Madras High Court
M/S. Cosmo Foundations Ltd vs Mrs.S.Sakunthala on 29 June, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.06.2012 CORAM: The Hon'ble Mr.Justice R.S.Ramanathan C.R.P.(NPD).Nos.1627 to 1632 of 2009 M/s. Cosmo Foundations Ltd., rep., by its Chairman, Mr.A.R.Vinodh Kumar, " Cosmo Towers" No.11, Dr. Thomas Road, T.Nagar, Chennai 600 017. ... Revision Petitioner Vs. 1.Mrs.S.Sakunthala 2.Mr.G.Kannappan Proprietor, M/s. Usha Engineering Works. 3.T.N.S.Ravikumar ( 3rd Respondent impleaded as party respondent vide order, dt. 17.3.2010, in M.P.No.2 of 2009) ...Respondents PRAYER:- Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decreetal order, dated 11.02.2009, passed in E.P.No.33 of 2009, in R.C.O.P.No.691 of 2005, on the file of XIII Small Causes Court, Chennai, whereby, recording the bailiff's report of handing over possession of the petitioned premises bearing Door No.511, Mint Street, George Town, Chennai to the agent of the landlord. For Revision Petitioner : Mr.V.Ayyadurai For Respondent-1 : Mr.N.Senthilkumar For Respondent-2 : Mr.Nagarajan For Respondent-3 : Mr.M.Mahendrakumar ******* COMMON O R D E R
The above Civil Revision petitions are filed, challenging the order passed by the XIII Judge, Court of Small Causes, Chennai, recording delivery, in E.P.Nos.33 to 37 and 61 of 2009, on the ground that, fraud has been practiced upon the Court with the collusion of the Bailiff and thereby, delivery was effected in favour of the first respondent, when there was no building in existence to be delivered.
2. The case of the revision petitioner is that, the property, bearing Door No.1/278, situate at Mint Street, George Town,Chennai, originally belonged to one Mr.Palaniyandipillai. The said Mr.Palaniyandipillai, got the aforementioned property under the registered sale deed, dated 4.5.1910 and under the sale deed, dated 11.2.1927, he bequeathed the said property in favour of his son, by name Mr.P.Nataraja Pillai, and the said Mr.P.Nataraja Pillai, died on 31.1.1957, leaving behind his widow, Mrs.N.Krishnammal. The said Mrs.Krishnammal, died on 12.8.1983, leaving behind a Will, dated 28.8.1979, giving her properties in favour of her sister, Mrs.Kamalammal, and the Will was probated in O.S.No.62 of 1987. The abovesaid Mrs.N. Krishnammal, during her lifetime, filed C.S.No.7 of 1959, for the relief of partition of her 1/3rd share and she died pending suit and as per the Will, her sister Mrs.Kamalammal succeeded to her estate and the suit in C.S.No.7 of 1959, was compromised, and a compromise decree was passed on 24.12.1993. As per the compromise decree, the portion shown as 'A' in the final decree was allotted to the share of Mrs.N.Krishnammal's branch and the legatee Tmt.Kamalammal, died on 13.5.1994, leaving behind a Will, dated 18.5.1992, under which, she bequeathed her share to her daughters T.Meera and Uma Devi and their children and also in favour of her grand son/Rajnarayanan, and each of them got 1/3rd share. Under a registered sale deed, dated 12.9.2007, the legatees under the Will of Tmt.Kamalammal, sold the property to the revision petitioner for valuable consideration and the tenants were inducted into the property and the tenants attorned tenancy in favour of the revision petitioner. Later, at the request of the revision petitioner, the tenants also vacated and handedover possession of the property to the revision petitioner, on 23.3.2008.
3. It is further stated that the revision petitioner applied to the Corporation of Chennai, for demolition of the tenanted premises and permission was granted on 20.03.2008 and the demolition work was commenced and completed on 30.03.2008 and as on 30.03.2008, the entire tenanted premises, alleged to have been taken delivery, by the first respondent, by virtue of the orders passed in E.P.Nos.33 to 37 and 61 of 2009, were demolished even on 30.03.2008. Therefore, the delivery alleged to have been effected on 30.1.2009, 09.02.2009, 11.02.2009 and 16.02.2009, pursuant to the orders passed in E.P.Nos.33 to 37 and 61 of 2009, are all fraudulent and fallacious and delivery could not have been effected in favour of the first respondent, on various dates as alleged in that order and hence, those orders are liable to be set aside.
