Madras High Court
T.S. Ramu vs Neelakandan on 18 March, 2004
Equivalent citations: 2004(2)CTC674
ORDER S. Sardar Zackria Hussain, J.
1. The tenant is the revision petitioner. The revision is filed against the dismissal of M.P. No. 367 of 2001 in R.C.A. No. 529 of 1997 on the file of the Rent Control Appellate Authority (VIII Judge, Court of Small Causes), Madras.
2. The respondent as landlord filed R.C.O.P. No. 2216 of 1995 in the Rent Control Court(XII Judge, Court of Small Causes), Madras under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent in respect of the petition non-residential premises bearing No.86, Subramania Swamy Koil Street, Saidapet, Madras-15, subject matter of this Civil Revision Petition. The learned Rent Controller considering the evidence of P.W.1, Engineer examined on the side of the landlord and that of the tenant as R.W.1 and the Engineer R.W.2 examined on the side of the tenant and also Exs.P-1 to P-3 marked on the side of the landlord fixed the fair rent at Rs. 498/- per month. Against that order the tenant filed the Rent Control Appeal No. 529 of 1997.
3. During the pendency of the Rent Control Appeal No.529 of 1997, the tenant filed M.P. No. 367 of 2001 seeking appointment of advocate-commissioner to find out the actual area under the occupation of the tenant and to file report. The learned Rent Control Appellate Authority dismissed the petition as per order dated 11.9.2001 relying on the judgment of this Court in P.K. Duraivelu Mudaliar - vs. - S.P. Monahasundaram reported in 1995(1) M.L.J. 184 wherein this Court has held that the Rent Control Appellate Authority has no power under Section 18-A of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 to appoint advocate-commissioner. That order is challenged in this Civil Revision Petition.
4. The learned counsel for the revision petitioner/tenant contended that the Rent Control Appeal has been filed against the fair rent fixed by the learned Rent Controller and such being the continuance of the proceedings taken before the Rent Controller, the Rent Control Appellate Authority has the same power to appoint advocate-commissioner. In this regard, the learned counsel for the revision petitioner pointed out that the petition shop is the front portion and in respect of the back portion which is the subject matter of R.C.O.P. No. 1671 of 1997, an advocate-commissioner was appointed, who filed a report that there is no vacant space in the petition premises of that Rent Control Original Petition. The very same landlord filed the said R.C.O.P. against the same tenant in respect of the front portion of the premises subject matter of this revision.
5. The learned counsel for the respondent/landlord vehemently contended that as per Section 18-A of the Act, it is only the Rent Controller who has got power to appoint advocate-commissioner and that power cannot be exercised by the Rent Control Appellate Authority though the proceedings of the Rent Controller are pending before the Rent Control Appellate Authority. The learned counsel for the respondent/landlord relied on the decision P.K. Duraivelu Mudaliar v. S.P. Monahasundaram reported in 1995(1) M.L.J. 184, in which this Court has held:-
"It is seen in the Tamil Nadu Buildings (Lease and Rent Control) Act, 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."
6. The learned counsel for the revision petitioner relied on the decision rendered by Ramaprasada Rao, J., as He then was in Asokraj Kandaswamy v. Tiruvengadaswamy reported in 1975 T.L.N.J. 237, in which, it is held:-
"Under Section 18-A it was only the Controller who shall have the powers to appoint a Commissioner and not the Appellate Authority. An appeal is a continuance of the original proceedings and the Appellate Authority would, therefore, have all the powers which the Controller had when he was having the petition originally as an Original Authority. 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."
I am in respectful agreement of the said judgment and of the view that the Rent Control Appeal being the continuance of the proceedings, the Rent Control Appellate Authority has got the powers of the Rent Controller. As such the Rent Control Appellate Authority has power to appoint advocate-commissioner. Hence, the order of the Rent Control Appellate Authority that he has no power to appoint advocate-commissioner cannot be said to be proper and is to be set aside.
7. In the result, this Civil Revision Petition is allowed. No cost. The order and decretal order dated 11.9.201 made in M.P. No. 367 of 2001 in R.C.A. No. 529 of 1997 by the Rent Control Appellate Authority are set aside. The Rent Control Appellate Authority is directed to restore the M.P. No. 367 of 2001 for the purpose of appointing advocate-commissioner as sought for by the revision petitioner/tenant. The Rent Control/Appellate Authority is further directed to dispose the Rent Control Appeal by August, 2004. Consequently, the petition C.M.P. No. 991 of 2002 is closed.