An order passed by the Rent Controller on an application under S.144 CPC does not come within the scope of S.18(1) of the Rent Control Act, and consequently, S.18(2) of the Act is not a bar to file an appeal to the appellate authority.

ORDER :- When the W.M. Ps. came up for final order, the counsel on both sides agreed for the disposal of the writ petition itself. Hence the writ petition was taken up for disposal.

2. This petition is for the issue of a Writ of Mandamus directing the first respondent (Appellate Authority, Rent Control), III Judge, Court of Small Causes, to entertain the appeal RCA No...... of 1984 S. R. No. 23032 against the order in M. P. 863 of 1984 in E. P. 948 of 1984 in HRC 812 of 1981, on the file of the IX Judge, Court of Small Causes, Madras and dispose of the same on merits.

2A. The facts leading to the filing of this writ petition briefly may be stated. The petitioner is a co-owner of the premises bearing Nos. 180 Anna Pillai St. Madras 1, hereinafter called the suit premises. The 3rd respondent hereinafter called the tenant was a tenant in a portion of the premises on a monthly rent of Rs. 40. The petitioner filed HRC 812 of 1981 for eviction of the tenant on the ground of wilful default. The petitioner was successful before the Rent Controller as well as before the Appellate Authority and ultimately in this court. Even though the tenant filed an undertaking affidavit in this Court to peacefully deliver the property, he moved the Supreme Court by way of writ petition questioning the validity of Act 18 of 1960. The Supreme Court while dismissing the writ petition, granted time to the tenant to vacate on his paying the entire arrears due by then within a month from the date of the order. According to the petitioner, the tenant had not complied with the condition imposed by the Supreme Court for continuing in the suit premises. Therefore, the petitioner filed E. P. 948 of 1984 and got an order for delivery of possession of the suit premises and factually, delivery also was effected on 19-10-1984. After the petitioner got possession of the suit premises, he had put up staircase in the portion of the property and also rolling shutters and has also made improvements by demolishing the wall and expanding the shop. After completing the improvements, he had inducted one Rajamani as a tenant. While so, the tenant had filed M. P. 863 of 1984 before the second respondent-Rent Controller for an order for redelivery. This application was filed by the tenant under S. 144, C.P.C. Though the petitioner objected and opposed the application for redelivery, the second respondent ordered redelivery. Aggrieved by that order of redelivery, the petitioner preferred an appeal to the first respondent Appellate Authority and also filed a petition for stay of restitution of possession. The Appellate Authority, without going into the merits of the case, rejected the appeal which was not numbered on the ground that the appeal was not maintainable. According to the Appellate Authority, S.18(2) of Act 18 of 1960 is a bar for entertaining the appeal as the order passed by the Rent Controller ordering restitution, will fall under S.18(1) of the Act and not independent of that.

3. Aggrieved by the order of Appellate Authority, the present writ petition has been filed.

4. The tenant has filed a counter-affidavit denying the various allegations made in the affidavit filed in support of the writ petition by contending that the petitioner without bringing to the notice of the Rent Controller about the order of the Supreme Court, had obtained delivery order and got possession by illegal means and, therefore, the Rent Controller was justified in ordering restitution as prayed for by the tenant. It is also stated in the counter-affidavit that the delivery order was an ex parte one and the delivery effected was also paper delivery and subsequent to that forcible possession was taken by the petitioner with the help of police. Taking all these factors into consideration, the Rent Controller ordered restitution as prayed for by the tenant and that order will come only under S.18(1) of the Act. Therefore, no appeal will lie under S.18(2) of the Act, to the Appellate Author