Madras High Court
T.Muthuraj vs K.Saroja on 5 January, 2023
C.R.P.No.4355 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.R.P.No.4355 of 2022 and
C.M.P.No.22912 of 2022
T.Muthuraj .. Petitioner
vs
1. K.Saroja
2. K.Saravanan
3. K.Srinivasan
4. Maheshwari
5. L.Padmini .. Respondents
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India seeking to set side the order passed by the XVI Small
Causes Court at Chennai passed in M.P.No.4 of 2022 in R.L.T.O.P.No.338
of 2020 dated 29.11.2022.
For Petitioner : Mr.S.Shunmuga Velayutham
Senior Advocate
for Ms.S.Thankira
1/14
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C.R.P.No.4355 of 2022
ORDER
The civil revision petition has been instituted challenging the order
passed in M.P.No.4 of 2022 in R.L.T.O.P.No.338 of 2020 dated
29.11.2022.
2. The revision petitioner is a tenant and the respondents instituted
proceedings under Section 21(2)(a) and 21(2)(g) of the Tamil Nadu
Regulation of Rights and Responsibilities of Landlord and Tenants Act,
2017 (for brevity, “the Act”).
3. During the pendency of the R.L.T.O.P, the revision petitioner /
tenant filed a miscellaneous petition in M.P.No.4 of 2022 under Section
36(1)(e) and 36(2) of the Act seeking cross examination of the respondents
in R.L.T.O.P.No.338 of 2020. The said miscellaneous petition was
adjudicated and dismissed by the Rent Court on the ground that the scope of
cross examination is limited in the New Rent Act and in respect of ground of
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C.R.P.No.4355 of 2022
eviction under Section 21(2)(a) of the Act, the tenancy is admitted by both
the petitioner and the respondents in R.L.T.O.P, leaving no scope for cross
examination for the said ground. In respect of Section 21(2)(g) of the Act, it
is enough that the landlord states that the petition premises is needed for
own occupation. As mere declaration of landlord's intention is sufficient,
there is no scope for cross examination in the present case. Based on the
above reasonings, the miscellaneous petition filed by the revision petitioner
was dismissed.
4. Learned Senior Counsel appearing on behalf of the revision
petitioner mainly contended that the petitioner set out certain facts and
circumstances, which are all to be established for the purpose of disputing
the ground raised by the landlord in his application and therefore, cross
examination became necessary, which was declined by the Rent Court and
thus, the petitioner is constrained to move the revision petition. He would
also submit that an opportunity of cross examination is a valuable
opportunity and the Rent Court ought to have provided the opportunity,
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C.R.P.No.4355 of 2022
enabling the revision petitioner to establish his case in the manner known to
law. The reasons stated in the order impugned is not convincing and
therefore, the civil revision petition is to be considered.
5. Let us consider the scope of Section 36(1)(e) and Section 36(2) of
the Act. Section 36(1) of the Act contemplates that the Rent Court and the
Rent Tribunal shall not be bound by the procedure laid down by the Civil
Procedure Code, 1908. Thus, any interlocutory application / miscellaneous
petition filed under the Civil Procedure Code is not entertainable, since,
summary procedure has been contemplated under the Act, with reference to
the miscellaneous petition filed by the revision petitioner under Section
36(1)(e) of the Act. The Sub-clause contemplates that “the Rent Court shall,
then, fix a date of hearing and may hold such summary inquiry as it deems
necessary”. Thus, summary inquiry has been contemplated and the Rent
Court is not bound by the Civil Procedure Code. Under those circumstances,
this Court has to examine the scope of Sub-section (2) of Section 36 of the
Act.
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C.R.P.No.4355 of 2022
6. The Sub-section (2) of Section 36 of the Act enumerates that “ in
every case, before the Rent Court and the Rent Tribunal, the evidence of a
witness shall be given by affidavit. However, the Rent Court and the Rent
Tribunal, where it appears to it that it is necessary in the interest of justice to
call a witness for examination or cross examination, such witness can be
produced and may order attendance for examination or cross examination of
such a witness”.
