Madras High Court
T.K.Jambu vs Dhanasekaran (Civil Dead) on 10 August, 2021
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
C.R.P.No.2422 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.04.2023 Delivered on 01.09.2023
CORAM:
The Honourable MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.R.P.No.2422 of 2021
and C.M.P.No.18403 of 2021
T.K.Jambu ...Petitioner/Respondent
/Petitioner/Petitioner
(Decree Holder / Landlord)
-Vs-
Dhanasekaran (Civil Dead) ...Respondent/Petitioner
/Respondent/Respondent
(Judgment Debtor / Tenant)
1.Kasthuri
2.Venkatesan
3.Ganesan
4.Suguna
5.Shenbagam ...Respondents/Petitioners
Proposed Respondents
Prayer:-Civil Revision Petition filed under Article 227 of the Constitution
of India, against the fair and decreetal order dated 10.08.2021 made in
E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 on the
file of the Principal District Munsif Court, Tindivanam.
For Petitioner : Mr.S.Senthilkumar
https://www.mhc.tn.gov.in/judis
1/20
C.R.P.No.2422 of 2021
For R1 to R5 : Mr.R.Prabhakaran
for Mr.K.Balasubramaniam
ORDER
This Civil Revision Petition is filed to set aside the fair and decreetal order order dated 10.08.2021 made in E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 on the file of the Principal District Munsif Court, Tindivanam.
2.The brief facts, which are necessary to decide this Civil Revision Petition, are as follows:-
2.1.The Petitioner is the landlord. He has filed a petition in R.C.O.P.No.5 of 2002 under Section 10(2)(i)(iii)(3)(iii) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The Respondent/Dhanasekaran was the tenant. The property was purchased by the Revision Petitioner herein as per sale deed dated 22.01.1987 from one Pounammal. Subsequently, the said Dhanasekaran was inducted as tenant in the month of January, 1988. The Respondent as tenant paid Rs.2,000/-
(Rupees Two Thousand only) to the Revision Petitioner/landlord as advance. As per the terms of the lease, the tenant has to pay the electricity https://www.mhc.tn.gov.in/judis 2/20 C.R.P.No.2422 of 2021 service connection charges. Stage by stage, the rent was increased and on 1997 the monthly rent was Rs.400/-. The Respondent had been paying the rent without any let or hindrance. The Respondent had been carrying out sale of vegetables in the leased out premises. The Respondent had not been continuously paying rent thereby he had committed wilfull default. Therefore, the landlord has filed R.C.O.P.No.5 of 2002 to vacate the tenant from the demised premises on the ground of wilfull default and owner's occupation. The tenant resisted the same. He filed counter denying the allegations made in the petition. After due enquiry, R.C.O.P.No.5 of 2002 was decreed in favour of the Revision Petitioner on 24.04.2017. In continuation of the order passed in R.C.O.P.No.5 of 2002, the Revision Petitioner/landlord has filed E.P.No.79 of 2017 seeking delivery of possession of the property. At that stage E.A.No.30 of 2018 was filed by the legal heirs of the deceased Defendant in R.C.O.P.No.5 of 2002. That petition was opposed by the learned Counsel for the Revision Petitioner/landlord. In the execution petition stage, the legal heirs of the tenant Dhanasekaran had filed petition to include them as Respondents in E.P.No.79 of 2017 on the ground that the whereabouts of the original tenant Dhanasekaran is not known to the family members. Therefore, https://www.mhc.tn.gov.in/judis 3/20 C.R.P.No.2422 of 2021 invoking the provision civil dead under Section 108 of the Indian Evidence Act, 1872, the learned Counsel for the Revision Petitioner seeks to bring on record the legal heirs of Dhanasekaran as Respondents in E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002. Aggrieved by the same, the Revision Petitioner had approached this Court to set aside the order of the learned Principal District Munsif in E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 pending on the file of the learned Principal District Munsif, Tindivanam.
