S MANI Vs. T K JACOB

JUDGEMENT

(1.) THIS civil revision petition arises out of the order of the learned 7th Judge, Court of Small Causes, Madras, and the appellate authority in H. R. A. No. 837 of 1981, which was filed against the order of the learned Rent Controller, in M. P. No. 358 of 1981 in M. P. No. 358 of 1981 in h. R. C. No. 3761 of 1980 on the file of the Rent Controller. The petition mentioned premises in favour of the civil revision petitioner filed H. R. C No. 482 of 1979 on the file of the 10th Judge, Court of Small Causes, Madras and the Rent Controller, for eviction on the ground that the then landlord needed the premises for his own use and occupation for the purpose of carrying on his business. The claim of the landlord was not found to be bona fide 2nd hence the petition was dismissed on 27th August, 1979, on merits after a full-fledged trial. As against the said order of dis-missal the previous landlord Mr. Venkata-rama Iyer preferred H. R. A. No. 1990 of 1979 on the file of the Court of the 4th Judge, Court of Small Causes, Madias and the appellate authority and the said appeal was also dismissed. Thus the prior proceeding between the respondent herein and the previous landlord, Mr. Venkatarama Iyer had become final. Earlier to this proceeding the said Mr. Venkatarama Iyer also filed a suit in O. S. No. 8543 of 1973 on the file of the Court of the learned Third assistant Judge, City Civi1 Court, Madras, praying for possession of the petition mentioned premises and that suit was also dismissed on the ground that the provisions of the Bent Control Act are applicable to the tenancy in question.

(2.) IN H. R. C. No. 3761 of 1980, the tenant-respondent, in addition to the other objections also took the plea that the application is not maintainable on account of the earlier proceedings for the very same relief between the predecessor-in-title of the landlord-civil revision petitioner and the tenant-respondent which had become final. During the pendency of H. R. C No. 3761 of 1980 the tenant-respondent filed an application in M. P. No. 358 of 1981 under section 19 of the Tamil Nadu Buildings (Lease and Bent Control) Act praying for the sum-mary rejection of the application without taking further evidence on the ground that the very same issue had already been decided between the landlord's pre-decessor-in-title and the tenant and the subsequent proceeding for the very same relief is barred under section 19 of the above said Act. The learned Rent Controller after hearing both sides passed the following order' "the question whether the main petition is hit by res judicata or not can be decided in the H. R. C. itself under separate point. No provision is available either in the Rent Control Act or in the Rules for filing a separate petition under section 19 of the Act to decide this point in a M. P. Therefore, I have come to the conclusion that this petition is not maintainable in law. IN the result the petition is dismissed. &quot ; As against this order of the tenant-respondent filed h. R. A. No. &37 of 1981, on the file of the Court of the 7th Judge, Court of small Causes, Madras, and the the appellate authority. The learned appellate authority after hearing both sides came to the conclusion that the order of the rent Controller is not correct and the Rent Controller ought to have given a finding one way or the other with regard to the question raised by the tenant. The learned appellate authority also observed that the question raised by the tenant is a substantial question of law affecting his rights and liabilities as a tenant of the premises in question. The provisions of section 19 of the Tamil nadu Buildings (Lease and Rent Control) Act are mandatory in character and that being so, the observation of the Rent Controller that whether the main petition is hit by res judicata or not car be decided in the H. R. C. itself under separate point is clearly unsustainable and that in dismissing the petition the rent Controller has failed to adhere to and comply with the mandatory requirements of section 19 of the Tamil Nadu Buildings (Lease and Rent Control)Act. Hence, the order of the Rent Controller was set aside by the learned appellate authority and the matter was remitted back to the learned Rent controller with a direction to restore the miscellaneous petition to its file and dispose of the same according to law and in the light of the observations contained in the appellate order after giving an opportunity to both sides to put forward their respective cases. The learned appellate authority also observed that the Rent Controller is free to come to any conclusion that he deems fit and proper and that it is not the intention of the appellate authority to inhibit or fetter his discretion in the exercise of jurisdiction by the Rent Controller. As against the said order this civil revision petition is filed by the landlord.

(3.) IN the case reported in Bant Singh Gill v. Shanti Devi and others2, the Supreme Court dealing with the similar provisions of the Delhi and Ajmer Rent Control Act observed as follows' "however when this appeal came up for hearing before us, learned counsel for the respondents raised another point for challenging the competency of the appeal that was filed against the order of the trial court. It was urged that the order, rejecting the application of the appellant to record the abatement of the suit and directing continuance of the suit, was not an order of such a nature against which an appeal could be filed under section 34 of the Act of 1952. The word'order'is used in section 34 without any limitations, with the exception that it must be an order of a Court passed under the Act of 1952, but it is contended that this word cannot be interpreted so widely as to include all interlocutory orders or other similar or ders passed in the course of the trial of a suit. This aspect came up for consideration before this Court when interpreting section 38 (1) of the act of 1958, in which also a provision for appeals has been made, and the language referred is very wide inasmuch as it is laid down that'an appeal shall lie from every order of the Controller made under this Act'. The extent of this right of appeal under section 38 (1) was considered by this court in the Central Bank of INdia Ltd. v. Gokal Chand1, and it was held that that the object of section 38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. IN the context of section 38 (1), the words'every order of the Controller made under this act', though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. The principle was thus recognised that the word'order'used in such context is not wide enough to include every order, whatever be its nature, and particularly orders which only dispose of inter. locutory matters. IN the case before us also, all that was done by the application presented by the appel-lant on 13th March, 1961, was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of section 50 (2) of the Act of 1958. The Court went into that issue and decided it against the appellant. If the decision had been in favour of the appellant and the suit had been dismissed, no doubt there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ram Charan Das v. Hira Nand)2 On the other hand, if as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the rights or liabilities of the parties to the suit. The lights and liabililies have yet to be decided after full trial has been gone through. The decision by the Court is only in the nature of a finding on a preliminary issue on which would depend the maintainability of the suit. Such a finding cannot be held to be an order for purposes of section 34 of the Act of 1952, and, consequently no appeal against such an order would be maintainble. It was indicated by this Court in the case of the Central Bank of INdia Ltd. 3, that in such a case, it is open to the appellant to canvass the error, defect or irregularity, if any in the order in an appeal from the final order passed in the proceedings for eviction. IN the present case also,, therefore, it is clearly open to the appellant to raise this plea of abatement of the suit, if and when he files an appeal against a decree for eviction passed by the trial Court. &quot: