Research › Search › Judgment

Madras High Court · body

2004 DIGILAW 425 (MAD)

V. C. Sundaram v. C. Venkatesan & Another

2004-03-12

P.SATHASIVAM

body2004
Judgment :- Civil Revision Petition is directed against the order of the learned Second Assistant Judge, City Civil Court, Chennai dated 27-8-2002 made in I.A.No. 1324/2001 in O.S.No. 6412/99 in and by which the learned Judge dismissed the said petition, filed for restoration of the building possession by removal of brick wall, put up by the respondents in front of ventilator/jollys of the hotel premises. 2. The case of the petitioner is briefly stated hereunder: According to him, he is carrying on hotel business by name Geetha Cafe on the ground floor of No.2, Reddy Street, Villivakkam, Chennai-49. The said property is adjacent to the property bearing Door No.4, Reddy Street, Villivakkam, Chennai-49. The said property originally belonged to Neelambal and Krishnan Pillai and the petitioner was inducted as a tenant in 1962 by Neelambal. The said Neelambal and Krishnan Pillai by a Settlement Deed dated 27-2-1989 settled the said property at Door No.2, Reddy Street, Villivakkam, Chennai-49 on their third son, the 2nd respondent herein for his life time and after his life time to Manigandan, son of the 2nd respondent herein. The petitioner continued as a tenant under the 2nd respondent. The property at door No.4, Reddy street, Villivakkam also originally belonged to Neelambal and Krishnan Pillai and by settlement deed dated 27-2-89, they settled the said property on their son Santhanam alias Chandrasekharan and his sons Venkatesan, Balamurugan and Ganesan. The first respondent herein is the eldest son of Chandrasekharan. The said Chandrasekharan has taken a loan of Rs.25,000/- from the petitioner on various dates. Instead of paying interest for this loan under a Memorandum dated 1-9-93, the petitioner was given occupation of two rooms on the ground floor of door No.4, Reddy Street free from payment of any rent. The petitioner is using both the rooms as rest room for his hotel staff. In their anxiety to extort enhanced rent from the petitioner or evict him so as to induct a new tenant at highest rent, on 24-6-99 the second respondent herein who is a police head constable at H-5, New Washermanpet Police Station, closed the mouth of the chimney on the second floor, over-locked the door on the northern wall of the kitchen opening into the passage leading to the toilet and store-room, and broke the door of the toilet so as to render the same unserviceable. A criminal complaint was filed and the matter is pending before the 10th Metropolitan Magistrate, Chennai. The petitioner filed R.C.O.P.No. 1383/1999 on 19-7-99 on the file of XI Judge, Small Causes Court, Chennai for restoration of amenities under Section 17 (3) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 and also filed another R.C.O.P.No.1747/1999 on 26-8-99 for leave to deposit rents into Court under Section 8 (5) of the said act. The second respondent and his minor son Manigandan filed R.C.O.P.No.1418/1999 on the file of XIII Judge, Small Causes Court, Chennai for his eviction on the alleged ground of bona fide requirement of the premises by a member of their family. R.C.O.P.No.1383/1999 filed for restoration of amenities has been allowed on 6-3-2002 against which the landlord has filed R.C.A.No. 259/2002. Likewise, R.C.O.P.No. 1747/99 for deposit of rents into Court was allowed on 5-12-2000 against which the landlord has filed R.C.A.No. 159/2001. All the above matters are pending. While so, on 23-10-99 at the instigation of the second respondent, the first respondent and his men bricked up four Jali ventilators in the kitchen and dining hall and completely closed. He made a complaint to Villivakkam Police Station in turn they informed him the order passed by the Civil Court. On enquiry, he came to understand that they obtained an order of injunction in I.A.No.16264/99 in O.S.No.6412/99. On coming to know the order of injunction, the petitioner has filed I.A.No.17255/1999 for impleading himself as a defendant, I.A.No.17256/99 for setting aside the order of injunction dated 15-10-99 in I.A.No.16264/99 and I.A.No. 17257/99 to suspend the interim order of injunction. After notice to the respondents, the interim order of injunction dated 15-10-99 was suspended by an order on merits dated 18-11-99 finding that there is a clear abuse of judicial process collusively indulged in by the first respondent/plaintiff and the second respondent/defendant to secure an order of injunction which only affects him. The order allowing the I.A. to suspend the order of interim injunction was allowed with costs and the same has not been challenged further. I.A.No. 17255/1999 for impleading him as a defendant in the suit was allowed with costs and the same has not been challenged further. I.A.No. 17255/1999 for impleading him as a defendant in the suit was allowed on merits by an order dated 20-12-2000. 3. I.A.No. 17255/1999 for impleading him as a defendant in the suit was allowed with costs and the same has not been challenged further. I.A.No. 17255/1999 for impleading him as a defendant in the suit was allowed on merits by an order dated 20-12-2000. 3. The petitioner filed I.A.No. 1324/2001 under section 144 of C.P.C. for restitution following the setting aside of the order of injunction originally granted on 15-10-99. The act of closing of ventilators which is complained of was of existing ventilators following an order of injunction procured by fraud, misrepresentation and abuse of the judicial process. The plaintiff and the defendant had colluded in the institution of the suit without impleading him even though he is a necessary party for deciding the matters in issue in the suit and even though his rights were sought to be affected by the reliefs claimed in the suit. The first respondent/plaintiff and the 2nd respondent/defendant have misused the order obtained by their abuse of the judicial process top harass the petitioner. In such circumstances, though the petitioner is entitled an order of restitution, the learned trial Judge instead of ordering the said petition, dismissed the same observing that petitioner has to seek remedy only by way of separate suit or at the time of trial of suit in O.S.No. 6412/99. Questioning the same, the petitioner has filed the above Revision. 