Madras High Court
M/S.Tech Zone Enterprises vs V.Eswaramurthy on 18 February, 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2015 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU Second Appeal No.59 of 2015 & M.P.No.1 of 2015 and Second Appeal No.60 of 2015 M/s.TEch Zone Enterprises, Rep. By its Managing Partner - A.Parameshwaran S/o.S.S.Ammasai, Chinnaparichipalayam,Varadhanallur Post, Bhavani Taluk, Erode District. ... Appellant in both Second Appeals -Versus- 1.V.Eswaramurthy 2.Muniappan ... Respondents in both Second Appeals Prayer in S.A.No.59 of 2015:- This second appeal is filed against the judgement and decree dated 07.11.2014 passed in A.S.No.4 of 2014 by the learned I Additional Subordinate Judge, Erode, confirming the fair and decretal order dated 27.11.2013 passed in E.A.No.125 of 2012 in E.P.No.43 of 2011 by the learned Principal District Munsif, Erode. Prayer in S.A.No.60 of 2015:- This second appeal is filed against the judgement and decree dated 07.11.2014 passed in the cross objection in A.S.No.4 of 2014 by the learned I Additional Subordinate Judge, Erode, reversing the fair and decretal order dated 27.11.2013 passed in E.A.No.125 of 2012 in E.P.No.43 of 2011 by the learned Principal District Munsif, Erode. For Appellant : Mr.N.Manokaran for appellant in both the Second Appeals For Respondents : Mr.V.S.Kesavan for 1st respondent in both the Second Appeals COMMON JUDGMENT
The dispute in these second appeals is in respect of a building governed by The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The 1st respondent is, admittedly, the owner of the building in question. According to the 1st respondent, the said building was given on rental basis to the 2nd respondent in his individual capacity in the year 2006 on a monthly rent of Rs.30,000/-. It was rented out actually by the father of the 1st respondent. On certain grounds available to the 1st respondent herein, subsequently, he field RCOP No.6 of 2010 before the Rent Controller-cum-District Munsif, Erode, under Sections 10 (2)(i) and 10(3)(a)(iii) of The Tamil Nadu Buildings (Lease and Rent Control) Act seeking to evict the 2nd respondent. The learned Rent Controller passed an order of eviction on 30.03.2011 thereby directing the 2nd respondent herein to vacate and handover vacant possession to the 1st respondent herein. That order has become final. But, the 2nd respondent did not comply with the said order. Therefore, the 1st respondent has initiated execution proceedings in E.P.No.43 of 2011 for delivery of vacant possession.
2. During the pendency of the said Execution Proceedings, the appellant herein, which is a partnership firm known as M/s.Tech Zone Enterprises represented by its Managing Partner Mr.A.Parameshwaran, filed an obstruction petition in E.A.No.125 of 2012. In that petition, the appellant herein contended that the building was given on rent only to the partnership firm viz., M/s.Tech Zone Enterprises and not to the 2nd respondent in his individual capacity. The 2nd respondent himself is a partner in the said firm. The partnership firm came into being in the year 2002 by means of an unregistered deed of partnership. Thereafter, in its place, a registered deed of partnership was executed on 14.09.2012. Thus, according to the appellant, the partnership alone is the tenant and by suppressing the same, the respondents 1 and 2 had colluded to obtain an order of eviction in RCOP No.6 of 2010 as though the 2nd respondent is the tenant. The said obstruction petition was filed on 18.09.2012. Before the Rent Controller, the 1st respondent filed a counter contending that there was no privity of contract between the 1st respondent and the appellant firm at all. The appellant firm was never the tenant and, therefore, the obstruction petition is liable to be dismissed, he contended.
3. The learned Rent Controller, exercising his powers as a civil court in terms of Section 18(1) of the Act, went into the said question in detail. Before the Rent Controller, on the side of the appellant herein, 2 witnesses were examined and as many as 12 documents were marked. On the side of the respondents, 1 witness was examined and no document was marked. Ex.X.1 to X.5 were marked as witness documents.
