Madras High Court
N.Kalidas vs K.P.Subbaiyan on 30 September, 2013
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2013 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH C.R.P (PD) Nos.1593 and 1594 of 2010 and M.P.Nos.1 and 1 of 2010 N.Kalidas ... Petitioner in both the petitions. vs. K.P.Subbaiyan ... Respondent in both the petitions. Civil revision petitions have been filed under Article 227 of the Constitution of India against the orders and decree passed in I.A.Nos.84 and 83 of 2009 in R.C.O.P.No.21 of 2007 respectively dated 10.3.2010 in R.C.O.P.No.21 of 2007 on the file of the learned Rent Controller (Principal District Munsif), Erode. For petitioner : Mrs.P.Veena, in both the petitions. For respondent : Mr.K.S.Jeyaganeshan, in both the petitions. COMMON ORDER
These civil revision petitions have been filed as against the dismissal of the applications filed by the petitioner / landlord in I.A.Nos.83 and 84 of 2009 in R.C.O.P.No.21of 2007 to appoint an Advocate Commissioner to note down all the relevant features of the petition mentioned building by obtaining the services of Public Works Department's Civil Engineer to estimate the market value of the building and submit his report along with the plan and estimate of the Civil Engineer of Public Works Department and to re-open the petitioner's side for letting in further evidence.
2. The petitioner herein is the landlord and he had filed a petition in R.C.O.P.No.21 of 2007 under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent. In the said RCOP, the petitioner examined himself as P.W.1 and the evidence on his side was closed on 24.8.2009. Thereafter, the respondent examined himself as R.W.1 and the evidence on his side was also closed on 12.10.2009. Thereafter, the said RCOP was adjourned for arguments for several hearings in between 23.10.2009 and 8.12.2009. At this juncture, the petitioner has filed the present petitions for re-opening the case and to appoint an Advocate Commissioner stating that during the course of recording the evidence, he as P.W.1, had stated that the petition mentioned building consists of RCC roof, whereas the respondent / tenant as R.W.1, in his evidence, had stated that the buildings are Madras tiled buildings and the walls are earthen walls. Therefore, for proper fixation of fair rent of the building, it is absolutely necessary to estimate the present market value of the building by the Public Works Department's Civil Engineer. Thus, the petitioner had sought for an appointment of an Advocate Commissioner directing him to inspect and note down all the relevant physical features of the petition mentioned building by obtaining the service of Public Works Department's Civil Engineer.
3. But, the said applications were opposed by the respondent herein stating that the Court cannot entrust the work of fixing the market value to the Engineer of the Public Works Department. If an Advocate Commissioner is appointed at this stage, it would amount to fill up the lacuna. Therefore, the Advocate Commissioner need not be appointed for the purpose of noting down the relevant features of the petition mentioned building. Further, the petitioner has not mentioned as to which of the Civil Engineer of the Public Works Department has to be summoned by the Advocate Commissioner. Thus, he prayed for dismissal of both the petitions.
4. The Court below, by relying on the decisions reported in 2010-1-L.W. 511 Kalyani Ragunath v. K.Muthuramalingam, dismissed the applications filed by the petitioner by holding that the appointment of an Advocate Commissioner is an interlocutory and procedural one and an Advocate Commissioner can only perform a ministerial act and not a judicial act in regard to the fixation of fair rent. Further, the Court below has come to the conclusion that the evidence adduced on either side is sufficient to arrive at a solution and therefore, appointment of an Advocate Commissioner is not necessary. Aggrieved over the same, the present civil revision petitions have been filed.
5. Heard the submissions made on either side and perused the materials available on record.
6. From the materials available on record, I find that there is a dispute with regard to the nature of construction of the building between the parties. Except the evidence of the petitioner and respondent, no other substantial evidence is available before the Rent Controller to give a clarity about the nature of the building. The Court below has dismissed both the applications filed by the petitioner by placing reliance on the judgment reported in 2010-1-L.W.511. On a perusal of the said judgment, I find that in that case, already two Engineers were examined before the Rent Controller and two reports were available on record. Based on the said reports, the learned Rent Controller has determined fair rent at Rs.8,535/- per month. Aggrieved over the same, an appeal was filed before the learned appellate authority, in which the tenant has filed an application for appointment of an Advocate Commissioner to inspect the petition mentioned property along with a building engineer and the same was allowed by the learned appellate authority. Hence, the land lady has filed civil revision petition before this Court as against the order of the appellate authority. Only in that circumstances, this Court has held that the appointment of an Advocate Commissioner is an interlocutory and procedural one and an Advocate Commissioner can only perform a ministerial act and not a judicial act and thus, set aside the order of appointment of Advocate Commissioner by the appellate authority. It is pertinent to note that already two engineers' reports were very much available on record in that case. As far as the present case on hand is concerned, except the oral evidence of the petitioner and respondent, no other material is available on record before the Court to give a clarity about the nature of the petition mentioned building. Hence, I am of the opinion that if inspection of the property is made by the Advocate Commissioner with the help of a Civil Engineer to estimate the market value of the petition mentioned building and a report is filed after inspection, it will definitely be helpful to the learned Rent Controller in fixing the fair rent for the petition mentioned building.
7. In this regard, a reference could be placed to some of the judgments relied on by the learned counsel appearing for the petitioner, which are as follows:-
(i) In the case of A.Nagarajan v. A.Madhanakumar, reported in 1996-1.L.W. 278, while dealing with the appointment of Advocate Commissioner in Rent Control matter, it has been held that the evidence so collected through the Commissioner may be used to elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the court appointed for a particular purpose.
(ii) In the case of Rabiya Basheer Ali v. C.Devendra Prasad. reported in 2011 (5) CTC 612, it has been held that the inspection of the property by a qualified Civil Engineer is necessary for fixation of fair rent, to ascertain the particulars of the property.
8. Further, in the rent control proceedings, for fixation of fair rent, normally the intention of the landlord would be to give evidence to highlight the value addition made to the building in order to get higher rent, whereas, the intention of the tenant would be to give evidence to point out the shortcoming of the petition premises in order to avoid enhancement of the rent. Therefore, apart from the evidence of landlord and tenant, if the Advocate Commissioner inspects the property with the assistance of a qualified Civil Engineer and if he files a report, that will give a clarity with regard to the nature of the building and the same would be helpful for the Rent Controller in fixing the fair rent for the building.
9. In view of the discussions made above, I am of the opinion that no prejudice would be caused to the respondent by appointing an Advocate Commissioner to note down all the relevant features of the petition mentioned building with the assistance of a qualified Civil Engineer to estimate the market value of the building and to submit his report along with the plan and estimate of the qualified Civil Engineer and to re-open the petitioner's side for letting in further evidence.
10. In fine, the orders of the learned Rent Controller (Principal District Munsif), Erode dated 10.3.2010 made in I.A.Nos.84 and 83 of 2009 in R.C.O.P.No.21 of 2007 respectively are set aside and both the civil revision petitions are allowed. The learned Rent Controller is directed to appoint an Advocate Commissioner for the purpose of noting down all the relevant features of the petition mentioned building with the assistance of a qualified Civil Engineer to estimate the market value of the building and also to submit a report along with plan before the Rent Controller. Based on the said report, the learned Rent Controller is directed to proceed further and complete the proceedings as early as possible, preferably within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
30.09.2013 Index:Yes Internet: Yes sbi To The Principal District Munsif, Erode.
R.SUBBIAH, J sbi Pre-delivery common order in C.R.P (PD) Nos.1593 and 1594 of 2010 DATED: 30.9.2013