of rents for the period from April, 1978 to June, 1978 as claimed by the respondent. On these conclusions, an order for eviction was passed against the petitioner. Aggrieved by that, the petitioner preferred an appeal in R.C.A. No. 400 of 1982 before the appellate authority. On 16th July, 1982 the appellate authority concurred with the conclusions of the Rent Controller and upholding the order of eviction passed against the petitioner, dismissed the appeal. On these conclusions, an order for eviction was passed against the petitioner. Aggrieved by that, the petitioner preferred an appeal in R.C.A. No. 400 of 1982 before the appellate authority. On 16th July, 1982 the appellate authority concurred with the conclusions of the Rent Controller and upholding the order of eviction passed against the petitioner, dismissed the appeal. Against that order, the petitioner preferred civil revision petition No. 4063 of 1982 before this Court and on 27th September, 1983, the order for eviction passed by the authorities below as upheld by this Court and the petitioner was granted time till 30th November, 1983 to vacate and hand over vacant possession to the respondent. 3. While matters stood thus the respondent filed M.P. No. 152 of 1980 in H.R.C. No. 2613 of 1978 under S. 195 of the Code of Criminal Procedure read with Ss. 177 and 181 I.P.C., praying that the Rent Controller may be pleased to take the necessary steps and move the appropriate authority for the prosecution of the petitioner under S. 195. Cr. P.C. In the affidavit in support of that application, the respondent referred to the affidavit filed by the petitioner in M.P. No. 1949 of 1979 in H.R.A. No. 1493 of 1979 as well as the grounds therein, particularly ground No. 4 and the counter filed by the respondent wherein the respondent had disputed the occupation by him of a portion of the premises and had also stated that the petitioner was liable to be prosecuted for perjury and after referring to all this, stated that the petitioner has suppressed the truth and had committed perjury and had furnished false information resulting in the commission of offences under Ss. 177, 181, 182 and 192, I.P.C., by filing a false affidavit and swearing to the same on oath. Claiming that a prima facie case for prosecution against the petitioner has been made out even on the basis of the affidavit filed by the petitioner in M.P. No. 1949 of 1979 and the grounds of appeal in H.R.A. No. 1493 of 1979, the respondent prayed that the Rent Controller should take appropriate action as such action could be taken only on an application moved by a party to the proceedings. The respondent, therefore, prayed in M.P. No. 152 of 1980 that the Rent Controller should take the necessary steps for moving the appropriate authority for launching a prosecution against the petitioner under S. 195, Crl. P.C. with reference to the offences alleged to have been committed by the petitioner under Ss. 177, 181 and 192, I.P.C., and punishable under S. 193, I.P.C. 4. That application was resisted by the petitioner on the ground that he has to file M.P. No. 647 of 1977 praying for the filing of an additional counter as only at that stage, he found out that the other tenants were in occupation of the building and that against them, the respondent has not filed eviction petitions and that fact was not earlier pleaded. The statement made by the petitioner in paragraph 9 of the affidavit in support of the application in M.P. No. 1949 of 1977 was Claimed not to be a false allegation. There was no misrepresentation or perjury or suppression, according to the petitioner, and no Offence under Ss. 177, 181, 182 and 192, I.P.C., had been committed by him. The petitioner also denied that a case has been made out against him for his prosecution. It was also the further plea of the petitioner that in the absence of any provision in the Act for initiating an action for perjury, no proceedings in that regard would lie. An objection was also raised by the petitioner that the Rent Controller is not a Court and further that the Court had no jurisdiction to entertain the application. The application filed by the respondent was characterised as one intended to harass the petitioner. As the petitioner according to him, has not committed any perjury or committed any of the offences under Ss. 177, 181, 182 and 193, I.P.C., and S. 195 Cr. P.C., the petitioner prayed for the dismissal of the application. 