Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13.08.2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD.NOS.741 TO 744 OF 2006ANDC.M.P.NOS.6202 TO 6205 OF 2006K.M.Mohammed Ali.. Petitioner inall the petitions Vs.P.M.Musthafa (deceased) rep. by L.Rs.1.V.K.S.Md. Meera Ummal2.M.M.Mohammed Dhulbikar Ali3.M.M.Mohideen Seeni4.M.M.Karunai Mohammed5.M.M.Sithi Zeenath Muhavara6.M.M.Muthu Ibrahim Umma7.M.M.Mohammed Rayesa Parvin8.M.M.Mohideen Kithur Ali9.M.M.Mohammed Samin Araba (Respondents 1 & 3 to 9 are given up from this CRP).. Respondents in CRP.NPD.741 of 2006V.A.Syed Mohammed Buhari.. Respondent in CRP.NPD.742 of 2006A.P.M.Syed Mohammed Buhari Thangal (died)

M.A.S.Mohammed Sirajun Jaleela Bevi2.B.T.Mohammed Thasleem Sulthan3.B.T.Mohammed Hithayath Fahmitha4.B.T.Mohammed Imran Khan (Respondents 1 to 4 are brought on record as LRs of the deceased A.P.M.Syed Mohammed Buhari Thangal vide order, dt.13.8.2007 in CMP.No.2156 of 2007).. Respondents in CRP.NPD.743 of 2006M.Mohammed Iqbal.. Respondent inCRP.NPD.744 of 2006 These civil revision petitions have been preferred under Article 227 of the Constitution of India against theM.P.Sr.Nos.1443, 1444, 1445 and 1446 of 2006 in RCOP Nos.926, 925,924 and 923 of 2001 respectively on the file of the XIV Judge, Court of Small Causes (Rent Controller), Chennai. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.T.S.Rajamohanin all the petitionsFor Respondents: Mr.C.R.Suresh Kumar in all the petitions RR1,3 to 9 - given up in CRP.741/2006 - - - - COMMON ORDERThis order shall govern the civil revision petitions, 4in number, namely CRP Nos.741 to 744 of 2006.

The court heard the learned counsel on either side. Thesecivil revision petitions have arisen from the rejection of fourmiscellaneous petitions filed in RCOP Nos.923 to 926 of 2001, whichwere originally pending on the file of the Rent Controller, XIVJudge, Court of Small Causes, Chennai. The revision petitionerherein is the landlord under whom the respondents in these civilrevision petitions are the tenants in respect of the shop premises. Originally, the agreed rental was Rs.635/- Rs.690/- Rs.750/- andRs.805/- respectively. The landlord filed the above said RCOPs forfixation of fair rent. The Rent Controller, on enquiry, fixed thefair rent at Rs.2226/- in the cases where the original agreedrental was Rs.635/-, Rs.690/- and Rs.805/- and in the other casewhere the agreed rent was Rs.750/-, the rental was fixed atRs.2710/-. Aggrieved by the said order, eight appeals werepreferred, four by the landlord and the other four by the tenants. All the eight appeals were dismissed by the appellate forum. Aggrieved over the same, the landlord brought forth CRP Nos.2320 to2323 of 2004 and they came up for hearing before this court. Afterhearing the learned counsel on either side and looking into thematerials available, the court was of the opinion that certainreports are to be called for from the Rent Controller, for whichpurpose Advocate Commissioner was to be appointed with theassistance of the competent surveyor and the qualified engineer inorder to find out the building value, etc. and for that grantingthree months time to submit the report, the matter was remanddirectly to the Rent Controller.

Accordingly, the Advocate Commissioner was appointed by the Rent Controller and the Advocate Commissioner has also made herattempt to have the assistance of the Surveyor and also thequalified Engineer. At that juncture, the Commissioner could notproceed with the commission work due to the non co-operation on theside of the landlord and hence, the Advocate Commissioner has fileda report before the lower court, stating the difficultiesexperienced. Under these circumstances, the Rent Controller hasdismissed the RCOPs for default. Four M.Ps. were filed forrestoration of all four RCOPs, which were dismissed for default. The lower court has rejected all the M.Ps., stating that thosepetitions could not be entertained by the said forum and hence, https://hcservices.ecourts.gov.in/hcservices/ these four civil revision petitions have arisen at the instance ofthe landlord.

