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2007 DIGILAW 655 (MAD)

K. M. Mohamed Nooruddin v. P. Ellappan

2007-02-22

R.BANUMATHI

body2007
Judgment :- Exercising power under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, can the Appellate Authority appoint a Commissioner in an Appeal filed against the order of the Rent Controller fixing the fair rent is the point arising for consideration in this Revision Petition. 2. This Revision Petition arises on the following facts:-Respondent is a Tenant of Northern side portion of the premises bearing Door No.1, Kalaimanpuram Street, Anna Salai, Chennai on a monthly rent of Rs.90/-. The Respondent / Tenant is in occupation of the premises for the purpose of running his two wheelers mechanic shop. The Petitioner / Landlord filed R.C.O.P.No.921 of 2000 under Section 4(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act (for short "the Act") for fixation of fair rent claiming a sum of Rs.10,436/- per month. The Rent Controller fixed the fair rent per month at Rs.2,751/-. Aggrieved by the same, the Landlord has filed R.C.A.No.472 of 2003. The Tenant has preferred R.C.A.No.712 of 2003. Both the Appeals were heard together by the Appellate Authority. Arguments of counsel for the Petitioner was concluded on 26.07.2006. 3. When the Appeals were posted to 08.08.2006, the Respondent has filed the Application for appointment of an Advocate Commissioner to inspect the Petition premises along with the adjacent portion and to note down the physical features of the building, roof of which is said to have been fallen down in June 2003. The Appellate Authority, finding that exact area in occupation of the Tenant and condition of the building are very essential for fixation of fair rent has appointed Commissioner, which is impugned in this Revision. .4. Challenging appointment of Commissioner, learned counsel for the Petitioner / Landlord vehemently contended that the reasons stated for appointment of Commissioner have no factual basis. It was further submitted that already there is overwhelming evidence for fixing the fair rent and the Appellate Authority was not right in appointing Commissioner for the purpose of gathering new material. Placing reliance upon the decisions reported in Natha Singh and others ..Vs.. The Financial Commissioner (A.I.R. 1976 S.C. 1053), Kodiyambal Ammal ..Vs.. N.V.Ananthakrishnan (1996 L.W. (Part 37) 135), T.Sivasubramaniam and others ..Vs.. Kasinath Pujari and others (1999 A.I.R. S.C.W. 3152) and Sakunthala ..Vs.. Placing reliance upon the decisions reported in Natha Singh and others ..Vs.. The Financial Commissioner (A.I.R. 1976 S.C. 1053), Kodiyambal Ammal ..Vs.. N.V.Ananthakrishnan (1996 L.W. (Part 37) 135), T.Sivasubramaniam and others ..Vs.. Kasinath Pujari and others (1999 A.I.R. S.C.W. 3152) and Sakunthala ..Vs.. Devi (1999 I M.L.J. 101), learned counsel for the Petitioner has submitted that appointing a Commissioner in the Appellate stage and receiving additional evidence would cause serious prejudice to the Petitioner / Landlord. 5. Learned counsel for the Respondent has submitted that Section 18-A of the Act enables the Rent Controller to appoint a Commissioner and for the purpose of holding further inquiry the Appellate Authority has rightly appointed the Commissioner. It was further submitted that Roof had fallen after the Appeal was filed and Commissioner had been appointed only to note down the physical features and the condition of the building, which would not in any way cause prejudice to the Landlord. 6. I have carefully examined the records and given thoughtful consideration to the submissions of both sides. Under Sec.23(3) of the Act, the Appellate Authority shall decide the Appeal 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. Sec.23(3) of the Act specifically directs the Appellate Authority to decide the Appeal on merits and should not exercise a mere general superintendence over the order of the Rent Controller. The Appellate Authority cannot merely endorse the finding, but it is enjoined upon the Appellate Authority to hold further inquiry for deciding the Appeal. 7. Therefore, when the Appellate Authority deals with the matter "for making such inquiry", the Appellate Authority has the same power as that of the Rent Controller. The Appellate Authority is also entitled to take additional evidence for which it has got all powers of Rent Controller. But, that does not mean that the Appellate Authority is identified as the Rent Controller / Trial Court for all purposes. 8. When additional evidence is sought to be adduced, the Appellate Authority can permit additional evidence if it feels that for the purpose of consideration of the matter on merits and proper disposal of the appeal, additional evidence is necessary. Appellate Authority may allow additional evidence, provided sufficient opportunity is afforded to the opposite party. 