4. Having considered the above materials, the learned Rent Controller passed an order on 27.11.2013 thereby dismissing the obstruction petition. In the said order, though the learned Rent Controller had given a finding that the appellant firm was the tenant, the Rent Controller, dismissed the obstruction petition on certain other grounds. Challenging the same, the appellant firm filed an appeal in A.S.No.4 of 2014 before the learned I Additional Subordinate Judge, Erode. As against the finding that there was privity of contract between 1st respondent and the appellant firm, the 1st respondent filed a cross objection in A.S.No.4 of 2014. Having considered the above, the first appellate court, by judgement and decree dated 07.11.2014, dismissed the appeal in A.S.No.4 of 2014 and allowed the cross objection thereby holding that there was no privity of contract between the appellant firm and the 1st respondent.
5. As against the dismissal of A.S.No.4 of 2014, the appellant firm has come up with S.A.No.59 of 2014 and as against the order allowing the cross objection, the appellant firm has come up with S.A.No.60 of 2015. That is how, both the second appeals are now before me.
6. Both the second appeals have come up today for admission. I have heard the learned counsel for the appellant and the learned counsel for the 1st respondent in both the second appeals. The 2nd respondent in both the appeals remained ex parte throughout. I have also perused the records carefully.
7. The learned counsel for the appellant would bring to my notice that the Rent Controller had given a finding that there was privity of contract between the appellant firm and the 1st respondent, whereas the first appellate court without properly appreciating the records available has come to the wrong conclusion that there was no privity of contract between the appellant firm and the 1st respondent. In order to substantiate the said contention, the learned counsel for the appellant would rely on the oral evidence of P.W.1 and Exs.P.1 to P.12, more particularly, Ex.P.1. Admittedly, Ex.P.1, the deed of partnership dated 21.09.2002, is an unregistered document. But, according to him, though an unregistered partnership firm is not a legal entity, the fact remains that the said partnership was in existence from 21.09.2002 and the same has been proved by Ex.P.1. The learned counsel would further submit that Exs.P.2 to P.10 would go to show that the appellant firm has been in possession and enjoyment of the property as a tenant from the year 2002. These are certificates issued by the Commercial Tax Department wherein the address of the appellant firm has been given as that of the property in question. Similarly in the income tax returns also the suit property has been shown as the address of the appellant firm. Referring to these documents and also relying on the oral evidence of P.W.1 and P.W.2 [an official from Commercial Tax Department], the learned counsel would submit that it has been clearly established that from the year 2002 onwards, the appellant firm has been in possession of the property and from out of this, it could be inferred that there was privity of contract between the appellant firm and the 1st respondent.
8. Per contra, the learned counsel appearing for the 1st respondent would contend that these documents are all only self serving documents which would not bind the 1st respondent at all. He would further contend that so far as the registered partnership deed is concerned, it is dated 13.09.2012 [Ex.X.5]. Within a few days after the registration of the said partnership firm, the present obstruction petition came to be filed, which according to the learned counsel would go to show that only for the purpose of defeating the execution proceedings this document has been got up. At any rate, according to the learned counsel, since there is no substantial question of law, both the appeals deserve to be dismissed.
9. I have considered the above submissions carefully.
10. There is no controversy before this court that the building in question is owned by the 1st respondent herein. There is also no dispute that in RCOP No.6 of 2010 filed against the 2nd respondent, an order of eviction has been passed in favour of the 1st respondent. An obstruction petition filed under Order XXI of CPC can be dealt with by the Rent Controller exercising all the powers of a civil court as provided in Section 18 (1) of The Tamil Nadu Buildings [Lease and Rent Control] Act. As per Order XXI, Rule 103 of CPC, any order made in such application filed under Order XXI, Rule 97 of CPC, shall be a decree and, therefore, as against the same, an appeal lies.
11. Though this court had initially doubt about the maintainability of such appeal under Order XLI of CPC before the regular civil appellate court, the learned counsel has placed reliance on a judgement of a Division Bench of this Court in Fathima Automobiles v. P.K.P.Nair and another, AIR 1985 Madras 318 wherein , the Division Bench has taken the view that an order made by the Rent Controller in an obstruction petition filed under Order XXI, is appealable to the civil appellate court under Order 41 of CPC.
