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2010 DIGILAW 2186 (MAD)

S. Abdul Rahman v. Jugraji Hiraji

2010-05-13

M.VENUGOPAL

body2010
Judgment :- 1. The Civil Revision Petitioner/Appellant/Tenant has filed these two Revision Petitions as against the common order dated 29.7.2009 in R.C.A.Nos.170 & 171 of 2009 passed by the VIII Judge, Small Causes Court, Chennai in confirming the order dated 29.4.2009 in M.P.Nos.735 & 736 of 2009 passed by the XIV Judge, Small Causes Court, Chennai. 2. The Learned Rent Control Appellate Authority in its common order dated 29.07.l2009 in R.C.A.Nos.170 & 171 of 2009, has among other things observed that non payment of cost by the tenant on an application by him to set aside an exparte decree is only an efforts to prolong the proceedings under the arm of law which cannot be allowed and resultantly, confirmed the order of dismissal passed in M.P.No.736/09 and in M.P.No.735/09. 3. According to the Learned Counsel for the Revision Petitioner, the orders of the First Appellate Authority in R.C.A.Nos.170 & 171 of 2009 dated 29.07.2009 are against law, evidence and probabilities of the case and in fact, the First Appellate Authority failed to appreciate the fact that the Learned Rent Controller has committed an error in not entering the orders pronounced in the A Diary particularly the orders were entered only in the RCOP diary and not in the Execution Petition diary and the E.P. diary only reflected the adjudication as M.P. pending but nothing else was recorded in the E.P. diary and therefore, the Revision Petitioners Learned Counsel was mislead by the above entry. 4. Continuing further, it is the contention on the side of the Revision Petitioner that the First Appellate Authority should have allowed the R.C.A.Nos.170 & 171 of 2009 by extending the time granted by the Learned Rent Controller and the First Appellate Authority had not taken note of the fact that the Learned Rent Controller periodically adjourned the matter because of boycott from 04.02.2009 till 06.04.2009 and as such, the Revision Petitioners Counsel was prevented from entering the Court. 5. The pith and substance of the argument of the Learned Counsel for the Revision Petitioner is that the First Appellate Authority had not adverted to the contentions projected as mentioned supra as a result of which there had occasioned a miscarriage of justice and therefore, prays for allowing the Civil Revision Petitions in furtherance of substantial cause of justice. 6. The pith and substance of the argument of the Learned Counsel for the Revision Petitioner is that the First Appellate Authority had not adverted to the contentions projected as mentioned supra as a result of which there had occasioned a miscarriage of justice and therefore, prays for allowing the Civil Revision Petitions in furtherance of substantial cause of justice. 6. In response, the Learned Counsel for the Respondent/ Landlord submits that the First Appellate Authority has taken into consideration all the relevant aspects and that the non payment of cost by the Revision Petitioner on an application filed by him to set aside an exparte decree is only an endeavour on his part to protract the proceedings and rightly dismissed the R.C.A.Nos.170 & 171 of 2009 by confirming the orders of the Learned Rent Controller passed in M.P.Nos.735 & 736 of 2009 dated 29.04.2009 and therefore, this Court sitting in revision at this stage need not interfere with the same. 7. In the common affidavit in M.P.Nos.735 & 736 of 2009 in M.P.Nos.753 & 754 of 2008 in R.C.O.P.No.2080 of 2007, the Revision Petitioner/Tenant in para 3 has observed that he filed two M.P.Nos.753 & 754 of 2008 for condonation of delay and setting aside of the exparte decree passed in the aforesaid Rent Control Original Petition and that cost of Rs.1,500/- has been ordered to be paid to the Respondent/ Landlord/Petitioner as a condition to condone the delay and when the cost has been tendered to the Respondent/ Petitioners Counsel he refused to receive the same and later the cost has been sent through money order and this has also refused by the Counsel for the Respondent/ Petitioner and in the meanwhile, the Respondent/Petitioner filed a memo mentioning that the Petitioner/Respondent has not paid the cost and again on 30.03.2009 his Counsel filed a memo along with the refused M.O. Slip. The Learned Rent Controller was pleased to pass an order dated 31.03.2009 to deposit the cost amount before him on or before 06.04.2009 8. The Learned Rent Controller was pleased to pass an order dated 31.03.2009 to deposit the cost amount before him on or before 06.04.2009 8. That apart, it is the contention on the side of the Revision Petitioner that his Counsel on