ORDER
S.M. Abdul Wahab, J.
1. The petitioner/landlady has preferred this revision against the order passed in M.P. Noi363 of 1993 in R.C.O.P. No. 1973 of 1986 refusing to pass consequential order directing eviction of the respondent.
2. The petitioner filed R.C.O.P. No. 1973 of 1986 for eviction. She also filed M.P. No. 63 of 1987 under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. When it was allowed R.C.A. No. 770 of 1987 was taken. The respondent obtained stay in the said R.C.A. Hence consequential eviction order was not passed in the main R.C.O.P, No. 1973 of 1986. When R.C.A. No. 770 of 1987 was dismissed, the respondent preferred C.R.P. No. 1835 of 1989. On 5.11.1990 this Court dismissed the C.R.P: and confirmed the order of the Rent Controller in M.P. No. 163 of 1987. dated 20.10.1980 under Section 1(4) of the Tamil Nadu Buildings (Lease and Ren Control) Act, 1960 (hereinafter referred to as the Act).
3. As far as the main R.C.O.P. No. 1973 of 1986 is concerned, on 5.9.1989 eviction order was issued. As against the said eviction order R.C.A. No. 638 of 1991 was filed, which was dismissed on 21.9.1992. But on 23.3.1993 C.R.P. No. 3618 of 1992 was allowed.
4. The eviction order in R.C.O.P. No. 1973 of 1986 was ordered when the stay petition C.M.P. No. 9084 of; 1989 in C.R.P. No. 1835 of 1989 was dismissed on 28.7.1979. Because the conditional order to pay the amount was not complied with. Compliance of condition for stay was brought to the notice of the High Court and the petition for restoration of stay is. C.M.P. No. 5057 of 1990 was filed. It was dismissed on 6.4.1990. As against th6 said order in C.M.P. No. 5057 of 1990 S.L.P. No. 7761 of 1990 was Filed before the Apex Court. The Apex Court allowed the S.L.P. on 3.9.1990 and thereafter C.R.P. No. 3618 of 1992 was allowed by this Court on 23.3.1993. The result was that consequential eviction order passed in the main R.C.O.P. No. 1973 of 1986 on 5.9.1989 on the ground that the condition to deposit the amount in C.M.P.Nb.9084 of 1989 in C.R.P. No. 1835 of 1989 was not complied with, was set aside.
5. In my view Oh account of the confusion in under-standing the facts and circumstances of the case only, the necessity to file the present C.R.P. has arisen. The Rent Controller has refused to pass the order of eviction in R.C.O.P. No. 1973 of 1986 on the ground that there was already an order passed in R.C.O.P. No. 1973 of 1986 and the said order was cancelled by the High Court in C.R.P. No. 3618of 1992 on 23.3.1993. Therefore, there cannot be another consequential order to be passed in R.C.O.P. No. 1973 of 1986.
5. In the affidavit filed in support of the M.P. No. 363 of 1993 the petitioner has stated that the consequential order of eviction dated 5.9.1989 was made, when there was a stay obtained in C.M.P. No. 9084 of 1989 on 28.7.1989. The stay was vacated by this Court on 15.9.1989, and the stay petition was dismissed. However, the stay petition was was restored what the restoration petition C.M.P. No. 5057 of 1990 was allowed, on appeal in S.L.P. No. 7761 of 1990 on 3.9.1990, the judgment of the High Court referred to by the learned Rent Controller in C.R.P. No. 3618 of 1992 was revised. The observation made by the High Court, which is relevant for the purpose of deciding this revision is as follows:
In C.M.P. No. 9084 of 1989, on 28.7.1989 this Court had granted stay on condition. It has been held by the Apex Court that the condition was complied with and there was no disobedience of the order of the High Court. The stay granted on 28.7.1989 was vacated by this Court on 15.9.1989. Later the stay order made on 27.8.89 was restored by the Apex Court. This order of the Supreme Court was passed on 3.9.1990. From the above, it would be clear that the impugned order dated 5.9.1989 was passed at a time when the order of stay of the High Court passed on 28.7.1989 was in force. That is certainly bad in law and cannot be sustained.
