R.V. Ramalingam vs Abdul Muthaliff

The respondent-landlord filed R.C.O.P. No. 30 of 1989 on the file of the Rent Controller/District Munsif, Thiruvarur, for eviction of the

petitioner-tenant from the premises in question on the ground of wilful default, act of waste and ceasing to occupy the premises in question. The

said R.C.O.P. was transferred to the Rent Controller/District Munsif, Nannilarti, and renumbered as R.C.O.P. No. 2 of 1991. The said R.C.O.P.

is pending. The petitioner-tenant filed a counter in the R.C.O.P. stating that the Rent Controller has no jurisdiction as the lease is only of the site.

He has also denied the claims put forward by the respondent-landlord in the R.C.O.P.

While matters stood thus, the landlord filed I.A. No. 36 of 1990 in R.C.O.P. No. 30 of 1989 on the file of the Rent Controller, Thiruvarur, for

appointment of a Commissioner, u/s 18-A of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) on

the ground that the petitioner-tenant has substantially damaged the back portion of the building and is also attempting to unauthorisedly put up

some construction, and in view of the attitude of the petitioner, it has become necessary to appoint an Advocate Commissioner to make a local

inspection of the building and note its physical features, present state of the building and structures thereon and submit a report to the Court with

plan. That application was resisted by the tenant-petitioner herein. The learned Rent Controller, Thiruvarur, dismissed that application for non-

prosecution.

After the transfer of R.C.O.P. No. 30 of 1989 to the Rent Controller, Nannilam, the matter was taken up for trial. The evidence of the landlord

was over in the first week of September, 1991. The tenant''s witness was also examined in part. At that stage, the landlord filed I.A. No. 1 of

1991 in R.C.O.P. No. 2 of 1991 on the file of the Rent Controller, Nannilam, for appointment of a Commissioner to make a local inspection and

to note down the present state of affairs of the premises. The petitioner-tenant resisted the said application on various grounds including the ground

that the application lacked bona fides and was without any purpose. The learned Rent Controller dismissed the said application on 2-4-1991. The

landlord filed an appeal in R.C.A. No. 15 of 1991 before the Appellate Authority/Subordinate Judge, Nagapattinam. The tenant resisted the said

appeal on merits and also on the ground that the said appeal itself is not maintainable. The Appellate Authority, however, allowed the appeal by

order dated 11-12-1991. Aggrieved by the said order, the tenant has filed the present revision petition.

The revision petition was admitted by T. Somasundaram, J. on 24-1-1992 and in C.M.P. No. 457 of 1992 interim stay was also granted on the

same day. The interim stay was made absolute by me on 13-11-1992 and the revision petition itself was directed to be posted for final disposal

before me.

I have heard Mr. R. Muthukumaraswami, learned Counsel for the petitioner-tenant and Mr. Sathish Kumar learned Counsel for the respondent-

landlord. The only point that arises for consideration in this revision petition is, whether the order of the Appellate Authority is contrary to law,

without jurisdiction and vitiated by material irregularity, as contended by Mr. R. Muthukumaraswami, learned Counsel for the tenant or whether the

Appellate Authority is right in allowing the appeal filed by the landlord against the order passed by the Rent Controller rejecting the application for

appointment of an Advocate Commissioner on the ground that the said order is not one affecting the rights of the parties, as contended by Mr.

Sathish, learned Counsel for the landlord.

In support of his contention, Mr. R. Muthukumaraswami, has placed strong reliance on two decisions of this Court reported in V. Govindarajalu

v. T. Govindarajalu, 1989 (1) LW 540 of K. M. Natarajan, J., and K. S. Mahaboob Basha v. Kaneez Fathima, 1991 (1) MLJ 372 of M.

Srinivasan, J. On the other hand, Mr. Sathish, learned Counsel for the landlord, in support of his contention has strongly relied on the decision of T.

Sathiadev, J., reported in M.P. Appulu Vs. A. Fatima Lohra and Another, .

