Madras High Court
M.Rukiya Bi vs P.Karnan on 13 September, 2010
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD.No.3050 & 3051 of 2010 and M.P.Nos. 1 + 1 of 2010 M.Rukiya Bi ... Petitioner Vs. P.Karnan ... Respondent PRAYER in C.R.P.N.P.D.No.3050 of 2010: This revision petition has been filed against the judgment and decree passed in R.C.A.No.503 of 2009 dated 12.07.2010 by the learned VII Judge, Court of Small Causes at Chennai, (Rent Control Appellate Authority), confirming the fair and decreetal order dated 21.10.2009 passed in M.P.No.392 of 2009 in R.C.O.P.No.233 of 2008, by the learned XIII Judge, Court of Small Causes At Chennai(Rent Controller). PRAYER in C.R.P.N.P.D.No.3051 of 2010: This revision petition has been filed to allow and to set aside the judgment and decree passed in R.C.A.No.504 of 2009 dated 12.07.2010 by the learned VII Judge, Court of Small Causes at Chennai, (Rent Control Appellate Authority), confirming the fair and decreetal order dated 21.10.2009 passed in E.A.No.101 of 2009 in E.P.No.137 of 2009 in R.C.O.P.No.233 of 2008, by the learned XIII Judge, Court of Small Causes At Chennai(Rent Controller). For Petitioner : Mr.Ashok Menon For Respondent : Mr.K.Kannan O R D E R
C.R.P.No.3050 of 2010 : This revision has been preferred by the petitioner against the dismissal order passed by the Rent Control Appellate Authority made in R.C.A.No.503 of 2009, which was an appeal preferred by the revision petitioner against the order passed in M.P.No.392 of 2009 in R.C.O.P.No.233 of 2008 by the learned Rent Controller to set aside the exparte order.
2.C.R.P.No.3051 of 2010 : This is a revision petition filed by the revision petitioner against the dismissal order passed by the learned Rent Control Appellate Authority passed in R.C.A.No.504 of 2009, which was an appeal filed by the revision petitioner, against the order passed by the execution Court in E.A.No.101 of 2009 in E.P.No.137 of 2009 in R.C.O.P.No.233 of 2008, an application for restitution and re-delivery of the demised property.
3. The revision petitioner in both the revisions are the same person, who obtained possession of the demised property in E.P.No.137 of 2009 upon an exparte order of eviction made in R.C.O.P.No.233 of 2008. The respondent is the tenant who suffered exparte order in R.C.O.P.No.233 of 2008, and is seeking for the re-delivery of the property upon, setting aside the exparte order passed against him. For convenient sake, the rank of parties in the revision are being used infra in this order.
4. Heard Mr.Ashokmenon, the learned counsel for revision petitioner / land lady and Mr.K.Kannan, the learned counsel for the respondent(respondent/tenant).
5. The learned counsel for the petitioner would submit in his argument that the lower Court (i.e) Rent Control Appellate Authority as well as the learned Rent Controller-cum-execution Court have grossly erred in coming to the conclusion that the respondent was entitled to re-delivery of possession of the property, after setting aside the order of exparte eviction passed in R.C.O.P.No.233 of 2008. He would further submit in his argument that the respondent was deemed to have been served in the rent control petition, since it was taken through post to the address mentioned in Door No.21, Ramanujar Street, Old Washermenpet, Chennai-21, and the said notice was also returned as un-claimed even after intimation delivered and it could be seen from the endorsement of the post man and thereafter, due publication was effected as per the order of the Court and service against the petitioner herein was presumed to be complete under Section 27 of General Classes Act. He would further submit that the said fact was not properly understood by both the Courts below. He would rely upon the proposition of law enumerated by the Hon'ble Apex Court in its judgment reported in 2005(4) CTC 30 in between P.T.Thomas v. Thomas Job. He would also rely upon yet another judgment of Hon'ble Apex Court reported in AIR 1999 SC 3762 in between K.Baskaran v. Sankaran Vaidyanathan Balan for the similar view. He would also submit in his argument that if the said notice was deemed to have been served against the respondent in the R.C.O.P., it could be presumed that the respondent was served with notice on that day itself and the application to set aside the exparte order cannot be filed on the basis of date of knowledge of the said exparte order. He would draw the attention to a judgment of this Court made in 1997 1 MLJ 474 in between Gomathi Ammal v. Madhu sudhan Nair and another in support of his argument. He would also cite a judgment of Hon'ble Apex Court reported in 2008 2 CTC 686 in between Sunil Poddar and others v. Union of india, for the same principle. He would further submit in his argument that the notice in the R.C.O.P., was issued to the admitted address namely, Door No.21, Ramanujar Street, Old Washermenpet, Chennai-21 as stated in the agreement of lease entered in between both parties dated 13.02.2002. He would also submit in his argument that if really the respondent was