A. Ghose Khan and others vs The Rent Controller (District Munsif of Coimbatore), Coimbatore and others

Ratnavel Pandian, J.—This writ petition is to quash the order of the Rent Controller (first respondent) in E.A. No. 160 of 1977 in E.P. No. 446 of 1975 in R.C.O.P. No. 400 of 1966, dated 26th July, 1977, impleading respondents 4 to 6 therein (writ petitioners herein) as the legal representatives of deceased Aziz Khan, who was a tenant along with respondents 3 and 4 herein in respect of the premises in question. The facts of the case which led to this writ petition as set out in the affidavit filed in support of the petition, can be briefly stated thus. The second respondent herein as the landlord filed R.C.O.P. No. 400 of 1966 on the file of the Rent Controller (District Munsif), Coimbatore, against the tenants, viz., respondents 3 and 4 herein and the predecessor-in-interest of the petitioners herein, and obtained an order of eviction against them. It is not in controversy that this order of eviction was affirmed by the appellate and revisional authorities. Aziz Khan died on 20th September, 1972 leaving the petitioners herein as his legal representatives. Thereafter the second respondent on 12th June, 1974 filed E.P. No. 446 of 1975 before the Rent Controller, Coimbatore, under O.21, R. 35, C.P.C. for delivery of possession of the property. The writ petitioners filed a memo before the Rent Controller on 18th November, 1976 bringing to the notice of the court the death of Aziz Khan. The second respondent, the landlord, thereafter filed E.A. No. 160 of 1977 on 26th February, 1977 before the Court seeking to bring on record the petitioners herein as the legal representatives of the deceased Aziz Khan. This application was opposed by the proposed legal representatives, viz., respondents 4 to 6 therein, the writ petitioners herein, mainly on the ground that the landlord, though admittedly was aware of the death of Aziz Khan even on 18th November, 1976 when they filed the memo in Court, has taken out this application only on 26th February, 1977, viz., after the expiry of a period of thirty days from the date of his acquiring the knowledge of the death of Aziz Khan, thereby contravening R.25 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 (hereinafter referred to as the Rent Control Rules). The learned Rent Controller rejected the contention and allowed the execution application holding that

"it is obvious that since S.18 of the Act empowers the Controller to execute the order passed in R.C.O.P. just as a civil Court will execute a decree, the provisions of the C.P.C. will be applicable to the execution proceedings in R.C.O.P. also" and that "an application for bringing a legal representative as a party in a civil court can be filed within three months of the date of the knowledge of the person concerned and so it is obvious that even in an execution proceeding in a Rent Control proceeding, a petition for bringing the legal representative on record can be filed within three months from the date of the knowledge of the death of the person concerned."

In support of this view he has placed reliance on the decision of a Division Bench of this Court in Subramania Pillai Vs. Rajakkani Nadar and Another, Accordingly, he impleaded the petitioners as parties to the proceedings. Aggrieved by the said order, the legal representatives of the deceased tenant have directed this petition seeking a writ of certiorari.

The order of the Rent Controller has been challenged mainly on the ground that the Controller ought not to have entertained the application taken out by the second respondent-landlord for impleading the writ petitioners as the legal representatives of the deceased tenant after the expiry of a period of one month from the date of knowledge of the death of the tenant as specifically provided in R.25 of the Rent Control Rules. Learned counsel for the petitioners would further submit that the decision in Subramania Pillai Vs. Rajakkani Nadar and Another, , which related to execution proceedings under S.18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) as it stood then, has no application to execution proceedings taken out under S. 18of the Rent Control Act as amended by Act 23 of 1973 since as per the provision of the Act as now amended the execution applications in rent control matters have to be laid before the Rent Controller himself as persona designata and that therefore, the order of eviction now sought to be executed against the petitioners herein cannot be deemed to be a decree or order passed by a civil Court as defined in the C.P.C., and consequently, the procedure laid down in the C.P.C., applicable to the execution of a decree cannot be attracted to the present case and therefore, Art. 120 of the Limitation Act, which prescribes a period of 90 days to have the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent nude parties in matters arising under the C.P.C., would not apply to the execution proceedings arising out of an order of eviction passed by the Controller, especially when there is a specific provision under R.25 of the Rent Control Rules prescribing the time-limit for bringing the legal representatives on record in proceedings under the Act. According to him the landlord could proceed against the petitioners herein, if he is so advised, by filing an independent application for execution as provided under the Act.

