The civil revision petitioner/appellant has preferred this civil revision
petition as against the order passed in I.A.No.10 of 2008 in R.C.A.No.16 of 2004
passed by the learned Principal Subordinate Judge, Nagercoil, Kanyakumari
District (learned appellate authority) in dismissing the application filed by
the petitioner under Order 1 Rule 10 (2) and Section 151 of the Code of Civil
Procedure, to implead the Executive Officer, Incorporated and uncorporated
Devasams, Suchindram, Kanyakumari District.
2. The learned appellate authority namely the learned Principal
Subordinate Judge, Nagercoil, Kanyakumari District, while passing orders in
I.A.No.10 of 2008 has come to the conclusion that the proposed party namely the
second respondent Devasom Board is not necessary or a proper party to the appeal
proceedings and resultantly, dismissed the application.
3. According to the learned Counsel for the revision petitioner, the
learned appellate authority, has dismissed the I.A.No.10 of 2080 filed by the
revision petitioner in R.C.A.No.16 of 2004 on the file of the learned Principal
Subordinate Judge, Nagercoil, without considering the merits of the application
and further that, he is proceeding with the main appeal and moreover, P.W.1 has
admitted before the learned Rent Controller that the site of the building No.1-
70C is owned by the respondent/petitioner and the Devasom Board and in the
absence of the Devasom Board as necessary party in the petition, the matter
cannot be proceeded with in an effective way and that the FCDE denoted in the
plan belongs to Devasom Board and that the petition in R.C.O.P.No.43 of 1999 has
been filed without knowing the exact area of the petitioned property and the
boundaries thereto and that the southern half which belongs to Devasom Board has
been suppressed and the southern half of the suit property has been wrongly
stated as 'Road' and that for the southern half, Devasom Board is collecting
rent from the revision petitioner/appellant and therefore, the Devasom Board is
mandatorily an essential party and the same cannot be dispensed with on any
score and that these aspects have not been appreciated by the learned appellate
authority namely the learned Principal Subordinate Judge, Nagercoil, while
passing orders in I.A.No.10 of 2008 in a proper perspective which has resulted
in miscarriage of justice and therefore, prays for allowing the civil revision
petition to promote substantial cause of justice.
4. It is to be noted that the revision petitioner/petitioner/appellant in
the affidavit filed in I.A.No.10 of 2008 has inter alia stated that the southern
half of the petition property belongs to the Devasom Board has been suppressed
and that the southern boundaries of the suit property has been wrongly mentioned
as 'Road' and that the property of the Devasom Board has been purposely omitted
to merge the area of Devasom Board and further that, the Devasom Board is
collecting rent for the southern half from the revision petitioner and that
therefore, Devasom Board ought to be added as an additional
appellant/respondent.
5. In the counter filed by the respondent/petitioner, it is inter alia
stated that 'building portions comes within the patta land of this
landlord/petitioner in the main O.P and vacant area abutting on the south
belongs to Devaswom Board and that the building in issue exclusively falls
within the patta land of the landlord and that the Devaswom is not necessary
party and a similar application has been filed to implead Devaswom by a tenant,
a lessee of adjoining shop in R.C.O.P.No.36 of 1992 which has been dismissed by
the learned Rent Controller, Nagercoil and the same has been confirmed by the
High Court in C.R.P.No.1093 of 2007 holding that the Devaswom Board is
unnecessary party and that the main eviction proceedings in R.C.O.P.No.36 of
1992 is neither maintainable in law nor on facts and therefore, prays for the
dismissal of the application.
6. It is to be borne in mind that the petition in I.A.No.10 of 2008 in
R.C.A.No.16 of 2004 has been filed before the learned appellate authority
namely, the learned Principal Subordinate Judge, Nagercoil, under Order 1 Rule
10(2) and Section 151 of the Code of Civil Procedure.
7. At this stage, this Court recalls the decision in Aruppukottai Dravida
Munnetra Kazhagam v. M.Periaswami and another reported in 1974 TLNJ 247 at 248,
wherein it is held that 'admittedly, there is no provision in the Madras
Buildings (Lease and Rent Control) Act or in the Rules framed under the said
Act, for any of the provisions of the Civil Procedure Code being made applicable
to actions and proceedings taken or instituted under Act and that as early as in
1965, it has been held in (1965) 1 MLJ 287 that the Rent Controller is not a
court and that the Civil Procedure Code is not applicable to proceedings taken
under the Act and that the Madras Buildings (Lease and Rent Control) Act and the
Rules framed thereunder themselves make provision for certain matters, such as
service of summons, setting aside of ex-parte orders, proceedings by or against
legal representatives etc., no part of the Civil Procedure Code has been made
applicable to the various proceedings that have to be taken in actions under the
Madras Buildings (Lease and Rent Control) Act, such as impleading of parties,
service of summons, setting aside the ex-parte orders, continuance of
proceedings by the legal representatives of a deceased petitioner or respondent
etc. and it is therefore, obvious that O.1 r.10(2) of the Civil Procedure Code
cannot also apply to any proceedings under the Act.
8. Generally, there is an exclusion of the applicability of the provisions
of the Civil Procedure Code and where it is either made applicable or even
intended to apply, provision is made to that effect as per the decision in
Devarajan vs. Muniratnam reported in 94 LW 435 at 437. The special procedure of
rules framed under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,
provide for a procedure to be followed by the learned Rent Controller and the
learned appellate authority and they deal with certain aspects of the procedure
to be followed and it is quite obvious that the provisions of the Code of Civil
Procedure cannot be invoked dealing with the petition under the Act as per the
decision in Krishnamoorthy vs. Jagat Textiles reported in 1981(1) MLJ 394 at
399.
9. In view of the fact that the ingredients of Order 1 Rule 10(2) of the
Code of Civil Procedure are not applicable to any proceedings initiated under
the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, this Court without
going into the merits of the matter in issue between the parties, opines that
the application in I.A.No.10 of 2008 filed by the revision petitioner under
Order 1 Rule 10(2) of the Code of Civil Procedure is not per se maintainable in
law and resultantly, the present civil revision petition fails.
10. In the result, the civil revision petition is dismissed in the
interest of justice leaving the parties to bear their own costs. Resultantly,
the connected Miscellaneous Petition is dismissed.
rsb
To
1.The Principal Subordinate Judge,
Nagercoil.