6. The earlier consequential order passed in the main R.C.O.P. No. 1973 of 1986 was set aside, because the eviction order was passed v hen stay was granted by this Court and the same was in force. The allowing of the C.R.P. No. 3618 of 1992 dated 23.3.1993 by the learned Judge was not on merits, but on the technical ground. Therefore, it tantamounts to vacating the eviction order passed in 5.9.1989 and not dismissal of R.C.O.P. No. 1973 of 1986. After the dismissal of C.R.P. No. 1835 of 1989 on 5.11.1990, the petitioner is entitled to move the court for passing the consequential order in the main R.C.C.P. No. 1973 of 1986.
7. Learned Counsel for the respondent contended that the petitioner is not entitled to maintain the revision, since she could have filed an appeal against the order passed by the Rent Controller, on 27.7.1994 in M.P. No. 363 of 1993. He cited a decision reported in M.S. Hameed v. Kanniammal (1982) 1 K.C.J. 62. In the said decision, learned single Judge of this Court has held that when an ex parte order of eviction passed was liable for appeal under Section 23(1)(b) of the Act. And if there was no appeal, it becomes final. Thereafter, it cannot be questioned in any court of law. The learned Judge refused to interfere in a civil revision petition filed against the ex parte order of eviction without resorting to the proceedings for having it set aside, in the manner prescribed under the rules. The learned Judge has further held that an order refusing to set aside the ex parte order of eviction by dismissing an application to set aside the order for non-payment of costs within the time granted was an order which was subject to an appeal to the appellate authority. After taking the said view that the revision filed under Section 11, C.P.C. was held as not maintainable. The learned Judge has gone into the merits of the case, and found that the C.R.P. was not maintainable on merits. In the present case, there is refusal on the part of the Rent Controller to exercise a jurisdiction vested with him under Section 11(4) of the Act by misconception of the relevant facts. That apart, the present revision is under Art.227 of the Constitution of India.
8. In Annapoorni v. Janaki (1995) I.L.W. 14 Srinivasan J. (as he then was) has observed as follows:
When this Court finds that a decree suffers from an error of law apparent on the fact of the record v owing to non-application of mind of the court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class J heirs and all of them are entitled to succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in the estate which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of this Court. It is only for that reason, I am exercising my powers under Section 15 of the Code of Civil Procedure and Art.227 of the Constitution of India.
The learned Judge has followed the said decision in subsequent judgment rendered in Official Trustee of Tamil Nadu v. Maadoom Sheriff (1996) 1 L.W. 148. I respectfully agree with the view of the learned Judge expressed in the abovesaid two decisions. But this is a typical case of miscarriage of justice, which should be rectified. This Court should rectify the same moment it comes to the notice of this Court.
9. The other contention of the learned Counsel for the respondent that there is no error of jurisdiction in this case and there fore this Court’s interference is untenable. As I stated above, there is failure on the part of the Rent Controller to exercise the jurisdiction vested in him under Section 11(4) of the Act 18 of 1960 as amended by Act 23 of 1973.
10. The decision cited by the learned Counsel for the respondent in Shyam Kishore v. Municipal Corporation of Delhi is not helpful to him. In para 42, the Apex Court has stated that the departmental instructions may not always be followed and the resort to Arts.226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself.” In “this case the Rent Controller has failed to exercise his jurisdiction under a misconception of the facts. This is a typical miscarriage of justice, it should be rectified the moment it comes to the notice of this Court. Further, the Apex Court has used the expression discourage and it does not say that it should not be allowed.
11. Other decision cited by the learned Counsel for the respondent in K.K. Shrivastava etc. v. Bhupendra Kumar . In the said decision also, the Apex Court has held as follows:
It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.
Here again, the Apex Court, permits interference, when there is no equally efficacious remedy. In the instant case, under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt an appeal is provided. In the normal course, the aggrieved person is to have resort to such appeal. As against the order passed on appeal, a revision is provided to this Court under Section 25(1) of the said Act. What has been done in this case is to by-pass the stage of appeal. The respondent has already exhausted the appeal remedy twice and also the revisional remedy under Section 25(1) in this High Court and also had gone to the Supreme Court. Further R.C.O.P. No. 1973 of 1986 has been pending for on 2 decades. In such circumstances, the remedy available under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 have resort to this Court for revision is not efficacious. For the foregoing reason, the Court is of the view that the revision petition is maintainable. Therefore, I am not in a position to agree with the contention of the learned Counsel for the respondent. After considering all the facts and circumstances of the case, I am of the view that the revision petition has to be allowed. Accordingly, this civil revision petition is allowed. However, there will be no order as to costs.