Mr. R. Muthukumaraswami, learned Counsel for the tenant submitted that in view of the decision of M. Srinivasan, J., in 1991 (1) MLJ 372, no

appeal would lie against the order of the Rent Controller refusing to appoint an Advocate Commissioner and that the Appellate Authority has also

failed to note that the principal question in issue in the R.C.O.P. is as to whether the Rent Controller has jurisdiction over the matter as the site

alone has been leased in favour of the petitioner-tenant. In the light of such contentions and the issues involved in the R.C.O.P., Mr. R.

Muthukumaraswami submits that the appointment of an Advocate Commissioner is wholly unwarranted and therefore ought to have been rejected

and that the reasoning given by the Appellate Authority to overcome the decision of this Court reported in 1991 (1) MLJ 372 is patently erroneous

and unsustainable.

Mr. Sathish Kumar learned Counsel for the respondent-landlord in reply to the arguments of Mr. R. Muthukumaraswami, raised four principal

contentions. They are:

i) The appointment of a Commissioner will depend upon the facts and circumstances of each case. For this proposition, he relies on the decision

reported in M.P. Appulu Vs. A. Fatima Lohra and Another, ;

ii) One of the grounds on which eviction is sought for is acts of waste committed by the tenant and also to note down the illegal and unathorised

additions and alterations made to the building. Hence, the appointment of an Advocate Commissioner is absolutely necessary to find out the extent

of damage committed by the tenant. For this proposition, he relied on the decision of T. Ramaprasada Rao, J., as he then was, reported in Asokraj

Kandaswami v. Thiruvengaswami, 1975 TLNJ 237;

iii) Interpretation given to Sec. 18-A of the Act should be liberal and broad and not restrictive. Even at the appellate stage a Commissioner can be

appointed. For this proposition, he relied on the decisions reported in 1975 TLNJ 237 and M.P. Appulu Vs. A. Fatima Lohra and Another, ;

iv) The real test is whether any order passed in Interlocutory Application before the Rent Controller would affect the rights and liabilities of the

parties. If they do, appeal is maintainable to the Appellate Authority. If not, no appeal is maintainable. In support of this contention, he relied on the

following decisions: Murugesan v. C. P. Nataraja Mudaliar, 1986 TLNJ 243; V.S. Devadoss Vs. S. Velu and Another, ; Lakshmiammal v. V. K.

Sivasubramaniam, 1981 (2) MLJ 206; Chinnaraju Naidu v. Bavani Bai, (1981) 2 MLJ 354; Hyath Basha Vs. Tajan Bi, and Lodge Malaysia and

Others Vs. Tamil Nadu Real Estates and Another, .

Section 18-A of the Act, which is the relevant section, is reproduced as under:

18-A. Power of Controller to appoint Commissioner.-- The Controller shall have powers to appoint a Commissioner in any proceeding pending

before him and for this purpose, he shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908.

The order of the Rent Controller refusing to issue commission for inspection and preparation of a plan of the premises is a mere procedural

order not affecting any right or liability of the parties. In my view, 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 but no appeal from the order lay to the Appellate Authority under the second. The order refusing to appoint a Commissioner, in my view,

will not affect the rights of the parties. When the rights of both parties are not in any manner affected by the refusal of the Court to appoint a

Commissioner, the said order is not appealable. This is also the view taken by M. Srinivasan, J., in K. S. Mahaboob Basha v. Kaneez Fathima,

(1991) 1 MLJ 372.

The question that arose in the revision petition before M. Srinivasan, J., was whether the appeal filed by the petitioners therein before the

Appellate Authority against the order of the Rent Controller refusing to appoint a Commissioner to inspect the building and note down the physical

conditions, was maintainable. The judgment of T. Sathiadev, J., in M.P. Appulu Vs. A. Fatima Lohra and Another, was cited by the petitioners in

the said revision, which was to the effect that the order of the Rent Controller refusing to appoint a Commissioner to inspect the building was an

appealable one. Another judgment of K. M. Natarajan, J. reported in V. Govindarajaluv. T. Govindarajalu, 1989 (1) LW 540, to the effect that

the order of the Rent Controller refusing to appoint a Commissioner to inspect the building was not appealable, was also cited before M.

