Lakshmiammal and another vs V.K. Sivasubramaniam

Ratnam, J.—This is a revision at the instance of the legal representatives of the deceased tenant in R.C.O.P. No. 506 of 1976 filed by the respondent herein for an order of eviction under S.10 (2) (1) and 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as the Act). The respondent initiated proceedings for an order of eviction against one K.P. Subramanian who was originally a tenant in occupation of the premises. During the pendency of the proceedings, K.P. Subramanian was reported to have died on 2nd September, 1978 and the respondent claimed that he became aware of the death of K.P. Subramanian only on 7th September, 1978, and therefore the respondent filed an application in I.A. No. 254 of 1978 in R.C.O.P. 506 of 1978 for impleading the petitioners herein as the legal representatives of deceased Subramanian with a view to further prosecute the proceedings for eviction initiated by him. That application was resisted by the petitioner herein on the ground that K.P. Subramanian died on 1st September 1978, and when the application for eviction was posted 2nd September, 1978 that fact was reported to the Court and therefore the respondent had knowledge of the death of Subramanian even then and the application for impleading the petitioners as the legal representatives was filed after the period of limitation was over and that such an application without impleading the other heirs of deceased Subramanian is also not maintainable. The learned District Munsif, Coimbatore, who enquired into this application found that though the death of K.P. Subramanian might have been reported before Court on 2nd September, 1978, yet, it had not been established that the, respondent, is a permanent resident of Madurai, and had become aware of the death of Subramanian even on that date and therefore there was nothing improbable in the claim of the respondent that he became aware of the death of K.P. Subramanian only on 7th September, 1978 and the filing of the application on 5th October, 1978 within 30 days from the date of the knowledge of the death of K.P. Subramanian would be quite in order. It was also further found that even on the footing that the respondent came to know of the death of K.P. Subramanian on 2nd September, 1978, there was only a delay of three days in filing the application to bring on record the legal representatives of the deceased Subramanian and that could be excused having regard to the circumstances that the respondent is a permanent resident of Madurai. As regards the objection that there are other legal representatives who have to be impleaded, the Rent Controller held that they are not shown to be in possession of the demised premises and therefore need not be impleaded as parties to the application for eviction. Consequent to these conclusions, the application filed by the respondent to implead the petitioners as the legal representatives of deceased Subramanian was ordered. Aggrieved by this, the petitioners preferred an appeal in R.C.A. No. 144 of 1979 before the Appellate Authority (Subordinate Judge, Coimbatore). The Appellate Authority held that the Rent Controller was a functionary under the provisions of the Act with inherent powers and that there was no inordinate delay in bringing on record the legal representatives of deceased Subramanian and that in such circumstances the Rent Controller exercised his powers in bringing on record the petitioners as legal representatives rightly, and therefore no ground for interfering with that order had been made out. On this conclusion, the order of the Rent Controller impleading the petitioners as legal representatives of deceased Subramanian was upheld and the appeal was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

Mr. S. Palaniswami, the learned counsel for the petitioners contends that the fact that K.P. Subramanian, the original tenant died was brought to the notice of the court even on 2nd September, 1978 and the application for bringing on record the petitioners as legal representatives was field on 5th October, 1978, long after the expiry of the period of 30 days provided for that purpose and that application was, therefore, out of time. It is also the further contention of the learned counsel for the petitioners that the powers under S.5 of the Limitation Act, 1963 cannot be exercised by the Rent Controller or by the Appellate Authority and therefore the application filed by the respondent to bring on record the petitioners as the legal representatives of deceased K.P. Subramanian should have been dismissed by the courts below. On the other hand, the learned counsel for the respondent contends that it is not in dispute that the respondent is resident of Madurai and even on the footing that the factum of the death of K.P. Subramanian was made available to the court on 2nd September, 1978, that does not mean that the respondent immediately became aware of it and the probabilities are such that only after the counsel for the respondent communicated it to the respondent, he became aware of the same and therefore, the respondent became aware of the death of K.P. Subramanian only on 7th September, 1978 and therefore the application to bring on record the legal representatives filed by the respondent on 5th October, 1978, would be well within time, the same having been filed within 30 days from the date of knowledge of the death of the tenant.

