Kalyani Ragunath v. K.Muthuramalingam

THE HIGH COURT OF JUDICATURE AT MADRASDATED:30.10.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.R.P.(NPD).No.971 of 2006 andM.P.No.1 of 2008Kalyani Ragunath... PetitionerVs.K.Muthuramalingam... RespondentPrayer: Petition filed under Section 25 of the Tamil Nadu Buildings(Lease and Rent Control) Act, 18 of 1960 as amended by Act 23/1973and Act 1/1980 against the order and decretal order in M.P.No.57 of2006 in R.C.A.No.1087 of 2005, on the file of the Small Causes CourtCum VIII Judge, Rent Control Appellate Tribunal, Chennai dated31.03.2006.For Petitioner: Mr.V.Lakshmi Narayanan For M/s.V.RaghavachariFor Respondent: Mr.Ashok MenonORDERThe petitioner/landlady has preferred this civil revisionpetition as against the order in M.P.No.57 of 2006 passed by thelearned Appellate Authority viz., VIII Judge, Court of Small Causes,Chennai in allowing the application filed by the respondent/tenantpraying for appointment of an Advocate Commissioner to inspect thepremises, which is subject matter of the Rent Control Appeal andassess the fair rent payable in respect of the same, if necessarywith the help of the qualified Engineer and resultantly, appointingan Advocate Commissioner etc.2.The learned Appellate Authority viz., VIII Judge, Court ofSmall Causes, Chennai, while passing order in M.P.No.57 of 2006, hasallowed the M.P. on 31.03.2006 by appointing Thiru.M.Suresh, Advocateas Court Commissioner and directed him to inspect the suit propertyalong with building Engineer by issuance of notice to respectivesides and also directed the Commissioner to submit his report inregard to the status of the petition building before 17.4.2006 andfixed the remuneration of the Commissioner at Rs.1,500/- etc. https://hcservices.ecourts.gov.in/hcservices/

3.According to the learned counsel for the revisionpetitioner/landlady, the Appellate Authority has committed a manifesterror in appointing the Advocate Commissioner in M.P.No.57 of 2006 toinspect the petition mentioned property and as a matter of fact, theAppellate Authority should have taken into account of an importantfact that it is not for an Advocate Commissioner to fix the Fair Rentin rent control proceedings and it is the essential function of theCourt/Tribunal and the same cannot be delegated to the Commissionerand inasmuch as both the Engineers on respective sides have furnishedthe report after inspecting the petition building any further reporton the subject is a superfluous one and as per Section 4 of the TNBuildings (Lease and Rent Control) Act, 1960 it is for the RentController to fix the fair rent and not for the Advocate Commissionerand moreover, the respondent/tenant has not filed any objections tothe Engineer's report furnished on the side of the revisionpetitioner/landlady and indeed an Advocate Commissioner's reportcannot be a substitution for actual proof considering the disputeinvolved between the parties in fair rent proceedings and theseaspects of the matter have not been looked into by the learnedAppellate Authority viz., VIII Judge, Court of Small Causes, Chennaiand therefore, prays for allowing the civil revision petition topromote substantial cause of justice.4.In support of his contention that the appointment of anAdvocate Commissioner at the appellate stage in R.C.A.No.1087 of 2005is incorrect, the learned counsel for the revision petitioner citesthe decision of this Court in Pappayee Ammal V. Subbulakshmi Ammaland another AIR 1983 Madras at page 344 wherein it is held as follows:"The appointment of a Commissioner in appeal is ararity and is seldom resorted to. Such anappointment is not authorised by O.41, R.27. Therule relates to additional evidence. Where aCommissioner was appointed by the trial Court tomake local inspection of the Suit property and noobjection to his report was raised at the stage oftrial before the trial Court, the appointment ofanother Commissioner by the appellate Court duringthe pendency of the appeal for the very samepurpose for which the Commissioner had beenappointed by the trial Court would be invalid asit is neither in the interest of justice nor is itrecognised by the provisions of O.41, R.27 orunder O.26, R.9 read with S.107. AIR 1969 Mad 144and (1979) 1 Mad LJ 358."5.He also relies on the decision of this Court in EngineersAssociates, Mechanical Engineers, Chennai