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2008 DIGILAW 3569 (MAD)

P. Devendran & Another v. C. Raghunatha Reddy

2008-09-25

S.RAJESWARAN

body2008
Judgment : 1. This Civil Revision Petition has been filed by the Petitioners/Landlords in R.C.O.P. No.943 of 2007 against the order dated 26. 2008 passed in M.P. No.114 of 2008 in R.C.O.P. No.943 of 2007 by the XIII Judge, Small Causes Court, Chennai. 2. The Petitioners/Landlords in R.C.O.P. No.943 of 2007 are the revision petitioners before this Court. 3. The Revision Petitioners as Landlords filed R.C.O.P. No.943 of 2007 against the respondent/tenant herein under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for passing an order directing the respondent/tenant to deliver vacant possession of the building to the petitioners before a specified date for the immediate purpose of demolishing it, to put up new construction on the site and pass such further orders as the Rent Controller deems fit and proper. R.C.O.P. No.943 of 2007 was resisted by the respondent/tenant by filing a counter. 4. During trial, the Revision Petitioners filed M.P. No.114 of 2008 to direct the respondent herein to permit the Petitioner to inspect the petition property along with a qualified Civil Engineer for the purpose of noting down the measurements, physical features, age, apart from noting down the open space, etc. and on the basis of memo of instructions, so as to enable the Civil Engineer to give evidence in respect of the petition property for the purpose of demolishing and reconstruction. 5. The Case of the Revision Petitioners in M.P. No.114 of 2008 is that, they engaged the services of a qualified Civil Engineer for the purpose of inspecting the petition property. They expressed their desire before the Rent Controller to inspect the petition property, when the respondent counsel was cross examining the Second Revision Petitioner as P.W.2. They requested the Rent Controller to direct the respondent to permit them to inspect the petition property along with a qualified Civil Engineer. But, the respondent refused permission and informed the Rent Controller that, they should take out an appropriate step for seeking prior permission from him and that too, by way of an Application, with an intention to drag the proceedings under some pretext. Hence, they filed M.P. No.114 of 2008. The respondent herein filed a counter affidavit opposing Petition under M.P. No.418 of 2007 has been filed by the Revision Petitioners praying for the same relief, but the same was dismissed for default on 28. 2007. Hence, they filed M.P. No.114 of 2008. The respondent herein filed a counter affidavit opposing Petition under M.P. No.418 of 2007 has been filed by the Revision Petitioners praying for the same relief, but the same was dismissed for default on 28. 2007. They questioned the conduct of the Revision Petitioners in moving M.P. No.114 of 2008 so late, that too after the closure of the chief, the cross and their re-examination of both the Revision Petitioners. 6. The Rent controller by order dated 26. 2008 dismissed the M.P. No.114 of 2008 and aggrieved by the same, the above Revision Petition has been filed under Article 227 of the Constitution of India. 7. Heard, the learned counsel for the Revision Petitioners and the learned counsel for the respondent/tenant. I have also gone through the documents and judgments filed by them in support of their submissions. 8. The learned counsel for the respondent herein has raised a preliminary objection to the maintainability of the Revision Petition by contending that the refusal of the Rent Controller to appoint a Commissioner is not a ground for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. She submitted that the order of the Rent Controller refusing to appoint an Advocate Commissioner is a mere procedural order not affecting any right or liability of the parties. Hence, according to the learned counsel for the respondent, if the Revision Petitioners are aggrieved by the order of the Rent controller dismissing M.P. No.114 of 2008, the same could be canvassed in the main Appeal from the final order passed in the R.C.O.P. and not before this Court under Revision. 9. In support of her submission, the learned counsel for the respondent relied on the following judgments: 1. R. V. Ramalingam v. Abdul Muthaliff, 1993 (1) MLJ 17 (NRC); 2. Chinnaraju Naidu v. Basha and others, 1981 (94) LW 745; 3. K.S. Mahaboob Basha and others v. Kaneez Fathima, 1991 (1) MLJ 372 ; 4. K.M. Iyyakannu v. Thangammal, 1989 (1) MLJ 478 ; and 5. Mahboob Alam and another v. Smt. Nasira Begum and others, AIR 1977 Raj. 189 . 10. Chinnaraju Naidu v. Basha and others, 1981 (94) LW 745; 3. K.S. Mahaboob Basha and others v. Kaneez Fathima, 1991 (1) MLJ 372 ; 4. K.M. Iyyakannu v. Thangammal, 1989 (1) MLJ 478 ; and 5. Mahboob Alam and another v. Smt. Nasira Begum and others, AIR 1977 Raj. 189 . 10. Per Contra, the learned counsel for the Revision Petitioners submits that as the order passed by the Rent Controller does not affect the rights of the parties finally, an Appeal under Section 23 of the Act will not lie and they could very well maintain the Revision under Article 227 of the Constitution of India. He relied on the decisions of this Court: 1. S.M. Chandrasekaran v. S.S. Jayamani and others, 2007 (3) CTC 822. 2. N. Chellapandi v. C. Kaathan, 2007 (4) CTC 561. 11. I have considered the rival submissions with regard to facts and citations. 