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Judgment
S. Nagamuthu, J.—This Civil Revision Petition has been filed by the petitioner challenging the order dated 15.12.2006 in I.A.No.192 of
2006 in R.C.O.P. No.120 of 2004 passed by the Principal Rent Controller, (Principal District Munsif Court), Madurai Town.
The petitioner is the tenant and the respondents are landlords. Originally one Mr. S.R. Sutharsan, who is the husband of the first respondent and
father of the respondents 2 to 4 filed R.C.O.P.No.120 of 2004 before the Principal Rent Controller, (Principal District Munsif), Madurai Town.
The petitioner remained exparte in the R.C.O.P., which resulted in exparte order passed on 12.04.2006. Thereafter, he filed an interlocutory
application before the Rent Controller seeking to set aside the exparte order. Further in filing the said interlocutory application there was delay of
73 days. In order to have the delay condoned, he has filed I.A.No.192 of 2006 before the Rent Controller. In the meantime, the original landlord
Mr.S.R.Sutharsan died and in his place respondents 1 to 4 were impleaded as the petitioners 2 to 5 in the R.C.O.P. In I.A.No.192 of 2006, the
respondents have filed a detailed counter. The learned Rent Controller after considering the rival contentions, dismissed the said interlocutory
application, thereby refusing to condone the delay by order dated 15.12.2006. The said order is under challenge in this revision before this Court.
Heard Mr. R. Vijayakumar, counsel for the petitioner and the Senior Counsel Mrs. Hema Sampath, for the respondents.
4.The learned senior counsel appearing for the respondents has raised an objection that this revision u/s 115 of C.P.C. is not at all maintainable.
Facing the said question of maintainability u/s 115 of C.P.C., the learned Counsel for the petitioner would concede that this revision u/s 115
C.P.C. is maintainable, however, relying on the judgment of this Court reported in 2006(2) L.W. 476 (Annasami Naidu v. Karunakaran) made a
prayer to convert the present revision as the one under Article 227 of the Constitution of India. In the said judgment, this Court has taken the view
that such conversion can be made by this Court. The learned senior counsel appearing for the respondents conceded that the present Civil
Revision Petition can be converted into one under Article 227 of the Constitution of India. In view of the said position, this C.R.P. is converted as
the one under Article 227 of the Constitution of India.
The principal contention of the learned senior counsel for the respondents is that the order under challenge is an appealable order, falling within
the ambit of Section 23 of the Tamil Buildings Lease and Rent Control Act and therefore when there is an effective and alternative remedy of
appeal available to the petitioner, this revision is not maintainable under Article 227 of the Constitution of India.
The learned Counsel for the petitioner would counter the said stand, contending that the order under challenge is not the one passed under any
one of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, so as to fall within the ambit of Section 23 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, and so the revision is maintainable under Article 227 of the Constitution of India as there is no alternative
remedy avialable.
Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act is as follows:
Section 23(1)(a): The Government may, by general or special order notified in the Tamil Nadu Government Gazette, confer on such officers and
authorities as they think fit, the powers of Appellate Authorities for the purpose of this Act, in such areas and in such classes of cases as may be
specified in the order. Section 23(1)(b): 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 learned Counsel Mr. R. Vijayakumar would contend that a conjoint reading of Sub section 23(1)(a) and (b) would make it manifestly clear
that no order passed by Rent Controller is appealable, except those orders passed under any of the provisions of Rent Control Act. He would
further contend that the order under challenge is not the one passed under any of the provisions of the Act and the same has been passed only u/s
5 of the Limitation Act. So, according to the learned Counsel, the said order would not fall within the ambit of Section 23 of the Act to construe
the same as an appealable order. In support of his said contention, he would rely on two judgments reported in 2002 (2) C.T.C. 385 (Vummidi
Bangaru Chetty (P) Ltd. v. Spencer & Co. Ltd. and Raju Vs. Mohamadabi, . In Vummidi Bangaru Chetty (P) Ltd. v. Spencer & Co. Ltd. case in
paragraph 16, His Lordship Justice F.M. Ibrahim Kalifulla has held as follows:
In my considered opinion, this Revision is maintainable for the following reasons:
It is true that the judgements of His Lordship Mr. Justice Sathiadev as well as His Lordship Mr.Justice V. Balasubrahmanyan reported in
Purushotham Chettiar v. Puskraj Jain and Ors. 1980 TLNJ 155 and S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, support the stand of the
respondent. However, the reasoning of the Division Bench judgment reported in Fathima Automobiles Vs. P.K.P. Nair and Another, , though
rendered with particular reference to an application dealt with under Order 21, Rules 97 and 101, C.P.C. Still whatever said in the said judgement,
would mutatis mutandis apply in all fours even with reference to an application filed u/s 47, C.P.C. While in the latter it was a case relating to an
obstructor, in the former, it was on the invocation of the omnibus provision contained in Section 47, C.P.C. However, in either case, the parallel
that could be drawn is that both the proceedings came to be initiated in pending execution proceedings by invoking the relevant provisions
contained in Section 47, C.P.C. However, in either case, the parallel that could be drawn is that both the proceedings came to be initiated in
pending execution proceedings by invoking the relevant provisions contained in the Civil Procedure Code. When the Division Bench in the
judgment reported in Fathima Automobiles Vs. P.K.P. Nair and Another, having declared the law to the effect that the order passed by the Rent
Controller in an application filed Order 21, Rule 97, CPC cannot be taken to be an order strictly passed u/s 18(1) of the Act and that, that order
should be taken to be an independent order passed under the CPC and not under the Rent Control Act, then, even though it was passed by a Rent
Controller, such an order could be challenged either by way of an appeal or revision. On a parity of reasoning, an application filed u/s 47, C.P.C.
would also meet with the same fate and thereby, that could also be challenged by way of a revision. When the position has been so succinctly
stated by the Division Bench without giving any scope for ambiguity, it will have to be held that the said dictum of the Division Bench would
virtually render the judgments of the learned single Judges reported in Purushotham Chettiar v. Puskraj Jain and Ors. 1980 TLNJ 155 and
S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, ineffective and thereby impliedly overruled the judgments of the learned single Judges. In other
words, in view of the binding Division Bench judgment of this Court reported in Fathima Automobiles Vs. P.K.P. Nair and Another, the earlier
two judgments of the learned single Judges referred to above cannot be followed. Moreover, the Division Bench having held that an order even
though passed in a proceedings u/s 18 of the Act before the authority constituted under the Rent Control Act, by virtue of the application of the
provisions of the Civil Procedure Code, the ultimate orders passed in those applications based on the provisions of the CPC would be totally
independent of the provisions contained u/s 18(1) of the Act and thereby, the exclusion clause u/s 18(2) would not be applicable. It cannot be held
that the said declaration of law could be applied only to applications filed under Order 21 Rules 97 and 101 C.P.C. and to applications filed u/s 47
C.P.C. Therefore, even though the judgments of the learned single Judges reported in Purushotham Chettiar v. Puskraj Jai and Ors. 1980 TLNJ
155 and S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, were relating to applications filed u/s 47 C.P.C., the Division Bench judgment will have to
be preferred as against the judgments of the learned single Judges and consequently, I hold that the Civil Revision Petition is maintainable.
