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2009 DIGILAW 5607 (MAD)

M. R. Ravichandran v. D. Sridhar

2009-12-15

M.VENUGOPAL

body2009
Judgment The revision petitioner/appellant has filed the above civil revision petition as against the order dated 9. 2009 in M.P.No.518 of 2008 in R.C.A.No.445 of 2005 passed by the learned VIII Judge, Court of Small Causes, Chennai. 2. The learned Appellate Authority viz.,VIII Judge, Court of Small Causes, Chennai, while passing orders in M.P.NO.515 of 2008 on 9. 2009 has inter alia opined that the order can be passed in this application only at the time of hearing of appeal and therefore has directed M.P.No.518 of 2008 to be called along with the main RCA.No.445 of 2005 on 19. 2009. 3. According to the learned counsel for the petitioner, the main order passed by the learned Appellate Authority in M.P.No.518 of 2008 dated 9. 2009. 3. According to the learned counsel for the petitioner, the main order passed by the learned Appellate Authority in M.P.No.518 of 2008 dated 9. 2009 is opposed to law, all probabilities of the case and weight of evidence and the learned Appellate Authority has heard both sides in M.P.No.518 of 2008 and reserved the said miscellaneous petition for orders but failed to pass orders in the said miscellaneous petition and as a matter of fact, the learned Appellate Authority should have seen that all the additional grounds have arisen after filing of the Rent Control Appeal and several additional grounds need to be proved by letting in evidence and further that the additional grounds now raised cannot be proved without evidence and it is impossible to argue the additional grounds along with the main grounds in Rent Control Appeal and indeed the additional ground Nos.5 to 9 are all subsequent events which have been arisen after filing of the appeal and Section 23 of the Tamil Buildings(Lease and Rent Control) Act 18/60 enables the Appellate Authority to decide the appeal not only on the grounds raised already, but also the other grounds to be raised at the subsequent point of time, there is no bar for the revision petitioner to raise the additional grounds when the Rent Control Appeal is pending before the learned Rent Control Appellate Authority and by permitting the revision petitioner to raise the additional grounds, no prejudice will be caused to the respondents, but it will serve the interest of justice only and in any event, the learned Appellate Authority ought to have passed the final order in M.P.No.518 of 2008 but these aspects of the matter have not been appreciated by the learned first Appellate Authority in a proper and real perspective and therefore prays for allowing the civil revision petition in the interest of justice. .4. The learned counsel for the petitioner relies on the decision reported in Sreenivasan Chettiar-v- R.M. Kalyani Ammal(1994 (6) L.W.109) wherein it is held as follows: ." . . . . . Therefore, when a party for good and sufficient reasons is able to convince the Appellate Authority that he could not raise a point earlier, it would certainly be open to the Appellate Authority to consider those points and objections as well, as long as the appeal remains undisposed of. . . . . Therefore, when a party for good and sufficient reasons is able to convince the Appellate Authority that he could not raise a point earlier, it would certainly be open to the Appellate Authority to consider those points and objections as well, as long as the appeal remains undisposed of. Such a power is really part of the power of the Authority to decide the correctness or otherwise of the order of the Rent Controller statutorily committed to it and not an independent inherent power. 5. Yet another decision reported by the learned counsel for the petitioner in The Member Secretary, National Council for Teachers Education, I.P.Stadium, New Delhi-Pauls Teacher Training Institute Pauls Nagar, Thuthipet, Pondicherry rep by its Director S.R.S.Paul(2005(1)L.W.196) wherein it is held that it is well settled that the rules of natural justice are not a strait jacket formula and ordinarily no fresh evidence is allowed in appeal. 6. The learned counsel for the petitioner submits that the learned Appellate Authority has referred to the decision reported in M.Ayyaswami -v-S.P.Ganesan(1994(2) L.W.376)wherein this Court has held that the Appellate Court has to consider the application under Order 41 Rule 27 of CPC along with the appeal and not separately and the Appellate Authority has wrongfully applied the principles laid down in the said decision to the facts of the case before us and it has not taken into account of the simple fact that the revision petitioner has urged some of additional grounds which have arisen after filing of the Rent Control Appeal. 7. Per contra, the learned counsel appearing for respondents 3 and 4 submits that the revision petitioner has filed an application in M.P.No.732 of 2008 in R.C.A.No.445 of 2005 for amending the counter affidavit of the revision petitioner filed R.C.O.P.No.788 of 2004 and also he has filed a memo for letting in oral evidence in M.P.No.732 of 2008 and the learned Appellate Authority has dismissed the memo for letting in oral evidence in M.P.No.732 of 2008 after hearing both parties and later the petitioner has filed C.R.P.No.669 of 2009 and the same has been dismissed by this Court confirming the order of the learned Appellate Authority dated 33. 2009 and after dismissal of the application M.P.No.732 of 2008, the petitioner has filed M.P.No.518 of 2008 to raise additional grounds in the Rent Control Appeal and the same has been ordered by the learned Appellate Authority on 9. 2009 to be heard along with hearing of the main appeal on 19. 