A cursory reading of S.18of the Act as amended, shows that the power of execution of orders made under Ss. 10, 14, 15, 16and 17and every order passed on appeal under S.23or on revision under S.25, is vested exclusively in the Controller, viz., the persona designata appointed by the Government by a notification to exercise the powers of a Controller as defined in S.2(3) of the Act, whereas under S. 18prior to amendment the said power was vested in the civil court. S.27(1) of the Act provides that any application made or appeal preferred or proceedings taken in this Act by or against any person may in the event of his death, be continued by or against his legal representatives. But, the question is, what is the time-limit within which such legal representatives have to be brought on record so as to be proceeded against in the same application or proceeding. It would be worthwhile in this connection to note the following observations made by Ramaprasada Rao, J., as he then was in his inimitable language, in Vijayaraghavan v. Mohammad Yakub Rowther 1976-1-M.L.J. 128=89 L.W. 81 at 131:

The right to process an order of eviction is already in the stream of execution and it cannot be stemmed by reason of the death of the father.

Therefore, the right of the second respondent-landlord to proceed against the petitioners as the legal representatives of the deceased tenant is always there. The only question that arises for determination is whether the second respondent can exercise the said right to proceed against the petitioners in E.P. No. 446 of 1975, itself by invoking the provisions contained in Art. 120 of the Limitation Act and O.22, R.4, C.P.C., or whether E.P. 446 of 1975 has to be dismissed in view of the provisions contained in R. 25 of the Rent Control Rules on the ground that the landlord has not impleaded the legal representatives within one month from the date of knowledge of the death of the deceased tenant.

For a better understanding of the present legal position and the applicability of the decision in Subramania Pillai v. Najakkani Nadar 1971-1-M.L.J. 223=83 L.W. 758 to cases arising after the amendment let us have a comparative study of S.18as it stood before the 1973 amendment and the section as it stands after the amendment

S. 18of the Act, as it stood before the 1973 Amendment

S. 18of the Act after the said Amendment.

Execution of orders

Execution of orders

Every order made under Ss.10, 12, 13, 14, 15, 16and 17and every order passed on appeal under S.23or on revision under S.25shall be executed

(1) Every order made under Ss.10, 14, 15, 16, and 17and every order passed on appeal under S.25or a revision under S.25shall be executed by the Controller as if such order is an order of a Civil Court and for this purpose, the controller shall have all the powers of an actual civil court.

(i) in the City of Madras by the Madras City Civil Court.

(ii) elsewhere-

(a) by the District Munsif or if there are more than one District Munsif, by the Principal District Munsif having original jurisdiction over the area in which the building is situated; or

(b) If there is no such District Munsif, by the Subordinate Judge or if there are more than one Subordinate Judge by the Principal Subordinate Judge having original jurisdiction over the area aforesaid: or

(2) An order passed in execution under Sub-S.(1) shall not be subject to any appeal or revision.

(c) if there is no such District Munsif or Subordinate Judge, by the District Judge having jurisdiction, as if it were a decree passed by the said court or by him.

Provided that an order passed in execution under this section shall not be subject to an appeal, but shall be subject to revision under S.25".

(The underlinings are mine)

A reading of the above comparative table reveals that the mode of execution of the order made by the Controller under the Act as it stood before the amendment was quite different from the one that prevails after the amendment, in that before the amendment the said order was to be executed only by the Judge of the City Civil Court in the City of Madras or by the District Munsif, Subordinate Judge or the District Judge as the case may be in the mofussil, as if it were a decree passed by the said Court (City Civil Court) or by him (the District Munsif, Subordinate Judge or District Judge) whereas after the amendment, such orders have to be executed only by the Controller (persona designata) as if such order is an order of a civil court and for this purpose the Controller shall have all the powers of a Civil Court.

Ramaprasada Rao, J. as he then was, while dealing with the scope of S. 18of the unamended Act has in V. Ramaswamy Iyer Vs. K. Ramakrishnayya, observed as follows:

While dealing with the execution of orders, this section provides that every order passed by the Rent Controller (it is not necessary to set out other details in this section for the purpose of this case) shall be executed by the City Civil Court in the City of Madras as if it were a decree passed by the said court. By such a fiction the order passed by the Rent Controller is converted into a decree of a Civil Court and this notional conversion by the operation of the fiction makes it a decree of a civil court.

