Madras High Court
S. Viswanathan vs Sri Muruga Agencies And Two Ors. on 9 August, 2001
ORDER
1. Both the revision petitions are directed against the judgment in O.S. No. 280 of 2000 on the file of the District Munsif, Udumalpet and the order in I.A. No. 1776 of 2000 in O.S. No. 280 of 2000. The first defendant in the suit is the revision petitioner in both the revisions.
2. The said revision petitions have been filed under Article 227 of the Constitution of India contending that the proceedings before the Court below are frivolous, vexatious and clear abuse of process of law and therefore, to set aside the order passed in I. A. No. 1770 of 2000 and to strike off the plaint in O.S. No. 280 of 2000.
3. For convenience the parties are described as plaintiff and defendants.
4. The plaintiff, the first respondent herein, filed the suit in O.S. No. 280 of 2000 praying for a permanent injunction restraining the first defendant from evicting the plaintiff from the suit premises in pursuance of an order of eviction in R.C.O.P. No. 6 of 1992, and E.P. No. 32 of 1999 on the file of the same Court for a permanent injunction against the first defendant not to interfere with the running of the Petrol bunk until they are lawfully evicted from the suit property. The plaintiff contended that the property belongs to the first defendant and was leased out to Sri Muruga Agencies of which defendants 2 and 3 were the earlier partners. Later, the partnership was reconstituted on 11.6.1992 underwhich the third respondent retired from the partnership and the present plaintiff was taken as a partner. Thereafter by a further reconstitution on 31.3.1993, the second defendant also retired and Smt. Amirtha wife of the plaintiff was taken as a partner. Therefore, according to the plaintiff, Sri Muruga Agencies is a partnership firm and the said Agency is the tenant of which the plaintiff and his wife alone are partners. Defendants 2 and 3 are no more partners having given up their rights. Sri Muruga Agencies had also been registered on 21.8.2000 and the two partners as per the reconstituted partnership are running the Petrol bunk. The plaintiff was paying the Municipal tax and also paying electricity charges and telephone charges. The rent to the premises was paid till 5.7.1996 and thereafter since the first defendant refused to receive the rent, it could not be paid. The first defendant is also aware of the fact of the reconstitution of the petitioner firm. The plaintiff further states that the first defendant claiming that defendants 2 and 3 as the tenants of the property seems to have filed R.C.O.P. No. 6 of 1992 and had obtained an order of eviction. Such an order of eviction was obtained in collusion with defendants 2 and 3, by all of them suppressing the fact of reconstitution of the partnership. None of the facts relating to the eviction proceedings were brought to the notice of the plaintiff and it appears that defendants 2 and 3 have submitted to the proceedings. The plaintiff is therefore, not bound by the eviction order. The proceedings before the Rent Controller has been obtained by collusion and fraud and therefore, the petitioner cannot be evicted from the premises. The first defendant had accepted the rents from the plaintiff as a tenant and therefore, estopped from disputing the status of the plaintiff as the tenant. It was only on receipt of the telegram from the Hindustan Petroleum Corporation, dated 23.8.2000 in E.P. No. 32 of 1999, the plaintiff came to know all the proceedings. He therefore, approached the first defendant. However, the first defendant stated that he definitely take possession pursuant to the Rent Control proceedings. The plaintiff had invested huge amounts to the extent of Rs. 15 lakhs and there are outstanding dues of more than Rs. 7 lakhs from the customers who have obtained diesel and petrol on credit. The first defendant cannot evict the plaintiff with the order of eviction obtained against defendants 2 and 3. Hence, the suit.
5. In the interim application, the Court below granted interim injunction restraining the respondents by order dated 11.9.2000 and subsequently the interim order has been extended for filing counter, it is at this stage the first defendant had approached this Court with the above two revisions with the prayer as aforesaid.
