Madras High Court
Kamatchi vs Arulmigu Uchinimahali Amman Deity on 7 October, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.10.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP PD(MD).Nos.569 to 575 of 2019
and
CMP(MD)Nos.2861 and 6701 of 2019
1.Kamatchi
2.M.Anandha Devi
3.Karthick Shankar
4.Balakrishnan : Petitioners/Petitioners/
3rd Party/3rd Party (in all petitions)
Vs.
1.Arulmigu Uchinimahali Amman Deity,
Represented by its Executive Officer,
Sivan koil Street, Tuticorin. : 1st Respondent/1st Respondent
Petitioner/Plaintiff (in all petitions)
2.Durairaj : 2nd Respondent/2nd Respondent
Respondent/Defendant (in all petitions)
PRAYER in CRP PD(MD).No.569 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.164 of 2016 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court, Tuticorin.
https://www.mhc.tn.gov.in/judis/
1/18
PRAYER in CRP PD(MD).No.570 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.165 of 2016 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.571 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.166 of 2016 in E.A.No.216 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.572 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.137 of 2018 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.573 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.138 of 2018 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.574 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.139 of 2018 in E.A.No.216 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.575 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
https://www.mhc.tn.gov.in/judis/
2/18
dated 01.03.2019 made in E.A.No.140 of 2018 in E.A.No.216 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court, Tuticorin.
(in all petitions)
For Petitioners : Mr.G.Prabu Rajadurai,
for Mr.R.Maheswaran.
For Respondent : Mr. V.Chandra Sekar, for R.1.
: No Appearance, for R2.
COMMON ORDER
These Civil Revision Petitions are directed against the orders passed in E.A.Nos.164, 165, 166 of 2016 and 137, 138, 139 and 140 of 2018 in E.P.No.18 of 2009 in O.S.No.25 of 2003, dated 01.03.2019, on the file of the Sub Court, Tuticorin.
2.The revision petitioners are Third parties. The first respondent, who is the petitioner in E.P.No.18 of 2009 and the plaintiff in the suit, has filed the suit in O.S.No.25 of 2003 against the second respondent/defendant for eviction of the second respondent from the suit property and for recovery of arrears of rent and for damages for use and occupation of the suit property. The second respondent/defendant, after filing of the written statement, has remained ex-parte and hence, the Subordinate Judge, Tuticorin has passed an ex-parte decree, dated 18.01.2005, directing the second respondent/defendant to vacate the suit premises and hand over the vacant possession of the same to the first https://www.mhc.tn.gov.in/judis/ 3/18 respondent/plaintiff and granted other reliefs claimed by the first respondent/plaintiff.
3.It is not in dispute that the second respondent/defendant has filed an application for setting aside the ex-parte decree along with application under Section 5 of the Limitation Act to condone the delay in filing the petition for setting aside the ex-parte decree and that the trial Court, after enquiry, has dismissed the petition filed under Section 5 of the Limitation Act to condone the delay. Aggrieved by the order of dismissal, the second respondent has preferred a revision before this Court, that this Court has passed an order condoning the delay in filing the petition for setting aside the ex-parte decree by imposing costs and that the petition to set aside the ex-parte decree is pending.
4. Meanwhile, the first respondent/plaintiff has laid the execution petition in E.P.No.18 of 2009 for delivery. The Executing Court has also passed an order for delivery and when the steps were taken to take delivery of property, one Mathiyalagan, claiming himself to be the actual tenant of the suit property, has filed two applications, one in E.A.No.215 of 2012, seeking orders for granting stay of all further proceedings in E.P.No.18 of 2009 till the obstructions/resistance raised by him is removed and the other petition in E.A.No.216 of 2012, filed under Order 21 Rule 97 CPC, to declare that the https://www.mhc.tn.gov.in/judis/ 4/18 decree dated 18.01.2005 passed in O.S.No.25 of 2003 is null and void and not binding on him and to declare that the petitioner Mathiyalagan is a lawful tenant under the first respondent and to terminate the execution petition.