5. The learned Rent Controller (13th Judge, Court of Small Causes), Madras, who enquired into this application was of the view that a complaint under S. 195, Cr. P.C. for the alleged commission of offences under Ss. 177, 181, 182, 192 and 193, I.P.C., should be lodged only by the appellate authority before whom H.R.A. No. 1493 of 1979 and M.P. No. 1949 of 1979 has been filed and therefore, the application filed by the respondent was not maintainable. P.C. for the alleged commission of offences under Ss. 177, 181, 182, 192 and 193, I.P.C., should be lodged only by the appellate authority before whom H.R.A. No. 1493 of 1979 and M.P. No. 1949 of 1979 has been filed and therefore, the application filed by the respondent was not maintainable. On this conclusion, M.P. No. 152 of 1980 filed by the respondent herein was dismissed. Aggrieved by this, the respondent herein preferred an appeal in H.R.A. No. 1351 of 1980 before the appellate authority (III Judge, Court of Small Causes), Madras. Before the appellate authority the petitioner, though served with notice, did not choose to appear. On a consideration of the contents of the affidavit as well as the grounds of appeal and the course of the proceedings as well as the relevant provisions of the Indian Penal Code and the Code of Criminal Procedure, the appellate authority had found that the petitioner had not denied what was stated by him in the affidavit and also in the grounds of appeal and has thus indirectly admitted having stated so, that prima facie the commission of offences under Ss. 177, 181, 182, 192, 193, I.P.C., is made out, that the Rent Controller is a Court under S. 195 of the Code of Criminal Procedure, that the proceedings in H.R.A. No. 1493 of 1979 and M.P. No. 1949 of 1979 were only in the nature of proceedings in continuation of the main application for eviction in H.R.C. No. 2613 of 1978 wherein false information was furnished and reiterated by the petitioner and therefore, the Rent Controller was the appropriate authority to take necessary steps for lodging the complaint for prosecuting the petitioner. On those conclusions, the order passed by the Rent Controller in M.P. No. 152 of 1980 was set aside and the appeal was allowed. It is the correctness of this order that is challenged in this civil revision petition. 6. The learned counsel for the petitioner first contended that the appeal in H.R.A. No. 1351 of 1980 preferred by the respondent herein before the appellate authority was not maintainable as the order appealed against was not an order within the meaning of S. 23 of the Act. Reference was made in this connection to the decision in Lakshmiammal and another v. V.K. Sivasubramaniam 1. Reference was made in this connection to the decision in Lakshmiammal and another v. V.K. Sivasubramaniam 1. It was also the further contention of the learned counsel for the petitioner that the refusal by the Rent Controller to make a complaint under sub-S. (1) of (2) of S. 340, Cr. P.C. for the reasons stated in the order would not enable the respondent to maintain an appeal under S. 341(1), Cr. P.C. On the other hand, the learned counsel for the respondent submitted that the proceeding initiated by the respondent in M.P. No. 152 of 1980 related to alleged commission of offences affecting the administration of justice for taking notice of which provision is made in the Code of Criminal Procedure and the powers there—Under had been invoked in the instant case and therefore, the order passed on such an application would fall within the earlier part of S. 341(1), Cr. P.C. and would be appellable to the court to which the Rent Controller is subordinate and therefore, the appeal preferred by the respondent before the appellate authority was properly laid and entertained. The learned counsel further submitted that S. 341(2), Cr. P.C., rendered the civil revision petition at the instance of the petitioner incompetent. 7. Before this Court, no dispute was raised that the Rent Controller is not a “court” for purposes of the provisions dealing with the offences relating to administration of justice under the provisions of the Indian Penal Code and Code of Criminal Procedure. Equally, the conclusion of the appellate authority that prima facie an offence under Ss. 177, 181, 182 and 193, I.P.C., is made out on the basis of the materials placed before the Court has not been in any manner assailed before this Court. That false information was furnished by the petitioner in his grounds of appeal and persisted is also not in dispute. The principal question that arises for consideration is whether the appeal preferred by the respondent herein before the appellate authority was competent. That false information was furnished by the petitioner in his grounds of appeal and persisted is also not in dispute. The principal question that arises for consideration is whether the appeal preferred by the respondent herein before the appellate authority was competent. Though H.R.C. No. 2613 of 1978 concerned itself with the question