3.The learned Counsel for the Revision Petitioner submitted his arguments. The learned Counsel for the Revision Petitioner contended that the Revision Petitioner is the landlord of the premises. He had leased out premises in the year 1988 for Rs.300/- per month for commercial purposes and the tenant had been paying the rent regularly. From the year 2000, the tenant had not been paying the rent regularly. Therefore, in the year 2000, the landlord had issued legal notice directing the tenant to vacate the premises on the ground of wilfull default. The tenant had received the notice, but he did not reply. Therefore, the landlord had filed R.C.O.P.No.5 of 2002 for eviction of the tenant for wilfull default. While so, the tenant https://www.mhc.tn.gov.in/judis 4/20 C.R.P.No.2422 of 2021 had filed I.A.No.1 of 2010 in R.C.O.P.No.5 of 2002, seeking stay of the order for rent control proceedings. After due enquiry the I.A.No.1 of 2010 was dismissed. Against the dismissal of the order in I.A.No.1 of 2010 in R.C.O.P.No.5 of 2002, the tenant had filed Civil Revision Petition in C.R.P.No.1271 of 2010 before this Court.
4.The learned Counsel for the Revision Petitioner invited the attention of this Court to the order passed in C.R.P.No.1271 of 2010 wherein the learned Judge had partly allowed the Civil Revision Petition, directing the Revision Petitioner to deposit the rent and also the arrears of rent. The tenant had paid Rs.50,000/- on 22.08.2011. Subsequently, the tenant had filed the suit in O.S.No.4 of 2013 for specific performance. After contesting the suit, the suit was decreed. Against the judgment and decree passed by the learned Principal District Munsif, Tindivanam, the landlord, who is the Defendant in the suit in O.S.No.4 of 2013 had filed A.S.No.533 of 2006 before the High Court. The Appeal Suit No.533 of 2006 was allowed on 09.12.2016. While the Appeal was pending, the legal heirs of the tenant had filed Petition in M.P.No.1 of 2015 in A.S.No.533 of 2006, seeking to implead themselves as Respondents in the Appeal in https://www.mhc.tn.gov.in/judis 5/20 C.R.P.No.2422 of 2021 A.S.No.533 of 2006, claiming that the tenant, who is the Respondent in the Appeal, was missing from 2010. This Court had rejected the said Petition on 03.09.2015. In the said judgment in the Appeal in A.S.No.533 of 2006, this Court had directed the learned Principal District Munsif, Tindivanam, to dispose of the R.C.O.P.No.5 of 2002 on or before 30.04.2017. Accordingly, R.C.O.P.No.5 of 2002 was disposed by the learned District Munsif, Tindivanam. Based on the order passed in R.C.O.P.No.5 of 2002, the landlord had filed E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002. The legal heirs of the tenant had filed E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002, seeking to implead themselves as legal heirs of the tenant Dhanasekaran, suppressing the fact that similar Petition was dismissed by the High Court in M.P.No.1 of 2015 in A.S.No.533 of 2006. The learned Principal District Munsif, Tindivanam, as Execution Court had allowed E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002.
5.Aggrieved by the same, the landlord, who is the Petitioner in R.C.O.P.No.5 of 2002 as well as the Petitioner in the Execution Petition E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002, had approached this Court by filing C.R.P.No.2422 of 2021, seeking to set aside the order of the learned https://www.mhc.tn.gov.in/judis 6/20 C.R.P.No.2422 of 2021 Principal District Munsif, Tindivanam, in E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 dated 10.08.2021.
