Mohammed Isaac vs P. Shantilal Jain and Another

Ratnam, J.—The petitioner, a tenant in occupation of door No. 212 and 213, Kamarajar Street, Villupuram, succeeded in the application

R.C.O.P. 3 of 1986, on the file of the Rent Controller (District Munsif) Villupuram, filed by the respondent herein, praying for an order of eviction,

under S.10(3) (a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. (Act 18 of 1960) as amended by Act 23 of 1973, (hereinafter

referred to as the Act). An appeal was preferred by the respondents herein in R.C A. 25 of 1987 under S.23 (2) of the Act before the appellate

authority (Subordinate Judge, Villupuram), and that authority, purporting to deal with that under S.23 (3) of the Act, allowed the appeal and

ordered the eviction of the petitioner, the propriety and legality of which is questioned by the tenant in this civil revision petition under S.25 of the

Act. The principal contention of the learned counsel for the petitioner Mr. S.V. Jayaraman, is that under S. 23 (a) of the Act a duty is cast on the

appellate authority to give the parties to an appeal before it, an effective opportunity of being heard and thereafter, to proceed to decide the

appeal, but that such an opportunity to meet the case of the respondents herein was denied to the petitioner, resulting in the passing of an order of

eviction against him, affecting his rights as a tenant in occupation, without even a hearing and the order of eviction thus passed in flagrant violation

of the procedure laid down for the hearing of appeals under the Act, is manifestly unjust, improper, irregular and illegal. On the other hand, learned

counsel for the respondent submitted that the petitioner had been given adequate opportunity by the appellate authority to put forth his case, though

his counsel was not heard as such by the appellate authority and he cannot, therefore, complain of lack of opportunity.

It would be useful at this stage to refer to the relevant provisions in the Act and the Rules framed there under governing appeals and the

procedure provided for their disposal by the appellate authority. Under S.23 (1) (a) of the Act, the Government is empowered by a notification in

the Tamil Nadu Government Gazette to confer on such officers and authorities as they think fit, the powers of an appellate authority for purposes

of the Act in such area and in such classes of cases. Aright of appeal is conferred under S.23 (1) (a) of the Act, on any person aggrieved by an

order passed by the Controller to the appropriate appellate authority duly notified and having jurisdiction. The procedure for disposal of appeals

before the appellate authority is laid down under S.23(c) of the Act, according to which, the appellate authority, after calling for the records of the

case from the Controller, shall give the parties an opportunity of being heard and after making such further enquiry, as it thinks fit either personally

or through the Controller, shall decide the appeal S.23 (4) of the Act declares that except as provided in S.25 of the Act, the decision of the

appellate authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any court

of law, R.16 of the Rules framed under the Act outlines the procedure for the disposal of appeals under S.23 of the Act. It would suffice for

purposes of the present civil revision petition to refer to R.16 (3) of the Rules which provides for setting aside an ex parte order passed against a

tenant or landlords, as the case may be, as well as, the passing of orders setting aside an order of dismissal for default.

Anyhow to ascertain what transpired in the course of the hearing and disposal of the appeal before the appellate authority, it would be useful to

refer to the affidavit filed by the petitioner in C.M.P. 884 of 1988 praying for stay of the order of eviction. From paragraph 4 of that affidavit, it is

seen that the petitioner, pending the appeal preferred by the respondents in R.C.A. 24 of 1987 before the appellate authority, Villupuram, filed an

application in I.A. 663 of 1987 on 10-12-1987 for the appointment of a Commissioner to inspect the property and measure the same and that

application was dismissed on 16-12-1987. It is further seen that the hearing of the appeal fixed for 18-12-1987 was postponed to 21-12-1987

and on that day, the petitioner filed an urgent copy application to obtain a copy of the order in LA. 663 of 1987 in order to file a civil revision

petition before this Court; but that copy was not made ready and furnished. The petitioner has further stated that on 21-12-1987, though his

counsel was asked to argue, the appeal was adjourned to 23-12-1987, and on that day, a representation was made requesting the appellate

authority to adjourn the appeal to enable the petitioner to file a revision against the order passed in I.A. 663 of 1987. The affidavit proceeds to

state that the appellate authority posted the appeal to 24-12-1987 and that an application was filed praying for an adjournment, even on 23-12-

1987, which, however, was returned. The petitioner further stated that 24-12-1987 happened to be a holiday and thereafter, the court was closed

for Christmas holidays and reopened on 4-1-1988 and on that day an application was filed to reopen the case stating that the order passed in I.A.

663 of 1987 had not been furnished and, therefore, the appellate authority should reopen the appeal. However, that application was rejected on

the ground that judgment had already been pronounced by the appellate authority on 4-1-1988, though no orders were actually passed on the

application till the authority rose for the day. The petitioner has also stated that he was taken aback to learn that judgment had been pronounced

allowing the appeal, even without hearing his counsel and without giving any notice.

