Hidayathullah vs Appellate Authority (Rent Controller) III Judge, Court of Small Causes, Madras and Others

When the W. M. Ps. came up for final order, the counsel on both sides agreed for the disposal of the writ petition itself. Hence the writ petition

was taken up for disposal.

This petition is for the issue of a Writ of Mandamus directing the first respondent (Appellate Authority, Rent Control), III Judge, Court of Small

Causes, to entertain the appeal RCA No...of 1984 S. R. No. 23032 against the order in M. P. 863 of 1984 in E P. 948 of 1984 in HRC 812 of

1981, on the file of the IX Judge, Court of Small Causes, Madras and dispose of the same on merits.

2A. The facts leading to the filing of this writ petition briefly may be stated. The petitioner is a co-owner of the premises bearing Nos. 180 Anna

Pillai St, Madras 1, hereinafter called the suit premises. The 3rd respondent hereinafter called the tenant was a tenant in a portion of the premises

on a monthly rent of Rs. 40. The petitioner filed HRC 812 of 1981 for eviction of the tenant on the ground of willful default. The petitioner was

successful before the Rent Controller as well as before the Appellate Authority and ultimately in this court. Even though the tenant filed an

undertaking affidavit in this Court to peacefully deliver the property, he moved the Supreme Court by way of writ petition questioning the validity of

Act 18 of 1960, The Supreme Court while dismissing the writ petition, granted time to the tenant to vacate on his paying the entire arrears due by

then within a month from the date of the order. According to the petitioner, the tenant had not complied with the condition imposed by the

Supreme Court for continuing in the suit premises. Therefore, the petitioner filed E. P. 948 of 1984 and got an order for delivery of possession of

the suit premises and factually, delivery also was effected on 19-10-1984.

After the petitioner got possession of the suit premises, he had put up staircase in the portion of the property and also rolling shutters and has also

made improvements by demolishing the wall and expanding the shop. After completing the improvements, he had inducted one Rajamani as a

tenant. While so, the tenant had filed M. P. 863 of 1984 before the second respondent-Rent Controller for an order for redelivery. This

application was filed by the tenant under S. 144, C.P.C. Though the petitioner objected and opposed the application for redelivery, the second

respondent ordered redelivery. Aggrieved by that order of redelivery, the petitioner preferred an appeal to the first respondent Appellate Authority

and also filed a petition for stay of restitution of possession. The Appellate Authority, without going into the merits of the case, rejected the appeal

which was not numbered on the ground that the appeal was not maintainable. According to the Appellate Authority, S. 18(2) of Act 18 of 1960 is

a bar for entertaining the appeal as the order passed by the Rent Controller ordering restitution, will fall under S. 18(l) of the Act and not

independent of that.

Aggrieved by the order of Appellate Authority, the present writ petition has been filed.

The tenant has filed a counter-affidavit denying the various allegations made in the affidavit filed in support of the writ petition by contending that

the petitioner without bringing to the notice of the Rent Controller about the order of the Supreme Court, had obtained delivery order and got

possession by illegal means and, therefore, the Rent Controller was justified in ordering restitution as prayed for by the tenant. It is also stated in

the counter-affidavit that the delivery order was an ex parte one and the delivery effected was also paper delivery and subsequent to that forcible

possession was taken by the petitioner with the help of police. Taking all these factors into consideration, the Rent Controller ordered restitution as

prayed for by the tenant and that order will come only under S. 18(l) of the Act. Therefore, no appeal will he under S. 18(2) of the Act, to the

Appellate Authority and the Appellate Authority was therefore right in holding that the appeal was not maintainable.

Mr. M. S. Umapathy, learned counsel for the petitioner, submitted that the Appellate Authority was not right in holding that the order passed by

the Rent Controller under S. 144, C.P.C. will fall under S. 18(l) of the Act. He also relied on a Division Bench judgment of this Court in Fathima

Automobiles Vs. P.K.P. Nair and Another, .

Mr. S. Doraiswami, learned counsel for the 3rd respondent contending contra submitted that the order passed by the Rent Controller will

certainly come within the purview of S. 18(l) of the Rent Control Act, and, therefore, S. 18(2) is a bar for filing an appeal before the Appellate

Authority. To support his argument that an application for restitution under S. 144, C.P.C. is an application for execution of a decree and,

therefore, the order passed on such an application, will come under S. 18(l) of the Act, the learned counsel relied on two judgments one of the

Supreme Court and the other of this court. In Maqbool Alam Khan Vs. Mst. Khodaija and Others, and Mohammed Hussain v. A. K. N. Pitchai

(1970) 2 Mad 663. He also relied on another judgment of this Court in Purushotham Chettiar v. Pushkraj Jain, 1980 TLNJ 155.

I am not going to deal with the factual aspects, namely, whether the tenant has complied with the conditions imposed by the Supreme Court for

continuing the tenancy for certain period or not, as the impugned order was passed not on merits, but on the ground that the appeal itself was not

maintainable.

