IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11..08..2008 C O R A M THE HONOURABLE MR. A.K. GANGULY, CHIEF JUSTICE AND THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA O.S.A. No.273 of 2008 A. Chandrasekar .. Appellant/Applicant/Plaintiff versus T. Venugopal .. Respondent/Respondent/Defendant - - - - - Prayer : Appeal filed under Order XXXVI, Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent against the fair and decretal order passed by a learned single Judge of this Court dated 17.7.2008 in Application No.2437 of 2006 in C.S. No.51 of 2006. - - - - - For Appellant : Mr. P. Karl Marx For 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 has been filed challenging an order dated 17.7.2008 passed by a learned Judge on the Original Side of this Court, whereby the learned Judge refused to transfer R.C.O.P. No.193 of 2006 pending on the file of the XV Small Causes Court/Rent Controller, Chennai to the file of this Court, to be tried along with the suit in C.S. No.51 of 2006 and for stay of further proceedings before the Rent Controller. We find that the respondent/landlord has filed a rent control proceeding in the XV Small Causes Court/Rent Controller, Chennai, inter alia, on the ground that the present appellant has not paid the rent in respect of the holding. https://hcservices.ecourts.gov.in/hcservices/ 2. We are not going into the merits of the controversy in the said rent control proceeding. We find that the present appeal is not maintainable for various reasons. First of all, it has been held by several High Courts that a proceeding pending before the Rent Controller cannot be transferred to the High Court under Section 24 of the Civil Procedure Code. In the judgment 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 Court has come to a finding that the Rent Control Act and the Rules made thereunder constitute a complete Code covering the proceedings under the said Act and even with regard to the transfer of such proceedings before the Rent Controller as well as before the Appellate Authority, provisions are made in the Act and the Rules itself. Therefore, a petition for transfer of the proceeding under Section 24 of the Civil Procedure Code to the High Court is not maintainable [See paragraph 11 at page 175] : "11. If we examine the facts of the present case in the light of the above decision relied upon by both the parties, though it was held that the Rent Control Court is a Civil Court, but not in terms of the provisions of the Code of Civil Procedure. Further, though it was held that where the provisions of the Rent Control Act are silent, the provisions of the Code of Civil Procedure are applicable, but as already held that the Rent Control Act and the Rules made thereunder are complete code covering the proceedings under the said Act. Even with reference to the transfer of the proceedings before the Rent Controller as well as before the Appellate Authority, it is provided under the Act and the Rules made thereunder. But, however, there is no provision for transfer of a proceeding from the Rent Control Court to any other Civil Court. In fact, the powers of ordering eviction under the grounds specified under the Act are exclusively conferred on the specified or notified courts or the authorities. Therefore, such power conferred by Notification under the provisions of the Act cannot be conferred by this Court by transferring a rent control proceedings pending on the file of the Rent Controller to any Civil court, as such powers are vested only in Government. Therefore, there is no merit in the contention of the learned counsel for the petitioners seeking transfer of the proceedings pending before the Rent Controller to the Civil court." 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, whereby a learned Judge of the Allahabad High Court held that the Buildings Act is a special Act, while the Civil Procedure Code is a general enactment and after coming to the said finding, the learned Judge arrived at a conclusion that a proceeding which is pending before the Rent Controller under the Buildings Act cannot be transferred to the High Court under Section 24 of the Civil Procedure Code. Relying on the said judgment in Abid Ali's case, another learned Judge of the Allahabad High Court, in the case of Ganga Ram Dohrey vs. State of U.P. reported in A.I.R. 2002 Allahabad 238, came to the same finding. We are in agreement with the aforesaid findings rendered by the Allahabad High Court and the Andhra Pradesh High Court. 3. Coming to the present Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, we find that under Section 34 of the said Act, there are provisions for making rules, and the rules have been framed under the said Act known as Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974. Under the said rules, Rule 14 provides for transfer of proceedings from one Controller to another and Rule 17 provides for transfer of proceedings from one Appellate Authority to another. Therefore, in the relevant Act and the Rules governing the field, there are adequate provisions for transfer. In that view of the matter, the ratio laid down in the aforesaid judgments rendered by the Allahabad High Court and the Andhra Pradesh High Court squarely applies 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 Raikot reported in A.I.R. 1953 S.C. 198, held that an order for transfer "neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground". The learned Judges further held that an order for transfer "cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground" [See paragraph 13 at page 201 of the report] :- "13. The question that requires determination in an application under clause 13 of the Letters Patent is, whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the latter as a Court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between https://hcservices.ecourts.gov.in/hcservices/ them which has to be determined by the court. In the present case, a Single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a ‘judgment’. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch, C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed." The judgment in the case of Asrumati Debi has also been subsequently referred to and confirmed by the Supreme Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania reported in A.I.R. 1981 S.C. 1786 [See paragraph 99 at page 1812 of the report] :- "99. The first decision of this Court which is relevant is Asrumati Debi case4. In this case the only question involved was whether an order transferring a suit under clause 13 of the letters patent satisfied the tests of a judgment as mentioned in clause 15 of the letters patent. This Court while referring to the Calcutta and Madras decisions refrained from giving any particular decision except that they held that the mere order of transfer under clause 13 of the letters patent could not be said to be a judgment and was therefore not appealable. This Court pointed out that the order neither affected the merits of the https://hcservices.ecourts.gov.in/hcservices/ controversy nor did it terminate or dispose of the suit. In this connection, the Court observed as follows: “The judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. * * * We have indicated that the essential features of a ‘judgment’ are according to both the Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under clause 13 of the letters patent does not satisfy the tests of a ‘judgment’ as formulated by either of these High Courts.” The learned Judges found that in Asrumati Debi's case, the Supreme Court held that "a mere order for transfer under Clause 13 of the Letters Patent could not be said to be a judgment and was, therefore, not appealable". A Division Bench of this Court in the case of Angadu Narasimhalu Chettiar vs. T.V. Selvarajan reported in 1991 T.N.L.J. 142, held that an order transferring a suit is not appealable, relying on the ratio laid down in Asrumati Debi's case. 5. In the instant case, the order that has been passed is one of refusal to transfer the rent control proceeding. Therefore, the said order is also not appealable. By refusing to transfer the proceeding, there is no determination of any lis pending between the parties, nor does the said order affect the merits of the controversy. In view of the aforesaid clear finding of the Supreme Court, this original side appeal is not maintainable and it is accordingly dismissed. We, however, make it clear that it is open to the parties to take all points in the proceeding pending before the Rent Controller. There shall be no order as to costs. Consequently, M.P. No.1 of 2008 is closed. ab Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The 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.43851 O.S.A. No.273 of 2008 BV(CO) SR/18.8.2008 https://hcservices.ecourts.gov.in/hcservices/