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1999 DIGILAW 2887 (MAD)

S. M. Mahaboob Basha v. K. Mohamed Ali

1999-12-24

A.RAMAN

body1999
Judgment :- The landlord filed an application for eviction of the tenant on the ground of wilful default in payment of rent in R.C.O.P. No. 3396/92. The tenant did not appear to contest the petition, and therefore, on 8.2.1993, eviction was ordered by the XVI Judge of Small Causes Court. Two months time was granted by the Rent Controller for vacating the premises. While so, the tenant filed an application, in I.A. No. 133 of 1993 in R.C.O.P. No. 3396 of 1992 to set aside the ex parte order of eviction passed by the Rent Controller on 8.2.1993. On this petition, an order was passed by the Rent Controller on 26.4.1993 directing that the rent due till March 1993 at the rate of Rs. 850/- per month shall be paid by the petitioner as a condition precedent on or before 29.4.1993. The matter was to be called on 30.4.1993. On 30.4.1993, the matter was called and the petition was dismissed since the direction was not complied with. In the meanwhile, the tenant preferred an appeal against the dismissal order dated 30.4.1993 to the Appellate Authority in R.C.A. No. 855/93. The Appellate Authority dismissed the appeal. Aggrieved by the same, the tenant preferred a Revision to the High Court, in C.R.P. No. 1948 of 1996. While allowing the Revision, this Court ordered as follows: — “The order of the lower appellate authority is set aside. The Appellate Authority will restore the R.C.A. No. 855/93 and dispose of the same within a period of three months from today. It is open to the respondents to raise all the objections including the maintainability of R.C.A. before the Appellate Authority, No costs.” Then, after remand, the R.C.A. was once again taken up by the appellate authority and passed an order on 29.10.1992, dismissing the appeal, Aggrieved by the same, the tenant has now filed this Revision, challenging the said order. 2. Learned Counsel for the Respondents contended mat R.C.A. itself is not maintainable. He relied upon a decision of this Court rendered in C.R.P. No. 675/87 and reported in 1994 (1) MLJ 55 ( Basil Products v. Mathuram Perumal ). 2. Learned Counsel for the Respondents contended mat R.C.A. itself is not maintainable. He relied upon a decision of this Court rendered in C.R.P. No. 675/87 and reported in 1994 (1) MLJ 55 ( Basil Products v. Mathuram Perumal ). There, it has been observed as follows: “A Division Bench of this Court has held in the context of Order 9, Rule, CPC, that where a conditional order allowing the application for setting aside the exparte decree is passed on a particular date and on the applicants failure to fulfil the condition, consequently, an order later on, is passed, dismissing the application, actually there is only one order in law, though the court might have chosen to pass a formal consequential order after the non-fulfilment of the condition stipulated the original conditional Order. Therefore, the Division Bench held that only the original order is appealable. In this connection, the relevant observation of the Division Bench is as follows: — “But in my view, no further order was passed at all and the reason, as I have indicated it that no further order was required.” ( Ramayya v. Lakshmayya , 1994 (1) MLJ 381) The said decision was followed in (1993) (1) MLJ 40 ( Balarama Reddy v. Subbarama Reddy ) and against the same followed in the decision rendered by Abdul Hadi, J. In the above decision reported in 1994 (1) MLJ 55 , after referring to the contention of the learned counsel for the petitioner there, that those decisions arising under Order-9 Rule-13 would not applicable to the Tamil Nadu Buildings (Lease and Rent Control) Act, mis Court negatived the said contention, by observing as follows:— “So far as what is contained in Section 23(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, though the term ‘an order’ is used therein, in the light of the Division Bench Judgment of this Court in Ramayya v. Lakshmayya (1994 (1) MLJ 381), the order dated 3.4.1986 is not actually an order in law. The Division Bench says that the first order was the only order in the case and the second order was nothing more than recording the legal position which had arisen from the non-fulfilment of the condition precedent by the petitioner and the second order was not any further order, because no further order was required in the case. The Division Bench says that the first order was the only order in the case and the second order was nothing more than recording the legal position which had arisen from the non-fulfilment of the condition precedent by the petitioner and the second order was not any further order, because no further order was required in the case. The same principle would apply even in the present case, which no doubt, arises under the Act. The principle being something fundamental, it would also equally a pply to similar ‘second’ orders passed under the Act also.” Therefore, this Court, upholding the contention that the C.R.P. is not maintainable dismissed the same. 3. Here, what we find is that the Rent Controller has passed an order on 26.4.1993. By that order, he has directed the tenant to pay the rent due till March 1983 at the rate of Rs. 850/- per month, on or before 29.4.1993 and directed the matter to be called on 30.4.1993. On 30.4.1993 since the order was not complied with, he dismissed the application. The present C.R.P. is thus a matter which arises only out of the order dated 30.4.1993. 4. The order dated 26.4.1993 has not been challenged at all. Neither any appeal, nor any consequent Revision has been preferred against the same. Learned counsel for the petitioner would submit that the Court granted only 3 days time to comply with the order and it was hardly sufficient. 5. It is true mat only three days time was granted. But, if really the grievance is that because the time granted was short, he was unable to comply with the order, either the petitioner could have filed an application before the Rent Controller before expiry of that period, asking for extension of time or if really he was aggrieved by that order, he ought to have challenged the validity of the order by preferring an appeal against the same either on merits or otherwise stating that the time granted was too short and therefore, the order is only an illusory one and practically no benefit is extended to the petitioner by reason of that order. But having kept quiet and having not chosen to state anything against that order, by challenging that order, he has thus accepted the order which has, therefore, become final. But having kept quiet and having not chosen to state anything against that order, by challenging that order, he has thus accepted the order which has, therefore, become final. The order that was passed on 30.4.1993, as held by the Division Bench of this Court in the decision reported in 1994 (1) MLJ 381 (cited supra) is the order passed later on, dismissing the application, is only an order formal and consequential in nature, and there is actually in law, there is only one order, viz., the order passed on 26.4.1993, requiring the petitioner to deposit certain amount, as a condition precedent for allowing the application. 6. Therefore, in such circumstances, it has to be held that the order dated 30.4.1992 is not an order at all, because it is only a formal order of disposal of the petition consequent on non-fulfilment of the condition. But, the substantial order is that was passed on 26.4.1993. The right of the petitioner is affected only by that order. He has been called upon to deposit certain sum within a stipulated period, stating otherwise, his petition will be dismissed. If the landlord is aggrieved by the order, he had a right to prefer an appeal against the same. If the tenant is aggrieved by the order either because the time granted was short or because the contentions were not accepted and mat he was asked to deposit certain amount, then he had a right to challenge that order. Having failed to do so, he cannot take shelter under the second order to say that it was an order that has to be challenged. Hence, in this view, the Ruling of the Division Bench of this Court, which was followed by a single Judge of this Court, would squarely apply to the facts of this case. The tenant having failed to appeal against that order, is precluded from challenging the consequential order passed and hence, the Civil Revision Petition is not maintainable. 7. Hence in such circumstances, accepting the objections raised by the learned counsel for the respondents, I have to uphold the contention that the C.R.P. is not maintainable, in as much as the tenant has failed to prefer any appeal against the order dated 26.4.1993 and that the present challenge is only against the order dated 30.4.1993 which is only an order formal in nature. Therefore, this Civil Revision Petition has to be dismissed. 8. In the result, the Civil Revision Petition is dismissed. Considering the circumstances, there will be no order as to cost. Consequently, C.M.P. Nos. 7931, and 10390 to 10392 of 1999 shall stand dismissed.