that day took ill on 30.03.2009 night with high temperature later diagonosed as chicken gunia fever and has not been in a position to walk and has been bedridden and therefore, his Counsel was not in a position to attend the Court and note down the order dated 31.03.2009 and it appears that on 06.04.2009 as the cost was not deposited, this Court has been pleased to dismiss the condone delay application and order delivery before 17.04.2009 and only on 08.04.2009 after getting better his Advocate asked his clerk to verify and has come to know of the aforesaid order. The stand of the Revision Petitioner is that the reason for non payment of cost is neither wilful nor wanton but due to the aforesaid bonafide reason and therefore, the Revision Petitioner has prayed for a modification of the order and to extend the time granted in the order dated 31.3.2009 passed in the above Miscellaneous Petitions. 9. In effect, the Revision Petitioner in M.P.No.736 of 2009 has made a request of the Learned Rent Controller to extend the time fixed in the order dated 31.03.2009 in M.P.Nos.753 & 754 of 2008 in R.C.O.P.No.2080 of 2007 on the file of Learned XIV Judge, Court of Small Causes, Chennai for depositing into Court the cost as directed in M.P.No.753 of 2008. 10. In M.P.No.735 of 2009 the Revision Petitioner has prayed before the Learned Rent Controller to stay of all further proceedings in E.P.No.410 of 2008 in R.C.O.P.No.2080 of 2007. 11. In M.P.No.736 of 2009 in R.C.O.P.No.2080 of 2007 on 29.04.2009 the Learned Rent Controller, in paragraph 10, has observed the following: " 10. It is the contention of the petitioner that reason for not depositing such costs is that his counsel exactly fell ill on 30.3.09 night and about the orders he came to know only on 8.4.09 through his Advocates clerk. This reason stated by the petitioner is not satisfactory as in the previous occasion the petitioner himself had appeared before this court when his counsel was absent during Advocates boycott. This reason stated by the petitioner is not satisfactory as in the previous occasion the petitioner himself had appeared before this court when his counsel was absent during Advocates boycott. This being so, when the counsel had fell ill and when orders is to be passed on 31.3.09, the petitioner could have very well noted about the orders from the Diary. Even otherwise, when there is a clerk for the counsel to assist nothing could have restricted him to note such order during 31.3.09 till 6.4.09, before the said petitions were dismissed. This Court is not inclined to show any further lenience for deposit of such costs. Only considering the situation that Advocates were abstaining from courts the time to pay such cost was extended every time. But now, when a specific direction is given to deposit the said costs into Court, the reason that such order was not noted for some situation or other, would only show that the petitioner is not willing to comply the order and his only intention is to drag the proceedings and delay the execution. Hence, from the above discussion this Court is not inclined to extend further time and consequently, dismissed the said Miscellaneous Petition. 12. Inasmuch as M.P.No.736 of 2009 has been dismissed, the Learned Rent Controller also dismissed M.P.No.735 of 2009. 13. The Learned Counsel for the Revision Petitioner cites the decision of this Court in Rajeswari and another V. Sri Buvaneswari Cycle Mart 2000 (I) CTC at page 156 wherein it is observed that Though Code of Civil Procedure is not applicable in all matters connected with these proceedings, in absence of specific exclusion of the principles of Code of Civil Procedure, and in order that Act should not in such peculiar circumstances become illusory, application for substitution of the new Managing Partner must be allowed by importing general principles of law and if the Rent Controller can bring on record legal representatives of a party, he has jurisdiction and right to order other reliefs in the interest of justice. 14. 14. He also relies on the decision of this Court in Sagayam Engineering V. M/s.Srivatsa Tube Corporation AIR 1989 Madras 237 wherein it is laid down as follows: "Discretion of condonation of delay is with the Court and Courts should be liberal in the matter of condoning delay in the interest of justice and the party should not be penalised for the fault of his Advocate and should be given opportunity to defend the suit. Where the party came to know of ex parte decree only when he received the notice of its execution though he had duly handed over written statement to his counsel and was expecting communication from him considering bona fide that the suit was yet pending, the delay even though inordinate, in making the application to set aside ex parte decree ought to be condoned. However, the applicant was saddled with costs of Rs.1000/-." 