4. Heard Mr. S.B.S. Raman, learned counsel for the petitioner and Mr. M.V. Krishnan, learned counsel for the second respondent. Though first respondent was duly served notice from this Court, has not chosen to contest the Revision by engaging a counsel. 5. The only point for consideration is, whether the petitioner has made out a case for restitution by demolishing and removing the brick wall by the respondents in front of the ventilator Jollys of the hotel Geetha Cafe at Door No.2, Reddy Street, Villivakkam, Chennai-49 and whether the learned II Assistant Judge is right in dismissing the said application. 6. The petitioner herein at his instance has been impleaded as second defendant in the suit O.S.No.6412 of 1999 filed by the first respondent herein against the second respondent herein for permanent injunction restraining him from interfering with the use of common path-way 4 ½ feet x 55 feet length to plaintiff's residence. 6. The petitioner herein at his instance has been impleaded as second defendant in the suit O.S.No.6412 of 1999 filed by the first respondent herein against the second respondent herein for permanent injunction restraining him from interfering with the use of common path-way 4 ½ feet x 55 feet length to plaintiff's residence. It is also seen that on 15-10-99 in I.A.No. 16264 of 1999 he obtained temporary injunction against the second respondent herein. Aggrieved by the said order of injunction, the petitioner herein filed I.A.No. 17257/99 and ultimately the injunction order was set aside on 30-10-2000. It is the claim of the petitioner that after getting an order of temporary injunction, the first respondent herein alleged to have closed the ventilators and jollys of the building used by the petitioner herein as a tenant under the second respondent. It is also his claim that the second respondent covered the mouth of chimney for the hotel in order to prevent the let out of smoke from the hotel building. After getting the injunction order set aside, the petitioner has filed the present petition for restitution. 7. Learned counsel for the petitioner by drawing my attention to sub-section (2) of section 144 C.P.C., would contend that in the light of specific bar from instituting a separate suit for restitution or any other relief, the proper remedy for the petitioner is to file a proper petition in the suit itself for restitution of the ventilators and chimney in its original position. It is true that as per sub-section (2) of Section 144, no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1). The discussion of the Court below based on the materials placed shows that the alleged pathway of 4 ½ feet x 55 feet not only belongs to first respondent herein, but also other 3 more persons having right over it and the first respondent filed suit under Ex. P-4 against second respondent alone and obtained an order of injunction in I.A.No. 16264/99. It is true that subsequently the injunction order was vacated at the instance of the petitioner herein. It is further seen from the order that the petitioner has already made a criminal complaint against the respondents for interfering with the business. P-4 against second respondent alone and obtained an order of injunction in I.A.No. 16264/99. It is true that subsequently the injunction order was vacated at the instance of the petitioner herein. It is further seen from the order that the petitioner has already made a criminal complaint against the respondents for interfering with the business. It is also seen that the second respondent has filed a petition before the Small Causes Court in R.C.O.P.No. 1418/99 against the petitioner to vacate him from the property in question. As rightly observed by the Court below, the first respondent-plaintiff filed the suit only for the purpose of bare injunction not to interfere with his right regarding the use of pathway by pouring water and passing out cooking smoke from the cement jollys, etc. It is also relevant to note the factual information that though it is alleged by the petitioner that after getting injunction, the first respondent constructed a wall closed the ventilators and jollys of the petitioner. The Commissioner who was appointed to note down the physical features submitted a report stating that the petitioner's building was sealed on 6-12-99 itself by the Corporation authorities for want of licence and other amenities. The Commissioner's report does not specifically support the stand taken by the petitioner. In the absence of acceptable materials, it cannot be said that the brick wall was erected after getting an injunction from the Court and closed the ventilators and jollys at the instigation of the second respondent. The following conclusion of the learned trial Judge is relevant which reads as under:- "In the circumstances, the petitioner cannot said to have proved that the brick wall was erected by the petitioner (first respondent herein) after getting injunction from the Court and closed the ventilators and jollys at the instigation of R2......." In the light of the above factual conclusion and of the fact that the second respondent has already initiated rent control proceedings against the petitioner before the appropriate Court and taking note of the fact that the Corporation authority has closed the business premises of the petitioner for want of licence and other amenities etc., as rightly observed by the Court below, there cannot be any order for restitution in the application filed by the petitioner. I do not find any error or infirmity in the order. I do not find any error or infirmity in the order. No doubt, it is brought to my notice that subsequent to the dismissal of the said petition, the plaintiff withdrew his suit. In such a circumstance, in the light of the factual conclusion referred to above, I am of the view that the bar under sub-section (2) of Section 144 C.P.C. is not applicable to the petitioner and it is for him to agitate the same before the appropriate Court. With the above observation, the Civil Revision Petition is dismissed. No costs. Consequently, C.M.P.No. 16234 of 2002 is closed.