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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
Rabiya Basheer Ali
Versus
C. Devandra Prased
C.R.P (NPD) Nos.800, 844 and 845 of 2010 & M.P.Nos.1,1 and 1 of 2010
Decided On :Decided On : 19-05-2010
Advocate-Commissioner - Rent Control - 18 (A) of the Tamil Nadu Buildings (Lease and Rent Control) Act - Appointment of Advocate-Commissioner for finding possession of the property - Advocate-Commissioner cannot be appointed to find out the factum of possession or the enjoyment of the property or for the purpose of collecting evidence - Orders passed by the Courts below are not legally sustainable - Civil Revision Petitions allowed and impugned Judgments and Decrees set aside
Fact of the Case:
The respondent, a landlord, filed a Rent Control Original Petition seeking eviction of the petitioner/tenant under Section 10 (2) (i) and 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The respondent also filed a miscellaneous petition seeking appointment of an Advocate-Commissioner to inspect the premises and note down the persons in occupation, nature of business, and rent being paid by them. The Rent Controller appointed the Advocate-Commissioner without providing an opportunity to the petitioner/tenant, who subsequently filed petitions to set aside the exparte order and suspend the warrant issued to the Advocate-Commissioner. The Rent Control Appeals were dismissed, leading to the filing of Civil Revision Petitions.
Finding of the Court:
The Court found that the appointment of an Advocate-Commissioner to find possession of the property was not legally permissible. The Court held that possession of the property cannot be ascertained by appointing an Advocate-Commissioner and that it is not the duty of the Court to collect evidence for a party. The Court also emphasized that an exparte interim order for the appointment of a Commissioner could only be justified in cases of urgency or to safeguard valuable rights, which was not the situation in this case. The Court allowed the Civil Revision Petitions and set aside the impugned orders passed by the lower courts.
Issues: The main issue was whether the appointment of an Advocate-Commissioner to find possession of the property, as sought by the respondent/landlord, was legally permissible under Section 18 (A) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
Ratio Decidendi: The Court held that the appointment of an Advocate-Commissioner to find possession of the property was not legally permissible and emphasized that it is not the duty of the Court to collect evidence for a party. The Court also clarified that an exparte interim order for the appointment of a Commissioner could only be justified in cases of urgency or to safeguard valuable rights.
Final Decision: The Civil Revision Petitions were allowed, and the impugned Judgments and Decrees passed by the lower courts were set aside. The Court also made it clear that there is no legal bar against the parties to the rent control proceeding to file any petition for the appointment of a Commissioner to note down the physical features and to measure the property on reasonable grounds.
1. C.R.P (NPD) No.800 of 2010 has been filed challenging the order, dated 02.02.2010 made in R.C.A.No.165 of 2009 on the file of the Rent Control Appellate Authority / VIII Judge, Court of Small Causes, Chennai, confirming the order, dated 29.04.2009 made in M.P.No.185 of 2009 in M.P.No.115 of 2009 in R.C.O.P.No.508 of 2009 on the file of the Rent Controller / XIII Judge, Court of Small Causes, Chennai.
2. C.R.P (NPD) No.844 of 2010 has been filed challenging the order, dated 02.02.2010 made in R.C.A.No.166 of 2009 on the file of the Rent Control Appellate Authority / VIII Judge, Court of Small Causes, Chennai, confirming the order, dated 30.03.2009 made in M.P.No.115 of 2009 in R.C.O.P.No.508 of 2009 on the file of the Rent Controller / XIII Judge, Court of Small Causes, Chennai.
3. C.R.P (NPD) No.845 of 2010 has been filed challenging the order, dated 02.02.2010 made in R.C.A.No.167 of 2009 on the file of the Rent Control Appellate Authority / VIII Judge, Court of Small Causes, Chennai, confirming the order, dated 29.04.2009 made in M.P.No.184 of 2009 in M.P.No.115 of 2009 in R.C.O.P.No.508 of 2009 on the file of the Rent Controller / XIII Judge, Court of Small Causes, Chennai.
4. It is an admitted fact that the Rent Control Original Petition in R.C.O.P.No.508 of 2009 was filed by the respondent herein, as landlord under Section 10 (2) (i), 10 (2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Act 23 of 1973 (herein after referred to as Act), seeking an order of eviction of the petitioner / tenant from the premises relating to the Rent Control Original Petition.
5. Miscellaneous petition in M.P.No.115 of 2009 was filed in the said R.C.O.P by the respondent / landlord, seeking an order to appoint an Advocate-Commissioner to inspect the petition premises and to note down the persons, who are in occupation, nature of business carried on by them in the petition premises and rent being paid by the occupants.
6. Learned Rent Controller in the order, dated 30.03.2009 passed in M.P.No.115 of 2009 has specifically stated that exparte Advocate-Commissioner was appointed for the aforesaid purpose, without issuing notice to the respondent therein / tenant. Hearing the submissions made by the learned counsel appearing for the respondent / landlord by the aforesaid order, Advocate- Commissioner was appointed, without providing opportunity to the petitioner / tenant, who was the respondent therein. Subsequently, the petitioner / tenant filed two petitions one in M.P.No.184 of 2009 to set aside the exparte order and M.P.No.185 of 2009 to suspend the warrant issued to the Advocate-Commissioner, pursuant to the order, dated 30.03.2009 passed in M.P.No.115 of 2009. By common order, dated 29.04.2009, miscellaneous petitions filed in M.P.No.184 of 2009 and M.P.No.185 of 2009 were dismissed by the learned Rent Controller. Aggrieved by which three Rent Control Appeals were preferred.
7. Accordingly, R.C.A.Nos.165 of 2009 and 167 of 2009 were preferred against the common order, dated 29.04.2009 made in M.P.Nos.184 of 2009 and 185 of 2009 in M.P.No.115 of 2009 in the aforesaid R.C.O.P. R.C.A.No.166 of 2009 was filed against the order and decretal order, dated 30.03.2009 made in M.P.No.115 of 2009 in the aforesaid R.C.O.P.
8. By a common order, dated 02.02.2010 all the three Rent Control Appeals were dismissed by the learned Rent Control Appellate Authority / VIII Judge, Court of Small Causes, Chennai. Against which, separate revisions have been preferred in C.R.P (NPD) Nos.800 of 2010, 844 of 2010 and
845 of 2010.
9. Mr.K.Sridhar, learned counsel appearing for the petitioner / tenant submitted that the Courts below have failed to see that it is the burden of the respondent / landlord, who has filed the R.C.O.P for eviction, has to establish the ground of subletting and furnish details of the alleged sub-tenants to prove the same before the Rent Controller. However, without furnishing details of
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