Ganapathy Ammal vs Chandaresan

Abdul Hadi, J.—This review application is filed by the respondent in C.R.P. No. 2740 of 1993 and is against my order dated 25.11.1993 in the said civil revision petition. The petitioner is the landlady under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ''the Act'') and she filed R.C.O.P. No. 9 of 1990 on the file of the Rent Controller, Valliyur for eviction of the respondent tenant herein from the petition building, inter alia on the ground of demolition and reconstruction. In 1993 she filed I.A. No. 8 of 1993, where she sought for cancellation of the earlier report of the Advocate-Commissioner, regarding the condition of the building in question and sought for appointment of an engineer as Commissioner to report regarding the condition of the building. The said application was allowed. Aggrieved, the respondent herein filed the abovesaid civil revision petition, and by the above referred to order dated 25.11.1993 I set aside the order in I.A. No. 8 of 1993 and allowed the civil revision petition. Aggrieved by the said order dated 25.11.1993 this review petition has been filed by the landlady.

The only contention of Learned Counsel for the petitioner is that the abovesaid civil revision petition itself is not maintainable. But, this point was not argued when the civil revision petition was heard. However, Learned Counsel for the petitioner submits that since abovesaid civil revision petition itself is not maintainable on the ground that this Court has no jurisdiction to entertain the said civil revision petition, the said point could be urged in a review petition as there is thus an error apparent on the face of the record in the impugned order. In this connection, Learned Counsel for the petitioner relies on Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu Vs. Sri Rajah Lanka Venkata Rattamma Garu, . He also relies on Hameed v. Kanniammal (1981) I M.L.J. 477), where Ratnam, J. (as he then was) differed from Arunachalam v. Lt. Col. Srinivasan (1968) I M.L.J. 435) in the light of the Supreme Court decision in Central Bank of India Vs. Shri Gokal Chand, and held that a revision petition u/s 115 of the CPC would not lie against the dismissal of a petition to set aside an ex parte order of eviction, passed under the Act on failure to fulfil the condition to pay costs. The said Learned Counsel also points out that M.S. Hameed Vs. Kanniammal, came to the abovesaid conclusion also on the ground that the Rent Controller is not "any court subordinate to High Court", since the Rent Controller or the Appellate Authority under the Act are persona designata and are not courts stricto sensu. In this connection he also draws my attention to V. Syed Hanifa Vs. Muhammad Khalifulla, . Further, he also relies on Tikamchand Mithalal Jain Vs. M.R. Narasimhachari, , which also holds that an application made before the High Court u/s 24 C.P.C. for transfer of proceedings from one Rent Controller to another is not maintainable since the Rent Controller (or the Appellate Authority) is not a "Court subordinate to" "High Court or District Court" referred to in Section 24, C.P.C., but a persona designata.

On the other hand, Learned Counsel for the respondent relies on the above referred to judgment of Ramaprasada Rao, J. (as he then was) in (1968) I M.LJ.435 (Supra) and also submits that the reasoning of the Supreme Court decision in the above referred to Central Bank of India Vs. Shri Gokal Chand, will not apply to the present facts. He also relies on Raju Vs. Mohamadabi, which holds that the Rent Controller cannot be considered to be a persona designata relying on Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank Ltd. and Another, ). So, the said Learned Counsel submits that this Court has got jurisdiction to try the abovesaid civil revision petition and that therefore, the ground taken in the review petition that this review is maintainable in view of the abovesaid lack of jurisdiction is not sustainable.

I have considered the rival submissions. No doubt, as per AIR 1939 Mad 193 (supra), the error of law involving lack of jurisdiction is error apparent on the face of the record and could be corrected in a review petition. But the question that has to be decided in the present case is whether this Court has jurisdiction to hear the abovesaid Civil Revision Petition. If there is no such jurisdiction, the review would lie and the petitioner would succeed in setting aside the order passed in the said Civil Revision Petition, and thereby getting the order passed in I.A. No. 8 of 1993 confirmed. But if this Court has jurisdiction to try the said civil revision petition, this review petition has to be dismissed.

