Madras High Court
S.M.Chandrasekaran vs S.S.Jayamani on 23 April, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/04/2007 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRP (NPD) (MD) No.182 of 2007 and M.P.(MD) No.1 of 2007 S.M.Chandrasekaran .. Petitioner Vs 1.S.S.Jayamani 2.S.S.Sridharan 3.S.S.Kannan 4.M.M.Vanisri .. Respondents Prayer This Civil Revision Petition has been filed under Section 115 of Civil Procedure Code to set aside the order and decreetal order dated 15.12.2006 in I.A.No.192 of 2006 in R.C.O.P. No.120 of 2004 passed by the Principal Rent Controller, (Principal District Munsif Court), Madurai Town. !For Petitioner ... Mr.R.Vijayakumar ^For Respondent ... Mrs.Hema Sampath Senior Counsel for Mr.R.Subramanian :ORDER
This Civil Revision Petition has been filed by the petitioner challenging the order dated 15.12.2006 in I.A.No.192 of 2006 in R.C.O.P. No.120 of 2004 passed by the Principal Rent Controller, (Principal District Munsif Court), Madurai Town.
2.The petitioner is the tenant and the respondents are landlords. Originally one Mr.S.R.Sutharsan, who is the husband of the first respondent and father of the respondents 2 to 4 filed R.C.O.P.No.120 of 2004 before the Principal Rent Controller, (Principal District Munsif), Madurai Town. The petitioner remained exparte in the R.C.O.P., which resulted in exparte order passed on 12.04.2006. Thereafter, he filed an interlocutory application before the Rent Controller seeking to set aside the exparte order. Further in filing the said interlocutory application there was delay of 73 days. In order to have the delay condoned, he has filed I.A.No.192 of 2006 before the Rent Controller. In the meantime, the original landlord Mr.S.R.Sutharsan died and in his place respondents 1 to 4 were impleaded as the petitioners 2 to 5 in the R.C.O.P. In I.A.No.192 of 2006, the respondents have filed a detailed counter. The learned Rent Controller after considering the rival contentions, dismissed the said interlocutory application, thereby refusing to condone the delay by order dated 15.12.2006. The said order is under challenge in this revision before this Court.
3.Heard Mr.R.Vijayakumar, counsel for the petitioner and the Senior Counsel Mrs.Hema Sampath, for the respondents.
4.The learned senior counsel appearing for the respondents has raised an objection that this revision under Section 115 of C.P.C. is not at all maintainable. Facing the said question of maintainability under Section 115 of C.P.C., the learned counsel for the petitioner would concede that this revision under section 115 C.P.C. is maintainable, however, relying on the judgment of this Court reported in 2006(2) L.W. 476 (Annasami Naidu v. Karunakaran) made a prayer to convert the present revision as the one under Article 227 of the Constitution of India. In the said judgment, this Court has taken the view that such conversion can be made by this Court. The learned senior counsel appearing for the respondents conceded that the present Civil Revision Petition can be converted into one under Article 227 of the Constitution of India. In view of the said position, this C.R.P. is converted as the one under Article 227 of the Constitution of India.
5.The principal contention of the learned senior counsel for the respondents is that the order under challenge is an appealable order, falling within the ambit of Section 23 of the Tamil Buildings Lease and Rent Control Act and therefore when there is an effective and alternative remedy of appeal available to the petitioner, this revision is not maintainable under Article 227 of the Constitution of India.
6.The learned counsel for the petitioner would counter the said stand, contending that the order under challenge is not the one passed under any one of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, so as to fall within the ambit of Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, and so the revision is maintainable under Article 227 of the Constitution of India as there is no alternative remedy avialable.
7.Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act is as follows:
Section 23(1)(a): The Government may, by general or special order notified in the Tamil Nadu Government Gazette, confer on such officers and authorities as they think fit, the powers of Appellate Authorities for the purpose of this Act, in such areas and in such classes of cases as may be specified in the order. Section 23(1)(b): Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the Appellate Authority having jurisdiction.
