Thirupathi Nadar vs S.V.P.M.S. Kandasami Nadar

Ramaprasada Rao, J.—Both the civil revision petitions are filed by the tenant. The proceedings were initiated by the respondent-landlord under S. 4 of the Madras Buildings (Lease and Rent Control) Act 1960, hereinafter referred to as the Act. The Rent Controller raised the rent from Rs. 32 to Rs. 170-89. Both the petitioner and the respondent appealed against the order of the Rent Controller. The appellate authority refined the rent at Rs. 202-50 and thus allowed the respondent''s appeal in part and dismissed the petitioner''s appeal. Aggrieved against the said order, the petitioner filed in the District Court, Ramanathapuram, under S. 25 of the Act, two revision petitions, C.R.P. No 21 and 23 of 1964 against the orders of the appellate authority. Both the revision petitions came up for hearing before the learned District Judge on 31st August, 1965. They were dismissed for default. I.A. No. 330 of 1965 was filed for the restoration of the C.R.P. No. 21 of 1964 and I.A. No. 337 of 1965 was filed for the restoration of the C.R.P. No. 23 of 1964. The former application was dismissed on 9th December, 1965 and the latter on 16th December, 1965. The learned District Judge was of the view that the application for restoration of civil revision petitions filed under S. 25 of the Act not having been specifically provided for under the Act or the rules framed thereunder, they were not maintainable. On the merits, he was of the view that there was no sufficient cause for non-appearance of the petitioner''s counsel and ultimately dismissed the application. As against this, the tenant-petitioner has filed two civil revision petitions questioning the legality and propriety of the orders of the learned District Judge. Mr. G. Ramanujam, learned counsel for the petitioner, urges that since a revision under S. 25of the Act is provided therein to an ordinary civil court, which is bound by the common law procedure of the land, the applications should dealt with under the relevant provisions of the CPC and are, therefore, maintainable in the eye of law. He would urge that the provisions of the law quoted by a litigant for relief cannot be the sole guide to determine rights of parties, if otherwise the party is entitled to redress in law. He would also state that the lower court erred in not exercising its jurisdiction to set aside the ex parte order, though the merit warrant the same. Mr. Shanmughavel learned Counsel for the respondent, arguing contra, maintains that the order of the learned District Judge is correct and there being no express provision in the Act for restoration of petitions filed under S. 25 of the Act, in the District Court, ultimately dismissed for default, the view of the learned District Judge is well founded. His alternative case is that even on merits no case has been made out for restoration of the applications.

Before adverting to the respective contentions of parties, it is necessary to observe the relevant provisions of the Act in so far as the petitions before me are concerned. In compliance with the observations made by a Division Bench of this court in Sahul Hameed Rowther Vs. K.C.P. Mohideen Pichai, that it is desirable to frame rules making at least some of the important provisions of the Code applicable to proceedings under the Madras Buildings Lease and Rent Control Act, then prevailing, certain of such provisions of the CPC were made applicable. Even after the passing of the present Act and to achieve the objective as above to adopt certain provisions of the Civil Procedure Code, rules 18 and 23 of the Madras Buildings (Lease and Rent Control) Rules of 1961 expressly provided for the procedure to be followed by the Rent Controller and the appellate authority functioning under the Act while disposing of applications and appeals under the Act. Inter alia, rules 18 and 23 empower the Controller and the appellate authority to deal with the applications for restoration of petitions and appeals dismissed for default. As against the order of the appellate authority, a revision under S. 25 of the Act is provided to the District court. The scope of the revision powers of the District Court under S. 25 of the Act are wider than that under S. 115 C.P. Code. As the Supreme court observed in Moti Ram Vs. Suraj Bhan and Others, the words ''legality, regularity or propriety of the order are wide enough to cover both questions of law and fact and go far beyond the revisional jurisdiction strictly so called. But neither the legislature nor the rule-making authority has prescribed any special procedure to be followed by the District Court while exercising revisional jurisdiction under S. 25 of the Act.

