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1987 DIGILAW 148 (MAD)

Muhamathu Ibrahim v. Renuka Devi

1987-04-24

SIVASUBRAMANIAM

body1987
Judgment :- 1. C.R.P. 2000/86—This civil revision petition is directed against the order passed in C.M.A. 12 of 1985 on the file of the appellate authority (Subordinate Judge), Periyakulam confirming the order passed in an unnumbered interlocutory application in R.C.O.P. 54 of 1982 on the file of the Rent Controller (District Munsif), Periyakulam. 2. The facts leading to the present revision petition are as follows:— The respondent herein is the owner of door Nos. 467, 467-A and 437, situated in Midurai-Cumbum Road in Theni. The buildings were leased out to three persons, namely, Pappa Rowther alias Mohamed Ibrahim, K Muthiah Chettiar and Karuppiah Chettiar. They were the tenants under the respondent. The respoodent herein filed the petition in R.C. O.P. 54of 1961 on the file of the Rent Controller, Periyakulam, for eviction of the said three tenants and the present petitioners were respondents 1 and 3 in the said petition, under Ss. 14(1)(b) and 14(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. Though the tenants are occupying different buildings the respondents chose to file a single petition for eviction, contending that the building is an old one, that the property is situate in the business part of flourishing town Theni and that she has decided to pull down the entire building and erect a unitary building with R.C.G. terrace. The petitioners herein and one Muthiah Chettiar resisted the petition for eviction on various grounds. However, at the time of enquiry, learned counsel appearing for the petitioners herein reported no instructions and, therefore, the petitioners were get ex parte by the learned Rent Controller. The other tenant namely, K. Muthiah Chettiar alone contested the application and let in evidence in so far as the building in his occupation is concerned. The application was allowed and an order of eviction was passed against all the three tenants including the petitioners herein. As against the said order, K. Muthiah Chettiar preferred an appeal in C.M.A. 8 of 1984, before the appellate authority (Subordinate Judge), Periyakulam and the same was also dismissed. Aggrieved against the said decision, he has preferred a revision in CR.P.3568 of 1984, and the same is pending before this Court At the request of respondent herein, that revision petition also is being heard along with this revision petition. 3. The order in R.C.O.P. 54 of 1981, was passed on 10.1.1984. Aggrieved against the said decision, he has preferred a revision in CR.P.3568 of 1984, and the same is pending before this Court At the request of respondent herein, that revision petition also is being heard along with this revision petition. 3. The order in R.C.O.P. 54 of 1981, was passed on 10.1.1984. The petitioners herein, who were the respondents I and 3 in the eviction petition, filed an amplication on 2.2.1984, to set aside the ex parte order passed on 10.1.1984, against them. The petition was not numbered by the learned Rent Controller and he dismissed the same summarily on the ground that the rent control petition was fully contested and that the other tenant had also preferred an appeal before the appellate authority. One other ground relied on by the learned Rent Controller is that no provision of law has been pointed out by the learned counsel for the petitioners to hold that the petition is maintainable. On this short ground, he rejected the petition. As against this order, the petitioners herein preferred an appeal in C.M.A. 12 of 1985 before tie appellate authority (Sub Judge), Periyakulam. The appellate authority also dismissed the appeal and confirmed the order of the learned Rent Controller on the ground that the main petition, R.C.O.P. 54 of 1981, was already disposed of and the appeal filed by the other tenant also has been dismissed by the appellate authority confirming the said order. The appellate authority took the view that in as much as the other tenant, who bad raised similar objections, contested the matter and the petition was allowed, the present petition to set aside the ex parte order is not maintainable. Aggrieved against this decision the petitioners have came forward with this civil revision petition. 4. Mr. Alagar, learned counsel appearing for the revision petitioners, very rightly argues that once the petitioners herein were set ex parte in the rent control petition, the ultimate decision rendered in R.C.O.P.54 of 1981 cannot be treated as a decision on merits and for all purposes it has to be treated as an ex parte order. I am inclined to accept the said contention. I am inclined to accept the said contention. A persual of the order of the Rent Controller shows that on the learned counsel appearing for the petitioners reporting no instructions, the petitioners were set ex parte and the matter was proceeded with only in respect of the petitioner in C.R.P. 3568 of 1984. He alone let in evidence and contested the matter. The entire discussion by the learned Rent Controller shows that what was