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2007 DIGILAW 2939 (MAD)

M. Thangamani v. P. Dharmaraj

2007-09-10

A.SELVAM

body2007
Judgment :- 1. Challenge in this Civil Revision Petition is to the order dated 18/12/2006 passed in Interlocutory Application No.1416 of 2005 in Rent Control Original Petition No.1 of 2005 by the Rent Controller, Srivilliputhur. 2. The revision petitioner/proposed second respondent has filed Interlocutory Application No.1416 of 2005 in Rent Control Original Petition No.1 of 2005 under Order 1 Rule 10 (2) of the Code of Civil Procedure, praying to implead him as second respondent in Rent Control Original Petition No.1 of 2005, wherein the present revision respondents have been shown as the respondents. 3. It is stated in the petition that the demised premise is originally belonged to the second respondent and he leased out the same to the first respondent/petitioner. The second respondent has desire to sell his demised premises to the petitioner and the sale amount has been fixed at Rs.2,63,000/- and on 20/6/2004, a sum of Rs.20,000/- has been paid as advance to the second respondent and to that effect, a sale agreement has come into existence and to that effect, a sale agreement has come into existence and the petitioner has purchased the demised premises on 16/9/2004 and since purchase he has become the owner of the demised premises. The respondents 1 and 2 have created a bogus sale agreement in favour of the first respondent, suppressing the sale made in favour of the petitioner on 16/9/2004. The first respondent has filed the Original Suit No.144 of 2004 on the file of the Sub-Court, Srivilliputhur, wherein the present petitioner has filed an application in Interlocutory Application No.27 of 2005, so as to implead him. The first respondent has filed Rent Control Original Petition No.1 of 2005. Since the petitioner has purchased the demised premises, he is also a necessary party. Under the said circumstances, the present petition has been filed. 4. It has been contended on the side of the first respondent that the demised premises is originally belonged to the second respondent and the second respondent has let out the same in favour of the father of the first respondent on 17/8/2006. On 1/4/2006, a rental agreement has come into existence. The second respondent has approached the father of the first respondent to sell the demised premises and accordingly, an agreement of sale has come into existence on 2/8/2004. On 1/4/2006, a rental agreement has come into existence. The second respondent has approached the father of the first respondent to sell the demised premises and accordingly, an agreement of sale has come into existence on 2/8/2004. The second respondent has executed a sale deed in favour of the petitioner and therefore, the first respondent has filed Original Suit No.144 of 2004. The petitioner is not at all a necessary party to Rent Control Original Petition No.1 of 2005 and further, the present petition is not legally maintainable. Therefore, the same deserves dismissal. 5. On the basis of the divergent contentions raised by either party, the Court below has dismissed the petition mainly on the ground that the present petition is not maintainable in Rent Control Proceedings. 6. Before considering the rival arguments advanced by either side, it would be more useful to look into the maintainability of the present petition. It is an admitted fact that the present petition has been filed under Order 1 Rule 10 (ii) of the Code of Civil Procedure praying to implead the revision petitioner as the second respondent in Rent Control Original Petition No.1 of 2005. The first respondent herein as petitioner has filed Rent Control Original Petition No.1 of 2005 under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960. The Court below without considering the merits and demerits of the petition has simply dismissed the same on the ground that Order 1 Rule 10 (ii) of the Code of Civil Procedure is not applicable to the Rent Control Proceedings. 7. In order to analyse the above legal position, it would be apropos to look into the following decisions. 8. The first and foremost decision is reported in 1989 – 2 LAW WEEKLY – 412 (S.V.CHIDAMBARA PILLAI Vs. S.N.V.R.N.SUBRAMANIAM CHETTIAR & ORS), wherein this Court has held that ."Subsequent purchaser of the demised premises is necessary party and further held that the provision of Order 1 Rule 10 is applicable to the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960. 9. The second decision is reported in 1984 (3) TAMIL NADU LAW JOURNAL – 221 (BOOCHI AMMAL AND OTHERS Vs. G.MARI CHETTIAR AND ANOTHER), wherein this Court has held that 10. The third decision is reported in 1991 – 1 MADRAS LAW JOURNAL – 416 (S.E.A.RAJA Vs. 9. The second decision is reported in 1984 (3) TAMIL NADU LAW JOURNAL – 221 (BOOCHI AMMAL AND OTHERS Vs. G.MARI CHETTIAR AND ANOTHER), wherein this Court has held that 10. The third decision is reported in 1991 – 1 MADRAS LAW JOURNAL – 416 (S.E.A.RAJA Vs. M.R.LAKSHMINARASIMHA GUPTA AND OTHERS), wherein also this Court has held that "Petition filed to implead the brothers of the tenant under Order 1 Rule 10 of the Code of Civil Procedure is perfectly maintainable." 