12. Very recently, the Hon'ble Supreme Court in V.Uthirapathi v. Ashrab Ali and others, (1998) 3 SCC 148, when more or less a similar question came up for consideration, the Hon'ble Supreme Court has held that under Section 18(1) of The Tamil Nadu Buildings [Lease and Rent Control] Act, a fiction that it is a civil court is created and the said fiction should be given full effect. If the eviction orders passed under Sections 10, 14,15, 16 and 17 of the Act are deemed to be the orders of the civil court and for that matter, if the Rent Controller is deemed to be a civil court, then an execution petition filed before the Rent Controller, by force of fiction, becomes an execution petition under the Code of Civil Procedure and not under the Act. The Hon'ble Supreme Court has further held that if S.18 of the Act were not there, the orders of eviction under Sections 10, 14, 15, 16 and 17 could not be treated as orders of a civil court and they were to be treated only as orders passed by the Rent Controller under the Act. But, because of the fiction, they are to be treated as orders of a civil court. In view of the said judgement of the Hon'ble Supreme Court and that of the Division Bench of this Court, I can have no more doubt that an order made under Order XXI, Rule 97 of CPC is deemed to be a civil court decree as explained in Order XXI, Rule 103 of CPC. Therefore, as against such order an appeal lies to the regular civil court. Thus, I hold that the appeal filed by the appellant herein before the first appellant court and the present second appeals are maintainable.
13. Now, turning to the other arguments advanced by the learned counsel on either side, I am in full agreement with the learned counsel for the 1st respondent that there is no question of law much less a substantial question of law warranting admission of the second appeals at all.
14. The crux of the issue is as to whether there was any privity of contract between the appellant and the 1st respondent thereby establishing the jural relationship of tenant and landlord. This is, in my considered opinion, essentially, a question of fact and not a question of law. The first appellate court has considered the oral evidence of P.W.1 and P.W.2 and the documents filed by the appellant and has come to the conclusion that there was no such landlord and tenant relationship between the 1st respondent and the appellant firm at all. P.W.2, an Official from the Commercial Tax Department has only stated that the address of the firm has been given as that of the property in question in all the records submitted by the appellant firm to the Commercial Tax Department. In the Income Tax Returns also, the address of the firm has been given only as that of the property in question. In my considered opinion, these are all only self serving documents and that will not bind the 1st respondent as he was not a party to those documents. Secondly, it is not even in evidence that the 1st respondent had knowledge that such claim is made by the appellant firm in respect of its address in the records submitted to the Commercial Tax Department and the Income Tax Departments. Simply because the appellant has chosen to give the address of the building in question in the letters or records submitted to the Commercial Tax Department and the Income Tax Department, it cannot be safely concluded that the appellant firm has been in possession of the property in question as atenant. Assuming that the appellant firm has been running its office in the property that will not automatically go to establish that there was privity of contract between the appellant and the 1st respondent. The first appellate court has found that absolutely there is no evidence to prove the said fact. Thus, I do not find any perversity in the said findings of the first appellate court. The first appellate court has given sound reasons for such findings.
15. But, the learned counsel for the appellant would point out that the first appellate court has also held that the appellant is not a legal entity to make obstruction petition. In my considered opinion, it is immaterial whether the appellant is a legal entity in the year 2002 or it became a legal entity only in the year 2012. If once it is concluded that there is no landlord and tenant relationship between the 1st respondent and the appellant firm, all the other questions become immaterial. Apart from that, regarding payment of rent, absolutely, there is no material to show that the appellant firm has paid any rent to the 1st respondent so as to at least infer such relationship. For the foregoing discussions, I find that there is no substantial question of law involved in both the second appeals warranting admission. The first appellate court was right in allowing the cross objection in A.S.No.4 of 2014 and dismissing A.S.No.4 of 2014. Thus, both the second appeals fail.
16. In the result, both second appeals are dismissed confirming the judgement and decree dated 07.11.2014 passed in A.S.No.4 of 2014 and in the cross objection in A.S.No.4 of 2014 by the learned I Additional Subordinate Judge, Erode. No costs. Consequently, connected MP is closed.
Index : Yes / No 18.02.2015 Internet : Yes / No kmk To 1.The I Additional Subordinate Judge, Erode, Erode District. 2.The Principal District Munsif, Erode, Erode District. S.NAGAMUTHU.J., kmk Second Appeal Nos.59 and 60 of 2015 18.02.2015