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2004 DIGILAW 579 (MAD)

Tejraj Sarammal v. Bajranglal Daman

2004-03-31

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The revision petitioner is the tenant and the revision is directed against the judgment dated 27.11.1998 in R.C.A.No.8 of 1995 on the file of the learned VII Judge, Small Causes Court, Madras. 2. The respondent herein as landlord filed R.C.O.P.No.560 of 1985 in the Small Cause Court, Madras under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as "the Act") that the petition non-residential premises was required bona fide for own use and occupation. In the R.C.O.P.No.560 of 1985 eviction was ordered and confirmed in the Civil Revision Petition No.3025 of 1992 by this Court. The possession also was taken on 30.7.1993 through Court by filing execution petition E.P.No.446 of 1993. The tenant, viz., the revision petitioner herein filed R.C.O.P.No.2271 of 1993 on 28.9.1993 under Section 10(5)(a) of the Act seeking restoration of possession of the petition premises on the ground that the landlord has not occupied the said petition non-residential premises. The tenant also filed M.P.No.744 of 1993 on the same day for appointment of advocate-commissioner praying to inspect the petition property bearing door No.3, Veerappan Street, Madras 79, thrice a day between 10.00 a.m. and 5.00 p.m. continuously for a week to find out whether the respondent/landlord is in occupation of the said shop and running a business without notice to the respondent/landlord. 3. The Rent Controller, considering the facts and circumstances appointed an advocate-commissioner. The advocate-commissioner after inspecting the petition premises for about one week from 5.10.1993 to 12.10.1993 daily thrice as stated in the report, has filed his report stating that during his inspection on those days and at the time mentioned in the report, the petition shop was always closed and no business was carried out during his visit. The respondent/landlord filed M.P.No.660 of 1994 to set aside the ex parte order made in M.P.No.744 of 1993 in R.C.O.P.No.2271 of 1993 as per which an advocate-commissioner was appointed without ordering notice to the landlord. The petition was dismissed after contest on 7.10.1994. Against that order , the landlord preferred appeal R.C.A.No.8 of 1995 and it was allowed finding that the appointment of advocate-commissioner without ordering notice to the landlord by the learned Rent Controller in M.P.No.744 of 1993 in R.C.O.P.No.2271 of 1993 is not proper. Such order of the learned Rent Control appellate Authority is challenged in this Civil Revision Petition. 4. Against that order , the landlord preferred appeal R.C.A.No.8 of 1995 and it was allowed finding that the appointment of advocate-commissioner without ordering notice to the landlord by the learned Rent Controller in M.P.No.744 of 1993 in R.C.O.P.No.2271 of 1993 is not proper. Such order of the learned Rent Control appellate Authority is challenged in this Civil Revision Petition. 4. Heard the learned counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlord. 5. The learned counsel for the revision petitioner/tenant argued that despite the fact that the landlord pursuant to the eviction order made in R.C.O.P.No.560 of 1985 and as confirmed by this Court in C.R.P.No.3025 of 1992, possession of the petition premises was also taken on 30.7.1993 through Court in E.P.No.446 of 1993, the landlord has not occupied the petition non-residential premises till the date of filing of the R.C.O.P.No.2271 of 1993 which was filed on 28.9.1993. Along with the said petition, the tenant filed M.P.744 of 1993 seeking appointment of an advocate-commissioner and to direct the advocate-commissioner to inspect the petition premises without issuing notice to the respondent/landlord to find out whether the respondent/landlord is in occupation of the petition shop and running business therein, in that if the advocate-commissioner inspected the property after issuing notice to the landlord, there was every possibility for the landlord to make it appear that he actually occupied the petition shop. Therefore, according to the learned counsel for the revision petitioner/tenant, the appointment of advocate-commissioner made by the learned Rent Controller in M.P.No.744 of 1993 ex parte, and the inspection made by the advocate-commissioner without issuing notice to the landlord is very much proper and therefore, such appointment of advocate-commissioner as per order made in M.P.No.744 of 1993 in R.C.O.P.No.2271 of 1993 need not be set aside as sought for by the landlord in M.P.No.660 of 1994. The learned counsel for the revision petitioner/tenant relied on the following decisions:- (1) In re P.Moosa Kutty reported in A.I.R. 1953 Madras 717, in which this Court has held:- "There is no provision that a commission could be issued only after notice has been issued to the defendant and, therefore, an order appointing the commissioner without notice to him and hearing him is not illegal and opposed to the provisions of Order 26, Rule 18 C.P.C." (2) A.Nagarajan – vs. - A.Madhanakumar reported in 1996-1, Law Weekly 278, in which this Court has held:- " 'For the purpose of elucidating facts in respect of any matter in dispute' means