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2004 DIGILAW 1072 (MAD)

Baghawandas Mangal v. S. Mohamed Iqbal

2004-08-16

V.KANAGARAJ

body2004
Judgment :- This Civil Revision Petition has been filed under Article 227 of the Constitution of India praying to set aside the fair and decretal order dated 13.2.2004 made in E.P.No. 515 of 2003 in R.C.O.P.No.988 of 2003 by the XIII Small Causes Court, Chennai. 2. Tracing the history of the above Civil Revision Petition coming to be filed before this Court, it comes to be known that the respondent herein/landlord has filed R.C.O.P.No.988 of 2003 before the Court below under Sections 10(2)(i) and 10(2) (vi) of the Tamil Nadu Buildings(Lease and Rent Control) Act and the same having been decreed exparte on 1.8.2003, the landlord has also filed an Execution Petition in E.P.No.515 of 2003 and since the Court below has terminated the Execution Petition after recording the submission of the learned counsel for the landlord that possession has already been taken, the petitioner/ tenant has come forward to file the above civil revision petition on grounds such as that the order passed by the lower Court was consequent to improper mode of service ie., paper publication, which is not at all contemplated under the Tamil Nadu Buildings(Lease and Rent Control) Act; that the respondent/landlord had deliberately taken the notice and warrant to the rental premises, which is a godown wherein the petitioner/tenant may not be available most of the times; that the petitioner was not served as per the provisions of Rule 22 of the Tamil Nadu Buildings(Lease and Rent Control) Rules 1974 in spite of the respondent having full knowledge that the petitioner is always available at No.10, Perianna Naicken Street, Sowcarpet, Chennai, which is the address given both the RCOP as well as in the E.P; that without ordering notice to the correct address given in the cause title, the lower Court has ordered substituted service of publication thus circumventing the procedure warranted to be adopted; that the Court below has failed to note that the respondent has abused the process of law by attempting to serve the notice on the wrong address. On such grounds, the petitioner has come forward to file the above civil Revision Petition seeking the relief extracted supra. 3. On such grounds, the petitioner has come forward to file the above civil Revision Petition seeking the relief extracted supra. 3. During arguments, the learned counsel for the petitioner would lay stress that the Execution Petition has been closed without disposing of the articles belonging to the tenant kept therein; that unless the Execution Petition is reopened, the tenant cannot get his articles back and contest the case; that whether closure of the E.P.is right or not, particularly without disposing of the articles of the tenant ordering the same in the manner is the point for consideration; that the landlord has played fraud on the Court in taking notices to a different address instead of the address offered both in the R.C.O.P.and the E.P. and would pray to allow the above Civil Revision Petition. 4. On the contrary, on the part of the learned counsel for the respondent it would be alleged that the Court below should execute every order passed by it or the appellate authority or on revision as if such an order is an order passed by itself, having all the powers of a civil Judge. At this juncture, the learned counsel for the respondent would point out that in execution of the order, in the manner provided for under Section 18 of the Tamil Nadu Buildings( Lease and Rent Control) Act, delivery was effected on 6.2.2004. At this juncture , the learned counsel for the respondent would cite a judgment delivered in ANJUMAN-E-PALAH-MILLAN DHARUL HIFAZ BY ITS TRUSTEES, V.M. ABDULLA BASHA AND OTHERS -vs-MOHAMMED OBAIDULLAH reported in (1997) I M.L.J.378 wherein a learned Single Judge of this Court, way back in the year 1996, has held: " The legal position that restitution is possible under Section 144 of Civil Procedure Code applies to the Rent Control Proceedings also is not disputed. But what is mainly contended is that since the restitution is a equitable remedy under Sec.144 of the Civil Procedure Code, the restitution cannot be ordered in this particular case...." 5. The learned counsel for the respondent would also cite yet another judgment delivered in SRIVARAMMAL(DIED)AND OTHERS vs. B. KANAMMAL JAIN AND ANOTHER reported in (1995) II M.L.J.228 wherein a learned Single Judge of this Court has held: "' Restitution' legal parlance means 'restoring the person to his original position'. The learned counsel for the respondent would also cite yet another judgment delivered in SRIVARAMMAL(DIED)AND OTHERS vs. B. KANAMMAL JAIN AND ANOTHER reported in (1995) II M.L.J.228 wherein a learned Single Judge of this Court has held: "' Restitution' legal parlance means 'restoring the person to his original position'. It contemplates a case where a person has been wrongly disposed and subsequently the wrongful dispossession is to be