The learned Counsel would state that in the reported case, this Court has struck a distinction between an order passed by a Rent Controller during
execution proceedings and any other order passed by him and has held that the former is revisable but not the latter as the latter category of orders
are appealable u/s 23 of the Act. This Court has held that though both categories of orders are passed by the Rent Controller, the former is passed
in exercise of the power conferred under the code of Civil Procedure, whereas the latter categories of orders are passed in exercise of power
under the Act. The learned Counsel would therefore contend that the order under challenge has been passed independently under the limitation Act
and not under the Rent Control Act and even though it was passed by Rent Controller, this order would fall within the first category and so the
same could not be challenged by way of appeal u/s 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
The learned Counsel Mr. Vijayakumar would rely on paragraph 5 of the judgment in Raju Vs. Mohamadabi, , wherein this Court has held as
follows:
Therefore, the first question that has to be determined is as to whether the Rent Controller exercising the power under the Act, functions as a court
or not. The powers conferred upon the Rent Controller as contained in Sections 5, 6, 14, 15 and 17 would go to show that the Rent Controller
exercise the powers of a court. He adjudicates the rights of the landlord and the tenant in respect of the premises governed by the Act. The
proceedings before him are of civil nature involving civil rights. The decision of the Rent Controller is appealable to the appellate authority, which is
a judicial authority. The order passed by the Rent Controller is executable, as if it were a decree. Therefore, it is clear that the Rent Controller
cannot be considered to be a persona designata.
In the same judgment at a different place in paragraph 5, it is observed as follows:
It has been further held that an application u/s 5 of the Limitation Act to condone delay in filing an application to set aside an ex parte order of
eviction of the Rent Controller is maintainable.
Thus the power exercisable by the Rent Controller under the Act and the rights adjudicated by him of the parties, undoubtedly, lend to a
conclusion that the Rent Controller is a Court.
Relying on the above observations of the Court, the learned Counsel would contend, though the rent controller while exercising his power under
the Act, is also a Civil Court and so wherever there is no specific provision in the Act for doing a particular act, he has to exercise his powers of a
Civil Court under the C.P.C. or any other enactment. If the order is so passed by the Rent Controller in exercise of his power of a Civil Court
either under CPC or under any other enactment, the same would not fall within the ambit of Section 23 of the Act. In the given case, the Rent
Controller as a civil Court has refused to exercise his power u/s 5 of the Limitation Act, and therefore the said order is revisable by this Court
under Article 227 of the Constitution of India and the same is not appealable u/s 23 of the Act.
I considered the above contentions carefully. In so far as Vummidi Bangaru Chetty (P) Ltd. v. Spencer & Co. Ltd., case, it is mainly based on
the judgement of the Division Bench of this Court in Fathima Automobiles Vs. P.K.P. Nair and Another, . In the said judgment,, the Division
Bench has held as follows:
The order passed by the Rent Controller in an application under Order 21 Rule 97 cannot, in our view, be taken to be an order passed u/s 18(1)
of the Act. That should be taken to be an independent order passed under the CPC and not under the Rent Control Act. Though the order is
actually passed by the Rent Controller in an application under Order 21 Rule 97, C.P.C. that should be taken to have been passed by him in
exercise of the powers of a civil court as provided in Section 18(1) of the Act. We are not therefore in a position to construe the order passed by
the Rent Controller in an application under Order 21 Rule 97, C.P.C. as an order passed passed by the Rent Controller u/s 18(1) so that the bar
u/s 18(2) could be invoked. Section 18(2) bars an appeal or revision only in respect of an order passed in execution under Sub-section (1). But
that section will not be a bar for an appeal or revision being filed against an order passed in exercise of the power under Order 21 Rule 97 C.P.C.
If there is no bar for an appeal or revision u/s 18(2) then the next question that will arise is as to whether an appeal is available to the appellant in
this case. As already stated, Section 23 of the Act providing for an appeal is comprehensive in nature and is not restricted to orders passed by the
Rent Controller under Sections 10, 14, 15, 16 and 17. As already stated Section 23(1)(b) talks of any person aggrieved filing appeal, as also any
order passed. Since Section 23(1)(b) does not refer to an order passed by the Rent Controller u/s 18(1) we have to hold that any order passed by
the Rent Controller against which a person is aggrieved can be taken in appeal by that aggrieved person u/s 23(1)(b) of the Act. Thus, in our view,
Section 23(1)(b) enables any person aggrieved by an order passed by the Rent Controller to file appeal and it is not possible to restrict application
of Section 23(1)(b) as applying only to parties to the eviction proceedings and to orders passed by the Rent Controller in exercise of the order of
eviction u/s 18(1) of the Act.