5.Pending Execution Petition, the said Mathiyalagan had died on 21.10.2015. It is not in dispute that since no steps were taken consequent to the death of the Mathiyalagan/petitioner, the Executing Court has dismissed the above said two applications in E.A.Nos.215 and 216 of 2012 vide order dated 15.06.2016. In the meanwhile, the revision petitioners, who are legal representatives of the deceased Mathiyalagan/petitioner have filed three petitions one in E.A.No.164 of 2016, to stay further proceedings in E.P.No. 18 of 2009 till the disposal of the petition in E.A.No.216 of 2012, and the other two petitions in E.A.Nos.165 and 166 of 2016, to restore the petition in E.A.No.215 of 2012 and E.A.No.216 of 2012, which were dismissed for default.
6.Subsequently, the revision petitioners have filed four more applications in E.A.Nos.137, 138, 139 and 140 of 2016, viz., two petitions for impleading the revision petitioners as legal representatives of the deceased Mathiyalagan and other two petitions for setting aside the abatement in E.A.No. 215 and 216 of 2012. The learned Subordinate Judge, after enquiry, has passed the impugned orders separately in all seven petitions on 01.03.2019, dismissing https://www.mhc.tn.gov.in/judis/ 5/18 all the petitions. Aggrieved by the said orders of dismissal, the petitioners have come forward with these present revisions.
7.At the very beginning, the learned counsel for the revision petitioners would submit that he is placing his arguments mainly with respect to the petitions and the revisions connected with E.A.No.216 of 2012 and the petition in E.A.No.215 of 2012 is only for stay of further proceedings and hence, the petitions and the revisions connected with E.A.No.215 of 2012 need not be gone into.
8.Before entering into further discussion, it is necessary to refer to the case of the petitioner in E.A.No.216 of 2012 and the defence /stand taken by the decree holder/plaintiff.
9.The case of the petitioner Mathiyalagan in E.A.No.216 of 2012 is that he is the actual and lawful tenant under the first respondent/plaintiff occupying the suit property; that he has been running the businesses, by names M/s.Kamatchi & Co and M/s. Kamatchi Industrial Services in the suit premises, that the petitioner is having records to show that he had been doing business in the suit premises, that the second respondent is a relative and was working as a Manager in M/s.Kamatchi & Co, that he came to know recently that the first https://www.mhc.tn.gov.in/judis/ 6/18 respondent has filed the suit against the second respondent collusively with an intention to deny his right in the property; that the first respondent/plaintiff and the second respondent/defendant have colluded together with the view to evict him from the suit premises behind his back and filed the suit fraudulently; that the petitioner/ Mathiyalagan was a former Dharmakartha of the suit temple; that there existed strong difference of opinion between the petitioner and other trustees of the temple and in order to wreak vengeance, the trustees in connivance with the Executive Officer, took the second respondent in their hands and filed the suit; that he has every right to implead himself in the proceedings and that therefore, the decree passed in O.S.No.25 of 2003, dated 18.01.2005 is to be declared as null and void and not binding on the petitioner Mathiyalagan and he is the lawful tenant and that the executing proceedings are to be terminated.
10.The defence of the first respondent/plaintiff is that the plaintiff's temple is under the control of the Tamil Nadu Hindu Religious and Charitable Endowment Department, that they have been issuing the receipts to all the lessees, that the petitioner's name does not find place in the lease records, that the petitioner Mathiyalagan himself was working as a trustee for the period between 1987 and 1990, 1992 and 1995, 2003 and 2006, that when the suit was decreed, the petitioner was the President of Board of Trustees and hence, his https://www.mhc.tn.gov.in/judis/ 7/18 contention that he does not know the above case, is incorrect, that the petitioner who was the then Trustee of the temple has no right to get any leasehold interest over the properties owned by the temple, that the second respondent alone is running a tea shop in the name and style of Sanjay Ayyankar Bakery, that the first respondent came to know that the petitioner was getting amounts from the second respondent, that though the suit was decreed on 18.01.2005, the second respondent in collusion with the petitioner have been dragging on the proceedings, that the petitioner while serving as a trustee had committed several irregularities, that when the Court Ameen was attempting to take possession of the property, the petitioner and her daughter had driven the Court Ameen out of the property and attempted to cause violence, that the petitions are also barred by time and that therefore, the original petitioner or the present petitioners are not entitled to get any of the reliefs claimed by them.
11.The petitioner Mathiyalagan, while challenging the execution proceedings, has claimed that he was the actual tenant of the suit property and there was a collusion between the first respondent/plaintiff and the second respondent/defendant. But the defence of the first respondent/plaintiff is that the petitioner Mathiyalagan in collusion with the second respondent/defendant has set up a fraudulent claim of tenancy and filed the petition under Order 21 Rule 97 CPC and that thereby, they have been dragging and protracting the proceedings.
https://www.mhc.tn.gov.in/judis/ 8/18
12.Moreover, the first respondent/plaintiff has also taken a stand that since the petitioner Mathiyalagan was working as a trustee in the plaintiff's temple, there was no chance or occasion for the petitioner to get the lease of the suit property.
13.Now, coming to the present revisions, the learned Subordinate Judge, out of 7 orders, now under challenge, has passed speaking orders only with respect to four petitions, viz., two common orders, one with respect to E.A.Nos. 137 and 138 of 2018 and the second one with respect to E.A.Nos.139 and 140 of 2018. In the impugned orders passed in E.A.Nos.139 and 140 of 2018, dated 01.03.2019, the learned Subordinate Judge by simply observing that the petitioner Mathiyalagan had died on 21.10.2015 and the petitions in E.P.No.215 and 216 of 2012 were ordered to be dismissed as legal representatives were not impleaded and that, they have not filed any petition under Order 21 Rule 106 CPC within 30 days for restoring those two petitions and as such, the above petitions are legally not maintainable, dismissed the petitions.
14.No doubt, as already pointed out, though the original petitioner Mathiyalagan had died on 21.10.2015, the revision petitioners have not taken any steps to get themselves impleaded and hence, the Executing Court has https://www.mhc.tn.gov.in/judis/ 9/18 dismissed the said two petitions in E.P.Nos215 and 216 of 2012 for default. It is pertinent to note that as per Order 22 Rule 12 of CPC, the Rules 3, 4 and 8 of Order 22 CPC are not applicable to the execution proceedings.
15.In the case on hand, the petitioner Mathiyalagan has filed a petition under Order 21 Rule 97 CPC. At this juncture, it is necessary to refer to the decision of Hon'ble Suprme Court in Sheo Prakash and another Vs. Vishnu and others [Special Leave to Appeal [Civil] No.11310 of 2007], dated 19.11.2007, wherein the Hon'ble Supreme Court has clearly observed that the proceedings under Order 21 Rule 97 CPC are treated to be as a suit for all intent and purport and hence, the provisions of Order 22 Rule 3 CPC shall apply to the proceedings initiated under Order 21 Rule 97 CPC.
16.It is settled law that the abatement of proceedings on passage of 90 days from the death of a party, is automatic. In the case on hand, as already pointed out, the petitioners have filed E.A.No.139 of 2018 for setting aside the abatement and E.A.No.140 of 2018 for impleading the legal representatives of the deceased petitioner and the above petitions came to be filed on 17.06.2016. As rightly contended by the learned counsel for the revision petitioners, since E.A.No.139 of 2018 has been filed the within 60 days from the date of abatement, the question of filing any petition under Section 5 of the Limitation https://www.mhc.tn.gov.in/judis/ 10/18 Act to condone the delay in filing the petition for setting aside the abatement or petition for impleading the legal representatives, does not arise.
