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Judgment
Srinivasan, J.—When C.M.P. No. 17579 of 1995 came up before us on 11.1.1996, counsel on both sides requested us to take up the
appeal itself for disposal. Accordingly, we directed the appeal to be posted along with the C.M.P. to this date for final disposal. We heard the
appeal today. This Writ Appeal was taken up in the morning and Mr. M. Ranka, counsel for the appellant argued for more than two hours. Mr.
P.K. Sivasubramaniam, counsel for the second respondent replied to his arguments and at the end of his reply, we called upon Mr. M. Ranka to
meet the points raised by the 2nd respondent''s counsel. It was pointed out by the Court that the original records in the case are giving a different
picture from what was mentioned by Mr. M. Ranka in his opening arguments. Mr. Ranka raised his voice and shouted at the Court and he did not
allow the Court to complete the observations, which it wanted to make. Hence, the Court had to direct the Registry to issue a notice of contempt
to Mr. M. Ranka to show cause why he should not be punished for contempt. The notice had been directed to be made returnable on 19.2.1996.
Mr. Ranka was then called upon to continue his arguments on behalf of the appellant, but he refused to continue his arguments. In view of the
fact that the arguments were heard by this Court at great length, when Mr. Ranka made his opening submissions and Mr. P.K. Sivasubramaniam
gave his reply and the fact that all the records in this case have been gone through by the Court, we proceed to deliver the judgment in this case.
The appellant was a tenant under the 2nd respondent in respect of a shop in the ground floor of the premises at No. 36, Perumal Koil Garden
Street, Madras-79 on a monthly rental of Rs. 500/-. The appellant claimed to have given an advance of Rs. 6,000/- under a rental agreement
dated 6.1.1990. A notice was issued by the 2nd respondent to the appellant through a counsel calling upon the appellant to vacate the premises on
the ground that it was required by the 2nd respondent for her own occupation. There was no reference in the notice to any arrears of rent or
default in payment of rent. The notice was issued on 3.7.1993. The appellant sent a rely through a counsel on 16.8.1993, denying the bona fides of
the 2nd respondent in the matter of own occupation.
4.Thereafter, the 2nd respondent filed R.C.O.P. No. 1920 of 1993 on two grounds, (1) default in payment of rent from 1.11.1992 to 30.6.1993,
and (2) for own occupation. The appellant entered appearance after receipt of summons and filed a counter affidavit. After taking several
extensions of time therefor, the counter affidavit was filed on 13.12.1993.
5.The 2nd respondent filed M.P. No. 874 of 1993 u/s 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960 as
amended by Act 23 of 1973 (hereinafter referred to as ''the Act'') for directing the appellant to pay arrears of Rs. 5500/- tailing which all
proceedings should be stopped directing the eviction of the appellant from the petition premises. In the affidavit filed in support of the said petition,
it was stated by the 2nd respondent that the appellant was guilty of wilful default in payment of rent from 1.11.1992 to 30.9.1993 and that the
appellant was not entitled to contest the proceedings in view of the provisions of section 11 of the Act, without paying the entire arrears of rent. A
counter affidavit was filed by the appellant in that application making a general denial of all the allegations made by the 2nd respondent. It was
stated in the counter affidavit that all the allegations made by the 2nd respondent were false and that there was no arrears of rent. The 2nd
respondent was called upon to prove the same strictly.
That application was heard on 31.3.1994. The Rent Controller passed a detailed order recording all the contentions of both sides. The Rent
Controller pointed out in the said order that after the filing of the Rent Control Petition, a sum of Rs. 2500/- was paid by the appellant to the 2nd
respondent on three occasions, i.e. Rs. 1500/- on 9.12.1993, Rs. 500/- on 4.2.1994 and Rs. 500/- on 4.3.1994. It has to be noted here that on
the docket of the main R.C.O.P. the three payments are recorded and the counsel for the 2nd respondent herein had also endorsed the
acknowledgment of receipt of the said payments without prejudice to the rights of the 2nd respondent. After giving credit to the said payments, the
Rent Controller directed the appellant to pay the arrears of rent for the period from 1.4.1993 to 31.3.1994 at the rate of Rs. 500/- per mensem on
or before 15.4.1994. It was made clear in the said order that if there was default in payment of the amount on the part of the appellant, further
proceedings will be stopped and eviction ordered. The appellant, who contested the application, through a counsel, did not comply with the order.
On 18.4.1994, the 2nd respondent filed a memo to the effect that the appellant had not complied with the order dated 31.3.1994. Thereupon, the
Rent Controller passed an order allowing the petition as prayed for therein. On the same day, the Rent Controller passed a separate order on the
main R.C.O.P. allowing the same and granting two months'' time for vacating the premises in question.
The 2nd respondent then filed E.P. No. 135 of 1995 on 23.2.1995 praying for execution of the order of eviction. The Rent Controller passed
an order on 1.3.1995 directing delivery of the premises by 20.3.1995. In the order, it has been noted that the order of eviction was passed after
contest and that there was no appeal nor was there any order of stay. It is also to be noted that the Execution Petition was accompanied by a
certified copy of the decretal order, which shows that the order of eviction was passed after contest. On 7.3.1995 the 2nd respondent filed M.P.
