Research › Browse › Judgment

Madras High Court · body

1990 DIGILAW 1076 (MAD)

M. K. Hajee Sahib v. S. Mohammed Haneef

1990-11-30

SOMASUNDARAM

body1990
ORDER Somasundaram, J. 1. The respondent in R.C.O.P. No. 4740 of 1983 on the file of the Rent Controller (9th Judge, Court of Small Causes), Madras is the petitioner in this civil revision petition. The petitioner in the said R.C.O.P. is the respondent herein. For the sake of convenience the parties are referred to in this order by the nomenclature given to them in the R.C.O.P. 2. The petitioner filed an application under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, XVIII of 1960, hereinafter called the Act, for eviction of the respondent from the demised premises on the ground of owner's occupation. 3. The application for eviction was resisted by the respondent contending that the requirement of the demised premises by the petitioner for the occupation of his married daughter is not bona fide. 4. The Rent Controller accepted the case of the respondent and dismissed R.C.O.P. No. 4740 of 1983 on 12.8.1987. On 21.8.1987 the petitioner filed an appeal against the order in R.C.O.P. No. 4740 of 1983 before the Appellate Authority with an application to dispense with production of the certified copy of the order in R.C.O.P. No. 4740 of 1983. The Appellate Authority dispensed with the production of the certified copy of the order in R.C.O.P. 4740 of 1983, numbered the appeal as R.C.A. No. 661 of 1987 and ordered notice to the respondent During the pendency of R.C.A No. 661 of 1987 before the Appellate Authority, the respondent filed a petition, M.P. No. 702 of 1987 in R.C.A. No. 661 of 1987 requesting the Appellate Authority to dismiss the appeal on the ground that the appeal filed without the certified copy of the order in R.C.O.P. No. 4740 of 1983 is incompetent and not maintainable. 5. The petitioner resisted M.P. No. 702 of 1987 that even if the Rent Control Appeal was incompetent on the date of filing, on account of the non-production of the certified copy of the order in R.C.O.P. No. 4740 of 1983, the certified copy of the order appealed against was produced before the Appellate Authority on 10.12.1987 and on the production of the Certified copy of the order appealed against, the defect in filing the Rent Control Appeal was rectified and, therefore, the Rent Control Appeal is not liable to be dismissed. 6. 6. The Appellate Authority, on a consideration of the entire facts and circumstances, dismissed M.P. No. 702 of 1987. Aggrieved by the order in M.P. No. 702 of 1987 the respondent has preferred the present civil revision petition. 7. Mr. K.P. Unnikrishnan, learned Counsel for the respondent would contend that Rule 15 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, hereinafter called the Rules, prescribes that the appeal filed against the order of the Rent Controller shall be accompanied by a copy of the order of the Rent Controller appealed from; the appeal filed by the petitioner in this case without the copy of the order of the Rent (Controller is incompetent; that the defect in filing the Rent Control Appeal without the copy of the order appealed against cannot be rectified by producing the certified copy of the order at a later date and, therefore, the Rent Control Appeal is liable to be dismissed on the ground that there is no valid presentation of the appeal. I am unable to accept the contention of the learned Counsel for the respondent. In this case, on 12.8.1987 the Rent Controller passed the order dismissing the petition for eviction. On 13.8.1987 itself, the petitioner filed an application for obtaining the certified copy of the order of the Rent Controller. On 21.8.1987 the petitioner filed the Rent Control Appeal against the order in R.C.O.P. No. 4740 of 1983 with an application to dispense with the production of the certified copy of the order appealed against. The appellate Authority passed an order dispensing with the production of the certified copy of the order appealed against and numbered the appeal as R.C.A. No. 661 of 1987. On 3.12.1987 the certified copy of the order in R.C.O.P.4740 of 1983 was made ready and on 10.12.1987 the petitioner filed the certified copy of the order in R.C.O.P. No. 4740 of 1983 into Court in R.C.A. No. 661 of 1987. No doubt, Rule 15 of the Rules does not empower the Appellate Authority to dispense with the production of a copy of the order appealed against and the presentation of the appeal by the petitioner on 21.8.1987 without the certified copy of the order of the Rent Controller in R.C.O.P. No. 4740 of 1983 is not a valid presentation. No doubt, Rule 15 of the Rules does not empower the Appellate Authority to dispense with the production