2009 and it is not open to the revision petitioner to raise additional grounds in the Rent Control Appeal after the very same pleading projected by him has been dismissed earlier proceedings and the revision petitioner is endeavouring to project a new case and new cause of action by destroying the defence taken before the learned Rent Controller and by the principles of Res Judicata, the petitioner is prevented to raise the additional grounds before the Appellate Authority and he prays for dismissal of the revision petition. .8. The learned counsel for the respondents 3 and 4 cites the decision of this Court in A.G.Punyakoti-v-M.Meera Bai (1986(1)M.L.J.345 at 346)wherein this Court has held as follows: ."...... However, in view of the specific provisions in Section 23(3) of the Act, when the Authority has been given a discretion to admit additional evidence, before accepting those documents which are produced as additional evidence, the Appellate Authority must scrutinise those documents and decide how far they are relevant for the determination of the issue before him. If any additional evidence by way of documents is produced at the appellate stage, unless those documents are duly proved, they cannot automatically be accepted as evidence. If additional evidence is allowed to be produced by one party, the other party is also entitled to an opportunity to rebut the additional evidence and whenever additional evidence is given by one of the parties before the Appellate Authority, the Appellate Authority is duty bound to give an opportunity to the other party to produce such additional evidence as may be necessary to rebut the additional evidence. This could be done either before the Appellate Authority himself or before the Rent Controller who could be directed by the Appellate Authority to admit or record the necessary evidence. If the documents which are produced as additional evidence are not public documents, the Appellate Authority must insist on the necessary evidence to prove those documents unless the documents are admitted to by the other party. If the documents which are produced as additional evidence are not public documents, the Appellate Authority must insist on the necessary evidence to prove those documents unless the documents are admitted to by the other party. The present case is an illustration of how mechanically, even without scrutinising the documents the Appellate Authority, has allowed the documents to be marked as evidence". 9. He also relies on the Judgment of the Honble Supreme Court reported in Chander Kali Bai-v- Shri Jagdish Singh Thakur(1977(4) Supreme Court Cases, 402 at 403) wherein it is observed thus: "The plaintiff had clearly pleaded that the shop he was running was in rented premises and that business was his which he wanted to shift to the premises in the suit. The defendant did not deny the plaintiffs averment. Therefore, belated plea that the business was not the business of the plaintiff but that of the joint family of the plaintiff could not be raised for the first time in the Supreme Court. Moreover, neither any issue was struck nor was any evidence adduced by the parties on this question". 10. He also cites the decision reported in S.A.Henry-v-J.V.K.Rao(1971(1) MLJ 297 at 298)whereby and where under it is held thus: "When the defendant pursues a course of conduct in the early stages of the proceedings, that he was not pressing his objections, he cannot later on turn round and put forward that objection. This is an essential distinction between a "mere omission and failure" to raise the plea, and the defendant deliberately refraining from raising the objection fully knowing the defects in the plaint which would attract the doctrine of waiver. In the latter case, the defendant, by his own conduct, is not allowed to raise the objection, later on, even though the plaint may be defective or may not disclose the necessary particulars for the cause of action". 11. In the latter case, the defendant, by his own conduct, is not allowed to raise the objection, later on, even though the plaint may be defective or may not disclose the necessary particulars for the cause of action". 11. On a careful consideration of the respective contentions, this Court is of the considered view that only orders that affect the rights and liability of the parties in the sense that they have become final orders though based on interlocutory application, such as refusing to set aside the exparte decree order etc., are appealable and all interlocutory orders passed during the proceedings under Tamil Nadu Act 18/60 cannot be said to be orders coming within the purview of the Section 23(1)(b) of the Act and viewed in that perspective, the impugned order passed in M.P.No.518 of 2008 dated 9. 2009 to the effect that it has to be taken up along with the main appeal is only a step towards the final adjudication and for assisting the parties in prosecuting their proceedings in the pending litigation which is only procedural in character and in law, it is not a final order by any stretch of imagination and added further in law, it is open to the revision petitioner to set forth the error, defect or irregularity, if any, in the final order passed in M.P.No.518 of 2008 as a ground of objection in his appeal from the final orders passed in R.C.A.No.445 of 2005 and accordingly, there is no merit in the revision petition and the same is dismissed to prevent an aberration of justice. 12. In the result, this civil revision petition is dismissed leaving the parties to bear their own costs. Consequent upon, the order passed in M.P.No.518 of 2008 is affirmed by this Court for the reasons stated thereunder. Consequently, connected M.P.No.1 of 2009 is also dismissed. Liberty is given to the revision petitioner to set forth, the error, defect or irregularity, if any, in the final order passed in M.P.No.518 of 2008 as a ground of objection in his appeal in RCA.No.445 of 2005 from the final order passed in the said main proceedings in the manner known to law, if so advised.