It may be that the death of K.P. Subramanian, the original tenant was brought to the notice of the court even on 2nd September, 1978. But even so, it is not established that the respondent became immediately aware of the death of K.P. Subramanian. It is not disputed that the respondent is a permanent resident of Madurai. If that is so in the absence of anything to establish that the respondent was present in court on 2nd September, 1978 and therefore he became aware of the death of the tenant even on that date, it is not improbable that the respondent had known about the death of the tenant only through his counsel some time after the death was reported to court. The definite stand taken by the respondent in the affidavit filed in support of I.A. No. 254 of 1978 is that the death of Subramanian was reported on 2nd September, 1978 of which he became aware on 7th September, 1978 only. It has not been, in any manner, established that the respondent became aware of the death of Subramanian earlier to 7th September, 1978. Rule 25 of the Rules framed under the Act provides that every application for making the legal representative or representatives of a deceased person, party to a proceeding under the Act, shall be preferred within one month from the date of the death of the person concerned or the date of having knowledge of the death of the person concerned in the instant case, as already stated, the petition has been preferred within one month from the date of knowledge of the respondent as regards the death of K.P. Subramanian. Under these circumstances, the application filed by the respondent to bring on record the petitioners as legal representatives of the deceased K.P. Subramanian was perfectly in time and rightly ordered as well.

There is yet another manner in which the matter might be viewed. The application filed by the respondent herein was only to bring on record the petitioners as the legal representatives of deceased K.P. Subramanian in order to enable the respondent to assist the further prosecution of the petition for eviction now pending and this had been done only with a view to regulate the procedure and hence does not, in any manner, affect any right or liability of the petitioners. In the Central Bank of India Ltd. v. Gokal Chand 1967-2-S.C.J. 828 the question of the maintainability of an appeal against an interlocutory order under the provisions of Delhi Rent Control Act came up for consideration before the Supreme Court. In that case, in a pending application for eviction, the tenant made an application for the appointment of a Commissioner to visit the property in question and also to prepare a plan in relation to the premises. That application was rejected by the Rent Controller against which an appeal, was filed to the appropriate Appellate Authority who rejected the appeal holding that no appeal lay from the order of the Rent Controller under S.38 (1) of the Delhi Rent Control Act, 1958. The High Court also agreed with the decision of the tribunal. On appeal, by special leave, the Supreme Court had to consider the question whether an appeal lay to the Tribunal under S.38 (1) of the Delhi Rent Control Act. S.38 (1) of the Act read as under--

An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the official Gazette.

The Supreme Court while interpreting S.38 (1) of the Act, referred to above, was of the view, that a right of appeal is given to a party who is aggrieved by some order which affects his right or liability and that in the context of S.38 (1), the words ''every order of the Controller made under this Act, do not include merely procedural interlocutory orders not affecting the rights and liabilities of the party and therefore they cannot be appealed against. In this connection, the Supreme Court stated thus:--

In a pending proceeding, the Controller may pass many interlocutory orders under Ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or a relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties, the prosecution of their cases in the pending proceedings; they regulate the procedure only and do not affect any right or liability of the parties. The Legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S. 37 (2) is an order passed under the Act and is subject to appeal under S. 38 (1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside on ex parte order is subject to appeal to the Rent Control Tribunal.

Ultimately, the Supreme Court held that the order refusing to issue a commission for inspection and preparation of the plan was mere procedural order not affecting the right or liability of the party and merely constituted a step for assisting the parties to prosecute their case and therefore was not appealable. To similar effect is the decision in Bant Singh Gill v. Shanti Devi 1968-1-S.C.J. 370. The question that arose there was whether the rejection of an application to record the abatement of the suit and the continuance of the suit was an order of such a nature against which an appeal could be filed under S.34 of the Delhi and Ajmer Rent Control Act, 1952. It was contended before the Supreme Court that the word ''order'' is used in S.34 without any limitations with the exception that it must be an order of a court passed under Act, 1952. Repelling this the Supreme Court referred to the decision in the Central Bank of India Ltd v. Gokalchand 1967 S.C. 799=1967-2-S.C.J. 828 and observed as follows-- All that was done by the application presented by the appellant on the 13th March, 1961 was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of S.50 (2) of the Act of 1958. The Court went into that issue and decided it against the appellant. If the decision had been in favour of the appellant and the suit had been dismissed, no doubt, there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ramcharandas v. Hirachand AIR 1945 Lah 298 . On the other hand, if, as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the rights or liabilities of the parties to the suit. The rights and liabilities have yet to be decided after full trial has been gone through. The decision by the court is only in the nature of a finding on a preliminary issue on which would depend the maintainability of the suit. Such a finding cannot be held to be an order for purposes of S. 34 of the Act of 1952, and, consequently, no appeal against such an order would be maintainable.

The order in the present case is also merely procedural in that it assists the respondent to continue the proceeding for eviction already initiated by him and does not in any manner affect any of the rights of the petitioner. Consequently, it must be held that the appeal filed by the petitioners before the appellate authority was not competent and consequently the civil revision petition would also equally be incompetent. Even so, since it has already been held that the respondent had taken necessary steps to bring on record the petitioners within time, no case for interference with the order of the Rent Controller is made out. The order of the Rent Controller is, therefore, perfectly correct and does not merit any interference. The Civil revision petition fails and is dismissed. No Costs.