15. The Learned Counsel for the Revision Petitioner also draws the attention of this Court to the decision of the Honble Supreme Court in Deepak Parshad V. Automobile Products of India and Others (2000) II LLJ 84 SC wherein it is inter alia observed that ... If in view of these facts and circumstances the appellate authority had deemed it fit to condone the delay, the High Court ought not to have interfered with that discretionary order and resultantly, the appeals were allowed by setting aside the common judgment and order passed by the High Court in W.P.Nos.10795 of 1987 and 5361 of 1988 and Writ Appeal No.993 of 1988 and remitted the Writ Petition No.5361 of 1988 to the High Court for deciding it on merits etc. 16. On the side of the Respondent/Landlord, the Learned Counsel cites the decision of Honble Supreme Court in Maragathammal V. Kamalammal 2006 (5) CTC 698 wherein it is held that The learned Rent Controller found that conditional order had not been complied with and ordered eviction and the Tenant had been deliberately avoiding depositing arrears of rent and order of the Rent Controller is set aside. Significantly, in para 15 the Honble Supreme Court has observed that it is admitted that the Respondent/ Tenant has been deliberately avoiding the payment of rent as and when it fell due etc. 17. Significantly, in para 15 the Honble Supreme Court has observed that it is admitted that the Respondent/ Tenant has been deliberately avoiding the payment of rent as and when it fell due etc. 17. In M.P.No.754 of 2008 on 31.03.2009 the Learned XIV Judge, Court of Small Causes, Chennai has passed an order directing the Revision Petitioner/Tenant to deposit the cost of Rs.1,500/- before this Court on or before 03.04.2009, failing which further orders will be passed and the matter has been directed to be called on 06.04.2009. 18. In Kailash Nath Thivari V. Union of India 2001 AIHC 2390 it is held that An Advocate actually represents litigant and in fact by such exparte decision, the litigant is deprived of the opportunity to contest his case through his counsel which is his legal right. 19. In Jugrij Jain V. T.R.Ambikapathi Pillai 1959 (2) MLJ 240 at page 244 this Court has observed that Costs are the supreme Panacea for all procedural ills. 20. In N.R.Nainor Mohamed V. Khaja Mohideen AIR 1991 Madras at page 29 it is held as follows: "Where the application was made for the extension of time to deposit cost as directed by Court on the ground that the applicant was out of town to attend his ailing son, however, the affidavit did not disclose as to when he came to know of the said order and the affidavit was vague as to the actual period of his absence in the town and the actual ailment of his son, no medical certificate was produced showing said illness of his son and the delay in depositing cost was more than 7 months on the date when the application was filed, the application was liable to be six weeks time was prayed for, for a small sum of Rs.395.50." 21. In Shri Jogdhayan V. Babu Ram and others (1983) 1 SCC 26 at page 30 in para 13 has observed as follows: "13. In Shri Jogdhayan V. Babu Ram and others (1983) 1 SCC 26 at page 30 in para 13 has observed as follows: "13. Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and held that the short deposit was due to a bona fide mistake, while the executing appellate court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the courts. The finding of the first executing appellate court that the non-deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs.17,936 from time to time as directed by the courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was preeminently a case in which the first execution appellate court ought to have exercised its discretionary powers under Section 148, Civil Procedure Code and accepted the delayed deposit of 25 paise, as was done by the original executing court." 22. It is to be noted that the provisions of Civil Procedure Code do not as such apply to the proceedings under the Rent Control Act as per decision in Kanaga Rathnammal V. Samarao 1955 2 MLJ 433 at page 434. Generally, the applicability of the provision of the Civil Procedure Code is excluded and where it is either made applicable or even intended to apply the provision is made to that effect. The Rent Control Act is a self-contained Code and the Learned Rent Controller and the Appellate Authority are not Courts and the proceedings are not governed by the Code of Civil Procedure as per decision in Sagunthala and others V. A.Devi 1999 (1) MLJ at page 101. 