Appeal against order of Rent Controller if can be filed.

There is no merit in this civil revision petition. It arises out of the application filed the petitioner herein to try the maintainability of the main application as a preliminary The main application R.C.O.P.No.54 of 1989 filed by the respondent is for fixation of fair at Rs.27,000 per month. That is being contested by the petitioner herein. The petitioner I.ANo.89 of 1990 for deciding the question of maintainability as a preliminary point. The Controller dismissed the application holding that the question of maintainability could gone into only in the trial after the evidence is recorded. Against that order, the petitioner filed an appeal. The appellate authority held that the appeal was not maintainable and held that the question raised by the petitioner could not be decided as a preliminary without evidence being recorded. Against the said order, the petitioner has come revision in this Court.

2. At the outset, it should be said that the appeal before the Appellate Authority was maintainable. The order of the Rent Controller dismissing I.A.No.89 of 1990 did not the rights of either parties. It merely said that the question raised by the petitioner could be gone into as a preliminary issue and it could be decided in the proceedings only after and the recording of evidence is closed. The order not having decided any rights of parties was not appealable. Learned counsel for the petitioner places reliance on the judgment this Court in T.N.Habib Khan, Proprietor, Hotel Impal and Impala Sweets v. Arogya Mary Shanthi Lucien, (1981)2 M.L.J. 298. The principles set out in that judgment are clearly against the petitioner. Ratnavel Pandian, J. (as he then was) who decided that case has extracted the observations made the Supreme Court in Central Bank of India v. ShriGokalChand,A.I.R. 1967 S.C. 799: (1967) 2 S.C.J. 828: (1967)3 S.C.R. 310. After extracting the said observation, the learned Judge pointed out that the impugned order in the case before the Supreme Court was merely procedural one not affecting any right or liability of the appellant therein. The learned Judge observed thus:

“....The principle laid down by the Supreme Court in the above decision was reiterated affirmed by the Supreme Court in Bank Singh Gill v. Shanti Devi and others, A.I.R. 1967 S.C. 1360. Following the above decision of the Supreme Court and the Judicial Pronouncements made by this Court, in particular by a Division Bench of this Court consisting of Rajamannar, C.J., and Panchapagesa Iyer, J. in Kumaraswamy Goundan, In re., (1951)1 M.L.J. 422 Santhanam Iyer v. S.Somasundara Vanniyar, (1958)1 M.L.J. 400, and certain other decisions, I have held in Chinnaraju Naidu v. Bavani Bai, C.R.P.No.646 of 1981 order dated 24th March, 1981, that all interlocutory orders passed during the proceeding under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, cannot be said to be orders coming within the meaning of Sec.23(l)(b) of the Act, but only the orders which affect the rights liabilities of the parties, in the sense that they have become final orders though passed in interlocutory application, are appealable....”

3. If the test laid down in the decisions referred to above is applied to the present case, it clear that the rights of the parties not having been decided by the Rent Controller in I.ANo.89 of 1990, the appeal against the said order before the Appellate Authority was maintainable.

4. Learned counsel for the petitioner contends that the question raised by him is two According to him, the main R.C.O.P.No.54 of 1989 is barred by the principles of res judicata and consequently, the Rent Controller has no jurisdiction to entertain the petition for fixation of fair rent. According to learned counsel, when the question of res judicata and the question of jurisdiction are raised, the Court is bound todecide the same and an order refusing decide those questions is certainly appealable. I do not agree. If the Rent Controller come to certain co