4. It is further stated that the respondents 1 & 3, filed O.S.No.2112 of 2008 of 2008, on the file of the City Civil Court, Chennai against their alleged tenants and also against the revision petitioner and another person, seeking the relief of injunction, restraining the alleged tenants from handing over possession of the property to the revision petitioner, and also, restraining the revision petitioner from interfering with the respondents 1 & 3's possession. In that suit, the respondents 1 & 3 also filed I.A.No.5375 of 2008, for injunction and in that application, it was held that the tenants viz., 1 to 6 in O.S.No.2112 of 2008 have already handed over possession in favour of the revision petitioner, on 23.03.2008, and the revision petitioner also demolished the tenanted premises and status-quo was ordered.
5. Therefore, having regard to the findings in I.A.No.5375 of 2008, in O.S.No.2112 of 2008, no delivery could have been effected in favour of the first respondent, and hence, fraud has been practiced upon the Court by the first respondent, and records were created, as if, she has taken delivery of the property, which is not in existence and therefore, the Revision Petitions were filed under Article 227 of the Constitution of India to set aside the orders passed in E.P.Nos.33 to 37 and 61 of 2009, recording delivery and terminating the execution proceedings.
6. The respondents 1 & 3, contested the application stating that the properties, which are the subject matter of E.P.Nos.33 to 37 and 61 of 2009 are different from the properties purchased by the revision petitioner and the Door number of the property, which was the subject matter of the execution proceedings is Door No.511, Old No.1/278-A, Mint Street, comprised in R.S.No.600/2, measuring an extent of 11,861 sq ft., and the properties claimed to have been purchased by the revision petitioner is Door No.512, Old No.1/278 R.S.No.600. Further, the properties which were the subject matter of the execution proceedings, originally belonged to one Mr.Kuppusamy, and he gave the property as a gift to his son-in-law Mr.T.S.Subramaniam, the husband of Shankutala and the tenants were inducted into the property by the said T.S.Subramaniam. After the death of Mr.T.S.Subramaniam, his widow/first respondent and other became entitled to the property and under a registered sale deed, dated 22.08.2005, the other legal heirs of T.S.Subramaniam, relinquished their share in favour of the third respondent herein and the widow of T.S.Subramaniam, viz., first respondent herein was allowed to collect the rent and the tenants committed default in the payment of rent and also started denying the title of the landlord/first respondent. Therefore, the first respondent filed R.C.O.P.Nos.691 to 696 of 2005, for eviction of the tenants on the ground of wilful default and denial of title and that Petitions were hotly contested by the tenants. As they failed to pay the rent, the first respondent took up Distress Proceedings against the tenants for recovery of rent and that was allowed. Thereafter, the tenants continued to pay the rent to the landlords and R.C.O.P.Nos.691 to 696 of 2005 were filed for wilful default in the payment of rent till February, 2005 and they were allowed and the appeals filed in R.C.A.Nos.650 to 655 of 2007, were dismissed. For subsequent period, R.C.O.P.Nos. 673 to 676 and 678 of 2006, were filed and they were also ordered and Appeals filed by the tenants in R.C.A.Nos.1098, and 1125 to 1128 of 2006, were also dismissed. Further, R.C.O.P.Nos.499 to 504 2007 filed by the landlord were also ordered and the Appeals filed by the tenants in R.C.A.Nos.505 to 511 of 2008, against fixation of fair rent were dismissed. Further E.P.Nos.33 to 37 and 61 of 2009 were filed to execute the order of eviction passed in R.C.O.P.Nos.691 to 696 of 2005, delivery was effected and on the basis of the endorsements made by the Bailiff, delivery was recorded and Execution proceedings were terminated and no fraud has been practiced by the respondents 1 to 3, as alleged by the revision petitioner and therefore, the Revision Petitions filed by the revision petitioner is not maintainable and if at all, he is aggrieved by the orders, his remedy lies elsewhere and not in challenging the orders passed by the Executing Court.
7. Mr.V.Ayyadurai, the learned counsel for the revision petitioner after tracing out the title of the revision petitioner to the suit property as stated above, vehemently contended that even on 23.03.2008, the tenants against whom R.C.O.P.Nos.691 to 696 of 2005 were filed, handed over vacant possession of the tenanted premises in favour of the revision petitioner and the revision petitioner also obtained permission for demolition of the building on 20.03.2008, and also completed demolition work on 30.03.2008.
8. The learned counsel for the revision petitioner, therefore, contended that there was no building to be delivered to the first respondent and the factum of demolition of the building, after handing over the possession of the property by the tenants in favour of the revision petitioner was also confirmed by the Court below in I.A.No.5375 of 2008, in O.S.No.2112 of 2008 filed by the first and third respondents. Nevertheless, the Bailiff submitted a report before the Court below, as if, he handed over vacant possession of the property to the first respondent and that was also recorded by the Court below, and hence, a clear case of fraud has been made out, and therefore, this Court has got ample power to interfere in such matters that fraud has been practiced upon the Court and the learned counsel also relied upon various judgments in support of his contentions.
9. On the other hand, the learned counsel for the respondents submitted that there is a dispute regarding the identity of the property and according to the respondents 1 to 9, one T.N.Subramaniam, was the owner of the premises and he inducted the tenants into the property and it is also admitted by the revision petitioner, that T.N.Subramaniam, was the chief tenant and he was collecting rent from them and the various rent control proceedings initiated by the first respondent would also prove that the first respondent is the owner of the property and eviction order was passed, after contest and Execution Petitions were filed to put the decrees to execution and the Bailiff also effected delivery and submitted a report. Further, the vendors of the revision petitioner filed M.P.Nos.404 to 409 of 2005 in R.C.O.P.Nos.691 to 696 of 2005, to implelad themselves as parties in Rent Control Proceedings and those Petitions were dismissed and the revision petitioner, who purchased the property from them, therefore, cannot question the title of the first respondent to the premises. Moreover, the tenants also admitted Mr.T.N.Subramaniam, as their landlord and also admittedly paid the rent to the first respondent. Later, on the receipt of the notice from the revision petitioner, the tenants started denying the title of the first respondent and therefore, Petitions for eviction were filed on the ground of wilful default and denial of title and the tenanted portions were not demolished, as contended by the learned counsel for the revision petitioner and the Bailiff took delivery of the properties and he has also stated the same clearly in the report filed by him and hence, no fraud has been practiced upon the Court and the petitioners, who were the parties to the Rent Control Proceedings or execution proceedings cannot challenge the same, by invoking extraordinary jurisdiction of this Court, under Article 227 of the Constitution of India, and they will have to seek their remdy by filing necessary applications before the Executing Court and no fraud has been practiced, as alleged by the revision petitioner and he has also not proved any fraud and hence, the learned counsel prayed for dismissal of the Civil Revision Petitions.
10. The main contention of the learned counsel for the revision petitioner was that, even on 30.03.2008, the revision petitioner demolished the entire building, after taking delivery from the tenants and therefore, there cannot be any delivery in respect of those tenanted premises by the Bailiff in favour of the first respondent. In other words, according to the revision petitioner, there was no premises to be delivered to the first respondent and the endorsements made by the Bailif for effecting delivery was a fraudulent one and therefore, the Court below ought not to have accepted the reports of the Bailiff and ought not to have recorded delivery and terminated the execution proceedings.
11. To appreciate the contention of the learned counsel for the revision petitioner, that there was no premises to be delivered by the Bailiff in favour of the first respondent on the respective dates, and I thought a Commission would help the Court and both the Counsel have no objection for the appointment of an Advocate Commissioner to inspect the premises and by order, dated 14.02.2002, I appointed an Advocate Commissioner to visit Door No.511 and note the features as stated in the Warrant. The learned Advocate Commissioner also inspected the premises and filed a report. As per the report of the Advocate Commissioner, he identified the buildings, which were the subject matter of R.C.O.P.Nos.691 to 696 of 2005 and those buildings were given Nos. as 1A, 2A, 3A, 4A , 5A and 6A. In respect of Building No.1, Door was locked, it was opened by the third respondent and the building consists of walls and roofs. The Building No.2 is also having doors and front wall and the roof of the building is demolished. In respect of the Building No.3, front wall and shutters are intact and the rear wall of the premises is broken and it is not in a state of occupation. Building No.4, was opened by the third respondent and the rear wall of the building was demolished and in respect of Building Nos. 5 and 6, there is no superstructure.
12. Though serious objections were raised and filed to the Commissioner's report, a reading of the objections did not question the nature of the condition of the building, as found by the learned Advocate Commissioner. Therefore, it is seen from the report of the learned Advocate Commissioner that out of six tenanted premises, there are semblance of building in respect of four buildings and in respect of two buildings, there are no trace of any building.
