Madras High Court
T.P.Kathiresan (Died) vs R.Ramadass (Died) on 27 February, 2020
Author: R.Subramanian
Bench: R.Subramanian
C.R.P.(MD)Nos2368 /2010 and 2275/11
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.02.2020
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
C.R.P.(NPD)(MD)No.2275 of 2011
and
C.R.P.(PD)(MD)No.2368 of 2010
1.T.P.Kathiresan (died)
2.Bhuvaneshwari
3.Sivakameshwari
4.Saratha Devi
5.Saravanan
6.Lalithambigai
7.Senthilkani
8.Abirami ...Petitioners in both petitions
(petitioners 2 to 8 brought as legal heirs of the deceased 1st petitioner vide Court order
dated 01.08.2017 made in C.M.P.(MD)No.4274 to 4276 of 2017)
vs.
1.R.Ramadass (died)
2.S.Vijayalakshmi
3.R.Sundar
4.R.Arun
5.Sankareswaran
6.Ramachandra Ganesh ..Respondents in both petitions
(Respondents 2 to 4 are brought on record as legal heirs of the
deceased first respondent as per the order dated 16.11.2015
made in M.P.(MD)Nos.1 to 3 of 2015)
PRAYER IN C.R.P.(MD)No.2275 of 2011: The Civil Revision
Petition is filed under Section 115 of the Code of Civil Procedure, to
set aside the order passed by the learned District Munsif, Sivakasi in
E.A.No.27 of 2011 in E.P.No.26 of 2010 in O.S.No.10 of 2007 dated
20.10.2011.
http://www.judis.nic.in1/18
C.R.P.(MD)Nos2368 /2010 and 2275/11
PRAYER IN C.R.P.(MD)No.2368 of 2010: The Civil Revision
Petition is filed under Article 227 of the Constitution of India, to strike
down the plaint in O.S.No.142 of 2010 on the file of the Principal
District Judge, Virudhunagar District at Srivilliputtur, by allowing this
civil revision petition.
For Petitioners : Mr.S.Parthasarathy
For R2 to R4 : Mr.A.Sivaji
For R5 and R6 : No Appearance
COMMON ORDER
The Civil Revision Petition in C.R.P.(MD)No.2275 of 2011, arises out of the proceedings in execution that were levied by the petitioner seeking execution of a compromise award passed by the Lok Adalat in O.S.No.10 of 2007 on 31.03.2010.
2. The suit in O.S.No.10 of 2007 was filed by the plaintiff seeking permanent injunction restraining the defendant from interfering with the plaintiff's possession of the suit property.
3. According to the plaintiff the suit property was let out to him as vacant land on 01.01.2006, with permission to put up superstructure to use it as parking plot for the buses belonging to P.S.R.Engineering College run by the plaintiff. During the pendency of the said suit the matter was referred to Lok Adalat and compromise http://www.judis.nic.in2/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 award came to be passed on 31.03.2010. The compromise award provided that the plaintiff would remove the superstructure put up by him in the suit property and vacate and hand over the possession of the suit property to the defendant therein on or before 30.06.2010.
4. Since the plaintiff did not comply with the said award and failed to hand over the possession, the defendant / decree holder levied execution proceedings in E.P.No.26 of 2010. Counter and additional counter were filed in the execution proceedings contending that the award is inexecutable inasmuch as the plaintiff had already instituted a suit in O.S.No.142 of 2010 seeking cancellation of the Lok Adalat award dated 31.03.2010 on the ground that it has been obtained by fraud and undue influence. It was also further contended that the plaintiff being a tenant of vacant land and having put up the construction would be entitled to protection under the Tamil Nadu City Tenants Protection Act, 1922.
5. The plaintiff / judgment debtor also came up with an application in E.A.No.27 of 2011 purportedly under Section 47 of the Civil Procedure Code praying to declare the decree as inexecutable. The main contention of the petitioner in E.A.No.27 of 2011 was that subsequent to the compromise decree, he has purchased an undivided 2/5th share in the property, subject matter of the compromise decree http://www.judis.nic.in3/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 from two sons of the petitioner herein on 17.03.2011. Therefore he having become co-sharer, the decree for delivery of possession cannot be executed against him.
6. The said petition was resisted by the petitioner herein contending that the purchaser from the co-sharers of an undivided interest cannot retain the possession of the property in the teeth of the valid decree passed before the Lok Adalat directing him to deliver possession. It was also contended that the remedy of such purchaser is only to sue for partition and recovery of possession.
7. It will not be out of place to mention that a suit for partition was laid by the sons of the petitioner in O.S.No.1 of 2008, in which the respondent herein was also made as a party. He was subsequently exonerated by filing a memo on 06.01.2011. A preliminary decree was passed in O.S.No.1 of 2008 declaring the shares of the plaintiffs in the said suit. It is also seen from the proceedings that the respondent herein namely, the purchaser had filed applications in I.A.No.1 of 2012 in O.S.No.1 of 2008 seeking supplementary preliminary decree declaring his right over the property. It is also stated that the said application in I.A.No.1 of 2012 was dismissed for non prosecution.
http://www.judis.nic.in4/18 C.R.P.(MD)Nos2368 /2010 and 2275/11
8. The learned District Munsif, who heard the application under Section 47 concluded that in view of the fact that the judgment debtor has acquired on interest in the property, subsequent to the decree and has become co-owner, the decree passed in O.S.No.10 of 2007 becomes inexecutable. On the said conclusion the Executing Court allowed the Section 47 application declaring the decree is inexcutable. Though the decision of the Hon'ble Supreme Court in Ramdas Vs. Seethabi and others [2009 (5) MLJ 847 (S.C.)] was brought to the notice of the Executing Court, the Executing Court held that the said decision would not apply to the facts of the case. After doing so, the Executing Court relied upon the judgment of the Hon'ble Supreme Court in Savithri Dei and others vs. Saratchandra Rao and others [1996 (3) SCC 301], which dealt with a case, where the decree was rendered inexecutable because of a subsequent enactment being passed in support of its conclusion. It is this order of the Executing Court allowing the application under Section 47 of the Civil Procedure Code and concluding that the decree in O.S.No.10 of 2007 is inexecutable, that is challenged in the above Civil Revision Petition.
9. The Civil Revision Petition in C.R.P.(MD)No.2368 of 2010 is filed under 227 of the Constitution of India seeking rejection of the plaint filed in O.S.No.142 of the 2010. The said suit in O.S.No.142 of 2010 was laid by the respondent in this revision petition seeking http://www.judis.nic.in5/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 declaration that the award of the Lok Adalat dated 31.03.2010 made in O.S.10 of 2007 is invalid and inoperative and for an injunction restraining the defendants therein namely the petitioners in C.R.P. (MD)No.2368 of 2010 from interfering with the possession of the plaintiff in the said suit in execution or otherwise of the decree in O.S.No.10 of 2007.
10. The main ground on which this Civil Revision Petition is filed directly under Article 227 of the Constitution of India is that such suit is barred under the provisions of Section 21 of the Legal Services Authorities Act, 1987. Since both civil revision petitions relate to same subject matter, they are taken up together for disposal.
11. I shall first deal with C.R.P.(MD)No.2368 of 2010 as the same can be disposed of on legal issue. The prayer in the suit in O.S.No.142 of 2010 is for declaration that the award of the Lok Adalat dated 31.03.2010 made in O.S.No.10 of 2007 is invalid and inoperative and for consequential injunction. Section 21 of the Legal Services Authority Act, 1987 reads as follows:-
“21. Award of Lok Adalat – 1[(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at by a Lok Adalat in a case referred to it under sub-section (1) of section http://www.judis.nic.in6/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 20, the court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870 (7 of 1870).] (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.”
12. The question is as to whether such suit is maintainable is no longer res integra. Similar question arose before the Hon'ble Supreme Court in State of Punjap and another Vs. Jalour Singh and others [2008 (2) SCC 660]. Considering the scope of Sections 19, 20 and 21 of the Act, the Hon'ble Supreme Court had held as follows:-
“....
12.It is true that where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and become executable as if it is a decree of a civil Court, and no appeal lies against it to any Court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and / or Article 2278 of the Constitution, that too on very limited grounds. ..........”
13. This dictum of above three Judges Bench of the Hon'ble Supreme Court was followed and reiterated in Bharvagi Constructions and another Vs. Kothalkapu Muthyam Reddy and others [2017 (5) CTC 775] wherein a two Judge Bench of the Supreme Court observed as follows:-
http://www.judis.nic.in7/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 “......
27. In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the Award of Lok Adalat can be done only by filing a writ petition under article 226 and / or Article 227 of the Constitution of India in the High Court and that too on very limited grounds.
28. In the Light of the clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person (Respondents herein / plaintiffs) was to file a Writ Petition under Articlce 226 and / or 227 of the Constitution of India in the High Court for challenging the Award dated 22.08.2007 passed by the Lok Adalat. It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for is quashing.
........” From the above position of law declared by the Hon'ble Supreme Court, it is abundantly clear that the suit challenging an award of a Lok Adalat is not maintainable.
14. The learned counsel for the respondents in C.R.P.(MD)No. 2368 of 2010 would further contend that the remedy of the petitioner is to approach the trial Court under Rule 7 Order 11 of the Civil Procedure Code and he cannot directly invoke the Constitutional remedy under Article 227 of the Constitution of India. In support of the said submission, he would rely upon the judgment of the Hon'ble http://www.judis.nic.in8/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai Vs. Tuticorin Educational Society [(2019) 0 Supreme(SC) 1104]. The said decision of the Hon'ble Supreme Court dealt with a challenge under Article 227 of the Constitution of India to an order passed under Order 39 Rules 1 and 2 of the Civil Procedure Code. While concluding that in view of the availability of the remedy by way of an appeal under Order 43 of the Civil Procedure Code against an order passed under Order 39 Rules 1 and 3 of the Civil Procedure Code, revision under Article 227 would not lie. While doing so, the Hon'ble Supreme Court had observed that availability of remedy by way of an appeal would be a bar for exercising supervisory jurisdiction of the High Court. The High Court should not normally interfere with such orders, which are appealable or for which alternative remedy is available under the Code in exercise of its power under Article 227 of the Constitution of India. Even in the said judgment, the Hon'ble Supreme Court has preserved the power of the High Court to exercise its supervisory jurisdiction under Article 227 of the Constitution in exceptional cases, where there is a clear violation of law or the proceedings would amount to abuse of process of Court.
15. The law relating to availability of alternative remedy as a bar invoke constitutional remedy is too well settled. The availability of the alternative remedy is not an absolute bar to invoke http://www.judis.nic.in9/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 constitutional remedy. It is only as a matter of judicial discipline that the High Courts refrain from invoking constitutional power when effective alternative remedy is available under another law including Civil Procedure Code. At the same time, the respondent cannot be allowed to take advantage of the self imposed restrictions practiced by the High Court while exercising constitutional power of supervisory jurisdiction under article 227 of the Constitution of India in order to defeat just claims and to sustain a wholly obnoxious abuse of process of law.
16. As already pointed, the suit in O.S.No.142 of 2010 is clearly not maintainable in view of the provisions of Section 21 of the Legal Services Authorities Act, 1987 as well as the judgments of the Hon'ble Supreme Court referred to supra. The said suit should not be allowed to be on file even for a moment. When such dereliction is brought to the notice of the High Court, the High Court cannot, in my considered opinion, close its eye and drive the parties to the regular remedy under Order 7 Rule 11 of the Civil Procedure Code. There are cases, where the High Court in exercise of the power under Article 227 of the Constitution of India, had even struck of suits, which amount abuse of process of law or which are clearly barred by law. The power under Article 227 of the Constitution of India is so wide that it can be exercised by the High Court to redress the grievance of the http://www.judis.nic.in10/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 litigant, which is genuine. This power also encompasses in itself the power to prevent any abuse of process of Court. The suit in O.S.No. 142 of 200 in my considered opinion is a clear abuse of process of Court.
17. Having agreed and submitted to the award by the Lok Adalat, the respondent herein within six months of the said award thought it fit to file a suit seeking declaration that the award is not legal and enforceable. Only reason that is assigned in the said suit is that he was not informed about the statutory protection available to him under the Tamil Nadu City Tenants Protection Act, 1922. . That plea is in total ignorance of the provisions of the Tamil Nadu City Tenants Protection Act, 1922.
18. Admittedly, the tenancy in this case had commenced on 01.01.2006. The Tamil Nadu City Tenants Protection Act, 1922. would apply only to the tenancies that were created before publication of the Madras City Tenants Protection (Amendment) Act, 1979 insofar as areas, in which the Act was in force prior to the date of publication of the Madras City Tenant Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette.
http://www.judis.nic.in11/18 C.R.P.(MD)Nos2368 /2010 and 2275/11
19. It is not in dispute that the Act was extended to the Municipal Town of Sivakasi by G.O.Ms.No.2736, Revenue dated 10.07.1956 and published in the Gazette on 1st August, 1956. Therefore, the main Act namely the Tamil Nadu City Tenants Protection Act, 1922 was in force in Sivakasi when the amending Act, 1979 came into force. It is clear from the provisions of Sub Section 3 of Section 1 of the Act, the Act would apply only to tenancies created before the date of publication of the Amendment Act, 1979 in the Tamil Nadu Government Gazzette.
20. The Amendment Act, 1979 was published in the Tamil Nadu Government Gazette on 03 March 1980. The tenancy in question having created on 01.01.2006, it is clear that the tenant would not be entitled to the benefits of the said enactment. Therefore, the very basis on which said suit in O.S.No.142 of 2010 was laid itself does not exist. I am therefore of the considered opinion that the suit in O.S.No. 142 of 2010 is an abuse of process of Court and the said plaint cannot be allowed to be retained on file.
21. I do no think that I will be justified in refusing to exercise power under Article 227 and drive the petitioner to proceed under Order 7 Rule 11 of the Civil Procedure Code seeking rejection of the plaint. As already pointed out, the very power of supervisory http://www.judis.nic.in12/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 jurisdiction under Article 227 of is meant to curb such activities and refusal of exercise of such power in cases like this would only dilute the trust that the people have in Courts and legal system. Hence, C.R.P.(MD)No.2368 of 2010 deserves to be allowed and the same is accordingly, allowed and the suit in O.S.No.142 of 2010 will stand rejected.
22. This leaves us with C.R.P.(MD)No.2275 of 2011. It is the contention of the respondent herein, who is the applicant in E.A.No.27 of 2011 that the decree in O.S.No.10 of 2007 is inexecutable inasmuch as he has purchased an undivided portion of the property subject matter of the said suit under compromise decree from two sharers.
23. Admittedly, the suit for partition in O.S.No.1 of 2008 had been filed and preliminary decree has also been passed. But no final decree has been passed till date. It is also the admitted case of the parties that the respondent in C.R.P.(MD)No.2275 of 2011 became tenant under the petitioner therein and his suit for injunction in O.S.No.10 of 2007 was laid only against the petitioner / first defendant. Before the Lok Adalat, the matter was settled and the tenant agreed to hand over possession to the landlord by 30.06.2010. Upon his failure to do so, the landlord who was favoured with the http://www.judis.nic.in13/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 decree by Lok Adalat upon consent of the parties had filed E.P.No.26 of 2010. It was during the pendency of the said execution proceedings the tenant, who had suffered a decree, purchased an undivided share from two sons of the landlord on 17.03.2011.
24. It has to be seen what will be the effect of the purchase by a third party of an undivided share from the members of the family. The said question is also no longer res integra. The Hon'ble Supreme Court in Sidheshwar Mukherjee vs. Bhubaneshwar Prasad Narain Singh and others [ A.I.R. 1953 S.C. 487 (Vol.40, C.N.120)] had dealt with the right of a purchaser of an undivided interest of a coparcener in the joint family property. While doing so, the Hon'ble Supreme Court had observed as follows:-
“...
11.......All that he purchased at the execution sal was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from th e date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.