considered was only the evidence let in by the other tenant. Simply because the said tenant also raised a similar defence cannot convert the ex parte order into an order on merits. Since the three tenants are occupying separate buildings, each may have a defence of his own in respect of the nature of the building. It is significant to note that the present petition to set aside the ex parte order was filed as early as on 2.2.1984, and that the appeal in C.M.A. 8 of the 1984, by other tenant came to be filed only later on. Therefore, the filing of the appeal or the disposal of the same subsequently may not have any impact on the petition filed by the present petitioners to set aside the ex parte order. The fact that one of the tenants chose to take the matter on appeal pending disposal of the petition to set aside the ex parte order cannot affect the rights of the present petitioners to seek appropriate remedy provided under law for getting the ex parte order set aside. 5. Though the learned Rent Controller says that no provision has been cited in the petition, it is obvious that it should have been filed under R. 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974, which gives a right to a party in any case in which an order is passed ex parte to file a petition to set aside such ex parte order within 30 days from the date of the order and if the Rent Controller is satisfied that there was sufficient cause, it is open to him to set aside such ex parte order on such terms as to costs as the. Controller thinks fit. Controller thinks fit. It is also specifically provided therein that where an application for setting aside an ex parte order or an order of dismissal for default has been received for the first time, all execution proceedings in pursuance of the ex parte order or the order of dismissal for default shall be stayed until the disposal of the application. The scheme of the Act and the Rules show that any party to the proceedings is entitled to invoke this provision and such a right cannot be taken away under any circumstance. 6. Learned counsel for the respondent opposes the present revision petition on the ground that after the disposal of the main rent control petition, one of the tenants took the matter in appeal to the higher authority and that the ultimate decision of the appellate authority should alone prevail and is binding upon the parties, be it a judgment of affirmance or reversal and that the judgment of the trial court stands superseded or merges from stage to stage in the judgment of the superior court or authority. According to him, once the appellate court deals with the matter and disposes of the appeal, the trial court or the authority becomes functus officio, and thereafter the Rent Controller has no jurisdiction to deal with the matter and set aside the ex parte order. In support of his contention, he relies upon a ruling of the Supreme Court reported in Collector of Customs, Calcutta v. East India Commercial Co., Ltd 1. The relevant portion of the judgment is as follows: “It is this principle viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision whether of reversal or modification or mere confirmation.” Another decision in Janakraj v. P.M. Misra 2, is also relied upon in support of the said proposition. The Patna High Court has held that it is well settled by high authorities that after the disposal of a suit by the court of the first instance, if an appeal is taken to any higher court, then it is the ultimate decision of the appellate court that prevails and is binding upon the parties, be it a judgment of affirmance or reversal and the judgment of the Subordinate Court stands superseded, or merges in the judgment of the Superior Court. Relying on these decisions, learned counsel for the respondent would urge that it is no longer open to the Rent Controller to do anything with the order passed by him originally. I am unable to agree with these contentions. In so far as the decision of the Supreme Court is concerned, it was decided in a different context altogether. There the power of the High Court to issue a writ to the appellate authority situated beyond the territorial jurisdiction was in question. In that context, the matter was considered and decided in respect of cases arising within the Sea Customs Act, 1878. Similarly, the facts in the Patna case also are not similar to the facts of the present case A perusal of the said judgments shows that in the appeal preferred by the contesting party, the defendant who regained ex parte in the lower court also was made a party and he did not choose to appear in the appeal and contest the same. Since the party, who was set ex parte in the trial court, also was made a party in the appeal, thereby giving him an opportunity to put forth his case, the decision rendered in the appeal is certainly binding on him. It was only on this principle that the Patna High Court came to the conclusion that after the disposal of the appeal it is not open to the defendant, who remained ex parte to file a petition to set aside an ex parte order under O. 9, R. 13, C.P.C. Unfortunately, it is not the case here, and, therefore, the decisions relied on by the respondent are not applicable to the facts of the present case. 7. Though the provisions of the Civil Procedure Code are not applicable as such, the principles governing the filing of petition to set aside an ex parte order in a suit are worthy of consideration. 