T.N. Krishnamoorthy vs Jagat Textiles

T. Sathiadev, J.—The landlord is the petitioner herein, who filed a petition u/s 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent

Control) Act XVIII of 1960, asking for additional accommodation. He filed I. A. No. 287 of 1979 for amending the petition by stating that due to

typographical error, Door No 16, Manjanakara Street, was not mentioned and Door No. 51, Mahal Street, Madurai, alone was mentioned, but

the description of the property in the petition would necessarily include both the door numbers.

Both the authorities held that (sic) description in the petition would necessarily include both the door numbers (sic) no prejudice could be caused

to the tenant by allowing the amendment, because he has already raised his defence in respect of the entire premises leased to him, he being the

tenant of both the door numbers. It is a corner building in which, in the major portion, the landlord is carrying on his business. Door No. 16, faces

Manjanakara Street, whereas door No. 51 faces Mahal Sixth Street, Madurai.

Aggrieved against this order, C. R. P. No. 2612 of 1979 was filed contending that an amendment cannot be allowed and there is no jurisdiction

in the authorities to allow such amendments. Counsel appearing for the petitioner by relying upon the decision reported in Vikrala

Ramachandracharyulu Vs. Vikrala Srimath Rangacharyulu and Another, was able to convince this Court that the proposed amendment could be

allowed. But during the course of hearing, the counsel for the tenant pleaded that it Is not a genuine omission, but knowingly the petition had been

filed only for one of the door numbers, and each one of the premises is covered by a separate lease deed and rent was also being paid separately.

He relied upon Exhibits B-3 and B-4 to contend that till 1974, rent was being paid separately, and in the manner in which the point is put in the

Civil Revision Petition, it was never canvassed before the authorities, and therefore, it will be possible to the tenant to establish that there are two

distinctive tenancies, and by amending the petition, he cannot secure additional accommodation in respect of two premises. It is to find out these

factual particulars, this matter was remanded, and while so remanding this Court directed that in the event of two separate tenancies being made

out, the landlord will have to fits two separate petitions, and he cannot get over this aspect by seeking to amend the petition, and if it is held that it

is a common tenancy and entire rent was being paid in lump sum, it will be treated as one lease transaction and then the proposed amendment may

be allowed.

This review petition is filed by the landlord stating that, there is no need for remand, and even if there are two tenancies, a single petition is

maintainable, in view of the Division Beach decision in R. Venkatesachary and Others Vs. The Judge, Court of Small Causes and Another, ; R.

Venkatesachary and Others Vs. The Judge, Court of Small Causes and Others, and when such is the position, the amendment, as proposed,

cannot be considered as prejudicial to the interests of the tenant or contrary to law. It is also claimed that there is no need to file two separate

petitions, and therefore the remand made is unnecessary and hence the order requires to be reviewed. This petition is filed by invoking the

provisions of Section 114 and Order 47, Rule 1, Civil Procedure Code.

Counsel appearing for the respondent-tenant contended that when there are two tenancies, two separate petitions, will have to be filed because

each one is a ''building'' within the meaning of Act XVIII of 1960 and when additional accommodation is sought for, it has to be established by the

landlord that both the premises are required for his occupation and it cannot be done by filing one petition, and hence the order of remand does not

call for any interference.

Mr. T.R. Mani, counsel appearing for the petitioner herein, apart from the decision above referred to also relies upon the decision in P.

Govindaswami Naicker Vs. S.R. Kerwar and Others, and the decision in S.M. Gopalakrishna Chetty Vs. Ganeshan and Others, .

In the decision in R. Venkatesachary and Others Vs. The Judge, Court of Small Causes and Others, , in respect of a matter arising under Tamil

Nadu Act XV of 1945, is was held that though the definition of a building in the Act includes a portion, of the building, it does not mean that the

owner of a house, portions of which have been let separately, cannot file an application for obtaining possession of the entire house as a building.

What is sufficient for the landlord is not the question, but whether he requires the entire building ''bona fide'' for his occupation has to be decided.

In the decision in P. Govindaswami Naicker v. S.R. Kerwar (1969) 2 M. L. J. 452, it was held that there is no need for distinct petitions against

each of the tenants to be filed, because of the definition ""building"" in respect of which the relief is asked for against several tenants and the real

question is whether there has been any prejudice caused by the procedure adopted by filing a single petition, and there could be no impediment in

filing a single petition, by the landlord in respect of several tenancies in the same building.