No. 180 of 1995 for a direction to the bailiff to take police aid for breaking open the lock in the petition premises. In the affidavit, it is stated that
pursuant to the order directing delivery, warrant was taken on 6.3.1995 to the petition premises and it was found that the appellant herein
deliberately kept the premises under lock and key and there was an attempt to commit breach of peace on seeing the bailiff, and hence, the bailiff
could not proceed with the execution of the warrant for want of orders for braking open the lock and police aid. He also filed M.P. No. 181 of
1995 praying for a direction to the bailiff to break open the lock. The application for police aid was dismissed by the Court on the ground that it
was not necessary at that stage. The other application for breaking open the lock, was ordered on that day itself. Later, on 15.3.1995 the 2nd
respondent filed M.P. No.205 of 1995 for a direction to the bailiff to take police aid to execute the warrant. In the affidavit filed in support of that
application, it was alleged that the bailiff took the warrant on 10.3.1995 to the premises; but it was found that the appellant herein kept it locked
and attempted to commit breach of peace on seeing the bailiff. That application was ordered by the Court on that day, in view of the fact that the
bailiff could not deliver the possession of the premises even after a second attempt. The warrant was again issued on 17.3.1995 and the bailiff
went to the Police Station along with the Agent of the 2nd respondent on 20.3.1995. As the Sub Inspector of Police was not available on that day,
the police officials refused to give police aid. Hence, the bailiff could not execute the warrant on that day also and he made an endorsement on the
warrant accordingly. The warrant was re-issued on 20.3.1995 and it was taken for execution to the premises on 23.3.1995. The bailiff was
accompanied by the Sub Inspector of Police and some other police officials, besides the Agent of the 2nd respondent.
The Report of the bailiff shows that at the premises in question, the appellant''s Manager was present and the moveables inside the premises
were removed by the appellant''s Manager and others. Thus, the premises became vacant and it was delivered to the 2nd respondent. The bailiff
had enclosed to his report a statement given by the agent of the 2nd respondent. In that statement, the agent of the 2nd respondent had stated that
at the premises, the appellant''s husband, being her Manager, was present along with his people and that they removed all the movables including
the telephone instrument and thus vacated the premises. He made an endorsement mat he took possession thereafter. The delivery of possession
has been witnessed by two persons by name Ashok Kumar and P. Mahalingam, who have attested the warrant. The husband of the appellant has
also affixed his signature on 23.3.1995 to the said warrant.
On 24.3.1995, the appellant filed M.P. No. 245 of 1995 for not recording delivery in E.P. No. 135 of 1995. The prayer is however
unintelligible, as it reads:
that this Hon''ble Court may he pleased to pass an order for NEED NOT RECORDED the delivery in E.P. No. 135 of 1995 and pass such
further.....''
On the same day, he filed another petition for re-delivery of the premises. In the affidavit filed in support of the said application, the appellant has
stated very clearly that after enquiry in M.P. No. 874 of 1993, the Court passed an order of eviction against the appellant on 18.4.1994, against
which she wanted to prefer an appeal. She has also mentioned that she had filed an urgent copy application in Copy Application No. 4068 of
1994, and that the copy was not furnished to her till then. When those applications were pending, Mr. M. Ranka, the present counsel for the
appellant in this appeal, filed vakalath on behalf of the appellant in E.P. No. 135 of 1995 with an endorsement of consent for change made by the
prior counsel (Mr. B. Sundharlingam). That vakalath was signed by the appellant on 18.4.1995 and presented in Court on 21.4.1995. But,
significantly, the endorsement of consent for change was made on 23.3.1995 by the previous counsel. Obviously, the appellant got the
endorsement of consent in a blank vakalath form on the very day on which delivery of possession was effected to the 2nd respondent herein.
When the matter was pending thus in the executing Court, the appellant filed the writ petition (W.P. No. 6572 of 1995), out of which this Writ
Appeal arises, on 19.4.1995 with a prayer to call for the records in R.C.O.P. No. 1920 of 1993 and E.P. No. 135 of 1995 and to declare the
order dated 15.3.1995 passed in that E.P. to be ultra vires, illegal and unjust and issue a writ of mandamus calling upon the Rent Controller to
direct re-delivery of the petition scheduled premises from the 2nd respondent to the appellant. The Rent Controller was made the 1st respondent
and the landlord was made the 2nd respondent in the Writ Petition. In the affidavit filed in support of the Writ Petition, the appellant chose to make
an allegation that her counsel did not inform her about the conditional order dated 31.3.1994 passed by the Rent Controller as well as the sub
sequent order dated 18.4.1994 allowing M.P. No. 874 of 1993 and R.C.O.P. No. 1920 of 1993. The appellant has also made an allegation that
after 4.3.1994, she did not attend the hearings before the Rent Controller as advised by her counsel. It is further alleged in the affidavit that in
January, 1995, the appellant developed a serious slip disc problem as a result of which, she was admitted in IMS Hospital, Ambattur, Madras on
23.1.1995 and discharged therefrom on 31.1.1995 without any relief. She has claimed that she was under treatment from a Puthur Bone Setter
during February, 1995 and continued to be bed ridden in March, 1995. According to her till 22.3.1995 neither she nor her husband was aware of
the out-come of the R.C.O.P. or any other proceedings emanating therefrom. It is further stated that her husband is a mentally imbecile person and
a man of weak intellect and imperative impulses and his reasoning capacity is detective even though his emotional state of mind sometimes presents
an analogy to that of a healthy person. It is alleged that without any kind of prior notice, on 23.3.1995, the 2nd respondent''s son Mr. Nandagopal
went to the shop of the appellant with the Court bailiff and a posse of policemen and women-police and gate-crashed into the petition premises at
about 11.30 a.m. when the husband of the petitioner had just opened the shop. It is thus admitted in the petition that her husband, who is said to be
mentally imbecile person, opened the shop in the regular course of business at about 11.30 a.m. on 23.3.1995. It is further alleged that the bailiff
and the police constables unceremoniously threw out some of the movables of the appellant on the public road and locked the premises.
