IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.340 of 2006 and C.M.P.No.2942 of 2006 S.Sundaram ... Petitioner vs. 1. Meer Hameed 2. Ameer Basha 3. Narayani @ Nagammal ... Respondents This civil revision petition filed under Article 227 of the Constitution of India is preferred against the order dated 13.12.2005 passed by the learned Principal District Munsif (Rent Controller), Chidambaram in I.A.No.101 of 2004 in RCOP No.26 of 1991. For Petitioner : Mr.A.Muthukumar For Respondents : Mrs.Chitra Sampath ORDER Heard the learned counsel on either side. 2. An epitome and the long and short of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The revision petitioner/petitioner filed RCOP No.26 of 1991 so as to evict the defendant Narayani @ Nagammal. This case has a chequered career of its own. An exparte order of eviction was passed on 07.01.1992 and subsequently, it was set aside and the matter is pending ever since 1991. While so, I.A.No.109 of 2004, under Section 27 of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 (hereinafter referred to as the Act) and Order 1 Rule 10 of the Code of Civil Procedure, was filed by the respondents 1 and 2 herein for getting themselves impleaded as though they are the Muthavallis of the Wakf, which is allegedly having ownership over the petition mentioned property. The lower Court after hearing both the sides, allowed the application. Being disconcerted by and dissatisfied with the order of the lower Court, this revision has been focussed on various grounds. https://hcservices.ecourts.gov.in/hcservices/ 3. Learned counsel for the revision petitioner would develop his argument placing reliance on the grounds of revision to the effect that the alleged Muthavallis R1 and R2 are having no right to get themselves impleaded as parties and if at all they are having any right to be asserted, it is open for them to file a suit and in the RCOP, they cannot be impleaded and that too when the revision petitioner is having a specific case of his own that the revision petitioner purchased the property concerned from the father of the respondents 1 and 2 herein as per sale deeds dated 18.09.1990 and 13.09.1990; the lower Court was wrong in giving a finding as though the property is a Wakf property and that R1 and R2 should be impleaded; the revision also is maintainable straightaway as no CMA need be filed as there is gross violation on the part of the lower Court in applying the law. Accordingly, he prays for setting aside the order of the lower Court. 4. Whereas the learned counsel for the respondents 1 and 2 would put forth and set forth her arguments that bypassing the Appellate Court, straightaway revision cannot be filed as whenever an order is passed by the Rent Controller and when there are appeal provisions, appeal should be filed before the Appellate Authority and not before this Court invoking Article 227 of the Constitution of India; the proposed parties in their affidavit itself specifically raised the plea that the property concerned is the Wakf property and in such a case, the learned Rent Controller under Section 10 of the Act should have dealt with the matter and driven the parties to the Civil Court for getting their rights adjudged; the original petitioner No.2 (deceased), the father of the proposed parties had no right to alienate the petition mentioned property as it happened to be the Wakf property. Accordingly, she prays for dismissal of the revision petition. 5. A bare perusal of the order of the lower Court coupled with the typed set of papers would display and demonstrate that the lower court without exercising its power under Section 10 of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 has kept the matter pending on its file. The fact remains that at the earliest point of time, viz., during the year 2002 itself the original respondent, viz., R3 herein filed the counter raising the point that the property is the Wakf property and that RCOP would not be maintainable; whereupon the Court has numbered the RCOP; as per the second proviso to sub section (1) of Section 10 of the Act, the Controller should have taken it up as a preliminary point and given its verdict thereon. 6. The learned counsel for the revision petitioner cited the decision of this Court reported in 1996 (1) MLJ 47 (Annamalai and another vs. The Official Receiver, North Arcot Ambedkar District, https://hcservices.ecourts.gov.in/hcservices/ Thiruvannamalai Sambuvarayar District at Vellore and another) and developed his argument that in certain circumstances without filing CMA, straightaway CRP could be filed. An excerpt from the cited decision would run thus: 4. Sec.2(6) of the Tamil Nadu Buildings (Lease and Rent control) Act, 1960 defines "landlord" as follows: "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant". The third respondent in the I.A., in paragraph 4 of the counter filed by him in the RCOP has stated that it is no doubt true that this respondent became a tenant under the petitioners on the basis of the purchase made by the petitioners in court auction sale by their vendors and this respondent has also been regularly paying the rent of Rs.550 per month from the tenancy. Therefore, the tenancy between the petitioners in the RCOP and himself has been admitted by the tenant. But, in the counter, he has also stated that a notice from the Official Receiver calling upon him to come and execute a rental agreement in his favour was received by him and on enquiry, he came to know that the sale of the property in court-auction held in favour of the respondent's vendor had been set aside by the High Court and he has taken steps to deposit the rent in court. It is also stated by him that because of the rival claims made by the petitioners on the one hand, and the Official Receiver on the other, he had filed a petition for the deposit of rent and unless it is made clear as to who is the real