not living in the same address on lease agreement entered into between both parties, he would have stated the same address in the agreement of lease for the demised premises dated 13.02.2002. He would also submit in his argument that the various other documents produced by the respondent, before the lower Courts have stated that he has been residing in the demised premises since he did not produce the ration card, which is a conclusive proof of residence. He would further submit that both the lower Courts have erred in holding that the service of summons have not been properly served in the R.C.O.P, as well as in the execution proceedings, as the respondent was residing in the demised premises only is not legally correct. He would further submit in his argument that the orders passed by the lower Courts, holding that the notice of R.C.O.P., and the execution petitions are not deemed to be good service are not sustainable and the alleged fraud pleaded by the respondent, before both the Courts, have not been established but the lower Courts have concurrently come to a conclusion that the notice has not been served upon the respondents and the circumstances of the fraud has been established are not correct. He would therefore, seek the indulgence of this Court to set aside the orders passed by both the Courts below and consequently to dismiss the application, filed by the respondent to set aside the exparte order and also the application for restitution of possession by ordering re-delivery in the execution Court. Therefore, he would further request that both the revision petitions may be allowed.
6. The learned counsel for the respondent/tenant would submit in his argument that the petitioner has wantonly given the address in the R.C.O.P., as well as in the execution petition filed on the exparte order of eviction with intend to play fraud upon the Court to get an exparte order of eviction against the respondent in the eviction petition as well as in the execution petition. He would further submit in his argument that the circumstances and the documents produced would establish the fraudulent activities of the petitioner before both the Rent Controller, while filing the petition for eviction in R.C.O.P.No.233 of 2008 and before the executing Court in filing execution for delivery in E.P.No.137 of 2009 in R.C.O.P.No.233 of 2008, on the basis of the exparte order dated 07.03.2009. He would further submit that the said exparte order of eviction was not known to him till 04.08.2009, when the respondent was evicted by the Court bailiff on the foot of yet another exparte order passed against him in E.P.No.137 of 2009 dated 24.07.2009. He would further submit that the exparte order passed in the E.P., on 24.07.2009 were also passed on the basis of the notice said to have been issued to the former address namely, No.21, Ramanujar Street, Old Washermenpet, Chennai-21 and the return of the post with an endorsement as "no such person" and also on the basis of affixture pasted on the Court notice Board, and the said address and also through publication mentioning the aforesaid address and on such publication through "Makkal Kural" effected for the hearing date 21.07.2009. He would further submit in his argument that the judgments of Hon'ble Apex Court and this Court, cited by the learned counsel for the petitioner are not disputed, provided the respondent was found living in the said address namely, No.21, Ramanujar Street, Old Washermenpet, Chennai-21, but he was living in the demised premises only. He would further submit that he has produced various documents including the passport and the residential gas connection apart from other documents to show that he was living only in the demised premises, the petitioner has wantonly took notice to the former address, while he was entering the lease agreement with the petitioner for the demised premises. He would further submit in his argument that in an earlier occasion, the petitioner was taking steps to evict the respondent unlawfully for that he has filed a suit on the file of City Civil Court, Chennai, in O.S.No.5523 of 2002, for permanent injunction against the petitioner not to interfere with his possession except under due process of law and the said suit was decreed on 16.08.2005, after a serious contest made by the petitioner and he has not filed any appeal against the said judgment and decree passed against him and it became final. He would further submit that he has issued a lawyer notice prior to the filing of the said suit and also gave a complaint to K1 Sembium Police Station, Perambur, Chennai-11, against the petitioner and in all the said proceedings, he has mentioned the residential address of the respondent as Door No.4/101/1, Venus Marker street, Sembium, Chennai-11 and it is very well known to the petitioner and she had avoided to take notice in the R.C.O.P. and in the execution proceedings to the said address and it would be enough that she had wantonly, suppress the address and has resorted to the former address so as to get an exparte