Srinivasan, J. Thus, K. M. Natarajan, J., has taken a contrary view than the view taken by T. Sathiadev, J. M Srinivasan. J., after rejecting the

request of the counsel for the petitioners to refer the matter to a Division Bench in view of the conflict of views between two single Judges, held

that the judgment of K. M. Natarajan, J., in 1989 (1) LW 540, was based upon a judgment of the Supreme Court, which was directly on the

point, and the judgment of T. Sathiadev, J., in M.P. Appulu Vs. A. Fatima Lohra and Another, , though referred to the judgment of the Supreme

Court, has taken the view that an order refusing to appoint a Commissioner will affect the rights of the parties, which is clearly erroneous in view of

the pronouncement of the Supreme Court in Central Bank of India Vs. Shri Gokal Chand, .

I have also carefully gone through the judgment of the Supreme Court reported in Central Bank of India Vs. Shri Gokal Chand, . The matter

which was considered by the Supreme Court was one refusing to appoint a Commissioner for inspection and preparation of a plan of the premises

involved in the proceedings. The Supreme Court held that the order was only a procedural one not affecting any right or liability of the party

concerned and that the issue of a commission was only a step for assisting the parties in the prosecution of their case. The Supreme Court further

pointed out that it was open to the parties 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. Thus, on the basis of such observations, the Supreme Court held that the appeal against the order refusing to appoint

a Commissioner was not sustainable under the provisions of Sec. 38 of the Delhi Rent Control Act (Act 59 of 1968).

T. Sathiadev, J., after referring to the judgment of the Supreme Court reported in Central Bank of India Vs. Shri Gokal Chand, , has observed

as follows :--

The decisions rendered by the Supreme Court in Central Bank of India Vs. Shri Gokal Chand, does not go to the extent of holding that there

could be no appeal filed whatsoever, as against any interlocutory order, to the appellate authority constituted under the Act. In fact, it has been

clearly held by the Supreme Court that if an interlocutory order results in affecting the rights and the liabilities of a party to a proceeding, an appeal

could be entertained apart from appeals filed as against final orders.

The learned Judge (T. Sathiadev, J.) has also in another place of his judgment viz., in paragraph 9, observed as follows:--

The acid test to find out whether an appeal would lie or not is to ascertain whether the order, if allowed to remain, would affect the rights and

liabilities of that party and is of such a nature that the aspect sought to be established at the interlocutory stage is one which though to some extent

can be established in the main matter, would due to its rejection at this stage, prejudice his valuable rights. If the appellate Court finds that what is

sought to be established in the I.A. cannot await the disposal of the main matter, it would also be a case where an appeal would necessarily lie.

In the above view, T. Sathiadev, J. proceeded to hold that the appeal filed against the order appointing an Advocate Commissioner was

maintainable. The view taken by T. Sathiadev, J., in my view, is clearly erroneous in view of the pronouncement of the Supreme Court referred to

in this judgment in paragraphs supra.

M. Srinivasan, J., has also clearly expressed his disagreement with the views taken by T. Sathiadev, J., and has clearly held in (1991) 1 MLJ

372, as to how the view taken by T. Sathiadev, J. in M.P. Appulu Vs. A. Fatima Lohra and Another, , is wrong in view of the decision of the

Supreme Court in Central Bank of India Vs. Shri Gokal Chand, . I respectfully agree with the views taken by M. Srinivasan, J., in (1991) I MLJ

372, in disagreeing with the views taken by T. Sathiadev, J. in M.P. Appulu Vs. A. Fatima Lohra and Another, .

The Supreme Court in the judgment stated supra Central Bank of India Vs. Shri Gokal Chand, has concluded on the question that an order

appointing or refusing to appoint a Commissioner is only a procedural one which does not affect the rights of the parties in the matter. It is not

proper for this Court to take a different view and hold that an order refusing to appoint an Advocate Commissioner is an appealable one as it

would affect the rights of the parties.