In the decision in S.M. Gopalakrishna Chetty Vs. Ganeshan and Others, in respect of a matter arising under Act XVIII of 1960, the contention

raised that a single petition with regard to different tenancies cannot be filed, was repelled by holding:

Mr. Natesan faintly submitted that a single petition with regard to two different tenancies, although in the same premises, one for residential and the

other for non-residential purpose, is not maintainable. We do not find any substance in such a contention when the tenancy is one.

Mr. Somayajulu, by referring to the decision reported in T.N. Unnamalai Achi v. V. Saminatha Pathar (1980) 93 LW 404 contends that

clubbing together in an eviction petition of residential and non-residential premises is not permissible, and that in the said case, there were three

different premises; two being residential and the third one non-residential, and this Court held:

Merely because a consolidated rent is being paid for the three premises from a particular point of time, it is not permissible for the landlord to club

the three premises together for seeking the relief against the tenant only u/s 10(3)(a)(i) of the Act.

By clubbing the three premises, together, the landlord cannot seek the eviction of the tenant from the non-residential premises when he has not put

forth a case for that relief.

In the light of the two decisions particularly the decision in P. Govindaswami Naicker Vs. S.R. Kerwar and Others, and the decision in R.

Venkatesachary and Others Vs. The Judge, Court of Small Causes and Others, and the decision of the Supreme Court S.M. Gopalakrishna

Chetty Vs. Ganeshan and Others, it cannot any longer be pleaded that a landlord cannot file a single petition in respect of different tenancies,

particularly when the same tenant is in occupation of the concerned premises. The Supreme Court has held that a single petition with regard to

more than one tenancy in the same premises is maintainable, when the tenancy is one.

It was pleaded in this case that a monthly rent of Rs. 680 was being paid for both the tenancies by single payment. But it is only in the civil

revision petition, it is pleaded that there were different tenancies, and that this aspect requires to be investigated. But for this claim this Court would

have confirmed the concurrent findings of the two statutory authorities.

In view of the decision rendered by the Supreme Court and that of the Division Bench, above referred to the decision reported in T. N

Unnamalai Achi v. Saminatha Pathar (1980) 93 LW 404 can have no application. The right of a landlord who seeks for additional accommodation

to file a single petition in respect of different tenancies, having been held to be a proper petition, the tenant can no longer claim that the proposed

amendment cannot be allowed.

It was just before orders could be pronounced allowing the review petition, in view of the binding decisions above referred to, Mr.

Somayajulu, raised an objection that this Court has no power to review its order, since such a provision is not found in Act XVIII of 1960. Hence

the petition bad to be adjourned more than once for further arguments.

Mr. Somayajulu, relied upon the decision reported in S.J.S. Fernandes Vs. V. Ranganayakulu Chetty, which arises under 1949 Act, wherein it

was held that inasmuch as the Act contains no provision for review, there can be no question of any inherent power in the Court, and the CPC not

being applicable, there is no scope for reviewing the order passed by this Court in revision. When the provisions of the CPC are not made

applicable in a self contained enactment, there is no scope for invoking Section 114 or Order 47, Rule 1, Code of Civil Procedure. Inherent

powers of a Court would not extend to exercise of the power of review which practically results in hearing an appeal by the same functionary who

had decided the case; and such a power can be exercised only if it is specifically provided for. There is no concept for inherent power vested in a

judicial Officer to review his own order. Hence, it was held that a review petition is not maintainable in respect of the proceedings initiated under

Madras Buildings (Lease and Rent Control) Act, 1949.

He would then refer to the decision in Punjab National Bank Ltd. Vs. Shri Vikram Cotton Mills and Another, wherein it was held that the

power to review is act an inherent power and it must be conferred by law either specifically or by necessary implication. When there is no

provision in the Act conferring such a power of review, it cannot be exercised. Thus by relying on these two decisions, he would contend that there

being no provision in T. N. Act XVIII of 1960, to review an order passed u/s 25 of the Act, the present petition deserves to be dismissed.