12. First, let me consider the Preliminary objection raised by the learned counsel for the respondent as to the maintainability of the Revision Petition filed by the landlords against the order of the Rent Controller in M.P. No.114 of 2008 dismissing the Petition, and not permitting the Revision Petitioners to inspect the petition property along with a qualified Civil Engineer for the purpose of noting down its physical features. 13. Admittedly, this order of the Rent Controller refusing to permit the Revision Petitioners to inspect the petition property along with a qualified Civil Engineer for the purpose of noting down its physical features is a mere procedural order not affecting the right or the liability of the parties. If that being so, whether the Revision Petitioners could maintain this Revision Petition under Article 227 of the Constitution of India is the question to be decided in this Revision. 1. In Mahboob Alam and another v. Smt. Nasira Begum and others, AIR 1977 Raj. 189 (cited supra), the Jaipur Bench of the Rajasthan High Court held that every decision if found to be erroneous is bound to cause some difficulty or hardship to a party in the conduct of his case, but, that would hardly be a relevant consideration for entertaining a Petition under Article 227 of the Constitution of India; while another remedy is open to the petitioners. The supervisory jurisdiction of the High Court under Article 227 is to be sparingly used in appropriate cases where the Court is convinced that gross injustice would otherwise be purported, in case the High Court does not interfere in the exercise of its extraordinary powers under Article 227 of the Constitution of India. 2. In K.M. Iyyakannu v. Thangammal, 1989 (1) MLJ 478 , a learned Judge of this Court held that refusal to appoint a commissioner by the Lower Court cannot be challenged before this Court by filing a Revision Petition under Article 227 of the Constitution of India. This Court observed that if the commissioner noted the physical features of the property, it would be useful in deciding the issue involved and that cannot be a ground for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. The relevant portion of the order reads as under: "3. It is stated in the grounds of Revision that the order of the Court below is erroneous and contrary to law and that the Lower Appellate Court failed to note that the appointment of a Commissioner is essential for the determination of the controversy in question as well as to note down the physical features of the property in question and its adaptability, especially in view of the alleged requirement of the landlord. Learned counsel for the respondent drew my attention to a decision of this Court reported in V. Savarimuthu v. Special Director of Enforcement, 1986 (1) MLJ 206 , where it was held as follows: The power under Article 227 is an extraordinary power and it requires to be exercised sparingly and with extreme caution. It is a power of superintendence reserved for this Court and is subject to its discretion and it cannot be claimed as of right by any party. By now, it has been settled by pronouncements of the highest Court in the land as to when this Court could properly report to and exercise the powers under Article 227. It is a power of superintendence reserved for this Court and is subject to its discretion and it cannot be claimed as of right by any party. By now, it has been settled by pronouncements of the highest Court in the land as to when this Court could properly report to and exercise the powers under Article 227. The well accepted contingencies and features to warrant the exercise of such powers are: .(i) Lack of jurisdiction, erroneous assumption of jurisdiction or excess of jurisdiction or refusal to exercise jurisdiction; .(ii) grave dereliction of duty or flagrant violation of law or error of law apparent on the face of the record as distinguished from a mere mistake of law or an erroneous decision of law; (iii) violation of the principles of natural justice; .(iv) perverse finding founded on no material whatever; and .(v) arbitrary or capricious exercise of authority or discretion. It was further observed that "the High Court under Article 227 does not assume and exercise Appellate or revisional powers even on a question of law." Learned Counsel for the respondent submitted that none of the ingredients which are necessary for invoking the jurisdiction of this Court under Article 227 of the Constitution has been made out in this case. I find much force in the contention of the learned counsel for the respondent. There is absolutely nothing for invoking the jurisdiction of this Court under Article 227 of the Constitution. It is open to the petitioner to adduce necessary evidence to substantiate his contention. The mere fact that the Court below refused to appoint a Commissioner is not a ground for invoking the jurisdiction of this Court. The only ground urged is that if the Commissioner noted the physical features of the property, it will be useful for deciding the issue involved in the O.P. That cannot be a ground for invoking the jurisdiction of this Court under Article 227 of the Constitution. Hence, the Revision fails and is dismissed. It is open to the petitioner to adduce necessary evidence in support of his case. No costs. 3. Hence, the Revision fails and is dismissed. It is open to the petitioner to adduce necessary evidence in support of his case. No costs. 3. In R.V. Ramalingam v. Abdul Muthaliff, 1993 (1) MLJ 17 (N.R.C.) (cited supra), a learned Judge of this Court held that the issue of a commission is only a step for assisting the parties in the prosecution of their case and it is open to canvass an error, defect or irregularity, if any, in the order in an Appeal from the final order passed in the proceedings for eviction, but, no Appeal from the order lay to the Appellate Authority. 4. In K.S. Mahaboob Basha and others v. Kaneez Fathima, 1991 (1) MLJ 372 , this Court held that the order refusing to appoint a Commissioner will not affect the rights of the parties and therefore, it cannot be contended that the order of the Rent Controller refusing to appoint a Commissioner affects the partys rights. 5. In Chinnaraju Naidu v. Basha and others, 1981 (94) LW 745, this Court, in a case, arising under the very same Act, viz., Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 held that an order on an Interlocutory Application permitting the landlord to correct the door number of the premises in question, is only procedural in character and it cannot be said to be a final order coming within the definition of an order occurring under Section 23(1)(b) of the Act. This Court further held that only the order which affects the rights and liabilities of the parties in the sense they become final orders though passed on Interlocutory Applications such as refusing to set aside ex parte orders, etc. are appealable. However, it is open to the parties to set forth the order, defect or irregularity, if any, in such an order, as a ground of objection in his Appeal from the final order in the main proceeding. The relevant portion of the order reads as under: "13. The principle laid down by the Supreme Court in the above cited decision was reiterated and reaffirmed by the Supreme Court in Baut Singh Gill v. Shanti Devi and others. In that case, a Suit was filed for ejectment by the landlord against a tenant under the provisions of the Delhi and Ajmer Rent Control Act of 1962, on the ground of failure to pay the rent. In that case, a Suit was filed for ejectment by the landlord against a tenant under the provisions of the Delhi and Ajmer Rent Control Act of 1962, on the ground of failure to pay the rent. The appellant tenant filed an Application raising a preliminary issue about the maintainability of the Suit on the ground that the Suit had abated by virtue of Section 50(2) of the Delhi Rent Control Act of 1958. The Rent Controller dismissed that Application and proceeded with the trial of the Suit. Against that order, the tenant filed an Appeal dismissed on the ground that no Appeal would lie against such an order, a further Revision was filed before the High Court of Punjab, which Appeal also failed. It was as against the order of the High Court, the tenant took up the matter to the Supreme Court. While considering the legality of the order appealed against, the Supreme Court ruled thus — "If the decision had been in favour of the appellant and the Suit had not been dismissed, no doubt there would have been a final order in the Suit having the effect of a decree. On the other hand, if, as in the present case, it is held that the Suit had not abated and its trial is to continue there is no final order deciding the rights or liabilities of the parties to the Suit. The rights and liabilities have yet to be decided after full trial has been gone through. The decision by the Court is only in the nature of finding on a preliminary issue on which would depend the maintainability of the Suit. Such a finding cannot be held to be an order for purpose of Section 34 of the Act of 1952 and consequently, no Appeal against such an order would be maintainable. It was indicated by this Court in the case of the Central Bank of India Ltd., that, in such a case, it is open to the appellant to canvass the error, defect or irregularity, if any, in the order in Appeal from the final order passed in the proceedings for eviction. It was indicated by this Court in the case of the Central Bank of India Ltd., that, in such a case, it is open to the appellant to canvass the error, defect or irregularity, if any, in the order in Appeal from the final order passed in the proceedings for eviction. In the present case also, therefore, it is clearly open to the appellant to raise the pleas of abatement of the Suit, if and when he files an Appeal against a decree for eviction passed by the Trial Court." Thus, it is seen from the above ruling of the Supreme Court in Bant Singh Gills case that even an order rejecting an Application questioning the maintainability of the Suit on the ground of abatement, was held to be not a final order deciding the rights and liabilities of the parties to the Suit and as such no Appeal would be maintainable against such an order. Afortiorari therefore, an order in an Interlocutory Application permitting the landlord to correct the door number of the premises in question, which is only procedural in character, cannot be said to be a final order coming within the definition of an order occurring in Section 23(1)(b) of the Act. The purpose of putting a bar on the powers of Appeal. or Revision, as the case may be, in relation to any interlocutory order passed in proceedings like the Rent Control matters, which is not a final order affecting the right and liability of any party is to bring about an expeditious final disposal of the case lest it would give room for a long drawn affair delaying the disposal of such cases. 