Allegations are made in the affidavit that some movables of the appellant continued to be inside the premises and that she contacted her Advocate
Mr. Sundharlingam, who expressed sorrowful surprise over the episode and pleaded ignorance about any execution proceedings having been
taken out by the 2nd respondent. It is stated that on smelling something fishy, the appellant made further enquiries through her present counsel Mr.
M. Rank to know the untold part of the sordid tale of respondents 1 and 2 acting in tandem with each other in clandestine manner. Reference is
made to the orders in the E.P. and the petitions M.P. Nos. 245 and 246 of 1995 for not recording delivery and for re-delivery. It is also alleged
that after exchange of hot words between the appellant and her former counsel, the counsel abruptly returned the brief with incomplete papers to
the appellant and thereafter, refused to give no-objection letter whereupon, a legal notice was issued to him through her present counsel on
3.4.1995. It is stated that in reply thereto, the present counsel received the consent for change of vakalath and a copy of the counter filed in the
main R.C.O.P. Obviously that statement cannot be true, as the vakalath filed by the present counsel in the court of the Rent Controller shows that
the endorsement of consent for change was made as early as on 23.3.1995. Nothing has been alleged in the affidavit of the appellant as regards
the said date mentioned below the said endorsement. The affidavit proceeds to set out certain grounds of challenge as against the validity of the
orders passed by the Rent Controller and the proceedings in execution. Some of them are wholly unintelligible and it is not necessary for us to set
out the same in detail, as the counsel for the appellant has argued the matter at great length. We would rather refer to the arguments, instead of the
grounds raised in the affidavit filed in support of the writ petition.
On 27.4.1995, this Court ordered notice of motion in the Writ Petition, returnable in eight weeks and permitted issue of private notice.
Thereafter, on 13.6.1995, the present counsel for the appellant made endorsements on M.P. Nos. 245 and 246 of 1995 to the effect that the said
petitions may be dismissed as not pressed. On the strength of the said endorsement, the Rent Controller dismissed the said applications.
After the 2nd respondent entered appearance and filed counter affidavit, the matter was heard in detail by a learned judge of this Court, who
passed an order on 16.8.1995 dismissing the Writ Petition. The learned judge had sent for the entire records in the proceedings in the main
R.C.O.P. as well as the Execution Petition and gone through the same fully. The learned judge had taken pains to have the reports of the bailiff
dated 10.3.1995 and 23.3.1995 translated officially into English and extracted portions therefrom in his order. After referring to the records, the
learned judge observed that it is clear that the order of eviction was passed on 18.4.1994 and the same was executed on 23.3.1995 in E.P. No.
135 of 1995. The learned judge referred to the withdrawal of M.P. Nos. 245 and 246 of 1995 in E.P. No. 135 of 1995. Ultimately, the learned
judge expressed his opinion that the appellant had/has alternative remedy provided in the Act and in the CPC and that it is not proper for this court
to entertain the Writ Petition under Article 226 or 227 of the Constitution of India, having regard to the facts of the case and the averments made in
the affidavit of the appellant and the counter affidavit of the 2nd respondent, when disputed questions of fact arise for consideration. The learned
judge has also observed that merely because there are some discrepancies about the dates of passing of the order of eviction and the date of
execution mentioned in the counter-affidavit of the 2nd respondent and assuming that there was delay in furnishing copies of the order by the Court
of the Rent Controller, there was no justification to entertain the Writ Petition by by-passing the regular remedy available to the petitioner/appellant
herein. The learned judge distinguished the rulings cited by the appellant''s counsel by pointing out that those cases were extraordinary, cases
where gross injustice was done and the orders were patently illegal. Aggrieved by the said order of the learned single Judge, the appellant has
preferred this appeal.
At the outset, we must point out that the language used in the Memorandum of Appeal is hardly befitting an appeal in this Court, particularly,
when it is against an order of a learned judge of this Court. The counsel ought to have exercised proper care and restraint before drafting the
grounds. To put it mildly, we find that the Memorandum of Appeal has been drafted in a reckless manner and with extreme cussedness.