For the proposition that the provisions of the CPC are not applicable in respect of proceedings initiated under Act XVII of 1960, he refers to

the decision reported in Seethalakshmi Ammal v. Rajammal (1965) 1 MLJ 287 wherein it was held that a Rent Controller is not a Court and CPC

is not applicable. In the decision in V. Syed Hanifa Vs. Muhammad Khalifulla, it was held similarly, that the order of a Rent Controller is not an

order of a civil Court, and therefore, no revision would lie u/s 115 of the Civil Procedure Code. In the decision in P. Kesanna Vs. Boya Bala

Gangappa and Another, ; M. Abdul Wahid Sahib Vs. Dewanjee Abdul Khader Sahib, dealing with the applicability of Section 24 of the CPC in

respect of proceedings under Act XV of 1946, it was held true the Rent Controller is a ''persona designata'', and therefore it is not a Court

subordinate to the High Court, and the provision under the CPC could not be invoked. IN the decision in The Rayala Corporation (Madras) Ltd.

1/155 Mount Road, Madras Vs. Syed Bawkar and Co. 1/155 Mount Road, Madras, and Others, it was held by the Division Bench, that the

Controllers under 1949 Act are no doubt persons belonging to the judicial service, ... bus when they hear any petition filed under the said Act, they

are not Courts, and therefore, the CPC will not cover these proceedings. In the decision reported in Rajam Ayyar v. Pavanambal (1949) M LJ

4(sic)9 : 62 L. W. 145 : AIR 1949 Mad 787, it was held that a revision u/s 115 of tae Civil Procedure Code, would not lie because the appellate

authority acting under the said Act, is a ''persona designata''.

In the decision in Sha Devichand Moolchand Vs. Sha Dhanraj Kantilal, a Division Bench held that the previsions of the CPC would not apply,

and in the absence of any such provision there can be no relief, and the necessity for a rule to be made providing in appropriate cases for the

bringing on record of legal representative on the death of the original applicant was also pointed out.

In the decision in T.C. Chennakesayalu v. Mansukhlal (1966) 1 MLJ 300 it was held that under Act XVIII of 1960, Civil Procedure Code, is

not applicable as such as to the Rent Controller, and that he can only exercise the powers to the extent provided under Rule 26 of the Rules

framed under the Act.

In the decision reported in K.R. Sankar Vs. M.A. Buvanambal Ammal, , a division Bench of this Court held that the Controller is not a

''Court'', and the investiture of power u/s 2(3) of this Act is on a persona designata and not on a Court.

Mr. T.R. Mani, counsel for the petitioner refers to the decision reported in Usman Koya v. Muthukrishnan (1977) TLNJ 273 wherein it was

held that the Rent Controller and the Appellate Authority, though ''persona designata'' they exercise only quasi-judicial powers and therefore they

have the jurisdiction to rectify the mistake particularly regarding the re-deposit of the amount regarding which there was an error committed by the

petitioner.

In the decision in Thirupathi Nadar v. Kandaswami Nadar (1968) 81 L. W. 642 while dealing with the scope of the powers u/s 25 of the Act,

this Court held that the District Court functioning u/s 25 of the Act not being a Tribunal acting persona designata, but being one functioning as an

ordinary civil Court, can apply the provisions of the Code of Civil Procedure, as the procedure provided in the Code should be followed by it in all

proceedings before it, as a Court exercising civil jurisdiction.

These decisions have been placed to contend that when the provisions of the CPC would not apply to proceedings initiated under Act XVIII

of 1960; the filing of this review petition by invoking Section 114 and Order 47, Rule 1, Civil Procedure Code, is erroneous, and therefore the

petition itself not being maintainable, there can be no consideration of any of the points canvassed in this petition.

The Rules framed under Act XVIII of 1960 provide for the procedure to be followed by the Rent Controller and the Appellate Authority and

deal with certain aspects of the procedure to be followed in certain contingencies. When such a provision is made about the procedure to be

followed, in the light of plethora of authorities which have been placed, it is quite obvious that the provisions of the Civil Procedure Code, as such,

cannot be invoked while dealing with the petitions arising under Act XVIII of 1960.

