Madras High Court
R.N. Prakash vs Smt. Saraswathi on 23 December, 1998
Equivalent citations: 1998(3)CTC725, (1999)IIMLJ138
ORDER
1. This revision is filed under Article 227 of Constitution of India by the tenant in RCOP 141 of 1993 on the file of Rent Controller/District Munsif, Poonamalee. An order of eviction was passed and against the same petitioner filed RCA 38 of 1995 on the file of Subordinate Judge, Poonamalee.
2. The appeal was posted for hearing on 18.6.1997 and the same was adjourned at the request of petitioner. The advocate Clerk mistook the posting as 14.7.1997 even though it was posted on 30.6.1997. So when the matter was enquired on 14.7.1997, petitioner came to know that on 30.6.1997 itself appeal was dismissed for default since there was no representation. Petitioner moved an application to restore the same under Rule 16(3) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, though the same is wrongly slated as Rule 12(3) and Section 151 of Code of Civil Procedure. The application was filed in time i.e., on 27.7.1997.
3. The case was thereafter posted to 17.6.1998 on which date case was again adjourned due to advocates boycott, even though petitioner was called absent. The case was again posted on 22.6.1998. On 22.6.1998, petitioner was again called and he was absent. There was no representation by the counsel and hence the petition was rejected.
4. To restore that application which was dismissed for default, petitioner again filed an application which was refused to be numbered by the lower court. It was returned asking petitioner to state the provision of law and how the petition is maintainable. It was represented with the statement that under Rule 12(3) of Tamil Nadu Buildings (Lease and Rent Control) Act, the application is maintainable. Even then the lower court did not entertain the application, which necessitated filing of this revision.
5. I ordered notice of motion and respondent also entered appearance. The only question that requires consideration is whether the application which was dismissed for default could be again restored by another application?
6. The representation that application is maintainable under Rule 12(3) of the Act is not correct. That applies to the rent control application which is dismissed for default or where ex parts order is passed and restoration application to sel aside the order of eviction by the Rent Controller or restoring an application which was dismissed for default is alone contemplated under Rule 12(3). Rule 16(3) applies to appeals which are dismissed for default or decided ex parte. But there is no provision to restore an application which is dismissed for default whether filed under Rule 12(3) or Rule 16(3). In such circumstances, the question to be considered is whether the application could be entertained by Rent Controller, or appellate authority who is a creature of statute.
7. In B.S.C. Enterprises v. Ashok Kumar Lunia, , Justice Rengasamy held thus:
"... When the adjudication before the Rent Controller relates to the rights of the parties, which are in civil nature, and the order of Rent Controller also is an executable order, certainly the view of this court that the Rent Controller is a Court has to be accepted for all purposes. ......"
Learned Judge in para 4 of the same Judgment further held thus, "When once the Rent Controller is considered to be a court, the court must have the way for doing substantial justice to the parties before it. The court cannot be so rigid closing its eyes to the facts when placed before it for the purpose of the proper adjudication..."
In the same paragraph, learned Judge also held thus, "... When it is conceded that the Rent Controller has the inherent powers to order for amendment with regard to the mistakes found in the petition, I feel that the Court is more powerful with its inherent powers to rectify the mistakes namely the omission to mention certain vital aspects which are incidental to the relief sought for in the petition. ......"
8. The above decision was followed by Justice Raju (as he then was) in the decision reported in Kannaiyan v. Subramaniya Pathar . Learned Judge, after referring to the decision of Justice Rengasamy cited supra, held thus, "...Even de hors the said line of approach, I am of the view that a Forum or Authority, which has been conferred with jurisdiction to entertain a lis for adjudication of a dispute involving a decision of the rights parties before it must be considered to have all the essential and necessary powers to effectively discharge its duties. .. .. .."