Next, I refer to the decision of K. M. Natarajan, J. in V. Govindarajulu v. T. Govindarajulu, 1989 (1) LW 540, cited by Mr. R.

Muthukumaraswami, learned Counsel for the tenant in support of his contention. The above was a case filed by the tenant against the order passed

by the Appellate Authority, Coimbatore, dismissing the appeal and confirming the order passed by the Rent Controller. The landlord filed a petition

for eviction against the tenant on the grounds of wilful default in payment of rent and bona fide requirement of the building for the purpose of

demolition and reconstruction. He filed an Interlocutory Application to appoint a Commissioner to examine the respondent-landlord at his

residence. The said application was resisted by the tenant, which was allowed by the Rent Controller. The tenant preferred an appeal before the

Appellate Authority. He was not successful and hence, the tenant filed a revision before this Court. It was contended by the learned Counsel for

the revision petitioner-tenant before K. M. Natarajan, J., that the Appellate Authority dismissed the appeal mainly on the ground that no appeal

will lie against the order passed in an Interlocutory Application and that the order of the Appellate Authority dismissing the appeal on the ground of

maintainability was not sustainable both in law and on facts. The learned Judge''s attention was also drawn to the decision of the Supreme Court

reported in Central Bank of India Vs. Shri Gokal Chand, , referred to by me in paragraphs supra. Applying the ratio laid down in the abovecited

decision of the Supreme Court, K. M. Natarajan, J., held that the order appointing a Commissioner to examine the respondent therein is not one

which affects the rights and liabilities of the parties. On the other hand, the learned Judge has held, that it is only a procedural one and the same

does not affect the rights and liabilities and hence, no appeal is maintainable and the Appellate Authority is perfectly right in holding that the appeal

was incompetent.

M. Srinivasan, J., on a consideration of the judgments of the Supreme Court reported in Central Bank of India Vs. Shri Gokal Chand, , T.

Sathiadev, J., in M.P. Appulu Vs. A. Fatima Lohra and Another, and K. M. Natarajan, J., in V. Govindarajulu v. T. Govindarajulu, 1989 (1) LW

540, has observed as follows:--

Approaching the question from first principles I am of the view that the order refusing to appoint a Commissioner will not affect the rights of

parties.

Let me now consider the decisions cited by Mr. Sathish Kumar learned Counsel for the respondent-landlord in support of his above

contentions. Though it would be unnecessary for me to consider the various decisions referred to by the learned Counsel for the landlord in view of

the view I had already expressed, yet, a brief reference is made to those decisions since the learned Counsel Mr. Sathish Kumar argued

elaborately.

Mr. Sathish Kumar would rely on the decision reported in M.P. Appulu Vs. A. Fatima Lohra and Another, of_T. Sathiadev, J., in support of

his submission that appointment of a Commissioner will depend on the facts and circumstances of each case. There cannot be any quarrel with the

general proposition. In fact, at this juncture, this Court is not called upon to decide whether the facts and circumstances of the case would require

the appointment of a Commissioner and the limited question that arise for consideration is, whether an appeal is maintainable against an order

declining to appoint a Commissioner.

The next case relied upon by the learned Counsel for the landlord is, the decision of T. Ramaprasada Rao, J., as he then was, reported in

Asokraj Kandaswami v. Thiruvengadaswami, 1975 TLNJ 237, wherein the learned Judge was reaily concerned with the question as to whether

an Appellate Authority under the Act has the authority to appoint a Commissioner. In that context, the learned Judge has observed that the

provisions of Section 18-A of the Act should be construed not strictly. Therefore, that judgment has no relevance for deciding the issue under

consideration.