6. Mr. K. Alagiriswamy, Senior Counsel for the petitioner first defendant, contends that the R.C.O.P. was filed by the first defendant for demolition and reconstruction, owner's occupation and sub letting. The Rent Controller allowed the petition and the appeal filed before the Appellate Authority was dismissed for default. With the dismissal of the Rent Control Appeal, the order of the Rent Controller became final and executable. Learned counsel further states that the lease was only to the two individuals and not to the partnership. A perusal of the partnership deed would show that the lease was in favour of two individuals namely, Rangasamy and Padmavathy. It was only incidentally mentioned that the lease was for the purpose of the said two individuals to run a Petrol bunk under the name and style of Sri Muruga Agencies. The lease was for 10 years. Reference is also made to the Commissioner's report to substantiate the knowledge on the part of the respondent about the proceedings. Learned Senior Counsel also commented upon the filing of the original of the reconstitution on deed in the Rent Control Proceedings transferring the rights to R.V. Ramasamy. This was filed by the tenants themselves in the Rent Control proceedings. But in the suit only a xerox copy was filed. He would submit that the entire sequence of events would show collusion between the tenants and the present plaintiff and the plaintiff was fully aware of the various stages of eviction petition. Now after the eviction order had become final and binding, the plaintiff had come forward with the present suit which is nothing but abuse of process of Court.
7. It is further stated that the most important fact is the non payment of rent by the plaintiff from July, 1996 till date which exposes utter lack of bona fides on the part of the plaintiff.
8. Learned Senior Counsel refers to the judgment of this Court in Vasudevan, B. v Ibrahim and Ors., 1998 (1) L.W. 630. Reference is made to the observation that the suit having been filed with false allegations and suppressing vital materials, the plaintiff had played a fraud on Court and therefore, by invoking the powers under Article 227 of the Constitution of India, the suit was liable to be struck off.
9. Further reference is made to another judgment of this Court in Chenchu Ramiah, v. A.M. Noohu Nachia and Anr., 1999 (1) L.W. 37, in which this Court held that when the action of a party to the litigation was found to be aimed that collateral purpose and spurious claims, the High Court had duty to restore the person so affected to his original position. Reference was also made to my judgment in Ganesa Raja and 79 Ors. v. The Tirunelveli City Municipal Corporation Council and Anr., 2000 WLR 843, in which I have held that the conduct of the parties approaching different Courts for the same cause of action would amount to abuse of process of Court and even Contempt of Court.
10. Mr. Mohanram, appearing for the respondent plaintiff, however, contends that the plaintiff was not aware of the proceedings till he got notice in the Execution Proceedings. The manner in which the decree had been obtained by the defendant was clearly indicative of collusion between the defendant and his erstwhile tenants. If a sub-tenant is not impleaded as required under the Tamil Nadu Buildings (Lease and Rent Control) Act, it was open to the sub-tenant to file a suit. Ever since the plaintiff took over, the defendant was receiving the rent only from the plaintiff and suddenly stopped receiving the rent and therefore, the plaintiff cannot be blamed for the non-payment of rent. Nor can non-payment of rent be an excuse for executing a collusive decree. He would further submit that the fact that the rental receipts were not filed before the Rent Control Court was the proof of connivance of collusion. Learned counsel had also filed receipts from 5.4.1993 to 5.7.1996 in order to show that he has been paying rent to the defendant. Learned counsel also contended that the suit filed by the plaintiff was maintainable under Section 9, C.P.C. as it was not possible to approach the Rent Control Court. The present revision petition was not maintainable being against the order in I.A. in which no final orders have been passed. In support of his contention that a person in possession was entitled to protect his possession, if the eviction order had been obtained collusively against a person who is not a party to the decree, reliance was placed on the judgment of the learned single Judge of this Court in Parthasarathy Chetty v. Chitra Pillai, 1967 (1) M.L.J. 83 .
11. To the same effect is the judgment of the Supreme Court in K. Sanjeeva Rao v. Thangam Verceese, .
12. Reference was made to the judgment of a Division Bench of this Court in Nayagamma v. Plantain Merchants Association, 1968 (I) M.L.J. 386. Reliance was placed on the observation that the right of a sub tenant who was not made a party was sufficiently protected under Order 21, Rule 98 to 103, C.P.C.
13. In Champalal Jain and Ors. v. Superchand and Ors., 1997 (1) L.W. 144, S. Jagadeesan, J. held that if sub-tenants are not parties to the R.C.O.P., it was open to them to attack the order on ground of collusion and fraud.
14. In support of his contention that as against an ex parte order of interim injunction only an appeal can be filed or should approach the same Court which passes the order for any relief, reference is made to the judgment of the Supreme Court in Venkatasubbiah Naidu. A. v. B . Challappan, .
