A. K. Panchatchara Mudaliar v. A. N. Srinivasan — 1991 DIGILAW 426 (MAD)

Judgment :- The tenant who has suffered an order of eviction before the Rent Controller which was confirmed by the Appellate Authority is the petitioner before me. Eviction was sought by the respondent under S. 14(1)()b) of the Tamil Nadu Buildings) (Lease and Rent Control) Act, (hereinafter referred to as the Act). 2. The petition was Iresisted by the tenant on the ground that the building was in a good condition and the landlord had no means to demolish the same and erect a new structure. The landlord examined himself as P.W.I while the tenant examined himself as R.W.I. The landlord filed the notices exchanged between the parties and the order of the Municipality sanctioning his plan and another order extending the period of validity of the plan. The tenant filed the refused money order. The Rent Controller appointed an Advocate as Commissioner, who inspected the building and filed a report and a plan. The report was marked as Exhibit Cl and the plan was marked as Exhibit C2. 3. P.W. 1 has in his evidence stated that there are number of cracks in the building and the rafters are broken. According to P.W. 1s evidence, the building is in a dilapidated condition. There was no cross-examination on that aspect of the matter except a general suggestion that the shop is in a good condition and did not require demolition. There were no specific questions as regards the cracks in the building and the broken rafters. The Commissioners report shows that the building is full of cracks and the rafters and the roof are in a damaged condition. The electrical switch board is also shown to be fully damaged and hanging. Plaster on the walls had fallen down. Thus the report of the Commissioner corroborates the version given by the P.W.I. 4. Relying on the evidence of P.W.I and the report of the Commissioner, the Rent Controller accepted the case of the landlord and ordered eviction. As regards the means of the landlord to demolish the building and erect a new structure, the version of the landlord was accepted and there was no evidence to the contrary. 5. On appeal, the Appellate Authority considered the evidence in detail and upheld the claim of the landlord. As regards the means of the landlord to demolish the building and erect a new structure, the version of the landlord was accepted and there was no evidence to the contrary. 5. On appeal, the Appellate Authority considered the evidence in detail and upheld the claim of the landlord. An argument was advanced before the Appellate Authority that the Commissioner did not file his report in a proper manner and the details in the report of the Commissioner as regard the property were not correct The Appellate Authority rejected those contentions. An application was filed by the tenant for admission of additional evidence. The tenant produced a report purporting to be that of an Engineer, who claimed to have inspected the building and noted the conditions” thereof. The Appellate Authority dismissed the application on the ground that the alleged inspection was not in the presence of both the parties and the report of the Engineer could not be taken into account. Ultimately the Appellate Authority confirmed the order of the Rent Controller and dismissed the appeal. 6. In this revision petition, two contentions are urged on behalf of the petitioner. The first is based on the language of S. 18-A of the Act and the second is on the facts. Taking the second contention first, the argument is that the evidence of P.W. 1 does not make out that the building is in a dilapidated condition or diat he has sufficient funds to demolish the building and erect a new structure. It is a question of fact and the authorities below have rightly accepted the evidence of P.W. 1. Nothing has been placed before me to show as to how the appreciation of evidence by the audiorities below is erroneous. As pointed out already, the cross-examination of P.W. 1, was to say me least worthless. Nodiing has been elicited from the cross-examination of P.W. 1 to discredit his evidence. Hence, I do not find any warrant to interfere with the concurrent finding of the authorities below. 7. The first contention is that the report of the Commissioner appointed by the court is not admissible in evidence in the absence of the Commissioner being examined as a witness in Court. Hence, I do not find any warrant to interfere with the concurrent finding of the authorities below. 7. The first contention is that the report of the Commissioner appointed by the court is not admissible in evidence in the absence of the Commissioner being examined as a witness in Court. It is argued that this court had consistently held before the introduction of S. 18-A in the Act that the Rent Controller was not a civil court and he had no power to appoint a commissioner. It was laid down in Seethalakslumi Animal v. Rajanvnal 1965 IMLJ 287, T.K. Chennakesavlu v. Mansukhal& Others 661 MLJ 300 and 1971 II MLJ 379, and Munuswami Naidu v. Kasim 1991-M.LJ. 379 = 84 L.W. 521 Khan that it was open to a party to examine the Commissioner and file his report as a document and only in that event, the report of the Commissioner could be looked into. That was the view taken by this Court when S. 18-A was not in the statute book. The Rent Controller, not being a Civil Court, had no jurisdiction to appoint a Commissioner and if a Commissioner was appointed and a report was filed by him, naturally it would have been worth nodiing without his entering the witness box. But the view taken by this Court is not applicable to the present case as the Act has been amended and by the introduction of S. 18- A, the Act conferred powers on the Rent Controller to appoint a Commissioner. 