In our opinion, this is the right view to take and Mr.Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of purchase......” http://www.judis.nic.in14/18 C.R.P.(MD)Nos2368 /2010 and 2275/11
25. In M.V.S.Manikayala Rao Vs. M.Narshimhaswami and others [AIR 1966 Supreme Court 470 (V 53 C 98)], the Hon'ble Supreme Court while dealing with the same question of right of the third party purchaser of an undivided interest in join family property has observed as follows:-
“.....
5.....Now, it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession “would date from the period when a specific allotment was made in his favour. .....”
26. In a recent decision in Ramdas Vs. Sitabai and others [(2009) 7 SCC 444], the Hon'ble Supreme Court had after referring to the above two decisions held as follows:-
“....
19.In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-
sharer may be a subject-matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.
......” http://www.judis.nic.in15/18 C.R.P.(MD)Nos2368 /2010 and 2275/11
27.From the above decisions, the position of law that emerges is that the purchaser of an undivided interest in coparcenery property cannot demand possession or retain possession against other sharers. His right is to sue for partition and seek allotment. To use the words of the Hon'ble Supreme Court his right to possession would date from the period when a specific allotment was made in his favour. Therefore, unless it is shown that allotment of a specific property was made in favour of the said purchaser of an undivided interest, he would not have the right to get possession of the property.
28. Having submitted to a compromise decree the respondent herein cannot invoke Section 47 of the Civil Procedure Code and seek a declaration that the decree is inexecutable. Though the decision of the Hon'ble Suprme Court in Ramdas Vs. Seethabi and others [2009 (5) MLJ 847 (S.C.)] was brought to the notice of the Executing Court, the Executing Court sought to distinguish it on rather irrelevant and flimsy grounds. The Executing Court sought to rely upon the judgment in Savithri Dei and others vs. Saratchandra Rao and others [1996 (3) SCC 301].
29. In my considered opinion that reliance placed by the Executing Court on the judgment in Savithri Dei and others vs. Saratchandra Rao and others [1996 (3) SCC 301] is wholly http://www.judis.nic.in16/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 misconceived. The other decision that is relied upon by the Executing Court in Imambi Vs. Azeeza Bee [2002 (2) L.W. 808] dealt with the case, where the tenant entered into an agreement of sale with the landlord in respect of entire tenanted premises. The Hon'ble Supreme Court held that upon such agreement the tenant would loose the character of tenant and he would part take the character of an agreement holder in possession. Therefore the Hon'ble Supreme Court held that the decree for eviction cannot be executed against such tenant.
30. It is not the case on hand. Here is a case, where the tenant, who had suffered a decree for possession had purchased an undivided interest in the property from two of the coparceners. The property being undivided, the tenant cannot claim to be in possession of the entirity of the property and contend that the decree against him for eviction becomes inexecutable as a whole. The remedy as pointed by the Hon'ble Supreme Court is for the purchaser to seek partition and get a definite share allotted to him and his right to possession will accrue only from the date, on which he gets the definite share allotted to him. So long as the definite share is not allotted to him, he cannot resist execution of a validly obtained decree. http://www.judis.nic.in17/18 C.R.P.(MD)Nos2368 /2010 and 2275/11 R.SUBRAMANIAN,J ta
31. I am therefore of the considered opinion that the Executing Court was in error in allowing application under Section 47 of the Civil Procedure Code at the instance of the tenant, who had suffered a decree for eviction that too a compromise decree before the Lok Adalat. The order of the Executing Court allowing the Section 47 application, to say the least, is materially irregular and is against all principles of the law laid down by the Hon'ble Suprme Court. In view of the same, I have no hesitation to set aside the order. Accordingly, the order of the Executing Court in E.A.No.27 of 2011 made on 21.10.2011 is set aside. The application in E.A.No.27 of 2011 will stand dismissed. The execution proceedings in E.P.No.26 of 10 will stand restored and there will be a direction to the Executing Court to proceed with the execution petition in accordance with law and dispose of the same within a period of three months from the date of receipt of copy of this order and report such disposal to this Court. In fine, these Civil Revision Petitions are allowed. No costs.
27.02.2020
Index : Yes/No
Internet : Yes/No
To
The District Munsif, Sivakasi
C.R.P.(MD)Nos.2275 of 2011 and 2368 of 2010
http://www.judis.nic.in18/18