S. Abdul Rahman vs Mr. Jugraji Hiraji

M. Venugopal, J.—The Civil Revision Petitioner/Appellant/Tenant has filed these two Revision Petitions as against the common order dated

29.7.2009 in R.C.A. Nos. 170 & 171 of 2009 passed by the VIII Judge, Small Causes Court, Chennai in confirming the order dated 29.4.2009

in M.P. Nos. 735 & 736 of 2009 passed by the XIV Judge, Small Causes Court, Chennai.

The Learned Rent Control Appellate Authority in its common order dated 29.07.l2009 in R.C.A. Nos. 170 & 171 of 2009, has among other

things observed that ''non payment of cost by the tenant on an application by him to set aside an exparte decree is only an efforts to prolong the

proceedings under the arm of law which cannot be allowed and resultantly, confirmed the order of dismissal passed in M.P. No. 736/09 and in

M.P. No. 735/09''.

According to the Learned Counsel for the Revision Petitioner, the orders of the First Appellate Authority in R.C.A. Nos. 170 & 171 of 2009

dated 29.07.2009 are against law, evidence and probabilities of the case and in fact, the First Appellate Authority failed to appreciate the fact that

the Learned Rent Controller has committed an error in not entering the orders pronounced in the ''A'' Diary particularly the orders were entered

only in the RCOP diary and not in the Execution Petition diary and the E.P. diary only reflected the adjudication as M.P. pending but nothing else

was recorded in the E.P. diary and therefore, the Revision Petitioner''s Learned Counsel was mislead by the above entry.

Continuing further, it is the contention on the side of the Revision Petitioner that the First Appellate Authority should have allowed the R.C.A.

Nos. 170 & 171 of 2009 by extending the time granted by the Learned Rent Controller and the First Appellate Authority had not taken note of

the fact that the Learned Rent Controller periodically adjourned the matter because of boycott from 04.02.2009 till 06.04.2009 and as such, the

Revision Petitioner''s Counsel was prevented from entering the Court.

The pith and substance of the argument of the Learned Counsel for the Revision Petitioner is that the First Appellate Authority had not adverted

to the contentions projected as mentioned supra as a result of which there had occasioned a miscarriage of justice and therefore, prays for allowing

the Civil Revision Petitions in furtherance of substantial cause of justice.

In response, the Learned Counsel for the Respondent/Landlord submits that the First Appellate Authority has taken into consideration all the

relevant aspects and that the non payment of cost by the Revision Petitioner on an application filed by him to set aside an exparte decree is only an

endeavour on his part to protract the proceedings and rightly dismissed the R.C.A. Nos. 170 & 171 of 2009 by confirming the orders of the

Learned Rent Controller passed in M.P. Nos. 735 & 736 of 2009 dated 29.04.2009 and therefore, this Court sitting in revision at this stage need

not interfere with the same.

In the common affidavit in M.P. Nos. 735 & 736 of 2009 in M.P. Nos. 753 & 754 of 2008 in R.C.O.P. No. 2080 of 2007, the Revision

Petitioner/Tenant in para 3 has observed that ''he filed two M.P. Nos. 753 & 754 of 2008 for condonation of delay and setting aside of the

exparte decree passed in the aforesaid Rent Control Original Petition and that cost of Rs. 1,500/- has been ordered to be paid to the

Respondent/Landlord/Petitioner as a condition to condone the delay and when the cost has been tendered to the Respondent/Petitioner''s Counsel

he refused to receive the same and later the cost has been sent through money order and this has also refused by the Counsel for the

Respondent/Petitioner and in the meanwhile, the Respondent/Petitioner filed a memo mentioning that the Petitioner/Respondent has not paid the

cost and again on 30.03.2009 his Counsel filed a memo along with the refused M.O. Slip. The Learned Rent Controller was pleased to pass an

order dated 31.03.2009 to deposit the cost amount before him on or before 06.04.2009

That apart, it is the contention on the side of the Revision Petitioner that his Counsel on that day took ill on 30.03.2009 night with high

temperature later diagnosed as chicken gunia fever and has not been in a position to walk and has been bedridden and therefore, his Counsel was

not in a position to attend the Court and note down the order dated 31.03.2009 and it appears that on 06.04.2009 as the cost was not deposited,

this Court has been pleased to dismiss the condone delay application and order delivery before 17.04.2009 and only on 08.04.2009 after getting

better his Advocate asked his clerk to verify and has come to know of the aforesaid order. The stand of the Revision Petitioner is that the reason

for non payment of cost is neither wilful nor wanton but due to the aforesaid bonafide reason and therefore, the Revision Petitioner has prayed for

a modification of the order and to extend the time granted in the order dated 31.3.2009 passed in the above Miscellaneous Petitions.

In effect, the Revision Petitioner in M.P. No. 736 of 2009 has made a request of the Learned Rent Controller to extend the time fixed in the

order dated 31.03.2009 in M.P. Nos. 753 & 754 of 2008 in R.C.O.P. No. 2080 of 2007 on the file of Learned XIV Judge, Court of Small

Causes, Chennai for depositing into Court the cost as directed in M.P. No. 753 of 2008.

