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2007 DIGILAW 666 (MAD)

N. Chellapandi v. C. Kaathan

2007-02-22

K.VENKATARAMAN

body2007
Judgment :- 1. The above Civil Revision Petition has been filed against the order of the learned Rent Controller (Principal District Munsif), Madurai Town dated 21.12.2004 made in I.A. No.207 2004 in R.C.O.P. No.174 of 2000. 2. The respondent herein being the landlord has filed R.C.O.P. No.174 of 2000 against the petitioner herein before the Rent Controller (Principal District Munsif), Madurai Town for eviction of the petitioner/tenant on the ground of wilful default. In the said Eviction Petition, an ex parte order has been passed against the petitioner herein on 9.2.2001. Thereafter, the petitioner has filed an Application to set aside the said ex parte order with an Application to condone the delay in preferring the said Application. The said Application to condone the delay in preferring the Application to set aside the ex parte order was dismissed on 21.12.2004 and the present Revision is directed against the said order. 3. Mr. R. Janakiramulu, the learned counsel for the petitioner has strenuously contended that the learned Rent Controller (Principal District Munsif), Madurai Town ought to have allowed the Application under Section 5 of the Limitation Act on the sole ground that no notice has been served on the petitioner in R.C.O.P. No.174 of 2000. Further, according to the learned counsel for the petitioner, the petitioner is not the tenant of the premises and the real tenant is "Kathirvel Accounts Book Shop", a partnership concern in which the petitioner is also one of the partners. The learned counsel further submitted that though there is a delay of 1246 days, the length of delay should not be taken note of in view of the fact that no notice has been served on the petitioner in the main R.C.O.P. 4. Per contra, Mr. V. Sarangapani, the learned counsel for the respondent, contended that the present Revision under Article 227 of the Constitution of India is not at all maintainable. According to the learned counsel, the petitioner should have filed an Appeal under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the order passed by the learned Rent Controller (Principal District Munsif), Madurai Town made in LA. No.207 of 2004 in R.C.O.P. No.174 of 2000. According to the learned counsel, the petitioner should have filed an Appeal under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the order passed by the learned Rent Controller (Principal District Munsif), Madurai Town made in LA. No.207 of 2004 in R.C.O.P. No.174 of 2000. Thus, the contention of the learned counsel for the respondent is that without preferring an Appeal as provided under Section 23 of the Act, the petitioner cannot invoke the extraordinary jurisdiction under Article 227 of the Constitution of India., The learned counsel further submitted that the petitioner has not explained the inordinate delay of 1246 days. 5. I have heard Mr. R. Janakiramulu, the learned counsel appearing for the Petitioner and Mr. V. Sarangapani, the learned counsel for the respondent. 6. It is an admitted fact that the respondent has filed the R.C.O.P. No.174 of 2000 against the petitioner for eviction on the ground of willful default and an ex parte order has been passed against the petitioner. To set aside the same, the petitioner has filed an Application with an Application to condone the delay of 1246 days. The said Application made in I.A. No.207 of 2000 has been dismissed by the learned Rent Controller (Principal District Munsif), Madurai Town on 21.12.2004. But, the petitioner, without filing an Appeal as provided under Section 23 of the Act, has invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the said order. 7. Mr. R. Janakiramulu, the learned counsel for the petitioner submitted that the petitioner without resorting to the remedy provided under Section 23 of the Act can very well approach this Court under Article 227 of the Constitution of India for setting aside the order passed by the learned Rent Controller (Principal District Munsif), Madurai Town dated 21.12.2004. According to the learned counsel for the petitioner, the order passed in I.A. No.207 of 2004 in R.C.O.P. No.174 of 2000 by the learned Rent Controller (Principal District Munsif), Madurai Town cannot be construed as a decree and an order has been passed only under Section 5 of the Limitation Act and hence, the Appeal under Section 23 of the said Act will not lie. 8. To substantiate the same, the learned counsel for the petitioner relied upon a decision reported in Ratansingh v. Vijayasingh, 2001 (I) CTC 683. 8. To substantiate the same, the learned counsel for the petitioner relied upon a decision reported in Ratansingh v. Vijayasingh, 2001 (I) CTC 683. By citing the said judgment, the learned counsel submitted that the order rejecting the Application to condone the delay in filing the Application to set aside the ex parte order is not a decree and hence it can be canvassed under Article 227 of the Constitution of India. The learned counsel further submitted that the order of the learned Rent Controller is not an decree and hence, an Appeal under Section 23 of the Act will not lie. 9. I am unable to accept the said argument of the learned counsel for the petitioner. In the said judgment, the controversy was whether the Execution Petition that has been filed after 12 years from the date of decree is maintainable or not. While discussing the said aspect of the matter, their Lordships of the Supreme Court have held that the order rejecting the Application for condoning the Appeal in filing the Second Appeal cannot be construed as a decree and hence the Execution Petition filed after 12 years from the dismissal of such Application is not at all maintainable. But in the case on hand, the controversy is whether the petitioner has to resort to Section 23 of the Act by filing an Appeal against the order of the Rent Controller. Hence, the said judgment will not of any use to the petitioner. 