Mohan etc. vs Meenavathi Nahar

S.S. Subramani, J.—This petition is filed under Article 227 of the Constitution of India against the order of the Appellate Authority in

R.C.A. No. 12 of 1996 on the file of the District Judge, Udagamandalam. An eviction petition was filed against the petitioner as R.C.O.P. No. 53

of 1993 on the file of the Rent Control Court, Udagamandalam. The application was filed for eviction on the ground that the respondent herein

wanted the schedule building for additional accommodation.

In the counter statement filed by the. petitioner, the contention that was raised was that he is not in occupation of a part of the building, and,

therefore, Section 10(3) (c) of the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable.

To substantiate his case the petitioned wanted a Commissioner to be appointed and the same was allowed. The Commissioner filed a report, for

which, the petitioner had filed his objections. It was the case of the petitioner that the report is against true facts and, therefore, he wanted the same

Commissioner to inspect the property once again. The Rent Controller as per order dated 20.1.1995, rejected the request and the case was

posted for trial.

Against that order, the petitioner filed R.C.A. No. 12 of 1995 on the file of the District Judge, Udagamandalam. The Appellate Authority came

to the conclusion that the appeal is not maintainable, since, no appeal has against the order, that was impeached. It is that order, that is challenged

in this revision.

The matter came for admission. I have heard the learned counsel in detail and having considered the judgment of the Appellate Authority, I am

also of the view that the appeal before the lower Appellate Court is not maintainable for the following reasons.

Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1900 deals with the right of appeal. Section 23( l)(b) of the Act says that:

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.

The question that has to be decided is whether an appeal will lie against every order of the Rent Controller.

In one of the earlier decisions of the Supreme Court reported in Shankarlal Aggarwal and Others Vs. Shankarlal Poddar and Others, Their

Lordships considered this Question under the Indian Companies Act, 1913. The wording that came for consideration before their Lordships was

that:

from any order or decision made or given in the matter of the winding up of a Company by the Court.

While considering the said wording, their Lordships said that though the words are very wide, they would exclude merely procedural orders or

those which do not affect the rights or liabilities of the parties. It was held in that case that unless the right or liability is affected, no appeal will lie.

Following the above decision in Central Bank of India Vs. Shri Gokal Chand, ) which was a case under the Delhi Rent Control Act, their

Landships reiterated that unless the impugned order affects any right or liability of the party, no appeal will lie. The wording under the Delhi Rent

Control Act and the decision of the Supreme Court interpreting the same read thus:-

Section 38 (1) An appeal shall lie from every order of the Controller made under this Act to the Rent Controller Tribunal (hereinafter referred to

as the Tribunal) consisting of the person only to be appointed by the Central Government by notification in the Official Gazette"".

The object of S. 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S.38(1),

the words ""every order of the controller made under this Act."" though very wide, do not include interlocutory orders, which are merely procedural

and do not affect the rights or liabilities of the parties. In a pending proceedings 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 the relevancy of a question. All

these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending

proceeding; 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 an ex-parte order is subject to appeal to the Rent Control Tribunal.

In AIR 1967 S.C. 136 (Bant Singh v. Shanti Devi and others), also, a question arose under the Delhi and Ajmer Rent Control Act. There the

impugned order was that the suit has not abated, and, therefore, their Lordships directed the trial to be proceeded. In para 3 of the judgment, their

Lordships, following the decision reported in Central Bank of India Vs. Shri Gokal Chand, held thus:-

However, when this appeal came up for hearing before us, learned counsel for the respondents raised another point for challenging the

competency of the appeal that was filed against the order of the trial Court. It was urged that the order, rejecting the application of the appellant to

record the abatement of the suit and directing continuance of the suit, was not an order of such a nature against which an appeal could be filed

under S.34 of the Act of 1952. The world"" order"" is used in S.34 without any limitations, with the exceptions that it must be an order of a Court

passed under the Act of 1952; but it is contended that this word cannot be interpreted so widely as to include all interlocutory orders or other

similar orders passed in the course of the trial of a suit. This aspect came up for consideration before this Court when interpreting S.38(1) of the

Act of 1953 in which also a provision for appeal has been made, and the language used is very wide inasmuch as it is laid down that ""an appeal

shall lie from every order of the Controller made under this Act.."" The extent of this right of appeal under S.38(1) was considered by this Court in

the Central Bank of India v. Gokal Chand, Civil Appeal no. 1339) of 1956 D/- 2.9.1966: (reported in Central Bank of India Vs. Shri Gokal

Chand, and it was held that"" the object of S.38) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In

the context of S.38(1) the words ""every order of the Controller made under this Act."" though very wide, do not include interlocutory orders, which

are merely procedural and do not affect the rights or liabilities of the parties."" The Principle was thus recognised that the word ""order"" used in such

context is not wide enough to include every order, whatever be its nature, and particularly orders which only dispose of interlocutory matters. In

the case before us also, all that was done by the application presented by the appellant on the 12th 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 AIR 1945 298 (Lahore)

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.

