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1991 DIGILAW 212 (MAD)

K. A. Syed Ali v. Saradambal

1991-03-06

SRINIVASAN

body1991
Judgment :- There is no merit in this civil revision petition. It arises out of the application filed the petitioner herein to try the maintainability of the main application as a preliminary The main application R.C.O.P.No.54 of 1989 filed by the respondent is for fixation of fair at Rs.27,000 per month. That is being contested by the petitioner herein. The petitioner I.ANo.89 of 1990 for deciding the question of maintainability as a preliminary point. The Controller dismissed the application holding that the question of maintainability could gone into only in the trial after the evidence is recorded. Against that order, the petitioner filed an appeal. The appellate authority held that the appeal was not maintainable and held that the question raised by the petitioner could not be decided as a preliminary without evidence being recorded. Against the said order, the petitioner has come revision in this Court. 2. At the outset, it should be said that the appeal before the Appellate Authority was maintainable. The order of the Rent Controller dismissing I.A.No.89 of 1990 did not the rights of either parties. It merely said that the question raised by the petitioner could be gone into as a preliminary issue and it could be decided in the proceedings only after and the recording of evidence is closed. The order not having decided any rights of parties was not appealable. Learned counsel for the petitioner places reliance on the judgment this Court in T.N.Habib Khan, Proprietor, Hotel Impal and Impala Sweets v. Arogya Mary Shanthi Lucien, (1981)2 M.L.J. 298. The principles set out in that judgment are clearly against the petitioner. Ratnavel Pandian, J. (as he then was) who decided that case has extracted the observations made the Supreme Court in Central Bank of India v. ShriGokalChand,A.I.R. 1967 S.C. 799: (1967) 2 S.C.J. 828: (1967)3 S.C.R. 310. After extracting the said observation, the learned Judge pointed out that the impugned order in the case before the Supreme Court was merely procedural one not affecting any right or liability of the appellant therein. The learned Judge observed thus: “....The principle laid down by the Supreme Court in the above decision was reiterated affirmed by the Supreme Court in Bank Singh Gill v. Shanti Devi and others, A.I.R. 1967 S.C. 1360. The learned Judge observed thus: “....The principle laid down by the Supreme Court in the above decision was reiterated affirmed by the Supreme Court in Bank Singh Gill v. Shanti Devi and others, A.I.R. 1967 S.C. 1360. Following the above decision of the Supreme Court and the Judicial Pronouncements made by this Court, in particular by a Division Bench of this Court consisting of Rajamannar, C.J., and Panchapagesa Iyer, J. in Kumaraswamy Goundan, In re., (1951)1 M.L.J. 422 Santhanam Iyer v. S.Somasundara Vanniyar, (1958)1 M.L.J. 400 , and certain other decisions, I have held in Chinnaraju Naidu v. Bavani Bai, C.R.P.No.646 of 1981 order dated 24th March, 1981, that all interlocutory orders passed during the proceeding under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, cannot be said to be orders coming within the meaning of Sec.23(l)(b) of the Act, but only the orders which affect the rights liabilities of the parties, in the sense that they have become final orders though passed in interlocutory application, are appealable....” 3. If the test laid down in the decisions referred to above is applied to the present case, it clear that the rights of the parties not having been decided by the Rent Controller in I.ANo.89 of 1990, the appeal against the said order before the Appellate Authority was maintainable. 4. Learned counsel for the petitioner contends that the question raised by him is two According to him, the main R.C.O.P.No.54 of 1989 is barred by the principles of res judicata and consequently, the Rent Controller has no jurisdiction to entertain the petition for fixation of fair rent. According to learned counsel, when the question of res judicata and the question of jurisdiction are raised, the Court is bound todecide the same and an order refusing decide those questions is certainly appealable. I do not agree. If the Rent Controller come to certain conclusions on those questions one way or the other, then it might have given rise to an appeal. The Rent Controller has refused to decide that question and directed the parties to go on with the trial. That will not affect the rights of either parties. Hence that order is not appealable. 5. Turning to the merits of the contention that the Rent Controller ought to have decided preliminary point, I do not agree with learned counsel. The Rent Controller has refused to decide that question and directed the parties to go on with the trial. That will not affect the rights of either parties. Hence that order is not appealable. 5. Turning to the merits of the contention that the Rent Controller ought to have decided preliminary point, I do not agree with learned counsel. Learned counsel invited my attention to the orders passed in the earlier proceedings in R.C.O.P.No.111 of 1979 and R.C.ANo.29 1989. R.C.O.P.No.111 of 1979 was for fixation of fair rent filed by the respondent herein with respect to the same building. The petitioner herein contended that the application was sustainable on the ground that the respondent was not the owner of the building as building was entirely constructed by him. But in the counter statement filed by the petitioner herein in those proceedings, a contention was raised that the respondent, who become the owner of the building on 20.5.1989 could not maintain the application fixation of fair rent before the said date. The Court ultimately held that during that the respondent herein was not the owner of the building and, therefore, the application her instance for fixation of fair rent was not sustainable and that order was affirmed Appellate Authority. 6. In the present proceedings, the application for fixation of fair rent was filed on 1.8.1989, which is admittedly after the expiry of the period of lease. Hence it is the contention respondent that she has become the owner of the building from 21.5.1989 and the petitioner contends otherwise. This is a question which could be decided only in the main proceedings after evidence is recorded. This point cannot be decided as a preliminary one. 7. The question whether the respondent has become the owner of the building on 21.5.1989 and, entitled to maintain the application for fixation of fair rent was not the subject consideration in the earlier proceedings in R.C.O.P.No.111 of 1979 and R.C.A.No.29 of When those proceedings were disposed of, the court decided that the respondent become the owner of the building, and, therefore, she was not entitled to maintain that application. The issue to be considered in the present proceedings may different. Hence the question cannot be decided preliminarily. The question for consideration in the present proceedings will depend upon the question whether the respondent become the owner of the building on 21.5.1989. The issue to be considered in the present proceedings may different. Hence the question cannot be decided preliminarily. The question for consideration in the present proceedings will depend upon the question whether the respondent become the owner of the building on 21.5.1989. That has necessarily to be decided after the evidence is recorded. 8. In the circumstances, the conclusion arrived at by the courts below is correct and the revision petition is dismissed with costs. Petition dismissed.