As stated earlier, learned counsel took more than two hours for his arguments, which can be summarised as follows:- (1) The learned single
judge is in error in observing that the appellant has other remedies available to her under the Act and the Code of Civil Procedure. According to
him, there is no provision in the Act or the Rules for directing re-delivery. (2) Even if there is any alternative remedy, it is already time-barred and it
will be infructuous. (3) The existence of any alternative remedy is not a bar to a petition under Article 226 of the Constitution of India. (4) There is
a clear violation of the rules of natural justice, in as much as the Rent Controller has passed an order of delivery of possession in execution, without
any notice to the appellant, when an order of eviction was passed ex parte. (5) The defects pointed out by the appellant go to the root of the
jurisdiction of the Rent Controller and all the orders passed by him, including the order dated 31.3.1994, are null and void. It is contended that an
order u/s 11(4) of the Act can be passed only after the Rent Controller determines the arrears of rent to be paid. According to counsel, the order
dated 31.3.1994 is vague and unintelligible. (6) No appeal lies against the order of delivery in E.P. No 135 of 1995, in view of the provisions of
Section 18(2) of the Act. Thus, no alternative remedy is available as against the order passed in execution. (7) The 2nd respondent has admitted
that he has let out the premises to a third party, after taking delivery, which is against the provisions of the Act and it entitles the appellant herein to
seek re-delivery. According to counsel, that circumstance should be taken into account in this appeal itself and appropriate remedy should be given
to the appellant. (8) The delivery of possession is ineffective, in as much as the bailiff had not prepared any inventory of the movables found in the
premises. The bailiff has merely reported that the movables were removed by the manager of the appellant. It is stated by the counsel that the
appellant had not appointed any manager. There was also no order enabling the bailiff to break open the locks. It is submitted that when the bailiff
went to the premises only on 10.3.95 the court could not have ordered the breaking open of the locks even on 7.3.1995:
Appellant''s counsel has also stated that he filed a statement before the learned single judge containing as many as nine points of law, none of
which has been considered by the learned judge. The said points have been extracted fully in the Memorandum of Appeal in Ground No. 10.
Appellant''s counsel repeated that said contentions before us.
Appellant''s counsel cited some rulings before us, in support of his contentions. We will advert to the same after deciding the contentions on
facts.
We will now deal with the said contentions seriatim. Even at the outset, we would like to point out that none of them has any merit.
There is no merit in the first contention that there is no provision in the Act or in the Rules for directing re-delivery. The appellant herself filed
two petitions, M.P. Nos. 245 and 246 of 1995 for not recording the delivery and directing re-delivery, even before the Writ Petition was filed. In
those petitions, Section 151, C.P.C. has been quoted as the relevant provision of law. Section 18 of the Act provides that every order passed
under the Act shall be executed by the Rent Controller as if such order is an order of a Civil Court and for that purpose, the Controller shall have
all the powers of a civil court. Pursuant to the said provision, the appellant filed petitions for re-delivery and for not recording the delivery effected,
u/s 151, C.P.C. Even if there is no such provision, if the contention of the appellant is that the order directing delivery was null and void and that
there was patent illegality in effecting delivery, the Rent Controller has the necessary power to set aside the proceedings of delivery and direct re-
delivery. When the appellant had in fact invoked such a provision and approached the Rent Controller for the said reliefs, there was no reason or
necessity for her to rush to this Court with a Writ Petition and thereafter, withdrawing the application for re-delivery, etc. It must also be pointed
out by us at this stage that the affidavit filed in support of the Writ Petition, has contained several false averments and the appellant is clearly guilty
of not only making false statements, but also suppressing some material and relevant facts. We have narrated the facts chronologically in the
beginning of this judgment, as evidenced by the records in the Rent Control-proceedings and the execution proceedings. The appellant bad made a
wild allegation in the affidavit filed in support of the Writ Petition that the Rent Controller acted in tandem with the 2nd respondent. There is
absolutely no basis whatever for making such an allegation.
In the Memorandum of Grounds of appeal. Ground No. 9 refers to the possibility of the 1st respondent (Rent Controller) tampering with the
records and interpolating an order in the main R.C.O.P. after receiving notice in the Writ Petition. The allegation is not only wild, and reckless, but
would also amount to Contempt of Court. We have perused all the records and we do not find even a remotest possibility of the records having
been tampered with. The same ground also suggests that there is something fishy about the entire proceedings in the R.C.O.P as well as the E.P.,
which could be smelt from the fact that while the order dated 18.4.1994 passed in the M.P. is in English, the order passed on the same day in the
main R.C.O.P. is in Tamil. This ground also shows the audacity of the counsel for the appellant in slinging mud against the Rent Controller and the
officials of the Court of Small Causes, without even ascertaining the facts correctly. It is seen from the records that the order in M.P.No.874 of
1993 written by the Rent Controller on the docket on 18.4.1994 as well as the substance of the order in the R.C.O.P. No. l920 of 1993 written
on the docket on the same day, are both in English. But the judgment in R.C.O.P. 1920 of 1993 containing the issues framed and the reasoning for
the decision is typed in Tamil having been dictated to a Shorthand writer in open Court on 18.4.1994. The decretal order is also in Tamil. Hence,
there is no merit whatever in the aforesaid ground.
When the appellant chose to change her counsel and engage a new counsel, it is the duty of the new counsel to have an inspection of the
records in the concerned Court and ascertain the facts, if be was of the opinion that all the relevant records were not handed over to him by the
former counsel. The appellant has also chosen to make a very wild allegation that the former counsel did not inform her either of the order dated
31.3.1994 or the order dated 18.4.1994. In the affidavit filed in support of M.P.Nos.245 and 246 of 1995, the appellant did not choose to allege
her ignorance of the orders passed in the proceedings u/s 11(4) of the Act or in the main R.C.O.P. The Writ Petition deserve to be dismissed in
limine even on the ground that the appellant has chosen to make false averments in the affidavit.