order against the respondent with a sinister idea of evicting him with the order of the Court by playing fraud upon the Court. He would further submit in his argument that the endorsement of postal department, as well as the endorsement of return of the amin in the notice sent through Court will not be helpful to the petitioner, since the respondent was not residing in the said address, after the lease was entered and taken up by the respondent with the petitioner, for his residential purpose. He would also submit that the documents would clinchingly prove that the respondent was living in the demised premises, on the foot of the lease agreement, which was admitted by the petitioner in the proceedings, in O.S.No.5523 of 2002. He would also submit that it was also referred to by the said Court in its judgment passed in O.S.No.5523 of 2002 so, the petitioner has been estopped from contending that the respondent was living in Door No.21, Ramanujar Street, Old Washermenpet, Chennai-21. He would further submit in his arguments that the respondent has established that he was living only in the demised premises on the basis of a lease agreement with the petitioner and was not living in Door No.21, Ramanujar Street, Old Washermenpet, Chennai-21 and therefore, the date of knowledge of the passing of the exparte order, on 04.08.2009 could only, be the starting point of limitation, as per Rule 12 of Tamil Nadu Buildings Lease and Rent Control Act. He would also submit that the learned Rent Controller and the lower executing Court and the Rent Control Appellate Authority have correctly come to a conclusion regarding the facts and also applied the law perfectly and had come to a conclusion to set aside the exparte order passed against the respondent and the learned Rent Control Appellate Authority had also confirm the said order of the Rent Controller and therefore, the said orders need not be interfered nor be set aside. Therefore, he would request the Court to dismiss both the revision petitions accordingly.
7. I have given anxious thoughts to the arguments advanced by both sides. These revisions are fixed by stating that the Rent Control Appellate Authority as well as the Rent Controller cum Execution Court have miserably failed to follow the principles of law and in appreciation of facts, in their orders and therefore, this Court has to interfere in the said orders and to set them aside. According to the submissions of the petitioner, the service of notice against the respondent in the R.C.O.P.No.233 of 2008 was correctly held as sufficient service since the notice sent through post to the said address of the respondent in Door No.21, Ramanujar Street, Old Washermenpet, Chennai-21, was returned with an endorsement "intimation delivered" "not claimed" and the endorsement of Court notice through amin was to the effect that there was no proper information regarding the respondent and the petitioner did not identify the respondent and therefore, it could not be served and therefore returned. Similarly, the service of notice in execution proceedings was also addressed to the same address and the endorsement of bailiff would be that no such person and therefore, it was returned to Court and on that basis, publication and affixture were ordered for the hearing 21.07.2009 and after the performance of substituted service, an exparte order of delivery was ordered on 24.07.2009. It was argued by the petitioner's counsel that in the light of the judgment of Hon'ble Apex Court and this Court, the Courts need not set aside the exparte order passed against such persons. The judgment of Hon'ble Apex Court reported in (2008) 2 CTC 686 in between Sunil Poddar and others Vs. Union Bank of India laid down as follows:-
Para.19:
"It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order 5 of the Code, but whether (i) he had notice of the date of hearing of claim of the Suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code. Since the said provision applies to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the Plaintiff-Bank and on that ground, ex parte order deserves to be set aside."
8. Similarly, the judgment of Hon'ble Apex Court reported in (2005) 4 CTC 30 in between P.T.Thomas and Thomas Job would lay the principle as follows:-
Para.15:
"The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of High Court on this issue is not correct and in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act, operates apart from that under the Post Office Act."
The aforesaid principles would guide us that the unclaimed postal notice when intimation was delivered could make the Court to presume that the service of notice is sufficient under clause 27 of General Clause Act.
9. The aforesaid principle was also laid down by the Hon'ble Apex Court in its judgment reported in AIR 1999 (SC) 3762 in between K.Bhaskaran Vs. Sankaran Vaidhyan Balan and another which would run as follows:
Para. 25:
"Thus when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (d) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption."
