Madras High Court
V. Govindarajulu vs T. Govindarajulu on 1 March, 1989
Equivalent citations: (1989)1MLJ482
ORDER K.M. Natarajan, J.
1. This revision is directed by the tenant, against the order passed by the appellate authority, Coimbatore, dismissing the appeal and confirming the order passed by the Rent Controller.
2. The facts which arc necessary for the disposal of this revision can be briefly stated as follows:The respondent (landlord) filed a petition for eviction against the petitioner herein (tenant) on the grounds of wilful default payment of rent and bona fide, requirement of the building for the purpose of demolition and reconstruction. He also filed an application, I.A. No. 147 of 1987 under Section 18-A of the Tamil Nadu Buildings (Lease and Rent Control) Act, as amended, to appoint a Commissioner to examine the respondent at his residence contending that he suffered paralytic stroke and as such he is incapacitated for more than four years, that he is unable to move about from the house and that he cannot appear in court and depose in the case. The said application is resisted by the petitioner herein who would contend that the said allegation that the respondent is incapacitated is false.... He would further state that the respondent had mild stroke about four years ago and he recovered within a month. The respondent can walk without the help of others, and that he even now comes out with a walking stick and his normal faculties are not in any way affected. It was further averred that the respondent can come to court in some vehicle, sit in a chair and give evidence.
3. The said application was allowed by the Rent Controller and a Commissioner was appointed to record the evidence of the respondent at his house. The petitioner herein preferred an appeal before the Appellate Authority and he was not successful and hence this revision petition.
4. The learned Counsel for the revision petitioner submitted that the Appellate Authority dismissed the appeal mainly on the ground that no appeal will lie against the order passed in an interlocutory application and that the order of the Appellate Authority on the ground of maintainability of the appeal is not sustainable, both in law and on facts. He would further urge that by appointing a Commissioner to examine the respondent (landlord) the Rent Controller is losing a chance of noting the demeanour of the witness and that the petitioner's valuable opportunity of cross examining the witness has been taken away. In this connection, the learned Counsel for the petitioner relied on a decision of this Court reported in Habib Khan v. Arogyamany Shanthi Lucine , wherein it was held that the impugned order passed by the Rent Controller on the ground of admissibility of the document in question was an appealable one since it affects the rights and liabilities of the aggrieved party. That was a case where the Rent Controller in, an eviction application admitted the unstamped and unregistered documents in evidenced after overlooking the tenant's objection as to the inadmissibility of the documents for want of stamp and registration and it was held that since the said order affects the rights and liabilities of the party, an appeal under Section 23(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act is maintainable.
5. On the other hand, my attention was drawn to a decision of the Supreme Court in Central Bank of India v. Gokalchand (1967)2 S.C.J. 828 : , where their Lordships of the Supreme Court, dealing with the Delhi Rent Control Act, observed:
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 Section 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 Section 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 order.
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.
In Sakthivel v. Govindan (1988)2 L.W. 52, it was held that the appeal preferred by the first respondent therein before the appellate authority was not maintainable. In that case, an application filed under Order 22, Rule 4, C.P.C., was held that maintainable, and the question therefore arose whether the said order is appealable under Section 23(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. In the circumstances, it was held in para 6 of the judgment as follows:
The filing of an application to bring on record the legal representative of a deceased party is only to assist the further prosecution of proceedings and to regulate the procedure and does not in any manner affect any right or liability. In Lakshmiammal v. Subramaniam (1981)2 M.L.J. 206 : 94 L.W. 361. I had occasion to consider the identical question as well as the effect of an order either bringing or declining to bring on record a legal representative in a proceeding under the Act and it has been laid down that the order passed is merely procedural assisting the continuation of the proceedings without in any manner affecting the rights of parties and such an order not affecting the rights of parties would not be appealable. That principle would be applicable to this case also, and therefore, the appeal preferred by the first respondent before the Appellate Authority was not maintainable as well.
6. In the decision relied on by the learned Counsel for the revision petitioner, Lodge Malasia v. Tamil Nadu Real Estate (1983)2 M.L.J. 560 : 96 L.W. 560 the maintainability of the appeal was not considered; but the power of the Rent Controller to issue commission alone was considered and as such the said decision is not at all helpful, even though the revision filed against the order appointing a Commissioner was dismissed. In Murugesan v. Nataraja Mudaliar 100 L.W. 156 : 1986 T.L.N.J. 243, where the question arose about the maintainability of the appeal against the order of rejection of the petition for amendment, it was held relying on the decision of the Supreme Court reported in Shanthi Kumar R. Canli v. Home Insurance Company of New York , and also Devadass V.S. v. S. Velu and Anr. (1984)1 M.L J. 31 : 97 L.W. 100; Chinnaraju v. Barani Bat (1981)2 M.L.J. 354 : 94 L.W. 375 and Hyath Basha v. Tajan Bi (1983)1 M.L.J. 277 : 96 L.W. 85.
Thus, it would be seen that an order passed by Rent Controller in an interlocutory application and which does not affect the rights and liabilities of the parties in the sense that they become final orders, could not be appealed against. By refusal of an amendment of door No. It would not only result in the dismissal of interlocutory application, but in turn lead to the main petition itself being dismissed. Thus, it would acquire the character of a final order so far as the landlord is concerned. As pointed out by the Supreme Court, an order refusing to amend affects the rights of parties could lead to the main relief claimed by the petitioner being rejected. Hence, the appeal "preferred against the order of the Rent Controller was maintainable".
Applying the ratio in the above decisions of the Supreme Court and this Court, to the facts of this case, it cannot be said that the order appointing a Commissioner to examine the respondent herein is one which affects the rights and liabilities of the parties in the main petition. But, on the other hand, it is only a procedural one and the same does not affect the rights and liabilities of the parties. Hence, no appeal is maintainable and the Appellate Authority is perfectly justified in holding that the appeal is incompetent.
7. Turning to the merits of the case, it is seen from the orders below that the respondent (landlord) petitioner in the main R.C.O.P. No. 267 of 1983 had suffered paralytic stroke and that he is not in a position to walk. A medical certificate is also produced in support of the same. It is also brought to the notice of the court that the respondent was admitted in hospital due to urinary infection. In the circumstances, both the courts below are perfectly correct in holding that there is every justification for appointment of a Commissioner to examine the respondent on commission. It must be noted that the Commissioner is appointed to record evidence only in the presence of the counsel appearing on either side and giving opportunity to the petitioner herein (tenant) to cross-examine the witness. In the circumstances, the revision petitioner cannot be said to be in any way prejudiced by the said appointment. For all these reasons I am of the view that the concurrent finding of both the courts below do not suffer from any infirmity whatsoever so as to enable this Court to interfere with the said finding. On the other hand, the finding is perfectly legal and correct and does not call for interference.
8. In the result, the revision fails and stands dismissed. No costs.
9. It is represented by the learned Counsel for the petitioner that the Commissioner has already examined the respondent in his absence in chief examination and as such the examination should be done in his presence and an opportunity should be given to cross-examine the respondent. In the circumstance, the Commissioner is directed to examine the witness afresh, both chief examination and cross-examination, in the presence of counsel after giving sufficient opportunity. It is also further made clear that the court below should dispose of the R.C.O.P. within two months after the receipt of Commissioner's report positively.