7. Though the provisions of the Civil Procedure Code are not applicable as such, the principles governing the filing of petition to set aside an ex parte order in a suit are worthy of consideration. O. 9, R.13, C.P.C, deals with the procedure for setting aside the decree passed ex parte against a defendant. The proviso to the said rule provides as follows : “Provided that, where the decree is of such nature, that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.” The scheme of the rule shows that two classes of cases are involved in setting aside an ex parte order or decree (1) Where the decree is ex parte against all the defendants but the application to set aside the decree is made only by some of them; and (2) where against some of the defendants the decree is passed ex parte, but against others who have appeared and defended the suit, it is passed ex parte and an application to set aside the decree is made by one or more of the defendants against whom the decree was passed ex parte. The Courts have held that the right of a party in a suit to apply for setting aside the ex parte order or decree against him even in cases, where the suit is decided on merits in respect of other defendants, cannot be taken away under any circumstances. The said proviso provides that if the decree is set aside as against the applicant, the court can set aside the decree as against the other defendants also, so as to reopen the whole suit. The proviso to Rule 13 says that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants. The object is to provide for cases where it may be necessary in the ends of justice to set aside the decree not only against the applicant but also against the other defendants. This does not, however, confer any right on the party but it only vests a power in the court. 8. The object is to provide for cases where it may be necessary in the ends of justice to set aside the decree not only against the applicant but also against the other defendants. This does not, however, confer any right on the party but it only vests a power in the court. 8. The nature of an ex parte decree and the scope of O.17, Rr.2 and 3, C.P.C, have been elaborately considered in a decision of a Bench of this Court in Pugal v. Kamala 1. The Bench observed thus: “One thing that cannot be disputed is that O.17 enables a court to decide a case either under O.17, R.3 or under O.17, R.2. In the circumstances, what exactly the court has done will depend upon the facts and circumstances of the situation. The fact that the Court has cited the provisions of O.17, R.3(a) for the purpose of dismissing the suit will not be conclusive on the question whether the decision was on the merits or not. In every case the court will have to lift the veil and find out whether really the decision was on merits. If the Court comes to the conclusion that the suit happened to be dismissed really on the ground of non-prosecution on the part of the plaintiff, then not-withstanding the fact that the provision of O.17, R.3(a), has been cited by the Court, it will be open to consider the order as really one for non-prosecution and not on merits If an order in law and substance is an order under O.9, though purported to be under O.17, R.3, it would cause unnecessary expenditure of time and money to an aggrieved party if he is compelled to file an appeal instead of an application for restoration. Obviously in a majority of such cases, particularly in cases where the suit is dismissed for non-prosecution, the decree cannot be at all on the merits, as there will be no evidence at all for the appellate Court to consider. The present case is a clear illustration of the same. In such a case, all that the appellate Court could do, if it accepts the case of the appellant, will be to set aside the decree on the ground that the trial Court was not justified in proceeding under O.17 R.3 and remand the case. The present case is a clear illustration of the same. In such a case, all that the appellate Court could do, if it accepts the case of the appellant, will be to set aside the decree on the ground that the trial Court was not justified in proceeding under O.17 R.3 and remand the case. Thus, the parties will be in the same position as they would have been if the defaulting party had been originally permitted to file a restoration application and had not been compelled to file an appeal. We are of the opinion that notwithstanding the fact the Court purports to act under O.17, R.3, if the circumstances set out by the Court are such that an order under O.9, read with O.17, R.2 could be legally justified and the actual order passed is one which could be legally passed under O.9, read with O 17, R.2 it is permissible for the Court to entertain an application for restoration under O.9. In this case, even though the party was present his appearance must be deemed to have been only for the purpose of requesting for an adjournment. Once the adjournment was refused, there was default on his part to prosecute the suit further.” It has been subsequently followed by this Court in Rangammal v. Srinivasan 1. It is thus seen that in cases where a suit is dismissed for non-prosecution or decreed ex-parte, the decree cannot at all be on the merits, as there will be no evidence at all for the appellate Court to consider. Unlike O.17, Rr.2 and 3 in C.P.C., there is no provision in R.12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974, to decide the cases on merits in a case where a party remains ex parte especially in the absence of any evidence on the side of the defaulting party. 