The second contention that there is no alternative remedy or that the remedy, if any, will be time barred and infructuous, is also unsustainable.
As pointed out already, the appellant had applied for re-delivery etc. in M.P. Nos. 245 and 246 of 1995. The appellant could well have continued
the same and obtained appropriate orders. In the alternative, the appellant could have challenged the orders passed in the proceedings u/s 11 or
the main R.C.O.P. by filing appeals against the same. There is no merit in the contention that the remedy was time barred, as admittedly the
appellant applied for the certified copy of the order dated 18.4.1994 even on 20.4.1994 and the copy was made ready only on 16.6.1995. The
appellant had ample time to file the appeal against the orders passed in the M.P. and the R.C.O.P. when the Writ Petition was filed and even
thereafter.
At this stage, it is necessary to refer to one argument vehemently advanced by counsel for the appellant. The order was passed on 18.4.1994
by the Rent Controller in M.P. No. 874 of 1995 allowing the same and consequently in the R.C.O.P. No. 1920 of 1993 allowing the same. An
application for the copy of the order was filed on 20.4.1994 by the appellant''s former counsel. In that application, copies of decree and order
made in M.P. No. 874 of 1993 were applied for. Appellant''s counsel was vehemently submitting that the copy application was filed for copies of
the fair and decretal order in the main R.C.O.P. No. 1920 of 1993. To verify the correctness of the same, we sent for the original copy application
as well as the relevant register maintained by the Court of Small Causes. We find that the original copy Application No. 4068 was tiled on
20.4.1994 only for the certified copies of the decree and order made in M.P. No. 874 of 1993 and there was no application for the copies of fair
and decretal order in R.C.O.P. No. 1920 of 1993. The register also contain entries to that effect. Another argument advanced in this connection
by the appellant''s counsel is that the appellant had applied for the said copies on 20.4.1994 and furnished stamps on 24.6.1994, when they were
called for on 22.6.1994, but the copies were made ready only on 16.6.1995 and taken delivery of by him on 21.6.1995. It is pointed out by the
appellant''s counsel that in the copy application in C.D. No.4039 of 1994 filed on 19.4.1994 by the 2nd respondent''s counsel in the Court of
Small Causes, for copies of judgment and decree in the main RCOP stamp were called for on 22.6.1994 which were deposited on 27.6.1994 and
the copies were furnished to the counsel for the 2nd respondent even on 26.10.1994. It is argued vehemently that the officials in the Court of Small
Causes have colluded with the 2nd respondent and delivered copies applied for by the appellant, after a period of more than one year after the
filing of the application for copies. From this, counsel for the appellant wants this Court to infer that the Rent Controller has also acted in collusion
with the 2nd respondent. But no such inference can be drawn from the above. It may be that there was negligence or mistake on the part of the
staff members in the Court of Small Causes in not furnishing certified copies to the appellant and the 2nd respondent simultaneously, though stamps
were called for on the same day; but that is not a matter, which will affect the validity of the judicial orders passed by the Court of Small Causes
earlier. If at all, it is a matter for taking administrative action against the concerned staff members of the said Court, which we propose to take
separately on the administrative side.
It is also alleged by the appellant''s counsel that another copy application was filed on 7.7.1995 in C.D. No. 4574 of 1995. We sent for the
relevant records and found that C.D. No. is 4514 of 1995 and not 4574 of 1995 as stated by the appellant''s counsel. That application is again
one for copies of the conditional order in M.P. No. 874 of 1993 dated 31.3.1994 and not for the copies of the orders in the main proceedings in
R.C.O.P. No. 1920 of 1993. In that application one stamp was called for on 20.12.1995 and it was furnished on 22.12.195. The copy was made
ready on 5.1.1996, but the counsel took delivery on 12.1.1996. Even at that stage, the present counsel for the Appellant did not take care either
to inspect the fair order dated 31.3.1994 passed by the Rent Controller in M.P. No. 874 of 1993 or get a certified copy of that order.
Incidentally, we have came cross an obnoxious matter which, in our opinion, may prove to be a root cause for the commission of certain
illegalities and even fraudulent acts on the part of the Registry of the Court of Small Causes. It is very unfortunate that such a procedure has been
adopted by the Court of Small Causes at Madras, We have not so far had knowledge of such a practice. We have discovered the same only to-
day when the appellant''s counsel produced before us a certified copy given to him. As stated already, the application is for a copy of the
conditional order in M.P. No. 874 of 1993. For our file, a Xerox copy of the certified copy of the decretal order received by the appellant''s
counsel has been furnished. The said xerox copy reads as follows:-
Petition u/s 11(4) of Tamil Nadu Lease and Rent Control Act 18 of 1960 for eviction on the ground of to pay arrears.
This petition coming on this day for hearing before me in the presence of Tvl.P.K. Sivasubramaniam, Counsel for the Petitioner and of Tvl. B.
Sundaralingam, Counsel for the Respondent and the Respondent called absent and set ex parte, the Court made the following doth order and
decree as follows:
ORDER
Respondent called absent set ex parte,
P.W. 1 examined, Ex.P. marked, Claim proved. Petition allowed. Eviction ordered. Time for eviction 2 months. Counsel''s fee Rs. 100/-
That the Respondent is directed to pay the arrears on or before 15.4.1994 failing which further proceedings will be stopped and eviction be
ordered.
