Engineers Associates, Mechanical Engineers vs J. Parvathi and J. Revathi

M. Venugopal, J.—The Civil Revision Petitioner is the tenant before the learned rent controller, XIV Judge, Court of Small Causes Court,

Chennai in RCOP No. 2227 of 1994. The RCOP No. 2227 of 1994 was filed for fixation of fair rent in respect of the petition mentioned property

and that the monthly fair rent was fixed at Rs. 1864/- per month from the date of filing of the petition by the learned rent controller.

The tenant/petitioner/appellant preferred an appeal in RCA. No. 04/1997 as against the order dated 02.4.1996 passed by the learned Rent

Controller, XIV Judge, Court of Small Causes, Chennai and the same is pending adjudication before the learned appellate authority, VIII Judge,

Court of Small Causes Court, Chennai.

Pending RCA No. 04 of 1997, the tenant/petitioner/appellant filed M.P. No. 90 of 2001 before the appellate authority praying for an

appointment of Advocate Commissioner to measure the area of the petition premises under the occupation of the petitioner/tenant/appellant. The

reason assigned praying for appointment of Commissioner by the petitioner/tenant/appellant is that the petitioner/tenant/appellant is in possession of

the area of about 538 sq.ft. and that the landlord/respondent has alleged that he is in occupation of 544 sq.ft. and that the common area was

included by the learned Rent Controller, while fixing the fair rent and that the petitioner/tenant/appellant is not occupying the said area.

The learned Counsel for the Revision Petitioner/appellant/tenant contends that the learned appellate authority has dismissed the MP. No. 90 of

2001 praying for appointment of Commissioner on the ground that dues is only 6 sq.ft., ignoring the common area of vacant land 132 feet which

was included by the landlord engineers report, which is not correct and that the appellate authority has also erred in coming to the conclusion that if

the appointment of Advocate Commissioner petition is allowed then the proceedings will get delayed and therefore, prayed for setting aside the

order dated 07.3.2001 passed by the learned appellate authority, VII Judge, Court of Small Causes, Chennai in MP. No. 90 of 2001.

The learned Counsel for the petitioner further placed reliance on the orders of this Court dated 12.8.2005 made in CRP. NPD. Nos. 285 and

477 of 2007 for the proposition that the Commissioner should be appointed and by virtue of the said order, according to him, the Commissioner

and surveyor were appointed. According to him, the orders passed in the aforesaid two CRPs for appointment of Commissioner in Surveyor will

squarely apply to the present case on hand. In CRP.NPD No. 285 and 477 of 2002, between P. Sivachandran and Ors. v. M.P. Purushotham,

this Court on 12.08.2005 has passed a common order after taking into consideration the principles laid down in the decisions, Ethirajulu Naidu v.

Hajee Abubaker and Sons 1964 [II] M.L.J. 98; respondent. Subbarajulu v. Sulaiman and Ors. 1982 [I] M.L.J. 349; Savani Transports Private

Ltd. v. N. Jamal Mohammed 1989 [I] L.W.172; Voora Mahalakshmamma Vs. C. Veera Reddy, and M.R. Easwaran Vs. C. Keppaiya Chettiar

and Others, , has inter-alia come to the conclusion that Rent Control Appellate Authority has not followed the procedures laid down u/s 4 of the

TN Act 18 of 1960 for fixing the fair rents in these cases and in that view of the matter remitted the matters back to the learned Rent Controller for

fresh disposal in accordance with law and in the light of the observations made and allowed the said Civil Revision Petitions. In the present case on

hand, admittedly the RCA. No. 4 of 1997 is pending on the file of the learned Appellate Authority, viz., VIII Judge, Court of Small Causes,

Chennai.

The learned Counsel for the respondents submits that the Petition for appointment of Commissioner is not maintainable either on law or on facts

and that Engineer was examined already on the side of the petitioner as well as the respondents and that report was filed and viewed in the

perspective. The appointment of Advocate Commissioner in Miscellaneous Petition is only projected to drag on the proceedings and prayed for

dismissing the said Miscellaneous Petition, since the same is vexatious.

