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2005 DIGILAW 1723 (MAD)

Sundari Ammal, Tuticorin District & Another v. Kandappan Tuticorin District

2005-10-28

R.BANUMATHI

body2005
Judgment :- This civil revision petition is directed against the order dated 19.10.2004 passed by the District Munsif, Sathankulam in I.A.No.6 of 2004 in I.A.No.4 of 2004 in R.C.O.P.No.1 of 2003, dismissing the petition filed under Sec.5 of the Limitation Act declining to condone the delay of 143 days in filing the application to restore I.A.No.4 of 2004. Tenant is the revi­sion petitioner. 2. R.C.O.P.No.1 of 2003: The first revision petitioner is the tenant under the respondent/ landlord. The eviction petition was filed on the grounds of willful default, Sub-letting etc. The trial commenced and the case was posted on 7.10.2003 for cross-examination of the respondent/landlord. On that date, the revision petitioner/tenant has not appeared in the lower Court and hence, an ex-parte - order of eviction was passed on 7.10.2003. 3. I.A.P.No.4 of 2004: This application was filed by the revision petitioners/tenants to set aside the ex-parte order of eviction dated 7.10.2003. This application was ordered with condition to pay Rs.200 to the respondent/landlord on or before 25.2.2004. The cost was not paid and the conditional order was not complied with. Hence, I.A.No.4 of 2004 was dismissed on 25.2.2004. 4. I.A.No.6 of 2004:- This application has been filed under Sec.5 of the Limitation Act to condone the delay of 143 days in filing the application to set aside the ex-parte order in I.A.No.4 of 2004 and to restore the same. According to the revision petitioners/tenants, they were out of station and the letters sent by the lower Court counsel intimating them about the conditional cost was not received by them in time and hence, they could not comply with the order. By filing the counter statement, the respondent/ landlord has resisted the application contending that the application has been filed only with a view to delay the order of eviction. It was pointed out that E.P.No.13 of 2004 was already filed. 5. In consideration of the contentions of both parties, learned Rent Controller dismissed the application finding that the delay has not been properly explained. It was further held that the application has been filed only to delay the Eviction proceedings. Learned Rent Controller has observed that despite time has given to the tenants to pay the around, the t ants have not chosen to pay the rent and, application has been filed only to delay Eviction. It was further held that the application has been filed only to delay the Eviction proceedings. Learned Rent Controller has observed that despite time has given to the tenants to pay the around, the t ants have not chosen to pay the rent and, application has been filed only to delay Eviction. The Rent Controller has observed the tenants have been negligent and inactive in pursuing the matter. 6. As against the order of dismissal of the application in I.A.No.6 of 2004, the revision petitioners/tenants have preferred this civil revision petition. Assailing the impugned order, learned counsel for the revision petitioners has submitted that the tenants did not get the Letter sent by the counsel in time and hence, they could not comply with the conditional order. It is further submitted that the delay has been properly explained, which was not properly appreciated by the Courts below, Submitting that Sec.5 of the Limitation Act is applicable to the rent control proceedings, learned counsel for the revision petitioners has relied upon number of decisions. 7. Countering the arguments, learned counsel for the respondent/landlord has raised objection regarding the maintainability of the revision petition. Submitting that only appeal ought to have been preferred against any order of the Rent Controller, learned counsel for the respondent/landlord has relied upon the decision reported in M.S. Hameed v. Kanniammal, (1981) 1 M.L.J. 477 . It is further submitted that even on facts, the revision petitioner has not properly explained the delay and no sufficient cause has been shown for the delay and no sufficient cause has been shown for the delay of 143 days. It is further submitted that having not chosen to challenge the order of eviction, the revision petitioners/tenants cannot seek to restore the application in I.A.No.4 of 2004. 8. In consideration of submissions of both sides, impugned order and other materials on record, the following points arise for consideration in this civil revision petition: (i) Whether the revision petition filed under Art.227 of the Constitution of India invoking the supervisory jurisdiction is maintainable? (ii) Whether the order dismissing the applica­tion filed under Sec.5 of the Limitation Act declining to condone the delay suffers from material irregularity warranting interference? 