6.In support of his contention, the learned Counsel for the Revision Petitioner relied on the following judgments:-
61.In the case of Chaube Madho Rao Vs. Chaube Gur Narain, reported in AIR 1931 All 306, Allahabad High Court has held as under:
“4. The learned Counsel was not quite certain whether his client would claim in the capacity of legal representative of his father or not but finally decided that he would adopt that position. The learned Counsel sustained his argument by reference to various well-known doctrines of Hindu law to the effect that when a man becomes a sanyasi he becomes dead for purposes of succession and inheritance and the persons entitled succeed to his property. That doctrine however is in regard to devolution of the rights of the person who becomes a sanyasi. The question before us is the converse and deals with the liabilities of this person. Further, the question before us is one of procedures under the Civil Procedure Code. Now Section 50 uses the word " dies " apparently in its natural sense and there is nothing in the section or any other portion of the Code which indicates that this word is intended to include civil death. Civil death is in some ways different from natural death and learned Counsel has not been able to show any authority for his proposition that the civil death will come under Section 50, Civil P.C.
6. We consider therefore that in the present case it is not proved that the judgment-debtor did become a sanyasi, whether before or after attachment, or at all. These, we may mention are some of the difficulties which would arise if this doctrine of civil death were held to come under Section 50, but on the general point of law we consider that Section 50 is not intended to apply to the case of civil death and accordingly we dismiss these appeals with costs.” 6.2.In the case of Sm.Sudhamoyee Basu and Anr. Vs. Bhujendra Nath Biswas and Ors, reported in AIR 1935 Cal 713, the Calcutta High Court has held as follows:
“3. The appellants' case is that the present application for execution is maintainable against the respondents under Section 50, Civil P.C. The word "dies" in that section in my opinion has been used in its natural meaning. It does not include civil death: Madhu Rao v. Gur Narain, 1331 All 306. Again https://www.mhc.tn.gov.in/judis 7/20 C.R.P.No.2422 of 2021 the respondents are not the legal representative's of the judgment-debtor within the meaning of Section 50, read with Section 2, Clause 11, Civil P.C. The contention of the appellant however, is that as the daughters of the last male owner were sued in the rent suit in representative character the estate which the respondents got by surrender as reversionary heirs is liable for the decree which was obtained in that suit. I have already pointed out that the decree for rent was for arrears which accrued after the death of the last male owner. As the daughters were in enjoyment of the rents and profits of the tenure the liability for rent ought to be regarded as their personal liability and ought not to be held as attaching to the reversion unless the appellants proceeded to bring the tenure itself to sale under the special provisions of the Bengal Tenancy Act: see Jiban Krishna Rao v. Brojo Lal Sen (1903) 30 Cal
550.” 6.3.In the case of Haji Abdullah Sait Vs. K.Sanjeevi Rao and Others reported in 1979 SCC Online Mad 25 this Court has observed as under:
“1976 2 M.L.J. 145 (D.B.—Ramaprasada Rao, J.), and 1973 S.C. 508 Distinguished.
When a tenancy is determined and the tenant is called upon to hand over possession and the tenant who is, under obligation to hand over possession, in violation of that obligation continues to be in possession of the property, he cannot be said to be in lawful occupation. Therefore, the status of late S from 1st March, 1964 was that of a trespasser, and he was liable to be ejected, and was liable to pay mesne profits or damages for use and occupation, to the plaintiff.
18. Let us now take the first point, namely, what was the status of late Seetharama Rao, when the tenancy was terminated with effect from 1st March, 1964 and he continued to be in possession of the said building without surrendering possession, as demanded by the plaintiff? The learned trial Judge in his judgment stated that the main question that was argued before him was as to whether late Seetharama Rao became a trespasser on the termination of the tenancy and as a matter of fact, it was held by the learned judge that late Seetharama Rao became a trespasser. The learned Judge further pointed out:
“It was conceded on behalf of the defendants, at one stage, that if Seetharama Rao was a trespasser and no tenancy by holding over had come into existence prior to coming into force of the amending Act, the question of abatement of the suit would not arise and the plaintiff would be entitled to a decree for possession. However, at the last stage of the arguments, it was https://www.mhc.tn.gov.in/judis 8/20 C.R.P.No.2422 of 2021 sought to be contended that as the definition of the word ‘tenant’ in S. 2 (8) of the Act includes a person continuing in possession after the termination of the tenancy, Seetharama Rao became a tenant-under the Act after the amending Act came into force.” Even before us the argument of the learned counsel for the third defendant was that after the termination of the tenancy late Seetharama Rao did not become a trespasser, when he continued to remain in possession of the suit property and he become a tenant by sufferance, if not a tenant by holding over. We ate of the opinion that this contention is unsound and the legal position is clear that when late Seetharama Rao continued to remain in possession of the suit property after the termination of the tenancy his possession was only that of a trespasser.