15. I have considered the submissions of both sides. There can be no quarrel over the proposition of law stressed by learned counsel for the respondent plaintiff that a sub-tenant though bound by the order of eviction against the chief tenant would be entitled to resist the eviction petition by separate suit if he is able to prove collusion and fraud between landlord and chief tenant. Having regard to the facts and circumstances, the following two issues would mainly arise for consideration:
(1) Whether the plaintiff/tenant had successfully established fraud or collusion against the defendant?
(2) Whether the suit in O.S. No. 280 of 2000 would amount to abuse of process of Court so as to enable this Court to interfere under Article 227 of the Constitution of India.
16. The basic facts necessary for considering the above questions are as follows:
On 8.10.1976 the lease deed was executed by the first defendant in favour of Rangasamy and his wife Padmavathy for a period 10 years. Even after the lapse of the period, they continued as tenants. On 11.6.1992 there was a reconstitution of the partnership namely, Padmavathy left the partnership and in her place R.V. Ramasamy (Plaintiff) became the partner. The plaintiff alleged that on 31.3.1993, Rangasamy also retired from the partnership replaced by the wife of the
17. Therefore, under normal circumstances, neither Rangasamy nor his wife Padmavathy could have had any interest over the tenancy after 31.3.1993. But the subsequent facts disclose that the petition for eviction was filed on 24.6.1992 by which time Ramasamy, the plaintiff has come into the picture of the management of the Petrol Bunk. The time factor is also important, namely, petition had been filed within the fortnight after the induction of the plaintiff. In the counter statement which was filed only on 23.7.1993, there is no whisper of the transfer of partnership. It is noteworthy that on 23.7.1993, both Rangasamy and Padmavathy are stated to have moved out of the partnership. In the additional counter filed during October, 1995 by Rangasamy, it is stated that the second respondent (Padmavathy) had assigned her right in favour of the plaintiff/Rangasamy, but the assignment was not yet approved and that there was no transfer or sub lease. Such stand is taken by Rangasamy in the year 1995 long after he is said to have quit the partnership on 31.3.1993 itself. This additional counter is filed more than 2 1/2 years later. It is therefore, understandable that the landlord was lulled into a belief that there is no sub-tenancy requiring him to implead the so called sub tenant. The facts thus disclose collusion only as between Rangasamy and the plaintiff and not as between Rangasamy and the landlord. In fact, the landlord had expressed his apprehension that the business appears to have been transferred in favour of Ramasamy, but since the said fact had not been brought to his notice, he has not recognised him as his tenant. Thereafter he has also sought for eviction on the additional grounds of unauthorised transfer of the lease hold interest. Rangasamy also files a counter on 19.7.1995 stating that there was no transfer of the business in favour of Ramasamy. On 17.10.1995 the landlord filed I.A. No. 233 of 1995 under Order 16, Rule 1, C.P.C. to summon the manager of Karur Vysya Bank and for the production of the documents relating to Sri Muruga Agencies, to substantiate that the lease hold right appears to have been transferred in favour of Ramasamy. This application is resisted by the chief tenant on the ground that the petition was frivolous and that Sri Muruga Agencies was not a party to the proceedings and that the landlord was not entitled to call for the accounts.
18. Thereafter an order of eviction is passed on 21.1.1997 upholding the allegation that the business had been transferred to the plaintiff without the knowledge or consent of the landlord. An appeal was filed before the Appellate Authority by Rangasamy and Padmavathy in R.C.A. No. 1 of 1997 which is ultimately dismissed for default on 14.2.1998.
19. In the background of these facts, the following questions arise for consideration:
(1) If Rangasamy and Padmavathy had already quit the partnership on 31.3.1993 and 11.5.1992 respectively, what was their interest in resisting the eviction petition which itself was filed only on 24.6.1992 and counter was filed on 23.7.1993, and thereafter filed the appeal also in 1997.
(2) They were resisting and denying the allegations of sub letting till the end of 1997 and would also strongly oppose the landlord calling for the accounts and oral evidence from Karur Vysya Bank to substantiate the landlord's allegation of transfer of the agencies in favour of Ramaswamy.
(3) They filed an appeal in 1997 long after-quitting the partner-ship and suddenly allowed the appeal to go for default in 1998.