9. The foremost question that arises for con­s ration is as to the maintainability of the revision petition filed under Art.227 of the Con­stitution of India. (ii) Whether the order dismissing the applica­tion filed under Sec.5 of the Limitation Act declining to condone the delay suffers from material irregularity warranting interference? 9. The foremost question that arises for con­s ration is as to the maintainability of the revision petition filed under Art.227 of the Con­stitution of India. Sec.23(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (here­inafter referred to as the Act) embodies a spe­cial procedure for filing the appeal. Sec.23(1)(b) reads as follows: "Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the fifteen days aforesaid, the time taken to obtain a certified copy of the order appealed against shall be excluded." The scope and the powers of the appellate authority as well as the mode of disposal of appeal are indicated in Sec.23(3) of the Act. Sec.23(3) of the Act reads as under: “ The appellate authority shall call for there cords of the case from the Controller and after giving the parties an opportunity of be­ing heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal.” 10. Sec. 23(4) of the Act gives effect to the finality of the order passed by the appellate authority. Sec.23 (4) of the Act lays down an interdict against such order being challenged in any Court of law. Sec.23 (4) of the Act reads us under: “The decision of the appellate authority, and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of Law, except as provided in Sec.25.” 11. Sec.25 of the Act provides for the revision wherein the High Court can cal I for and examine the record of the appellate authority or propriety of any decision and orders passed thereon. In reversing the orders, wide powers are conferred upon the High Court to modify, reverse or remit the matter for reconsideration. Sec.25 of the Act provides for the revision wherein the High Court can cal I for and examine the record of the appellate authority or propriety of any decision and orders passed thereon. In reversing the orders, wide powers are conferred upon the High Court to modify, reverse or remit the matter for reconsideration. Sec.25 of the Act reads as under: “(1) The High Court may, on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of the appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should be modified, annulled, reversed for reconsideration, it may pass orders accordingly.” 12. By a reading of Secs.23 and 25 of the Act, it is seen that as against the order of the Rent Controller, only an appeal would lie under Sec.23 (1)(b) of the Act. Only as against such order passed by the Rent Control appellate authority, a revision is maintainable under Sec.25 of the Act. That is why Sec.23 (4) of the Act declares the finality of the decision of the appellate authority and provides that those orders cannot be called into question except as provided under Sec.25 of the Act. On a combined reading of Secs.23 and 25 of the Act, it is clear that as against the order passed by the Rent Controller, only an appeal is to be filed before the appellate authority. The order passed by the Rent Controller cannot be challenged invoking Art.227 of the Constitution of India. If each and every order of the Rent Controller is to be challenged invoking Art.227 of the Constitution of India, Secs, 23 and 25 of the Act Would be rendered nugatory. In view of the efficacious alternative remedy available, the revision is not maintainable. 13. The Impugned Order was passed by the Rent Controller in I.A.No.6 Pf 2004 declining to condone the delay of 143 days in filing the application to set aside the order made in I.A.No.4 of 2004. Against the order made in I.A.No.6 of 2004 only an appeal ought to have been preferred before the Rent Control appellate authority under sec.23 (1)(b) of the Act. 14. Against the order made in I.A.No.6 of 2004 only an appeal ought to have been preferred before the Rent Control appellate authority under sec.23 (1)(b) of the Act. 14. In a similar case reported in M.S. Hanwed v. Kanniammal, (198I) 1 M.L.J. 477, V. Ratnam, J., taking a different view from the unreported decision of Natarajan, J in S.R.No.55329 of 1979, dated 17th August 1979 has held that the revisional Jurisdiction under Sec. 115, C.P.C., is not a matter of assumption or presumption. In the said decision, it has been held as under: "...Though the inapplicability of the jurisdiction of this Court under Sec. 115, C.P.C., cannot be a matter of either assumption or presumption as stated by the learned Judge, yet in view of the specific statutory provisions referred to already, such a conclusion is inevitable and the orders of the Rent Controller or the appellate authority constituted under the Act cannot be questioned under Sec. 115, C.P.C. As pointed out already, the Act is a self-contained Act containing provisions for appeal as well as revision and enabling an aggrieved party to challenge the correctness of orders passed by the authorities under the Act in the manner provided there under and no more. Consequently, resort to Sec. 