KISHINCHAND CHELIARAMS INDIA P LIMITED Vs. G VARADAPPA

JUDGEMENT

(1.) THE review petitioners are tenants in R. C. O. P. No. 1208 of 1993 on the file of the Rent Controller-cum-XI Judge, Court of Small Causes, Madras . THE landlord came forward with that petition for fixation of fair rent of the demised premises. By his order dated 3. 9. 1990 learned Rent Controller fixed the fair rent at rs. 8,350 per month with effect from 9. 3. 1983. Both the landlord and tenants pre-ferred appeal against the said order. In R. C. A. No. 1137 of 1990 the appellate authority by his order dated 14. 12. 1992 fixed the fair rent payable by the tenants at Rs. 13,080 per month. THE tenants assailed the said order in c. R. P. No. 1125 of 1993 in this Court. Along with the revision petition the tenants came forward with C. M. P. No. 5500 of 1993 seeking stay of the operation of the order of appellate authority fixing the fair rent at Rs. 13,080 per month pending disposal of the civil revision petition. THE landlord filed counter in the said application and it came up for hearing before Bellie, J. on 30. 4. 1993. THE learned Judge passed an order on that day granting stay on condition that the tenants pay the entire amounts due as per the rate fixed by the Rent controller within one month from that date and thereafter every month at that rate, and on failing such payment the said application shall stand dismissed. In other words, the direction was to pay the arrears till then calculating the rent of Rs. 8,350 per month and to pay the subsequent rent at the same rate. It appears that on 8. 5. 1993 the tenants sent a cheque for Rs. 6,95,268 calculating the arrears as per the direction in the said order.

(2.) NEARLY one year later, on 23. 3. 1994 the landlord filed c. M. P. No. 5833 of 1994 in C. M. P. No. 5500 of 1993 under Sec. 151, C. P. C. , seeking a direction to the tenants to pay the landlord the sumofrs. 32,64,732 based on the fair rent claimed at Rs. 30,000permonth or in the alternative the sum of rs. 14,86,296 based on the orders passed on R. C. A. No. 1137 of 1990 pending disposal of the above C. R. P. No. 1125 of 1993. The tenants filed their counter on 7. 4. 1994 repudiating the claim of the landlord. On the same day (7. 4. 1994)Swamidurai, J. has passed an order directing the tenants to pay the rent as fixed by the lower appellate court pending disposal of the civil revision petition within a period of three weeks. The said rent is Rs. 13,080 per month.

(3.) SEC. 114, C. P. C. provides that any person considering himself aggrieved: (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small causes: may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Learned counsel for the respondent argues that the tenants should have agitated the matter before the proper forum and under SEC. 114, c. P. C. as well as O. 47, Rule 1, C. P. C. no review lies. But admittedly no appeal is allowed under O. 41, C. P. C. against the impugned order. The provision for S. L. P. before the Supreme Court alone is available S. L. P. cannot be construed as an appeal. In SECretary and Commissioner, Department of Public Health v. D. chowdappa, (1991)1 M. L. J. 24, Bellie, J. has held that an application for special leave under Art. 136 of Constitution is not an appeal, allowed against a decree and filing of Special Leave Petition does not bar filing of review application. In such circumstances, it is evident that there is no legal impediment for the maintainability of this review application.