Call on 18.4.94.
Pronounced by me in open Court this the
day of 1991.
Given under my hand and the seal of this Court this the 31st day of March 1994.
(Sd.)......)
15th Judge.
(Sd.)..../3.1.96
Esjee/......Superintendent of Copyists.
It is only on the strength of the said copy, which is ex facie unintelligible, the appellant''s counsel contended before us that the order dated
31.3.1994 was an ex-parte order and that the quantum of arrears have not been determined by the Rent Controller in the said order. We have
gone through the original records now and what we find therefrom is rather shocking. As far as the original order is concerned, it has been passed
by the Rent Controller in detail giving his reasons for directing the appellant to pay the arrears of rent. The order has also taken note of the amounts
paid by the appellant after the filing of the R.C.O.P. and directed the appellant to pay the arrears from 1.4.1993 to 31.3.1994 at the rate of Rs.
500/- p.m. There can be no doubt whatever that the order has complied with the requirements of law. The original order is written by the Rent
Controller on 31.3.1994 on the docket of the petition. That order also shows that it was passed after hearing both sides and therefore, it is not an
ex- parte order. But, unfortunately, the Registry of the Court of Small Causes has used a cyclostyled Form for drafting the decretal order. The
cyclostyled Form reads as follows:-
Petition under Sec................... of Tamil Nadu Buildings (Lease and Rent Control) Act 18/60 for eviction of the respondent/s ""on the ground of
This petition coming on this day for hearing before me in the presence of Tvl. Counsel for the Petitioner/s and of Tvl. Counsel for the Respondent/
and the respondent being called absent and set ex parte, the Courts made the following
ORDER
Respondent called absent set ex parte.
P.W. 1, examined, Ex.P. marked. Claim proved. Petition allowed. Eviction ordered. Time for eviction 2 months. Counsel''s fee Rs. 100/-
Pronounced by me in open court this...... the day of....... 1991.
ESJEE/
15th Judge
Obviously the Form was prepared and cyclostyled in 1991 to be used in the Court of the 15th Judge.
That form has been used by the staff of the Court in this case and the irrelevant portions have been struck off in blue ink in the original decretal
order. The words for eviction on the ground of are struck off in the first paragraph of the preamble and the words ""to pay rent arrears"" are written
there. In the second paragraph of the preamble the words ""and the respondent being called absent and set ex parte'' and the words -""made the
following"" are struck off in blue ink. Instead, it is written in ink ''doth order and decree as follows''. In the operative part of the order, the portion
beginning with the words ""Respondent called absent set ex parte. P.W. 1 examined. P. marked. Claim proved. Petition allowed. Eviction ordered.
Time for eviction two months. Counsel''s fee Rs. 100/-"" are struck off in blue ink by three slanting lines drawn across them vertically. It is then
written in ink:
''that the respondent is directed to pay the arrears on or before 15.4.94 failing which further proceedings will be stopped, & eviction be ordered.
Call on 18.4.1994
Again, at the bottom, the words ''Pronounced by me in Open Court this the day of 1991"" are struck off and it is written in ink ''Given under my
hand and the seal of this Court this the 31st day of March, 1994.
When a xerox copy of this order is furnished to the appellant, the lines drawn in blue ink striking off certain portions do not appear visibly.
Consequently, the xerox copy reads as if the appellant was called absent and set ex parte and that P.W.1 was examined and Exhibits were
marked and that the claim was proved. But at the same time the order refers to the presence of the counsel for the respondent therein. No doubt,
the appellant''s present counsel was justified at first blush in entertaining a wrong impression that the order dated 31.3.1994 was an ex parte order.
But the incongruity in the order must have put him on enquiry and he ought to have sought for a clarification from the Registry of that Court or
inspected the original records to ascertain the facts. But the appellant can never be credited with such innocence, as she was represented by a
counsel and she had filed an affidavit in M.P. Nos. 245 and 246/95. Therefore, we have no reason to believe her version that her then counsel did
not inform her about the orders, as she herself had signed the affidavit filed in support of M.P. Nos. 245 and 246 of 1995 referring to the said
order. As pointed out already, it was the duty of the appellant''s present counsel to have applied for inspection of the records, inspected the
relevant records and then prepared the affidavit for the Writ Petition.
At any rate, we are very much anguished to notice that the Registry of the Court of Small Causes used such cyclostyled forms for drafting the
decretal orders. If there is such a practice, it is wholly illegal and should immediately be stopped. It is the duty of the concerned staff to draft
decretal orders in each and every case separately in accordance with the nature of the order and the contents thereof. No cyclostyled form can be
used therefor. Even if such a form is used, the concerned staff members shall take care to strike off the irrelevant portions very legibly so that there
may not be any misapprehension on the part of any person that such portion continued to be in that order. Further, in all such cases, if xerox copies
are given, the persons, who compare the copies and the Superintendent of Copyists, shall take care to see that the portions struck off in the
original are also struck off clearly in the xerox copies. If the copy is given without doing so, it does not represent the true state of affairs and it
ceases to be a true copy. In this case, it has so happened that the xerox copy furnished to the appellant is not a true copy by the Superintendent of
Copyists. We are taking action against the concerned officials separately on the administrative side. However, the above facts do not in any way
affect the validity of the orders passed by the Rent Controller on 31.3.1994 or 18.4.1994.
