Madras High Court
A.R.Sankaran vs T.Mohammed Arif Akthar on 16 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.NPD.No.1073 of 2012 and M.P.No.1 of 2012 A.R.Sankaran .. Petitioner vs. 1. T.Mohammed Arif Akthar 2.M.Renganathan 3.M/s.Padma Verticals Solution, rep.by its Managing Director R.Padma Ganesh ... Respondents Civil revision petition preferred against the judgement and decree dated 21.12.2011 passed by the VIII Judge, Small Causes Court, Chennai, in R.C.A.No.150 of 2011 confirming the fair and decreetal order dated 18.2.2011 passed by the XI Judge, Small Causes Court, Chenai, in E.A.No.45 of 2009 in E.P.No.278 of 2009 in R.C.O.P.No.1636 of 2007. For Petitioner : Mr.M.Kumarasamai For Respondents : M/s.S.N.Narasimhalu for R1 M/.R.Bala Ramesh for R2 ORDER
Inveighing the the judgement and decree dated 21.12.2011 passed by the VIII Judge, Small Causes Court, Chennai, in R.C.A.No.150 of 2011 confirming the fair and decreetal order dated 18.2.2011 passed by the XI Judge, Small Causes Court, Chenai, in E.A.No.45 of 2009 in E.P.No.278 of 2009 in R.C.O.P.No.1636 of 2007, this civil revision petition is filed.
2. A thumbnail sketch of the germane facts absolutely necessary for the disposal of this revision would run:
(i) The first respondent herein filed the RCOP No.1636 of 2007 seeking eviction on the ground of sub-letting as against two persons, namely R2 and R3 herein. Whereupon the matter was contested by R3 herein, namely, M/s.Padma Verticals Solution and not by Renganathan. Whereupon the Rent Controller ordered eviction as against both Renganathan and M/s.Padma Verticals Solution.
(ii) The said M/s.Padma Verticals Solution preferred the appeal RCA No.150 of 2011 for nothing but to be dismissed by the appellate Court confirming the order of the lower Court. As against which, CRP was filed by M/s.Padma Verticals Solution and that also was ultimately dismissed.
(iii) The decree holder/R1 herein, namely, T.Mohammed Arif Akthar filed the E.P.278 of 2009 for eviction.
(iv) Since there was obstruction caused by the revision petitioner herein/Sakaran, E.A.45 of 2009 in E.P.278 of 2009 was filed alleging that the said Sankaran happened to be the sub-tenant under M/s.Padma Verticals Solution. However, the said Sankaran/the revision petitioner herein/obstructor would plead that he was lulled into the belief as though Renganathan was the owner and under him, he entered into the premises and subsequently, he found that Renganathan defrauded him etc.,
(v) After hearing both sides, the Executing Court ordered for removal. As against the said order, RCA was filed for nothing but to be dismissed.
3. Being aggrieved by and dissatisfied with the orders of both the Courts below, Sankaran/the obstructor preferred this revision on various grounds.
4. The point for consideration is as to whether the revision petitioner herein, Sankaran, as an obstructor, is entitled to be treated as a person having independent right de hors the judgement debtors' right in respect of the demised premises, so as to constitute himself as an obstructor within the meaning of Order 21 Rules 97 and 98 of C.P.C.?
5. Placing reliance on the grounds of revision, the learned counsel for the petitioner would pyramid his arguements, which could pithily and precisely be set out thus:
The decree holder-T.Mohamed Arif Akthar filed the E.A.No.45 of 2009 contending that the revision petitioner herein/Sankaran became a sub-tenant under R3 herein, namely, M/s.Padma Verticals Solution and he failed to prove the same and in such a case, he cannot pick holes in the counter filed by him in the E.A.45 of 2009 and attempt to achieve success in the litigative battle.
6. Whereas, the learned counsel for R1/M/s.Padma Verticals Solution/landlord would submit that the said Sankaran is trying to confuse the issue and in fact, he happened to be the tenant under the original landlord/Renganathan/R2 herein.
7. At this juncture, I would like to fumigate my mind with Order 21 Rules 97 and 98 of C.P.C.
Order XXI EXECUTION OF DECREES AND ORDERS . . . .
"O.21 R.97 of C.P.C. Resistance or obstruction to possession of immovable property (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Orders after adjudication (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2) -
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgement-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgement-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."
8. I recollect and call up the following decisions of the Honourable Apex Court:
(i) (1997)3 SUPREME COSURT CASES 694 BRAHMDEO CHAUDHARY V. RISHIKESH PRASAD JAISWAL AND ANOTHER.
(ii) (1998) 6 SUPREME COURT CASES 200 GHASI RAM AND OTHERS V. CHAITRAM SAINI AND OTHERS.
9. A plain reading of those decisions would leave no doubt in the mind of this Court that a person, who is claiming right under the judgement debtor, cannot be dignified with the title of an obstructor within the meaning of Order 21 Rule 97 of C.P.C. If at all the obstructor is having independent right de hors the rights of the judgement debtors, then only the Court is enjoined to have a roving enquiry as it is done in a suit. But on the other hand, if the pleadings would disclose that the so called obstructor is only claiming right under any one of the judgement debtors then he should be treated as the one beyond the purview of Order 21 Rule 97 of C.P.C.and his obstruction should be ignored.
10. When such is the clear and categorical position, the said Sankaran-the revision petitioner herein cannot try to achieve success by contending that he is having independent right de hors the judgement debtors' right in respect of the demised premises.
11. The scope of Order 21 Rule 97 is to protect the persons, who are innocent and having independent title. Such persons should not be made to suffer because of the orders passed behind their back. But here, in this case, the very counter filed by the said Sankaran/the revision petitioner herein would reveal as under:
"2. . . . I am totally unaware of the earlier proceedings between the petitioner and one Mr.Ranganathan. Therefore I am rather know with the abetment of Ranganathan, who has been hitherto led to believe that Mr.Ranganathan is the absolute owner of the petition property and the petitioner is also guilty for his conduct throughout since the said Ranganathan who was entered into agreement prior to the filing of eviction petition introduced the decree holder and the decree-holder is aware that the earlier agreement of tenancy under Mr.M.Ranganathan received also the advance paid through me and as per the definition of landlord under the Tamil Nadu Act 18/60 as amended by Act 23/73 the said Ranganathan is a chief tenant which fact the decree holder is aware and it is further submitted that the petitioner did not enter into witness box and some of his relative as per the .............." (extracted as such)
12. As such it is clear that the said Sankaran cannot be construed as an obstructor at all and both the Courts below correctly viewed the matter and ordered removal of obstruction. Above all, both the authorities below based on factual analysis held that the revision petitioner herein/Sankaran happened to be only the sub-tenant of R3 herein and the said finding does not warrant any interference in revision.
13. In the result, the civil revision petition is dismissed. However, there is no order as to costs. Consequently connected miscellaneous petition is dismissed.
Msk 16.07.2012
Index:Yes
Internet:Yes
To
1. The VIII Judge, Small Causes Court, Chennai.
2. The XI Judge, Small Causes Court, Chenai.
G.RAJASURIA,J.
Msk
C.R.P.NPD.No.1073 of 2012
16.7.2012