Madras High Court
G.V. Vanitha vs K. Dhanasekaran on 11 August, 2016
RESERVED ON : 03.08.2016
DELIVERED ON: 11.08.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2016
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
C.R.P.(NPD)No.3127 of 2013
and M.P.Nos.1 and 2 of 2013
1.G.V. Vanitha
2.G.V. Gopalakrishna Naidu
3.G.V. Lakshmi Narayanan
4.G.V. Sridhara Chakrapani
5.G.V. Vijayalakshmi
6.G.V. Yagna Priya ..... Petitioners
vs
1.K. Dhanasekaran
2.K. Mohan
3.K. Chandrasekar
4.K. Hemakumar ..... Respondents
Civil Revision Petition filed under Section 25 of the Tamil Nadu Building (Lease and Rent Control) Act 1960 against the fair and decreetal order in R.C.A.No.40/2012 on the file of the Rent Control Appellate Authority cum Subordinate Court, Tambaram dated 17.07.2013 in reversing the fair and Decreetal order in E.A.S.R No.9486/2012 in E.P.No.36/2002 on the file of the Rent Controller cum District Munsif Court, Alandur dated 10.07.2012.
For petitioners : Mr.V. Raghavachari
For respondents : Mr.S. Subbiah
ORDER
The Civil Revision Petition arises against the judgment and decree passed in R.C.A.No. 40/2012, on the file of Rent Control Appellate Authority, Subordinate Court, Tambaram, reversing the fair and final order passed in an unnumbered E.A.S.R No.9486/2012 in E.P.No.36/2002 on the file of the Rent Controller cum District Munsif Court, Alandur. The petitioners are the landlords/decree holders and the respondents are third parties, who filed an application under Order 21 Rules 96 to 100 of Civil Procedure Code.
2. The respondents filed an unnumbered application in E.A.S.R No.9486/2012 in E.P.No.36/2002 in R.C.O.P.No.30/1997, stating that they are in occupation of a property bearing T.S.No.43, Old S.No.12 part in Ward H, Block-10, to an extent of 380 sq.meters (approximately 4200 sq.ft.,) bearing Door No.19, Jal Naicker Street, Alandur, Chennai 16. The respondents contended that they are the owners of the said property and that they have been living with their respective families in the property by putting up separate constructions and they have also pleaded that they were not aware of the decree passed in R.C.O.P No.30/1997 and the execution proceedings, pending before the Rent Controller till the Court Amin visited the property for taking delivery of the same.
3. The Revision Petitioners are the legal representatives of late G.M. Veeraraghavalu Naidu, who filed the Rent Control Original Petition in RCOP No.30/1997 against the tenants viz., Mrs.D. Savithri and others on the file of District Munsif cum Judicial Magistrate, Alandur. After contest, the Rent Controller ordered eviction on 05.03.2002. Against the order passed by the Rent Controller, the tenants preferred an appeal in R.C.A No43/2002 on the file of Principal Subordinate Court/Rent Control Appellate Authority, Chenglepet and the Rent Control Appellate Authority, by its Judgment dated 26.04.2007, confirmed the order of eviction and dismissed the appeal. Against which, the tenants preferred a Civil Revision Petition in CRP (PD) No.3510/2007 and this Court, by Order dated 16.09.2011, dismissed the Civil Revision Petition and confirmed the orders of the Court below. Against the order passed in the Civil Revision Petition in CRP (PD)No.3510/2007, the tenants preferred an appeal before the Hon'ble Supreme Court of India in SLP (civil) No.32980/2011 and the Hon'ble Supreme Court, by its Order dated 10.01.2012 dismissed the Special Leave Petition and granted time till 30.6.2012 for vacating the premises subject to the condition that necessary affidavit and undertaking shall be filed by the tenants within four weeks.
4. Pursuant to the order passed by the Apex Court, the second petitioner therein filed an affidavit of undertaking on 30.01.2012, wherein, he has stated that he is in possession of 700 sq.ft of building and that he would vacate the premises without any let or hindrance on 30.06.2012, as directed by the Hon'ble Supreme Court of India and he also undertook to pay the rents, as damages for use and occupation till 30.6.2012 regularly and he would not induct any third party into the demised premises. Further he has stated that the extent mentioned as 4 grounds and 600 square feet is not correct.
5. The Executing Court, by Order dated 06.03.2012, directed the tenants to vacate and hand over the vacant possession of the petition premises viz., land and building in No.19, Jal Naicken Street, Alandur, Chennai-16, measuring 4 grounds 600 sq.ft on or before 30.06.2012. Thereafter, the third party petitioners have filed an application under Order 21 Rule 96 to 100 of Civil Procedure Code, claiming to be in possession of the property.