Then Mr. Satish Kumar would urge that any order passed in an Interlocutory Application by the Rent Controller would affect the rights and

liabilities of the parties and, therefore, the appeal is maintainable. I am unable to agree with the wide proposition raised by the learned counsel for

the landlord. The learned counsel would then place reliance on the following judgments reported in Murugesan v. C. P. Nataraja Mudaliar, 1986

TLNJ 243; Hyath Basha Vs. Tajan Bi, ; V.S. Devadoss Vs. S. Velu and Another, ; Lakshmiammal v. V. K. Sivasubramaniam, 1981 (II) MU 206

: AIR 1981 NOC I71; Chinnaraju Naidu v. Bavani Bai, 1981 (II) MLJ 354 and Lodge Malaysia v. M/s. Tamil Nadu Real Estates, 1983 (II) MLJ

550.

The decision in Murugesan v. C. P. Nataraja Mudaliar, 1986 TLNJ 243 of T. Sathiadev, J., was concerned with the amendment of the

pleadings at the stage of final hearing. Hence, that decision is of no assistance in resolving the controversy in question. In the decision reported in

Hyath Basha Vs. Tajan Bi, , S. Ratnavel Pandian, J., as he then was, has observed that orders which are procedural in character cannot be said to

be ""Final Orders"" to fall within the purview of Section 23(2) of the Act. That was a case in which an application filed by the tenant for reopening

the case for examining a witness was dismissed. Therefore, the said decision will be of no assistance to the respondent/ landlord. On the contrary,

the observation contained in the said judgment goes against the contention raised by the landlord.

V. Ratnam, J., as he then was, in a case reported in V.S. Devadoss Vs. S. Velu and Another, has considered the question as to whether an

appeal is maintainable against an order of the Rent Controller refusing to enquire into the question of bona fides of the denial of title of the landlord

by the tenant as a preliminary issue. The learned Judge had taken the view that such an order does not affect the rights of parties. It is

ununderstandable as to how this judgment would help the landlord.

The decision reported in Chinnaraju Naidu v. Bavani Bai, 1981 (II) MLJ 354 dealt with the question whether an order permitting the landlord

to correct the door number of the premises would be an order falling within the ambit of Section 23(1)(b) of the Act. S. Ratnavel Pandian, J., as he

then was, had taken the view that no appeal is maintainable against such an order. This judgment again is of very little assistance to the landlord.

Mr. Justice V. Ratnam, as he then was, in the decision reported in Lakshmiammal v. V. K. Sivasubramaniam, 1981 (II) MLJ 206 : AIR 1981

NOC 171 has opined that an order brining the legal representatives of the tenant on record is merely procedural and does not in any manner affect

the rights of the landlord. Equally, this judgment does not advance the case of the landlord any further.

T. Sathiadev, J. himself had expressed the opinion in the case reported in Lodge Malaysia v. M/s. Tamil Nadu Real Estates, 1983 (II) MLJ

550 that when the Rent Controller appointed a Commissioner u/s 18-A of the Act to record the evidence of a Purdha woman, no prejudice would

be caused to the parties by such examination. The learned Judge did not consider the question pertaining to the maintainability of an appeal under

the Act.

I have already referred to the decision of M. Srinivasan, J., in K. S. Mahaboob Basha v. Kaneez Fathima, 1993 (1) MLJ 372 where the

learned Judge, following the decision of the Supreme Court reported in Central Bank of India Vs. Shri Gokal Chand, , had held that an order

refusing to appoint a Commissioner to inspect the building and note down the physical conditions of the building is not appealable. The decision of

K. M. Natarajan, J., was referred to by the learned Judge and accepted. The learned Judge has also referred to the decision of T. Sathiadev, J., in

M.P. Appulu Vs. A. Fatima Lohra and Another, and has expressed the view that the decision of T. Sathiadev, J., was contrary to the ratio laid

down by the Supreme Court in its decision in Central Bank of India Vs. Shri Gokal Chand, . I am in respectful agreement with the views of Justice

M. Srinivasan and Justice K. M. Natarajan, who have correctly and rightly followed the ratio of the Supreme Court in preference to the views

expressed by T. Sathiadev, J. in M.P. Appulu Vs. A. Fatima Lohra and Another, .

In the result, the Civil Revision Petition has to be allowed and it is accordingly allowed. However, there will be no orde as to costs.

Petition allowed.