In Mohammed Hussain Vs. A.K.M. Pitchai, Ramanujam, J. has observed at page 667 as follows:

Once the eviction order is treated as a decree of Court and taken to a civil court for execution as per S.18, such proceedings will be governed by the provisions of the C.P.C. relating to execution of decrees so long as the provisions of the Rent Control Act did not modify or restrict the power of the civil court under the Code. It is well established that an application for restitution is treated as an application for execution. Unlike under the Madras Act 25 of 1955 the order of eviction passed under the Rent Control Act has been specifically made executable only in a civil court and there is no provision in the Act itself curtailing or modifying its powers under the Code in matters of execution. It is because of this special feature by which an order of eviction is brought before a regular Court for execution, Ramaprasada Rao, J., had held in Mohammed Hussain Vs. A.K.M. Pitchai, that the provisions of the Limitation Act would become applicable to the proceedings for eviction arising under the Rent Control Act. This is also the view taken by the Division Bench in Thangaswamy Chettiar v. Bapoo Sahib 1949-2-M-L.J. 699=62 L.W. 876.

In Subramania Pillai v. Rajakkani Nadar 1971-1-M.L.J. 223 = 83 L.W. 758 on which reliance was placed by the Rent Controller in this case, the Division Bench of this Court consisting of Veeraswami, C.J., and Gokulakrishnan, J., sharing with the view expressed in Abdul Fatha v. Mohamed Jabbar 1956-2-M.L.J. 475, and in Narayanaswami v. Renuka Devi 1960-1-M.L.J. 19 (S.N.) = 73 L.W. 128, on the question about the period of Limitation for bringing the legal representatives on record in an eviction proceeding taken under S.18of the unamended Act and the applicability of R.32 of the Rent Control Rules, 1961 (corresponding to R.25 of the 1974 Rules) held thus :--

S. 18says that an order of eviction shall be executed in the City of Madras by the Madras City Civil Court and elsewhere by the District Munsif and if there is no District Munsif, by the Subordinate Judge. The execution by the District Munsif has to be carried out as if the order of eviction were a decree passed by him. We do not decide the question whether the capacity in which the City Civil Court Judge or the District Munsif is called upon to execute, is in any way different, for, no argument has been addressed to us on that point. Treating the District Munsif in the Section as referring to his Court, the fiction enjoined attracts to the eviction order the entire procedure applicable to execution of a decree. When a fiction is created statutorily, it must no doubt be limited to its purpose, but for the purpose for which it was created, the putative state of affairs should be excluded. In other words, the expression "as if it were a decree passed by the District Munsif" would have the effect of a decree passed by him. On that view we should think R.32 would have no application to the execution of an eviction order. We do not read R.32 as a provision in conflict with or contrary to any of the provisions of the C.P.C., relating to execution of a decree. In fact S. 27(1)enables proceedings by or against the legal representatives. But, if it is regarded that S.18only enables the execution of an eviction order, but the rest of the Act does not provide for the procedure for execution in the sense the execution of an eviction order is not a proceeding under the Act, even so, inasmuch as the procedure for execution in the C.P.C., would give (sic) no room for applying R.32 it seems to us that by its language it can be invoked only in the proceedings pending before the Rent Controller.

There are a number of other decisions holding the above view in cases arising before the 1973 amendment, but I feel that I need not swell this judgment by citing all those decisions; and suffice it to note that all the above decisions were rendered at a time when S. 18of the Act which by a fiction converted an order of eviction passed by the Rent Controller into a decree passed by the civil court, was not amended. However, by the 1973 amendment which came into effect on 20th June, 1973, S.18has been modified, completely altering the procedure relating to the execution of eviction orders, in the sense that execution proceedings after the 1973 amendment are placed in the hands of the Controller himself and he alone has to execute the order. Thus, the power vested in the civil court, which alone was originally the authority competent to execute such an order as if it were a decree passed by the said civil court itself, is now taken away. Therefore, the effect of the amendment is that the order of eviction can no longer be deemed to be a decree of a civil court and the only thing to be noted is that the Controller, for the purpose of execution of such orders has all the powers of a civil court. In the above circumstances the principles laid down in the above three decisions are not applicable to proceedings taken after the 1973 amendment of the Act.