After a careful consideration of the rival contentions I feel that the judgment of the Division Bench in Fathima Automobiles Vs. P.K.P. Nair and

Another, supports the contention of the learned counsel for the petitioner. In that judgment, the Division Bench had considered the scope of the

order passed by the Rent Controller, invoking the provisions of Order 21, Rule 97, C.P.C. and held that an order passed under Order 21, Rule

97 C.P.C. will not come within the scope of S. 18(l) of the Rent Control Act. The relevant passage in that judgment may be usefully extracted (at

Pp. 320-21)

S. 18 of the Act provides that every order made under Ss. 10, 14, 15, 16 and 17, and every order passed on appeal under S. 23 or revision

under S. 25, shaft 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 a civil Court Subsec. (2) shall not be subject to any appeal or revision. The object of S. 18(2) is to see that unlike an order of eviction

which could be subject to appeal under S. 23 or revision under S. 25, no appeal or revision would lie against an order passed under the section

directing delivery in execution under sub-sec. (1) of S. 18 of the Act. S. 25 of the Act provides for an appeal to an appellate authority constituted

under the Act against any order passed by the Rent Controller. It is significant to note that S. 23 does not refer to an order passed under Ss. 10,

14, 15, 16 and 17. Thus, a close reading of S. 18 and S. 23, indicates that there may be orders passed by the Rent Controller which may not fall

within S. 18(l) and that those orders may be subject to appeal under S. 23 of the Act. It is further significant to note that S. 23(l)(b) confers right of

appeal to ''any person aggrieved'' by an order passed by the Rent Controller. The use of expression any person in S. 23(l)(b) seems to suggest that

it is not only the parties to the eviction order but also persons affected by any order passed by the Rent Controller could file an appeal. If the filing

of an appeal under S. 23 is contemplated only by the parties to the eviction proceeding, then the Legislature would have used the words ''any party

aggrieved'' instead of ''any person aggrieved''. The use of the general expression like ''person'' would indicate that, as already stated, an. appeal

could be maintained not only by a party to the eviction proceeding but also by a person who feels aggrieved by any order passed by the

Controller. In this case, the executing Court has passed an order directing the tenants to deliver possession of the property in pursuance of the

order of eviction. That order alone can be taken to be an order passed under S. 18(l). Subsequent to such an order the appellant herein has

obstructed the delivery and an application under Or. 21, Rule 97, CPC has been filed, and an order has been passed by the Rent Controller on

that application. The order passed by the Rent Controller in an application under Or. 21 Rule 97 cannot, in our view, be taken to be an order

passed under S. 18(l) of the Act. That should be taken to be an independent order passed under the Civil Procedure Code- and not under the

Rent Control Act. Though the order is actually passed by the Rent Controller in an application under Order 21 Rule 97 CPC, that should be taken

to have been passed by him in exercise of the powers of a civil Court as provided in S. 18(l) of the Act. We are not therefore in a position to

construe the order passed by the Rent Controller under S. 18(l) so that the bar under S. 18(2) could be invoked. S. 18(2) bars an appeal or

revision only in respect of an order passed in execution under sub-sec (1). But that section will not be a bar for an appeal"" (underlining to give

emphasis in mine)*.

From the above extract, it is clear that the Division Bench has clearly ruled that only orders passed for executing the orders passed under Ss. 10,

14, 15, 16 and 17 and every order passed on appeal under S. 23 or on revision under S. 25 alone will come within the scope of S. 18(l) of the

Rent Control Act. S. 18 of the Act reads as follows-

Execution of orders : (1) Every order made under Ss. 10, 14, 15, 16 and 17 and every order passed on appeal under S. 23 or on revision

under S. 25 shall 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 a civil court.

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

Applying the principles laid down in the judgment of the Division Bench, I am inclined to hold that in this case the order passed in execution of the

order of eviction alone will come within the scope of S. 18(l) of the Act, and not the order passed on the application of the tenant under S. 144 C.

P. C. No doubt, the judgment of the Supreme Court and another judgment of this Court referred to above support the contention of the learned

counsel for the tenant that an application under S. 144 C. P. C. is to be construed as an application for execution. But that may be for the purpose

of proceedings under the Code of Civil Procedure. That cannot be invoked to construe the scope of S. 18(2) of the Rent Control Act, in the light

of the observations of the judgment of the Division Bench extracted above. In this case, we will have to see whether the order passed on an

application under S. 144 CPC will be an order passed in execution under sub-sec (1) of S. 18 of the Rent Control Act. In my view, and on my

understanding of the principles laid down in the judgment of the Division Bench, the only order that will come within the scope of S. 18(l) will be an

order passed in execution of the order of eviction and nothing else. Therefore, the judgment relied on by the learned counsel for the third

respondent cannot be usefully applied to the facts of this case. Another judgment relied on by the learned counsel for the third respondent in

Purushotharn Chettiar v. Pushkaraj Jain 1980 T L N J 155 prima facie appears to support his arguments. In that judgment, the learned Judge has

held that an order passed by the Rent Controller on an application under S. 47 CPC will come within the scope of S. 18(l) of the Rent Control Act

and therefore S. 18(2) of the Act will be a bar to file a revision in the High Court and on that ground, dismissed the revision petition as not

maintainable. As between this judgment and the Division Bench judgment, I am bound by the Division Bench judgment and therefore have to

follow the principles laid down in the latter Division Bench judgment. On that ground, I hold the judgment in Purushotharn Chettiar v. Pushkaraj

Jain (supra) is also not helpful to the third respondent.

On the view that I have taken that the order passed by the Rent Controller on the application under S. 144 CPC will not come within the scope

of S. 18(l) of the Rent Control Act, and consequently S. 18(2) of the Act is not a bar to file an appeal to the appellate authority, the impugned

order of the appellate authority declining to take the appeal on file cannot be sustained. Consequently the impugned order of the appellate authority

is quashed and the appellate authority is directed to take on its file the appeal and dispose of the same on merits within one month from the date of

receipt of this order. The injunction will continue for another two weeks. In the meanwhile, the petitioner must move the appellate authority for

continuing the injunction. There will be no order as to costs.

Ordered accordingly.