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2007 DIGILAW 2548 (MAD)

Rajalakshmi v. Dr. Senthilnathan

2007-08-13

M.CHOCKALINGAM

body2007
Judgment :- Challenge is made to an order of the IX Assistant City Civil Court, Madras, made in I.A.No.12066/2005, an application for review of the decree granted in O.S.No.6557/2001. 2. The Court heard the learned Counsel on either side. .3. It was a suit for recovery of rental arrears and arrears of amenity charges by the revision petitioner/plaintiff against the respondent/defendant alleging that the defendant was in arrears of rental and amenity charges from 2. 1994 to 16. 2000 at the rate of Rs.5,000/- per month; that he was liable to pay Rs.2,53,250/-along with interest and costs. The suit was resisted by the respondent/defendant on different grounds. After the framing of issues, the parties went on trial. There was a decree passed by the Court on 4. 2005 for a sum of Rs.1,55,000/-wherein it was made clear that the decree was granted, in view of the point of limitation, only for a period of three years just preceding the date of the filing of the suit that was from 111. 1997 to 111. 2000. Thus, the plaintiff was entitled for the decree only to that period to the tune of Rs.1,55,000/-and in that, the rest of the claim was rejected. Thereupon, the defendant filed a review application in I.A.No.12066/2005 stating that the three payments were made by him to the plaintiff in the Rent Control proceedings namely Rs.33,750/- on 111. 1997, Rs.60,000/- on 16. 2000 and Rs.35,000/-at the time of the commencement of the tenancy; that these three amounts were not given credit to; that they were not noticed by the trial Court while passing the decree; that these amounts should be given credit to, and the decree has got to be amended by way of reviewing the same. On contest, the said application was allowed. Aggrieved over the said order passed in the review application, the plaintiff has brought forth this revision before this Court. 4. Two contentions were raised by the learned Counsel for the revision petitioner before this Court. Firstly, while she filed the revision before this Court and the same was pending, the respondent/defendant has also filed an appeal in A.S.No.624/2005 challenging the very same decree and even in the grounds of appeal, he has stated that Rs.35,000/-, Rs.33,750/- and Rs.60,000/-that were made by the defendant, were not given credit to. Firstly, while she filed the revision before this Court and the same was pending, the respondent/defendant has also filed an appeal in A.S.No.624/2005 challenging the very same decree and even in the grounds of appeal, he has stated that Rs.35,000/-, Rs.33,750/- and Rs.60,000/-that were made by the defendant, were not given credit to. Having preferred an appeal like this, no question of filing a review application would arise, and the review application should have been dismissed. Secondly, all these payments namely Rs.33,750/- on 111. 1997, Rs.60,000/-on 16. 2000 and Rs.35,000/- in the year 1989, were actually made by him pending the rent control proceedings or before the proceedings in the suit. If to be so, the plaintiff was entitled to give credit to these amounts and adjust towards the earlier rental arrears. But, the lower Court has allowed the review application, and hence, that order has got to be set aside. 5. In answer to the above, it is contended by the learned Counsel for the respondent that the lower Court has correctly allowed the review application; that it was brought to the notice of the Court that those three payments were actually not given credit to; that if these payments were given credit to, the liability of the defendant would be lesser; that for that, the review application was filed; that on contest, that application was ordered; that by allowing the review application, consequently the decree has also been amended, and thus, what was available was only the amended decree; that had the plaintiff been aggrieved against the amended decree, she should have preferred an appeal, and she could not maintain a revision like this, and thus, the revision has got to be dismissed. 6. The Court paid its anxious consideration on the submissions made. .7. This Court is of the considered opinion that though attractive the contentions put forth by the learned Counsel for the petitioner at the first sight, they do not stand the scrutiny of law. In the instant case, as narrated above, it was a suit for recovery of rental arrears from February 1994 till 16. 2000 to the tune of Rs.2,53,250/-, and the trial Court was perfectly correct in granting the relief for a period of three years. In the instant case, as narrated above, it was a suit for recovery of rental arrears from February 1994 till 16. 2000 to the tune of Rs.2,53,250/-, and the trial Court was perfectly correct in granting the relief for a period of three years. The only grievance that was ventilated by the defendant after the passing of the decree before the lower Court by way of review application was that those three payments were made one in the RCOP namely Res.33,750/-, and the other one Rs.60,000/-directly and the next one Rs.35,000/- in 1989 itself, and all these payments should be given credit to towards the decree amount, and hence, he took out a review application. It was contended contrarily by the plaintiff that those amounts have got to be given credit to towards the rental arrears in the past, and she was entitled to do so, and it cannot be credited to towards the decree amount, which was for a period of three years. While the controversy was so, the respondent has preferred an appeal in A.S.No.624/2005 pending on the file of the VI Additional Judge, City Civil Court, Madras. On contest, the review application was allowed. While the review application was allowed, it was brought to the notice of the appellate forum where the appeal was pending, and it was also recorded by the said Court as follows: ."12. In the written argument submitted by the appellant, the Learned Counsel appearing for the Appellant would submit that in view of the review petition allowed by the trial court and consequently amendment was carried out in the decree, it is not necessary to pursue the appeal. No doubt, the payment made by the appellant during the pendency of trial in the trial court was given credit to and the decree was amended as prayed for which was not disputed by the respondent. In view of the above facts, nothing survives in the appeal. Hence the appeal deserves to be dismissed. The point is answered accordingly." .8. From the very reading of the judgment of the VI Additional Judge, City Civil Court, in the appeal, it would be quite clear that in view of the application for review being allowed by the trial Court, the appeal was not further pursued. Once the review application was ordered, the consequence was the amendment of the decree. From the very reading of the judgment of the VI Additional Judge, City Civil Court, in the appeal, it would be quite clear that in view of the application for review being allowed by the trial Court, the appeal was not further pursued. Once the review application was ordered, the consequence was the amendment of the decree. Accordingly, in the instant case, the decree has also been amended. Thus, on the date when the revision was filed before this Court, only the amended decree was available. Had the plaintiff been aggrieved by the amended decree, the only course open to her is to prefer an appeal there from and not a revision like this. 9. The contention put forth by the learned Counsel for the petitioner is that the review application should not have been allowed in view of the pendency of the appeal. At this juncture, it is pertinent to point out that the appeal pending on the file of the VI Additional Judge, City Civil Court, was actually dismissed in view of the review application being allowed. The consequence of the review application being allowed was the amendment of the decree. Once the decree has been amended, if really the plaintiff was aggrieved, she should have preferred an appeal, and no question of preferring a revision would arise. Under the circumstances, this revision itself has got to be dismissed rejecting the contentions put forth by the learned Counsel for the petitioner. 10. As far as the payments made by the defendant to the plaintiff on the three occasions referred to above, is concerned, whether it could be given credit to towards arrears earlier in point of time or they should be given credit to towards the decree amount in O.S.No.6557/2001 is kept open, and both the parties can raise their contentions in the appeal if to be preferred by the revision petitioner herein. Apart from that, it is also made clear that if the party at the time of preferring an appeal, makes an application for condoning the delay in making the appeal, the appellate forum is directed to consider the period of pendency of the revision before this Court in deciding the condonation application. With that observation, this civil revision petition is dismissed. No costs. Consequently, connected MP is also dismissed.