11. The Court below has relied upon the decision reported in 1974 TAMIL NADU LAW JOURNAL – 247 (ARUPPUKOTTAI DRAVIDA MUNNETRA KAZHAGAM Vs. M. PERIASWAMI AND ANOTHER), wherein this Court has held that "There is no provision in the Madras Buildings (Lease and Rent Control) Act or in the Rules framed under the said Act, for any of the provisions of the Civil Procedure Code being made applicable to actions and proceedings taken or instituted under the Act." 12. It has already been narrated that in various decisions of this Court, it has been consistently held that in a petition filed under any of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, petition under Order 1 Rule 10 of the Code of Civil Procedure is maintainable. Therefore, in view of the subsequent consistent decisions of this Court, it is needless to say that the decision reported in 1974 TAMIL NADU LAW JOURNAL – 247 (ARUPPUKOTTAI DRAVIDA MUNNETRA KAZHAGAM Vs. M. PERIASWAMI AND ANOTHER) is no longer a good law and the same can be eschewed. It has already been pointed out that in the decisions referred to supra, this Court has consistently held that Order 1 Rule 10 of the code of Civil Procedure is applicable to any proceedings instituted under Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960. Therefore, the finding given by the Court below with regard to maintainability of the present petition is totally erroneous. On that ground alone, the impugned order passed by the Court below is liable to be interfered with. 13. It is anadmitted fact that the present petition has been filed under Order 1 Rule 10 (2) of the Code of Civil Procedure, praying to implead the revision petitioner as second respondent in Rent Control Original Petition No.1 of 2005. On that ground alone, the impugned order passed by the Court below is liable to be interfered with. 13. It is anadmitted fact that the present petition has been filed under Order 1 Rule 10 (2) of the Code of Civil Procedure, praying to implead the revision petitioner as second respondent in Rent Control Original Petition No.1 of 2005. The first respondent herein has filed Rent Control Original petition No.1 of 2005 under Section 8 (5) of the Tamil Nadu Buildings (Lease and Control) Act, 18 of 1960, wherein the present second revision respondent has been shown as the sole respondent. The main contention of the revision petitioner is that the demised premises is originally belonged to the second respondent herein and he sold the same in his favour on 16/9/2004 and therefore, the revision petitioner has become the absolute owner of the same. Since the revision petitioner has become the absolute owner of the demised premises, he is also a proper and necessary party to Rent Control Original Petition No.1 of 2005. Under the said circumstances, the present petition has been filed. 14. The learned counsel appearing for the first respondent has repeatedly contended that the present petition has been filed under Order 1 Rule 10 (ii) of the Code of Civil Procedure and the Court below has dismissed the same and therefore, against the order passed by the Court below only Civil Miscellaneous Appeal is maintainable and the present Civil Revision Petition is not legally maintainable. On that score alone, the present Civil Revision Petition is liable to be dismissed. 15. In support of his contention, he has drawn the attention of the Court to the decision reported in 2007 3 CURRENT TAMIL NADU CASES – 822 (S.M.CHANDRASEKARAN Vs. S.S.JAYAMANI AND OTHERS), wherein this Court has held that "against the order passed under Section 5 of the Limitation Act filed in Rent Control Proceedings, Civil Revision Petition is not maintainable and only Civil Miscellaneous Appeal alone is maintainable. In fact, this Court has followed the dictum found in 1982 (1) All India Rent Control Journal – 557 (CHINNARAJU NAIDU Vs. In fact, this Court has followed the dictum found in 1982 (1) All India Rent Control Journal – 557 (CHINNARAJU NAIDU Vs. BAVANI BAI), wherein this Court has held that "All Interlocutory orders passed during the proceedings under the Act under the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 cannot be said to be the orders which affects the rights and liabilities of the parties, in the sense that they become final orders though passed on interlocutory applications, such as refusing to set aside an ex parte order etc., defect or irregularity, if any in such an order as a ground of objection in his appeal from the final order in the main proceedings." 