6. The Rent Controller rejected the petition finding that the resistance or obstructions being made by the third party petitioners at the fag end of the execution proceedings is without any just cause and the said obstruction is being made only at the instigation of the judgment debtors. The Rent Controller had considered all the aspects and rejected the application. The Rent Controller also took into consideration the orders passed by the Hon'ble Supreme Court of India and also the observations made by the Apex court that the judgment debtors have taken an intentional and mischievous plea in order to go for yet another round of litigation, by filing an affidavit of undertaking, wherein, for the first time, they took a plea that they are in possession of only 700 sq.ft in the petition premises.
7. Since the application, filed under Order 21 Rule 96 to 100 of Civil Procedure Code was rejected, without numbering the application and without giving an opportunity to the applicants to put forth their case, a Civil Revision Petition in CRP (NPD) No.2624/2012 was filed before this Court and this Court, by Order dated 23.07.2012, while dismissing the Civil Revision Petition, gave liberty to the petitioners to file an appeal under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
8. Accordingly, the third parties filed an appeal in R.C.A.No.40/2012 on the file of Subordinate Court/Rent Control Appellate Authority, Tambaram and the appellate authority, while allowing the appeal, observed that the Rent Controller could have given an opportunity to the third party petitioners and even to the decree holders and could have passed the similar order and in such a case the appellate court could not have ventured to make any interference. The appellate authority set aside the order passed by the Rent Controller stating that the application was rejected without giving an opportunity even to the third party petitioners would certainly affect their interest. In these circumstances, the appellate authority remitted the matter back to the Rent Controller for fresh consideration and also directed the Rent Controller to permit the parties to let in oral and documentary evidences and adjudicate the same by considering all the additional documents as early as possible.
9. Mr.V. Raghavachari, learned counsel appearing for the petitioners, submitted that the Rent Control Appellate Authority has no jurisdiction to remand the matter to the Rent Controller and the appellate authority has to decide the matter on its own. Further, the learned counsel submitted that the tenants have set up third parties to file an application under Order 21 Rule 96 to 100 CPC and successfully dragging on the matter inspite of filing an affidavit of undertaking before the Apex Court. In support of his contention, the learned counsel for the petitioners relied upon the following judgments:
(i)2011 (6) SCC 385 (Atma Ram Builders Private Limited vs A.K. Tuli and Others), wherein the Hon'ble Supreme Court held as follows:
9. It seems to us that in this country certain members of the Subordinate Courts do not even care for orders of this Court. When this Court passed an order dated 06th October, 2010 granting six months' time to vacate, the contemnor Archana Sinha, Additional District Judge had no business to pass the order dated 23rd April, 2011 but instead she has stayed the warrants of possession, meaning thereby that she has practically superseded our order and overruled us.
10. We are constrained to say that a certain section of the subordinate judiciary in this country is bringing the whole judiciary of India into disrepute by passing orders on extraneous considerations. We do not wish to comment on the various allegations which are often made to us about what certain members of the subordinate judiciary are doing, but we do want to say that these kind of malpractices have to be totally weeded out. Such subordinate judiciary Judges are bringing a bad name to the whole institution and must be thrown out of the judiciary.
(ii) In an unreported judgment of this Court dated 17.6.2016 made in CRP (NPD)No.1747 of 2016, wherein, this Court held as follows:
8. Though the Executing Court was directed to dispose of the Section 47 application within a period of four weeks, till today, the said order has not been complied with. The revision petitioner also has not complied with the directions given to her to pay a sum of Rs.25,000/- to the 1st respondent/Decree Holder as costs within a period of two weeks. Even without complying with the directions given by this Court, the revision petitioner has again approached this Court challenging the order passed in E.A.No.5 of 2016. The conduct of the revision petitioner would clearly establish that she is bent upon preventing the 1st respondent/Decree Holder from executing the decree granted in the Ejectment Suit in Ejec.Suit No.32 of 1986 dated 22.09.2003. The revision petitioner has successfully dragged on the matter for over a period of 30 years and inspite of the directions given by this Court on 05.01.2016, the matter has been dragged on for another six months.