In M.P. No. 735 of 2009 the Revision Petitioner has prayed before the Learned Rent Controller to stay of all further proceedings in E.P. No.

410 of 2008 in R.C.O.P. No. 2080 of 2007.

In M.P. No. 736 of 2009 in R.C.O.P. No. 2080 of 2007 on 29.04.2009 the Learned Rent Controller, in paragraph 10, has observed the

following:

It is the contention of the petitioner that reason for not depositing such costs is that his counsel exactly fell ill on 30.3.09 night and about the

orders he came to know only on 8.4.09 through his Advocates clerk. This reason stated by the petitioner is not satisfactory as in the previous

occasion the petitioner himself had appeared before this Court when his counsel was absent during Advocates boycott. This being so, when the

counsel had fell ill and when orders is to be passed on 31.3.09, the petitioner could have very well noted about the orders from the Diary. Even

otherwise, when there is a clerk for the counsel to assist nothing could have restricted him to note such order during 31.3.09 till 6.4.09, before the

said petitions were dismissed. This Court is not inclined to show any further lenience for deposit of such costs. Only considering the situation that

Advocates were abstaining from courts the time to pay such cost was extended every time. But now, when a specific direction is given to deposit

the said costs into Court, the reason that such order was not noted for some situation or other, would only show that the petitioner is not willing to

comply the order and his only intention is to drag the proceedings and delay the execution. Hence, from the above discussion this Court is not

inclined to extend further time and consequently, dismissed the saidMiscellaneous Petition.

Inasmuch as M.P. No. 736 of 2009 has been dismissed, the Learned Rent Controller also dismissed M.P. No. 735 of 2009.

The Learned Counsel for the Revision Petitioner cites the decision of this Court in Rajeswari and another Vs. Sri Buvaneswari Cycle Mart, at

page 156 wherein it is observed that ''Though CPC is not applicable in all matters connected with these proceedings, in absence of specific

exclusion of the principles of Code of Civil Procedure, and in order that Act should not in such peculiar circumstances become illusory, application

for substitution of the new Managing Partner must be allowed by importing general principles of law and if the Rent Controller can bring on record

legal representatives of a party, he has jurisdiction and right to order other reliefs in the interest of justice.

He also relies on the decision of this Court in Sagayam Engineering Works Vs. Srivatsa Tube Corporation, wherein it is laid down as follows:

Discretion of condonation of delay is with the Court and Courts should be liberal in the matter of condoning delay in the interest of justice and the

party should not be penalised for the fault of his Advocate and should be given opportunity to defend the suit. Where the party came to know of ex

parte decree only when he received the notice of its execution though he had duly handed over written statement to his counsel and was expecting

communication from him considering bona fide that the suit was yet pending, the delay even though inordinate, in making the application to set

aside ex parte decree ought to be condoned. However, the applicant was saddled with costs of Rs. 1000/-.

The Learned Counsel for the Revision Petitioner also draws the attention of this Court to the decision of the Hon''ble Supreme Court in

Deepak Parshad Vs. Automobile Products of India and Others, wherein it is inter alia observed that ''... If in view of these facts and circumstances

the appellate authority had deemed it fit to condone the delay, the High Court ought not to have interfered with that discretionary order and

resultantly, the appeals were allowed by setting aside the common judgment and order passed by the High Court in W.P. Nos. 10795 of 1987

and 5361 of 1988 and Writ Appeal No. 993 of 1988 and remitted the Writ Petition No. 5361 of 1988 to the High Court for deciding it on merits

etc.

On the side of the Respondent/Landlord, the Learned Counsel cites the decision of Hon''ble Supreme Court in Maragathammal Vs.

Kamalammal, wherein it is held that ''The learned Rent Controller found that conditional order had not been complied with and ordered eviction

and the Tenant had been deliberately avoiding depositing arrears of rent and order of the Rent Controller is set aside. Significantly, in para 15 the

Hon''ble Supreme Court has observed that ''it is admitted that the Respondent/Tenant has been deliberately avoiding the payment of rent as and

when it fell due etc.

In M.P. No. 754 of 2008 on 31.03.2009 the Learned XIV Judge, Court of Small Causes, Chennai has passed an order directing the Revision

Petitioner/Tenant to deposit the cost of Rs. 1,500/- before this Court on or before 03.04.2009, failing which further orders will be passed and the

matter has been directed to be called on 06.04.2009.

In Kailash Nath Thivari v. Union of India 2001 AIHC 2390 it is held that ''An Advocate actually represents litigant and in fact by such exparte

decision, the litigant is deprived of the opportunity to contest his case through his counsel which is his legal right.''

In Jugraj Jain Vs. T.R. Ambikapathi Pillai, at page 244 this Court has observed that ''Costs are the supreme Panacea for all procedural ills.''