rectified by orders of Court. It contemplates a case where there is a reversal of an original order and, in the meanwhile, he is dispossessed the consequence of the reversal of the order, in effect, enables the person wrongfully dispossessed to get back possession. As far as possible, law contemplates that he must be compensated for the wrongful dispossession. He has been dispossessed by orders of Court and there is no reversal of the order. Once he is dispossessed, there is a termination of a proceeding. The order of dispossession is not varied in any subsequent order either in appeal or in revision, or in any collateral proceeding. Sec.10(5) of the Rent Control Act contemplates a safeguard against improper evictions effected by unscrupulous landlords. It is a safety valve to protect the rights of the tenant. Though, in effect, it is a restitution, really, it is a case where the tenant exercises a statutory right. It is not in pursuance of any order which is varied subsequently...." Citing the above Judgments, the learned counsel for the respondent would pray to dismiss the above civil revision petition. 6. In the above circumstances, this Court has to decide" Whether the allegation of the petitioner that he was not served with the summons in the eviction proceedings but showing that the summons has been served in the wrong address, wherein he was not residing ordinarily, by manipulation and fraud, the landlord has evicted him from the petition premises is true, so as to revise and set aside the order impugned herein?" 7. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, this Court is able to assess that it is a peculiar case in which, during the pendency of a Rent Control Appeal preferred by the petitioner as against the respondent/landlord regarding fixation of fair rent, the respondent/landlord has filed the present R.C.O.P. for eviction of the tenant and taking summons to the address of the godown, wherein he cannot be expected most of the times in spite of having offered the correct address of the tenant in the R.C.O.P., the landlord has got an exparte order of eviction against the tenant and thereafter the landlord has filed the Execution Proceedings and without any opportunity for the petitioner and taking substituted service for the petitioner much against the Rules contemplated under the Tamil Nadu Buildings(Lease and Rent Control) Rules, the landlord has taken possession of the premises and the Court below has terminated the Execution Petition since possession was taken by the landlord. 8. One thing is sure that the petitioner/tenant has not been served with the summons. According to the revision petitioner, neither to the address offered in the R.C.O.P. nor to the address shown in the E.P., any attempt has been made on the part of the respondent/landlord to serve the summons but to the godown wherein he cannot be expected most of the times and a substituted service, which is alien to the Tamil Nadu Buildings(Lease and Rent Control) Act, has been taken so far as the E.P. is concerned in order to conceal the E.P. proceeding from out of the knowledge of the tenant. Therefore, the revision petitioner has come forward seeking to set aside the order of termination of E.P. passed by the Rent Controller. 9. Therefore, the revision petitioner has come forward seeking to set aside the order of termination of E.P. passed by the Rent Controller. 9. The respondent has taken delivery of the premises wherein admittedly the revision petitioner is the tenant without serving the notice on him either in the R.C.O.P. or in the E.P. and adopted a different procedure than one contemplated by law concerned with the subject and further peculiarly serving notice by way of affixure in the godown wherein the petitioner cannot be expected most of the times and without making the least attempt to bring the petitioner to fore by effecting the service either to the address offered in the R.C.O.P. or the address offered in the E.P. wherein the petitioner is ordinarily residing and therefore, there is reason to think that under suspicious circumstances, the service has not been taken to the revision petitioner so as to know about the present proceeding and contest the same, whether it is concerned with the R.C.O.P. or the E.P. and therefore, it is a case wherein denial of opportunity for the petitioner is the net result which cuts at the root of the high principles of natural justice and no mention need be made that it is a case which requires setting aside the order of the Court below and to re-open the case for the petitioner to fairly contest the same in order to arrive at a decision on merits and in accordance with law and hence the following order: In result, (i) the above Civil Revision Petition succeeds and the same is allowed. (ii) The fair and decretal order dated 13.2.2004 made in E.P.No.l515 of 2003 in R.C.O.P.NO.988 of 2003 by the XIII Small Causes Court, Chennai, is hereby set aside. However, in the circumstances of the case, there shall be no order as to costs. Consequently, C.M.P.No.5006 of 2004 is closed.