10. Therefore, in a case where a postal notice were returned as unclaimed when the intimation was served upon the noticee (the person upon whom the notice was intended to be served), it could be presumed that the service was complete as against the said person. As far as this case is concerned, it has been categorically denied by the respondent that he was not residing in the said address to which notice was taken but it has been fraudulently taken by the petitioner to the said address in order to get an exparte order of eviction. Therefore, we have to see whether the applicability of the said principles of law could be made in this case. That would be possible, if it is made out by the petitioner that the respondent was residing in the said address to which he had taken notice. For that, he is strongly relying upon the agreement dated 13.02.2002, to which both parties have entered into a rental agreement regarding the demised premises. However, it is a case of the respondent that he has entered into a lease agreement with the petitioner for residence in yet another portion of the ground floor of the same address belonging to the petitioner and was residing in that place only. For that, he has produced the passport, the gas connection in respect of the said residence and other documents. The said lease agreement has admitted been produced in a suit had in between both parties filed in O.S.No.5523 of 2002, in which, judgment has been pronounced on 16.08.2005. In the said judgment, it has been found that there was a lease agreement in between parties for residence in the said property. Therefore, the said judgment would bind upon the petitioner also. The lawyer notice issued on 11.09.2002, and the plaint filed in O.S.No.5523 of 2002 and a complaint given by the respondent against the petitioner on 12.09.2002, would go a long way to show that the respondent was living only in a portion of the demised property namely, No.4/101/1, Venus Market Street, Sembiam, Chennai 600 011, and it was the residential address of the respondent. Therefore, it is quite correct to accept that the address of the respondent was only at No.4/101/1, Venus Market Street, Sembiam, Chennai 600 011, and not at No.21, Ramanujar Street, Old Washermenpet, Chennai 600 021. If really the respondent was living in No.21, Ramanujar Street, Old Washermenpet, Chennai 600 021, he would not have waited all along for an order of eviction been passed and also for an order of delivery in the execution petition filed by the petitioner when respondent was doing business as well as residing in the said premises. Therefore, the notice taken by the petitioner in the RCOP as well as in the execution petition to a wrong address namely No.21, Ramanujar Street, Old Washermenpet, Chennai 600 021, will not be a correct one and the notice returned with unclaimed when intimation was stated to have been delivered cannot be a good service against the respondent. Therefore, the judgments of the Hon'ble Apex Court as well as this Court are not applicable to the present facts of this case since the address was not correctly referred and it was evaded by the addressee from service. In this case, the address itself has been wrongly mentioned by the petitioner. Both the Courts below have come to a conclusion of such facts and as passed suitable orders. Therefore, this Court in the revision jurisdiction cannot interfere with the finding of the facts by the lower Courts. Since the said finding cannot be interfered by this Court, the further finding to the effect that there was no proper service on the respondent, cannot also be interfered. Further, the application has been filed by the respondent for setting aside the ex-parte order within the rules of Tamil Nadu Buildings Lease and Rent Control Act. Therefore, the application to set aside the ex-parte order from the date of knowledge namely 04.08.2008 is well within time. The facts and circumstances of the case established through documentary evidence would go to show that some ulterior motive and intention have been established against the petitioner for furnishing the wrong address of the respondent in order to get him ex-parte in the rent control proceedings as well as in the execution proceedings. The petitioner could have asked the Court to issue notice to the correct address namely, No.4/101/1, Venus Market Street, Sembiam, Chennai 600 011, even, if otherwise the address taken by the petitioner to No.21, Ramanujar Street, Old Washermenpet, Chennai 600 021, is deemed to be a correct address, when the respondent himself is also in possession of the demised property at the relevant point of time. That was not done by the petitioner. Therefore, it has been clinchingly shown to the Court that there is no merit in the revision petition and therefore, there is no necessity for this Court to interfere with the discretion reached and the orders passed by the Courts below and accordingly, they are not liable to be interfered or set aside. Therefore, both the revisions are liable to be dismissed. Accordingly, both the revisions are dismissed with costs. Consequently, connected miscellaneous petitions are closed.
ssn To
1.The VII Judge, Small Causes Court, Chennai,
2. The XIII Judge, Small Causes Court, Chennai