Appeal filed against order of dismissal of application for appointment of Commissioner held not maintainable.

As the point involved in this revision is within a very narrow compass at the request and consent of the Bar for the respective parties, I have heard the whole case in hand and pronounced the following Order:

2. Brief facts of the case are extracted as hereunder: The tenant is the revision petitioner and eviction was sought for before the learned Rent Controller in R.C.O.P.No.1570 of 1989 by the respondent herein, being the landlord, on the ground of owner’s occupation, as the building is required for accommodation of his married daughter. As the matter was seriously contested after taking into consideration the entire evidence adduced, the learned Rent Controller passed the order of eviction and against which an appeal has been preferred which is pending in R.C.A.No.698 of 1991, on the file of the VII Judge, Court of Small Causes Madras. In the appeal, by virtue of Sec.18-A of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called as "the Act’, an application M.P.No.371 of 1993 has been filed by the tenant- appellant seeking for the appointment of a Commissioner to find out as to whether how many portions were situate in the demised premises of the landlord-respondent and who were all the persons vacated and in which portion of the building or any other building the daughter of the landlord was residing and so on. Though the petition was contested by the tenant- appellant and resisted by the landlord- respondent the learned appellate authority refused to appoint any Commissioner and accordingly dismissed the said petition, by passing the impugned order above referred. Aggrieved at this, the present revision has been filed by the tenant.

3. I have heard the Bar for the respective parties for and contra in this revision. Mr.T.Thirumaran, learned counsel appearing for the revision petitioner persuaded me to see that the power vested with the court, namely, the Rent Controller or the appellate authority to appoint a Commissioner cannot be confined to the Rent Controller alone but it can be made available to the appellate authority or this Court also, for the reason that any appeal or revision filed against the order of eviction in law is deemed to be the continuation of the proceedings and that therefore the power is vested with the Rent Controller to appoint a commissioner under Sec.18-A of the Act and for the said reason the appellate authority while passing the impugned order has clearly committed an error in declining to appoint a Commissioner and that therefore he would persuade me that the impugned order is liable to be interfered with.

4. On the other hand, Mr.M.V.Krishnan, learned counsel appearing for the respondent-landlord would controvert the said contention by saying that the power provided under Sec.18-A of the Act is only to be exercised by the Rent Controller to appoint a Commissioner and for the said purpose he is authorised to have all the powers of a civil court as contemplated under the Code of Civil Procedure, but that does not mean that there is no way to the appellate court or the revisional court. Then the learned counsel would contend further that if an appellate court refused to appoint a Commissioner under Sec.18-A of the Act, then it would pertain to a procedural one and not an order affecting the merits or the demerits of the case and that therefore it is not an appealable order, liable to be canvassed in this revision. Lastly, it was argued on behalf of the respondent that the factual aspects, on the basis of which the relief of appointment of Commissioner was sought for is not adequate and prone to grant the relief as prayed for, for the simple reason that even if the Commissioner is appointed, he cannot give such a finding to hold the matter for total and fullest adjudication and that in fact the learned appellate authority has given the reasoning in the impugned order itself. While saying so, the learned counsel would contend that the revision is liable to be dismiss