Mr. T.R. Mani, counsel for the petitioner contends that the decisions relied upon pertain to the exercise of powers by the Rent Controller or

the Appellate Authority, who are the creatures of the statute, but so far as the High Court is concerned, it exercises powers which is not confined

to what is found u/s 25, and it possesses inherent powers and therefore a review is maintainable. If it be held that there can be no inherent power

of review by a Court, even then since the High Court has to adopt the procedure under Civil Procedure Code, the power of review is available,

and in this case, the petition filed is maintainable. It is to highlight this point, he refers to Section 2(3) of the Act which deals with definition of

''Controller'' which means any person appointed by Government by notification. Section 23(1) of the Act deals with appeals and only such officers

and authorities, as notified by Government by general or special order can function as appellate authority. u/s 23(4), the decision of the Appellate

Authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any ''Court of law''

except as provided u/s 25 of the Act. He would then refer to Section 18 of the Act wherein it is provided that when execution is taken, the order

passed by the Controller and Appellate Authority is to be treated as an order of a civil Court and for the purpose of execution the Controller shall

have all the powers of a civil Court. Lastly coming to Section 25 which provides for revision to this Court against the order of the Appellate

Authority, he emphasises on the power being conferred in ''the High Court''. It is ''the High Court'' that has been conferred with a wide power to

be exercised to go into the regularity of the proceedings or the correctness or legality or propriety of the decisions passed by the Appellate

Authority and it is open to this Court to modify, annual, reverse or remit for reconsideration any of the matters and such an application is to be filed

to the High Court.

The point taken has to be considered by first referring to nature of personnel who are to exercise powers under the Act in the first two stages.

Any ''person'' can be appointed as a ''Controller'' by notification. It is not necessary that it should be a Court. Equally in respect of an appellate

authority, ''any officer or authority'' can function as Appellate Authority. These two categories of functionaries can be notified by the Government

under the Act. Invariably Judicial Officers are being appointed, but that would not mean that the power exercised by them is that of a Court, and

that is why this Court has held in more than one decision that they are ''persona designata''.

But when a revision is to be filed u/s 25 of the Act, it is not to a notified ''person or officer or authority'' who or which is to exercise the

revisional power but, it is ''the High Court'', which entertains the revision petitions. When the High Court has been conferred with powers to

entertain the revision u/s 25 of the Act, as held in Thirupathi Nadar v. Kandaswami Nadar (1968) 81 LW 642 when a Court is invested with

powers to adopt the procedure applicable to it, there is necessity for invoking the Code of Civil Procedure. No procedure having been

contemplated in the Rules, to be adopted by the High Court and when the High Court is a Court of record, the necessary implication is, the Court

will have to decide the revision petitions by following the Civil Procedure Code. In the decision, it has been hitherto held that the High Court is a

''persona designata'' under the Act, or that when the matter is further taken up to the highest Court of the land, it would function as a ''persona

designata'' under the Act. As for those decisions wherein it was held that Section 115 of the CPC cannot be invoked they are all cases which

arose under 1949 Act, wherein a similar provision as in Section 25 of the Act, had not been incorporated. No provision for a revision to the High

Court was provided for in that Act. When revisions were sought to be filed against orders passed by ''persona designata'', they were rightly

repelled.

28 Mr. Somayajulu, has no doubt referred to Section 18 of the Act, wherein it is stated that an order passed u/s 25 executed by the Controller has

to be trested as an order of a civil Court, and for that purpose, the Controller shall have all the powers of a civil Court, and therefore if the power

is exercised u/s 25 as that of a civil Court, there is no need to mention in Section 18 that such an order is to be treated as an order of a civil Court.

But for this solitary objection, he has sot been able to point out any other section in the Act or any rule framed thereunder, wherein there is

prohibition against the High Court adopting the Code of Civil Procedure, while disposing of the revision petition u/s 25 of the Act. In Section 18,

orders passed by the Controller and the Appellate Authority, being orders passed by ''persona designata'' there was the need to state that while

executing such orders, it has to be treated as if they are orders of a civil Court. Orders passed u/s 25 of the Act will have to be executed only by

the Controller, who is a notified person, but who is to function with all the powers of a civil Court while executing orders. It is in this context,

Section 25 is clubbed with other sections which pertain to order passed by a heirarchy of forums, to construe all of them alike relating to powers to

be exercised by him. Hence as contended be Mr. Somayajulu, Section 18 of the Act, cannot be construed as to indicate that the older passed u/s

25 is not an order of Court and is equatable to orders passed by Controllers and Appellate Authorities. Section 18 of the Act cannot therefore be

taken as a basis for holding that in disposing of revision petitions, u/s 25 of the Act, the High Court is not to adopt the Code of Civil Procedure.