9. There is no dispute as to the fact that the order passed by the learned Rent Controller is an ex parte order so far as the present revision petitioners are concerned. Both the orders of the learned Rent Controller and the appellate authority proceed only on that basis. In this case, the learned Rent Controller has not chosen to take the petition on file and dispose of the same on merits. Both the orders of the learned Rent Controller and the appellate authority proceed only on that basis. In this case, the learned Rent Controller has not chosen to take the petition on file and dispose of the same on merits. It would have been better if he had done that so that the long delay could have been avoided. Having referred to the prior conduct of the revision petitioners in prosecuting the case, the learned Rent Controller could have numbered the petition and decided the matter on merits. In view of the legal position discussed above, it has become necessary to set aside the orders of the learned Rent Controller and the appellate authority. Therefore, the said orders are set aside and the learned Rent Controller is directed to number the petition filed by the revision petitioners to set aside the ex parte order and dispose of the same on merits. It is open to him to consider whether there was any sufficient cause for the tenants for their non appearance on the date of hearing and pass orders on merits. In view of the long delay in disposing of the eviction petition, the learned Rent Controller is directed to dispose of the matter on or before 31.7.1987. With these observations, this civil revision petition is allowed. No costs. 10. C.R.P. 3568 of 1984—This revision has been filed by the second respondent in R.C.O.P.54 of 1981. As already stated, respondents 1 and 3 in the said petition are the petitioners in C.R.P. 2000 of 1986. The revision petitioner herein resisted the eviction petition on the ground that the respondent herein is not the real owner of the building in his occupation, that the said building originally belonged to one Vijayaraja alias Paramasivam and that there were disputes between him and the first respondent in R.C.O.P. 34 of 1981, regarding the building in question, and, therefore, the sale executed by Vijayaraja alias Paramasivam in favour of the respondent herein is not valid. Another contention raised by him was that the structure which is in his possession bears door No. 438 and it does not form part of the property purchased by the respondent and that the boundaries given in the sale deed in her favour are not correct. Another contention raised by him was that the structure which is in his possession bears door No. 438 and it does not form part of the property purchased by the respondent and that the boundaries given in the sale deed in her favour are not correct. The learned Rent Controller as well as the appellate authority have elaborately considered the said contentions of the tenant and concurrently found that the respondent is the real owner of the building in question and that the said building forms part of the property purchased by the respondent from his predecessor in-title. It has also been held concurrently that the requirement of the respondent of the building for demolition and reconstruction is true and bona fide . The same contentions have been urged before me and that the learned counsel for the petitioner was not able to show that those findings are not sustainable in law. It is evident from the materials placed before the authorities below that the petitioner herein was a tenant under the previous owner and that he has been in possession and enjoyment of the building for a long time. The boundaries shown in the sale deed clearly establish that the said building forms part of the property purchased by the respondent. No evidence has been let in by the petitioner to show that the responded has no manner of title in the building. The plan filed by the respondent clearly shows that the building in question forms part of the property purchased by the respondent. In these circumstances, I do not find any illegality or irregularity in the concurrent findings of the authorities below. Hence this civil revision petition is dismissed. No costs. However, the petitioner herein is given three months time from this date to vacate the building and put the landlady in possession thereof.