16. In the decision referred to by the learned counsel appearing for the first respondent, the Court below has passed its order in a petition filed under Section 5 of the Limitation Act. The Court below has dismissed the same. Therefore, the rights of the parties have become final. Under the said circumstances, the only Civil Miscellaneous Appeal is maintainable and not the Civil Revision Petition. 17. In the instant case, as stated in many places, the present petition has been filed only under Order 1 Rule 10 (ii) of the Code of Civil Procedure, praying to implead the revision petitioner as the second respondent in Rent Control Original Petition No.1 of 2005. The Court below has dismissed the same mainly on the ground that the same is not maintainable in Rent Control Proceedings. It has already been held that the present petition is legally maintainable in Rent Control Proceedings in view of the consistent decisions of this Court. Of course, it is true that the Court below has dismissed the present petition. The dismissal order passed by the Court below has not decided the rights of the parties and further, the impugned order has not reached its finality with regard to the dispute between the parties. Therefore, it is quite clear that if any order is passed in Rent Control Proceedings without touching the rights of the parties or if the concerned order has not become final and against that order Civil Revision Petition is legally maintainable and there is no need on the part of the affected party to prefer Civil Miscellaneous Appeal. Therefore, it is quite clear that if any order is passed in Rent Control Proceedings without touching the rights of the parties or if the concerned order has not become final and against that order Civil Revision Petition is legally maintainable and there is no need on the part of the affected party to prefer Civil Miscellaneous Appeal. In view of the foregoing discussion of both the factual and legal premise, it is needless to say that the decision rendered in 2007 (3) CTC – 822 (S.M.CHANDRASEKARAN Vs. S.S.JAYAMANI AND OTHERS) is not applicable to the facts of the present case. Therefore, the argument advanced by the learned counsel appearing for the first respondent is totally misconceived and the same cannot be given weight to. 18. The learned counsel appearing for the revision petitioner/petitioner has also contended that the Court below has erroneously dismissed the present petition mainly on the ground of its maintainability. Further, he has contended that the revision petitioner/petitioner has purchased the demised premises from the second respondent under a registered sale deed dated 16/9/2004 and therefore, the revision petitioner/petitioner has become the absolute owner of the demised premises and he is a necessary and proper party and therefore, the present petition is liable to be allowed. 19. It has already been held that in view of the consistent decisions of this Court, the present petition is legally maintainable and further, against the impugned order, the present Civil Revision Petition is also legally maintainable. The main contention of the revision petitioner/petitioner is that he purchased the demised premises from the second respondent under a registered sale deed dated 16/9/2004. The first respondent herein has filed Rent Control Original Petition No.1 of 2005 under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, wherein the erstwhile owner of the demised premises has alone been impleaded as sole respondent. Since the Revision petitioner/petitioner has purchased the demised premises under the sale deed dated 16/9/2004, he is also a necessary and proper party to the proceedings of Rent Control Original Petition No.1 of 2005. Therefore, the present petition is liable to be allowed. In view of the foregoing narration of both the factual and legal aspects, this Court has found that the impugned order is liable to be set aside. 20. In fine, this Civil Revision Petition is allowed with costs. Therefore, the present petition is liable to be allowed. In view of the foregoing narration of both the factual and legal aspects, this Court has found that the impugned order is liable to be set aside. 20. In fine, this Civil Revision Petition is allowed with costs. The order passed in Interlocutory Application No.1416 of 2005 in Rent Control Original Petition No.1 of 2005 by the Rent Controller, Srivilliputhur is set aside and the petition filed in Interlocutory Application No.1416 of 2005 is allowed and the Rent Controller, Srivilliputhur is directed to implead the revision petitioner in Rent Control Original Petition No.1 of 2005. Consequently, the connected Miscellaneous Petition No.1 of 2007 is closed. "Pending revision, land lord has sold the demised premises to the third party, the third party can implead himself as party under Order 1 Rule 10 of the Code of Civil Procedure."