where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, to made it clear, intelligible, and 'to throw light upon the matter in issue' means the main dispute as well as the facts leading to the dispute. This course may be adopted after the examination of the party or parties or suo motu. If the court feels that clarification or confirmation is necessary on certain aspects on which the court entertains doubt in the matters in issue or dispute, or the disputed questions of fact, for the purpose of ascertaining, clarification, or for proper scrutiny and examination, this course can be resorted to." 6. The learned counsel for the respondent/landlord contended that the appointment of advocate-commissioner ex parte and the inspection made by the advocate-commissioner without issuing notice to the landlord is not proper, despite the fact, the landlord is residing in the adjacent portion. The learned counsel for the landlord also submitted that out of three shops, the subject matter of the petition shop is in the middle and after the possession of the said shop was taken on 30.7.1993 through Court in E.P.No.446 of 1993, the landlord has removed the wall in between the said shop and adjacent shop and have been using the same as one portion. In this regard, the learned counsel also pointed out the report of the advocate-commissioner wherein it is stated that the shop on the southern side of the building and the petition shop were closed at the time when the advocate-commissioner visited and bearing name plate for the two shops in the name and style of "Electro Engineering Enterprises". 7. In this regard, the learned counsel also pointed out the report of the advocate-commissioner wherein it is stated that the shop on the southern side of the building and the petition shop were closed at the time when the advocate-commissioner visited and bearing name plate for the two shops in the name and style of "Electro Engineering Enterprises". 7. The landlord took possession of the petition shop on 30.7.1993 by filing E.P.No.466 of 1993 pursuant to the order of eviction obtained in his favour in R.C.O.P.No.560 of 1985 and confirmed by this Court in C.R.P.No.3025 of 1992 on the ground that the petition shop is required bona fide for his own use and occupation. As per section 10(5(a) of the Act, if the landlord, who obtained possession of the building in pursuance of the an order under Section 10(3)(a)(iii) of the Act, is not occupied the petition shop within one month from the date of obtaining possession, then the tenant, who has been evicted may apply to the Court seeking restoration of the possession of the petition shop. Therefore, the revision petitioner/tenant filed R.C.O.P.No.2271 of 1993 under Section 10(5)(a) of the Act, seeking redelivery of the petition premises to him since till the date of filing of the said petition i.e. till 28.9.1993, the landlord has not occupied the petition premises though he took possession on 30.7.1993. Along with the R.C.O.P.No.2271 of 1993, he also filed M.P.No.744 of 1993 for appointment of advocate-commissioner directing the advocate-commissioner to inspect the said premises thrice a day between 10.00 a.m. and 5.00 p.m. continuously for a week to find out whether the respondent/landlord is in occupation of the said shop and running a business therein without issuing notice to the landlord. In that view, the learned Rent Controller exercised his discretionary power and for the purpose "to throw light upon the matter in issue", viz., as to whether the landlord has not occupied the petition shop after he obtained the possession of the same on 30.7.1993 in the R.C.O.P.No.560 of 1985 filed under Section 10(3)(a)(iii) of the Act, rightly appointed advocate-commissioner directing to visit the petition shop as sought for and without notice to the landlord. Therefore, there is no irregularity in the order of the learned Rent Controller in appointing the advocate-commissioner ex parte and directing the advocate-commissioner to inspect the petition shop thrice a day between 10.00 a.m to 5.00 p.m. continuously for a week without issuing notice to the landlord to elucidate the facts as to whether actually the respondent landlord occupied the petition shop within one month after obtaining the possession of the same on 30.7.1993. If the respondent/landlord actually occupied the petition shop and also the southern shop by annexing the same and by removing the wall in between and is carrying on the business in the name and style of "Electro Engineering Enterprises", it is open for the landlord to prove such a case before the learned Rent Controller that under what circumstances both the said shops were closed at the time of visit made by the advocate-commissioner by examining or cross-examining the advocate-commissioner with regard to the report filed by him. In that view, the order of the learned Rent Control Appellate Authority setting aside the order passed in M.P.No.744 of 1993 in R.C.O.P.No.2271 of 1993 cannot be said to be proper and as such, it is to be set aside. 8. In the result, this Civil Revision Petition is allowed setting aside the judgment and decree dated 27.11.1998 made in R.C.A.No.8 of 1995 by the learned Rent Control Appellate Authority. No cost. Consequently, the petition C.M.P.No.9996 of 1999 is closed.