Madras High Court
O.Sambandamurthy vs The Estate Of Late on 27 July, 2018
Author: P.T.Asha
Bench: P.T.Asha
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27.07.2018 Coram: The Honourable Ms.Justice P.T.ASHA C.R.P(NPD)Nos.3874 & 3875 of 2010 and M.P.No.1 of 2010 in C.R.P(NPD)Nos.3874 & 3875 of 2010 O.Sambandamurthy ...Petitioner in both C.R.Ps Versus The Estate of Late T.P.Ramasamy Pillai Rep. by its sole trustee T.R.Kannan (Died) No.6, General Collins Road, Vepery, Chennai 600 112. ...Respondent in both C.R.Ps Prayer in C.R.P(NPD)No.3874 of 2010: This Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the Fair and Decreetal order passed in M.P.No.263 of 2009 in R.C.A.No.280 of 2007, dated 24.07.2009 pending on the file of VII Judge, Small Causes Court, Chennai and permit the petitioner by giving him an opportunity to contest the application on merits. Prayer in C.R.P(NPD)No.3875 of 2010: This Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the fair and decreetal order passed in M.P.No.612 of 2009 in R.C.A.No.280 of 2007, dated 21.04.2010 pending on the file of VII Judge, Small Causes Court, Chennai and permit the petitioner by giving him an opportunity to contest the Application No.428 of 2009 on merits. For Petitioner in both C.R.Ps : Mr.P.C.Manikumar for Mr.P.C.Harikumar Associates For Respondent in both C.R.Ps : Mr.G.Sugumaran C O M M O N O R D E R
The above Civil Revision Petitions are filed challenging the orders passed in M.P.No.263 of 2009 dated 24.07.2009 and the order in M.P.No.612 of 2009 filed for restoring the M.P.No.428 of 2009 in R.C.A.No.280 of 2007 which in turn was filed to set aside the order dated 24.07.2009 in M.P.No.263 of 2009. All these applications have been taken out in R.C.A.No.280 of 2009.
2. To put the issue on hand in perspective, the respondent herein is the estate of Mr.T.P.Ramasamy Pillai represented by its sole trustee T.R.Kannan(late). The Estate represented by its sole trustee has filed R.C.O.P.No.1578 of 2006 for the eviction of the petitioner herein on the grounds of willful default from the period January 1994, sub-letting and on account of their ceasing to occupy the demised premises. It appears from the grounds in R.C.A (since copies of the counter in R.C.O.P are not available for my perusal) shows that the petitioner/tenant has questioned the respondent's right to institute the Rent Control Proceedings as he was denying the landlord-tenant relationship. He was also questioning the very jurisdiction of the Rent Controller and the right of the sole trustee to institute the Rent Control proceedings, since according to the tenant, the trust was a Public Charitable Trust. By an order dated 29.03.2007, the Rent Controller ordered eviction on all the grounds and the tenant had filed an Appeal in R.C.A.No.280 of 2007. Pending the appeal, the sole trustee, Mr.T.R.Kannan died and his son T.R.K.Saravanan has taken out an Application in M.P.No.263 of 2009 to bring him on record and substitute him in the place of deceased Mr.T.R.Kannan to represent the estate of trustee, T.P.Ramasamy Pillai.
3. In the affidavit filed in support of the said petition, the defendant would submit as follows:
I am the last son of Late T.R.Kannan, the Trustee of the Petitioner Trust and aware of the facts of the case. I further submit that for the purpose of managing the Trust properties and also to represent the case on behalf of trust, the legal heirs have unanimously nominated me to represent the above case. As son of the deceased father, I am looking after the management of the trust properties after the death of my father. I am looking after the management of the Trust properties even after the death of my mother. As son, I may be substituted in the place of my deceased father, T.R.Kannan to represent the petitioner trust in the above case.
