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2000 DIGILAW 379 (MAD)

Kuttiammal and others v. Abraham and another

2000-03-31

K.SAMPATH

body2000
Judgment : This is yet another case where the decree-holder is kept at bay by the tactics adopted by the judgment-debtor and his family members. 2. One Gangaiah Naidu filed an eviction petition against one Abraham, the first respondent herein, in R.C.O.P.No.80 of 1978 for eviction. The eviction petition as ordered on 14. 1981. The appeal in R.C.A.No.110 of 1981 was dismissed on 7. 1983. Pending appeal, the original owner having died, the present revision petitioners came on record as the Legal Representatives. In the meantime, one Jayaseeli, wife of the tenant, filed a suit O.S.No.1033 of 1983 before the District Munsif Court (Rent Controller), Poonamallee for a permanent injunction restraining the petitioners herein from interfering with her possession and enjoyment of the property, subject matter of the proceedings, alleging that the site and the superstructure belonged to Tambaram Municipality, that she had been in possession and enjoyment by paying the rent to the Municipality everyday, and that the revision petitioners had no right whatsoever in the property. She also sought an interim injunction pending suit. Though initially ad interim injunction was granted, subsequently it was vacated on 2. 1984. The appeal therefrom in C.M.A.No.4 of 1984 was dismissed on 23. 1985 and the further revision in C.R.P.No.376 of 1985 was dismissed by this Court on 7. 1986. In the meantime, the petitioners had filed E.P.No.14 of 1984. delivery also was ordered, they took possession on 4. 1984 and it was recorded on 24. 1984. The suit filed before the District Munsif Court, Poonamallee, by the wife of the judgment-debtor was transferred to the file of the District Munsif Court, Tambaram, renumbered as O.S.No.118 of 1993 and it was dismissed on 26. 1994. By some means, the wife of the judgment-debtor took possession of the property necessitating the filing of a petition by the revision petitioners for re-delivery of possession. This application was dismissed on 2. 1995. As against the decision, C.R.P.No.406 of 1996 came to be filed by the revision petitioners before this Court. On 16. 1997, it was reported before this Court that the tenant had vacated and the civil revision petition was dismissed as infructuous. 3. The revision petitioners filed E.P.No.83 of 1987 in R.C.O.P.No.80 of 1978 before the District Munsif Court, Tambaram and on 110. On 16. 1997, it was reported before this Court that the tenant had vacated and the civil revision petition was dismissed as infructuous. 3. The revision petitioners filed E.P.No.83 of 1987 in R.C.O.P.No.80 of 1978 before the District Munsif Court, Tambaram and on 110. 1997 took the court bailiff to the premises and it was found that the tenant Abraham was not in the petition mentioned premises, but one Joseph was in occupation and was carrying on business at the time of execution of the said warrant. and that he also obstructed the execution of the warrant. The court bailiff being unable to execute the warrant, as there was no order of the court for removal of obstruction, the warrant was returned as not executed. Thereafter, the petitioners filed E.A.No.393 of 1997 for removal of obstruction under O.27, Rule 97, C.P.C. The same having been dismissed, the present revision petition has been filed under Art.227 of the Constitution of India. 4. The lower court has reasoned that the petition mentioned property had been delivered long ago and such delivery was recorded and execution petition terminated as early as on 24. 1984 and there could not be any delivery or request for removal of the third party obstructor after a lapse of 13 years in respect of the same property. 5. I am in total disagreement with the reasoning of the lower court. Courts are there to do justice and not to throw out cases on technicalities. This is a case where, as noted at the very beginning, the judgment-debtor and his kith and kin have been successfully keeping the owner of the property at bay by adopting frustrating tactics. The owner of the property succeeded and obtained an order for eviction. It was confirmed, execution filed, delivery ordered, delivery taken and recorded and at that stage the wife of the judgment-debtor enters the arena, files a suit, seeks an injunction, though ultimately the suit is dismissed. In the meantime, the petitioner had to come to this Court and a false representation is made, that the judgment-debtor is no longer in the property and he has vacated, on the basis of which, this Court closed the revision petition. The travails of the judgment holder do not end there. When he goes to the property, he is received by the objector, who is none other than the son of the judgment-debtor. The travails of the judgment holder do not end there. When he goes to the property, he is received by the objector, who is none other than the son of the judgment-debtor. If courts do not step in and deal with situation like this firmily, the very purpose for which courts of law have been constituted would be defeated. 