On the basis of the statements so made by the petitioner, on 25-1-1988, the learned District Judge, South Arcot at Cuddalore, was directed to

submit a report with reference to the statements contained in paragraph 4 of the affidavit of the petitioner referred to earlier. On 29-1-1988 the

learned District Judge, submitted a report after examining all the papers, inclusive of the judgment in R.C.A. 25 of 1987 and also after orally

examining counsel who appeared on both sides as well as the appellate authority. In that report, the learned District Judge has stated that on 10-

12-1987, the petitioner filed I.A. 663 of 1987 for the issue of a commission to inspect the premises in question and that application was taken on

file on 14-12-1987 and was posted for counter the next day and the counter was filed on that day and the application was thereafter adjourned to

17-12-1987. From 17-2-1987 it was adjourned to 18-12-1987 for enquiry and on that day, the application was dismissed on merits. The appeal

R.C.A. 25 of 1987 was also posted for hearing on 18-12-1987 and as I.A. 663 of 1987 was dismissed, the appeal was adjourned to 21-12-

1987 for hearing and on that day, the respondents herein were heard and for hearing the petitioner herein, it was adjourned to 23.12.1987. The

report also states that Thiru D. Natarajan, counsel for the petitioner, was away and on his behalf Thiru A.K. Selvaraj, advocate, requested the

appellate authority for an adjournment of the appeal by a week; but the appeal was posted to 24-12-1987 for judgment, and as that day was

declared a holiday, the judgment was pronounced on 4-1-1988, allowing R.C.A. 25 of 1987 with costs. The report further states that on 4-1-

1988 on behalf of the petitioner herein, an application was filed to reopen the appeal in order to enable the counsel to argue, but that was rejected

on the ground that the judgment had already been pronounced. It is further seen from the report that on 5-1-1988 when judgment was

pronounced, notice was not given to both counsels and that was sought to be explained by the appellate authority on the ground that as the date

had already been given, notice was not given on 4-1-1988. Referring to the notes paper maintained by the appellate authority, the report stated

that though on 23-12-1987 an entry therein has been made to the effect that ''Respondent''s arguments heard. For judgment 24-12-1987 the

appellate authority admitted that it was a mistake. Further, the report also stated that the preamble to the judgment indicated that the counsel for

the petitioner was not heard. Finally, the report wound up by saying that the respondent in the appeal (petitioner herein) was not heard.

In the counter affidavit filed by the second respondent on behalf of the respondents herein, after referring to the dismissal of A.I. 663 of 1987,

on 18-12-1987, and the posting of R.C.A. 25 of 1987, to 21-12-1987, it was stated that the appeal was adjourned to 23-12-1987, and that the

counsel for the respondents herein was heard on that day and the petitioner was directed to argue the case and that he was not ready to argue the

same on that day, and, therefore, naturally, the appellate authority posted the matter for judgment and on 4-1-1988 judgment had been delivered.

It was further stated, referring to the report submitted by the learned District Judge, that it would be conclusive of what happened before the

appellate authority. The respondents had thus accepted the correctness of the report regarding that happened before the appellate authority in the

course of the hearing of R.C.A. 25 of 1987.

A reference to the notes paper maintained by the appellate authority shows that on 18-12-1987 an application for the appointment of a

Commissioner was dismissed and the appeal was posted for arguments on 21-12-1987, though there are corrections on that date. It is further

seen that on 21-12-1987 the appellate authority heard the arguments of the counsel for the appellants in R.C.A. 25 of 1987 and the appeal was

posted to 23-12-1987 for arguments on behalf of the respondent. As per the notes paper, on 23-12-1987 arguments on behalf of the respondent

was in R.C.A. 25 of 1987 were heard and the matter was posted for judgment on 24-12-1987. The further entry in the notes paper was made on

4-1-1988 and that stated that 24-12-1987 was declared a holiday and that the matter was taken up that day, viz., 4-1-1988 and judgment

delivered allowing the appeal. Apart from the above entries in the notes paper maintained by the appellate authority, it is seen from the preamble of

the original judgment that Thiru D. Natarajan, was not ready on 23-12-1987 to argue the appeal before the appellate authority, though the decretal

order stated that Thiru D. Natarajan, advocate, appeared on behalf of the respondent in the appeal and argued the same. The correction in the

preamble portion of the original judgment that Thiru D. Natarajan appearing on behalf of the respondent in R.C.A. 25 of 1987 was not ready to

argue the appeal, had been made in the hand of the appellate authority.