31. As we have pointed out already, the notice, Ex. P2 terminating the tenancy by 29th February, 1964 is dated 20th January, 1964 and 1st March, 1964, being a Sunday, the suit for recovery of possession of the suit property was instituted on 2nd March, 1964. Thus it will be seen that there was no interval whatever between the date on which the tenancy came to an end and the date on which the suit was instituted, thereby excluding any scope for putting forward the contention that the plaintiff assented to the continuance of possession of late Seetharama Rao either as a tenant or otherwise. As we have pointed out already, the law is that after the termination of the tenancy, if a tenant continues in possession of the property with the consent of the landlord, he becomes a tenant by holding over and if he continues to be in possession of the property without the consent of the landlord, he becomes a tenant at sufferance. However, the position is not the same if the quondam tenant continues in possession of the property notwithstanding the express dissent of the landlord or to use the language of the Court in G. P. Mackintosh v. Gopee Mohan Mojoomdar3 already referred to, in defiance of the landlord. As the Supreme Court pointed out in M. C. Chockalingam and others v. V. Manickavtsagam and others4 already referred to, if a landlord has not assented to the lessee's continuance in possession of the property, the lessee would be liable to mesne profits which could again be recovered only in terms of his wrongful possession. The fact that the plaintiff in the present case had instituted the suit for recovery of possession from late Seetharama Rao immediately on the expiry of the lease is the clearest possible manifestation of the plaintiff's definite and determined dissent to the late Seetharama Rao continuing in possession of the property.
Therefore, there is absolutely no scope whatever, on the facts of this case, for holding that from 1st March, 1964 late Seetharama Rao was a tenant by holding over or a tenant at sufferance. If so, the inevitable position of late Seetharama Rao was only that of a trespasser. Realising this position https://www.mhc.tn.gov.in/judis 9/20 C.R.P.No.2422 of 2021 only, Mr. Govind Swaminathan, learned counsel for the third defendant, contended that once the entry into possession was lawful, in no case the subsequent possession can become unlawful and the person in possession a trespasser. According to the learned counsel, in this case late Seetharama Rao entered into possession of the property as a tenant and continued to remain in possession of the property after the termination of the tenancy and therefore, whatever else he might have been, he could not be a trespasser because in the origin his possession was lawful and in support of this contention the learned counsel relied on the decision of the Supreme Court in Badrilal v. Municipal Corporation of Indore1 to which we have already made reference and a decision of a Bench of this Court in the Union of India represented by Secretary, Ministry of Works, Housing, Urban Development, New Delhi and another v. Andhra Bank Limited, Madras2. We are of the opinion that neither of these decisions lends support to such a contention. It cannot be contended, as a general principle of law that if the entry into possession was lawful, such possession cannot become subsequently unlawful. In our opinion even though entry into possession was lawful, the subsequent possession can become unlawful just as unlawfnl entry into possession can become subsequently lawful. If a person trespasses upon the property, but subsequently the owner of the property assents to his continuing in possession on condition of his paying a rent, the subsequent possession becomes lawful. So also, when a person enters into possession of the property as a tenant, but continues to be in possession of the property even after the termination of the tenancy in defiance of the landlord, his possession becomes wrongful.” 6.4.In the case of M.M.Bilaney & Anr. Vs. Fali Rustomji Kumana [Appeal (Civil) No.5162 of 2002, dated 27.09.2005] the Hon'ble Supreme Court had held as under:-
“Once the decree of eviction was passed against his father and father expired in 1984 he has become trespasser. Secondly a declaration has been given against him that there exists no relationship of landlord and tenant.” 6.5.In the case of Atma Ram Properties (P) Ltd Vs. Federal Motors Pvt. Ltd., [Appeal (civil) No.7988 of 2004, dated 10.12.2004] the Hon'ble Supreme Court had observed as follows:-
