S M MAHABOOB BASHA Vs. K MOHAMED ALI

JUDGEMENT

(1.) THE landlord filed an application for eviction of the tenant on the ground of wilful default in payment of rent in R.C.O.P. No. 3396/92. THE tenant did not appear to contest the petition, and therefore, on 8.2.1993, eviction was ordered by the XVI Judge of Small Causes Court. Two months time was granted by the Rent Controller for vacating the premises. While so, the tenant filed an application, in I.A. No. 133 of 1993 in R.C.O.P. No. 3396 of 1992 to set aside the ex parte order of eviction passed by the Rent Controller on 8.2.1993. On this petition, an order was passed by the Rent Controller on 26.4.1993 directing that the rent due till March 1993 at the rate of Rs. 850/- per month shall be paid by the petitioner as a condition precedent on or before 29.4.1993. THE matter was to be called on 30.4.1993. On 30.4.1993, the matter was called and the petition was dismissed since the direction was not complied with. In the meanwhile, the tenant preferred an appeal against the dismissal order dated 30.4.1993 to the Appellate Authority in R.C.A. No. 855/93. THE Appellate Authority dismissed the appeal. Aggrieved by the same, the tenant preferred a Revision to the High Court, in C.R.P. No. 1948 of 1996. While allowing the Revision, this Court ordered as follows: " "THE order of the lower appellate authority is set aside. THE Appellate Authority will restore the R.C.A. No. 855/93 and dispose of the same within a period of three months from today. It is open to the respondents to raise all the objections including the maintainability of R.C.A. before the Appellate Authority, No costs." THEn, after remand, the R.C.A. was once again taken up by the appellate authority and passed an order on 29.10.1992, dismissing the appeal, Aggrieved by the same, the tenant has now filed this Revision, challenging the said order.

(2.) LEARNED Counsel for the Respondents contended mat R.C.A. itself is not maintainable. He relied upon a decision of this Court rendered in C.R.P. No. 675/87 and reported in 1994 (1) MLJ 55 ( Basil Products v. Mathuram Perumal ). There, it has been observed as follows: "A Division Bench of this Court has held in the context of Order 9, Rule, CPC, that where a conditional order allowing the application for setting aside the exparte decree is passed on a particular date and on the applicant's failure to fulfil the condition, consequently, an order later on, is passed, dismissing the application, actually there is only one order in law, though the court might have chosen to pass a formal consequential order after the non-fulfilment of the condition stipulated the original conditional Order. Therefore, the Division Bench held that only the original order is appealable. In this connection, the relevant observation of the Division Bench is as follows: " "But in my view, no further order was passed at all and the reason, as I have indicated it that no further order was required." ( Ramayya v. Lakshmayya , 1994 (1) MLJ 381) The said decision was followed in (1993) (1) MLJ 40 ( Balarama Reddy v. Subbarama Reddy ) and against the same followed in the decision rendered by Abdul Hadi, J. In the above decision reported in 1994 (1) MLJ 55, after referring to the contention of the learned counsel for the petitioner there, that those decisions arising under Order-9 Rule-13 would not applicable to the Tamil Nadu Buildings (Lease and Rent Control) Act, mis Court negatived the said contention, by observing as follows:- "So far as what is contained in Section 23(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, though the term "an order" is used therein, in the light of the Division Bench Judgment of this Court in Ramayya v. Lakshmayya (1994 (1) MLJ 381), the order dated 3.4.1986 is not actually an order in law. The Division Bench says that the first order was the only order in the case and the second order was nothing more than recording the legal position which had arisen from the non-fulfilment of the condition precedent by the petitioner and the second order was not any further order, because no further order was required in the case. The same principle would apply even in the present case, which no doubt, arises under the Act. The principle being something fundamental, it would also equally a pply to similar "second" orders passed under the Act also." Therefore, this Court, upholding the contention that the C.R.P. is not maintainable dismissed the same.

(3.) HENCE in such circumstances, accepting the objections raised by the learned counsel for the respondents, I have to uphold the contention that the C.R.P. is not maintainable, in as much as the tenant has failed to prefer any appeal against the order dated 26.4.1993 and that the present challenge is only against the order dated 30.4.1993 which is only an order formal in nature. Therefore, this Civil Revision Petition has to be dismissed.