Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 986 (MAD)

Arumugam v. Seethalakshmi & Others

2005-07-01

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order of the learned Rent Controller (District Munsif Court), Sirkali, dated 3.9.2003, made in I.A.No.11/2003 in R.C.O.P.No.4/2002 dismissing the application filed under section 151 CPC declining to stay the proceedings in R.C.O.P.No.4/2002, till the disposal of O.S.No.49/2001, Sub Court, Mayiladuthurai. The Respondents/Defendants are the Revision Petitioners. The relevant facts are :- 2. R.C.O.P.No.4/2002 :- Petition mentioned House Property is situate at D.No.21, South Car Street, Vaitheeswaran Koil, Sirkazhi. The Revision Petitioners have become tenants under the Respondents. Originally, the monthly rent payable was Rs.300/- which was later increased to Rs.400/-. The Respondents have not regularly paid the rent. When notice was issued seeking for payment of rent, the Respondents have set forth a false claim. Hence the Rent Control petition was filed for eviction, under section 10(2)(1) & &(7) and Section 14(1)(b) on the ground of wilful default and demolition and reconstruction. For convenience, parties are referred to in their rank in RCOP No.4/2002. 3. Denying that they are tenants under the Petitioner/ landlady and denying the tenancy, the Respondents have filed the counter statement. The Respondents have claimed that Petitioner/Land Lady had executed an Agreement of Sale on 15.12.1999. For the enforcement of that contract, the Respondents have filed O.S.No.49/2001 on the file of the Sub Court, Mayiladuthurai for specific performance of contract. Since the Respondents are in possession of the petition mentioned premises pursuant to the Agreement of Sale, the Petitioner/landlady cannot seek to evict the Respondents by filing Rent Control Application. 4. O.S.No.49/2001 :- The Respondents 2 and 3 have filed O.S.No.49/2001 for Specific Performance. According to them, the Petitioner /landlady has entered into an agreement of sale with the Respondents, agreeing to sell the property for a consideration of Rs.3,25,000/- and she had executed the Sale Agreement in favour of the Plaintiff. Further case of the Respondents is that the Respondents have paid Rs.50,000/- + Rs.75,000/- and the balance is only Rs.2,00,000/-. In spite of several request, the Petitioner/ landlady has not executed the Sale Deed. Hence the suit has been filed for specific performance directing the landlady to execute the Sale Deed in favour of the Respondents. 5. The Petitioner/landlady has opposed the suit contending that the Agreement of Sale, dated 15.12.1999 is a forged one and that the suit being based on the forged document, Plaintiffs are not entitled for any relief. Hence the suit has been filed for specific performance directing the landlady to execute the Sale Deed in favour of the Respondents. 5. The Petitioner/landlady has opposed the suit contending that the Agreement of Sale, dated 15.12.1999 is a forged one and that the suit being based on the forged document, Plaintiffs are not entitled for any relief. According to the landlady, the Revision Petitioners and their mother came to the suit property as Tenants and they have been paying rent. Since the tenants have committed default in paying the rent, the Rent Control proceedings has been initiated for eviction. 6. I.A.No.11/2003 – Under Section 151 CPC :- This application has been filed to stay the Rent Control proceedings in R.C.O.P.No.4/2002 for a period of six months. It has been stated that O.S.No.49/2001 has been filed by the Respondents 2 and 3 for specific performance of contract regarding the suit property. It is averred that since the parties and the subject matter in issue are one and the same, the decision in O.S.No.49/2001 would have bearing upon the rent control proceedings and hence prayed to stay the rent control proceedings. 7. Resisting the application, the Petitioner/Landlady has filed the counter statement contending that the suit O.S.No.49/2001 is not a bar to proceed with the RCOP. The issue in O.S.No.49/2001 is an entirely different issue and hence Section 10 CPC is not applicable. 8. Upon consideration of the contentions of both parties, the Rent Controller/learned District Munsif, Sirkazhi has dismissed the application. In the application, stay has been sought for only for a period of six months. The impugned order was passed on 3.9.2003. Pointing out that six months time prayed for has already lapsed, the learned District Munsif declined to stay the Rent Control proceedings. 9. The learned counsel has contended that subject matter in both the cases are one and the same and that the proceedings in RCOP cannot be proceeded with till the suit for specific performance is determined. It is his contention that in the absence of provision for staying the Rent Control Proceedings, the application has been filed under section 151 CPC invoking the inherent jurisdiction of the Court. Submitting that invoking the inherent powers of the Court, the learned Rent Controller ought to have stayed the proceedings, the learned counsel urged for setting aside the impugned order. 10. Submitting that invoking the inherent powers of the Court, the learned Rent Controller ought to have stayed the proceedings, the learned counsel urged for setting aside the impugned order. 10. Drawing the attention of the Court to the Written Statement in O.S.No.49/2001, the learned counsel for the Petitioner/Landlady has submitted that in O.S.No.49/2001, the Petitioner has set forth the plea that the alleged Agreement of Sale is a forged document. It is the further contention that Section 10 CPC is not applicable to the Rent Control proceedings. It is also submitted that the scope of enquiry in Rent Control Petition is limited; whereas the scope of trial in O.S.No.49/2001 is enlarged and that the Rent Control Proceedings cannot be stayed till the disposal of specific performance suit in O.S.No.49/2001. 11. Upon consideration of the contentions of both parties, impugned order and other materials on record, the following points arise for consideration in this Revision - (i) Whether Sec.10 is applicable to the Rent Control Proceedings and whether RCOP is to be stayed till the disposal of the case; and; (ii) Whether the impugned order declining to stay the RCOP No. 4/2002 suffers from any infirmity warranting interference ? 12. Even at the outset, the differential stand adopted by the Respondents/Tenants are to be pointed out. Prior to the filing of Rent Control Petition, the Petitioner/Landlady has issued a legal notice on 2.9.2000. Respondents have sent reply (dated 31.10.2000) denying their tenancy and alleging that they are in possession of the suit property pursuant to the Agreement of Sale. Since the status of tenancy is disputed, the Petitioner/Landlady has filed O.S.No.236/2000, before the District Munsif, Mayladuthurai. In the said suit, the Respondents/Tenants have raised objection as to the maintainability of the suit and only the Rent control proceeding ought to have been filed. To avoid such technical objections, the Petitioner/Landlady has filed the RCOP No. 4/2002. RCOP No.4/2002 was filed on 20.2.2002. 13. In the rent control proceedings, Respondents/Tenants have adopted the same defence that they are in possession of the petition mentioned premises pursuant to the Agreement of Sale. After exchange of notice, the Petitioner/Landlady has filed O.S.No.236/2000. Only thereafter, O.S.No.49/2001 was filed on 14.2.2001. The contention of the Revision Petitioners that Rent Control Petition was filed subsequently as a counter blast to O.S.No.49/2001, has no merits. 14. Section 10 CPC deals with stay of proceedings in the suit. After exchange of notice, the Petitioner/Landlady has filed O.S.No.236/2000. Only thereafter, O.S.No.49/2001 was filed on 14.2.2001. The contention of the Revision Petitioners that Rent Control Petition was filed subsequently as a counter blast to O.S.No.49/2001, has no merits. 14. Section 10 CPC deals with stay of proceedings in the suit. Contention of the Petitioner/landlady is that Sec.10 CPC is not applicable to the rent control proceedings since the Rent Controller is not a Court. It is also the contention that since the provisions of Civil Procedure Code is not applicable to the Rent Control proceedings, inherent powers of the Court also cannot be invoked. It is the contention of the Respondents/Defendants that in the absence of specific provision, inherent powers of the Court could be invoked. In the light of the contentious points, the question arising for consideration is – Whether Rent Controller is functioning as a Civil Court and whether the inherent powers under section 151 CPC or Sec.10 CPC could be invoked by the Respondents/Tenants ? 15. There is no provision in the Tamil Nadu Buildings (Lease & Rent Control) Act 1960, or in the Rules for any of the provisions of the CPC being made applicable to the actions and proceedings under the Act. On the other hand, the provision in the Act clearly indicate that the Code of Civil Procedure was not intended to be generally applicable to the proceedings under the Act. The preponderance of judicial opinion is that the CPC as such will not apply to the proceedings before the authorities constituted under the Tamil Nadu Buildings (Lease & Rent Control) Act 1960. Elaborately considering this aspect, in 1999 (1) MLJ 101 , V.Kanagaraj, J. has held that the Act is a self contained Act and that the Rent Controller and Appellate Authority are not Courts and the proceedings are not governed by the CPC. The learned Judge has quoted the passage from V.N.Krishnamurthi's Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Fourth Revised Edition, 1998, at page No.182. We may also usefully refer to the same : "Applicability of Civil Procedure Code: In Abdul Kader V.A.K.Murthy (1947)2 MLJ 482 , it was pointed out that the provisions of C.P.C. were not made available to proceedings under the Act in the absence of rules nevertheless the principles of the same should be applied Devichand Moolchand V.Dhanraj Kantilal (1948) 1 MLJ 276 at 279. The Act itself does not contain any provision regarding the application of Civil Procedure Code and in fact the provisions of the Act seem to be self-contained in regard to procedure and the Act has gone to the extent of providing for bringing in the Legal Representatives on record and costs, to mention two instances. If really the Code of Civil Procedure is applicable mutatis mutandis to the procedure under the Act, the provisions are wholly superfluous. On the other hand, they clearly indicate that the Code of Civil Procedure was not intended to be generally applicable to the proceedings under the Act Fernandes Vs.Ranganayakulu Chetty (1952)2 MLJ 445 at 446." 