8. When additional evidence is sought to be adduced, the Appellate Authority can permit additional evidence if it feels that for the purpose of consideration of the matter on merits and proper disposal of the appeal, additional evidence is necessary. Appellate Authority may allow additional evidence, provided sufficient opportunity is afforded to the opposite party. To impose any blanket interdict to receive additional evidence would be against the spirit of Sec.23 of the Act. 9. Whether the order of the Appellate Authority appointing Commissioner suffers from irregularity is the point to be considered. Under Section 18-A of the Act, the Rent Controller shall have powers to appoint Commissioner in any proceeding pending before him and for this purpose, he shall have all the powers of a Civil Court under Code of Civil Procedure. .10. In the decision reported in K.Sivarajah ..Vs.. B.K.N.Rajaram ( 1999 (1) L.W. 430 ), this Court has held that under Section 18-A of the Act, the Rent Controller shall have powers to appoint a Commissioner in any proceeding pending before him and therefore the argument of the learned counsel that in the proceeding under Section 4 of the Act, the Commissioner cannot be appointed falls to the ground. In the above decision, learned Single Judge observed as follows: ."... Learned counsel contended that the present application is outside the scope of Section 18-A of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and in any event what can be proved as a fact before the Court cannot be allowed to be collected by an Advocate Commissioner reproduced before the Court. In other words, actual proof in the normal course cannot be substituted by an Advocate Commissioners report. A perusal of Section 18-A of the Act reveals that the Rent Controller shall have powers to appoint a Commissioner in any proceeding pending before him and therefore, the argument of the learned counsel that in the proceeding under Section 4 of the Act the Commissioner cannot be appointed falls to the ground. As far as the other submissions are concerned, viz., advocate Commissioner report cannot be a substitute for actual proof, taking into account the dispute between the parties in this Fair Rent proceeding, it is always essential that the engineers report is necessary. The engineer had already filed a report, but that report is under criticism probably on the ground of bias. The engineer had already filed a report, but that report is under criticism probably on the ground of bias. Under these circumstances, the landlord is cautious in having the Advocate Commissioner appointed by the Court so that he can take an Engineer of his choice and file a report..." .11. Referring to the above decision, in Kuberan ..Vs.. Indian Bank (2006 (3) T.L.N.J (CIVIL) 606), S.RAJESWARAN, J., has ordered appointment of Advocate Commissioner in the petition filed for fixation of fair rent. Objection of the Tenant was over ruled. 12. In yet another decision reported in Thayammal ..Vs.. Peria Isakki Thevar and others ( 2002 (3) L.W. 607 ) learned Single Judge of this Court held that the Petitioner is not entitled to seek the appointment of an Advocate Commissioner to prove the market value of the suit property. In that case, Petition was filed seeking appointment of Advocate Commissioner to prove the market value of the property without even framing any issue with regard to value of the suit property. Only in that context, the learned Judge passed an order declining appointment of Commissioner. The facts in this case are totally different. The Respondent / Tenant has asked for appointment of Commissioner to note down condition of the building and actual area in his occupation and other physical features. Therefore, as rightly contended by the learned counsel for the Respondent / Tenant, condition of the building is an essential ingredient for fixation of fair rent. Therefore, the Appellate Authority was justified in appointing the Advocate Commissioner. 13. Under Sec.18-A of the Act, when the Rent Controller has power to appoint a Commissioner, the Appellate Authority has the power to appoint a Commissioner in any appeal pending before him "for the purpose of making further inquiry", provided the Appellate Authority is satisfied that appointment of Commissioner is necessary for the purpose of further inquiry. 