whether the respondent was entitled to an order for eviction against the petitioner as prayed for or not, it is not in dispute at this stage before this Court, that the affidavit and the grounds of appeal had been placed before the court charged with the duty of adjudicating upon the truth or otherwise of the rival claims made. In none of the two counters filed by the petitioner at the earlier stages, it was stated that the respondent was in occupation of a portion of the building. Even in the course of the third counter which was allowed to be filed by the appellate authority, the petitioner had not stated that the respondent was in occupation of a portion of the building of his own. However, in the affidavit filed in M.P. No. 1949 of 1979 in H.R.C. No. 1493 of 1979, the petitioner has prayed that the grounds of appeal should be treated as part and parcel of the affidavit and ground No. 4 of the grounds of appeal clearly stated that in the ground floor, one portion was under the occupation of the respondent Mr. Chandra Kant. Thus it is obvious that though the petitioner did not set up the occupation of a portion of the building by the respondent as a defence to the application for eviction, yet, he wanted the Court to entertain the impression by filing the affidavit and grounds of appeal referred to above that the respondent was in occupation of a portion of the building, which would be sufficient to secure a dismissal of the application for eviction filed by the respondent. This was refuted by the respondent in the course of the counter filed by him; however, the Court did not have any occasion to go into this question, but permitted the petitioner to file an additional counter for a second time and therefore, it became necessary, after the termination of the proceedings, for the respondent to bring to the notice of the Court how the petitioner had attempted to influence the mind of the court by placing before it a false statement in the shape of grounds of appeal and had also referred to the same as a part of the affidavit in support of the application to secure a stay of the further proceedings in eviction. Thus, the eviction proceeding dealt with by the Rent Controller was undoubtedly the main proceeding; but the proceeding giving rise to the civil revision petition was one bringing it to the notice of the Court under the provisions of Cr. P.C. the alleged commission of an offence in relation to the administration of justice with reference to a proceeding before it. In such cases, it may not be strictly correct to call it as a proceeding under the provisions of the Act, for, even according to the stand of the petitioner in his counter, there is no specific power conferred under the provisions of the Act to deal with a situation like this. That does not, however, mean that when such instances occur, courts are powerless to do something about it, and it is to deal with such situations, provision is made in the Code of Criminal Procedure. Indeed, S. 195,Cr. P.C. states that no Court shall take cognizance of any offence punishable under Ss. 172 to 188, I.P.C., or any offence under Ss. 193 to 196, 199, 200, 205 to 211 and 228 I.P.C., when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. S. 340, Cr. 193 to 196, 199, 200, 205 to 211 and 228 I.P.C., when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. S. 340, Cr. P.C., is the procedural section in that regard and that contemplates an application also being made to the Court and that would mean that a party to the proceeding is entitled to bring to the notice of the Court by means of an application that in the course of the proceedings before such a Court, an offence either under Ss. 172 to 188 or Ss. 193, to 196 I.P.C., etc., had been committed. These provisions clearly indicate that the right to move the Court for taking appropriate action with reference to the offences mentioned above and stated to have been committed in the course of the proceedings in a Court is not under the Act nor dependent upon the result of the main proceedings under the Act. The invoking of this right, under the provisions of the Code of Criminal Procedure is regulated by the procedure prescribed therein including a right of appeal and is not controlled by the provisions of the Act. In this case, the court had been requested under the provisions of the Code of Criminal Procedure to exercise its powers by making a complaint by bringing to the notice of the Court the commission of certain offences in the Course of proceedings before it. Such proceedings would, however, be governed by the procedure and further remedies as indicated to be available to the invocation of such a power. Looked at from that point of view, it is clear that