10. The learned counsel for the petitioner relied upon yet another decision of this Court reported in Devadoss v. Vela, 1984 (1) MLJ 301 , wherein Justice V. Ratnam (as he then was) has held as follows: "In this case also, there is no question of the Rent Controller having decided any of the rights of the parties by declining to hear the objection raised by the respondent relating to the bona fides of the denial of title as a preliminary issue. No Appeal, therefore, could have been preferred against that order under Section 23(1)(b) of the Act, even though it used the expression ‘an order. Consequently, it must be held that the Appeal preferred by the respondent in R.C.A. No.67 of 1982 before the Appellate authority was not maintainable." That is a case where the Rent Controller declined to entertain the question about the denial of title as a preliminary issue. Consequently, it must be held that the Appeal preferred by the respondent in R.C.A. No.67 of 1982 before the Appellate authority was not maintainable." That is a case where the Rent Controller declined to entertain the question about the denial of title as a preliminary issue. Since the said order did not in any manner decide or even purport to affect in any manner any right of either the petitioner or the respondent therein, the learned Judge has held that no Appeal under Section 23 of the Act will lie. The controversy in the present case is whether an Appeal will lie against the order passed under Section 5 of the Limitation Act. The order passed under Section 5 of the Limitation has decided the right of the petitioner herein finally. The facts and circumstances of the said judgment therefore will not be applicable to the present case on hand. 11. The next judgment that has been relied upon by the learned counsel for the petitioner is reported in M.P. Appulu v. A. Fatima Zohra and another, 1982 TLNJ 483. There the controversy was whether an Appeal will lie against the order passed under Section 18(a) for appointment of Commissioner. It has been held in the said judgment that an Appeal will not lie against the order appointment an Advocate Commissioner. Since the order appointing an Advocate Commissioner does not finally affects the rights of the parties, it has been held in the said judgment that an Appeal will not lie under Section 23 of the Act. Hence, the said judgment also will not be of any use to the petitioner. 12. The next judgment that has been cited by the learned counsel for the petitioner is reported in S. Mani v. T.K. Jacob, 1983 (2) MLJ 293 . The controversy in the said judgment is that the decision of the Rent Controller that the applicability of Section 19 of the said Act need not be tried as a preliminary issue, but has to be decided along with other issues. In that circumstances, this Court in the above said decision has held that such an order will not affect the rights of the parties and hence, no Appeal will lie against the said order. Even this decision will not be applicable to the facts of the present case. 13. In that circumstances, this Court in the above said decision has held that such an order will not affect the rights of the parties and hence, no Appeal will lie against the said order. Even this decision will not be applicable to the facts of the present case. 13. The other decision that has been cited by the learned counsel for the petitioner is reported in Rabavakkal v. Singaravar, 2002 (1) CTC 481 . In the said decision, the question that has arisen for consideration was that when the Rent Controller failed to determine the monthly rent and arrears and still stopped the Rent Control proceedings on account of arrears of rent, can the High Court exercise the power under Article 227 of the Constitution of India, even though an Appeal could have been filed against the order of the Rent Controller. While dealing with the said controversy/this Court has held that since the Rent Controller has not followed the mandatory provision of Sections 11(3) and 11(4) of the said Act, the High Court can interfere with the said order of the Rent Controller under Article 227 of the Constitution of India, even though an Appeal could have been filed against the order of the Rent Controller. But, in the present case on hand, the learned Rent Controller exercised his discretion and dismissed the Application filed by the petitioner under Section 5 of the Limitation Act. The learned Rent Controller has found that the reason assigned by the petitioner in the said Application is not sufficient and hence, dismissed the said Application. Hence, the above decision cited by the learned counsel for the petitioner will not be applicable to the facts and circumstances of the present case. 14. The discussion made above will clearly establish that when an order passed by the Rent Controller does not affect the rights of the parties finally, an Appeal under Section of the Act need not be filed and the aggrieved party can straight away approach the High Court under Article 227 of the Constitution of India. Furthermore, if the order of the Rent Controller is not in accordance with the provisions of law, then it can be said that the order need not be canvassed in Appeal before the Rent Control Appellate Authority, but can be canvassed before the High Court under Article 227 of the Constitution of India. Furthermore, if the order of the Rent Controller is not in accordance with the provisions of law, then it can be said that the order need not be canvassed in Appeal before the Rent Control Appellate Authority, but can be canvassed before the High Court under Article 227 of the Constitution of India. But, as discussed above, the learned Rent Controller has found that the reason stated by the petitioner to condone the delay of 1246 days in preferring the Application to set aside the ex parte order is not convincing and dismissed the said Application. The said order cannot be said to be an order not finally deciding the rights of the parties or the learned Rent Controller failed to follow the mandatory provisions or procedures contemplated in the said Act. Hence, without preferring an Appeal under Section 23 of the said Act challenging the order of the Rent Controller, the petitioner cannot invoke Article 227 of the Constitution of India by preferring the Civil Revision Petition before this Court. 15. In the result, the Civil Revision Petition stands dismissed. There is no order as to costs. However, it is open to the petitioner to canvass the correctness or otherwise of the order passed by the learned Rent Controller (Principal District Munsif), Madurai Town dated 21.12.2004 made in I.A. No.207 of 2004 in R.C.O.P. No.174 of 2000 by preferring an Appeal under Section 23 of the said Act. I have not expressed any opinion with regard to the merits or otherwise of the averments made in the affidavit in support of the Application in LA. No.207 of 2004 or expressed any opinion about the orders passed by the learned Rent Controller in the said Application. It is for the petitioner to canvass the correctness or otherwise of the said order in case if he prefers an Appeal against the said order. As and when such an Appeal is filed, the Rent Control Appellate Authority has to decide the matter on merits in accordance with law. The time taken for preferring the present revision by the petitioner shall be leniently considered by the learned Rent Control Appellate Authority.