V. J.Parvathi and another2007 (5) CTC 835 at page 838 wherein it is among other things held https://hcservices.ecourts.gov.in/hcservices/ thus:"... To put it in a nutshell, whether the commonarea was included or whether the tenant's actualpossession was only 538 sq. ft. and not 544 sq.ft. as alleged, it is purely a question on fact tobe appreciated by the learned Appellate Authorityat the time of hearing of the main R.C.A.No.42 of1997 pending on its file. The evidence of both theEngineers and documentary evidence on record arevery much available in the case, then it is otioseto for the tenant/petitioner to file the M.P.No.90of 2001 praying for an appointment of Commissionerand the same is not per se maintainable in the eyeof law. In the considered opinion of this Court,the reason assigned by the learned AppellateAuthority in dismissing the M.P.No.90 of 2001,praying for appointment of Commissioner that thesaid appointment is not necessary in lieu ofdiscrepancy of 6 sq. ft., etc., is not correct."6.Further, the learned counsel for the revision petitionerbrings it to the notice of this Court to the decision inT.R.Rajagopala Iyer V. T.R.Ramachandra Iyer AIR 1969 Madras 144wherein it is held as follows:"Appointment of a Commissioner in the appeal is ararity and is seldom resorted to. Such anappointment is not authorised by Rule 27 of O.41.That rule relates to additional evidence and thelanguage of Rule 27(1)(b) does not lend itself toa construction that the report of a Commissionerto be appointed and submitted in the appellatestage is regarded as additional evidence forpurposes of that rule. Wide as the phraseology ofsub-section (2) of S.107 may appear, when sub-section (1) and the matters mentioned court undersub-section (2) should be understood not as widelyas it may prima facie appear to justify. In anycase, assuming that S.107(2) authorises theappellate court to appoint a Commissioner forinspection, that is a power which should be verysparingly used and only in the interests ofjustice."7.In response, the learned counsel for the respondent/ tenantsubmits that there are 3 points of difference between the parties.Firstly, in regard to 7 ft. in the built up area; secondly, in regardto the age of the building; thirdly, in regard to appurtenant land https://hcservices.ecourts.gov.in/hcservices/ and as per Section 18 A of the TN Buildings (Lease and RentControl) Act, 1960, the Rent Controller shall have powers to appointa Commissioner in any proceedings pending before him and in thisregard, he has all the powers of a Civil Court as per Civil ProcedureCode and in the present case on hand, unless an Advocate Commissionerwith the help of an Engineer inspects the premises, the factsregarding the premises will not be available before the learnedAppellate Authority for determining the actual state of affairs andtherefore, the Appellate Authority has rightly appointed the AdvocateCommissioner in the order in M.P.No.57 of 2006 dated 31.03.2006 whichneed not be interfered by this Court sitting in revision.8.To lend support to his contention that the Appellate Authorityhas power to appoint an Advocate Commissioner, the learned counselfor the respondent cites the decision of this Court in C.Rajagopal V.Mallika Begum (1995 I) CTC 211 at page 213 wherein it is observed asfollows:"The Rent Control Act provides for the issue of acommission and get a report after localinspection. The said power was given to the RentControl Court by virtue of an amendment byincorporating section 18-A in the Act. The purposeof incorporating the section is very clear. Whenthere are two Reports by two person claimingthemselves to be experts and the Reports areconflicting, it will be difficult for the Court toarrive at the correctness of the same. Both theReports will be filed in Court at the instance ofeither party, and so it cannot be treated asimpartial. It was under such circumstance, the Actwas amended incorporating Section 18-A of the Act.By incorporating that Section, the entireprocedure under Order 26 Rule 9 of the Code ofCivil Procedure is also impliedly incorporated init. Once that power is given, the Court is giventhe power to appoint a Commissioner and get aReport, and that will be legal evidence in thecase under Order 26 Rule 10 of the Code of CivilProcedure etc."9.He also relies on the decision of this Court in T.S.Ramu V.Neelakandan 