on the dismissal of the application, the respondent was quite in order in having preferred an appeal to the appellate authority to which the Court of the Rent Controller is subordinate within the meaning of S. 195(4), Cr. P.C., as there is no dispute that an appeal would lie from the order of the Rent Controller to the appellate authority. Therefore in this case, the appeal preferred by the respondent in H.R.A. No. 1351 of 1980 before the appellate authority was competently laid before that authority under S. 341(1), Cr. P.C., as there is no dispute that an appeal would lie from the order of the Rent Controller to the appellate authority. Therefore in this case, the appeal preferred by the respondent in H.R.A. No. 1351 of 1980 before the appellate authority was competently laid before that authority under S. 341(1), Cr. P.C. Indeed, it is seen from the grounds of appeal in H.R.A. No. 1351 of 1980 that the appeal had been filed under S. 341(1), Cr. P.C. in addition to S. 23(1)(b), of the Act, though invoking the latter provision of law was wholly unnecessary, having regard to the nature of the proceedings initiated by the respondent under the provisions of Cr. P.C. 8. It is now necessary to consider whether the order of the Rent Controller in this case would not be one of refusal to make a complaint under sub-S. (1) or sub-S. (2) of S. 340, Cr. P.C., merely because some reasons have been stated by the Rent Controller. Under S. 340 Cr. P.C., which prescribes the procedure with reference to S. 195, Cr. P.C. when a Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of sub-S. (1) of S. 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may after such preliminary inquiry, if any, as it thinks necessary (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the Class having jurisdiction, etc. What is the effect of the adjudication made by the Rent Controller? It is in substance and effect a refusal to make a complaint under sub-S. (1)(b), of S. 340, Cr. P.C. It may be that the reasons given are many and varied; but the remedy by way of an appeal cannot be said to depend upon or be not available merely on the basis of the reasons for the adjudication divorced from the effect of the adjudication itself. P.C. It may be that the reasons given are many and varied; but the remedy by way of an appeal cannot be said to depend upon or be not available merely on the basis of the reasons for the adjudication divorced from the effect of the adjudication itself. The respondent wanted the court to make a complaint and his application had been dismissed and this is nothing except a refusal on the part of the Court to make a complaint in writing within the meaning of S. 340(1)(b), Cr. P.C. The respondent undoubtedly had the right of appeal under S. 340(1), Cr. P.C. If that be so, then under S. 341(2), Cr. P.C. the order passed on appeal is declared to be final and not subject to any revision and therefore, this civil revision petition at the instance of the petitioner would be incompetent. On this ground alone, the civil revision petition has to be dismissed as not maintainable. 9. The learned counsel next contended that in this case the court that is competent to make a complaint in writing with reference to the offence alleged to have been committed is the appellate authority and not the Rent Controller and in this connection, reliance was placed upon the decision in Nirmaljit Singh Hoon v. The State of West Bengal and Others 1 . The learned counsel for the respondent would submit that if the Rent Controllers Court was not a competent court to give the complaint in writing, then it had no business to reject the application as was done, but should have returned the petition to the respondent for being presented before the proper Court. Though the submission made by the learned counsel for the respondent prima facie appears to be reasonable and acceptable, yet, it is unnecessary to consider the same and also that of the learned counsel for the petitioner, in as much as earlier it has been held that the civil revision petition itself is not maintainable. Therefore, other matters need not be gone into. Consequently, this civil revision petition is dismissed with costs. Counsel fee Rs. 250. 10. Therefore, other matters need not be gone into. Consequently, this civil revision petition is dismissed with costs. Counsel fee Rs. 250. 10. The learned Rent Controller is directed to take further and necessary steps expeditiously in accordance with law for moving the appropriate authority for prosecuting the petitioner with reference to the offence alleged to have been committed by him in the course of the proceedings in H.R.C. No. 2613 of 1978 and M.P. No. 1949 of 1979 and H.R.A. No. 1493 of 1979.