As regards the third contention, no doubt it has been held in several cases that the existence of an alternative remedy is not a bar to a
proceeding under Article 226 of the Constitution of India. But it depends on the facts of each and every case as to whether the Court should
exercise its discretionary jurisdiction under the said Article. In this case, we hold that the learned single judge has rightly refused to exercise the
jurisdiction because (1) the appellant has made false averments in her affidavit; and (ii) the alternative remedy has already been availed of by the
appellant in M.P. Nos. 245 and 246 of 1995 and they were withdrawn only after notice of motion was ordered in the Writ Petition.
Fourthly, there is no violation of any principle of natural justice in this case, in as much as the appellant was represented by a counsel, who
contested the matter tooth and nail or her behalf before the Rent Controller. The only order, which has been passed without notice to the appellant
is the order in the execution proceedings. As per the Rules, if an execution petition is filed within two years from the date of the order sought to he
executed, there is no need to issue notice to the judgment debtor, and the Court can direct execution without such a notice. The contention of the
appellant that the order sought to be executed was ex parte and so, notice ought to have been ordered to the appellant in the execution
proceedings, is wholly unsustainable in law and on facts.
The fifth contention is without any substance. There is no defect going to the root of the matter in the proceedings before the Rent Controller.
The Rent Controller has clearly determined the arrears of rent payable by the appellant as on 31.3.1994 and passed an order, which was well
within his jurisdiction u/s 11 of the Act. There is no contravention of the provisions of the said Section in any manner. The order is quite valid and
does not suffer from any infirmity. The contention that the appellant was not aware of the said order is not sustainable on the facts of the case.
There is no merit in the sixth contention that because the order passed by the executing court is not appealable the appellant can approach this
Court under Article 226 of the Constitution of India. If the order of eviction passed by the Rent Controller on 18.4.1994 is allowed to become
final, without there being any challenge to the same by an appeal provided under the Act, there can be no defence whatever to the execution of the
said order in the executing Court by the appellant. The remedy of the appellant was to have challenged the order of eviction taking appropriate
proceedings against the orders passed in M.P. No. 874 of 1993 and in R.C.O.P. No. 1920 of 1993. Without challenging the said orders, the
appellant cannot challenge the order passed in execution in E.P. No. 135 of 1995.
There is no substance in the seventh contention that the premises had been let out to a third party by the 2nd Respondent and therefore, the
appellant has a right to get re-delivery in this proceeding itself. Section 10(5) of the Act provides that where a landlord, who has obtained
possession of a building in pursuance of an order under sub-section (3) or sub-section (3-A) does not himself occupy it within one month of the
date of obtaining possession or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant, who has been
evicted, may apply to the Controller for an order directing that he shall be restored to possession of the building and the Controller shall make an
order accordingly, notwithstanding anything contained in Section 3. At the outset, it should be pointed out that the remedy of the appellant, if at all
is to go before the Controller with an application u/s 10(5) of the Act. In this case, we find that the landlord has not obtained possession on
pursuant to an order made under sub-section (3) or sub-section (3-A) of Section 10 of the Act. The order for possession is made only u/s 11(4)
of the Act on the ground that the tenant has failed to deposit the rent, as directed by the Rent Controller under the said Section. Hence, the
provisions of Section 10(5) of the Act will not apply to the facts of this case. Secondly, sub-section (5) of Section 10 prescribes a time limit.
Before claiming relief under that section it must be proved by the tenant that the letting out of the premises by the landlord to another person was
within six moths from the date of his obtaining possession. Nothing has been alleged in this case as to when exactly the landlord let out the premises
to another person. It is stated that the landlord has himself admitted in his counter affidavit that he had let out the premises to a third party after
getting possession. We do not find any such admission either in the counter affidavit filed in the Writ Petition or in the C.M.P. filed in this Writ
Appeal. There is no other counter affidavit on record filed by the 2nd respondent. Hence, this contention is also rejected.
There is no merit in the eighth contention that the proceedings for delivery are vitiated on account of the absence of any inventory of the articles
removed by the bailiff from the premises in question at the time of delivery. There is a misapprehension of the facts of the case. The reports of the
bailiff and that of the agent of the 2nd Respondent, clearly show that the movables inside the premises, were removed by the husband of the
appellant and his men and there was no question of the bailiff removing the said movables, warranting the taking of an inventory. Hence, this
contention also fails. There is also no substance in the contention that there was no order for police aid or breaking open the locks, as we have
already referred to the relevant facts and the dates on which such orders were passed.
As regards the nine points said to have been raised by the appellant before the learned single judge and set out in Ground No. 10 in the
Memorandum of Writ Appeal, our answers are as follows:-
(a) The fact that the landlord had not in his notice dated 3.7.1993 alleged any default in payment of rent, will not by itself disentitle him to come
forward with a petition for eviction on the ground of wilful default in payment of rent. It is a circumstance to be taken note of by the Court while
deciding the veracity of the version of the landlord. It is certainly open to the tenant to have the landlord cross-examined as regards the failure to
allege arrears of rent in the notice issued prior to the institution of the evicting proceedings. Absence of such an allegation in the notice, however,
will not amount to an admission on the part of the landlord that there was no arrears of rent. It was open to the landlord to explain the said
circumstance and tell the Court why there was no mention of arrears of rent in the notice is sued prior to the tilling of the Rent Control petition. It
should not be forgotten that the notice was issued by a lawyer. In all probability, the omission might have been even due to his negligence.