2004 (2) CTC 674 wherein it is observed that 'Though itwas jurisdiction of the Controller only to appoint Commissioner,appeal being a continuation of original proceedings, AppellateAuthority would have all powers which Controller as originalauthority had if it, "is provoked to appoint a commissioner althoughsuch an application was not sought before the Trial Court nor was itthought of by the trial Judge himself" and agreeing with the view in https://hcservices.ecourts.gov.in/hcservices/ the decision reported in 1975 TLNJ 237 and held that AppellateAuthority had all powers which the original authority had whichincludes power to appoint an Advocate Commissioner, under Section 18-A of the TN Buildings (Lease and Rent Control) Act, 1960.'10.Also the decision of this Court in Asokraj Kandaswamy V.Tiruvengadaswamy 1975 TLNJ 237 at page 238 is cited on the side ofthe respondent wherein it is observed that 'under S.18-A it was onlythe Controller who shall have the powers to appoint a Commissionerand not the appellate authority. An appeal is a continuance of theoriginal proceedings and the Appellate Authority would, therefore,have all the powers which the controller had when he was having thepetition originally as an original Authority. There may becircumstances, as it happens, in Civil cases when the AppellateCourt, while dealing with an appeal, is provoked to appoint aCommissioner although such an application was not sought before theTrial Court nor was it thought of by the Trial Judge himself Once theauthority is vested by statute in the original authority such as theRent Controller, to appoint a Commissioner would also form part ofthe record of the Appellate Court and is bound to be scrutinised byhim when the appeal is heard. This and other normal circumstancespertaining to the hearing of Civil proceedings compels the Court todisagree with the Appellate Authority that the text of S.18-A of theAct has to be interpreted strictly and that the Appellate Authorityunder the Act has no authority to appoint a Commissioner in anyproceeding before him but it is only the Rent Controller.'11.It is the contention of the learned counsel for therespondent/tenant that in the report filed by the Engineer for thepetitioner/landlady, the age of the building is shown as 10 years byphysical observation and it is mentioned that the schedule 1amenities including a large extent of vacant land and this has beenindicated as 40 ft. x 32 ft. and has been shown as 1280 sq. ft. andthe plinth area of the petition portion has been indicated as 460 sq.ft. and further the revision petitioner's Engineer has indicated thatthe excess land is 1050 sq. ft. (1280 sq. ft. - 230 sq. ft.) andmoreover, the Engineer has indicated the schedule 1 amenities at 15%(being the large extent of site available) and has given theallowance of Rs.168863/-. But in the report filed on behalf of therespondent/tenant, the area of the premises is indicated at 453 sq.ft. and the age of the building is indicated as 24 to 25 years andthere is no mention of any appurtenant land whatsoever and in fact,it is clearly indicate that the premises is an out house lying morethan 200 running feet away from the street.12.According to the learned counsel for the respondent/ tenant,the learned Rent Controller has come to the conclusion that thebuilding is 10 years old without any evidence having been let in andalso the difference in area even though small (460 sq. ft. - 453 sq. https://hcservices.ecourts.gov.in/hcservices/ ft.) is also a point at which the two Engineers have not agreed toand another important aspect is that there is no appurtenant landwhatsoever and appurtenant land is not indicated anywhere in thereport of the Engineer for the tenant and the appurtenant land is anamenity and even though there is no appurtenant land whatsoever, thepetitioner's Engineer has earmarked 15%.13.Continuing further, the learned counsel for therespondent/tenant submits that in the report filed by the Engineer ofthe revision petitioner/landlady, the fair rent has been indicated atRs.9,710/- per month. But in the report of the Engineer filed onbehalf of the respondent/ tenant the fair rent has been indicated atRs.1,536/- and therefore, there is a vast difference in the fair rentdetermined by the two Engineers. But the learned Rent Controller hasdetermined the fair rent at Rs.8,535/- per