Gopal Chettiar (Deceased) And 3 Others v. P.A.A Sahul Hameed And Another, Madras High Court, Judgment, Law, casemine.com

Factual and Procedural Background

These Civil Revision Petitions arise from two identical orders passed by the Subordinate Judge, Kulithalai, in I.A No. 108 of 1997 in R.C.A No. 11 of 1995 and I.A No. 109 of 1997 in R.C.A No. 12 of 1995 dated 21.4.1997. The petitioner, a tenant of two properties, filed applications for the appointment of Commissioners to inspect the premises and note any physical changes. The respondent had earlier filed eviction petitions against the petitioner on grounds of waste and wilful default. The Rent Controller found in favor of the respondent and ordered eviction. The petitioner appealed these eviction orders before the Sub-Judge, Kulithalai. While these appeals were pending, the petitioner sought the appointment of Commissioners to inspect the properties. The respondent opposed these applications, arguing that a Commissioner had already been appointed by the Rent Controller and the petitioner had not objected to that report. The respondent further contended that the applications were not bona fide as they were filed during the pendency of enquiry. The Appellate Authority accepted the respondent’s objections and dismissed both applications and the appeals.

Legal Issues Presented

Whether the appointment of a Commissioner under Order 26, Rule 9 of the Civil Procedure Code (C.P.C.) can be used for collecting evidence in Rent Control proceedings.

Whether the petitioner was entitled to the appointment of a Commissioner to inspect the premises again after a Commissioner had already been appointed and had submitted a report.

The scope and applicability of Order 26, Rule 9, C.P.C., in the context of Rent Control proceedings under Section 18.A of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1959.

Arguments of the Parties

Petitioner's Arguments

No prejudice would be caused to the respondent if a Commissioner were appointed to inspect the buildings and report on alleged changes or waste.

Respondent's Arguments

A Commissioner had already been appointed by the Rent Controller, and there was no objection to that report from the petitioner.

The petition for appointment of a Commissioner was filed during the enquiry stage and lacked bona fide intention.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Order 26, Rule 9, Civil Procedure Code (C.P.C.)	Appointment of Commissioner to elucidate matters before the court, not to collect evidence.	The court held that the appointment of Commissioner is for clarification and not for evidence gathering, and thus the petitioner’s request to appoint a Commissioner again was rejected.
Section 18.A, Tamil Nadu Buildings (Lease and Rent Control) Act, 1959	Applicability of Order 26, Rule 9, C.P.C. to Rent Control proceedings.	The court applied this section to confirm that the procedural rule for appointing Commissioners under the C.P.C. is applicable in Rent Control matters, reinforcing the limitation on the scope of appointment.

Precedent

Rule or Principle Cited For

Application by the Court

Order 26, Rule 9, Civil Procedure Code (C.P.C.)

Appointment of Commissioner to elucidate matters before the court, not to collect evidence.

The court held that the appointment of Commissioner is for clarification and not for evidence gathering, and thus the petitioner’s request to appoint a Commissioner again was rejected.

Section 18.A, Tamil Nadu Buildings (Lease and Rent Control) Act, 1959

Applicability of Order 26, Rule 9, C.P.C. to Rent Control proceedings.

The court applied this section to confirm that the procedural rule for appointing Commissioners under the C.P.C. is applicable in Rent Control matters, reinforcing the limitation on the scope of appointment.

Court's Reasoning and Analysis

The court observed that a Commissioner had already been appointed by the Rent Controller who submitted a report to which the petitioner did not object. The issue of waste or wilful default is a matter requiring proof through evidence adduced by the parties. The court emphasized that the appointment of a Commissioner under Order 26, Rule 9, C.P.C. is intended only to elucidate or clarify matters before the court, not to collect evidence. The petitioner’s attempt to appoint a Commissioner again was viewed as an attempt to gather evidence rather than seek clarification. The court further held that this procedural rule applies to Rent Control proceedings by virtue of Section 18.A of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1959. Consequently, the court found no infirmity in the Appellate Authority’s dismissal of the applications and appeals.

Holding and Implications

The court dismissed the Civil Revision Petitions and the connected miscellaneous petitions. The direct effect is that the petitioner is not entitled to the appointment of Commissioners for inspection after a Commissioner has already been appointed and reported. No costs were ordered. The decision does not set any new precedent but affirms the limited scope of appointing Commissioners under Order 26, Rule 9, C.P.C. in Rent Control proceedings.

Gopal Chettiar (Deceased) And 3 Others v. P.A.A Sahul Hameed And Another

These two Civil Revision Petitions are directed against the two different identical orders passed by the Subordinate Judge, Kulithalai, made in I.A No. 108 of 1997 in R.C.A No. 11 of 1995 and I.A No. 109 of 1997 in R.C.A No. 12 of 1995 dated 21.4.1997

2. The petitioner has filed I.A No. 108 of 1997 in R.C.A No. 11 of 1995 and I.A No. 109 of 1997 in R.C.A No. 12 of 1995 for appointment of Commissioner to inspect the petition mentioned premises and note down the physical changes if any in the two properties of which he is a tenant.

3. The Respondent has filed a petition for eviction against the petitioner from two different buildings on the ground of waste and wilful default. The Rent Controller found that there was wilful default and waste. Hence he has ordered eviction in both the Rent Control Petitions. Against the order passed in the Rent Control Petitions the petitioner has filed two appeals in R.C.A 11 of 1995 and R.C.A 12 of 1995 on the file of Sub-Judge, Kulithalai.

4. Pending disposal of the appeal aforesaid the petitioner has filed I.A 108 of 1997 and 109 of 1997 for appointment of Commissioners mentioned above. The Respondent vehemently opposed the applications contending that already a Commissioner was appointed by the Rent Controller and there was no objection to the report of the Rent Controller. The further objection was, that the petition for appointment of Commissioner was filed at the stage when enquiry was taken and there was no bonafide at all.

5. Accepting the objections the Appellate Authority dismissed both the Appeals.

6. The learned counsel for the petitioners commended that no prejudice will be caused to the Respondent if the Commissioner is appointed to inspect the building and report about the alleged changes or waste made by him in the building.

7. It is seen that the Commissioner was appointed by the Rent Controller himself and he has submitted a report. It is also seen that to the report of the Commissioner the petitioner has not submitted any objections. Further, whether waste has been committed or not is a matter that has to be established or proved by evidence to be adduced by the parties. The appointment of Commissioner cannot be utilised for the purpose of gathering or collecting evidence by either parties in any proceeding. Order 26, Rule 9, C.P.C contemplates the appointment of Commissioner only for the purpose of elucidating any matter and not for collecting the matter itself. Only when the Court feels some doubt about any matter before it and it required clarification or elucidation, then only the Commissioner has to be appointed. Here what the petitioner wants is to collect the evidence, viz. to collect the matter itself. That is not the object or scope of Order 26, Rule 9, C.P.C which is made applicable to the Rent Control proceedings also, by virtue of Section 18.A of the Tamil Nadu Buildings (Lease and Rent Control) Act 1959. Therefore in my view the orders of the Appellate Authority do not suffer from any infirmity. Hence these Civil Revision Petitions are dismissed. However, there will be no order as to costs. Consequently the C.M.Ps 1779 and 1780 of 1997 are dismissed.

RR/VCS

C.R.P Nos. 2323 & 2324 of 1997 and C.M.P Nos. 11779 & 11780 of 1997.

Gopal Chettiar (Deceased) And 3 Others v. P.A.A Sahul Hameed And Another

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gopal Chettiar (Deceased) And 3 Others v. P.A.A Sahul Hameed And Another

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