The entries in the notes paper maintained by the appellate authority thus leave to be desired. The entry made therein on 23-12-1987 to the

effect that ''Respondent''s arguments heard'' is now accepted even by the appellate authority to be incorrect, as could be seen from the report of

the learned District Judge, referred to earlier. Learned counsel for the respondents before this Court also very fairly stated that on 23-12-1987, no

arguments were heard on behalf of the petitioner herein, through his counsel. It has to be remembered that even the notes paper is part of the

Court records and should be a true record of all the several stages in the proceedings and it is not intended to be merely filled up with incorrect and

inaccurate particulars to suit the whim or the fancy of the presiding officer. It is strange and indeed surprising that the appellate authority had gone

to the extent of making a wrong or incorrect entry in the notespaper without regard to the actual happenings. The preamble to the judgment

referred to earlier, clearly shows that the counsel for the petitioner could not have been heard on 23-12-1987 as it is stated that he was not ready

to argue the appeal. The entry in the notes paper on 23-12-1987 to the effect that the counsel for the respondent in R.C.A. 25 of 1987 was heard

that day is thus established to be a false entry and this is supported by the report of the learned District Judge as well as the preamble to the

judgment. The appellate authority had attempted to offer a puerile explanation is that it is a mistake and that explanation plainly an unacceptable

after thought. It, therefore, follows that without hearing the counsel for the petitioner, in R.C.A. 25 of 1987 the appellate authority had rushed

through the disposal of R.C.A. 25 of 1987 for reasons, which are not apparent on record. The manner of disposal of R.C.A. 25 of 1987 by the

appellate authority is very unsatisfactory and the petitioner herein had been condemned unheard. It is all the more disturbing and distressing to note

that the duly constituted appellate authority in this case, is a subordinate Judge. If, for some acceptable genuine and valid reasons, counsel

appearing on behalf of the parties in an appeal before the appellate authority are unable to argue, the appellate authority may consider granting

reasonable time; but if the appellate authority feels that sufficient time had already been given and the reasons for inability to argue are not genuine,

or acceptable, it is open to the appellate authority to set the party, who is not ready to argue, ex parte and thereafter pass appropriate orders and if

later, an application of the nature falling under R.16 (3) is made, then the appellate authority may proceed to consider it in accordance with R.16

(3). There are matters entirely within the discretion of the appellate authority, but even such discretion ought to be properly exercised and not in a

whimsical or arbitrary manner. In this case, the appellate authority, without hearing both sides, had proceeded to make false entries in the notes

papers, as if both sides had already been heard and also delivered judgment condemning and injuriously affecting one of the parties, unheard. The

procedure adopted by the appellate authority in this case is, to say the least, outrageously and atrociously irregular and deserves strong

condemnation. It was about sixty-four years ago in the context of maintaining procedural purity in the administration of justice Lord Hewart C.J. in

Rex v. Sussex Justice 1924-1-K.B. 256 at 259, observed�

a long line of cases shows that it is not merely of some importance but it is fundamental importance that justice should not only be done, but should

be manifestly and undoubtedly be seen to be done... Nothing is to be done, which creates even a suspicion that there has been an improper

interference in the course of justice.

This cardinal principle which ought generally to govern the process of administration of justice, had unfortunately not been borne in mind by the

appellate authority; but it had felt that it is more important that there should be an appearance of administration of justice, rather than, it should in

fact, be done. The manner in which the appeal had been beard and disposed of by the appellate authority has dealt a severe and stunning blow to

the credibility of the justice delivery system through the appellate authorities functioning under the Act and if such appellate authorities resort to

disposal oft appeals as has been done in this case, it is doubtful whether they would continue to command the confidence of landlords and tenants,

who are obliged to resort to it, though, in this case, the responsibility for such lack of confidence has to be laid squarely on the shoulders of the

particular designated appellate authority, as the whole system cannot be blamed for the lapses of a particular appellate authority, as in this case.

Under the provisions of the Act, and the rules referred to earlier, the designated appellate authority is invested with powers to pass orders affecting

the rights of landlords and tenants and it is also bound to give them an opportunity of being heard. The right to a fair hearing is founded on the

plainest principles or justice. The appellate authority though designated, is statutorily entrusted with the duty of deciding an appeal after hearing the

parties and in the discharge of that duty, that authority must act judicially and deal with the matter without any bias or pre-conceived notion, after

giving both parties an opportunity of adequately representing their respective cases and arrive at a decision in the spirit and with a sense of

responsibility of the authority whose duty it is to administer and mate out justice. The provisions of the Act and the Rules framed thereunder, have

laid down the principles to which the procedure before the appellate authority must conform and that is the only guarantee of impartiality and

objectivity inbuilt in the system; as otherwise the very system designed for meting out justice through appellate authorities would become artificial

and unnatural and a total failure as well. On a consideration of the method and manner of the disposal of R.C.A. 25 of 1987 by the appellate

authority, it is obvious that it had thrown to the winds the very elementary principle in the administration of justice of hearing both sides before

reaching a decision. It is hoped that the appellate authorities constituted under the Act will be alive to the duty cast on them under the provisions of

the Act and proceed to discharge their duty in accordance with the statutory provisions in the Act and the Rules and not indulge in the disposal of

appeals in the manner done in this case. For the aforesaid reasons, while thoroughly disapproving the method and manner of disposal of the appeal

by the appellate authority and with the expression of a hope that it will not hereafter resort to such disposals, the civil revision petition is allowed

setting aside the order of the appellate authority and remitting R.C.A. 25 of 1987 for fresh disposal after hearing both parties and in accordance

with law. Since the respondents had not been in any manner responsible for the blunder committed by the appellate authority, there is no

justification at all to order them to pay costs and the parties are, therefore, directed to bear their own costs in the civil revision petition.