The learned counsel Mr.R.Vijayakumar would contend that a conjoint reading of sub Section 23(1)(a) and (b) would make it manifestly clear that no order passed by Rent Controller is appealable, except those orders passed under any of the provisions of Rent Control Act. He would further contend that the order under challenge is not the one passed under any of the provisions of the Act and the same has been passed only under Section 5 of the Limitation Act. So, according to the learned counsel, the said order would not fall within the ambit of Section 23 of the Act to construe the same as an appealable order. In support of his said contention, he would rely on two judgments reported in 2002 (2) C.T.C. 385 (Vummidi Bangaru Chetty (P) Ltd. v. M/s. Spencer & Co. Ltd. and 1993(2) M.L.J. 290 (Raju v. Mohamadabi). In Vummidi Bangaru Chetty (P) Ltd. v. M/s. Spencer & Co. Ltd. case in paragraph 16, His Lordship Justice F.M.Ibrahim Kalifulla has held as follows:
"16. In my considered opinion, this Revision is maintainable for the following reasons:
It is true that the judgements of His Lordship Mr.Justice Sathiadev as well as His Lordship Mr.Justice V.Balasubrahmanyan reported in Purushotham Chettiar v. Puskraj Jain & others, 1980 TLNJ 155 and S.S.S.A. Vivekanandam v. S.K. Kamala Bai, 1982 (1) MLJ 212 support the stand of the respondent. However, the reasoning of the Division Bench judgment reported in Fathima Automobiles v. P.K.P. Nair and another, AIR 1985 Mad 318, though rendered with particular reference to an application dealt with under Order 21, Rules 97 and 101, C.P.C. Still whatever said in the said judgement, would mutatis mutandis apply in all fours even with reference to an application filed under Section 47, C.P.C. While in the latter it was a case relating to an obstructor, in the former, it was on the invocation of the omnibus provision contained in Section 47, C.P.C. However, in either case, the parallel that could be drawn is that both the proceedings came to be initiated in pending execution proceedings by invoking the relevant provisions contained in Section 47, C.P.C. However, in either case, the parallel that could be drawn is that both the proceedings came to be initiated in pending execution proceedings by invoking the relevant provisions contained in the Civil Procedure Code. When the Division Bench in the judgment reported in Fathima Automobiles v. P.K.P.Nair and another, AIR 1985 Mad. 318 having declared the law to the effect that the order passed by the Rent Controller in an application filed Order 21, Rule 97, CPC cannot be taken to be an order strictly passed under Section 18(1) of the Act and that, that order should be taken to be an independent order passed under the Civil Procedure Code and not under the Rent Control Act, then, even though it was passed by a Rent Controller, such an order could be challenged either by way of an appeal or revision. On a parity of reasoning, an application filed under section 47, C.P.C. would also meet with the same fate and thereby, that could also be challenged by way of a revision. When the position has been so succinctly stated by the Division Bench without giving any scope for ambiguity, it will have to be held that the said dictum of the Division Bench would virtually render the judgments of the learned single Judges reported in Purushotham Chettiar v. Puskraj Jain & others, 1980 TLNJ 155 and S.S.S.A. Vivekandam v. S.V.Kamala Bai, 1982(1) MLJ 212 ineffective and thereby impliedly overruled the judgments of the learned single Judges. In other words, in view of the binding Division Bench judgment of this Court reported in Fathima Automobiles v. P.K.P.Nair and another, AIR 1985 Mad.318 the earlier two judgments of the learned single Judges referred to above cannot be followed. Moreover, the Division Bench having held that an order even though passed in a proceedings under Section 18 of the Act before the authority constituted under the Rent Control Act, by virtue of the application of the provisions of the Civil Procedure Code, the ultimate orders passed in those applications based on the provisions of the Civil Procedure Code would be totally independent of the provisions contained under Section 18(1) of the Act and thereby, the exclusion clause under Section 18(2) would not be applicable. It cannot be held that the said declaration of law could be applied only to applications filed under Order 21 Rules 97 and 101 C.P.C. and to applications filed under Section 47 C.P.C. Therefore, even though the judgments of the learned single Judges reported in Purushotham Chettiar v. Puskraj Jai & Others, 1980 TLNJ 155 and S.S.S.A. Vivekanandam v. S.K.Kamala Bai, 1982(1) MLJ 212 were relating to applications filed under Section 47 C.P.C., the Division Bench judgment will have to be preferred as against the judgments of the learned single Judges and consequently, I hold that the Civil Revision Petition is maintainable."