In (1981) I MLJ, 477 (Supra), as already mentioned, Ratnam, J., differed from the judgment of Ramprasada Rao, J., in (1968) I MLJ 435 (Supra) on the ground that the attention of Ramaprasada Rao, J., was not drawn to the judgment of Supreme Court in Central Bank of India Vs. Shri Gokal Chand, But, the conclusion reached, in the relevant passage in the abovesaid Supreme Court judgment, relied on by Ratnam, J., is that the order of the Rent Controller under the Delhi Rent Control Act, 1958, refusing to set aside an ex parte order, is subject to appeal to the Rent Control Tribunal. Similarly Ratnam, J., observes that the refusal of the Rent Controller (under the Tamil Nadu Act 18 of 1960) to set aside the ex parte order of eviction, (by the dismissal of the application to set aside the ex parte order for non-payment of cost within the time granted) was "an order which was subject to appeal to the Appellate Authority and, therefore, could not be revised u/s 115 of the Code of Civil Procedure". (Emphasis supplied). In other words, according to this reasoning, since the appeal remedy is there, section 115 of CPC cannot be invoked.

But, in the present case, admittedly, the appeal remedy is not available against the abovesaid order in I.A. No. 8 of 1993. So, the abovesaid reasoning of Ratnam, J., will not apply to the present case.

When I pointed out the above aspect, Learned Counsel for the petitioner drew my attention to the other reasoning of Ratnam, J., for coming to the conclusion that revision u/s 115 of the CPC is not available on the facts before him. That is found in paragraph 4 of his judgment. The relevant portion therein is as follows:

Section 115 of the CPC provides for the exercise of the powers of revision by this Court with reference to cases decided by any Court "subordinate to the High Court and in which no appeal lies thereto". It has been uniformity held that the Rent controller as well as the appellate Authority are persona designata and are not Courts stricto sensu and therefore the revisional jurisdiction u/s 115 of the CPC cannot be strictly invoked by a tenant with reference to matters arising out of orders passed by the Rent Controllers as well as appellate authorities.

In this connection, the Learned Counsel also drew my attention to paragraph 6 of the judgment of Ratnam, J., where an unreported judgment dated 17.8.1979 of Nalarajan, J., (as he then was) was referred to thus:-

The learned Judges (Natarajan, J.) held that no doubt the Rent Controller had been conferred powers of a civil Court u/s 18-A of the Act in matters relating to the appointment of a Commissioner in any proceedings pending before him, but that such conferment will not convert the Rent Controller into a civil Court and therefore the Rent Controller cannot be equated to a civil Court to enable the High Court to entertain a civil revision petition u/s 115 of the Code of Civil Procedure. It was also further pointed out by the learned Judge, after referring to the decision of the Supreme Court referred to already, that the remedy of the aggrieved party in such circumstances would be to ventilate his grievances regarding such an order in the appeal preferred by him against the final order passed by the Rent Controller.

In this connection, Learned Counsel for the petitioner also drew my attention to the above referred to V. Syed Hanifa Vs. Muhammad Khalifulla, and G. Lakshmi Ammal Vs. Elumalai Chettiar and Others, . The said Learned Counsel also points out that only in dealing with the question whether Section 5 of the Limitation Act would apply to the rent control appeals Raju Vs. Mohamadabi, and T.R. Kannan v. K. Govindan ( 1988 1 L.W.73), have held that the Rent Controller is a "Court" within the meaning of that term under the abovesaid Section 5. According to Learned Counsel, this latter decisions cannot be applied while considering the term "court subordinate to... High Court" within the meaning of that term u/s 115 C.P.C. I am unable to agree with this contention. No doubt Raju Vs. Mohamadabi, , decided by K.A. Swami, C.J., deals with the question under the abovesaid Section 5. But, it says only generally that the Rent Controller is a Court. It can''t be taken that the said decision is only with reference to the term "Court" under the abovesaid Section 5. The said decision also relies on the above referred to two Supreme Court decisions, viz The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, and Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank Ltd. and Another, . The relevant observation in 1993 (2) L.W. 17 is as follows:-