17.As already pointed out, the learned Subordinate Judge has dismissed the said two petitions only on the ground that the petitioners have not filed any application under Order 21 Rule 106 CPC for restoring the petitions in E.P.No. 216 of 2012, which was dismissed for default. But, it is pertinent to mention that the revision petitioners have filed the petitions in E.A.No.165 of 2016 and E.A.No.166 of 2016 to restore the petitions in E.A.No.215 and 216 of 2012, which were dismissed for default. No doubt, they have filed the said petitions under Order 9 Rule 9 CPC.
18.As rightly contended by the learned counsel for the revision petitioners, in E.A.No.166 of 2016, they have claimed the relief of restoring the petition in E.A.No.216 of 2012, which was ordered to be dismissed for default on 15.06.2016. Previously, there was no provision under Order 21 CPC for restoring the execution petitions/applications, which was dismissed for default. It is necessary to refer Rules 105 and 106(1) of Order 21 CPC.
“105. Hearing of application.-
(1) The Court, before which an application under any of the foregoing rules of the Order is pending, may fix a day for the hearing of the application.
https://www.mhc.tn.gov.in/judis/ 11/18 (2) Where on the day fixed or any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the court may make an Order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the court does not appear, the court may hear the application ex parte and pass such Order as it thinks fit.
Explanation : An application referred to in sub-rule (1) includes a claim or objection made under rule 58.
106. Setting aside orders passed ex parte etc. (1) The applicant, against whom an Order is made under sub-rule (2) of the rule 105 or the opposite party against whom an Order is passed ex parte under sub-rule (3) of that rule or under sub- rule (1) of rule 23, may apply to the court to set aside the order and if he satisfied the court that there was sufficient cause for his non- appearance when the application was called on for hearing, the court shall set aside the order on such terms as to costs or otherwise as it thinks fit and shall appoint a day for the further hearing of the application.”
19.Considering the above, it is very much clear that the dismissal of the execution petition/application comes under Order 21 Rule 105(2) CPC and the restoration of execution petition/application can be done under Order 21 Rule 106(1) CPC.
https://www.mhc.tn.gov.in/judis/ 12/18
20.Admittedly, as rightly observed by the Executing Court, the revision petitioners have not filed any application under Rule 106(1) of Order 21 CPC, but they have filed the petition under Order 9 Rule 9 CPC. It is settled law that mere quoting of wrong provision of law does not disentitle the applicant to proceed with the application and to get the relief claimed and that the same does not debar or prevent the Court from granting the relief sought for. But the learned Subordinate Judge, without considering the pendency of the applications, which were filed only to restore the petitions in E.A.Nos.215 and 216 of 2012, has simply dismissed the petitions in E.A.Nos.137, 138, 139 and 140 of 2016, without assigning any other reasons.
21.Considering the above, this Court has no hesitation to hold that the impugned orders dismissing the petitions in E.A.Nos.137, 138, 139 and 140 of 2016 are not good in law and the same are liable to be set aside. In E.A.No.166 of 2016, the learned Subordinate Judge has observed that since the petitions in E.A.Nos.137, 138, 139 and 140 of 2016 were dismissed, E.A.Nos.166 of 2016 was also ordered to be dismissed consequently. The learned Subordinate Judge has not passed any speaking order, but dismissed the said application as a consequential order for the dismissal of the petition in E.A.Nos.139 and 140 of 2016 and as such, the impugned order passed in E.A.No.166 of 2016 is also liable to be set aside.
https://www.mhc.tn.gov.in/judis/ 13/18
22.It is pertinent to mention that the first respondent/plaintiff has filed the suit in the year 2003 and obtained a decree on 18.01.2005. Though the execution was laid in the year 2009 and delivery was ordered in the month of July 2012, the first respondent is still unable to get the possession of the suit property.