The learned counsel would state that in the reported case, this Court has struck a distinction between an order passed by a Rent Controller during execution proceedings and any other order passed by him and has held that the former is revisable but not the latter as the latter category of orders are appealable under Section 23 of the Act. This court has held that though both categories of orders are passed by the Rent Controller, the former is passed in exercise of the power conferred under the code of Civil Procedure, whereas the latter categories of orders are passed in exercise of power under the Act. The learned counsel would therefore contend that the order under challenge has been passed independently under the limitation Act and not under the Rent Control Act and even though it was passed by Rent Controller, this order would fall within the first category and so the same could not be challenged by way of appeal under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
8.The learned counsel Mr.Vijayakumar would rely on paragraph 5 of the judgment in Raju v. Mohamadabi reported in 1993(2) M.L.J. 290, wherein this Court has held as follows:
"Therefore, the first question that has to be determined is as to whether the Rent Controller exercising the power under the Act, functions as a court or not. The powers conferred upon the Rent Controller as contained in Secs.5, 6, 14, 15 and 17 would go to show that the Rent Controller exercise the powers of a court. He adjudicates the rights of the landlord and the tenant in respect of the premises governed by the Act. The proceedings before him are of civil nature involving civil rights. The decision of the Rent Controller is appealable to the appellate authority, which is a judicial authority. The order passed by the Rent Controller is executable, as if it were a decree. Therefore, it is clear that the Rent Controller cannot be considered to be a persona designata."
In the same judgment at a different place in paragraph 5, it is observed as follows:
"It has been further held that an application under Sec.5 of the Limitation Act to condone delay in filing an application to set aside an ex parte order of eviction of the Rent Controller is maintainable."
"Thus the power exercisable by the Rent Controller under the Act and the rights adjudicated by him of the parties, undoubtedly, lend to a conclusion that the Rent Controller is a Court."
Relying on the above observations of the Court, the learned counsel would contend, though the rent controller while exercising his power under the Act, is also a Civil Court and so wherever there is no specific provision in the Act for doing a particular act, he has to exercise his powers of a Civil Court under the C.P.C. or any other enactment. If the order is so passed by the Rent Controller in exercise of his power of a Civil Court either under Civil Procedure Code or under any other enactment, the same would not fall within the ambit of Section 23 of the Act. In the given case, the Rent Controller as a civil Court has refused to exercise his power under Section 5 of the Limitation Act, and therefore the said order is revisable by this Court under Article 227 of the Constitution of India and the same is not appealable under Section 23 of the Act.
9.I considered the above contentions carefully. In so far as Vummidi Bangaru Chetty (P) Ltd. v. M/s.Spencer & Co. Ltd., case, it is mainly based on the judgement of the Division Bench of this Court in Fathima Automobiles v. P.K.P.Nair and another reported in A.I.R. 1985 Mad. 318. In the said judgment,, the Division Bench has held as follows:
"The order passed by the Rent Controller in an application under O. 21 R.97 cannot, in our view, be taken to be an order passed under S.18(1) of the Act. That should be taken to be an independent order passed under the Civil Procedure Code and not under the Rent Control Act. Though the order is actually passed by the Rent Controller in an application under O.21 R.97, C.P.C. that should be taken to have been passed by him in exercise of the powers of a civil court as provided in S.18(1) of the Act. We are not therefore in a position to construe the order passed by the Rent Controller in an application under O.21 R.97, C.P.C. as an order passed passed by the Rent Controller under S.18(1) so that the bar under S.18(2) could be invoked. Section 18(2) bars an appeal or revision only in respect of an order passed in execution under sub-s.(1). But that section will not be a bar for an appeal or revision being filed against an order passed in exercise of the power under O.21 R.97 C.P.C. If there is no bar for an appeal or revision under S.18(2) then the next question that will arise is as to whether an appeal is available to the appellant in this case. As already stated, S.23 of the Act providing for an appeal is comprehensive in nature and is not restricted to orders passed by the Rent Controller under Ss.10, 14, 15, 16 and 17. As already stated S.23(1)(b) talks of any person aggrieved filing appeal, as also any order passed. Since S.23(1)(b) does not refer to an order passed by the Rent Controller under S.18(1) we have to hold that any order passed by the Rent Controller against which a person is aggrieved can be taken in appeal by that aggrieved person under S.23(1)(b) of the Act. Thus, in our view, S.23(1)(b) enables any person aggrieved by an order passed by the Rent Controller to file appeal and it is not possible to restrict application of S.23(1)(b) as applying only to parties to the eviction proceedings and to orders passed by the Rent Controller in exercise of the order of eviction under S.18(1) of the Act."