8. The section reads thus: “POWER OF CONTROLLER TO APPOINT COMMISSIONER:— The Controller shall have powers to appoint a commissioner in any proceeding pending before him and for this purpose, he shall have all the powers of a Civil Court under the Code of Civil procedure, 1908 (Central Act V of 1908). 9. The first part of the section declares that the Controller shall have power to appoint a commissioner in any proceeding before him. If the section has stopped there, that would have been sufficient to empower the Rent Controller to appoint a Commissioner. 9. The first part of the section declares that the Controller shall have power to appoint a commissioner in any proceeding before him. If the section has stopped there, that would have been sufficient to empower the Rent Controller to appoint a Commissioner. Nodiing else was needed to enable the Rent Controller to appoint a Commissioner in that event However, the Legislature thought fit to add the second part of the section declaring that the Rent Controller shall have all the powers of a Civil Court under the Code of Civil procedure for the purpose of appointing a Commissioner. The latter part of the section has got a significance. If the contention of the learned counsel for the petitioner is accepted, I will have to hold that the latter part of the section is redundant and superfluous. The Legislature cannot be held to be guilty of superfluity. Every part of the section should be given a meaning and the Legislature should be presumed to have intended to give effect to every limb of the section. 10. Under the Code of Civil procedure, Order XXVI relates to issue of commissions. Under the order, commissions can be issued for several pur poses, one of them being local investigation. Under Rule 9, a Court can appoint a Commissioner for making local investigation or ascertaining the market value of any property or the amount of means profits, etc. or damages. Rule 10 prescribes the procedure to be adopted by the Commissioner. Under that rule, the Commissioner shall reduce to writing the evidence taken by him and return such evidence together with his report in writing signed by him to the Court. Thus a Commissioner appointed under Rule 9 is bound to submit a report in writing signed by him to the Court. Under sub-rule (2) of Rule 10, such report and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the records. Under the said sub-rule, a Court may examine the Commissioner personally in open court. 11. Learned counsel for the petitioner contends that even after the amendment of the Act, the Rent Controller has not become a Court and he continues to be an authority which is not a Court. Under the said sub-rule, a Court may examine the Commissioner personally in open court. 11. Learned counsel for the petitioner contends that even after the amendment of the Act, the Rent Controller has not become a Court and he continues to be an authority which is not a Court. According to him, the power given under the section to appoint a Commissioner could only go to the extent of the appointment of Commissioner and the latter inspecting the property and submitting a report. According to the learned counsel, if any party wants to make use of such report, he shall examine the Commissioner as a witness. In other words, learned counsel contends that the decisions of this Court rendered prior to the amendment of the Act holding that the examination of the Commissioner is necessary for the purpose of marking his report would still apply even after the amendment. 12. I cannot agree with this contention. As I have pointed out, the purpose of the section is to empower the Rent Controller to appoint a Commissioner for the purpose of gathering evidence and submitting a report to the Court. If the Legislature had intended that the Commissioner should be examined for the purpose of marking the report, the section need not have been introduced in the Act at all. That was the position prevailing before the introduction of the section. When the section had been introduced, it had been done to alter the situation so that the Rent Controller can gather evidence through one of its officers viz., the commissioner. It is well-known that parties will adduce evidence conflicting in order to substantiate their respective cases. In a case arising under S. 14 (1) (b) of the Act the landlord will examine one engineer or an expert to prove that the building is in a dilapidated condition, while the tenant will examine another expert to prove that the building is in a good condition. In order that the Court may have an impartial report of the situation, the Legislature introduced S. 18-A enabling the Rent Controller to appoint a Commissioner. That purpose will be defeated if the section is interpreted to mean that it will not enable the Rent Controller to treat the report as part of the records or mark the report in evidence without examining the Commissioner as a witness. 