115, C.P.C., in matters or proceedings arising out of the provisions of the Act cannot be had to test the correctness of the orders passed under the Act. Therefore, it may not be appropriate even to characterize the provisions of Sec.11,5 C.P.C., and Sec.25 of the Act as mutually exclusive and to hold that the revisional power under Sec. 115, C.P.C., is always available even with reference to the matters arising under the provisions of the Act, under which special, but -limited provisions are made to question the correctness of orders passed under the provisions of that Act. In view of these considerations, the civil revision petition filed by the petitioner purporting to be under Sec. 115, C.P.C., cannot entertained in this Court and consequently has to be dismissed". 15. In the above case, the tenant was set ex-parte and an ex-parte order of eviction was passed. An application was filed for setting aside the ex-parte order of eviction, which was allowed on payment of conditional cost of Rs.25 to the landlord. The tenant has not paid the cost within the time granted by the Rent Controller. The application was dismissed. An application was filed for setting aside the ex-parte order of eviction, which was allowed on payment of conditional cost of Rs.25 to the landlord. The tenant has not paid the cost within the time granted by the Rent Controller. The application was dismissed. The correctness of the order is challenged by the tenant by filling the revision under Sec. 115, C.P.C. Though the present revision petition has been filed under Art.227 of the Constitution of India, the above observation applies to the case in hand. When efficacious alternative remedy is available to the revision petitioners/tenants by way of filing the appeal before the Rent Control appellate authority, the revision petition filed invoking the supervisory powers of this Court under Art.227 of the Constitution of India is not maintainable. 16. Even on merits, the revision petitioners/ tenants have not made out a case. P.W.1 was examined in Chief. For his cross-examination, the case was posted on 7.10.2003. The tenants have neither appeared nor had given in structions to their counsel to get along with the matter. Because of their non-appearance, they were set ex-parte on 7.10.2003 and ex-parte order of eviction was passed on the same date. I.A.No.4 of 2004 was allowed on condition of payment, of cost of Rs.200 to be paid to the rd on or before 25.5.2604. The revision petitioners/tenants have not complied with the nearly after a period of five months, I.A.No.6 of 2004 was filed on 15.8.2004. No le explanation is forthcoming for such inordinate delay in filing the application. It is that the Respondent/landlord has already E.P.No.13 of 2004 for executing the or­ Perhaps after knowing about Proceedings, the revision petitioners/tenants have filed the application under of the Limitation Act seeking to codone the delay in filing the application to set aside the order made in I.ANo.4 of 2004 and to restore that application. The reasons stated by revision petitioners/tenants seeking condo-11 of delay are not convincing. Learned Controller has rightly declined to condone delay. 17. The reasons stated by revision petitioners/tenants seeking condo-11 of delay are not convincing. Learned Controller has rightly declined to condone delay. 17. Learned counsel for the revision petitioners/tenants has relied upon number of decisions in reported in E.K. Venkaimarban v. Dakshinamoorthy, (1981) 1 M.L.J. 275 : Municipal Corporation, Gwalior v. Rama Cgandran (D) by L.Rs., (2002) 2 C.T.C. 349; Chandrasekaran v. A.S. Chinnamuthu, (2002) 4 C.T.C. 484 ; P.S. Pareed Kaka v. Shaee Ahmed Sahib, (2004) 5 S.C.C. 241 , to support his contention that Sec. 5 of the Limitation Act is applicable to the rent control proceedings. There is no denying that Sec.5 of the Limitation Act is applicable to the rent control proceedings. The question is whether such an order passed by the Rent Controller, is to be revised under Art.227 of the Constitution of In At. As against the order passed by the Rent Controller only an appeal ought to have been preferred under Sec.23 (1)(b) of the Act. 18. The powers conferred under Art.227 of the Constitution of India is to be sparingly exercised. Exercising the power under Art.227 of the Constitution of India the, High Court would not interfere with the Impugned Order unless it suffers from any jurisdictional error apparent on the face of record. In this case, the impugned order does not suffer from any jurisdictional error apparent on the face of record warranting interference. This civil revision is neither maintainable nor the impugned order suffers from any infirmity or illegality. 19. For the foregoing reasons, the order dated 19.10,2004 passed by the District Munsif, Sathankulam in I.A.No.6 of 2004 in. I.A.No.4 of 2004, in R.C.O.P.No.1 of 2003, is confirmed and this civil revision petition is dismissed. In the circumstances of the case, there is no order as to costs. Petition dismissed.