A conjoint reading of Vummidi Bangaru Chetty (P) Ltd. v. M/s. Spencer & Co. Ltd. case and Fathima Automobiles v. P.K.P. Nair and another case would make it clear that unless an appeal or revision is barred under the Act, an aggrieved person is at liberty to go either on appeal or on revision as the case may be. In these two cases, it has been held that in respect of the orders of the Rent Controller, passed during execution proceedings, there is a bar under Section 18(2) of the Act to file either an appeal or a revision under the Act. That is why the Division Bench as well as His Lordship Justice F.M. Ibrahim Kalifulla, J have held that in respect of orders passed during the execution proceedings, the power of the High Court under Article 227 of the Constitution of India can be invoked by way of revision.
10.It is needless to say that the bar contained under Section 18(2) is only in respect of orders passed during the execution proceedings, and there is no bar in the Act with reference to the other orders passed by the Rent Controller. Therefore it is manifestly clear that an order either condoning or refusing to condone the delay under Section 5 of the Limitation Act is appealable under Section 23 of the Act. The said view of mine flows from the decision of the Division Bench of this Court in Fathima Automobiles v. P.K.P. Nair case, where the Division Bench has held in paragraph 7 as follows:
"S.23 of the Act provides for an appeal is comprehensive in nature and is not restricted to orders passed by the Rent Controller under Ss.10, 14, 15, 16 and
17. As already stated S.23(1)(b) talks of any person aggrieved filing appeal, as also any order passed."
In the case on hand, here is an order passed by the Rent Controller other than during the execution proceedings which would be embraced by the phrase "Any Order passed" as stated in the above judgment.
11.The judgment reported in 1993(2) M.L.J. 290 also supports the said view. In the said case, the Chief Justice K.A.Swami held that the Rent Controller is a civil Court and therefore Section 5 of the Limitation Act is attracted to him. But the said judgment is not on the point, whether an order passed under Section 5 of the Act is appealable or revisable. At this juncture, I have to clarify that in Vummidi Bangaru Chetty (P) Ltd. v. M/s. Spencer & Co. Ltd. case, though it has been stated that an order passed by a Rent Controller in exercise of power under Civil Procedure Code can be challenged either by way of appeal or revision, it should not be construed that it refers to an appeal or revision as provided in the Act. The learned Judge has referred only to appeal or revision under C.P.C. In so far as the Act is concerned Section 25 of the Act deals with the power of revision of the High Court. The said power is confined only to examine the records of the appellate authority and not directly to examine the records of the Rent Controller. Therefore, there can be no difficulty in coming to an irresistible conclusion as held by the Division Bench in Fathima Automobiles v. P.K.P. Nair case that an order passed under Section 5 of the Limitation Act is appealable under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
12.The learned senior counsel has heavily relied on the judgment of His Lordship Justice S.Ratnavel Pandian (as he then was) in Chinnaraju Naidu v. Bavani Bai case reported in 1981 II MLJ 354. In the said judgment, this Court has held that orders passed by Rent Controller under Tamil Nadu Buildings (Lease and Rent Control) Act are of two categories viz. (1) orders which are final orders affecting the rights and liabilities of any party and (2) orders which are not final orders affecting the rights and liabilities of any party, or to bring about an expeditious final disposal of the case. The relevant portion of the said judgment is as follows:
"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 an ex parte order etc., are appealable. However, it is open to the parties to set forth the error, defect or irregularity, if any in such an order as a ground of objection in his appeal from the final order in the main proceedings."