In N.R. Nainar Mohamed Vs. Khaja Mohideen, it is held as follows:

Where the application was made for the extension of time to deposit cost as directed by Court on the ground that the applicant was out of town to

attend his ailing son, however, the affidavit did not disclose as to when he came to know of the said order and the affidavit was vague as to the

actual period of his absence in the town and the actual ailment of his son, no medical certificate was produced showing said illness of his son and

the delay in depositing cost was more than 7 months on the date when the application was filed, the application was liable to be six weeks'' time

was prayed for, for a small sum of Rs. 395.50.

In Smt. Jodhayan Vs. Babu Ram and Others, at page 30 in para 13 has observed as follows:

Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him,

less 25 paise within the time fixed by the Court and held that the short deposit was due to a bona fide mistake, while the executing appellate court

held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate court deprived the decree-holder of the

legitimate fruits of the decree he obtained in all the courts. The finding of the first executing appellate court that the non-deposit could not be due to

any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17,936 from time to time as directed

by the courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was

preeminently a case in which the first execution appellate court ought to have exercised its discretionary powers u/s 148, CPC and accepted the

delayed deposit of 25 paise, as was done by the original executing court.

It is to be noted that the provisions of CPC do not as such apply to the proceedings under the Rent Control Act as per decision in Kanaga

Rathnammal v. Samarao 1955 2 MLJ 433 at page 434. Generally, the applicability of the provision of the CPC is excluded and where it is either

made applicable or even intended to apply the provision is made to that effect. The Rent Control Act is a self-contained Code and the Learned

Rent Controller and the Appellate Authority are not Courts and the proceedings are not governed by the CPC as per decision in Mrs. Sakunthala

and Others Vs. Mrs. A. Devi, at page 101.

In Smt. Archana Kumar (Mee Archana Mukherjee) and Anr. v. Purnondu Prakash Mukherjee and Anr. 1996 AIHC at page 660 it is

observed that ''evidence of counsel as to non appearance on fixed date was found unreliable and moreover, the case found to be pending for a

long time and number of adjournments granted at the instance of defendants and therefore, the exparte decree order was not liable to be set

aside.''

In Lakhmi Chand and Sons v. Parmanand Khemka and Sons and Ors. 1996 AIHC 4094 it is, among other things, observed that ''the

provision of Section 35B of CPC do not say in so many words that it is mandatory to dismiss the suit. But it also does not provide the plaintiff or

defendant should allow to prosecute subsequently after payment of costs etc. and further it is held that the High Court cannot extend time to pay

costs u/s 148 in the absence of any ground for extending such time.''

It is to be noted that the power u/s 25 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960 is of a wider one than that of the

ingredients of Section 115 of Civil Procedure Code. It is true that as per Section 25 of the Act the Revisional Court is to satisfy as to the legality,

propriety or correctness of any order/decision passed by the Learned Rent Controller or the Appellate Authority as the case may be. Section 25

of the Act is not narrow one as the revisional power of the High Court as per Section 115 of Civil Procedure Code, but it is not wide enough to

make the High Court a second Court of the First Appellate Authority. In fact, the High Court, in Revision u/s 25 of the Act, is not an Appellate

Court but it has certainly as a Supervisory revisional power enjoined on it. No wonder, the revisional jurisdiction is supervisory and paternal in

nature.

It is not out of place for this Court to point out that as per Section 25 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960, this

Court sitting in Revision has no powers to condone the delay in payment and the discretion may be exercised by the Rent Controller and the

Appellate Authority specified under the Act as per decision in Karra Kondamma Vs. Karra Nagamma, at page 516.

As far as the present case is concerned, though the Revision Petitioner comes forward with a reason for not depositing the costs as ordered by

the Learned Rent Controller is that his Advocate has fallen ill on 13.03.2009 night and he has come to know only on 08.4.2009 about the orders

through his counsel''s clerk is not a ''Good or Sufficient cause'' because of the simple fact that it is for the Revision Petitioner/Tenant to keep drag

of his case or progress of his case and from the date of order 31.3.2009 till 6.4.2009 the gist of the order might have been noted by the Registered

Clerk of the Learned Counsel for the Petitioner and the Learned Rent Controller has not exercised his discretion to take a liberal view in regard to

the deposit of costs.

It cannot be forgotten that since the Advocates were not attending the Courts the time for payment of cost has been extended every now and

then and when a direction has been issued to pay the said cost before the Learned Rent Controller to come out with a reason that the same has not

been noted that some protext or other will clearly exhibit that the Revision Petitioner is not diligent in prosecuting his case and in short, the reason

ascribed by him in the affidavit will not enure to his benefit and on consideration of the facts and circumstances of the present case, this Court is not

inclined to exercise its discretionary supervisory power in providing another opportunity to the Revision Petitioner in the absence of cogent, genuine

and acceptable reasons on the side of the Revision Petitioner u/s 25 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960 and

consequently, dismisses the Civil Revision Petitions.

In the result, these Civil Revision Petitions are dismissed, leaving the parties to bear their own costs. The common order dated 29.07.2009

made in R.C.A. Nos. 170 & 171 of 2009 passed by the VIII Judge, Small Causes Court, Chennai are hereby confirmed. Consequently,

connected miscellaneous petition is closed.