(iii) 2003 (3) MLJ 445 (S. Parameshwaran Pillai vs The Deputy General Manager, Tele Communications, Trichy and Others), wherein this Court held as follows:
3. Sec.23(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 gives the Appellate Authority the power to decide the entire matter afresh and therefore, the Appellate Authority could have either called for the findings from the Rent Controller or on the basis of the documents available before him, assessed the fair rent in accordance with law. In the decision referred to above, the learned Judge has referred to other decisions of this Court where it has been held that the Rent Control Appellate Authority has no such power of remand. In this view of the matter, the order of the Rent Controller is set aside and the Rent Control Appellate Authority shall decide the matter afresh and in accordance with law and fix the fair rent as required under the Act. Time for disposal of the appeal is three months from the date of receipt of this order. The revision is disposed of accordingly. No costs. Consequently, connected CMP is closed.
(iv) 2002 (3) MLJ 500 (N. Bacherlal vs S. Subhash Chandra Bose), wherein this Court held as follows:
2. I am of the view that when the petitioner has produced certain documents, the appellate authority should have either considered the documents or called for findings from the rent controller on the documents and hence for that purpose the power of remand cannot be exercised.
(v) 1973 (2) MLJ 55 (C. Kuttappa Nair and another vs S.S.A.Shahul Hameed and Others), wherein this Court held as follows:
10. In view of the clear wording in the section (section 23(3) and the ruling in the Bench decision, which is binding on me, I hold that the appellate authority has no power to remand a matter and the only power given to him by the statute is to 'make a further enquiry either personally or through the Controller, if need be, and is bound to decide the various issues in the appeal himself.
10. Countering the submissions made by the learned counsel for the petitioner, Mr.S. Subbiah, learned counsel appearing for the respondents, submitted that the since the Rent Controller has not given an opportunity to the parties to put forth their case, the appellate court has rightly remanded the matter to the Rent Controller for fresh consideration. Further, the learned counsel submitted that the Rent Controller should have numbered the application before disposing any order in the application. The learned counsel submitted that the order passed by the Rent Control appellate authority is proper and the civil revision petition is liable to be dismissed. In support of his contention, the learned counsel relied on the following judgments:
(i) 2002 (1) SCC 662 (N.S.S. Narayana Sarma and Others) vs Goldstone Exports (P) Ltd and Others, wherein the Hon'ble Supreme Court held as follows:
From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructing the attempt by the decree-holder to dispossess him from the said property the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing Court it is clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for partition simplicitor. In such a suit the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned single Judge and the Division Bench dismissed the petition filed by the appellants as non- maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Paigah Committee or the State Government, who are parties in the suit, they are bound by the decree. The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State Government under the provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the single Judge as well as Division Bench of the High Court, we are constrained to observe that the said orders are based on a complete mis-reading of the case of the appellants and mis-conception of the legal position relevant to the matter. Considering the facts and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a single Judge at the first instance.
(ii) 1998 (4) SCC 543 (Shreenath and anther vs Rajesh and Others), wherein the Hon'ble Supreme Court held as follows:
17. In Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and Another (1997) (3) SCC 694), the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decree holder can or cannot request the Executing Court to adjudicate his claim without being insisted upon that first he must handover the possession and then move an application under Order 21, Rule 97. It is held in para 9 :-
"Para 9 : In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97.. ..............."
18. In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid full Bench of the M.P. High Court in the case of Usha Jain Vs.Manmohan Bajaj (supra) cannot be held to be a good law. As we have recorded above, both the Executing Court and the High court have rejected the application of the applicant under Order 21, Rule 97 only on the basis of the said Full Bench decision, hence the said order cannot be sustained. Accordingly, both the orders dated 20th February, 1985 passed by the High Court in civil Revision No. 406 of 1983 and the order dated 20th April, 1983 passed by Executing Court in execution case No. 1-A/70/81 is herewith quashed.
19. We direct the Executing Court to consider and dispose of the objections and the application of the appellants under Order 21, Rule 97 after giving opportunity to the parties in accordance with law. The appeal is accordingly allowed. On the facts and circumstances of the case, cost on the parties.
(iii) 1997(3) SCC 694 (Brahmdeo Chaudhary vs Rishikesh Prasad Jaiswal and another), wherein the Hon'ble Supreme Court held as follows:
9.... The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decreetal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard or merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice.
(iv) 2014(1) MLJ 222 (Duraisamy Naidu (died) and Others vs Sivaprakasa Mudalir and Others, wherein, this Court held as follows:
5. Admittedly, an application is filed under Order 21 Rule 97 C.P.C., before the Executing Court by the respondents. According to the petitioners, the said application is not maintainable on the reason contend that the respondents are only the vendors of the defendants and therefore, they cannot be permitted to file an application under Order 21 Rule 97 CPC. Certainly, it is open to the petitioners to raise all their objections before the Court below including the issue with regard to the maintainability of the application under Order 21 Rule 97 CPC by filing their counter to the said application. As it is an application filed under Order 21 Rule 97 CPC, the Executing Court has to consider the same as similar to a suit and consider all the issues arising between the parties. Needless to say that such issues may include with regard to the maintainability of the application also. Therefore, it is open to the petitioners to raise all issues before the Executing Court and it is for the Court below to consider the same and pass orders in accordance with law based on the respective pleadings of the parties.
