Jupitor Traders and Others vs A.T. Sankar and Another

Srinivasan, J.—The respondents herein filed R.C.O.P. No. 3336 of 1984 for fixation of fair rent. In the original petition, M/s. Jupitor

Traders, a partnership firm was the only respondent. The Rent Controller by order dated 27.2.1986 fixed the fair rent at Rs. 2,333 per mensem.

Both parties were aggrieved by that order. The tenant filed R.C.A. No. 300 of 1986 and the landlords filed R.C.A. No. 371 of 1986 and when

the appeals were pending, the landlords filed an application in M.P. No. 1255 of 1986 for impleading the partners of M/s. Jupitor Traders as

parties to the appeal. That application was made because of the ruling of the Supreme Court in Chhotelal Pyarelal, The Partnership Firm and

Others Vs. Shikarchand, , in which the Apex Court held that an application for eviction would not be maintainable against a firm in the firm''s name,

as the CPC was not applicable to proceedings under the Rent Control order of the Central Provinces. The Supreme Court however had pointed

out in that judgment that the non-joinder of the partners by itself would not result in the dismissal of the application filed by the landlord, as it would

be merely a case of mis-description and it could be corrected at any stage of the proceedings. The court observed that there can be no doubt that

the partners of the firm were before the court, though in a wrong name.

The application was ordered by the appellate authority on 31.3.1987 and the partners of the firm who are petitioners 2 to 5 herein, were

impleaded in the appeals. The appeals were heard in 1989. The appellate authority passed a common order on 31.10.1989. It is a curious order

which cannot be fitted with any description known to law. The first sentence of the order reads that the appeals were allowed. Then, a direction to

the landlords is given to implead the partners of the tenant firm as parties to the original petition in the court of the Rent Controller and amend the

cause title accordingly. Then, it is stated that the Rent Controller shall take into account the pleadings and evidence of such partners and pass a

fresh order and forward the same within a period of two months to the appellate authority. A time limit was fixed for the amendment of the original

petition by the landlords. Both the parties were directed to appear before the Rent Controller on 16.11.1989. They were directed to co-operate

with the Rent Controller to complete the matter at an early date.

The order cannot be treated as an order of remand, as the appellate authority has not chosen to set aside the order of the Rent Controller made

earlier fixing the fair rent at Rs. 2,333. The fact that he has directed the Rent Controller to pass a fresh order and send the same lo him within a

period of two months, indicates definitely that he is only calling for a finding from the Rent Controller. Obviously, the appellate authority expected

the partners to file fresh pleadings and adduce fresh evidence on the basis of which he directed the Rent Controller to give a fresh finding. But the

first sentence of the order reads as if the appeals were allowed. Reading the entire order, the only possible interpretation that can be given is that

the order is one calling for a finding from the Rent Controller and that it does not dispose of the appeals on the file of the Appellate Authority once

and for all.

Before the Rent Controller, a fresh additional counter-statement was filed by the partners of the tenant firm on 28.8.1990, but, no further

evidence was adduced by either party. Inspite of that, the Rent Controller proceeded to consider the evidence and passed an order on 17.9.1990

fixing the fair rent at Rs. 1,462 per mensem. He purported to pass a judgment and decree as if the matter was before him on remand.

The petitioners herein filed R.C.A. No. 129 of 1991 challenging the order of the Rent Controller dated 17.9.1990. The respondents did not

prefer an appeal at that time, but, they claim to have filed an appeal with an application for condo nation of delay in filing the same long afterwards,

i.e., on 22.3.1991. But even before that, the respondents filed M.P. No. 302 of 1991 under the CPC and Section 23(3) of the Tamil Nadu

Buildings (Lease and Rent Control) Act and Rule 28(7) of the Rules framed under the Act. The prayer in the petition is to review the common

order passed by the appellate authority on 31.10.1989 and give a date for hearing of R.C.A. Nos. 300 and 371 of 1986 for considering the

propriety, regularity and correctness of order passed by the Trial Judge on 17.9.1990 in R.C.O.P. No. 3336 of 1984. In the affidavit filed in

support of the petition, it is stated that the appellate authority had no jurisdiction to remand the rent control petition to the trial court for fresh

disposal and it had jurisdiction only to call for a finding by retaining the appeals on its file. It is stated that there is a error apparent on the record

committed by the appellate authority and it should be set right by the court.

That application was opposed by the petitioners herein. The appellate authority passed an order on 3.5.1991 allowing the application. He has

expressly viewed that the appeals ought to have been retained on its file as there was a direction to the Rent Controller to send the order to the

appellate authority within two months from 31.10.1989, on which date the appellate authority made the order in question. He has referred to the

pendency of R.C.A. No. 129 of 1991 and directed that all the three appeals, viz., R.C.A. Nos. 300 and 371 of 1986 and 129 of 1991 should be

heard together and disposed of together. Aggrieved by the said order, the petitioners have preferred these revision petitions.

The contention urged by learned Counsel for the petitioners is that the appellate authority has no power of review, as there is no specific

provision in Tamil Nadu Buildings (Lease and Rent Control) Act empowering the appellate authority to grant a review. It is also contended that the

appellate authority being a statutory tribunal has no inherent power of review and the order which is sought to be revised, it sustainable in law,

inasmuch as it has chosen to review the earlier order dated 31.10.1989 allowing the appeals and remanding the matter to the Rent Controller for

fresh disposal. It is the contention of learned Counsel for the petitioners that the order of the appellate authority dated 31.10.1989 was

undoubtedly an order of remand and if the landlords were aggrieved thereby, they ought to have challenged the same by a revision in this Court

and they have no right to file a petition for review before the appellate authority itself.

