Madras High Court
P.K. Duraivelu Mudaliar vs S.P. Mohanasundaram on 5 October, 1994
Equivalent citations: (1995)1MLJ184
ORDER N. Arumugham, J.
1. As the point involved in this revision is within a very narrow compass at the request and consent of the Bar for the respective parties, I have heard the whole case in hand and pronounced the following Order:
2. Brief facts of the case are extracted as hereunder: The tenant is the revision petitioner and eviction was sought for before the learned Rent Controller in R.C.O.P. No. 1570 of 1989 by the respondent herein, being the landlord, on the ground of owner's occupation, as the building is required for accommodation of his married daughter. As the matter was seriously contested after taking into consideration the entire evidence adduced, the learned Rent Controller passed the order of eviction and against which an appeal has been preferred which is pending in R.C.A. No. 698 of 1991, on the file of the VII Judge, Court of Small Causes Madras. In the appeal, by virtue of Section 18-A of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called as 'the Act', an application M.P. No. 371 of 1993 has been filed by the tenant- appellant seeking for the appointment of a Commissioner to find out as to whether how many portions were situate in the demised premises of the landlord-respondent and who were all the persons vacated and in which portion of the building or any other building the daughter of the landlord was residing and so on. Though the petition was contested by the tenant- appellant and resisted by the landlord- respondent the learned appellate authority refused to appoint any Commissioner and accordingly dismissed the said petition, by passing the impugned order above referred. Aggrieved at this, the present revision has been filed by the tenant.
3. I have heard the Bar for the respective parties for and contra in this revision. Mr. T. Thirumaran, learned Counsel appearing for the revision petitioner persuaded me to see that the power vested with the court, namely, the Rent Controller or the appellate authority to appoint a Commissioner cannot be confined to the Rent Controller alone but it can be made available to the appellate authority or this Court also, for the reason that any appeal or revision filed against the order of eviction in law is deemed to be the continuation of the proceedings and that therefore the power is vested with the Rent Controller to appoint a commissioner under Section l8-A of the Act and for the said reason the appellate authority while passing the impugned order has clearly committed an error in declining to appoint a Commissioner and that therefore he would persuade me that the impugned order is liable to be interfered with.
4. On the other hand, Mr. M.V. Krishnan, learned Counsel appearing for the respondent-landlord would controvert the said contention by saying that the power provided under Section 18-A of the Act is only to be exercised by the Rent Controller to appoint a Commissioner and for the said purpose he is authorised to have all the powers of a civil court as contemplated under the Code of Civil Procedure, but that does not mean that there is no way to the appellate court or the revision court. Then the learned Counsel would contend further that if an appellate court refused to appoint a Commissioner under Section 18-A of the Act, then it would pertain to a procedural one and not an order affecting the merits or the demerits of the case and that therefore it is not an appealable order, liable to be canvassed in this revision. Lastly, it was argued on behalf of the respondent that the factual aspects, on the basis of which the relief of appointment of Commissioner was sought for is not adequate and prone to grant the relief as prayed for, for the simple reason that even if the Commissioner is appointed, he cannot give such a finding to hold the matter for total and fullest adjudication and that in fact the learned appellate authority has given the reasoning in the impugned order itself. While saying so, the learned Counsel would contend that the revision is liable to be dismissed.
5. In the context of the above rival position and circumstances, the only question which arises for consideration in this revision is: Whether the impugned order passed by the Rent Control Appellate Authority is erroneous and without any sanctity of law and if so liable to be set aside?
6. The point: Before entering the factual and legal aspects of the case in hand as above referred, it is necessary for me to advert Section 18-A of the Act, which runs as follows:
18-A. Power of Controller to appoint Commissioner: The Controller shall have powers to appoint a Commissioner in any proceeding pending before him and for this purpose, he shall have all the powers of a civil court under the Code of Civil Procedure, 1908 (Central Act V of 1908) Section 23 of the Act deals with the circumstances under which an order is to be appealed, are necessarily to be extracted, which runs as follows:
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.
7. Section 25 while dealing with the revisional powers provides as hereunder:
25. Revision: (1) The High Court may, on the application of any person aggrieved by an order of the Appellate Authority to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly.