No Court can function without an established and prescribed procedure. If the Act or Rules framed thereunder prescribes a procedure to be

followed which is different from the procedure which is adopted by the Court, then this contention of Mr. Somayajalu, could have some force.

At this juncture, it will be relevant to note that u/s 34 of the Act, Government by notification, can make Rules. Section 34(2)(b) enables Rules

to be made regarding ''the procedure to be followed by Controllers and Appellate Authorities in the performance of their functions''. Clauses (c),

(d) and (e) to said sub-section, deal with issue of notices, setting aside ex parte orders; and bringing on record legal representatives in respect of

proceedings taken under the Act; and Clause (f) enables framing of Rules regarding procedure to be followed in taking possession of the building,

and finally Clause (g) prescribes the fee leviable in respect of Applications and Appeals under the Act.

The Rules framed deal only regarding the procedure to be followed by the Controllers and Appellate Authorities, and on the other aspect

covered by Clauses (c) to (g) of Section 34(2) of the Act. When the Legislature has enabled the Government to prescribe Rules only for

Controllers and Appellate Authorities as to the procedure to be followed by them, it is clear that regarding the procedure to be followed by the

High Court while entertaining a revision u/s 25 of the Act, it has to adopt the procedure which it follows in respect of proceedings instituted before

it. Being fully aware of the applicability of the CPC in the High Court, it has refrained from any other procedure being formulated for disposal of

revisions by it. The intend-ment of the Legislature being quite clear, the provisions of the CPC would be applicable.

Further it is indisputable that the High Court being a Court of Record, and in all its proceedings, it follows a prescribed procedure the

necessary implication is that the provisions of the CPC alone would apply. It is precisely in this view in Thirupathi Nadar v. Kandasami (1968) 81

LW 642 the passage in Telephone Co. v. Postmaster-General L. R. (1913) A. C. 546 at 562, was relied upon which is to the effect:

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 matter as a Court. Its jurisdiction is enlarged but ail the incidents of such jurisdiction including the right of appeal from

its decisions remain the same.

In Sripada Venkata Jagannadharao and Others Vs. Kannepalli Venkatachalamayya Sastry and Others, : AIR 1948 12 (Privy Council) which was

also relied upon in She decision in Thirupathi Nadar''s case (1968) 81 LW 642, the relevant passage is:

The true rule is that where a legal right is 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 power of revision conferred u/s 25 of the Act is on ''the High Court'' and while entertaining the revision it exercises the power of a Court

created under the. Constitution. It is not a ''persona designata'' When power is conferred on a Court, and no other special procedure is prescribed

for disposal of matters under a particular statute as held in P.M. Thakershi v. Pradyu Mansinghji AIR 1 70 SC 1273 by such conferment of

power, there is necessary implication that the CPC would apply and in turn the power of review would fee available to this Court.

Therefore the procedure to be followed in disposing of revision u/s 25 of the Act, being governed by the provisions of the Code of Civil

Procedure, the power of review having been conferred therein expressly this review petition is maintainable.

The decision of the Supreme Court in S.M. Gopalakrishna Chetty v. Ganeshan (1976) 1 SCJ 358 : A. IR 975 SC 1750 and the division

Bench decision of this Court in R. Venkatesachary and Others Vs. The Judge, Court of Small Causes and Others, are to the effect that a single

petition can He in respect of different tenancies provided it is in respect of the same ''building''. Hence the amendment proposed and which has

been ordered by the two statutory authorities is confirmed, and the Rent Controller can further proceed to dispose of the matter on its merits,

without the need to go into the question of finding out at this stage of amendment of petition, as to whether there is a single tenancy or two

tenancies. It there is need to consider whether there is a single tenancy or two tenancies for the proper disposal of the petition in it''s merits, it will

be a different matter. For the purpose of carrying out the amendment, the direction already is sued not being necessary, it results in confirmation of

the order of the Appellate Authority, and in the dismissal of the Civil Revision Petition No. 2612 of 1979. To this effect the review petition is

allowed.