“Under the general law, and in cases where the tenancy is governed only by the provisions of Transfer of Property Act, 1882, once the tenancy comes to https://www.mhc.tn.gov.in/judis 10/20 C.R.P.No.2422 of 2021 an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant. In the case of Chander Kali Bai & Ors. (supra) the tenancy premises were situated in the State of Madhya Pradesh and the provisions of the M.P. Accommodation Control Act, 1961 applied. The suit for eviction was filed on 8th March 1973 after serving a notice on the tenant terminating the contractual tenancy w.e.f. 31st December 1972. The suit came to be dismissed by the trial Court but decreed in first appeal decided on 11th August, 1975. One of the submissions made in this Court on behalf of the tenant-appellant was that no damages from the date of termination of the contractual tenancy could be awarded; the damages could be awarded only from the date when an eviction decree was passed. This Court took into consideration the definition of tenant as contained in Section 2(i) of the M.P. Act which included "any person continuing in possession after the termination of his tenancy" but did not include "any person against whom any order or decree for eviction has been made". The court, persuaded by the said definition, held that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the M.P. Act and on such termination his possession does not become wrongful until and unless a decree for eviction is passed. However, the Court specifically ruled that the tenant continuing in possession even after the passing of the decree became a wrongful occupant of the accommodation. In conclusion the Court held that the tenant was not liable to pay any damages or mesne profits for the period commencing from 1st January 1973 and ending on 10th August 1975 but he remained liable to pay damages or mesne profits from 11th August 1975 until the delivery of the vacant possession of the accommodation. During the course of its decision this Court referred to a decision of Madhya Pradesh High Court in Kikabhai Abdul Hussain Vs. Kamlakar, 1974 MPLJ 485, wherein the High Court had held that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. This Court opined that what was held by the Madhya Pradesh High Court seemed to be a theory akin to the theory of "relation back" on the reasoning that on the passing of a decree for possession, the tenant’s possession would become unlawful not from the date of the decree but from the date of the termination of the contractual tenancy itself. It is noteworthy that this Court has not disapproved the decision of the Madhya Pradesh High Court in Kikabhai Abdul Hussain’s case but distinguished it by observing that the law laid down in Kikabhai Abdul Hussain’s case was https://www.mhc.tn.gov.in/judis 11/20 C.R.P.No.2422 of 2021 not applicable to the case before it in view of the definition of ’tenant’ as contained in the M.P. Act and the provisions which came up for consideration of the High Court in Kikabhai Abdul Hussain’s case were different.
In the case at hand, it has to be borne in mind that the tenant has been paying Rs.371.90p. rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq. ft. have been recently let out on rent at the rate of Rs.3,50,000/- per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs.15,000/- per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate Court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may place on record that it has not been the case of the tenant-respondent before us, nor was it in the High Court, that the amount of Rs.15,000/- assessed by the Rent Control Tribunal was unreasonable or grossly on the higher side.”
7.Therefore, the learned Counsel for the Revision Petitioner seeks to allow this Civil Revision Petition and set aside the order passed by the learned Principal District Munsif, Tindivanam, in E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002. Also, he would submit that this Court has passed the order by directing the legal heirs of the tenant to pay arrears of rent and also to hand over possession.
8.The learned Counsel for the Respondents submitted that he had filed memo in the Registry reporting 'no instructions'. https://www.mhc.tn.gov.in/judis 12/20 C.R.P.No.2422 of 2021
9.Since the learned Counsel for the Respondents had reported 'no instructions', this Court draws presumption against the original tenant, Dhanasekaran, who himself had filed C.R.P.No.1271 of 2010 before this Court and the Civil Revision Petition itself was disposed of by this Court on merits. C.R.P.No.1271 of 2010 was partly allowed, with a direction to the Revision Petitioner to deposit the rent and also the arrears of rent. Accordingly, the tenant had paid Rs.50,000/- on 22.08.2011.