In the said judgment, the judgment of the Hon'ble Supreme Court reported in A.I.R. 1967 S.C. 799 (Central Bank of India v. Gokal chand) has been relied on which relates to Delhi Rent Control Act of 1958, wherein like Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act a provision is made under Section 38(1) of the said Act which reads as follows:
"An appeal shall lie from every order of the Controller made under this Act to Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the official gazette."
Considering the said provision the Hon'ble Supreme Court in paragraph 3 has held as follows:
"The object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S.38(1), the words 'every order of the Controller made under this Act', though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Ss.36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, 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. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under the Act and is subject to appeal under S.38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal."
From the above observations of the Hon'ble Supreme Court and Hon'ble Justice S.Ratnavel Pandian, J (as he then was), it leaves no doubt that in the case on hand, it is not an interlocutory order to regulate the proceedings to reach a final adjudication. By refusing to condone the delay, the proceeding between the parties has come to an end seriously affecting the rights of the petitioner. So, though it is an order passed in an interlocutory application it should be construed as a final order and the same is appealable under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
13.The learned counsel Mr.R.Vijayakumar would rely on Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 to state that the Rent Controller has been given power only to set aside the exparte order and there is no provision either in the Act or in the rules to condone the delay and therefore the rent controller has to invoke the power under Section 5 of the Limitation Act. Heavily relying on this provision, the learned counsel would submit that an order passed, either setting aside or refusing to set aside an exparte order passed under this Act is certainly appealable. But, an order passed in exercise of the power under the limitation Act, either condoning or refusing to condone the delay, would therefore not fall under Section 23 of the Act. Though this argument appears to be attractive, the same requires to be rejected for the simple reason that as held by the Division Bench in Fathima Automobiles v. P.K.P. Nair case, Section 23(b) of the Act is wide enough to take within its ambit any order of the Rent Controller irrespective of whether the same is passed in exercise of the power conferred under the Act or under any other law unless it is barred under the Act. It is to be remembered that His Lordship Justice F.M.Ibrahim Kalifulla, J as well as the Division Bench, were of the opinion that in view of the bar contained in Section 18(2) of the Act, orders passed during the execution proceedings do not fall within the ambit of section 23(b) of the Act. Therefore, looking at from various angles, the only irresistible conclusion which can be arrived in respect of the order under challenge in this revision is that being a final order though passed in an interlocutory application, and though it has not been passed under any of the provisions of the Act and passed only under Section 5 of the Limitation Act, since appeal is not barred either under Section 18(2) or under any other provision of the Act, this order is appealable under Section 23(b) of the Act.
14.In that view of the above conclusion, this revision before this Court under Article 227 of the Constitution of India is not maintainable as there is an alternative remedy of appeal. I am also conscious of the fact that simply because there is an appeal remedy available to the party, this Court is not precluded from exercising its power under Article 227 of the Constitution of India. But it is a settled Law that the power of this Court under Article 227 of the Constitution of India should be exercised sparingly, that too in exceptional cases. The order under challenge does not fall under any of the categories enumerated by the Hon'ble Supreme Court in various decisions so as to exercise the supervisory power under Article 227 of the Constitution of India.
15.However, while holding that this Court has no power to entertain the revision, under Article 227 of the Constitution of India, the order under challenge is appealable, in the interest of justice this Court is inclined to give an opportunity to the petitioner to prefer a regular appeal before the appellate authority, if he so desires. If any such appeal is preferred, the period spent on the present legal fight should be excluded while computing the period of limitation for the purpose of such appeal. It is also made clear that in this order, no opinion is expressed regarding the merits of the reasons stated by the petitioner for the delay.
16.In the result, the civil revision petition is dismissed as not maintainable. Consequently, the connected M.P.(MD) No.1 of 2007 is also dismissed. No costs.
17.The petitioner is at liberty to prefer an appeal against the impugned order before the appellant authority, if he so desires. If any such appeal is preferred, the appeallate authority is directed to exclude the time spent in this revision before this Court, while calculating the period of limitation for the purpose of appeal. The registry is also directed to return the original documents to the petitioner to enable him to prefer appeal.
To
1. The Principal Rent Controller, (Principal District Munsif), Madurai Town.