owner and permitted him to receive the rent, he cannot pay the rent to the petitioners and the denial is a bona fide one. It is in this background, the eviction petition has been sought by the petitioners against the respondent under Sec.10(7) of the Act also. In the interlocutory application filed by the Official Receiver, the tenant has not chosen to file a counter. The learned counsel appearing for the revision petitioners would argue that the petition for impleading the Official Receiver has been filed under Order 1 Rule 10 of the Code of Civil Procedure, and for deciding the question whether the denial of title of the petitioners by the tenant is a bona fide one or not. The presence of the Official Receiver is not necessary, and therefore, the impugned order passed by the learned Rent Controller is not correct and https://hcservices.ecourts.gov.in/hcservices/ therefore, it has to be set aside. The learned Rent Controller, as already observed by me, has observed that in this rent control original petition, it cannot be decided who is the owner of the premises in question and yet to decide the question whether the denial of title by the tenant is a bona fide one or not, the presence of the Official Receiver is necessary and on that ground, allowed the application. 5. The learned counsel appearing for the first respondent herein has taken a preliminary objection with regard to the maintainability of the civil revision petition under Sec.115 of the Code of Civil Procedure, contending that the order passed by the Rent Controller is an appealable one and therefore, no revision would lie. The learned counsel appearing for the revision petitioners would on the other hand contend that in the decision reported in Ganapathy Ammal v. Chandaresan, (1994) 2 LW 622), the High Court has considered the question of maintainability of a revision under Sec.115 of the Civil Procedure Code, even in a case in which an appeal would like against an order of the Rent Controller and has come to the conclusion that a revision would lie and therefore, the preliminary objection with regard to the maintainability of the civil revision petition is without merits. The learned Judge, who has rendered the above judgment after an elaborate discussion has held that the correct averment is that the Rent Controller or the Appellate Authority is not persona designata, but the court and it follows that it is a court subordinate to High Court also. It is clear that the civil revisionpetition has been rightly entertained. The point that arose for determination before the learned Judge in the above case is whether a revision against an order of the appointment of a Commissioner was maintainable. The learned Judge has held that the order in the civil revision petition cannot be said to be one passed without jurisdiction and the said civil revision petition was preferred against the order of the lower court allowing an application for appointing a Commissioner and it was maintainable. Therefore, I am of opinion that the preliminary objection taken by the learned counsel appearing for the first respondent herein with regard to the maintainability of the civil revision petition cannot be entertained in view of the decision reported in Ganapathy Ammal v. Chandaresan (1994) 2 L.W.622." A poring over and perusal of the aforesaid provision would reveal that in certain circumstances, when there is an error apparent on the part of the Rent Controller in applying the law , straightaway revision would lie. Here, in this case, ignoring Section 10 of the https://hcservices.ecourts.gov.in/hcservices/ Act, the lower Court passed such an order. Hence, I am of the view that the revision cannot be dismissed in limini on the sole ground that CRP is not maintainable without filing CMA. 7. The learned counsel for the revision petitioner by inviting the attention of this Court to the order passed in I.A.No.27 of 2004 in RCA No.7 of 2003 by the Sub Court, Chidambaram in one other matter would detail his argument that already in a similar matter, where one other person is a tenant, the appellate authority held that R1 and R2 herein were not necessary parties and that in the said RCA No.7 of 2003 as well as in the present RCOP different parts of one and the same building are involved. 8. Whereas the learned counsel for the respondents 1 and 2 would submit that there is no indication that the said order in I.A.No.27 of 2004 in RCA No.7 of 2003 is having any relevancy to this case. 9. Be that as it may, now then, I am concerned with the fact whether the lower court has exercised its jurisdiction as contemplated under Section 10 of the Act. It is ex-facie and prima facie clear that the proper approach on the part of the lower Court is to conduct such enquiry as per Section 10 of the Act, which it has not done so far. For conducting such enquiry, I am of the considered opinion that R1 and R2 are not necessary parties; however, they can figure as witnesses and also file documents in order to buttress and fortify the stand of R3 herein, who is the original respondent before the Rent Controller. 10. With this observation, I would like to set aside the order of the lower Court by allowing this revision and consequently, the said I.A.No.101 of 2004 shall stand dismissed and this civil revision petition is allowed. The RCOP has become a very old matter and hence, the Rent Controller is directed to dispose of the RCOP by deciding on merits, including the point relating to title under Section 10 of the Act within a period of three months from the date of receipt of a copy of this order,. No costs. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vj2 To The Principal District Munsif (Rent Controller) Chidambaram. 1 cc To M/s.A.Muthukumar., Advocate, SR.6916. 1 cc To M/s.Chitra Sampath, Advocate, SR.6917. C.R.P.(PD).No.340 of 2006 KSK(CO) RVL 12.03.2009 https://hcservices.ecourts.gov.in/hcservices/