Therefore, the first question that has to be determined is as to whether the Rent Controller exercising the power under the Act, functions as a Court or not. The powers conferred upon the Rent Controller as contained in Ss. 5, 6, 14, 15 and 17 would go to show that the Rent Controller exercised the powers of a Court. He adjudicates the rights of the landlord and the tenant in respect of the premises governed by the Act. The proceedings before him are of civil nature involving civil rights. The decision of the Rent Controller is appealable to the Appellate Authority, which is a Judicial Authority. The order passed by the Rent Controller is executable, as if it were a decree. Therefore, it is clear that the Rent Controller cannot be considered to be a persona designata. Persona designata is one whose appointment is made not with the common designation of the post, but with reference to a person who is appointed as such. As pointed out by the Supreme Court, a persona designata is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character - See The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, Again, in Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank Ltd. and Another, it has been held that the Registrar who exercises the powers under S. 48 read with S. 6(2) of Bihar and Orissa Co-operative Societies Act, is a Court and not a persona designata. In order to determine whether he is a court or a persona designata, it has been pointed out by the Supreme Court in that case that the Registrar is not a persona designata, because the duties he discharges under the said Act, fall within the purview of the ordinary civil and revenue courts of the land. The Registrar has not merely the trappings of a court but in many respects, he is given the same power as one given to ordinary civil courts of the land by the CPC including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of courts mentioned in S. 151 of the Code of Civil Procedure. Under the Act in question, the Rent Controller adjudicates the civil rights of the parties, examines the parties, records the evidence of the witnesses that are produced and he is also empowered to summon the witnesses to give evidence. Therefore, he has got all the trappings of a civil court.

So, the correct view, as held in the above referred to 1988 1 L.W. 73 and Raju Vs. Mohamadabi, is that the Rent Controller and the Appellate Authority are not persona designata but only a Court not only for the purpose of Sec. 5 of the Limitation Act, but for other purposes as well.

Even earlier in Venkai Marban v. Dakshinamoorthy ((1981) I M.L.J. 275), V. Balasubramanyan, J., has held that the gist of the Supreme Court decision in The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, is that only those appointed by their proper names are persona designata that it would be a misnomer to regard as persona designata those who are appointed by reference to a class name or by a generic description of status or legal character and that in the face of the said Supreme Court decision all the earlier decisions of our High Court must be regarded as incorrectly rendered when they and that the Appellate Authority constituted u/s 23 of the Rent Control Act was persona designata. Further, even still easier in Rafeed Ahmed Sahib v. Istiaq Ahmed ((1975) II M.L.J. 45 B.S. Somasundaram, J., has held in the contest of Section 195(2) of the Code of Criminal Procedure that the Rent Controller and the Appellate Authority would come within the definition of the team ''court'' in the said Section 195(2), as these tribunal have far greater trappings of a Court man a Registrar or Sub-Registrar under the Indian Registration Act.

No doubt, Learned Counsel for the petitioner drew my attention to one passage in V. Syed Hanifa Vs. Muhammad Khalifulla, wherein the following observation is there:-

While there may be room for argument as to whether the Rent Controller is or is not a Court these can be no doubt that the Rent Controller is not a Civil Court Subordinate to the appellate jurisdiction of the High Court.

So, according to the contention of the said Learned Counsel, the Rent Controller is not a Civil Court, subordinate to High Court. But, the above said passage in V. Syed Hanifa Vs. Muhammad Khalifulla, cannot support the abovesaid contention. That passage only says that the Rent Controller is not a court subordinate to the appellate jurisdiction of the High Court. Rightly it has been held so since no appeal as such lies to the High Court direct from the Rent Controller''s order. But as per Section 115 of the Code of Civil Procedure, what has to be seen is whether the Rent Controller or the Appellate Authority, as the case may be, is a Court subordinate to High Court. Certainly it is so in the view I have taken as stated above. Once the correct view that the Rent Controller or the Appellate Authority is not persona designata but a Court, it follows that it is a Court subordinate to High Court. So, it is clear that the abovesaid civil revision petition has been rightly entertained in this Court.

The net result is, the review application fails and is dismissed.