It is well settled that legal fictions are created only for some definite purpose and that the said fictions created by the statute cannot be extended beyond the purposes for which they were created. In interpreting the legal fiction of a statute, the court is not expected to travel beyond the provisions by which the fiction is created and the court also cannot extend such a fiction by importing another fiction. The fiction enacted by the legislature must be restricted by the plain terms of the statute: Vide The Bengal Immunity Company Limited Vs. The State of Bihar and Others, The Commissioner of Income Tax, Bombay City I, Bombay Vs. Amarchand N. Shroff, by his heirs and Legal Representatives, and Commissioner of Income Tax, Bombay City II v. Shakuntala and two others etc. 1962-2-S.C.R. 871 at 879. Therefore, the Rent Controller ought to have seen that the fiction created by S.18of the Act can be extended only for the limited purpose of exercising the powers vested in a civil court, while executing the orders of eviction, such as those provided under O.21 of the Code, but cannot be extended to matters such as those contained in O.22and other provisions of the Code relating to the execution of a decree.

The Rent Controller, while acting under S.18 of the Act in executing the orders passed under the Act exercised his jurisdiction only as persona designata and not as a court. Gokulakrishnan, J. in Ganapathi v. Kumaraswami 1975-2-M.L.J. 171=88 L.W. 525 after having referred to a plethora of decisions has concluded that as far as the Rent Controller and the Appellate Authority created under the Rent Control Act, are concerned such authorities are persona designata and hence legislations such as the Limitation Act applicable to a court cannot be invoked in proceedings before such persona designata. N.S. Ramaswamy, J. in J. Easwaran v. Palaniammal 1974-T.L.N.J. 38 has categorically held that the Appellate Authority constituted under the Rent Control Act is persona designata and as such S.5 of the Limitation Act cannot be invoked before such authority. Likewise, Ramaprasada Rao, J. in Nachimuthu Gounder v. Kanaka Ratnam 1977-T.L.N.J. 393 in a similar situation, while dealing with a case under the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1958, has held that the Revenue Divisional Officer or the Revenue Court under the said Act, though is a statutory functionary under the Act having the trappings of a court, in that certain provisions of the C.P.C. are made applicable to proceedings before him, and undoubtedly decides certain rights of parties, is not a court, and in that sense the provisions of S.5 of the Limitation Act cannot be invoked by such authorities. It was further observed in the said decision that a creature of a statute should function strictly within the frame-work of the Act which creates it and it has no power to act beyond the frame-work of such prescription.

In Fernando v. Authorised Officer 1979-2-M.L.J. 209=93 L.W. 35 this Court has held that the Authorised Officer under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, cannot be equated to a court for the purpose of S.213(1) of the Indian Succession Act though as a statutory functionary he is clothed with some of the procedural powers mentioned in C.P.C. governing the conduct of proceedings before a civil court.

I myself have in Lakshmi Opticals by Proprietor, E.N. Mohanasundaram v. N. Ramakrishnan 92 L.W. 594 taking into consideration the amendment of S.18of the Act, held that the execution application pending before a Rent Controller cannot be transferred to a civil court after, the coming into force of the amendment, since no Judge of the City Civil Court, Madras has been appointed as a Controller, within the meaning of the Act so as to exercise the powers of a Controller.

For the above reasons I hold that the "Controller" within the meaning of the Act is not a court, but only a statutory functionary competent to exercise the power given to him under the statute and therefore, the provisions of the Indian Limitation Act are not applicable to proceedings pending before him, though he is clothed with all procedural powers of a civil court in executing the orders passed by him.

Accordingly, I hold that Art.120 of the Limitation Act is not applicable to the facts of the present case since the Rent Controller is not a court and what is sought to be executed in E.P. No. 446 of 1975 is only an order passed by the Controller, which is not converted into a decree passed by a civil court by any fiction as was the position before the l973 amendment under S.18of the Act. Consequently, R.25 of the Rent Control Rules of 1974 alone would be applicable to the facts of the present case. Since E.A. No. 160 of 1977 has admittedly been filed beyond a period of one month from the date of knowledge of the death of the deceased tenant, the said application is clearly barred by limitation, and the order passed by the Rent Controller allowing the said application and impleading the writ petitioners as legal representatives of the deceased tenant cannot be sustained. In the result, the writ petition is allowed and the impugned order is quashed. It is unnecessary to mention that it is always open to the second respondent-landlord to take separate proceedings against the writ petitioners, if he is so advised, under the provisions of the Act. There will be no order as to costs.