S. Balakrishnan vs A. Rathinam on 28 November, 1988

Madras High Court
S. Balakrishnan vs A. Rathinam on 28 November, 1988
Equivalent citations: (1989) 1 MLJ 379
Author: V Ratnam


ORDER

V. Ratnam, J.

1. This civil revision petition preferred under Article 227 of the Constitution of India questions the correctness of the order of the Rent Controller (District Munsif) Thiruthuraipoondi dismissing an application filed by the petitioner herein in E A. No. 123 of 1985 in E.P. No. 46 of 1985 in R.C.O.P. No. 11 of 1984, under Section 18(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act), and Rule 12 of the Rules framed under the Act.

2. According to the case of the petitioner, an ex parte order of eviction had been passed against him on 1.2.1985 and an application to set aside that order had been filed on 4.2.1985 under Rule 12(3) of the Rules in I A. No. 4 of 1985. Notice of that application was taken by the respondent herein and time for filing a counter was requested on 12.2.1985 and subsequently, time was extended for filing counter till 14.6.1985. Meanwhile, on 24.4.1985, the respondent is stated to have filed E.P. No. 46 of 1985 for executing the order of eviction obtained in R.C.O.P. No. 11 of 1984, and pursuant to the order for delivery, taken delivery on 25.4.1985, resulting in the dispossession of the petitioner. Thereupon on 2.5.1985, the petitioner filed E A. No. 123 of 1985 in E.P. No. 46 of 1985 praying for re-delivery i.e., restitution to him of the property from which he was dispossessed. The Rent Controller dismissed this application holding that the order of eviction passed against the petitioner cannot be considered to be an ex parte order and, therefore, the petitioner is not entitled to the relief of restitution. It is the correctness of this order that is questioned by the petitioner.

3. A preliminary objection is raised by the learned Counsel for the respondent regarding the maintainability of the civil revision petition. Learned Counsel submitted that the application filed by the petitioner praying for re-delivery of the property would be in the nature of an application for restitution under Section 144, C.P.C. and the dismissal of such an application would not fall under Section 18(1) of the Act, and, therefore, there is no bar to the preferring of an appeal under Section 23 of the Act and the Civil revision petition under Article 227 of the Constitution of India is incompetent. Reliance was also placed by the learned Counsel on the decision reported in Hidayathullah v. Appellate Authority Rent Controller etc. 98 L.W. 328 : A.I.R. 1986 Mad.70.

4. In this case, there is no dispute that the relief prayed for by the petitioner is one of re-delivery of the property from which he was dispossessed pursuant to the order of eviction obtained by the respondent against the petitioner. Though in the application for redelivery, the petitioner has referred to Section 18(1) of the Act, and Rule 12 of the Rules framed under the Act, in effect and substance, the application is one for restoring the petitioner to possession of the property from which he was dispossessed and in that sense it would really be in the nature of an application for restitution. In such a situation, the provisions of Section 18(1) of the Act would be inapplicable, as under that section, every order made under Sections 10,14,15, 16 and 17 and every order passed on appeal under Section 23 or on revision under Section 25, shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court. Under Section 18(2) of the Act, an order passed in execution under Section 18(1) shall not be subject to any appeal or revision. In order, therefore, to attract the bar enacted under Section 18(2) of the Act, the order passed by the Rent Controller in the course of the execution must be in relation to orders under Sections 10, 14, 15, 16 and 17 or the appellate order under Section 23 or revisional order under Section 25 of the Act, and for giving effect to those orders, the Rent Controller is clothed with all the powers of a Civil Court and an order on the application of the kind filed by the petitioner in this case does not fall under Section 18(1) of the Act, and necessarily, therefore the bar under Section 18(2) of the Act also does not stand attracted. The result would be that the order hi this case would fall under the category of an order passed by the Rent Controller occurring in Section 23(1)(b) of the Act, and would, therefore, be appealable. The decision in Hidayathulla v. Appellate Authority – Rent Controller etc. 98 L.W. 328 : , relied on by the learned Counsel for the respondent squarely supports this view. In that case, the tenant who was dispossessed pursuant to an order of eviction, filed an application under Section 144 C.P.C. for re-delivery to him of the property and despite opposition by the landlord, that application was ordered by the Rent Controller. An appeal against that order was preferred by the landlord to the appellate authority. But the appellate authority, without considering the merits, proceeded to reject the appeal on the ground that the appeal was not maintainable. That order was questioned before this Court and it was laid down, referring to Fathima Automobiles v. P.K.P. Nair and Ors. 1984 T.L.N.J.368, that an order allowing an application for restitution would not fall within Section 18(1) of the Act, and therefore, the rejection of the appeal by the appellate authority on the ground that the bar enacted under Section 18(2) of the Act would be attracted was unsustainable and the appellate authority was directed to entertain the appeal and dispose it of on merits. The principle of this decision would squarely apply to this case as the petitioner had prayed only for the relief of re-delivery of possession by way of restitution. Consequently, the preliminary objection is upheld and the civil revision petition is dismissed with costs.

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