A conjoint reading of Vummidi Bangaru Chetty (P) Ltd. v. Spencer & Co. Ltd. case and Fathima Automobiles v. P.K.P. Nair and another case
would make it clear that unless an appeal or revision is barred under the Act, an aggrieved person is at liberty to go either on appeal or on revision
as the case may be. In these two cases, it has been held that in respect of the orders of the Rent Controller, passed during execution proceedings,
there is a bar u/s 18(2) of the Act to file either an appeal or a revision under the Act. That is why the Division Bench as well as His Lordship
Justice F.M. Ibrahim Kalifulla, J have held that in respect of orders passed during the execution proceedings, the power of the High Court under
Article 227 of the Constitution of India can be invoked by way of revision.
It is needless to say that the bar contained u/s 18(2) is only in respect of orders passed during the execution proceedings, and there is no bar in
the Act with reference to the other orders passed by the Rent Controller. Therefore it is manifestly clear that an order either condoning or refusing
to condone the delay u/s 5 of the Limitation Act is appealable u/s 23 of the Act. The said view of mine flows from the decision of the Division
Bench of this Court in Fathima Automobiles v. P.K.P. Nair case, where the Division Bench has held in paragraph 7 as follows:
Section 23 of the Act provides for an appeal is comprehensive in nature and is not restricted to orders passed by the Rent Controller under
Sections 10, 14, 15, 16 and 17. As already stated Section 23(1)(b) talks of any person aggrieved filing appeal, as also any order passed.
In the case on hand, here is an order passed by the Rent Controller other than during the execution proceedings which would be embraced by the
phrase ""Any Order passed"" as stated in the above judgment.
The judgment reported in Raju Vs. Mohamadabi, also supports the said view. In the said case, the Chief Justice K.A.Swami held that the Rent
Controller is a civil Court and therefore Section 5 of the Limitation Act is attracted to him. But the said judgment is not on the point, whether an
order passed u/s 5 of the Act is appealable or revisable. At this juncture, I have to clarify that in Vummidi Bangaru Chetty (P) Ltd. v. Spencer &
Co. Ltd. case, though it has been stated that an order passed by a Rent Controller in exercise of power under CPC can be challenged either by
way of appeal or revision, it should not be construed that it refers to an appeal or revision as provided in the Act. The learned Judge has referred
only to appeal or revision under C.P.C. In so far as the Act is concerned Section 25 of the Act deals with the power of revision of the High Court.
The said power is confined only to examine the records of the appellate authority and not directly to examine the records of the Rent Controller.
Therefore, there can be no difficulty in coming to an irresistible conclusion as held by the Division Bench in Fathima Automobiles v. P.K.P. Nair
case that an order passed u/s 5 of the Limitation Act is appealable u/s 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
The learned senior counsel has heavily relied on the judgment of His Lordship Justice S. Ratnavel Pandian (as he then was) in Chinnaraju
Naidu v. Bavani Bai case reported in 1981 II MLJ 354. In the said judgment, this Court has held that orders passed by Rent Controller under
Tamil Nadu Buildings (Lease and Rent Control) Act are of two categories viz. (1) orders which are final orders affecting the rights and liabilities of
any party and (2) orders which are not final orders affecting the rights and liabilities of any party, or to bring about an expeditious final disposal of
the case. The relevant portion of the said judgment is as follows:
All interlocutory orders passed during the proceedings under the Act cannot be said to be orders coming within the meaning of Section 23(1)(b) of
the Act but only the orders which affect the rights and liabilities of the parties, in the sense that they become final orders though passed on
interlocutory applications, such as refusing to set aside an ex parte order etc., are appealable. However, it is open to the parties 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 proceedings.
In the said judgment, the judgment of the Hon''ble Supreme Court reported in Central Bank of India Vs. Shri Gokal Chand, has been relied on
which relates to Delhi Rent Control Act of 1958, wherein like Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act a provision is
made u/s 38(1) of the said Act which reads as follows:
An appeal shall lie from every order of the Controller made under this Act to Rent Control Tribunal (hereinafter referred to as the Tribunal)
consisting of one person only to be appointed by the Central Government by notification in the official gazette.