While dismissing the MP. No. 90 of 2001 on 07.3.2001, the learned appellate authority, namely, VIII Judge, Court of Small Causes, Chennai

has inter alia observed that the dues is only 6 sq.ft. as stated by the petitioner/tenant and that both sides engineers submitted the report and the

Miscellaneous Petition praying for appointment of Advocate Commissioner is not necessary in lieu of discrepancy of only 6 sq.ft. and that further

proceedings will get delayed unnecessarily if the petition was allowed and finally, dismissed the said Miscellaneous Petition as not maintainable. As

against the said order of dismissal passed by the learned appellate authority, VIII Judge, Court of Small Causes, Chennai, in M.P. No. 90 of

2001, the present Civil Revision Petition has been filed by the tenant/revision petitioner.

The landlord/tenant Thiru. N.K. Srinivasan has filed his report dated 06.11.1995 and the same was marked as Ex.P1 before the learned Rent

Controller in the rent control proceedings. In the said landlord Engineer''s report, at page 2, it is mentioned that the land value building area is

544''0 and the vacant land in front measuring is 16''0 x 8''3"" = 132''0 and totally in all 676''0 sq.ft. and the said engineer was examined as Ex.

P.W. 1. The Revision Petitioner/tenant/appellant has also examined one civil Engineer, license surveyor before the learned rent controller as R.W.1

and his report was marked as Ex. R2.

It is not in dispute that both the landlord-engineer''s report Ex.P 1 dated 06.11.1995 and the tenant-engineer''s report Ex.R 2 dated 5.1.1996

are on record and on both sides, the engineers were examined as P.W. 1 and R.W. 1.

As a matter of fact, the appointment of Advocate Commissioner is only procedural in nature and also an interlocutory one. When the Ex.P 1

landlord-engineer''s report dated 6.11.1995 and Ex.R 1, tenant-engineer''s report dated 5.1.1996 are available on record, coupled with the

evidence of P.W. 1 and R.W. 1 and other documentary evidence, this Court is of the considered view that it is for the appellate authority to

analyse and appreciate the evidence on record in a proper perspective and to arrive at a right conclusion. To put it in a nutshell, whether the

common area was included or whether the tenant''s actual possession was only 538 sq.ft. and not 544 sq.ft as alleged, it is purely a question on

fact to be appreciated by the learned appellate authority at the time of hearing of the main R.C.A. No. 42 of 1997 pending on its file. The evidence

of both the Engineers and documentary evidence on record are very much available in the case, then it is otiose to for the tenant/petitioner to file

the M.P. No. 90 of 2001 praying for an appointment of Commissioner and the same is not perse maintainable in the eye of law. In the considered

opinion of this Court, the reason assigned by the learned appellate authority in dismissing the M.P. No. 90 of 2001 praying for appointment of

Commissioner that the said appointment is not necessary in lieu of discrepancy of 6 sq.ft. etc., is not correct.

In view of the foregoing discussions, this Court dismisses the C.R.P. NPD. No. 1145 of 2003 without cost and it is further observed by this

Court that it is for the learned appellate authority, VIII Judge, Court of Small Causes, Chennai to analyse and appreciate both the oral and

documentary evidence on record in proper perspective and to arrive at a conclusion and in that view of the matter, there is no scope for

interference by this Court and accordingly, the Civil Revision Petition is dismissed. The order passed by the learned Appellate Authority in MP.

No. 90/2001 dated 07.03.2001 is confirmed for the reasons assigned in this revision. There will be no order as to costs. Consequently connected

miscellaneous petition is also closed.

Since the RCA is of the year 1997, the learned Appellate Authority, viz., VIII Judge, Court of Small Causes, Chennai is directed to dispose of

the same within a period of six months from the date of receipt of a copy of this order.