10.Point for consideration:
Whether the order passed by the learned Principal District Munsif, Tindivanam, allowing the E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 dated 10.08.2021 is to be set aside?
11.In the light of the rulings cited by the learned Counsel for the Revision Petitioner from the date of issuing of notice terminating the tenancy, the continuation of the tenant in possession is to be treated as trespass and not as tenancy. The learned Counsel for the Revision Petitioner contended that the tenant had cleverly instigated his legal heirs https://www.mhc.tn.gov.in/judis 13/20 C.R.P.No.2422 of 2021 to protract the proceedings as though he is not found. The contention of the legal heirs that the tenant was missing from 2010 cannot at all be accepted as the Civil Revision Petition filed by him was heard and disposed of by this Court on 08.09.2010. Without instructions from the tenant, who is the Revision Petitioner in C.R.P.No.1271 of 2010, the learned Counsel for the Revision Petitioner in C.R.P.No.1271 of 2010 could not have proceeded with the arguments. Therefore, this Court has to draw the presumption that the Revision Petitioner himself was available and not missing as claimed by his legal heirs who had filed Petition stating that the tenant is missing from 2010.
12.The tenant had received notice on 06.10.2010. Execution Petition notice was also received on 09.03.2011. Therefore, he seeks to allow this Civil Revision Petition and direct the Respondents to pay or deposit the balance of arrears of rent as per the order passed by the learned Judge in C.R.P.No.1271 of 2010 dated 08.09.2010, subsequently modified on 26.07.2021.
13.The tenant had filed the suit in O.S.No.4 of 2013 for specific https://www.mhc.tn.gov.in/judis 14/20 C.R.P.No.2422 of 2021 performance. After contesting the suit, the suit was decreed. Against the judgment and decree passed by the learned Principal District Munsif, Tindivanam, the landlord, who is the Defendant in the suit in O.S.No.4 of 2013 had filed A.S.No.533 of 2006 before the High Court and the Appeal was allowed on 09.12.2016. While the Appeal was pending, the legal heirs of the tenant had filed Petition in M.P.No.1 of 2015 in A.S.No.533 of 2006, seeking to implead themselves as Respondents in A.S.No.533 of 2006, claiming that the tenant, who is the Respondent in the Appeal, was missing from 2010. This Court had rejected the said Petition on 03.09.2015, filed by the wife and children of Dhanasekaran, as though Dhanasekaran was missing. In the said judgment in the Appeal in A.S.No.533 of 2006, this Court had directed the learned Principal District Munsif, Tindivanam, to dispose of the R.C.O.P.No.5 of 2002 on or before 30.04.2017. Based on the order passed by the High Court R.C.O.P.No.5 of 2002 was disposed of. The landlord had filed E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 and the legal heirs of the tenant had filed E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002, seeking to implead themselves as legal heirs of the tenant by name Dhanasekaran, suppressing the fact that a similar Petition was dismissed by the High Court in https://www.mhc.tn.gov.in/judis 15/20 C.R.P.No.2422 of 2021 M.P.No.1 of 2015 in A.S.No.533 of 2006.
14.In the light of the submission made by the learned Counsel for the Revision Petitioner and the order passed by the learned Principal District Munsif, Tindivanam, allowing the E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 filed by the wife and children of the tenant Dhanasekaran, who is the Respondent in R.C.O.P.No.5 of 2002 to implead themselves as party Respondents in the place of Dhanasekaran Respondent by order dated 10.08.2021 is found to be against the order passed by the High Court rejecting the contention of the Petitioners therein in M.P.No.1 of 2015 in A.S.No.533 of 2006.
