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1988 DIGILAW 237 (MAD)

M. Thangiah v. K. Rangaswamy

1988-05-03

PADMINI JESUDURAI

body1988
ORDER Padmini Jesudurai, J. 1. This revision by the tenant, is directed against the order of the Appellate Authority, rejecting as not maintainable, his application under Rule 16(3) bf the Tamil Nadu Buildings (Lease and Rent Control.) Rules, 1974 (herein-after referred to as the Rules) read with Section 148, C.P.C. filed to restore his earlier application under Rule 16 dismissed for failure to pay costs with in the, stipulated time and which had been filed to restore his appeal against the order of eviction, which had been dismissed for default. 2. Facts briefly are-The respondent filed R.C.O.P. No. 38 of 1983 before the Rent Controller (District Munsif) Thirumangalam, against the petitioner on the ground of wilful default, in the payment of rent. Eviction was ordered, against which the petitioner filed R.C.A. No. 11 of 1985 before the Appellate Authority (Subordinate Judge) Madurai. On 16.7.1985 due to the absence of the petitioner and also his counsel and there being no representation on their behalf, the above appeal was dismissed for default. On 17-7-1985 the petitioner filed I.A.No.172 of 1985 under Rule 16 of the Rules read with Section 151, C.P.C. for restoration of the appeal. Though, initially the respondent filed a counter objecting1 to the restoration. On 17-12-1985, both parties made a joint endorsement that the application might be allowed on heavy terms; Accordingly the Appellate Authority ordered that the application would stand allowed on the petitioner paying a sum of Rs. 200 as costs, directly to the respondent or to his counsel, on or before 2-1-1986, failing which the petition would stand dismissed. The petition was posted to 3-1-1986. On 3-1-1986, since the costs were not paid by the petitioner, I.A. No. 172 of 1985 was dismissed. On 13-1-1986 the petitioner filed an application under Rule 16(3) of the Rules read with Section 148, C.P.C to restore LA. No. 172 of 1985 on the ground that the petitioner, due to ill-health, was not able to contact his counsel and pay the costs. The application was kept unnumbered in view of the doubt regarding its maintainability and after hearing both sides, the Appellate Authority passed the impugned order, rejecting the application as not maintainable, since it would amount to review of the order earlier passed and the appropriate remedy of the petitioner would be either an appeal or a revision before this Court. The application was kept unnumbered in view of the doubt regarding its maintainability and after hearing both sides, the Appellate Authority passed the impugned order, rejecting the application as not maintainable, since it would amount to review of the order earlier passed and the appropriate remedy of the petitioner would be either an appeal or a revision before this Court. The correctness of this order, is challenged in this revision. 3. Mrs. Vijayalakshmi Natarajan, learned Counsel for the petitioner, contended that the Appellate Authority has inherent powers to entertain the application and extend the time for payment of costs, as provided under Section 148, C.P.C. and that the Code of Civil Procedure would apply to proceedings before the Authorities constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the Act). Learned Counsel placed reliance upon certain decisions of this Court, which I shall refer to later. 4. Per contra, Thiru S. Muthuramalingam, learned Counsel for the respondent contended, that the Appellate Authority, had no power to review its own order and even if the Court had inherent, powers to do certain acts, the same did not extent to reopening this issue, particularly when the application for extending time, had not been made before final orders were passed. The learned Counsel also contended that the Code of Civil Procedure as such, did not apply to proceedings under the Act. Reliance was placed upon certain decisions, which I shall refer to presently. 5. The question that arises for consideration is whether the order of the Appellate Authority can be legally sustained? 6. It would first be useful to refer to the provisions contained in the Act, dealing with restoration of appeals dismissed for default. The relevant portion of Rule 16(3) is as follows: In any case in which an order of dismissal for default is passed, then the party affected may within thirty days from the date of the order... apply to the Appellate Authority by whom... the order of dismissal was passed, for an order to set it aside; and if he satisfies the Appellate Authority that...he was prevented by any sufficient cause from appearing when the appeal was called for hearing or that such default was occasioned due to circumstances beyond his control, the Appellate Authority, shall make an order setting side... the order of dismissal passed... the order of dismissal passed... upon such terms as to costs, as the Appellate Authority thinks fit and shall appoint a day for proceeding with the appeal. The third proviso to the above Sub-rule lays down, that when the application for setting aside the order of dismissal for default, has been received for the first time, all execution proceedings in pursuance of the order, shall be stayed until the disposal of the application. The fourth proviso stipulates that in respect of a second or subsequent application to set aside an order of dismissal for default, the Appellate Authority shall have discretion to grant or refuse stay. 7. It is clear from the above rule, that the Appellate Authority has statutory power to set aside