8. Thus it is seen in the Act that nowhere the appellate authority or the High Court is empowered with the appointment of a Commissioner for the first time to look into a particular issue or identify the facts, which can be thrashed out from the very kind of evidence to be adduced before the Rent Controller in this case. The defence forwarded by the revision petitioner is that there were several tenants in the demised property and several tenants have already vacated and such portions were not utilised for providing accommodation for the daughter of the landlord and if so her married daughter is living in another convenient different house with her family and that therefore the requirement of the rental premises for own use and occupation is not bona fide. It is worthwhile to note at this juncture that the tenant has not filed nor come forward with any application to appoint a Commissioner before the learned Rent Controller. But however this does not mean that he cannot ask for the appointment of a Commissioner at the later stage either in the appeal provided if good course are available to him, but unfortunately it is not a fit case where the appointment of a Commissioner can be availed of to the tenant herein, for the simple reason that if a Commissioner was deputed it is not at all possible for him to go and ascertain whether all the persons are actually living in the several portions of the demised property and from how long they were residing therein and what was their occupation and when they become tenants, which would mean if it is allowed, it would mean a trial and enquiry has to be taken by the Commissioner, which is not permissible in law. As was justifiably contended, the appellate authority has not deputed the Commissioner to go and conduct an enquiry by examining the building to find out whether all occupants are residing in the demised premises and what are all the amenities available for them is not within the ambit of the Rent Control Act and therefore the learned Rent Control Appellate Authority has justifiably rejected the claim of the revision petitioner herein.
9. Coming to the legal hurdles claimed to have been in the offing of this case, I am to refer the case laws. In Central Bank of India v. Gokal Chand in which the Supreme Court while dealing with the Delhi Rent Control Act has observed as follows:
Section 38(1) of the Delhi Rent Control Act contemplates appeal only from order which affects right or liability of party - No appeal lies thereunder, from interlocutory orders, which are merely procedural and do not affect rights or liabilities of parties - If, however, any error, defect or irregularity is found in any interlocutory order, it can be taken as ground of objection in appeal from final order in main proceeding. Head, order refusing to issue commission for inspection and preparation of plan of particular premises of landlord, in proceedings for eviction, was not appealable as same was mere procedural order not affecting any right or liability of party.
10. In K.S. Mahaboob Basha v. Kaneez Fathima (1991) 1 M.L.J. 372, while dealing with the scope of appointment of a commissioner under Section 25 of the Act the learned single Judge of this Court has observed as follows:
The order refusing to appoint a Commissioner will not affect the rights of the parties. In this case, the main petition for eviction has been filed on the ground of requirement for demolition and reconstruction. It is stated in the petition for eviction that the building is very old and is in a dilapidated condition. Hence, the burden is heavily on the landlord to show that the building is very old and is in a dilapidated condition and that he is entitled to get an order of eviction on that footing. 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 an opportunity to let in evidence 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.
11. The case law reported in Ashokraj Kandaswamy v. Thiruvengadaswamy 1975 T.N.L.J. 237 was relied on by the learned Counsel for the petitioner Mr. T. Thirumaran, for the observation made therein, which are extracted as hereunder:
There may be circumstances, as it happens, in civil cases when the appellate court, while dealing with an appeal, is provoked to appoint a Commissioner although such an application was not sought before the trial Court nor was it thought of by the trial Judge himself. Once the authority is vested by statute in the original authority such as the Rent Controller, to appoint a Commissioner would also form part of the record of the Appellate Court and is bound to be scrutinised by him when the appeal is heard. This and other normal circumstances pertaining to the hearing of civil proceedings compels the court to disagree with the Appellate Authority that the text of Section 18-A of the Act has to be interpreted strictly and that the Appellate Authority under the Act has no authority to appoint a Commissioner in any proceeding before him but it is only the Rent Controller.
12. Thus the legal ratio squarely held by the Courts of law through the above case laws totally envisage the fact that the power of appointing the Commissioner or refusing to do so pertains to only procedural formality and in no way affects the rights of the respective parties by either under the said circumstances the refusal to appoint a Commissioner by the Appellate Authority in an interlocutory application is not an appealable order. I am holding so for the simple reason that the appointment of a Commissioner even if accepted will serve no purpose in deciding the matter as provided by law on the one hand, but on the other hand, as was judicially referred to already, it comes within the category of a procedural duty and do not affect the rights of either party in either manner, If really the revision petitioner is interested, he would have done it even before the Rent Controller. That apart, it is always open for him to adduce oral or documentary evidence to substantiate his defence and not create evidence by appointment of a Commissioner. It is the settled law that the appointment of a Commissioner cannot be granted for the purpose of creating evidence. Therefore, for the first time in making an application for appointment of Commissioner during the appeal is not at all germane and will not provide for a proper adjudication of the matter in dispute between the parties by the appellate authority. If the whole matter is viewed in this angle, I do not come across any impropriety or illegality in the impugned order passed by the appellate authority. For all the said reasons, I had the every difficulty to identify any merit in this revision. It is always open for the parties to adduce evidence on their own accord either oral or documentary and as contemplated by the law, but certainly not to circumvent the law by adopting a different procedure merely on the basis of sentimentalities, for which courts of law are not bound to be carried away but has to perform its duties only with acceptable legal evidence.
13. In the result, the revision fails and accordingly it is dismissed. But, however, there will be no order as to costs under the circumstances.