13. It is seen from the endorsement made by the Bailiff that in E.P.No.33 of 2009, which is the subject matter of R.C.O.P.No.691 of 2005, the Door was broken open, as per the order passed in E.A.No.14 of 2009, and delivery was effected on 09.2.2009, and the Execution Petition was terminated, by order, dated 11.02.2009. In respect of the premises, the subject of E.P.No.34 of 2009, in R.C.O.P.No.692 of 2005, as per the Bailif's report, there was no door and vacant possession was given to the first respondent on 30.1.2009 and the Execution Petition was terminated, on 05.02.2009. E.P.No.35 of 2009, is in respect of R.C.O.P.No.693 of 2005, and as per the Bailif's report, the door of the premises was broken open, as per the order passed in E.A.No.11 of 2009, and delivery was effected on 09.02.2009, and Execution Petition was terminated on 11.02.2009. E.P.No.36 of 2009, is in respect of R.C.O.P.No.695 of 2005 and as per the Bailif's report, the door was broken open as per the order passed in E.A.No.10 of 2009, and delivery was effected on 09.02.2009 and the Execution Petition was terminated on 30.03.2009. E.P.No.37 of 2009, is in respect of R.C.O.P.No.696 of 2005 and as per the Bailif's report, the door was broken open, as per the order passed in E.A.No.12 of 2009, and delivery was effected on 09.02.2009 and Execution Petition was terminated on 11.02.2009. E.P.No.61 of 2009, is in respect of R.C.O.P.No.694 of 2005 and as per the Bailiff's report, shutter was found open and vacant possession was given on 16.02.2009, and Execution Petition was terminated on 18.02.2009.
14. Therefore, having regard to the report filed by the Advocate Commissioner and the report filed by the Bailiff, as seen in E.P.Nos.33 to 37 and 61 of 2009, in respect of two tenanted premises viz., E.P.No.34 and 61 of 2009, which are the subject matter of R.C.O.P.Nos.692 and 694 of 2005, there was no door and in respect of other Execution Petitions, the door was broken open, by order of the Court and delivery was also effected.
15. Thus, having regard to the report of the learned Advocate Commissioner and report of the Bailiff, I am of the opinion that, the Bailiff has made correct endorsements, while effecting delivery in favour of the first respondent. Though, the revision petitioner claimed that, he demolished entire premises on 30.03.2008, the report of the learned Advocate Commissioner falsified the claim of the revision petitioner. Further, there is a dispute regarding the identity of the property, as contended by the learned counsel for the first respondent. These Revision Petitions are filed only on the ground of fraud alleged to have been practiced upon the Court by the Bailiff, while ordering delivery.
16. According to me, in the absence of any proof adduced to the effect that fraud has been practiced upon the Court, this Court cannot accept the plea of the revision petitioner. Further, the tenants accepted the first respondent as their landlord and later, they denied title. The first respondent filed R.C.O.P.Nos.691 to 696 of 2005 for eviction and also filed R.C.O.P.Nos.673 to 678 of 2006, for eviction on the ground of wilful default and obtained an order of eviction and the first respondent also filed application for fixation of fair rent in R.C.O.P.Nos.499 to 504 of 2008 and those Petitions were also ordered and the Appeals filed by the tenants in R.C.A.Nos.650 to 657 of 2007 and 505 to 511 of 2008, against those Petitions, were dismissed. In the Rent Control Proceedings, the tenants admitted the tenancy under the first respondent and therefore, after obtaining an order of eviction, the landlord/first respondent executed the order of eviction, by filing E.P.Nos.33 to 37 and 61 of 2009 and pursuant to the orders passed by the Executing Court, delivery was effected. Now, the learned counsel for the revision petitioner relied upon the findings in I.A.No.5375 of 2008, in O.S.No.2112 of 2008 wherein, the Lower Court has held that possession was handed over by the tenants in favour of the revision petitioner and the revision petitioner also demolished the same.
17. According to me, those findings were given on the basis of the submission made by the tenants and the first respondent and the findings are only interlocutory in nature and they are not final. No doubt, O.S.No.2112 of 2008 was also dismissed as infructous. According to me, the revision petitioner cannot take advantage of the findings rendered in I.A.No.5375 of 2008, in O.S.No.2112 of 2008 to substantiate his case in the present Revision Petitions and according to me, those issues have to be adjudicated in a proper forum by the revision petitioner. As no fraud has been proved to have been practiced by the first respondent, or by the Bailiff in ordering delivery, I do not find any merit in the Civil Revision Petitions.
18. In the result, the Civil Revision Petitions, being devoid of merits, are dismissed. However, it is open to the revision petitioner to challenge the order passed in E.P.Nos.33 to 37 and 61 of 2009 in the manner known to law, and the observations made by this Court will not prejudice the rights of the parties and the observations are made only for deciding, whether any fraud has been practiced upon the Court, as alleged by the revision petitioner. In case, the revision petitioner files any application or initiates any Proceedings, challenging the recording of delivery, the Court which deals with such application is directed to dispose of the same, on merits and in accordance with law, without being influenced by any of the observations made in these Revision Petitions. No costs. Consequently, connected M.Ps are closed.
sd To The XIII Judge, Court of Small Causes, Chennai