7. In the context of Section 4(2) of the Act, in the event of no written
agreement between the tenant and the landlord, the landlord or the tenant
shall have the right to apply for termination of tenancy under Clause (a) to
Sub Section (1) of Section 21. Once such an application is filed, then the
Rent Court and the Rent Tribunal have to follow the procedures as
contemplated under Section 36 of the Act. Section 36 (1) of the Act,
unambiguously stipulates that the Rent Court and the Rent Tribunal shall
not be bound by the procedure laid down by the Code of Civil Procedure,
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C.R.P.No.4355 of 2022
1908, but shall be guided by the Principles of Natural Justice.
8. Accordingly, the landlord or the tenant may file an application before
the Rent Court or the Rent Tribunal, accompanied by the affidavits and
documents, if any, under Clause (a) to Sub Section (1) of Section 36. As per
Clause (b), the Rent Court, then, shall issue notice to the opposite party.
Under Clause (c), the opposite party shall file a reply accompanied by
affidavits and documents, if any. Clause (d) stipulates that the applicant may
file a rejoinder, if any. Clause (e) denotes that the Rent Court shall, then, fix
a date of hearing and may hold such summary enquiry as it deems
necessary.
9. In the context of Clause (e) to Sub Section (1) of Section 36, after
completion of the pleading between the parties, the Rent Court shall fix the
date of hearing and may hold such summary enquiry as it deems necessary.
10. A careful reading of Clause (e) to Sub Section (1) of Section 36
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C.R.P.No.4355 of 2022
would indicate that the Rent Court may hold such summary enquiry as it
deems necessary. Thus the summary proceedings to be conducted by the
Rent Court shall be regulated by the Rent Court as well as by the Rent
Tribunal itself. However, the Court should ensure that opportunities are
afforded to both the landlord and the tenant. Such an opportunity need not
be elaborate, so as to prolong and protract the issues. Under the guise of
Rules of natural justice, no party shall be allowed to take unnecessary
adjournments or allowed to file miscellaneous petition after miscellaneous
petition with reference to the grounds raised in their pleadings in the
application.
11. The Rent Court and the Rent Tribunal are expected to be cautious,
while dealing with such miscellaneous applications or otherwise filed by any
one of the parties. No application under the Code of Civil Procedure is
entertainable. Thus the summary enquiry must be conducted in compliance
with the Rules of Natural Justice and the Principles of Natural Justice is to
be regulated by the Rent Court as well as by the Rent Tribunal, so as to
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C.R.P.No.4355 of 2022
ensure equal opportunity to the landlord and the tenant to establish their
cases. Any attempt to prolong and protract the application should be
thwarted. The Rent Court and the Rent Tribunal, at no circumstances, shall
pave way for the parties to drag on the matter, since Sub Section (6) of
Section 36 contemplates the time limit for disposal of the applications.
12. Section 36(2) contemplates that “in every case, before the Rent
Court and the Rent Tribunal, the evidence of a witness shall be given by
affidavit. However, the Rent Court and the Rent Tribunal, where it appears
to it that it is necessary in the interest of justice to call a witness for
examination or cross-examination, such witness can be produced and may
order attendance for examination or cross-examination of such a witness”.
13. With reference to Sub Section (2) of Section 36, the first phrase in
Sub Section (2) indicates that “the evidence of a witness shall be given by
affidavit”. If an affidavit is filed, then the Rent Court or the Rent Tribunal is
empowered to proceed and dispose of the application. If no affidavit is filed,
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C.R.P.No.4355 of 2022
then also there is no impediment for the Rent Court or the Tribunal to
proceed with the case on merits.
14. However, the Rent Court and the Rent Tribunal, where it appears to
it that it is necessary in the interest of justice, then alone the Rent Court or
the Rent Tribunal may call a witness for examination or cross-examination.
Thus it is unambiguous that calling for a witness for examination or cross-
examination is not mandatory and the Rent Court in this regard is
empowered to take a decision based on the pleadings made between the
parties. No party can claim examination of witness or cross-examination of
witness as mandatory. It is only discretionary and the Rent Court or the Rent
Tribunal finds it necessary in the interest of justice, then alone the witnesses
are to be called for examination or cross-examination.