23.The Hon'ble Supreme Court in Rahul S. Shah Vs.Jinendra Kumar Gandhi and others reported in 2021 SCC Online SC 3411, has directed the Executing Courts to dispose of the execution petitions within a period of six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
24.In the case on hand, the present execution petition is pending for the past 12 years and the execution application filed under Order 21 Rule 97 CPC is pending for the past 5 years.
25.It is very shocking and disturbing to note that though orders were reserved on 15.09.2016, in E.A.No.166 of 2016, the petition was adjourned again and again for 16 times till 15.03.2017 for orders, and thereafter, it was adjourned for clarification for 37 times till 12.06.2018. Thereafter, the petition https://www.mhc.tn.gov.in/judis/ 14/18 was adjourned for the reason that the petitions in E.A.Nos.139 and 140 of 2016 were pending. Even in E.A.Nos.139 and 140 of 2016, though the orders were reserved on 09.08.2108, the petitions were adjourned again and again under the caption for orders and thereafter, for clarification till 01.03.2019.
26.Order 20 CPC mandates that the judgment is to be pronounced within 30 days from the date on which, the hearing of the case was concluded and in case of exceptional or extraordinary circumstances, the Court shall fix a future date which cannot be ordinarily be a day beyond 60 days from the date on which, the hearing of the case was concluded. As per Order 20 Rule 1 CPC, the maximum time limit for pronouncing a judgment is 60 days. Though there is no specific time limit for pronouncement of orders, it must be within some reasonable limits, but at any rate, it should not exceed the period of 60 days as contemplated under Order 20 CPC. But in the case on hand, as already pointed out, the learned Subordinate Judge has adjourned the matter under the caption 'For Orders' for several hearings and thereafter, under the caption 'For Clarification', for several hearings, running for several months and such practice deserves to be deprecated.
27.Even after taking so much of time, he has not chosen to pass any reasoned orders. On considering the entire facts and circumstances, this Court is https://www.mhc.tn.gov.in/judis/ 15/18 of the view that the Civil Revision petitions in connections with E.A.Nos.216 of 2012 are to be allowed, but at the same time, considering the conduct of the revision petitioners, this Court is of the view that the petitioners must be mulcted with costs and that the Executing Court is to be directed to conduct enquiry in E.A.No.216 of 2016 filed under Order 21 Rule 97 CPC and dispose of the same within a time frame to be fixed by this Court.
28.As already pointed out by the learned counsel for the revision petitioners, the other four revisions are with respect to the petition in E.A.No. 215 of 2012 and since the said petition in E.A.No.215 of 2012 is only for stay of further proceedings, there is nothing for adjudication and hence, no orders need be passed and as such, the revision petitions in CRP(PD)(MD)No. 569, 570, 572 and 573 of 2019 are liable to be dismissed.
29. In the result, CRP(PD)(MD)Nos.571, 574 and 575 of 2019 will be allowed on payment of cost of Rs.10,000/- (Rupees Ten Thousand Only) to the first respondent/plaintiff on or before 25.10.2021, failing which, the above petitions shall stand dismissed. In case of allowing the above petitions on payment of cost, the revision petitioners are directed to file a consequential amendment petition within one week from 25.10.2021 and same is to be disposed of within a week thereafter. The Executing Court is further directed to https://www.mhc.tn.gov.in/judis/ 16/18 dispose of the petition in E.A.No.216 of 2016, on merits and in accordance with law, within a period of one month, thereafter. CRP(PD)(MD)Nos.569, 570, 572 and 573 of 2019 are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
07.10.2021
Index : Yes/ No
Internet : Yes/No
das
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1.The Sub Judge, Tuticorin.
2.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
K.MURALI SHANKAR, J.
https://www.mhc.tn.gov.in/judis/ 17/18 das CRP PD(MD).Nos.569 to 575 of 2019 and CMP(MD)Nos.2861 and 6701 of 2019 07.10.2021 https://www.mhc.tn.gov.in/judis/ 18/18