Madras High Court
R. Mani vs Shanmugham And Ors. on 18 July, 1990
Equivalent citations: (1991)295MLJ1
ORDER Srinivasan, J.
1. This revision petition has no merits. It is directed against an order of the Appellate Authority remitting the matter before him back to the Rent Controller for appropriate disposal in accordance with law,
2. The short facts are these: The petitioner herein, who. is the landlord obtained an ex pane order of eviction in R.C.O.P. No. 88 of 1982. According to him, he has taken possession of the property pursuant to the ex parte order of eviction. The respondents herein filed I.A. No. 287 of 1986 for. setting aside the ex parte order of eviction. The Rent Controller, without discussing the merits of the application, passed an order that the petition is closed since the tenants have vacated the petition premises. There is no provision either under the Tamil Nadu Buildings (Lease and Rent Control) Act or under any other law enabling the Court or an authority to close a petition. The court or authority must either dismiss the petition or allow the petition. At any rate, it must pass an order which will dispose of the contentions of the parties. Even assuming that the word 'closed' is used as a substitute for the word 'dismissed', the order is unsustainable as the relevant merits of the contention have not been considered by the Rent Controller.
3. Against the order passed by the Rent Control ler, the respondents herein filed R.C.A. No. 3 of 1987. The Appellate Authority has rightly set aside the order of closure passed by the Rent Controller and remanded the matter for disposal according to law.
4. This revision is against the order of the Appellate Authority. Learned Counsel for the revision petitioner contends that the Appellate Authority has no power of remand and he refers to Kuttappa Nair v. Shahul Hameed . That Judgment will not apply to the present case as in this case, the Rent Controller has not disposed of the application before him. The Rent Controller has simply closed it. That is not disposal within the meaning of law.
Generally the expression 'closed' is used by executing courts only. This Court has on several occasions pointed out that such closure will not put an end to the petition and it is only a disposal for statistical purposes. In Periannan Chettiar v. Lakshmanan Chettiar 68 M.L.J. 265 (D.B.), Jackson, J. observed as follows:
By this date the distinction between "closed" and "dismissed" is well known. Veluswami Naicken v. Dhanakoti Balasubramania Chettiar (1927) 106 I.C. 138 and it cannot be argued that a petition which is closed has been dismissed so as to attract the mischief of Order 21, Rule 57, Civil Procedure Code.
A similar ruling was given by another Division Bench in Sreenivasalu Naidu v. Nataraja Goundan 68 L.W. 441 (D.B.).
5. Hence, in the eye of law I.A. No. 287 of 1986 was not disposed by the Rent Controller and it was pending. Though in form the Appellate Authority has allowed the appeal and remanded the mailer, he has in effect directed the Rent Controller to dispose of I.A. No. 287 of 1986 as it was not disposed by his order dated 16.12.1986 closing the same. The appellate Authority has only directed the Rent Controller to dispose of the application in accordance with law. Strictly speaking, it is not a case of remand as contemplated in the Judgment in Kuttappa Nair v. Shahul Hameed . Hence, that judgment will not apply. Hence, the direction given by the Appellate Authority to the Rent Controller to dispose of I.A. No. 286 of 1986 in accordance with law is upheld.
6. Learned Counsel for the petitioner wants to contend that after the petitioner had taken delivery of the property in execution of the ex pane order of eviction, the petition for setting aside the ex pane order is not maintainable. That is a contention which he may raise before the Rent Controller, who will consider the validity of the same and pass appropriate orders.
7.The civil revision petition, therefore, fails and it is dismissed. No costs.