In support of his contentions, learned Counsel refers to the following rulings:

(i) Ramachandra v. Beero Pollai AIR 1936 Mad. 531, (ii) S.J.S. Fernandes Vs. V. Ranganayakulu Chetty, , (iii) Patel Narshi Thakershi and

Others Vs. Shri Pradyumansinghji Arjunsinghji, , (iv) P. Satyanarayana Vs. The Land Reforms Tribunal and Others, , (v) Dosky Machado Vs.

Francis Gomes, . In those cases, it has been held that a court has no inherent power of review and it has to be conferred by a statue expressly or

by necessary implication.

On the other hand, learned Counsel for the respondents places reliance on the judgment of Justice Kader in Collector of Madras v. G.

Logeswara Rao 99 L.W. 432, in which the learned Judge has considered the power of review of the Rent Controller and the appellate authority

under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. He rejected the contention of the petitioner before him and held

that the Authorities under the Act had an inherent power to review their own orders with a view to correcting patent or obvious mistakes in order

to advance the ends of justice and redress a wrong.

Reliance is also placed by learned Counsel for the respondents on a judgment of a Division Bench of this Court In Re. S.N. Komaraswami

Gounden (1951) 1 M.L.J. 422. The Division Bench in that case held that though Section 151, C.P.C. by itself would not apply to proceedings

under the Act, a quasi-judicial tribunal like the Rent Controller or the appellate tribunal had an inherent power to set right mistakes made by

inadvertence so long as the amendment did not amount to a review of the adjudication already made.

My attention is also drawn to a judgment of Justice Padmanabhan in T.S. Pichaiya v. Rent Controller, Tuticorin (1983) 1 M.L.J. 18. The

learned Judge held in that case that an application for restitution was an application for execution and the Rent Controller had the power to order

restitution. He relied on the principle that an act of court shall prejudice no man, as found in the latin maxim, actus curiae neminem gravabit.

It is held by a Division Bench of this Court in Natarajan v. State of Madras ILR 1960 Mad. 449, that in order to render justice, all statutory

tribunals, so long as they exercise judicial functions should be held to possess inherent powers to review their judgments, where due cause is

shown.

I do not think it necessary to refer to the other judgments cited by the counsel on both sides, as in my view they are not relevant for the present

case. I do not also propose to consider the question whether the Rent Controller or the appellate authority has an inherent power of review in a

matter arising under the Act. In this case, it is not necessary to decide that question. I have stated already that the order dated 31.10.1989 passed

by the appellate authority is not one which disposed of the appeals once and for all. The order did not deal with the merits of the appeals. It only

directed the impleading of the partners of the tenant firm before the Rent Controller and called upon the Rent Controller to give a fresh finding on

the basis of additional pleadings and evidence which maybe adduced by the parties. There was no discussion of the merits of the appeals. Nor was

there any finding setting aside the finding given by the Rent Controller on the amount of fair rent to be fixed for the building. Hence the appeals

R.C. A.Nos.300 and 371 of 1986 continue to be pending in the eye of law on the file of the appellate authority and they require to be disposed of

in accordance with law. The petitioner filed by the respondents for review was only a reminder to the court that appeals R.C.A. Nos. 300 and 371

of 1986 were pending. Really, a petition was unnecessary and a memo would have served the purpose.

There is no doubt whatever that the two appeals R.C.A. Nos. 300 and 371 of 1986 are pending before the appellate authority and the Rent

Controller was directed to submit his finding to the appellate authority within a period of two months. Hence, the fresh order passed by the Rent

Controller on 17.9.1990 could only be considered as a finding given by the Rent Controller, though on the basis of evidence already on record. It

was open to both parties to challenge the finding by filing memorandum of objections. Instead of filing memorandum of objections, the petitioners

have chosen to file a regular appeal treating the finding of the Rent Controller fixing the fair rent. Thus, R.C.A. No. 129 of 1991 has come to be

pending. Though it is in the form of a regular appeal, it can be treated as memoranda of objections filed by the tenants to the finding of the Rent

Controller and the appellate authority can consider the same as such.

Similarly, the appeal filed by the respondents can also treated as a memorandum of objections filed by the respondents to the finding of the

Rent Controller. As it is only a memorandum of objections, there is no question of limitation or condonation of delay in filing the same. The

memorandum of appeal filed by the respondents before the appellate authority shall be treated as memorandum of objections filed by the

respondents and considered by the appellate authority along with the appeals, R.C.A. Nos. 300 and 371 of 1986.

The direction given by the appellate authority is to hear all the three appeals together and dispose of the same together. I do not find any error

in the said direction and it has to be upheld.

I must also point out that if ultimately the appellate authority passes an order in the appeals, it is not necessary for the parties to file different

revision petition against each of the appeals. If the tenants are aggrieved, they can file one revision petition against the said common order and

similarly, if the landlords are aggrieved, they can file one revision petition against the said common order.

In the result, the civil revision petitions are dismissed. There will be no order as to costs.

As the matter has been pending for 8 years by now from the institution of the proceedings for fixation of fair rent, the appellate authority is

directed to dispose of the appeals on its file on or before 31.7.1992.