13. That purpose will be defeated if the section is interpreted to mean that it will not enable the Rent Controller to treat the report as part of the records or mark the report in evidence without examining the Commissioner as a witness. 13. As pointed out, Rule 9 of the Order XXVI of the Code of Civil procedure which is the relevant rule for appointing a Commissioner for local investigation should be read along with Rule to which makes the report as part of the records. When the power Under Rule 9 of Order XXVI of the Code of Civil procedure is made available to the Rent Controller under S. 18-A, it follows automatically that the report of the Commissioner becomes part of the records. If any of the parties wants to challenge any part of the report, it is for him to seek the permission of the Rent Controller to cross-examine the Commissioner. There was ample opportunity for the petitioner herein to have requested the Rent Controller to cross-examine the Commissioner as he was raising objection to the correctness of the report. 14. The petitioner filed a memo of objection to the report of the Commissioner in the Court of the Rent Controller. A perusal of the memo of objection shows that the petitioner did not deny the correctness of any statement made by the Commissioner in his report. But on the other hand, the petitioners complaint was that the Commissioner had not given more particulars or details about the facts mentioned by him. For example, the Commissioner has stated clearly that the walls are full of cracks. The memo of objection filed by the petitioner states that the Commissioner has failed to state the nature of the cracks alleged to have appeared in the walls of the demised premises. It is not the case of the petitioner in the memo of objection that there was no crack at all. It is not the case of the petitioner that the rafters were not damaged. It is also not the case of the petitioner that the floor in the building was not damaged. Thus the memo of objection filed by the petitioner did not in any way contradict the report of the Commissioner. Hence the Rent Controller as well as the Appellate Authority were right in accepting the reports of the Commissioner. 15. It is also not the case of the petitioner that the floor in the building was not damaged. Thus the memo of objection filed by the petitioner did not in any way contradict the report of the Commissioner. Hence the Rent Controller as well as the Appellate Authority were right in accepting the reports of the Commissioner. 15. Learned counsel for the petitioner placed reliance on the judgment of K.M. Natarajan, J. in J.D. Devadoss v. Srikantiah 1986-1-M.L.J. 93 = 99 L.W. 79 In that case, the only witness examined on the side of the landlord was himself. He deposed that the building was 80 years old and it was damaged. There was no attempt by the landlord to get a Commissioner appointed. There was no attempt by the landlord to examine any Engineer to speak to the condition of the building. The learned Judge held, “In this case also, except the interested testimony of the respondent herein as P.W. 1, the respondent herein has not let in any evidence by examining a qualified Engineer or Commissioner to show that the building is in a dilapidated condition and that it requires immediate demolition and reconstruction. The more fact that the building is old itself is not sufficient for invoking the provisions of S. 14 (1) (b) of the Act and ordering eviction. The respondent herein had also not examined any other independent witness to support his claim” The learned Judge had no occasion whatever to consider the contention not put forth before me. In that case S. 18-A was not invoked by the landlord. No Commissioner was appointed and no Engineer was examined by him. Hence the passing observation made by the learned Judge that in the absence of any Independent evidence as that of an Engineer or Commissioner, the landlords evidence should not have been accepted by the authorities cannot in any way help the petitioner to contend that the report of the Commissioner is not admissible in evidence without examining the Commissioner. 16. Hence I reject the contention put forward by the learned counsel. I hold that the authorities below are right in marking the report of the Commissioner as an exhibit and placing reliance on it. 17. The civil revision petition fails and is dismissed with costs. 18. Learned counsel for the petitioner prays for time to vacate the premises. 16. Hence I reject the contention put forward by the learned counsel. I hold that the authorities below are right in marking the report of the Commissioner as an exhibit and placing reliance on it. 17. The civil revision petition fails and is dismissed with costs. 18. Learned counsel for the petitioner prays for time to vacate the premises. Learned counsel for the respondent agrees for grant of time provided an affidavit of undertaking is filed by the petitioner. The petitioner is granted time till 31.12.1991 to vacate the premises on condition that the petitioner files into this Court an affidavit on or before 5.7.1991 undertaking to vacate the premises on or before 31.12.1991 without driving the landlord to file execution proceeding. If the affidavit of undertaking is not filed within the stipulated time, the petitioner will not be entitled to the benefit of grant of time.