A.K. Chettiar vs C. Mudalyandan Chettiar

P.V. Rajamannar, C.J.—This case reveals the plight of litigants when those who are in charge of making and promulgating rules do not take

care to see that there is no room for confusion as regards the procedure to be followed in proceedings under the Statute. This Revision Petition

arises out of an application by a tenant to set aside an ex parte order of eviction passed against him by the Rent Controller. But Section 17(2)(d)

gives power to the State Government to make rules providing for setting aside ex parte orders passed under this Act. It is evidently in pursuance of

this rule-making power that Rule 9(3) of the Madras Buildings (Lease and Rent Control) Rules, 1951 was made. It runs as follows:

In any case in which an order is passed ex parte against a tenant or a landlord, he may, within fifteen days from the date of receipt of the order,

apply to the controller by whom the order was passed for an order to set it aside; and if he satisfied the Controller that the summons was not duly

served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing, the Controller shall make

an order setting aside the order passed against the tenant or landlord, as the case may be, and shall appoint a day for proceeding with the

application.

The application filed by the petitioner against whom an ex parte order had been passed by the Controller has been dismissed on the ground that

it was filed after the lapse of fifteen days from the date of the pronouncement of the order. In my opinion this decision is obviously wrong on the

language of Rule 9(3). The reason for the confusion which certainly exists in this matter is this. Originally under Rule 13 of the Madras Buildings

(Lease and Rent Control) Rules, 1946 all orders passed by the Controller had to be served on the person concerned. With reference to this

procedure it is easy to understand the provision in Rule 9(3), namely that the application to set aside the ex parte order should be made within

fifteen days from the date of the receipt of the order. Subsequently, however the old provisions contained in Rule 13 of the rules of 1946 was

modified. Under a corresponding Rule 18 of the Rules of 1951, only the orders passed by the appellate authority if not pronounced in open Court,

are served on the person concerned. There is no provision for service of orders passed by the Controller. At or about the time of the making of the

Rules of 1951 a new section was introduced in the Act -Section 10-A which makes it incumbent on the Controller to pronounce every order in

open Court. It was evidently the intention of the rule making authority that having regard to this provision there was no necessity of serving an order

passed by the Controller on the person concerned. But then consistently they should have made consequential amendments in the other Rules, as

for instance, the rule with which we are concerned in this case, namely, Rule 9(3). While there is no provision for an order being served on the

party concerned, Rule 9(3) still speaks of a period of fifteen days from the date of receipt of the order. I cannot understand how time can be

computed in accordance with this provision when there is no question of service and receipt. Evidently this mistake was discovered subsequently

and an amendment was made to Rule 9(3) in June 1954, vide Notification published at page 181 of Madras Rules and Notifications, M.L.J.

Edition. This amendment provides for the substitution of the words "" fifteen days from the date of receipt of the order "", by the words "" 30 days

from the date of the pronouncement of the order in open Court."" This amendment however came into force long after the application was filed by

the petitioner in this case. Having regard to Rule 9(3) as it stood on the date of the petitioner''s application, it cannot be said that it was barred

because more than fifteen days had elapsed from the date of the pronouncement of the order. I therefore allow the Civil Revision Petition and set

aside the order of the learned Judge of the Small Cause Court dismissing the application of the petitioner. As the learned Judge did not deal with

the merits of the application in the view he took that the application was barred by time, the petitioner''s application is remanded to him for final

disposal. There will be no order as to costs in this revision petition.