K SUBBIAH NADAR Vs. R NANDAKUMAR

JUDGEMENT

(1.) TENANT who is the petitioner in R.C.O.P. No. 1815 of 1998 on the file of the Rent Controller, XIV Small Causes Court, Madras, is the revision petitioner.

(2.) APPLICATION filed by the petitioner was one to restore the amenities under Section 17 of the Rent Control Act. Along with the application, the petitioner also took M. P. No. 441 of 1998 for interim restoration of the amenities. It is the case of the landlord that the said interim order was not communicated to him. On receipt of summons in R.C.O.P., the landlord entered appearance on 29.10.1998 and thereafter he found that interim direction has already been given by Rent Controller for restoration of amenities. The landlord therefore filed a petition to vacate the interim orders on 2.11.1998 and the said application is pending consideration. It was posted on 13.11.1998 and it was found on that date that the petitioner had filed M.P. No. 616 of 1998 before the trial court for restoration of the amenity at his own costs and the said petition was allowed by lower court on 10.11.1998. The said application was also allowed without notice to the landlord. It is seen that on the application filed by the tenant viz. M. P. No. 616 of 1998, no orders were passed by the Rent Controller for some time and therefore the tenant filed C.R.P. No. 3139 before this Court for a direction to the Rent Controller to dispose of the M.P. No. 6l6 of 1998 at an early date. A direction was also issued by this Court for early disposal. On the basis of the direction, an order was passed in M.P. No. 6l6 of 1998, permitting the tenant to have the electricity restored at his own costs. When the landlord came to know about it, he moved a clarification petition in C.R.P.No, 3139 of 1998. This Court held that the direction to dispose of M.P. No. 616 of 1998 only means that disposal must be in accordance with law. The clarificatory order was also produced before lower court and since no action was taken on the same, landlord filed. M. P. No. 51 of 1999 to restore M.P. No. 616 of 1998 to pass fresh orders after hearing him. The Rent Controller dismissed M.P. No. 51 of 1999 holding that the earlier order itself was one in accordance with law and M.P. No. 616 of 1998 is not liable to be restored.

(3.) IT is true that when interim order is passed under Section 17 (3), the landlord need not be heard. But, before passing an order, the Rent Controller is also duty bound to see that whether the application under Section 17 (5) of the Act, itself is maintainable, In Krishnaraj v. M.Karunakaran, 1988 (1) L.W. 86, a learned Judge of this Court has considered the scope of Section 17 (5) of the Rent Control Act. Of course his Lordship has considered the scope of final order under Section 17 (4) of the Act, Why I am giving importance to the said decision is, an interim order cannot go beyond the scope of main order under Section 17 (4) of the Rent Control Act. While interpreting Section 17(4), the learned Judge held thus, "On a, plain reading of the said provision, it is clear that the direction to restore the amenities can be passed only against the landlord and there is no provision to enable the tenant to restore the amenities by himself and recover the cost from the landlord, the reason being the said order is executable under S.18 of the Act. In case of default made, by the landlord in restoring the ameni-ties, it is open to the tenant to execute the order under S.1 8 of the Act". If this is the scope of an order passed under Section 17 of the Act, the I.A. cannot go beyond what is contemplated under the main Section. The petitioner wanted to restore amenities at his own costs. According to the landlord, the tenant has committed default in payment of electricity charges due and it is the Department which cut off the supply of electricity to the petitioner and he is not responsible for the same. In view of the said contention, there is no scope for invoking Section 17 of the Act, at all. In the decision in Pattabiraman v. Chandrasekaran, 1997 (1) MLJ 429,I have taken a view that for invoking the provisions Section 17 of the Act, an amenity must have been withheld by the landlord. If the service connection is disconnected by the Electricity Department due to the default of the tenant in not paying the electricity charges, that will not come under Section 17 of the Act. As I said earlier, the definite case of the landlord is, the tenant has not paid electricity charges due to the Department and has come forward with the present application as if be has cut off amenities. The relief sought for in, M.P. No. 6l6 of 1998, is not coming within the scope of Section 17 of the Act since no direction is sought for against the landlord. When my order was brought to the notice of Rent Controller, the Rent Controller refused to act on the same on the ground that the earlier order passed by him itself is in accordance with law. The approach of the Rent Controller is not correct. He should have heard the landlord before passing the order atleast after production of my order on the clarification petition. By refusing to hear the landlord and confirming his earlier views, the Rent Controller has acted beyond Section 17 of the Rent Control Act. The said mistake committed by the Rent Controller was corrected by the Appellate Authority in holding that the landlord also should have been heard since serious contentions are raised by him in the petition.