In such a conspectus of the provisions it has to be considered whether the non-prescription of the procedure to be followed by the District Court hearing revision petitions under S . 25 of the Act, is deliberate, or whether it has any particular significance of its own? The learned counsel for the respondent states that it has a special significance, and, in any event, the District Court being a revising authority, cannot interfere with an order of dismissal for default, in the absence of a specific provision to that effect in the Act He invites my attention to Sec. 4 of the C.P. Code. In my view this will not help the respondent. It should not be understood that the Mode has no application at all to a proceeding under a special enactment. Sec. 4 C.P. Code only says that where there is a conflict or inconsistency between the procedure prescribed by the special Act and that invisaged by the Code, the former will prevail. The question posed in the instant case is where the special law is silent as to the procedure to be applied, to a proceeding under the Act in a civil court, what is the form of procedure to be adopted? My attention was drawn to the case in T.K. Chennakesavalu v. Mansukhlal (1960) 1 M.L.J. 300. In this case, the District Judge abdicated his power to the Commissioner appointed by him under Order 26 rule 2 C.P. Code, and the Commissioner was directed to enquire into the relevant facts relating to the subject matter, such as, whether there was such subletting, as to who are the persons in occupation of the property etc. Natesan J. held that such an order wag wholly beyond the jurisdiction of the learned District Judge. The scope of the directions given by the District court to the Commissioner appointed by him was observed to be beyond the jurisdiction of the District Judge, but it was not held in that case that the provisions of the CPC are not applicable to the proceedings before the District Judge hearing the revisions under S. 25of the Act. Even so, in Seethalakshmiammal v. Rajammal (1965) 1 M.L.J. 287 cited by the learned counsel for the respondent is in inapplicable to the present discussion. That was a case where the Rent Controller delegated his judicial functions to determine fair rent to a Commissioner appointed for the purpose by him. It was held by Kailasam J. that such a delegation is wholly unwarranted. Strong reliance however was placed Mr. Shamughavel on Janakiamma v. Krishna AIR 1953 T.C. 37. Even this decision would not assist the respondent because the main ratio in that case revolved round the admitted fact that there was a special provision in the Act, which was being reviewed in that decision regarding appeals and therefore, the court expressed the view that the provisions of the Civil Procedure Code, and particularly S. 14 therein cannot apply. This was obviously on the principle that the special excludes the general Finally, the argument was that in the absence of any specific provision, it should be held that the District Court has no power set aside an order of dismissal. This proceeds on an erroneous assumption. When once the forum to adjudicate rights of parties is the civil court, and if its jurisdict on to decide such mailers is not trammeled by any special or a local law, then the common law procedure as contained in the CPC is applicable by necessity. An avoidance of such an application by common law procedure by a civil court would lead to anomalous results, if in a given case, there is no prescription as to the procedure to be applied by such a civil court which is obliged to hear justiciable matters arising under a special enactment. The civil court, if not bound by the Civil Procedure Code, cannot easily find its way to the adjudication of the rights of parties before it because the special Act which vests jurisdiction in it to scrutinise the legality, propriety and regularity of the orders passed by the Tribunals below it, fails to set down any standards or modes of procedure to be followed. A legal stalemate will be created and civil courts will become helpless at one particular point of time, if it were not to attract the ordinary procedural norms in the Civil Procedure Code. The instant case is an example. The court hearing the applications for restoration of a dismissed revision petition is a civil court. There are no rules set to regulate the hearing of such revision petitions dismissed by the District court. Nevertheless, it is functioning not as a quasi-judicial, Tribunal specially constituted but as a civil court exercising judicial function under the common law of the land. In such circumstance, it cannot draw its powers from the fountain source of common law procedure, which is otherwise available to it. There is obviously no interdict against such adoption of the common law procedure by any of the provisions of the special enactment in question. As pointed out by Viscount Haldane L.C. in National Telephone Co. v. Postmaster General L.R. 1913 A.C. 540 at page 552.

When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decisions likewise attaches.

Lord Parker of waddington in the same case observed at page 562:--

Where by statute matters are referred to the determination of a court of record with no further provision the necessary implication is. I think that the court will determine the matters as a court. Its jurisdiction is enlarged but all the incidents of such jurisdiction including the right of appeal from its decision remain the same.

A similar view was expressed by the Privy Council in Adaikkappa Chetti v. Chandrasekhara Thevar 74 I.A. 204 where it has stated the rule in the following terms at page 271.

The true rule is that where a legal right it in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto....

The District Court functioning under S. 25 of the Act not being a Tribunal acting persona designata, but being one functioning as an ordinary civil court, the above standard set up by the law Lords has to apply and had to be applied. This much being according to me indisputable, I am of the vies that the District court acting under S. 25 of the Act as a civil court can apply the provisions of the CPC as the procedure provided in the Code should be followed by it in all proceedings before it as a court exercising civil jurisdiction. The learned District Judge erred in holding that the applications for setting aside the orders of dismissal for non-appearance is not maintainable

On the merits, the learned District Judge was apparently greatly influenced by the finding given by him on the first point. Merely because two counsel are on record, it cannot be said as a matter of legitimate inference that if one counsel was engaged elsewhere, the other was free. The learned District Judge did not approach the aspect from this angle. Further, he has the jurisdiction to probe into the regularity, and propriety of the order of the appellate authority. This, as pointed out by the Supreme court in Moti Ram Vs. Suraj Bhan and Others, is very wide. This non-explanation for the absence of the second counsel on record by itself is not sufficient to refuse to exercise the jurisdiction vested in him by the special law to see whether the order impugned is proper or regular besides being legal. In the peculiar circumstances of this case I am satisfied that the learned District Judge misinterpreted and misapprehenced the facts resulting in injustice. I therefore set aside the order of the learned District Judge and restore the applications on the file of the District court, Ramanathapuram at Madurai, for being heared and disposed of in the usual manner. The civil revision petitions are allowed. There will be no order as to costs.