4. Although sufficient time was granted to the respondent to counter this petition, no counter affidavit was filed and as a result, M.P.No.263 of 2009 was allowed by an order dated 24.07.2009. On 04.08.2009, the petitioner had filed M.P.No.428 of 2009 to set aside the order dated 24.07.2009, in M.P.No.263 of 2009 along with the counter affidavit. This Petition was also dismissed for default on 27.10.2009. Thereafter, the petitioner has filed M.P.No.612 of 2009 to restore M.P.No.428 of 2009 which was also dismissed on 21.04.2010.
5. In the interregnum, the respondent herein had filed M.P.No.611 of 2009 for amending the R.C.A in keeping with the orders passed in M.P.No.263 of 2009. This Application came to be allowed by order dated 20.01.2010. Thereafter, the respondent has also filed the amended copy into Court on 04.06.2010.
6. Aggrieved by the order in M.P.No.263 of 2009, the petitioner has filed C.R.P(NPD)No.3874 of 2010 and challenging the order passed in M.P.No.612 of 2009, he has filed C.R.P(NPD)No.3875 of 2010.
7. Heard Mr.P.C.Manikumar, learned counsel for the petitioner and Mr.G.Sugumaran, learned counsel for the respondent.
8. The learned counsel appearing for the petitioner would represent that the person who now seeks to be substituted in the place of the sole trustee has not let in any evidence whatsoever to show his right to be impleaded as the trustee in the place of the deceased sole trustee. He also argued that the main defence of the petitioner/tenant is that the deceased sole trustee himself is not competent to file the Rent Control Petition and therefore, if this application is allowed, it would cause great prejudice to his interest.
9. The learned counsel appearing on behalf of the respondent would argue that the application has been filed only to have the respondent Trust represented in the proceedings. Since, the person who has now been impleaded to represent the Trust has only sought to get himself impleaded as all the legal representatives have unanimously nominated him to represent the case on behalf of the Trust.
10. The learned counsel for the petitioner would also point out the conduct of the tenant in continuing to remain in arrears of rent which factor has been denied by the counsel for the respondent and which is a factum which has to be gone in the Appeal and that at each stage of the appeal there has been a total indifference on the side of the petitioner to proceed with the case. It is seen that the petitioner, despite being given sufficient opportunities, has not come forward to file a counter affidavit in M.P.No.263 of 2009 and this fact has also been taken note of by the learned Rent Control Appellate Authority in his order.
11. Thereafter, even in the case of the petition filed to set aside this order viz., M.P.No.428 of 2009, the petitioner has not contested it diligently. As a result of which the same came to be dismissed for default. The affidavit which is filed in support of M.P.No.612 of 2009 to restore M.P.No.428 of 2009 has been sworn to by the counsel for the petitioner and not by the petitioner which would all come to show that the only attempt on the part of the petitioner is to prolong the proceedings. Therefore, the revision petition should be dismissed.
12. The records show that the petitioner has not shown diligence in prosecuting the applications, though he has put forward a very substantial defence. Be that as it may, the issue regarding the locus standi of the person who has now been impleaded to represent the Trust is an issue which can be contested in the impugned appeal and this need not been an impediment to the petition being allowed. The learned counsel for the respondent relied on the judgement in the case of Custodian of Branches of BANCO National Ultramarino Vs. Nalini Bai Naique reported in AIR 1989 SCC 1589(1) where the Honourable Supreme Court has defined the term, 'Legal Representative' and has held as follows:
The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person.
13. In the light of the above judgment and considering the conduct of the respondent in conducting the impugned M.P.Nos.263 & 612 of 2009 in R.C.A.No.280 of 2007, I find no infirmity in the order passed by the VII Court of Small Causes (Appellate Authority, Chennai). Therefore, these Civil Revision Petitions are dismissed. However, it is open to the petitioner to raise all issues regarding the authority and capacity of the respondent to institute and continue the rent control proceedings in the Rent Control Appeal. Considering the fact that the Rent Control Appeal is of the year 2009, the Rent Control Appellate Authority is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this order. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
27.07.2018 mrr Index : Yes / No Speaking Order/Non-Speaking Order P.T.ASHA, J., mrr To The VII Judge, Small Causes Court, Chennai.
C.R.P(NPD)Nos.3874 & 3875 of 2010 27.07.2018