(v) 1991 (2) L.W 272 (R. Mani vs Shanmugham and 2 others), wherein this Court held as follows:
2. The short facts are these: The petitioner herein, who. is the landlord obtained an ex pane order of eviction in R.C.O.P. No. 88 of 1982. According to him, he has taken possession of the property pursuant to the ex parte order of eviction. The respondents herein filed I.A. No. 287 of 1986 for setting aside the ex parte order of eviction. The Rent Controller, without discussing the merits of the application, passed an order that the petition is closed since the tenants have vacated the petition premises. There is no provision either under the Tamil Nadu Buildings (Lease and Rent Control) Act or under any other law enabling the Court or an authority to close a petition. The court or authority must either dismiss the petition or allow the petition. At any rate, it must pass an order which will dispose of the contentions of the parties. Even assuming that the word 'closed' is used as a substitute for the word 'dismissed', the order is unsustainable as the relevant merits of the contention have not been considered by the Rent Controller.
11. After careful consideration of the materials available on records and submissions made by the learned counsel on either side and also the judgments relied on by the learned counsel on either side, it could be seen that in the case on hand, the Rent Control appellate authority had remanded the matter to the Rent Controller for numbering the application and also for giving opportunities to both sides to put forth their respective cases. In the judgments, relied upon by the learned counsel for the petitioners, the Rent Control Original Petitions were disposed of on merits by the Rent Controller and on appeal, preferred by either of the party, this Court held that the Rent Control Appellate authority cannot remand the matter back to the Rent Controller and the Rent Control Appellate Authority should decide the matter on his own.
12. In the case on hand, the Rent Controller had not dismissed the petition. He had rejected the petition without numbering the same. It is a settled position that an application can be disposed of on merits only after numbering, unless the same is not maintainable. It is not the case of the petitioners that the application is not maintainable. When the application is maintainable, the Rent Controller should have numbered the application and disposed of the same after giving opportunities to both sides. Since the application was dismissed by the Rent Controller, the ratio laid down by this Court reported in 1991 (2) L.W 272 (R. Mani vs Shanmugham and 2 others), squarely applies to the facts and circumstances of the case. Hence the order of remand made by the Rent Control Appellate Authority is just and proper.
13. On a perusal of the order passed by the Rent Controller, I am of the considered view that the findings given by the Rent Controller cannot be disputed. The Rent Controller had considered all the aspects and rejected the application. The only infirmity in the order is that the parties were not given an opportunity to put forth their case. Inspite of filing an affidavit of undertaking before the Apex Court stating that the second petitioner will not induct any third party in the property, the third party petitioners have filed the application under Order 21 Rule 96 to 100 of Civil Procedure Code, claiming right over the property. The Rent Controller should have numbered the application and given an opportunity to put forth their case. The Rent Control Appellate Authority had also rightly observed that the Rent Controller could have passed similar order after giving opportunity to both sides.
14. The order of the Rent Controller is liable to be set aside only on the ground that the application was not numbered and opportunity was not given to the parties to put forth their case. In these circumstances, the order passed by the Rent Control Appellate Authority remanding the matter for numbering the application and giving opportunity to both the parties is just and proper. I do not find any reason to interfere with the order passed by the Rent Control Appellate Authority. The Civil Revision Petition is liable to be dismissed and the same is dismissed. Since the matter is pending for more than twenty five years, I direct the Rent Controller/District Munsif, Alandur to number the application in EASR No.9486/2012 in E.P.No.36/2002 in R.C.O.P.No.30/1997 and pass orders after giving opportunities to both sides within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected MPs are closed.
11 -08-2016 sr Index:no website:yes To
1. The Subordinate Court, Tambaram
2. The District Munsif Court, Alandur M. DURAISWAMY,J., sr Pre-Delivery Order in CRP(NPD)No.3127 of 2013 11-08-2016 Pre-Delivery Order in C.R.P.(NPD)No.3127 of 2013 and M.P.Nos.1 and 2 of 2013 The Hon'ble Mr.Justice M. DURAISWAMY Most respectfully submitted.
S. Revathi, PS to Hon'ble Judges