Reasons for the conduct of the plaintiff and the said Rangasamy and Padmavathy are very obvious. The lease of the Petrol Bunk granted by the Hindustan Petroleum Corporation was only in favour of Rangasamy and Padmavathy as partners and for reasons not disclosed, no steps had been taken to transfer the Agency of the Corporation in favour of Ramasamy/plaintiff Probably there was also some financial obligations between the said parties and in finalising the transfer of assets in favour of Ramasamy. Therefore, for whatever reasons, they appear to have suppressed the fact of transfer of partnership in favour of Ramasamy to the Hindustan Petroleum Corporation. This is evident from the legal notice which was issued to the Corporation by the landlord informing that the Agency appears to have been transferred to a third party. It is therefore, irresistible to conclude that the Rent Control proceedings were actually conducted only by Ramasamy/plaintiff and that Rangasamy and Padmavathy only continued as only name lenders or the transfer of assets was not complete in spite of reconstitution. The anxiety on their part to resist even the application under Order 16, Rule 1, C.P.C. summoning the witnesses and records from Karur Vysya Bank and contending that the partnership had nothing to do with the tenancy betray collusion between the Rangasamy and Ramasamy. There is no evidence to come to the conclusion that there was any collusion between the landlord and Rangasamy. The most crucial feature is the Commissioner's report which is dated 9.2.1995 whereunder the presence of the parties and their counsel at the time of inspection on 20.11.1994, has been recorded. If the business had been completely transferred in favour of the plaintiff and his wife on 31.3.1993, there will be no question or possibility of Ramasami not knowing about the visit of the Commissioner on 20.11.1994. This will clearly establish that it was Ramasami who was conducting the Rent Control proceedings, the tenants being only name lenders. The only other possibility is that there was no effective transfer of partnership in favour of Ramaswami probably due to misunderstandings over transfer of assets. Otherwise there is no reason why the tenant should have taken pains and involved himself with the expenses of filing the Appeal. He need not have filed the appeal if he wanted to oblige the landlord.
20. One further distressing factor is that the plaintiff had not paid rents from July, 1996. It is pertinent to note that the present suit is filed only on 23.8.2000. The landlord refused to receive the rent from July, 1996 when he came to know of the sub- letting and the plaintiff (sub-tenant) would not condescend to take any steps to pay rent or to deposit the rent before the Rent Control Court for more than 4 years. There is not even any attempt on the part of the plaintiff to send a legal notice to the landlord under Section 8 of the Act. Yet the plaintiff would pretend as though and he wants the Court to believe that he was not aware of the proceedings taken by the landlord for eviction. The filing of the receipts by the plaintiff, has no significance since they are issued in the name of Muruga Agencies.
21. The further fact which is pointed out by learned senior counsel for the petitioner is that the original of the deed of reconstitution transferring the rights of the plaintiff, was filed by the tenants in the Rent Control proceedings and in the present suit by the transferee only xerox copy had been filed. The above facts clearly disclose a dismal and deliberate case of collusion between the chief tenant and the sub-tenant (plaintiff). The plaintiff had miserably failed to establish any collusion or fraud as against the landlord. All the above materials clearly establish collusion only as between the chief tenant and the plaintiff. Therefore, on the basis of the said finding it follows that the order of eviction would bind the plaintiff and the present suit filed by the plaintiff cannot be sustained. His claim that he was not aware of the Rent Control proceedings is a rank lie.
22. The next question is whether the facts, and circumstances warrant interference by this Court under Article 227 of the Constitution of India. It is true that the said power of interference must be exercised only in rare cases and I felt doubtful at the time of hearing the arguments. But after I went through the series of facts as mentioned above and the outrageous conduct on the part of the plaintiff in collusion with the tenants, I feel that if this Court declines to interfere even in a case of this type, the very administration of justice would be rendered a mockery. If parties are allowed to play hide and seek and hood-wink the process of law, people will lose faith in the Courts. If a legitimate relief and decree obtained are rendered only a piece of paper and cannot be executed and the law breaker is given a green signal to continue his high handed activity, it will badly reflect only ineffective administration of justice and result in loss of confidence in the Courts. Section 9, C.P.C. does not give liberty to parties who do not act bona fide and if the High Court does not interfere on the ground that the suit should go through its normal course. It will not be possible to execute any decree. It is all the more distressing to hear acquisition of collusion and fraud against the affected party and legalistic arguments to sustain such blatant illegal actions and clear abuse of process of Court.
23. In the result, both the revisions are allowed with exemplary costs of Rs. 10,000 of which Rs. 5,000 shall be paid to the Tamil Nadu Legal Services Authority. The plaint in O.S. No. 280 of 2000 on the file of the District Munsif Court, Udumalpet, will be struck off and the suit shall stand dismissed.