14. Holding that the Appellate Authority is not disentitled to appoint an Advocate Commissioner to find out the actual area occupied by the Tenant, in the decision reported in T.S.Ramu ..Vs.. 14. Holding that the Appellate Authority is not disentitled to appoint an Advocate Commissioner to find out the actual area occupied by the Tenant, in the decision reported in T.S.Ramu ..Vs.. Neelakanda ( 2004 (2) C.T.C. 674 ) this Court has observed that power under Section 18-A of the Act to appoint Advocate Commissioner though it was under the jurisdiction of the Controller, Appeal being the continuation of original proceedings, the Appellate Authority would have all powers which the Rent Controller as original authority had, if it is provoked to appoint a commissioner although such an application was not sought before the Trial Court nor was it thought of by the Trial Judge himself. Learned Judge has agreed with the view in the decision reported in Asokraj Kandaswamy ..Vs.. Tiruvengadaswamy (1975 T.L.N.J. 237) wherein it was held that the Appellate Authority had all powers which includes the power to appoint Advocate Commissioner under Section 18-A of the Act. 15. Learned counsel for the Petitioner mainly contended that Petition for appointment of Commissioner was filed belatedly before the Appellate Authority. It was submitted that the Petitioners counsel had concluded his arguments on 26.07.2006 and when the Appeals were posted to 08.08.2006 for hearing the arguments of the Respondent, at that stage, the Respondent has filed Application for appointment of Advocate Commissioner. It was submitted that the Application filed nearly 3 ½ years after the filing of the Appeal lacks bonafide which was not taken note of by the Appellate Authority. This contention does not merit acceptance. When additional evidence is sought to be let in before the Appellate Authority, the High Court held that such an Application to let in additional evidence ought not to be taken up independently and it has to be taken up along with main appeal (vide Shanmugasundaram ..Vs.. N.T.P.Subburaya Chettiyar 1998 (3) L.W. 234 and Aventis and others ..Vs.. S.A.Mohammed Ibrahim ( 1999 (1) M.L.J. 241 ). Only when arguments were advanced in R.C.As, the Respondent has filed Application and it was rightly admitted during the course of hearing arguments. Referring to the above said decision reported in 2004 (2) C.T.C. 674 , the Appellate Authority satisfied as to the necessity of appointing Commissioner. S.A.Mohammed Ibrahim ( 1999 (1) M.L.J. 241 ). Only when arguments were advanced in R.C.As, the Respondent has filed Application and it was rightly admitted during the course of hearing arguments. Referring to the above said decision reported in 2004 (2) C.T.C. 674 , the Appellate Authority satisfied as to the necessity of appointing Commissioner. The Appellate Authority felt that it was essential to appoint Commissioner to note down the condition of the building and other physical features and the satisfaction of the Appellate Authority cannot be interfered with. 16. Learned counsel for the Petitioner has contended that appointment of Commissioner and receiving Commissioners Report in the Appellate Stage would be complicated procedure and would deprive the Landlord the opportunity of putting forth his objections. In support of his contentions, learned counsel for the Petitioner has placed reliance upon the decision reported in Gnanaraj ..Vs.. Bakyalakshmi and Another ( 2006 (4) C.T.C. 258 ). No doubt, once Commissioner files the Report, the evidentiary value of the same has to be considered in the light of the objections raised by either parties. But, that cannot be the reason for not exercising the discretion in appointing the Commissioner to note down the condition of the building, which is an essential ingredient in fixation of fair rent. Once Commissioner files Report, it is open to the Petitioner to raise objections if needed. 17. When the Appellate Authority has satisfied itself as to the necessity of appointing Commissioner, it cannot be said to be arbitrary or unreasonable. There is no irregularity committed by the Appellate Authority in appointing Advocate Commissioner. The grievance of the Petitioner is that he has to face new evidence before the Appellate Forum. No doubt, under O.26 R.10(2) C.P.C., the Report of the Advocate Commissioner shall be part of evidence. Further, an opportunity may be given to the Petitioner / Landlord to raise objections to the report of the Advocate Commissioner. The order of Appointment of Commissioner does not suffer from any irregularity or perversity warranting interference. 18. For the foregoing reasons, the Impugned Order dated 011. 2006 of the VIII Judge, Small Causes Court, Chennai in M.P.No.650 of 2006 in R.C.A.No.712 of 2003 is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2006 is also dismissed. 18. For the foregoing reasons, the Impugned Order dated 011. 2006 of the VIII Judge, Small Causes Court, Chennai in M.P.No.650 of 2006 in R.C.A.No.712 of 2003 is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2006 is also dismissed. However, it is made clear that once the Commissioner files his Report, the Appellate Authority (VIII Judge, Small Causes Court, Chennai) shall afford sufficient opportunity to both parties to file their objections and proceed with the matter in accordance with law and dispose of R.C.A.Nos.472 and 712 of 2003 within a period of four months from the date of receipt of copy of this order.