Amra Press by Managing Partner M. Swaminathan, Madras and another v. Md. Muneeruddin
1993-12-03
RAJU
body1993
DigiLaw.ai
Judgment : The above revision petition has been filed under Art.227 of the Constitution of India challenging the order of eviction dated 212. 1988 passed by the Rent Controller (XIX Judge, Court of Small Causes) in R.C.O.P.No.3348 of 1988. A copy of the order has been made available in the typed set of papers and it is seen from the said order that the order of eviction has been made ex parte on examining the witness for the petitioner alone, on account of the absence of the respondent in the eviction petition. This revision petition has been filed on the averments stated in the affidavit filed in support of the stay application that the petitioners came to know of the passing of the order of eviction when notice was received in the execution proceedings in E.P.No.229 of 1989. It is also stated in the affidavit which only explains the circumstances under which the petitioners have come to this Court with this revision, that notices in the eviction petition were received by somebody else viz., the clerk in respect of the first petitioncr and one C.H.L.Narayanan, on behalf of the second petitioner at the initial stages and they have not brought it to the notice of the petitioners. Averments are also made that the ground on which the eviction has been ordered viz., wilful default is not only baseless but the order of the court below also does not contain any objective consideration of the claim as visualised under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 2.. Learned counsel for the petitioners relied upon the following two decisions in support of his claim to justify recourse to this Court under Art.227 of the Constitution of India directing against the order of eviction. The decision in G.Muthabaksh v. A.P.Swamy, 93 L.W. 615 is that of a learned single Judge of this Court where it has been held that there is a statutory obligation on the statutory authorities functioning under the Act to give a finding about the bona fide requirement of the landlord even though the petition may be disposed of ex parte and that even in a case where the tenant is absent, the statutory authority is obliged to consider the evidence adduced by the landlord and arrive at proper findings.
It may be noticed that the said judgment was rendered by this Court on a revision filed under Sec.25 of the Act apparently after exhausting the remedy of appeal before the court below. The decision next relied upon is that of another learned Judge in S.S.K.Mohamed Rowther and Co. v. Sundaram and Bros., A.I.R. 1970 Mad. 147. That was also a case which came up to this Court in a revision under Sec.25 of the Act. The learned Judge was of the view that even an ex parte order of eviction should contain a finding about the satisfaction of the Rent Controller and in the absence of any finding on the satisfaction recorded by the Rent Controller as obliged under the provisions of the Act, the order would be a nullify. On the basis of the above two decisions, it is contended that the order of the Rent Controller being one made without complying with the statutory requirements of recording a finding of satisfaction before ordering eviction, it should be considered to be a nullity and, therefore, the petitioners were right in invoking the jurisdiction of this Court under Art.227 of the Constitution of India. 3. 1 have carefully considered the submission of the learned counsel appearing on behalf of the petitioners. In my view, the petitioners have misconceived their remedies in approaching this Court with the above revision under Art.227 of the Constitution of India. Indisputably, there is an ex pane order of the eviction made on 212. 1988. Though it is stated that the petitioners come to know of the ex parte order only on receipt of a notice in E.P.No.229of 1989, there is no information furnished to this Court as to the date of such knowledge.. The said information would go to expose the belated approach of the petitioner to this Court. The petitioners, if they were genuinely aggrieved, had an effective remedy not only in the ‘«¦ form of a statutory appeal before the appellate authority but had a right to file an application under Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 within thirty days from the date of the order or within thirty days from the date of knowledge of the order which has been passed ex parte.
The third proviso to the said Rule would effectively protect the interest of such a party by providing that where an application for setting aside an ex-parte order has been received under Sub-rule 3 of Rule 12 of the Rules for the first time all execution proceedings in pursuance of the ex parte order shall by stayed until the disposal of the application. Inspite of such effective remedies available, it would be futile on the part of the petitioners to approach this Court under Art.227 of the Constitution of India. No explanation is forthcoming as to why such a course has not been adopted. The remedy of revision under Art.227of the Constitution is no doubt a constitutional remedy and though the availability of an alternative remedy is no bar for the court exercising such a jurisdiction, certainly the court is entitled to take into account the conduct of the party also in bypassing the normal equally effective remedies available under the Act, without sufficient or justifying reasons and the inordinate delay in approaching this Court. The provisions of Art.227 of the Constitution of India is not meant to override and set at naught the inbuilt statutory safeguards and provisions under a special enactment or meant to be licence to a-lethargic party to approach for relief at his whim and fancy. As noticed while considering the decisions relied upon for the petitioners those judgments have been rendered in the revision filed by the concerned persons who felt aggrieved when they invoked this Court the revisional powers available under Sec.25 of the Act after availing of the appellate remedies available under the Act. Permitting litigants to have recourse to Art.227 of the Constitution indiscriminately de hors the effective reliefs and remedies available otherwise under the statute itself and at that their convenience and leisure after long lapse of time would only set at naught the very system itself and encourage indiscriminate and unprincipled and indisciplined litigation. It is not as though that the petitioners cannot urge the ground which they are now raising in this revision before the forum provided for under the; Act itself. 4. For all the reasons stated above, I am of the view that the present revision ought not to be entertained under Art.227 of the Constitution of India. The revision fails and therefore, shall stand rejected.
4. For all the reasons stated above, I am of the view that the present revision ought not to be entertained under Art.227 of the Constitution of India. The revision fails and therefore, shall stand rejected. The rejection of this revision shall not preclude the petitioners from approaching the court under the provisions of the Act itself as are permissible in land and as and when any such proceedings are initiated, the courts concerned shall consider such proceedings on their own merits and in accordance with law.