9. In Cheru Ouseph v. Kunjipathumma, 1981 K.L.T. 495, learned Judge M.P. Menon of Kerala High Court had occasion to consider as to the nature and power exercised by the Tribunal in the procedural matters. In paragraphs 12 and 13 Learned Judge held thus, "...A court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the court must have jurisdiction over the proceedings before it can exercise the inherent power; but when that is granted, its power to advance, the cause of justice by relying on unenumerated powers on inherent or residuary power, as it is often called cannot be denied to it. And therefore, where a tribunal exercises the same kind of power i.e., part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuary powers? If you do not like the name, call it by another; but so long as the tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice. This is not to convert every tribunal into a tyrant, but only to recognise the reality that tribunals have come to stay as instruments of administration of justice, and that occasions may arise where they too will have to step into areas unchartered by the statute and the rules, in the interests of justice. If a tribunal goes out of its way in the fulness of its powers, the superior courts are there to correct it, as noticed by Alien; and as also observed by him, the first adjudication is more important to the litigant than the last.
10. I would therefore say, as indicated by the Supreme Court in Dhani Devi's case, that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function. Corpus Juris Secundum (5) contains the following passage:
"Apart from and without reference to statutory authority therefor and subject to some restrictions and limitations, it has been held that an administrative agency may correct or amend its orders. Thus it has been held, except as qualified by statute, administrative tribunals possess the inherent power to modify their judicial acts to serve the ends of essential justice and the policy of the law; and that the general power of an administrative body over its decisions includes the right to modify a decision so as to reach a different result on the same record."
This almost amounts to recognition of a power of review; but Art. 114 contains the following also:-
"Administrative body may generally conduct its proceedings in such manner as will best conduce to the proper despatch of its business and to the ends of justice. It is generally permitted a wide discretion and latitude in procedural details and ordinarily may establish its own rules and regulations as to practice and procedure, although it must conform to standards of fairness and reasonableness."
11. It is clear from the above decisions that every tribunal is having inherent or residuary powers and when the tribunal is constituted for the purpose of deciding the dispute between Landlord and Tenant it also must have the same powers unless the same is restricted or excluded by the statute. When the Tribunals are also constituted for the administration of Justice, for the said purpose, tribunal must also have inherent residuary powers.
12. If inherent power is available then the application filed by petitioner which is not numbered by the appellate authority is proper.
13. Even in Civil Court, where the Code of Civil Procedure applies against an ex parte decree litigant got a right to have the same set aside by filing an application under Order 9 Rule 13 of Code of Civil Procedure. If that application is dismissed for default, there was no provision under Code of Civil Procedure to have the same restored before 1976. In 1976, an amendment was incorporated to Section 141 C.P.C. where all provisions relating to suits were also made application to proceedings. Before 1976, all the Court have held that if any application for setting aside the ex parte decree is dismissed for default, the remedy is to invoke the inherent powers of the court.
14. In Bajrang Rai v. Ismail Mian, consisting of five Judges held that an application under Section 151 of Code of Civil Procedure in such cases is maintainable. An earlier full Bench decision was overruled in that case.
15. In Nathuni Singh v. Naipal Singh, it was held that the provision of Order 9 Rule 9 do not apply to application under Order 9 Rule 13 of the Code of Civil Procedure. Section 151 of the Code of Civil Procedure is however wide enough to clothe the court with power to restore an application for rehearing of the suit made under Order 9 Rule 13 C.P.C. which had been dismissed for default,
16. Why I am relying to these decisions is that even before the Civil Court, inherent power that is invoked for restoring the application which is dismissed for default. Naturally the Rent Controller or the Appellate Authority which are trappings of court and which administer justice also must have that power unless that is specifically excluded. There is no exclusion under any provision or Rent Control Act or Rules. When there is no provision as in the case of Code of Civil Procedure (before 1976), the inherent powers alone can be invoked in such cases. The question whether the application is liable to be restored or not is a matter which is to be decided by the appellate authority on merit. But it should not return the application on the ground that the same is not maintainable.
17. In the result, there will be a direction to the appellate authority to register M.P.SR.No. 8217 of 1997 in RCA 38 of 1995 on the file of Subordinate Judge, Poonamalee and the appellate authority is directed to number the same and proceed in accordance with law. I make it clear that I have only considered the maintainability of the application and not gone into the merits of the case. The appellate authority will have to satisfy himself as to whether the reasons stated in the restoration application are sufficient to restore the application under Rule 16(3) of the Tamil Nadu Buildings (Lease & Rent Control)Act, 1960 (Wrongly stated as under Rule 12(3) of the Act).
18. In the result, the Civil Revision Petition is allowed as above., No costs. Consequently, C.M.P.No. 16437 of 1998 is closed.