6. The learnedcounsel for the contesting respondents, unable to support the conclusion reached by the lower court, sought to support the dismissal by submitting that against the dismissal of an application under O.21, Rule 97, C.P.C. only an appeal lay to the High Court and a revision under Art.227, Constitution of India is not maintainable. 7. In support of his contentions, the learned counsel relied on the following decisions: 1. Fathima Automobiles v. P.K.P.Nair Fathima Automobiles v. P.K.P.Nair Fathima Automobiles v. P.K.P.Nair (1985)2 MLJ. 31: A.I.R. 1985 Mad. 318: 98 L.W. 116. 2. Pathuma Beevi v. Pathamuthu Joharan , (1991)1 L.W. 233 . 3. Babulal v. Raj Kumar , A.I.R. 1996 S.C. 2050 and 4. A.Kesavan v. Madurai-Kamaraj University A.Kesavan v. Madurai-Kamaraj University A.Kesavan v. Madurai-Kamaraj University , (1999)3 L.W. 762 . 8. In the first of the decisions referred to supra, it has been held that against an order under O.21, Rules 97 and 101, C.P.C. as amended by Act 104 of 1976, there is an appeal provided under the relevant Act and it is not open to contend that the court has to exercise its extraordinary jurisdiction under Art.226 of the Constitution of India. 9. The second decision is by Srinivasan, J. (as the learned Judge then was) and the learned Judge followed the first decision and held that under Rule 103 of O.21, C.P.C. and an order made under Rule 98 or 100 shall have the same force and be subject to the same conditions of appeal or otherwise as if it were a decree. The learned Judge distinguished the decision reported in S.Mohammed v. State of Tamil Nadu S.Mohammed v. State of Tamil Nadu S.Mohammed v. State of Tamil Nadu , (1985)2 MLJ. 131. 10. Inthe third decision, the Supreme Court has held that an order under O.21, Rule 98, C.P.C. in an application under O.21, Rule 97, C.P.C is to be treated as a decree under O.21, Rule 103, C.P.C. and it shall be subject to an appeal. 11. 131. 10. Inthe third decision, the Supreme Court has held that an order under O.21, Rule 98, C.P.C. in an application under O.21, Rule 97, C.P.C is to be treated as a decree under O.21, Rule 103, C.P.C. and it shall be subject to an appeal. 11. In Kesavan v. Madurai Kamaraj University Kesavan v. Madurai Kamaraj University Kesavan v. Madurai Kamaraj University , (1999)3 L.W. 762 Shanmugam, J,. has held that jurisdiction under Art.227 of the Constitution of India is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases, and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked. While holding thus, the learned Judge has further observed that it is true that despite the existence of an alternative remedy, the High Court may interfere in favour of an application under Art.227 of the Constitution, but can be only in extraordinary cases. 12. It cannot be gainsaid that this is an extraordinary case where this Court has got to exercise its power under Art.227 of the Constitution of India as otherwise there will be failure of justice. 13. In Most Rev.Bishop of Kottar v. C.Gnanasigamoni Most Rev.Bishop of Kottar v. C.Gnanasigamoni Most Rev.Bishop of Kottar v. C.Gnanasigamoni , (1999)1 L.W. 582 S.S.Subramani, J. has referred to a number of decisions and held that the availability of an alternative remedy is not a bar for exercise of jurisdiction under Art.227 of the Constitution of India. 14. It is not necessary to quote chapter and verse for the proposition that even in cases where there is statutory provision for filing appeal or revision, this Court has jurisdiction under Art.227 of the Constitution of India to interfere where there is blatant violation of justice. 15. It has been held in Alagar alias Savugan v. A.Baluchami Savugan v. A.Baluchami Savugan v. A.Baluchami , (1999(2 MLJ. 395: (1999(2 C.T.C. 535 that Art.227 of the Constitution of India could be invoked if manifest injustice has been done. 16. 15. It has been held in Alagar alias Savugan v. A.Baluchami Savugan v. A.Baluchami Savugan v. A.Baluchami , (1999(2 MLJ. 395: (1999(2 C.T.C. 535 that Art.227 of the Constitution of India could be invoked if manifest injustice has been done. 16. It has been held in K.K.Modi v. K.N.Modi K.K.Modi v. K.N.Modi K.K.Modi v. K.N.Modi , (1998)3 S.C.C. 573 : A.I.R. 1998 S.C. 1297 that the court will prevent improper use of its machinery and will in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. 17. This is a case where the decree-holder had been driven from pillar to post by the machinations of the respondents and they have been successfully thwarting his efforts by some proceedings in court. I am clearly of the view that the respondents should not be allowed to get away with what they have been doing. The order of the lower court dismissing the application for removal of obstruction is clearly erroneous and cannot be sustained. 18. The civil revision petition will stand allowed. Consequently, the petition for removal of obstruction will also be allowed. There will be a further direction to the lower court to ensure that the petitioners get possession of the property before the tenth of April, 2000, and this has to be reported to this Court. No costs.