the order of dismissal of an appeal for default, upon such terms as the Authority may think fit. The Rule also contemplates a second and subsequent applications to restore appeals dismissed for the second or subsequent time. The powers of an Appellate Authority in the matter of setting aside orders dismissing appeals for default have been clearly enumerated above. No additional powers regarding these matters, are granted under Section 23 of the Act which deals with appeals before the Appellate Authority. The statutory power, therefore, does not include re-opening and reconsidering orders passed on such applications, even to vary the terms of the orders, by extending time. Any order passed upon an application under Rule 16(3) therefore, becomes a filial order, against which the aggrieved party under Section 25 of the Act, will have a right of revision to this Court. Section 25 of the Act makes it clear that the High Court may, on the application of any person aggrieved by an order of the Appellate Authority, call for and examine the record of the Appellate Authority to satisfy itself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed therein. This Court has powers to modify, annul, reverse or remit for reconsideration any such decision or order. It would, therefore, follow that the party aggrieved by an order on an application under Rule 16(3) of the Rules, has a statutory right of revision to this Court. 8. This Court has powers to modify, annul, reverse or remit for reconsideration any such decision or order. It would, therefore, follow that the party aggrieved by an order on an application under Rule 16(3) of the Rules, has a statutory right of revision to this Court. 8. In the absence of any statutory powers, to restore an earlier application dismissed for failure to abide by the terms of the order, it has next to be seen whether the Appellate Authority has inherent powers to do it. That the Authorities constituted under the Act, have inherent powers, cannot be disputed. As early as in 1951, a Division Bench of this Court, consisting of P.V. Rajamannar. C.J. and Panchapakesa Ayyar, J. in S.N. Komaraswamy Gounder, C.M.P. No. 1160 of 1959 - (1951) 1 M.L.J. 422 : held that though Section 151, C.P.C. as such, did not apply, yet the Appellate Authority, had inherent powers, to permit the landlord to amend the wrong door number of the building, since the same did not amount to review of adjudication, already made. In a more recent decision of this Court in Collector of Madras v. C. Logeswara Rao (1986) 2 M.LJ. 187 , S.A. Kader, J. held that the Appellate Authority had inherent powers to review its earlier order and rectify its mistake and make the fair rent payable, from the commencement of the original tenancy itself, as required by law instead of from the date of the application as ordered earlier. The Court observed. It is well settled principle that such judicial and quasi-judicial tribunals adjudicating upon the rights of parties must possess inherent powers, apart from the express provisions of law, which are necessary for their existence and for the proper discharge of the duties imposed upon him by law. Every judicial or quasi-judicial body, in the absence of express provision, must be deemed to possess, as inherent to its very constitution, all such powers, as are necessary to do the right and to under the wrong in the course of the administration of justice. This is based on the principles embodied in the maxim quando lex abquid alicut concredit conneclere vidature id quo res ipso esse nonpotest (when the law gives anything to any one, it gives also, all those things without which, the thing itself would be unavailable). This is based on the principles embodied in the maxim quando lex abquid alicut concredit conneclere vidature id quo res ipso esse nonpotest (when the law gives anything to any one, it gives also, all those things without which, the thing itself would be unavailable). Where an error apparent on the face of the record is committed by a judicial or quasi-judicial authority in the discharge of its functions, it must necessarily have the power to rectify that error and to deny that judicial authority this right to undo the wrong, will be self-defeating. Such a rigidity of law, far from advancing the cause of justice will result in perpetration of injustice. It cannot be said that merely because there are no express provisions in the rules framed under the Act empowering the authorities constituted under the Act, to review their order in appropriate cases, such authorities, have no such power to do justice or redress a wrong. It is therefore, clear that the authorities constituted under the Act have inherent powers. 9. The area in which these inherent powers, have so far been judically recognised, has now to be analysed. In the Bench decision, referred to earlier, G.N. Komaraswamy Gounder, C.M.P. No. 1160 of 1959 - (1951)1 M.L.J. 422 : invoking its inherent powers, the Authority permitted the landlord to correct a wrong door number. Similarly, in Murugesan v. G.P. Nataraja Mudaliar, 100, L.W. 157, Sathiadev., J. permitted amendment to correct the Door No. and the rent amount since the mistakes were due to the inadvertence of the parties. In Venson Transports v. Vaidehi Ammal (1986) 2 M.L.J. 140 , Shanmukham J. upheld the amendment permitting correction of an error in naming the person representing the respondent/tenant. 10. In Pichaiya v. The Rent Controller, Tuticorin (1983) 1 M.L.J. 18 and in T.K. Sundaram v. Balraj, two Judges of this Court held that the Authorities, under the Act, had inherent powers to order re-delivery of the premises to the tenant, from whom the landlord had taken possession, on the basis of an ex-parte order of eviction which they had later set aside. 