14. The quintessence of the above discussion, in the light of the observations made in the various decisions referred to above, is to the effect that all interlocutory orders passed during the proceedings under the Act cannot be said to be orders coming within the meaning of Section 23(1)(b) of the Act, but only the orders which affect the rights and liabilities of the parties, in the sense that they become final orders though passed on Interlocutory Applications, such as refusing to set aside ex parse orders, etc., are appealable. However, it is open to the parties to set forth the error, defect of irregularity, if any, in such an order as a ground of objection in his Appeal from the final order in the main proceedings. 15. In the result, I hold that the order passed by the Rent Controller in LA.100 of 1979 in H.R.C.O.P. 50 of 1978 is not an appealable order and consequently the order of the Appellate Authority dismissing C.M.A. 3 of 1980 as not maintainable is quites correct, though the observation made by it that the petitioner could file a Revision against the said interlocutory order is erroneous." 6. In S.M. Chandrasekaran v. S.S. Javamani and others, 2007 (3) CTC 822, this Court held that a Revision is not maintainable against an order dismissing an application to condone the delay in filing the Application to set aside the ex parte order and the same is to be appealed under Section 23 of the Rent Control Act. 7. In N. Chellapandi v. C. Kaathan, 2007 (4) CTC 561, this Court reiterated the point that a revision preferred under Article 227 of the Constitution of India against the dismissal of condone delay Petition in setting aside the ex parte order of eviction is not maintainable and the proper course is to file an Appeal under Section 23 of the Act. The learned Judge, who delivered the judgment has further observed that when an order passed by the Rent Controller does not affect the rights of the parties, finally, an Appeal under Section 23 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. The relevant portion of the order reads as under: "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 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 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 parse 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. Relying on the above judgment reported in N. Chellapandi v. C. Kaathan, 2007 (4) CTC 561, the learned counsel for the petitioners contended that as the order passed by the Rent Controller in M.P. No.114 of 2008 does not affect the rights of the parties finally, they could straightaway maintain the Revision Petition under Article 227 of the Constitution of India. 14. I am unable to accept the submissions made by the learned counsel for the petitioners. 15. Both the judgments relied on by the learned counsel for the revision petitioners dealt with question as to whether a Revision under Article 227 of the Constitution of India or an Appeal under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 would lie against an order passed by the Rent Controller dismissing an Application filed to condone the delay in filing the Application to set aside the ex parte order. This Court has unanimously held that in such circumstances, the proper course is to file an Appeal under Section 23 of the Act and not to invoke Article 227 of the Constitution of India. 16. This Court has unanimously held that in such circumstances, the proper course is to file an Appeal under Section 23 of the Act and not to invoke Article 227 of the Constitution of India. 16. It is not in dispute that the order passed by the Rent Controller in M.P. No.114 of 2008 is only a procedure one and it cannot be said to be a final order coming within the definition of an "order" occurring in Section 23(1)(b) of the Act and the order of the Rent Controller has also not affected the rights and liabilities of the parties and therefore, as held by this Court in Chinnaraju Naidu v. Basha, 1981 (94) LW 745 (cited Supra), the Revision Petitioners could not challenge the correctness of the order in their Appeal from the final order in the main R.C.O.P. if it is decided against them. In fact, in the above judgment, the order under challenge was, permitting the landlord to correct the Door No. of the premises, against which, an Appeal under Section 23 was filed by the tenant. The Appellate Authority dismissed the Appeal by holding that the Appeal is not maintainable and observing that the remedy open to the tenant was to file a Revision against the impugned order of the Rent Controller. This Court while upholding the order of the Appellate Authority in stating that the Appeal is not maintainable, held that the observation made by the Appellate Authority that a Revision could be filed against that order, is erroneous. 17. In the light of the above judgment, I am of the considered view that the above Revision under Article 227 of Constitution of India, challenging the order passed by the Rent Controller dated 26. 2008 made in M.P. No.114 of 2008 is not maintainable and the Revision petitioners could challenge the correctness of the order only in the Appeal from the final order in the main R.C.O.P., if it goes against them. 18. In the result, the Civil Revision Petition is dismissed as not maintainable. No costs. The connected Miscellaneous Petition is also dismissed. 19. Considering the fact that already the evidence on the side of the petitioners is completed, I direct the Rent Controller to dispose of the main R.C.O.P. within a month from the date of receipt of a copy of this order.