Ravee Malhotra and Another vs Vijayaraghavalu Naidu and Another

K.M. Natarajan, J.—The revision-petitioners have filed this application under Order 23, Rule 1 and Section 151, CPC read with Section

25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, for granting leave to the petitioners to withdraw the revision petition

with liberty to file a fresh petition for eviction on the very same cause of action and relief.

In support of the application, the petitioners have filed an affidavit sworn to by the second petitioner. It is alleged that in view of the safeguard

provided in the Act for the tenants and relying on the advice of the counsel, they did not take steps to let in necessary evidence to prove the bona

fides and now they are advised to file this application to seek leave of the court to withdraw the petition and file a fresh eviction petition on the

same cause of action. They further contended that more materials have to be brought on record to strengthen their bona fides and they should be

given an opportunity to substantiate their contentions.

The said application was resisted by the respondents on the ground that the provisions of the CPC are not applicable to the proceedings under

the Tamil Nadu Buildings (Lease and Rent Control) Act. Further, the reasons given by the petitioners for withdrawing the proceedings and

instituting fresh eviction petition are not sustainable in law.

Hence, the two points that arise for consideration in this application are:

Whether the provisions of the CPC are applicable to the matter in question?

Whether the petitioners have made out a case for allowing the application filed under Order 23, Rule 1 of the Code of Civil Procedure.

As regards the first point, reliance was placed on the decisions reported in Roshan Lal and Another Vs. Madan Lal and Others, and Prahlad

Das Vs. Bhagirath Lal, . In Roshan Lal and Another Vs. Madan Lal and Others, , their Lordships while considering the scope of applicability of

Order 23, Rule 3 of the CPC to the proceedings instituted under the Madhya Pradesh Accommodation Control Act, 1961 held:

It is too late in the day to contend that the provisions of Order 23, Rule 3 of the CPC cannot apply to eviction suits governed by the special

statutes. A compromise of suit is permissible under the said provisions of law.

Relying on the above decision, it was held in Prahlad Das Vs. Bhagirath Lal, that the provision of Order 23, Rule 1, CPC applies to proceedings

under the Delhi Rent Control Act. In T.N. Krishnamoorthy Vs. Jagat Textiles, Sathiadev, J. relying on the earlier decision of this Court reported in

Tirupathi Nadar v. Kandasami (1968) 81 L.W. 642 held:

The power of revision conferred u/s 25 of the Act is on ''the High Court'' and while entertaining the revision it exercises the power of a Court

created under the Constitution. It is not a ''persona designata''. When power is conferred on a court, and no other. special procedure is prescribed

for disposal of matters under a particular statute as held in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, by such

conferment of power, there is necessary implication that the CPC would apply; in turn the power of review would be available to this court.

Therefore the procedure to be followed in disposing the revision u/s 25 of the Act, being governed by the provisions of the Code of Civil

Procedure, the power of review having been conferred therein expressly this review petition is maintainable.

It is also held therein:

Further it is indisputable that the High Court being a Court of Review, and in all its proceedings, it follows a prescribed procedure the necessary

implication is that the provisions of the CPC alone would apply.

In Sambanda Naicker and Others Vs. Ranganayaki Ammal and Another, it was held:

In the absence of any bar on a litigant analogous to Order 41, Rule 2, Civil Procedure Code, such a power in the Appellate Authority is available.

In that case, the application to permit the appellant to raise additional grounds of appeal was allowed.

It is worthwhile to mention the decision of other High Courts in this regard. In Sham Rao Tekaikar v. Rai Lakshmi Narayana Prasad (1976) 1

A.W.R. 213, it was held that though Order 23, Rule 1, C.P.C. is not applicable, principle underlying such provision can be invoked in proceedings

under Rent Control Act. It is to be noted that the provisions of the Andhra Pradesh Buildings (Lease and Rent Control) Act are in pari materia

with the provisions of the Tamil Nadu (Buildings Lease and Rent Control) Act in all respects.

In Bhagwan Singh v. Ramesh Kumar and Ors. (1981) 1 R.C.J. 240, it was held that even if provisions of Order 23, Rule 1, C.P.C. may not be

strictly applicable to the proceedings under the Himachal Pradesh Rent Control Act, 1971, its principles are still applicable, when there is no

provision in the Act itself.

Applying the ratio laid down in the above decisions, it is clear that in the absence of any procedure laid down under the statute, the High Court

exercising its power of revision, is empowered to entertain the application under Order 23, Rule 1 of the CPC and dispose of the same and as

such the application is maintainable.