Considering the said provision the Hon''ble Supreme Court in paragraph 3 has held as follows:
The object of Section 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
Section 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 proceeding, 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 the Act and is subject to appeal u/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.
From the above observations of the Hon''ble Supreme Court and Hon''ble Justice S. Ratnavel Pandian, J (as he then was), it leaves no doubt that
in the case on hand, it is not an interlocutory order to regulate the proceedings to reach a final adjudication. By refusing to condone the delay, the
proceeding between the parties has come to an end seriously affecting the rights of the petitioner. So, though it is an order passed in an
interlocutory application it should be construed as a final order and the same is appealable u/s 23 of the Tamil Nadu Buildings (Lease and Rent
Control) Act.
The learned Counsel Mr. R. Vijayakumar would rely on Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 to
state that the Rent Controller has been given power only to set aside the exparte order and there is no provision either in the Act or in the rules to
condone the delay and therefore the rent controller has to invoke the power u/s 5 of the Limitation Act. Heavily relying on this provision, the
learned Counsel would submit that an order passed, either setting aside or refusing to set aside an exparte order passed under this Act is certainly
appealable. But, an order passed in exercise of the power under the limitation Act, either condoning or refusing to condone the delay, would
therefore not fall u/s 23 of the Act. Though this argument appears to be attractive, the same requires to be rejected for the simple reason that as
held by the Division Bench in Fathima Automobiles v. P.K.P. Nair case, Section 23(b) of the Act is wide enough to take within its ambit any order
of the Rent Controller irrespective of whether the same is passed in exercise of the power conferred under the Act or under any other law unless it
is barred under the Act. It is to be remembered that His Lordship Justice F.M. Ibrahim Kalifulla, J as well as the Division Bench, were of the
opinion that in view of the bar contained in Section 18(2) of the Act, orders passed during the execution proceedings do not fall within the ambit of
Section 23(b) of the Act. Therefore, looking at from various angles, the only irresistible conclusion which can be arrived in respect of the order
under challenge in this revision is that being a final order though passed in an interlocutory application, and though it has not been passed under any
of the provisions of the Act and passed only u/s 5 of the Limitation Act, since appeal is not barred either u/s 18(2) or under any other provision of
the Act, this order is appealable u/s 23(b) of the Act.
In that view of the above conclusion, this revision before this Court under Article 227 of the Constitution of India is not maintainable as there is
an alternative remedy of appeal. I am also conscious of the fact that simply because there is an appeal remedy available to the party, this Court is
not precluded from exercising its power under Article 227 of the Constitution of India. But it is a settled Law that the power of this Court under
Article 227 of the Constitution of India should be exercised sparingly, that too in exceptional cases. The order under challenge does not fall under
any of the categories enumerated by the Hon''ble Supreme Court in various decisions so as to exercise the supervisory power under Article 227 of
the Constitution of India.
However, while holding that this Court has no power to entertain the revision, under Article 227 of the Constitution of India, the order under
challenge is appealable, in the interest of justice this Court is inclined to give an opportunity to the petitioner to prefer a regular appeal before the
appellate authority, if he so desires. If any such appeal is preferred, the period spent on the present legal fight should be excluded while computing
the period of limitation for the purpose of such appeal. It is also made clear that in this order, no opinion is expressed regarding the merits of the
reasons stated by the petitioner for the delay.
In the result, the civil revision petition is dismissed as not maintainable. Consequently, the connected M.P.(MD) No.1 of 2007 is also
dismissed. No costs.
The petitioner is at liberty to prefer an appeal against the impugned order before the appellant authority, if he so desires. If any such appeal is
preferred, the appeallate authority is directed to exclude the time spent in this revision before this Court, while calculating the period of limitation for
the purpose of appeal. The registry is also directed to return the original documents to the petitioner to enable him to prefer appeal.