15. In view of the above provisions, the revision petitioner cannot claim
the cross examination of witnesses as a right. It is for the Rent Court to form
an opinion and if the Rent Court is able to form an opinion that such
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C.R.P.No.4355 of 2022
examination became unnecessary, then, the parties cannot insist upon the
same. In this context, this Court, in the present revision petition has to
consider whether the reasons stated for dismissing the miscellaneous petition
is in consonance with the Rules of natural justice or not.
16. As far as Section 21(2)(a) read with Section 4(2) of the Act is
concerned, once the tenant or landlord is unable to establish that there is a
written agreement in force, then the examination of witness become
unnecessary under Section 36(2) of the Act and therefore, this Court do not
find any infirmity in the order passed by the Rent Court in the miscellaneous
petition.
17. In respect of Civil Revision Petition filed under Article 227 of the
Constitution of India, the scope cannot be extended for the purpose of
adjudicating the disputed facts between the parties since there is an appeal
remedy available under TN Act 42 of 2017 against the order passed by the
Rent Court. In short, against the final order passed in R.L.T.O.P, R.L.T.A is
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C.R.P.No.4355 of 2022
available and therefore, the High Court cannot adjudicate such factual
disputes in Civil Revision Petition filed under Article 227 of the Constitution
of India with reference to provisions of TN Act 42 of 2017. Regarding the
scope of Article 227 of the Constitution of India, it is relevant to consider the
judgment of the Supreme Court in Waryam Singh and another vs.
Amarnath and another [AIR 1954 SC 215], where, in paragraph 14 at page
217, the Supreme Court neatly formulated the ambit of High Court’s power
under Article 227 in the following words:
“The power of superintendence conferred by Article
227 is, as pointed out by Harries C.J., in ‘Dalmia Jain
Airways Ltd. vs. Sukumar Mukherjee’, AIR 1951
Calcutta 193 (SB) (B), to be exercised most sparingly
and only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their authority
and not for correcting mere errors.”
18. The Chief Justice Harries in the Full Bench decision in Dalmia case
(supra) stated the principles on which the High Court can exercise its power
under Article 227 very succinctly which would better, quote : “Though this
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C.R.P.No.4355 of 2022
Court has a right to interfere with decisions of Courts and tribunals under its
power of superintendence, it appears to me that that right must be exercised
most sparingly and only in appropriate cases. The matter was considered by
a Bench of this Court in Manmathanath vs. Emperor [AIR 1933 Calcutta
132]. In that case a Bench over which Sir George Rankin C. J. presided held
that Section 107, Government of India Act (which roughly 2 corresponds to
Article 227 of the Constitution), does not vest the High Court with limitless
power, which may be exercised at the Court's discretion to remove the
hardship of particular decisions. The power of superintendence it confers is
a power of a known and well-recognised character and should be exercised
on those judicial principles which give it its character. In general words, the
High Court's power of superintendence is a power to keep Subordinate
Courts within the bounds of their authority, to see that they do what their
duty requires and that they do it in a legal manner.”
19. The power of the High Court under Article 227 to be plenary and
unfettered, but at the same time, the High Court should be cautious in its
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C.R.P.No.4355 of 2022
exercise. No doubt, when there is gross abuse of jurisdiction, the High Court
can interfere under Article 227, whether there is gross abuse or not, is the
factual aspect, which is to be considered in each case. Every case cannot be
brought under the principles of gross abuse of jurisdiction.
20. The parties to the R.L.T.O.P are at liberty to raise all their grounds
for the final disposal of R.L.T.O.P, which is expected to be done by adhering
to the time limit contemplated under Section 36(6) of the Act.
21. Accordingly, this revision petition is dismissed. There will be no
order as to costs. Consequently, the connected miscellaneous petition is
closed.
Speaking Order/Non-Speaking Order. 05.01.2023
Internet : Yes/No
Neutral Citation: Yes/No
drm/nhs
To
1. The XVI Small Causes Court, Chennai.
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C.R.P.No.4355 of 2022
S.M.SUBRAMANIAM, J.
drm
C.R.P.No.4355 of 2022 and
C.M.P.No.22912 of 2022
05.01.2023
https://www.mhc.tn.gov.in/judis