Next we have to consider whether there are sufficient grounds for granting the relief. Under Sub-rule (3) of Order 23, Rule 1 of the Code Civil

Procedure, it is provided:

Where the court is satisfied-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such

terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect

of the subject-matter of such suit or such part of the claim.

Learned Counsel for the respondents submitted relying on the decision reported in Veeraswami v. Lakshmudu (1951) 1 M.L.J. 194 : A.L.R. 1951

Mad. 715 that the ""other sufficient grounds"" in Clause (b) has been interpreted to mean ""grounds ejusdem generis to those mentioned in Clause (a)

or at least analogous to them. Insufficient evidence, or a false geneological table, or even the fraud of plaintiff''s vakil will not come under Clause (a)

or (b) of Order 23, Rule 1(2), being neither a formal defect, nor falling under ""other sufficient grounds."" On the other hand, the learned Counsel for

the petitioners drew my attention to the decision of this Court reported in Sambanda Naicker and Others Vs. Ranganayaki Ammal and Another,

wherein Basheer Ahmed Sayeed, J. held:

Sub-clauses (a) and (b) of Rule 1(2) of Order 23 deal with two different situations, and not with similar or analogous situations. It will not be doing

any violence to the language or to the spirit and object underlying the clause ""other sufficient grounds"", if it is held that a wider discretion is sought

to be given to the Courts under Sub-clause (b) than under Sub-clause (a). There is no justification to restrict the scope of Sub-clause (b) when the

court is satisfied on other and sufficient grounds to give leave to withdraw than those contained in Sub-clause (a).

The above view was followed in Basappa v. Bhimappa A.1.R. 1960 Mys 141 wherein it was held:

The words ""other sufficient ground"" occurring in Order 23, rule l(2)(b) should be read independently of the words ""formal defect"" occurring in

Clause (a) of that rule. Further, the meaning to be given to the words ""other sufficient grounds"" should not be limited to the grounds afforded by the

defects which are analogous to formal defects referred to in Clause (a), as it would be unnecessarily restricting the provisions of Order 23, Rule 1,

C.P.C which has invested the court with powers to allow withdrawal from the suit ex debito justitiae in case where such a prayer is not covered by

Clause (a) of that rule.

In Union of India v. Manoranjan AIR 1976 Gau. 1, Baharul Islam, j. (as he then was) held:

Other sufficient grounds"" under Clause (b) need not be analogous to the grounds stated under Clause (a).

It is further held in the above decision:

Whether there are sufficient grounds will always be a question for consideration of the court and no exhaustive rule can be indicated."" ""The

satisfaction with regard to the sufficiency of the ground is of the court concerned and when it considers all the facts and circumstances before it and

comes to the conclusion that there are sufficient grounds for allowing the plaintiff to institute a fresh suit it can pass the order.

In the instant case, the petitioners herein have filed the main petition for eviction u/s 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control)

Act, 18 of 1960 on the ground that they require the premises for immediate demolition and reconstruction against respondents 1 and 2. The

second respondent filed a memo in the revision to the effect that he has since then reviewed the matter and found that the requirement of the

petitioners is bona fide. Hence he has vacated the premises and the revision may be allowed without costs. Accordingly the revision was allowed

so far as the second respondent was concerned. The only contending respondent is the first respondent. The petitioners filed this application mainly

on the ground that under the bona fide impression that in view of the safeguard provided under the statute for the tenants to re-occupy in case the

landlord failed to demolish and reconstruct the building, necessary evidence was not adduced, that they are advised by the counsel to prove the

ingredients and bona fides and that they are advised to withdraw the eviction petition with liberty to file fresh petition on the same cause of action.

They filed this application u/s 151, C.P.C besides Section 25 of Act 18 of 1960. The petition for eviction was filed in 1979. Their Lordships of the

Supreme Court and this Court have made later pronouncements subsequent to the filing of the main petition before Rent Controller in respect of

the ingredients which are necessary for invoking the provision of Section 14(1)(b) of the Act. As such, I am of the view that there are sufficient

grounds for allowing the application to withdraw the eviction petitioner with liberty to file fresh petition on the same cause of action for the same

relief in the interest of justice.

For all these reasons, the application is allowed and the petitioners are granted leave to withdraw the main R.C.O.P. No. 3522 of 1970 with

liberty to file fresh petition on the same cause of action for the same relief. There will be no order as to costs.