Bhat, J.@mdashRevision petitioner is the second respondent in RCP 5 of 1986 on the file of the Rent Control Court, Ernakulam, filed by the landlords for eviction of the tenant as well as the alleged sub-tenant (revision petitioner) under the provisions of Section 11 of Kerala Act, 2 of 1965. Along with the eviction petition, the landlords applied for issue of a commission and a Commissioner was appointed ex parte. The Commissioner submitted a report. It is pointed out that the revision petitioner was present when the Commissioner inspected the premises. The report was filed in 1986. Four years later, the revision petitioner filed I. A. 1313 of 1990 to . set aside the report dated 22-2-1986 and to appoint a fresh Commissioner to undertake the work with the assistance of an expert engineer. The petition was opposed by the landlords and dismissed by the Rent Controller on the ground that there was no reason to set aside the report and that the petition was highly belated and devoid of bona fides.
Revision petitioner filed an appeal before the appellate authority challenging the above order. The appellate authority dismissed the appeal on the ground that the appeal was not maintainable. The appellate authority, however, observed that "it is open to the appellant or the parties aggrieved by such interlocutory orders to canvass the error, defect or irregularity, if any, in the order in an appeal from the final order passed in the proceeding for eviction". This order is now challenged in this revision.
2. Learned Counsel for the revision petitioner would contend that u/s 18 of the Act an appeal lies against any order which may be passed by the Rent Controller and, therefore, the appeal is maintainable and the appellate authority was in error in dismissing the appeal. Learned Counsel for the revision petitioner sought to distinguish the decision in
3. In the above decision, the Supreme Court had occasion to consider the provisions of Section 38(1) of the Delhi Rent Control Act, 1958 which reads as follows;
"An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal consisting of one person only to be appointed by the Central Government by notification in the Official Gazette."
In that case an application for issue of commission was filed initially and dismissed. Thereafter a second application was filed and that also was dismissed. The order dismissing the second application was challenged before the appellate authority which held that the appeal was not maintainable u/s 38(1) of the Act. It was argued before the Supreme Court that in terms of Sec. 38( 1) an appeal lay against any order passed by the Rent Controller. The Supreme Court repelled this contention in the following manner:
"The object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1), the words ''every order of the Controller made under this Act'', though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Sections 36 and 37, such as orders regarding the sum moning of witnesses, discovery, production and inspection of documents, issue of a comission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the pro cedure only and do not affect any right or liability of the parties. The Legislature could not have intended that the parties would be harrassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect of irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed u/s 37(2) is an order passed under the Act and is subject to appeal u/s 38(1) provided it affects some right or liability of any party."
The Supreme Court held that the impugned order refusing the issue of a commission for inspection and preparation of plan of the premises in dispute was merely a procedural order not affecting any right or liability of the defendant and, therefore, an appeal did not lie.
4. The Kerala Act 2 of 1965 provides for appeal being filed against any order of the Rent Controller in Sec. 18. The relevant portion of Section 18 reads thus :
"Any person aggrieved by an order passed by the Rent Control Court, may, within thirty days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction.........."
In the light of the decision of the Supreme Court the above provision has to be construed in the same manner in which Section 38(1) of the Delhi Rent Control Act has been construed. It must necessarily follow that Section 18 enables an appeal to be filed before the appellate authority against any order passed by the Rent Controller provided the order is not an interlocutory order which is merely procedural in nature and does not affect some right or liability of any party. We find that a learned single Judge of this Court has taken the same view in Ulahannan Kurian v. Ipe Thomas 1985 KLT 529. In that case the impugned order was the order of the Rent Controller declining to make a reference to the Land Tribunal and learned Judge held that it was not a mere procedural order and it was one affecting the right of the aggrieved party as a tenant and, therefore, an appeal lay.
5. The order impugned in the present case is an order passed on an application filed by the revision petitioner to set aside the report of the Commissioner and to appoint a fresh Commissioner to submit a report with the assistance of an expert engineer. The substantial prayer is to appoint a fresh Commissioner though the Commissioner could be appointed only after setting aside the earlier commission report. We do not find any reason why the principle laid down by the Supreme Court should not be made applicable to an application of this nature. We, therefore, hold that the relief claimed in the petition which led to the impugned order is a procedural one and does not affect the rights of any party. Hence we agree with the view taken by learned appellate authority that the appeal does not lie. Accordingly we dismiss the revision petition.