15.The Court can draw adverse interference from the conduct of the tenant Dhanasekaran and his family members that only to delay the execution proceedings E.A.No.30 of 2018 is filed. The Court can draw adverse inference from the conduct of the learned Counsel for the Respondent that he is reporting 'no instructions' for the Respondents. The Court has to necessarily draw adverse interference from the facts of this case, as the very same High Court had rejected a similar Petition in https://www.mhc.tn.gov.in/judis 16/20 C.R.P.No.2422 of 2021 M.P.No.1 of 2015 in A.S.No.533 of 2006. Since the tenant Dhanasekaran himself had filed C.R.P.No.1271 of 2010, which was disposed of by this Court, the Court has to necessarily draw a presumption against Dhanasekaran that without his instructions, the C.R.P.No.1271 of 2010 could not have been prosecuted by the learned Counsel. Therefore, under those circumstances, only the learned Counsel for the Respondents had reported 'no instructions' for the Respondents. Therefore, the submission of the learned Counsel for the Revision Petitioner is found acceptable and reasonable.
16.In the light of the rulings cited by the learned Counsel for the Revision Petitioner in the cases of (i) Chaube Madho Rao Vs. Chaube Gur Narain reported in AIR 1931 All 306, (ii) Sm.Sudhamoyee Basu and Anr. Vs. Bhujendra Nath Biswas and Ors, reported in AIR 1935 Cal 713,
(iii) Haji Abdullah Sait Vs. K.Sanjeevi Rao and Others reported in 1979 SCC Online Mad 25, (iv) M.M.Bilaney & Anr. Vs. Fali Rustomji Kumana [Appeal (Civil) No.5162 of 2002, dated 27.09.2005] and (v) Atma Ram Properties (P) Ltd Vs. Federal Motors Pvt. Ltd., [Appeal (civil) No.7988 of 2004, dated 10.12.2004], the order passed by the learned https://www.mhc.tn.gov.in/judis 17/20 C.R.P.No.2422 of 2021 Principal District Munsif, Tindivanam, allowing E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 dated 10.08.2021 is found to be against the order passed by this Court in dismissing M.P.No.1 of 2015 in A.S.No.533 of 2006. Where the same prayer of the Petitioner in E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 was rejected by the High Court. Therefore, the order passed by the learned Principal District Munsif, Tindivanam, stating that the notice sent in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 to the Respondent tenant was returned stating that the said Dhanasekaran is not found in the address, therefore, for complete adjudication of the Execution Petition he has impleaded the legal representatives of Dhanasekaran tenant to dispose of the Execution Petition is found unacceptable. Considering the fact that the Decree Holder in R.C.O.P.No.5 of 2002 had vehemently objected to the filing of E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002. Therefore, the order passed by the learned Principal District Munsif, Tindivanam, allowing E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 dated 10.08.2021 is set aside.
17.The point for consideration is answered in favour of the Revision Petitioner and against the Respondents. The order passed by the learned https://www.mhc.tn.gov.in/judis 18/20 C.R.P.No.2422 of 2021 Principal District Munsif, Tindivanam, allowing the E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 dated 10.08.2021 is to be set aside.
18.In the result, this Civil Revision Petition is allowed. The order passed by the learned Principal District Munsif, Tindivanam, allowing E.A.No.30 of 2018 in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 is set aside. E.A.No.30 of 2018 stands dismissed and the learned Principal District Munsif, Tindivanam, is directed to pass appropriate orders in E.P.No.79 of 2017 in R.C.O.P.No.5 of 2002 within the period of one month from the date of receipt of a copy of this order. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
01.09.2023 cda Index : Yes/No Speaking/Non-speaking order Neutral Citation : Yes/No SATHI KUMAR SUKUMARA KURUP, J., https://www.mhc.tn.gov.in/judis 19/20 C.R.P.No.2422 of 2021 cda To The Principal District Munsif Court, Tindivanam.
Order made in C.R.P.No.2422 of 2021 01.09.2023 https://www.mhc.tn.gov.in/judis 20/20