In Major S.S. Khanna Vs. Brig. F.J. Dillon, the question that came for consideration was whether a revision under S. 115 of the CPC lies from

every interlocutory order. While considering the same, it was held that unless the impugned order affects the rights or liabilities of the party, even

though interlocutory in nature, no revision lies.

In Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, also, the decision reported in Major S.S. Khanna Vs.

Brig. F.J. Dillon, is followed. In that case, a question put to the witness was objected to and the same was overruled by the Court. The order

overruling the objection was held to be not a revisable order, since the rights or liabilities of the parties are not affected and the same is only a

procedural order.

In Ramalingam R. V. v. Abdul Muthaliff (1992-2-L.W. 768) when a similar question came up for consideration the learned Judge of this Court

held that an order declining in. issue a commission for local inspection is not an appealable order. The learned Judge held thus:-

An order of the Rent Controller refusing to issue a commission (under S. 18-A) for inspection and preparation of a plan of the premises is a mere

procedural order not affecting any right or liability of the parties. The issue of a commission is only a step for assisting the parties in the prosecution

of their case. It is open to canvass the error, defect or irregularity, if any, in the order in an appeal from the final order passed in the proceedings

for eviction, hut no appeal from the order would lie to the Appellate Authority The order refusing to appoint a Commissioner, will not affect the

rights of the parties. As the rights of both parties are not in any manner affected by the refusal of the Court to appoint Commissioner, the said order

is not appealable.

In view of the settled legal position. I do not think that the Appellate Authority went wrong in holding that the appeal is not maintainable.

Learned Counsel for the petitioner submitted that if the order is allowed to stand he will be put to great hardship and the Commissioner''s

Report will be taken as a main piece of evidence and there is every possibility, of the decision itself being based on such report. I do not think that

there is room for such an apprehension. What is the value of the Commissioner''s Report came up for consideration in a decision of the Kerala

High Court reported in Narayani, A Vs. Kittan Alias Krishnan and Another After holding that a revision under Article 227 of the Constitution of

India is not maintainable. His Lordship further considered what is the value of the Commissioner''s Report, and held thus:-

When a petition is filed by any of the parties to the suit seeking to set aside the Commissioner''s report are seeking to remit the Commissioner''s

report and plan, it is always open to the trial Court to consider the said application and where the Court is for any reason dissatisfied with the

proceedings of the Commissioner, it may direct such further inquiry to be made as it thinks fit. Under Order 26, Rule 10(3), trial Court has got a

discretion to order a fresh commission or not. However, the Court is not bound to do so in every case where the result of the local investigation is

found to be unsatisfactory. Trial Court can decide the case on the evidence. But where the trial Court is dissatisfied with the whole proceedings of

the Commissioner that it thinks it better to discard the whole record and start afresh, it may do so. Where the Court is of opinion, on considering

the objections of the parties, if any, that the Commissioner has so misconceived his duties as to render his report valueless, it may wipe out and

supersede the first report by a specific order to that effect, and may issue a fresh commission. So also where the parties agree to the appointment

of the Second Commissioner and abide by his report they cannot turn round and say that his report is not evidence under the terms of sub. rule (2).

The acceptance of commission report does not however mean parties are precluded from challenging the evidence of the commissioner or assailing

the report by cross examination of the commissioner or adducing any other evidence to countermand the effect of the report. Under Order 26,

Rule 10(2) report of the Commissioner together with the evidence, if any recorded by him is legal evidence in the suit. However, the parties are

entitled to take objection to the report of the Commissioner and substantiate the same by examining the commissioner or other witness. Rejection

of objections to the Commissioner''s report does not preclude the Court at a later stage either suo motu or at the instance of any of the parties from

examining the Commissioner nor from considering the report in the light of evidence on record. A commissioner''s report is only evidence in the

case. It is in no way binding on the Court. The Court has full power to arrive at its own conclusion even at variance with the report. In fact, the

report ought not to be made the sole basis and foundation for the judgment in disregard of other evidence in the case"".

(Emphasis supplied)

In view of the settled legal position, I do not think that the apprehension of the petitioner has any basis. I am sure that the Rent Controller

would take the entire evidence into consideration and decide the same with an open mind and on the basis of the decision, which I have extracted

above. In the result, the Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. However, there

will be no order as to costs.