month.14.It is to be borne in mind that neither the TN Buildings(Lease and Rent Control) Act, 1960 nor the rules framed thereunderenvisages the appointment of a Commissioner for the purpose ofinspecting and submitting a report regarding the determination offair rent in an application under Section 4 of the Act, in theconsidered opinion of this Court. But generally a Commissioner isappointed to assist the Court by placing a report of localinvestigation. However, an order appointing a Commissioner ought notto become a lever to protract the litigation.15.At this stage, this Court recalls the observation made in thedecision in Tulamaya Chettri and another V. Younarayan Pradhan AIR2004 Sikkim 39 wherein it is observed as follows:"Ordinarily we would not have interfered with anorder appointing an amin commissioner but in thecase at hand parties have closed their evidenceand when the matter was at the stage of argumentsthe respondents came up with prayer forappointment of a commissioner. In view of theadmitted fact that parties have already closedtheir evidence, acceding to the prayer forappointment of an amin commissioner at thisbelated stage would amount to permitting therespondents to fill up lacunae in their evidencethus leading to a roving inquiry. A learnedsingle Judge of the Calcutta High Court in SatishAgarwal V. Tirath Singh, 1996 AIHC 1791 has heldthat when the matter awaits arguments, the prayermade by the defendants for local investigation,if allowed would amount to filling up lacunae intheir evidence and such prayer should not beallowed." https://hcservices.ecourts.gov.in/hcservices/

16.On a careful consideration of respective contentions and inview of the fact that an appointment of an Advocate Commissioner isan interlocutory and procedural one and bearing in mind of the factthat the main R.C.A.No.1087 of 2005 is ripe for hearing of the finalarguments of the respective sides, it is for the Appellate Authorityviz., VIII Judge, Court of Small Causes, Chennai to act based on theavailable oral and documentary evidence on the basis of the facts andcircumstances of the case especially when the two Engineers' reportsare very much available on record and in regard to the difference inarea (460 sq. ft. - 453 sq.ft = 7 sq. ft.) is only a pure question ofmaterial fact to be appreciated by the learned Appellate Authorityduring the course of arguments of main R.C.A.No.1087 of 2005 pendingon his file and in fact, an Advocate Commissioner can only perform aministerial act and not a judicial act in regard to the fixation offair rent under Section 4 of the Act and moreover, it is not the caseof the Appellate Authority that there is insufficient or doubtfulevidence available on record and in that view of the matter, theorder passed by the Appellate Authority, in M.P.No.57 of 2006 dated31.03.2006 appointing an Advocate Commissioner etc., is not correctin the eye of law and resultantly, the civil revision petition isallowed.17.In the result, the Civil Revision Petition is allowed. Theorder of the Appellate Authority viz., VIII Judge, Court of SmallCauses, Chennai in M.P.No.57 of 2006 is set aside. The learnedAppellate Authority is directed to take up the main R.C.A.No.1087 of2005 for hearing finally and to dispose of the same within threemonths from the date of receipt of copy of this order. It is alsoobserved by this Court that at the time of hearing of the appeal ifthe Appellate Court after scanning the evidence on record comes tothe conclusion that the point involved in the subject matter cannotbe resolved on the basis of the evidence on record, then it mayconsider/direct the respondent/tenant to file an application prayingfor appointment of an Advocate Commissioner and it shall provide dueopportunity to the revision petitioner/landlady to file a counter andto dispose of the same on merits together with the hearing of themain RCA and to dispose of the same. Considering the facts andcircumstances of the case, the parties are directed to bear their owncosts. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarsgl https://hcservices.ecourts.gov.in/hcservices/ To1.The Registrar, Court of Small Causes, Chennai.2.The Section Officer, V.R.Section, High Court, Madras+1 cc to Mr.V.Raghavachari, Advocate, SR.No.58001+2 cc to Mr.Ashok Menon, Advocate, SR.No.57624Order inC.R.P.(NPD).No.971 of 2006LA {CO}TP/5.11.2009.