11. In Usman Koya v. Muthukrishnan, A Varadarajan, J. upheld the order of the Rent Controller directing re-deposit of the amount into Court, withdrawn in pursuance of its earlier order, permitting withdrawal by a wrong person. 11. In Usman Koya v. Muthukrishnan, A Varadarajan, J. upheld the order of the Rent Controller directing re-deposit of the amount into Court, withdrawn in pursuance of its earlier order, permitting withdrawal by a wrong person. The learned Judge held the Rent Controller being a quasi-judicial Tribunal, had the power to rectify its mistake, though Section 151, C.P.C. by itself, did not apply. In Collector of Madras v. G. Logeswara Rao, S.A. Kader J., as stated earlier Collector of Madras v. C. Logeswari Devi (1986) 2 M.LJ. 187 , upheld the order of the, Appellate Authority, in reviewing his earlier order fixing the fair rent and making it payable from the date of the commencement of the tenancy, as required by an earlier Bench decision, instead of from the date of the filing of the application, as had earlier been ordered. 12. These decisions would indicate that the nature of the inherent power, so far judicially recognised, is merely to rectify mistakes, committed either by the Court or by the parties. Under these circumstances, since the Authorities are determining questions affecting substantial rights of citizens, this court had upheld exercise of such power to rectify the defect and set right matters, in order to avert failure of justice. 13. It has now to be seen, whether the power that the Appellate Authority, is now called upon to exercise, could even broadly come within the nature of the inherent powers so far judicially recognised by Courts. On 17-12-1985, the Appellate Authority, on consent of parties regarding the mode of disposal of I.A. No. 172 of 1985, had fixed the terms. He had required the petitioner to pay Rs. 200 as costs on or before 2-1-1986 and the petition was posted to 3-1-1986. On 3-1-1986 costs had not been paid; nor was there any request for extension of time. The Court, therefore, passed an order dismissing I.A. No. 172 of 1985. The Order passed by the Appellate Authority on 3-1-1986 dismissing in I.A. No. 172 of 1985 on the ground that the costs had not been paid, was not based on any mistake. On 3-1-1986 costs had not been paid; nor was there any request for extension of time. The Court, therefore, passed an order dismissing I.A. No. 172 of 1985. The Order passed by the Appellate Authority on 3-1-1986 dismissing in I.A. No. 172 of 1985 on the ground that the costs had not been paid, was not based on any mistake. It is not the case of the petitioner that costs had really been paid and the Authority had mistakenly passed the order, instead, he comes forward with an explanation for his failure to pay costs and wants the Authority, to consider the explanation, accept it and vary the terms of the original order. Authority is not called upon to rectify any mistake committed by it but is required to consider afresh, new matters. In view of the limited area in which, inherent powers of these statutory bodies, have so far been recognised, I do not feel inclined to widen the same, particularly when the proceedings themselves are summary in nature and a right of revision against the order is provided under Section 25 of the Act. Being a special legislation, that overrides the general law of the land as laid down in the Transfer of Property Act, I am not inclined to recognise inherent powers, except when they are strictly necessary to avert miscarriage of justice. Nor am I inclined to hold that Section 148, C.P.C. would apply to proceedings under the Act, since, wherever Legislature intended that time should be extended, specific provisions have been made in the Act, as well as in the Rules, for the above purpose. 14. The observations made by Ratnam, J. in Hameed v. Kanniammal, have also weighed with me in arriving at the above conclusion. The learned Judge was dealing with a similar situation, but in which, instead of filing an application to restore the earlier application dismissed for non payment of the costs, as was done in this case, the tenant on his application to set aside the exparte order of eviction being dismissed for nonpayment of the costs, filed a petition under Section 115, C.P.C. in this Court. Holding that by virtue of Section 23(4) of the Act, the decision of the Appellate Authority would be final subject to the provisions under Section 25 of the Act, a revision under Section 115, C.P.C. does not lie, the learned Judge observed: As pointed out already, the act is a self- contained Act, containing provisions for appeal, as well as revision and enabling an aggrieved party to challenge the correctness of orders passed by the Authorities under the Act in the manner provided there under no more. It follows, therefore, that whatever powers have been conferred on the Appellate Authority in the matter of setting aside exparte orders, could alone be exercised, and the Authority could have no inherent powers in that area, Any party aggrieved by an order passed in such matters, will only have to resort to the statutory remedy provided under Section 25 of the Act. 15. In the result, I conour with the view expressed by the learned Appellate Authority, that he has no inherent powers to entertain an application, to reconsider the earlier order of dismissal passed under Rule 16, and extend time for payment of costs; Accordingly the civil revision petition fails and is dismissed. No costs.