of a copy of the order appealed against and the presentation of the appeal by the petitioner on 21.8.1987 without the certified copy of the order of the Rent Controller in R.C.O.P. No. 4740 of 1983 is not a valid presentation. Though the appeal was incompetent on the date of filing of the appeal, the defect in the presentation of the appeal was rectified by the petitioner producing the certified copy of the order appealed against on 10.12.1987 before the Appellate Authority. As already pointed out, the order in R.C.O.P. No. 4740 of 1983 dismissing the petition for eviction was passed on 12.8.1987. The very next day the petitioner applied for the certified copy of the order in R.C.O.P. No. 4740 of 1983. The copy was made ready on 3.12.1987. The petitioner can file the appeal against the order in R.C.O.P. No. 4740 of 1983 with the certified copy of the order within fifteen days from 3.12.1987 as the time taken for obtaining the copy has to be excluded in calculating the period of limitation for filing the appeal under Section 23(1)(b) of the Act and, therefore, the petitioner can file the appeal on or before, 18.12.1987. However, on 10.12.1987 itself the petitioner has produced the certified copy of the order appealed against before the Appellate Authority even though the appeal was filed on 21.8.1987 and the same was numbered. Therefore, the appeal is not liable to be dismissed for the technical deviation from the procedural requirement prescribed in Rule 15 of the Rules. The Supreme Court in Bhagwan Swaroop v. Mool Chand , while dealing with the question whether strict observance of the procedural law is essential, held as follows: A code of procedure is designed to facilitate justice and further it is not a penal enactment for punishment and penalties. Dealing with the same question, in Manohar Lal v. W.B.N. Supply, Gurgaon , the Supreme Court has observed as follows: Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. Dealing with the same question, in Manohar Lal v. W.B.N. Supply, Gurgaon , the Supreme Court has observed as follows: Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. In Balakrishna Industrial Works v. Venkatachari (1954) 2 M.L.J. 290 , an appeal was filed before this Court against the order of the trial Court dismissing an application for temporary injunction without the certified copy of the decretal order. A Division Bench of this Court held that the appeal filed without the copy of the decretal order appealed against is not maintainable. But, however, the Division Bench permitted the appellant in that case to file the copy of the decretal order during the pendency of the civil miscellaneous appeal and ruled that the civil miscellaneous appeal is in order after the production of the copy of the decretal order appealed against and then disposed of the appeal on merits. In Essa v. M.M. Jamal and Sons represented by M.M. Jamal 1972 T.L.N.J. 278, a civil miscellaneous appeal was filed before this Court and numbered after dispensing with the production of the decretal order appealed against. The respondent in that case filed a petition for dismissing the appeal on the ground that the certified copy of the decree of the trial Court has not been filed. This Court held that in view of the fact that the appeal was already admitted it was not inclined to dismiss the appeal straightaway. This Court directed the trial court to furnish the certified copy of the decree immediately and further directed the office of this Court to examine whether the appeal is in time as soon as the copy of the order appealed against is produced before this court. This Court directed the trial court to furnish the certified copy of the decree immediately and further directed the office of this Court to examine whether the appeal is in time as soon as the copy of the order appealed against is produced before this court. In view of the above legal position, the appeal filed by the petitioner in R.C.A. No. 661 of 1987 is not liable to be dismissed on the ground that at the time when the appeal was filed it was incompetent because the certified copy of the order appealed against was not produced along with the memorandum of the grounds of the appeal, particularly when the petitioner has applied for the copy of the order appealed against, the very next day after the order in R.C.O.P. was passed and produced the same in the appeal within a week after obtaining the certified copy of the order. In these circumstances, the Appellate Authority rightly dismissed the application, M.P. No. 702 of 1987. There are no merits in this civil revision petition and the civil revision petition is liable to be dismissed. Accordingly, the civil revision petition is dismissed. No costs.