Madras High Court
K.S. Mahaboob Basha And Ors. vs Kaneez Fathima on 3 July, 1990
Equivalent citations: (1991)372MLJ1
ORDER Srinivasan, J.
1. The question that arises in the revision petition is whether the appeal filed by the petitioners herein before the appellate authority against the order of the Rent Controller refusing to appoint a Commissioner to inspect the building and note the physical condition was maintainable.
2. Learned Counsel for the revision petitioners submits that according to the judgment of Sathiadev, J., in N.P. Appulu v. A. Fatima Loera 96 L.W. 569, the order was an appealable one. There is a judgment of Natarajan, J. reported in V. Govindarajulu v. T. Govindarajulu (1989) 1 L.W. 540, taking a contrary view, learned Counsel for the petitioners submits that in view of the conflict the matter must be referred to a Division Bench of this Court for resolving the conflict. In normal circumstances when there is a conflict of views between two single Judges of this Court, the matter should be referred to a Division Bench, But I find that the judgment of Natarajan, J. is based upon a judgment of the Supreme Court which is directly on the point. Though Sathiadev, J. has referred to the judgment of the Supreme Court and laid down the test correctly, he has taken the view that an order refusing to appoint a Commissioner will affect the rights of parties in a case. That view is clearly wrong in view of the pronouncement of the Supreme Court in Central Bank of India Ltd. v. Gokul Chand .
3. The order which was considered by the Supreme Court was one refusing to appoint a Commissioner for inspection and preparation of plan of premises involved in the proceedings. The Supreme Court held that the order was only a procedural one not affecting any right or liability of the party concerned and that the issue of a commission was only a step for assisting the parties in the prosecution of their case. It was also pointed out that it was open to the party to canvass the error, defect or irregularity if any in the order in an appeal from the final order passed in the proceedings for eviction. On the basis of such observation, the Supreme Court held that the appeal against the order refusing to appoint a Commissioner was not sustainable under the provisions of Section 38 of the Delhi Rent Control Act (Act 59 of 1968).
4. Referring to the said judgment of the Supreme Court, Sathiadev, J. has observed as follows:
The decisions rendered by the Supreme Court in Central Bank of India Ltd. v. Gokulchand , does not go to the extent of holding that there could be no appeal filed whatsoever, as against any interlocutory order, to the appellate authority constituted under the Act. In fact, it has been clearly held by the Supreme Court that if an interlocutory order results in affecting the rights and the liabilities of a party to a proceeding, an appeal could be entertained apart from appeals filed as against final orders.
The learned Judge proceeded to observe at a later stage of his judgment that the acid test to find out whether an appeal would lie or not is to ascertain whether the order, if allowed to remain, would affect the rights and liabilities of that party, and is of such a nature that the aspect sought to be established in the interlocutory stage is one which though to some extent can be established in the main matter, would due to its rejection at this stage, prejudice his valuable rights. In that view, learned Judge proceeded to hold that the appeal filed against the order confirming the report of the commissioner was maintainable. With respect to he learned Judge, I do not agree. Once the Supreme Court has concluded on the question that an order appointing or refusing to appoint a Commissioner is only a procedural one which does not affect the rights of parties in the matter, it is not proper for this Court to take a different view and hold that an order accepting the report of the Commissioner is appealable one as it would affect the rights of parties.
5. Natarajan, J. in Govindarajulu v. Govindarajulu (1989) 1 L.W. 540, had correctly understood the judgment of the Supreme Court in Central Bank of India Ltd. case , and held that an order appointing a Commissioner of the Rent Controller for recording evidence of the respondent in his house was not appealable.
6. Approaching the question from first principles I am of the view that the order refusing to appoint a Commissioner will not affect the rights of parties. In this case the main petition for eviction has been filed on the ground of requirement for demolition and reconstruction. It is stated injhe petition for eviction that the building is very old and in a dilapidated condition. Hence the burden is heavily on the landlord to show that the building is old and in a dilapidated condition and that he is entitled to get an order of eviction on that footing. No doubt learned Counsel for the petitioners contends that his claimants are not willing to have the case decided on a technical question of burden of proof, but they want to have unimpeachable proof by getting the report of an Officer of Court, in other words, a Commissioner appointed by the Court. There is a fallacy in this argument. The question is not one as to whether the fact has to be decided on the issue of burden of proof. This aspect is referred only for the purpose of saying that the landlord will have to let in evidence to prove that the building is in a dilapidated condition. If the landlord fails to do so then the petition will have to be dismissed on that ground itself. If the landlord lets in evidence certainly the tenant will have ample opportunity to let in evidence on his side to prove that the building is in a good condition and not in a dilapidated condition as alleged by the landlord. Thus the rights of both parties are not in any manner affected by the refusal of the Court to appoint a Commissioner.
7. Moreover it cannot be said that a report of the Commissioner is the final word on the subject and it is not as if the Court should accept any report which may be filed by the Commissioner appointed by the Court. It is certainly open to the parties to show that the report of the Commissioner should not be accepted by Court by cross-examining the Commissioner and proving it to be wrong. In those circumstances, the contention of the learned Counsel for the petitioners that the order of the Rent Controller refusing to appoint a Commissioner affects his clients rights is not tenable and it cannot be accepted.
8. In the result, the revision petition has to fail and the same is accordingly dismissed. There will no order as to costs.