23. The Rent Control Act is a self-contained Code and the Learned Rent Controller and the Appellate Authority are not Courts and the proceedings are not governed by the Code of Civil Procedure as per decision in Sagunthala and others V. A.Devi 1999 (1) MLJ at page 101. 23. In Smt.Archana Kumar (Mee Archana Mukherjee) and another V. Purnondu Prakash Mukherjee and another 1996 AIHC at page 660 it is observed that evidence of counsel as to non appearance on fixed date was found unreliable and moreover, the case found to be pending for a long time and number of adjournments granted at the instance of defendants and therefore, the exparte decree order was not liable to be set aside. 24. In M/s.Lakhmi Chand and Sons V. M/s.Parmanand Khemka and Sons and others 1996 AIHC at page 4094 it is, among other things, observed that the provision of Section 35 B of Civil Procedure Code do not say in so many words that it is mandatory to dismiss the suit. But it also does not provide the plaintiff or defendant should allow to prosecute subsequently after payment of costs etc. and further it is held that the High Court cannot extend time to pay costs under Section 148 in the absence of any ground for extending such time. 25. It is to be noted that the power under Section 25 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960 is of a wider one than that of the ingredients of Section 115 of Civil Procedure Code. It is true that as per Section 25 of the Act the Revisional Court is to satisfy as to the legality, propriety or correctness of any order/decision passed by the Learned Rent Controller or the Appellate Authority as the case may be. Section 25 of the Act is not narrow one as the revisional power of the High Court as per Section 115 of Civil Procedure Code, but it is not wide enough to make the High Court a second Court of the First Appellate Authority. In fact, the High Court, in Revision under Section 25 of the Act, is not an Appellate Court but it has certainly as a Supervisory revisional power enjoined on it. No wonder, the revisional jurisdiction is supervisory and paternal in nature. 26. In fact, the High Court, in Revision under Section 25 of the Act, is not an Appellate Court but it has certainly as a Supervisory revisional power enjoined on it. No wonder, the revisional jurisdiction is supervisory and paternal in nature. 26. It is not out of place for this Court to point out that as per Section 25 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960, this Court sitting in Revision has no powers to condone the delay in payment and the discretion may be exercised by the Rent Controller and the Appellate Authority specified under the Act as per decision in Karra Kondamma V. Karra Nagamma 1994 1 MLJ at page 516. 27. As far as the present case is concerned, though the Revision Petitioner comes forward with a reason for not depositing the costs as ordered by the Learned Rent Controller is that his Advocate has fallen ill on 13.03.2009 night and he has come to know only on 08.4.2009 about the orders through his counsels clerk is not a Good or Sufficient cause because of the simple fact that it is for the Revision Petitioner/Tenant to keep drag of his case or progress of his case and from the date of order 31.3.2009 till 6.4.2009 the gist of the order might have been noted by the Registered Clerk of the Learned Counsel for the Petitioner and the Learned Rent Controller has not exercised his discretion to take a liberal view in regard to the deposit of costs. 28. 28. It cannot be forgotten that since the Advocates were not attending the Courts the time for payment of cost has been extended every now and then and when a direction has been issued to pay the said cost before the Learned Rent Controller to come out with a reason that the same has not been noted that some protext or other will clearly exhibit that the Revision Petitioner is not diligent in prosecuting his case and in short, the reason ascribed by him in the affidavit will not enure to his benefit and on consideration of the facts and circumstances of the present case, this Court is not inclined to exercise its discretionary supervisory power in providing another opportunity to the Revision Petitioner in the absence of cogent, genuine and acceptable reasons on the side of the Revision Petitioner under Section 25 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960 and consequently, dismisses the Civil Revision Petitions. 29. In the result, these Civil Revision Petitions are dismissed, leaving the parties to bear their own costs. The common order dated 29.07.2009 made in R.C.A.Nos.170 & 171 of 2009 passed by the VIII Judge, Small Causes Court, Chennai are hereby confirmed. Consequently, connected miscellaneous petition is closed.