M S HAMEED Vs. KANNIAMMAL

JUDGEMENT

(1.) THE tenant in R.C.O.P. No. 1 of 1973 is the petitioner in this Civil Revision Petition which is directed against the order dismissing his application in I.A. No. 3 of 1979 praying for the setting aside of an ex parte order of eviction on the ground of non-payment of costs as directed. THEre is no dispute that the petitioner is a tenant within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (as amended by Act XXIII of 1973) (hereinafter referred to as the Act). On 16th December, 1978, an ex parte order of eviction was passed against the petitioner. THEreafter, the petitioner filed I.A. No. 3 of 1979 in R.C.O.P. No. 1 of 1973 to set aside " the ex parte order of eviction and on 8th July, 1980. the Rent Controller passed a conditional order setting aside the ex parte order of eviction directing the petitioner to pay Rs. 25 as costs to the landlord respondent on or before 16th Inly, 1980. However, the petitioner did not pay the costs within the time granted by the Rent Controller with the result I.A. No. 3 of 1979 was dismissed on 17th July, 1980, as the costs had not been paid. It is the correctness of the order that is challenged by the tenant in the course of the civil revision petition preferred under section 115 of the Code of Civil Procedure.

(2.) EVEN before the civil revision petition was numbered, an objection was raised by the office as regards the maintainability of the civil revision petition under section 115 of the Code of Civil Procedure, in matters falling under the Act. However, on the strength of a decision of this Court, reported in Arunachalam v. Lt. Col. Srinivasan1, Justice Nainar Sundaram was persuaded to direct the office to number the civil revision petition subject to the question of the maintainability of the civil revision petition being decided by the learned Judge before whom the matter is ultimately posted for disposal after hearing both parties comprehensively. The learned Judge has also directed that the question of the maintainability may be heard first before the merits are gone into and that it will not be open to the petitioner to voice forth a grievance that the revision having been admitted should not be thrown out on the ground of non-maintainability at a later stage. Though a case of this kind can be easily disposed of by a consideration of the merits thereof, yet out of respect to the learned Judge who had directed the question of maintainability of the civil revision petition to be decided in the course of the final hearing, that matter is being gone into.

(3.) YET another aspect may now be noticed. Section 115 of the Code of Civil Procedure provides for the exercise of the powers of revision by this Court with reference to cases decided by any Court "subordinate to the High Court and in which no appeal lies thereto". It has been uniformity held that the Rent Controller as well as the appellate authority are persona designata and are not Courts stricto sensu and therefore the revisional jurisdiction under section 115 of the Code of Civil Procedure cannot be strictly invoked by a tenant with reference to matters arising out of orders passed by the Rent Controllers as well as appellate authorities. The Act sets up a complete machinery for the investigation of those matters upon which the, jurisdiction of the Controller to order eviction of a tenant depends and as provided for under section 23, the Act makes the orders final, subject only to a revision under section 25 of the Act. It would therefore, be not proper to fall back upon section 115 of the Code of Civil Procedure as if the Rent Controllers and appellate authorities functioning under the Act are civil Courts amenable, and subject to the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure.