A. Chandrasekar v. T. Venugopal

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 11..08..2008C O R A MTHE HONOURABLE MR. A.K. GANGULY, CHIEF JUSTICEANDTHE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLAO.S.A. No.273 of 2008A. Chandrasekar.. Appellant/Applicant/Plaintiff versusT. Venugopal.. Respondent/Respondent/Defendant- - - - -Prayer : Appeal filed under Order XXXVI, Rule 9 ofthe Original Side Rules read with Clause 15 of theLetters Patent against the fair and decretal orderpassed by a learned single Judge of this Court dated17.7.2008 in Application No.2437 of 2006 in C.S.No.51 of 2006.- - - - - For Appellant : Mr. P. Karl MarxFor Respondents :Mr. Lakshmi Narayanan for Mr. K. Anantha Krishnan- - - - -J U D G M E N T( Delivered by The Honourable the Chief Justice )Heard the learned counsel for the parties. This appeal hasbeen filed challenging an order dated 17.7.2008 passed by alearned Judge on the Original Side of this Court, whereby thelearned Judge refused to transfer R.C.O.P. No.193 of 2006pending on the file of the XV Small Causes Court/RentController, Chennai to the file of this Court, to be tried alongwith the suit in C.S. No.51 of 2006 and for stay of furtherproceedings before the Rent Controller. We find that therespondent/landlord has filed a rent control proceeding in theXV Small Causes Court/Rent Controller, Chennai, inter alia, onthe ground that the present appellant has not paid the rent inrespect of the holding. https://hcservices.ecourts.gov.in/hcservices/

2. We are not going into the merits of the controversy inthe said rent control proceeding. We find that the presentappeal is not maintainable for various reasons. First of all,it has been held by several High Courts that a proceedingpending before the Rent Controller cannot be transferred to theHigh Court under Section 24 of the Civil Procedure Code. In thejudgment in L.K. Phanesh Babu vs. Mohd. Akbar reported in A.I.R.2003 A.P. 168, a learned Judge of the Andhra Pradesh High Courthas come to a finding that the Rent Control Act and the Rulesmade thereunder constitute a complete Code covering theproceedings under the said Act and even with regard to thetransfer of such proceedings before the Rent Controller as wellas before the Appellate Authority, provisions are made in theAct and the Rules itself. Therefore, a petition for transfer ofthe proceeding under Section 24 of the Civil Procedure Code tothe High Court is not maintainable [See paragraph 11 at page175] :"11. If we examine the facts of the present casein the light of the above decision relied upon by boththe parties, though it was held that the Rent ControlCourt is a Civil Court, but not in terms of theprovisions of the Code of Civil Procedure. Further,though it was held that where the provisions of theRent Control Act are silent, the provisions of theCode of Civil Procedure are applicable, but as alreadyheld that the Rent Control Act and the Rules madethereunder are complete code covering the proceedingsunder the said Act. Even with reference to thetransfer of the proceedings before the Rent Controlleras well as before the Appellate Authority, it isprovided under the Act and the Rules made thereunder.But, however, there is no provision for transfer of aproceeding from the Rent Control Court to any otherCivil Court. In fact, the powers of ordering evictionunder the grounds specified under the Act areexclusively conferred on the specified or notifiedcourts or the authorities. Therefore, such powerconferred by Notification under the provisions of theAct cannot be conferred by this Court by transferringa rent control proceedings pending on the file of theRent Controller to any Civil court, as such powers arevested only in Government. Therefore, there is nomerit in the contention of the learned counsel for thepetitioners seeking transfer of the proceedingspending before the Rent Controller to the Civilcourt." https://hcservices.ecourts.gov.in/hcservices/ A similar view has been taken in the matter of Abid Ali vs.District Judge, Bahraich reported in 1987 All. L.J. 179, wherebya learned Judge of the Allahabad High Court held that theBuildings Act is a special Act, while the Civil Procedure Codeis a general enactment and after coming to the said finding, thelearned Judge arrived at a conclusion that a proceeding which ispending before the Rent Controller under the Buildings Actcannot be transferred to the High Court under Section 24 of theCivil Procedure Code. Relying on the said judgment in AbidAli's case, another learned Judge of the Allahabad High Court,in the case of Ganga Ram Dohrey vs. State of U.P. reported inA.I.R. 2002 Allahabad 238, came to the same finding. We are inagreement with the aforesaid findings rendered by the AllahabadHigh Court and the Andhra Pradesh High Court. 