Kanagarathnammal vs H. Sama Rao

Rajamannar, C.J.—The petitioner filed an application before the Additional Rent Controller, Mathurai, for eviction of the respondent, who

was her tenant of premises No. 132. West Masi Street, Mathurai. The following order was passed on that application on 22nd February, 1951:

The parties agree and endorse in the application that the respondent may be given six months time to vacate and give possession of the building. So

the respondent is granted six months time from this date to vacate the building described in the application and put the petitioner in possession of

the same.

Against this order, the tenant-respondent filed an appeal to the appellate authority, who was the Principal Subordinate Judge of Mathurai. The

appeal was dismissed on a preliminary objection as regards its maintainability on the ground that the order appealed against was passed with the

consent of the parties. The tenant thereupon filed a revision petition to the District Court under S. 12-B of the Act, which had been added to the

original Act by the Amendment Act of 1951. The learned District Judge allowed the petition, set aside the order of the appellate authority

dismissing the appeal and remanded the matter to the appellate authority for fresh consideration of a new question raised on behalf of the tenant

based on the provision of the Amending Act VIII of 1951, by which a new Sub-Section was added in S. 7, namely, S.7 (3-A). The learned Judge

held that an appeal lay against the order of the Rent Controller. This conclusion was based on the fact that the provisions of the CPC did not apply

to proceedings under the Rent Control Act, This revision petition has been filed to set aside the order of the District Judge. This revision petition

can be disposed of on the short ground that no appeal lay against an order of the Rent Controller passed on consent of parties. We agree with the

learned District Judge that the provisions of the CPC do not as such apply to proceedings under the Rent Control Act. The provision under the

Rent Control Act conferring a right of appeal against an order passed by the Rent Controller is contained in S. 12 (1) (b) of that Act, which runs as

follows:

Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the

appellate authority having jurisdiction.

A party who has consented to an order cannot in law be deemed to be a ""person aggrieved"" by such an order, It is evidently because of this

well established position that the respondent alleged fraud and other circumstances vitiating the order purporting to have been passed by consent.

It may be that if the respondent had established fraud or undue influence or such other vitiating circumstance, the consent order might have been set

aside either by the Rent Controller himself or by the Appellate authority. But there was no attempt to prove any such circumstance. The appeal

was, therefore, not maintainable. The learned Subordinate Judge held that an appeal was not maintainable. The learned District Judge completely

overlooked this aspect of the matter and has held otherwise.

On 1st May 1951, the Amendment Act of 1951 came into force. It inter alia introduced a new provision in S. 7, namely, S. 7 (3 A) of which

the material clause is Cl. (i). It is as follows:

No order for eviction shall be passed under Sub-S. (3) - (i) against any tenant who is engaged in any employment or class of employment notified

by the State Government as an essential service for the purposes this sub-section, unless the landlord is himself engaged in any employment or

class of employment which has been so notified;

Though this new provision was introduced subsequent to the filing of the application for eviction in this case the contention on behalf of the

tenant was that the new provision would apply to proceedings pending when the Amending Act came into force. In support of this contention,

reliance was placed on S. 20 of the Amendment Act (VIII of 1951), which provides as follows:

Any application made, appeal preferred or other proceeding instituted under the said Act and pending at the commencement of this Act shall be

disposed of as if this Act had been in force at the time when such application, appeal or proceeding was made, preferred or instituted.

The learned Judge was of opinion that by reason of this section, the new provision would apply to the present case. We agree with the learned

Judge that if there was a valid appeal or other proceeding pending on the date of the commencement of the Amendment Act, then the new

provision would apply, and the appeal or other proceeding should be disposed of in accordance with the new provision, if it otherwise applied. But

here, there was no valid appeal pending, as we have held that the appeal was not competent. It follows that there was no justification for

remanding the matter to the appellate authority.

In the result, the civil revision petition is allowed and the order of the learned District Judge is set aside and the order of the learned Subordinate

Judge is restored with costs here and before the District Judge. This revision petition was directed to be posted before a Division Bench because

during the course of the argument before one of us who originally heard it, a decision of Basheer Ahmed Sayeed, J., in Woodman v. Mrs. Regina

Rajan (1952) 1 M.L.J. 628 was cited and relied on. In that case, after a final order had been passed by the Rent Controller and an execution

application was pending, the Amendment Act came into force. The tenant raised a plea that he could not be evicted in view of the new provision

contained in S. 7 (3-A) introduced by the Amendment Act. It was held by the learned Judge that the plea was good. It is not necessary to discuss

this decision for the purpose of this civil revision petition in the view we have taken that the appeal to the learned Subordinate Judge was not

maintainable. As the decision has been cited to us, we must say that it appears to require reconsideration. The new provision was applied by the

learned Judge in that case at the stage of execution of a final order by the Rent Controller. In terms, S. 7 (3-A) will not apply to execution

proceeding? All that it says is that no order for eviction shall be passed under Sub-S. (3), and not that no eviction shall be made. It is, however,

not necessary to deal further with this decision.