Madras High Court
M.Manickam vs Bhuvaneswari on 7 April, 2010
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2010
CORAM
THE HONOURABLE MR.JUSTICE.S.TAMILVANAN
CRP.NPD.No.2953 of 2009
and
MP.No.1 of 2009
1.M.Manickam
2.M.Saravanan ..Petitioners
..Vs..
Bhuvaneswari ..Respondent
Prayer: This Civil Revision Petition is filed under section 115 of the Civil Procedure Code praying to to set aside the docket order passed in E.P.R.No.11 of 2009, dated 02.06.2009 in RCOP.No.1 of 2005 on the file of District Munsif Court, Tiruppur by allowing this Civil Revision Petition.
For Petitioners : Mr.Ma.P.Thangavel
For Respondent : Mr.S.P.B.Duraishamy
ORDER
This Civil Revision Petition has been preferred against the order dated 02.06.2009 made in R.C.O.P.No.1 of 2005 on the file of District Munsif, Tiruppur.
2.The docket order passed on 02.06.2009 in E.P.No.11 of 2009 reads as follows:
"Enquiry call on 02.09.2099 vacate by then"
Subsequently, on 2.9.2009 , docket order passed by the Court below is follows:-
"Declared as holiday, the matter was reposted to 07.09.2009".
On 07.09.2009, the following docket order was passed:-
"Premises not vacated as per order passed on 02.06.2009. Batta paid. Issue for 01.10.2009".
It is seen that the petitioner has not challenged the subsequent docket orders dated 02.09.2009 and 07.09.2009.
3.Mr.Ma.P.Thangavel, learned counsel appearing for the petitioners, submitted that the petitioners have paid Rs.50,000/- towards rental advance. Further, he has submitted that there was a settlement before the Lok Adalat and a joint memo was filed before the Court below. As per the joint memo dated 10.03.2009, the petitioners herein agreed to vacate and hand over the possession of the premises on 10.03.2009 and the respondent agreed to return the advance amount, after deducting the rental arrears due payable by the petitioners/tenants. However, the petitioners/tenants did not vacate and hand over the possession on 10.03.2009. Subsequently, the respondent herein filed an Execution Petition in E.P.No.11 of 2009 before the District Munsif Court, Tiruppur. It is seen that the petitioners/tenants filed a counter dated 27.07.2009 in the Execution Petition, wherein the petitioners/tenants herein sought six months time for vacating the premises and also to refund the balance amount paid by them towards advance.
4.The learned counsel appearing for the petitioners submitted that the Execution Petition filed by the respondent/decree holder before the Court below is not legally maintainable as the dispute between the parties was already referred to Lok Adalat and a joint memo of compromise was entered into between the parties and an award was passed on 10.03.2007. Therefore, according to the petitioner, the Execution Petition, filed against the award is not maintainable and the Court below has exercised its jurisdiction beyond the power vested in it. In support of the aforesaid contention, the learned counsel relied on a decision of the Supreme Court in Prem Bakshi and Ors .Vs. Dharam Dev and Ors. reported in 2002(5)CTC 479 and the decision of this Court in Velu and three others .vs.Arikrishnan and two others reported in 2003(4) CTC 560.
5.Per contra, the learned counsel appearing for the respondent /Decree Holder submitted that there is no illegality in the order passed by the Court below, since the respondent/Decree Holder is entitled to execute the decree within 12 years, as per the Limitation Act. In support of his contention, the learned counsel brought to the attention of this Court to a copy of the order passed by the executing court on 10.03.2007. He has further contended that in view of the compromise memo filed by both the parties, the Execution Petition was not terminated by the Court below and therefore, the Execution Petition is not barred by limitation.
6.It is not in dispute that the order passed in RCOP.No.1 of 2005 by the Rent Control Court for eviction is final and the execution petition was filed by the respondents herein. By the order dated 10.03.2007 the same was closed, in view of the compromise memo filed by both the parties. As per the compromise memo dated 10.03.2007, the petitioners/tenants had to vacate the premises by 10.03.2009. The respondent/Decree Holder agreed to repay the advance amount after deducting the arrears of rent. However, the petitioners have not vacated the premises and subsequently, the petitioners have also not paid rent. It is an admitted fact that the monthly rent for the premises was Rs.3,500/-. There is no supporting document produced on behalf of the petitioners to prove the subsequent payment of rent. After the compromise memo was filed before the Execution Court and, therefore, it is clear that the petitioners/tenants have not paid any rent subsequently and the arrears of rent till the end February 2010 was Rs.42,000/-. The respondent has admitted that the advance amount paid by the petitioner was Rs.50,000/- and after deducting the arrears of rent, the balance amount would be Rs.8,000/-. However, the respondent has agreed to pay Rs.10,000/-, Rs.2,000/- more than the amount paid by the petitioner towards rental advance.
7.As per the order dated 17.03.2010, the petitioners were directed to file undertaking affidavit on or before 25.03.2010 to vacate and hand over the possession of the rented premises. However, they have not filed undertaking affidavit before the said date. As per the order of this Court dated 30.03.2010, the respondent/landlord was directed to pay a sum of Rs.10,000/- to settle the claim of both the parties. Similarly, the petitioners/tenants are directed to vacate the premises within the time limit. However, in the affidavit filed by the petitioners, they have prayed to grant a period of one year i.e., upto 29.03.2011. The prayer now sought for by the petitioner, seeking one year further time for vacating the premises is against the joint memo of compromise dated 10.03.2007 filed by both the parties. Moreover, further time granted by this Court has also not been complied with by the petitioners.
8.The point remain to be decided in this revision petition is as to Whether the order dated 02.06.2009 is liable to be set aside as contemplated under Sec.115 of C.P.C.?
9.As per Sec.115 C.P.C., the order passed by the Court below, on 02.06.2009 is not a final order and there are subsequent docket orders which are not challenged by the petitioners/tenants, hence without challenging the subsequent orders, the petitioners cannot maintain the Revision Petition.
10. Learned counsel appearing for the petitioner submitted that the second Execution Petition is not maintainable. The said arguments advanced by the petitioner cannot be sustainable, because in the R.C.O.P.No.1 of 2005, by order dated 12.04.2006 eviction was ordered against the petitioner/tenant by the learned Rent Controller and then E.P.R.No.11 of 2009 was filed by the respondent/Decree Holder. In view of the joint memo of compromise entered into between the petitioners and the respondent on 10.03.2007, the execution petition was only closed. As contended by the learned counsel appearing for the respondent though the Execution Petition was only closed, and not terminated. The petitioners have not complied with the undertaking given by them in the joint memo of compromise, for which no justifiable reason has been given by the petitioners/tenants.
11.In such circumstances, the respondent/Decree Holder need not file another Execution Petition on the basis of the compromise memo. Moreover, in the counter filed by the petitioners/tenants in the Execution Petition, they had asked only six months time, to vacate and hand over the possession to the respondent herein. Hence the new plea taken by the petitioner after availing the benefit under the Joint memo of Compromise, detrimental to the interest of the other side cannot be justified.
12.The decisions cited by the learned counsel appearing for the petitioners are not applicable to the facts and circumstances of this case. Hence, I am of the view, that there is no merit in the Civil Revision petition and the same is liable to be dismissed. Accordingly, this Civil Revision Petition is dismissed with costs.
13. The respondent/Decree Holder is at liberty to proceed with Execution Petition, according to law and the Court below is directed to pass appropriate orders forthwith. The petitioners are permitted to withdraw the balance amount due and payable towards arrears of rent, out of the rental advance amount deposited by her.
kkd To The District Munsif Court, Tiruppur