However, the absence of such a claim in the notice will not by itself lead to the dismissal of the petition for eviction on the ground of wilful default in
payment of rent.
(b) No doubt, the arrears of rent were claimed from 1.11.1992; but in the course of the order passed by the Rent Controller in M.P. No. 874 of
1993, he has clearly pointed out that the rent for the period of five months had been paid in three instalments, to which we have made a reference
already. Deducting the said amount, the Rent Controller directed the tenant to pay the balance, which will be due from 1.4.1993. The Rent
Controller is entitled u/s 11(4) of the Act to direct the payment of all arrears of rent upto the date of payment. Thus, the Rent Controller passed an
order on 31.3.1994 that the arrears shall be paid from 1.4.1993 to 31.3.1994, There is no infirmity whatever in the said order. It is entirely in
accordance with the law.
(c) The order dated 31.5.1994 is a valid one. Therefore, the order dated 18.4.1994 is also valid.
(d) It is not open to the appellant to raise this question as to whether the 2nd Respondent has proved wilful default in these proceedings. If the
appellant had filed an appeal against the order of eviction or the order passed in M.P. No. 864 of 1993, the appellant could have raised that
question. Therefore, this contention is not available to the appellant-
(e) This point (i.e.) ground (e) in main Ground No. 10 is somewhat unintelligible. As we have found that the orders dated 31.3.1994 and
18.4.1994 are valid, the execution proceeding was also valid.
(f) and (g). There may not do any justification for delaying the issue of the certified copy to the appellant. But that will not invalidate the judicial
orders passed by the Rent Controller. We have already said that we are taking appropriate action against the concerned staff of the Court of Small
Causes administratively. The appellant could well have approached the Chief Judge, Court of Small Cases and pointed out the negligence on the
part of he staff in not issuing the certified copy for more than a year, while such a copy was furnished to the opposite party much earlier.
(h) We have already held that there is no violation of the principles of natural justice. We also find that the statutory remedies were not barred or
lost at the time when the appellant filed the writ petition.
(i) The appellant has to blame herself for not resorting to appropriate remedies available in law. She ought to have filed an appeal and was not
justified in preferring a Writ Petition. She has been ill-advised to approach this Court under Article 226 of the Constitution of India with several
false statements in the affidavit. We have also held that she is guilty of suppression of relevant facts.
The following rulings are cited by the appellant''s counsel in support of his propositions:
M/s. India Exports House Private Ltd, v. J.R. Vohra (A.I.R. 1983 Delhi 167);
Bhori Lal v. III Addl. Rent Controller, Delhi (A.I.R. 1983 Delhi 418).
Ganpat Roy v. Addl. D.M. (1985(2) S.C.C. 307)
Dena Ban v. Spl. Dy. Commissioner (A.I.R. 1986 Karnataka 188);
Dr. Smt. Kuntesh Gupta, v. Hindu Kanya Mahavidyalaya (A.I.R. 1987 S.C. 2186); and
an unreported decision of this Court in Amichand v. XIV Judge, Court of Small Causes (W.A. 1477/93, order dt. 8.3.1994)
None of the rulings is applicable to the present case. All of them are either cases in which there was want of jurisdiction on the part of the
concerned Authority or there were patent illegalities in the proceedings vitiating the same. We do not think it necessary in this case to consider that
said rulings in detail and distinguish the same. The facts stated by us earlier, are sufficient to throw out all the legal contentions raised by the
appellant''s counsel and reject the plea that the orders passed by the Rent Controller in the proceedings u/s 11 and in the main R.C.O.P. for
eviction as well as the execution proceedings are invalid. In the unreported judgment of this Court, a Division Bench of this Court has only pointed
out that a Writ Petition cannot be thrown out merely because an alternative remedy is available. We have already referred to that aspect of the
matter and pointed out that each case has to be decided on the facts thereof. In the case decided by the Supreme Court in Ganpat Roy''s case
(1985 (2) SCC 307), there was a clear violation of the principles of natural justice in as much as an opportunity was not given before passing the
order. The Court held that merely because there were provisions for filing appeal, revision and review, they would not justify the passing of an
order without giving an opportunity of hearing to the concerned party. That ruling will have no application to the present case.
Thus, we are satisfied that there is no merit whatever in any of the contentions urged by the appellant. The appeal deserves to be and is hereby
dismissed. The appellant shall pay the costs of the 2nd respondent in this appeal. Counsel''s fee Rs. 5000/-. C.M.P. No. 17579 of 1995 is also
dismissed.
Note: The pronouncement of this oral order commenced at about 1.20 P.M. in the forenoon and it remained part-delivered when the Court rose
for Lunch break at 1.30 P.M. Till then, the appellant''s counsel was present in Court. When the Court rose for Lunch, appellant''s counsel prayed
for leave to be absent in the afternoon session. The Court permitted him to do so. Thus, he was absent when the order was being dictated from
2.30 P.M. to 4.30 P.M. and he was not represented by any other Advocate.