The court heard the learned counsel on either side. The onlycontention put forth by the learned counsel for thelandlord/revision petitioner is that the Advocate Commissioner didnot execute the warrant properly; that though the remuneration ofRs.3000/- was made pursuant to the commission warrant issued, the Commissioner has demanded Rs.12,000/- stating that for each shop, Rs.3000/- must be paid. However, the Commissioner has receivedRs.6000/- and apart from that, the Commissioner demandedRs.12,000/- as remuneration for the Surveyor and Rs.8000/- asremuneration for the Engineer and thus, such a huge demand wasmade. Not even any order of court was also passed and under thesecircumstances, the Commissioner filed a memo, stating as ifdifficulty was felt in executing the warrant. The lower court, without considering the circumstances, dismissed all the RCOPs.All the M.Ps were filed for restoration of the same and all havebeen dismissed, stating that the original order was passed by the High Court and hence, the court had no jurisdiction to restore thesame. Hence, these civil revision petitions have been broughtforth.

In answer to the above, the learned counsel for therespondents would submit that when the order was passed by thelower court in the petition for restoration of the RCOPs, thelandlord should have preferred an appeal and no question ofpreferring civil revision petition would arise and that tooinvoking Article 227 of the Constitution of India and hence, thesecivil revision petitions are not maintainable. Added further thelearned counsel that a detailed memo was filed by the AdvocateCommissioner, which would be clearly indicative of the fact thatthere was a thorough non co-operation on the part of the landlordand under these circumstances, the orders of the lower court havegot to be sustained. In support of his contentions, the learnedcounsel has relied on a decision of this court reported in 2007 (3)CTC 822 (S.M.CHANDRASEKARAN VS. S.S.JAYAMANI AND OTHERS).

A reading of the order would clearly reveal that in order tofix the fair rent, it was necessary to call for the report and forwhich the Rent Controller should appoint the Advocate Commissionerto make the inspection of the property with the assistance of thequalified surveyor and the Engineer and the report should be filedwithin three months. Accordingly, when the matter reached the handsof the Rent Controller, the Advocate Commissioner was appointed. The Advocate Commissioner filed a memo, stating that she could notproceed with the commission work. Now, the memo filed by the Commissioner is also perused by the court.

At this juncture, the contention put forth by the learnedcounsel for the revision petitioner is that there was no questionof non co-operation on the part of the landlord, but there was nonexecution of the warrant by the Commissioner properly as per thedirection of this court. Apart from that, the period that wasgranted by this court was only three months, within which periodthe Commissioner could not file the report for the reasons statedin the memo. Hence, the Rent Controller should have asked forextension of time. But, instead, he has hastily dismissed all theRCOPs. At that juncture, four miscellaneous petitions were filedfor restoration of the same. All M.Ps were not even numbered, butthey were rejected, pointing out that they was originally a remandorder by the High Court and hence, these petitions could not beentertained and all have been brought forth only by the RentController not even seeking extension of time. All the contentionsput forth by the learned counsel for the respondents and thedecision relied on by him, as referred to above, cannot becountenanced at all. The decision could be applied in a case wherethe applications were taken on file and orders have been passedthereon. But, in the instant case, the petitions were not taken onfile, which remained unnumbered and they were rejected on theground that they cannot be entertained and only the High Court hasgot jurisdiction to entertain these petitions and under thesecircumstances, the landlord has come before this court.

At this juncture, the court is of the considered opinionthat all the orders of the lower court, rejecting the petitions, have got to be set aside. All the petitions are entertained by thiscourt. Considering the circumstances, the court is of theconsidered opinion that there is no question of sending back thesepetitions to the lower court again to be numbered and then, to beordered. The court is of the considered opinion that instead ofdoing cumbersome process, the court feels it is a fit case where a https://hcservices.ecourts.gov.in/hcservices/ direction could be directly issued to the Rent Controller to givesix months time to the Commissioner and better it could appointsome other Commissioner, in view of the contentions put forth bythe learned counsel for the petitioner as recorded above. Thus, the Commissioner can have the assistance of the qualified Surveyor andthe Engineer in order to file the report as one found in theearlier order passed by this court as referred to above on theearlier occasion. The lower court is directed to restore the RCOPsto file immediately and proceed in order to file a report, asdirected by this court on the earlier occasion, within a period of6 months herefrom. Accordingly, these civil revision petitions areordered. No costs. Consequently, the connected CMPs are closed. VvkSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The XIV Judge, Court of Small Causes,(Rent Controller),Chennai. 2. The Registrar, Court of Small Causes, Chennai.+ 3 ccs to Mr. C. R. Suresh Kumar, Advocate SR No. 50776, 50815,50816+ 4 ccs to Mr. T. S. Rajamohan, Advocate SR No. 50482 to 50485KG(CO)SR/30.1.2008C.R.P.NPD.NOS.741 TO 744OF 2006