S.J. Raman Photo Studio and Another vs A.K.M. Noore and Others

Shanmukham, J.—Some interesting questions under the Pondicherry Buildings (Lease and Rent Control) Act, hereinafter referred to as ''the

Act'', arise in these revisions. The petitioner in each of the revision petitions is the tenant. The landlords-respondents, in R.C.O.P. No. 7 and 8 of

1983 u/s 14(1)(b) of the Act sought the eviction of their two tenants, petitioners in these revisions. The Rent Controller'' dismissed the applications.

Hence the respondents preferred M.A. No. 62 and 80 of 1983 respectively before the Appellate Authority (II Additional District Judge,

Pondicherry). Pending the appeals, the respondents filed I.A. Nos. 278 and 276 of 1984 respectively purporting to be under Rule 26 of the

Pondicherry Buildings (Lease and Rent Control) Rules, hereinafter referred to as ''the Rules'', praying,

... Appellate Tribunal may be pleased to inspect the petition properties more particularly described in Schedule A to the main petition for purposes

of assessing the age of the building, conditions and nature of construction of the foundation, walls, and the ceiling, and also such other features as

he may observe with regard to the present conditions of the building and whether the present structure could take a load of further construction

with the assistance of a qualified Civil Engineer of the ""Public Work''s Department and pass such further or other order as may be deemed just and

necessary in the circumstances of the case.

The Appellate Authority allowed the said applications and further observed,

The court will proceed for a spot inspection of the demised premises on 29.3.1984 at 3.00 p.m. The Director of Public Works Department,

Pondicherry, will depute an Assistant Engineer to assist the Court for the purpose mentioned in the petition.

The identical orders in both the said applications are challenged in these two revision petitions by the tenants.

Let me at the outset advert to the preliminary objections raised by the respondents. Relying on Central Bank of India Vs. Shri Gokal Chand, ;

and Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, , it is contended that the revisions themselves are not

maintainable. Neither of these two cases really supports the above contention. The first case cited arose out of the Delhi Rent Control Act (59 of

1958). The dictum laid down therein is that no appeal will lie against interlocutory orders which are merely procedural and do not affect rights or

liabilities of parties. In the other case cited, their Lordships of the Supreme Court pointed out that a case may be said to be decided only if the

court adjudicates for the purposes of the suit some right or obligation of the parties in controversy but not where an order was passed refusing a

question to be put in cross-examination. First of all, this is not an appeal but a revision. Secondly, there is an order which cannot be supported

under the very rule relied on by the Appellate Authority. In such cases, it is both prudent and expedient to set aside such orders which suffer from

errors apparent on the face of the record. I am unable to persuade myself, therefore, to accept the above argument.

It may be stated that the new rules were introduced even in 1980 in supersession of the 1969 rules. Yet, Rule 26 under the 1969 rules was

relied on by the respondents. Still more interesting is, the Appellate Authority has proceeded on the basis that it is a section under the Act itself. Be

that as it may. One of the arguments is that there is acquiescence on the petitioners'' part because each of the petitioners took part in the inspection

when the same was done by the Appellate Authority with the assistance of an Assistant Engineer from the P.W.D. This contention is wholly

inconsistent with the other argument, namely that no appeal will lie against such interlocutory orders and that these interlocutory orders can be

challenged in the appeal against the appeals themselves if at all the petitioners loose the appeals. Indeed, the learned Counsel for the respondents

relied on O.A.O.K. Latchmanan Chettiar Vs. The Commissioner, Corporation of Madras and Another, , Fajar Banoo and Others Vs. Rahim Bux

and Others, and Saraswathi Ammal and Another Vs. Rajagopal Ammal, . I find that the respondents cannot derive any assistance from any of

these precedents. In the first decision, the ratio laid down is, where the applicant armed with a point either of law or of fact which would oust the

jurisdiction of the lower court has elected to argue a case on its merits before that court, he must be taken to have submitted himself to a

jurisdiction which he cannot be allowed afterwards to seek to repudiate by applying for a certiorari. This is not a case where but for such

participation the Appellate Authority did not have any jurisdiction. Thus this decision will render no assistance to the respondents. In the second

decision, the Calcutta High Court held that because the respondents did not challenge the admissibility of a particular piece of evidence but

adduced further evidence to rebut such evidence, they cannot challenge such evidence later as inadmissible. On the above facts, the Calcutta High

Court held that the respondents before it could not complaint of the allowing of evidence. I am at a loss to understand as to how this principle has

any relevance to the instant case. The last case cited, I have no hesitation to point out, has not considered any question of estoppel or

acquiescence. Further, when the petitioners took part in the inspection, it was out of deference to the Appellate Authority but not in acquiescing in

the order passed by it. It would be rather unjust to twist such conduct on the petitioners'' part as an acquiescence. On the facts of this case,

therefore, the above argument is hardly tenable.

Now let me turn to Rule 21 of the rules dot Rule 26 of the 1962 rules). Rule 21 of the Rules is as follows:

In cases falling u/s 6 of the Act or in any other cases contemplated in the Act, the Controller or the Appellate Authority may, if he thinks fit to do

so, personally inspect the building concerned. After inspection the Controller or the Appellate Authority shall record a note of inspection in brief

and such note shall form part of the record.

According to the plain meaning of the said rule, the appellate authority does not possess a power to take the assistance of the Assistant Engineer

from the P.W.D. This is enough to interfere with the order passed by the appellate authority. Above all, the appellate authority has not properly

understood the content of the power in the original as also in the appellate authority prescribed in Rule 21. Rule 21 apparently has its source from

Order 18, Rule 18 of the Code of Civil Procedure. The cardinal principle of interpretation is that if a particular power is vested in Court under a

particular statute and if such a power is incorporated in subsequent enactment, it must be deemed that the Legislature intended to confer the same

power as in the old enactment. Therefore, it can safely be assumed that Rule 21 is a counter-part of Order 18, Rule 18, C.P.C. Order 18, Rule 18

is as follows:

The Court may at any stage of a suit inspect any property or thing concerning which any question may arise and where the Court inspects any

property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such

memorandum shall form a part of the record of the suit.

It is significant to notice that Rule 18 is placed under Order 18 bearing the caption ""Hearing of the suit and Examination of Witnesses."" Above all,

rule. 18 is placed at the end of the said Order. Preceding the said rule, the other rules prescribe as to who is to open the case and as to how the

witnesses are to be examined. The fact that it is placed at the end of the Order will amply indicate that if, after hearing the evidence the court feels

that unless it has local inspection, it will not be possible for it to appreciate the evidence in its true sense, only then shall the court exercise the

power under Rule 18 and inspect the suit property. In other words, the power has to be used sparingly but not readily as has been done by the

appellate authority in this case. I have already referred to the fact that the appellate authority, while inspecting the premises, had the assistance of

an Assistant Engineer from the P.W.D. who was also examined as a witness.

Amrathlal v. Land Acquisition Officer AIR 1945 Bombay 302 and Raj Chandra v. Ishwar Chandra A.1.R. 1925 Cal. 170 are relied on by the

learned Counsel for the petitioners do indicate that the purpose of the inspection is not for the Court to obtain evidence. In Amrathlal v. Land

Acquisition Officer AIR 1945 Bombay 302, a Division Bench of the Bombay High Court pointed out that no doubt the Court of appeal would

attach due weight to what the Judge observes in his inspection, but the purpose of local inspection is not to make it a substitute for the evidence but

to assist in its appreciation. In Raj Chandra Banik and Others Vs. Iswar Chandra Banik and Others, , a Division Bench of the Calcutta High Court

has ruled that though the present Code empowers the Court to go on local inspection of any property in respect of which it is called upon to

decide a question in controversy, it is still the duty of the court not to make the result of such inspection the foundation- of its judgment which must

be based upon evidence adduced by the parties and it does, not entitle the judge to put his view obtained by means of such inspection in place of

evidence. In the instant case, the age of the building, conditions and nature of construction of the foundation, walls and the ceiling and also such

other features are all matters of evidence but not matters for inspection. If so, the learned Appellate Authority has grossly erred in the purported

exercise of Rule 21 ordering inspection and later pursuant thereto making inspection.

In this case, I have already extracted the reliefs claimed in the petitions. This will indisputably indicate that by inspection the Appellate Authority

is expected to assess the age of the building, conditions and nature of construction of the foundation, walls and the ceiling and also such other

features as the Appellate Authority may observe with regard to the present conditions of the building and also to ascertain whether the present

structure could take the load of further constructions. Thus what the Appellate Authority was asked to do by inspection is to have its own idea

about the age of the building, etc. This is what is prohibited in law. If the court should exercise its power of inspection under Order 18, Rule 18 on

matters of evidence and if on such impression it had at the time of inspection, the court should decide, the party against whom the decision would

be rendered would be left helpless because he has no right of cross-examining the learned Judge in the instant case, the Appellate Authority. If this

caution is borne in mind, then the limitation that is imposed under Order 18, Rule 18 can easily be perceived. As already pointed out by me, the

right to inspect has to be exercised cautiously, only when the court feels that without inspection it will not be possible for the court to assess the

evidence and to dispose of the lis, resort can be had to their power.

It is still more grievous to find that Instead of making a personal inspection the learned Appellate Authority took the assistance of an Assistant

Engineer from the P.W.D. I have already referred to the fact that inspection with the aid of the Assistant Engineer is not contemplated under the

rule itself.

Thus the order passed by the Appellate Authority cannot be sustained in law and it is against all canons of justice and fair play. Accordingly, the

revisions succeed and the orders passed in I.A. Nos. 276 and 278 of 1984 in M.A. Nos. 60 and 62 of 1983 respectively are set aside. There will

be no order as to costs.

In as much as the Appellate Authority had made, the inspection, it will not be in the interests of justice to have the appeals disposed of by him.

Therefore, the appeals have to be dealt with by some other appropriate Appellate Authority constituted under the Act.