3. Coming to the present Tamil Nadu Buildings (Lease andRent Control) Act, 1960, we find that under Section 34 of thesaid Act, there are provisions for making rules, and the ruleshave been framed under the said Act known as Tamil NaduBuildings (Lease and Rent Control) Rules, 1974. Under the saidrules, Rule 14 provides for transfer of proceedings from oneController to another and Rule 17 provides for transfer ofproceedings from one Appellate Authority to another. Therefore,in the relevant Act and the Rules governing the field, there areadequate provisions for transfer. In that view of the matter,the ratio laid down in the aforesaid judgments rendered by theAllahabad High Court and the Andhra Pradesh High Court squarelyapplies to the facts of the present case.4. Apart from that, the Supreme Court, as early as in 1953,in the case of Asrumati Debi vs. Kumar Rupendra Deb Raikotreported in A.I.R. 1953 S.C. 198, held that an order fortransfer "neither affects the merits of the controversy betweenthe parties in the suit itself, nor does it terminate or disposeof the suit on any ground". The learned Judges further heldthat an order for transfer "cannot be placed in the samecategory as an order rejecting a plaint or one dismissing a suiton a preliminary ground" [See paragraph 13 at page 201 of thereport] :-"13. The question that requires determination inan application under clause 13 of the Letters Patentis, whether a particular suit should be removed fromany court which is subject to the superintendence ofthe High Court and tried and determined by the latteras a Court of extraordinary original jurisdiction. Itis true that unless the parties to the suit are agreedon this point, there must arise a controversy between https://hcservices.ecourts.gov.in/hcservices/ them which has to be determined by the court. In thepresent case, a Single Judge of the High Court hasdecided this question in favour of the plaintiff inthe suit; but a decision on any and every point indispute between the parties to a suit is notnecessarily a ‘judgment’. The order in the presentcase neither affects the merits of the controversybetween the parties in the suit itself, nor does itterminate or dispose of the suit on any ground. Anorder for transfer cannot be placed in the samecategory as an order rejecting a plaint or onedismissing a suit on a preliminary ground as has beenreferred to by Couch, C.J. in his observations quotedabove. An order directing a plaint to be rejected ortaken off the file amounts to a final disposal of thesuit so far as the court making the order isconcerned. That suit is completely at an end and it isimmaterial that another suit could be filed in thesame or another court after removing the defects whichled to the order of rejection. On the other hand, anorder of transfer under clause 13 of the LettersPatent is, in the first place, not at all an ordermade by the court in which the suit is pending. In thesecond place, the order does not put an end to thesuit which remains perfectly alive and that very suitis to be tried by another court, the proceedings inthe latter to be taken only from the stage at whichthey were left in the court in which the suit wasoriginally filed."The judgment in the case of Asrumati Debi has also beensubsequently referred to and confirmed by the Supreme Court inthe case of Shah Babulal Khimji vs. Jayaben D. Kania reported inA.I.R. 1981 S.C. 1786 [See paragraph 99 at page 1812 of thereport] :-"99. The first decision of this Court which isrelevant is Asrumati Debi case4. In this case the onlyquestion involved was whether an order transferring asuit under clause 13 of the letters patent satisfiedthe tests of a judgment as mentioned in clause 15 ofthe letters patent. This Court while referring to theCalcutta and Madras decisions refrained from givingany particular decision except that they held that themere order of transfer under clause 13 of the letterspatent could not be said to be a judgment and wastherefore not appealable. This Court pointed out thatthe order neither affected the merits of the https://hcservices.ecourts.gov.in/hcservices/ controversy nor did it terminate or dispose of thesuit. In this connection, the Court observed asfollows:“The judgment must be the final pronouncementwhich puts an end to the proceeding so far as thecourt dealing with it is concerned. It certainlyinvolves the determination of some right or liability,though it may not be necessary that there must be adecision on the merits.** *We have indicated that the essential features ofa ‘judgment’ are according to both the Calcutta andthe Madras High Courts and all that we need say isthat, in our opinion, an order under clause 13 of theletters patent does not satisfy the tests of a‘judgment’ as formulated by either of these HighCourts.”The learned Judges found that in Asrumati Debi's case, theSupreme Court held that "a mere order for transfer under Clause13 of the Letters Patent could not be said to be a judgment andwas, therefore, not appealable". A Division Bench of this Courtin the case of Angadu Narasimhalu Chettiar vs. T.V. Selvarajanreported in 1991 T.N.L.J. 142, held that an order transferring asuit is not appealable, relying on the ratio laid down inAsrumati Debi's case.5. In the instant case, the order that has been passed isone of refusal to transfer the rent control proceeding.Therefore, the said order is also not appealable. By refusingto transfer the proceeding, there is no determination of any lispending between the parties, nor does the said order affect themerits of the controversy. In view of the aforesaid clearfinding of the Supreme Court, this original side appeal is notmaintainable and it is accordingly dismissed. We, however, makeit clear that it is open to the parties to take all points inthe proceeding pending before the Rent Controller. There shallbe no order as to costs. Consequently, M.P. No.1 of 2008 isclosed.abSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Assistant Registrar, Original Side, High Court, Madras.+ 1 cc to Mr. P. Karl Marx, Advocate, SR No.44109+ 1 cc to Mr. K. Ananthakrishnan, Advocate, SR No.43851O.S.A. No.273 of 2008BV(CO)SR/18.8.2008