16. When the trial Court or the Appellate Authority is not a Civil Court, the provisions of Section 10 CPC cannot be invoked. Even at the outset, the petition filed to stay the proceedings in RCOP No.4/2002 is not maintainable. Perhaps avoid such controversy, petition was filed under section 151 CPC. When the Rent Controller and Appellate Authority is not a Civil Court, the inherent jurisdiction of the Court cannot be invoked. In support of his contention that inherent powers of Court could be invoked, the learned counsel for the Revision Petitioner has relied upon the Judgment reported in 1973 TLNJ 228 (Subramaniam Chettiar Vs. Pillaiyarpatti karpagavinayagar Nagarathar Trust) wherein it was held that in the interest of justice, inherent powers under Section 151 CPC could be invoked before the Appellate Tribunal and the Rent Controller. In the said decision, Or.6 R.17 was held applicable to correct an inadvertent mistake wherein it was held that the duty of the Court is to advance substantial justice and allowed a correction of a mistake in bringing the new trustees in the place of old trustees. The same ratio cannot be applied to the case in hand where there is specific provision under Section 10 CPC. When the specific provision under section 10 CPC is available and when the provisions of the Civil Procedure Code is not generally applicable to the proceedings before the Rent Controller and the Appellate Tribunal, it is not open to the Revision Petitioner to invoke the inherent powers of the Court. 17. When the specific provision under section 10 CPC is available and when the provisions of the Civil Procedure Code is not generally applicable to the proceedings before the Rent Controller and the Appellate Tribunal, it is not open to the Revision Petitioner to invoke the inherent powers of the Court. 17. Assuming for the sake of arguments that Sec.10 CPC petition filed is maintainable, the main point for consideration is whether the proceeding in the RCOP No.4/2002 is to be stayed till the disposal of O.S.No.49/ 2001. The contention of the Revision Petitioners is that the Petitioner/Landlady has entered into an agreement of sale on 15.12.1999 for a consideration of Rs.3,25,000/- out of which, an advance of Rs.50,000/- + Rs.75,000/- has already been paid and that only a balance of Rs.2,00,000/- is to be paid and the landlady is evading to perform her part of the contract. It is the further case of the Revision Petitioners/Tenants that they are in possession of the demised property pursuant to the Agreement of Sale and in particular, the performance of contract. Curiously, this plea has not been set forth in O.S.No.49/2001. Neither part performance is alleged in plaint; nor the Revision Petitioners have produced house tax receipts or other documents evidencing their possession. The landlady has denied any such Agreement of Sale and set forth the defence that the alleged Agreement of Sale is forged one. In the light of the pleadings in the suit, the main issues that may have to be adjudicated upon are :- (i) Whether the said Agreement of Sale dated 15.12.1989 is true and genuine? (ii) Whether the Plaintiffs/Revision Petitioners were ready and willing to perform their part of the contract? (iii) Whether the landlady is bound to execute the Sale Deed? To adjudicate upon the issues, the parties may have to adduce elaborate evidence in support of their plea. 18. Per contra, the scope of enquiry in the Rent Control proceedings is summary in nature. Elaborate recording of evidence is not necessary. It is sufficient that if the Rent Controller makes an enquiry for determining :- (i) Whether there had been wilful default ? (ii) Whether the premises is required for demolition and reconstruction ? In the light of the above contentious points involved in the Rent Control Proceedings, the scope of enquiry is very limited. 19. It is sufficient that if the Rent Controller makes an enquiry for determining :- (i) Whether there had been wilful default ? (ii) Whether the premises is required for demolition and reconstruction ? In the light of the above contentious points involved in the Rent Control Proceedings, the scope of enquiry is very limited. 19. Thus by a careful analysis of the pleadings and the contentious points involved, the subject matter in the suit and in the rent control proceedings are not one and the same; nor does the decree in specific performance suit would non-suit the Petitioner/landlady in the rent control proceedings. Excepting that the parties and the demised property are the same, no other essential conditions of Section 10 CPC is attracted. Since the subject matter in both the suit and the rent control proceedings are entirely different, rent control proceedings instituted for eviction of the Tenants/Revision Petitioners cannot be stayed. 20. The learned District Munsif/Rent Controller has rightly found that both the proceedings are different. Excepting that the parties and demised property are the same, no other common points are involved for determination. No valid grounds are made out for staying the proceedings before the Rent Controller. The impugned order does not suffer from any infirmity or material irregularity warranting interference. 21. The fair and decretal order of the learned Rent Controller (District Munsif Court), Sirkali made in I.A.No.11/2003 in R.C.O.P.No.4/2002, is confirmed and this Revision Petition is dismissed. Consequently, CMP No.21320 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. 22. The Rent Controller/District Munsif, Sirkazhi is directed to expedite the enquiry in RCOP No.4/2002 and dispose of the same expeditiously.