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2007 DIGILAW 3252 (MAD)

K. Sourirajan v. P. R. Adikesavan

2007-10-06

S.K.KRISHNAN

body2007
Judgment :- This Revision Petition has been preferred by the petitioner, against the order of the learned XIII Small Causes Judge, Chennai passed in E.P.No.420 of 2007 in RCOP No.2108 of 1998, dated 19. 2007. 2. The brief facts which led to the filing of the present Revision Petition, are as follows: 3. The petitioner is the Power Agent of Mr. Bascarane and Mrs. Cannammale, who are the owners of the petition premises situated at Door No.A-1-155, 7th Main Road, Anna Nagar, Chennai-40. On 111. 1997, the respondent who is a practicing Advocate, has been inducted as a tenant in respect of the above said premises on 111. 1997 on a monthly rent of Rs.9000/- and on payment of Advance of Rs.25,000/-. Subsequently, during the pendency of the RCOP proceedings, having lost the hope of evicting the respondent, the original owner sold away the petition premises to M/s. A. Ansar Ahmed, Zakir Ahmed and F. Shanavaz Khan, who permitted the petitioner as Power Agent by registered document to continue to pursue further proceedings against the respondent. 4. The case of the petitioner is that after the occupation of the petition premises, the respondent started defaulting in payment of rents, which resulted in filing the eviction proceedings by the petitioner against the respondent in RCOP No.2108 of 1998 by the XIII Small Causes Judge, Chennai. The respondent committed default in payment of rent for the period from 111. 1997 to 15.08.1998 for which, arrears of rent comes to sum of Rs.81,000/-. Thereafter, on 111. 1998, in the said RCOP, the respondent was set ex parte. It is stated that in order to drag on the proceedings, from date when the respondent was set ex parte, i.e. on 111. 1998, the respondent has started filing frivolous petitions, suit and appeals, such as M.P.No.710 of 1998, RCA No.6 of 1999, M.P.No.584 of 2000, C.S.No.473 of 2001, RCA No.386 of 2001, RCA No.431 of 2001, M.P.No.329 of 2001, M.P.No.256 of 2002, M.P.No.306 of 2002 and M.P.No.475 of 2002 for the reliefs stated therein and successfully dragged the proceedings till 23. 2003, an which date, learned Judge passed ex parte eviction order on 27.03.2003 against the respondent granting two months time to vacate and hand over the premises. 5. 2003, an which date, learned Judge passed ex parte eviction order on 27.03.2003 against the respondent granting two months time to vacate and hand over the premises. 5. The attitude of the respondent in filing the above said petitions and appeals arising out of dismissal of the petitions, is nothing to but drag on the proceedings. The respondent used to file Miscellaneous Petition one or after another and on their dismissal, he used to prefer the appeals and leave the said appeal unattended and when the same were being dismissed, again he used to file petitions for restoration. Thereby, it is stated that the respondent had abused the legal process by filing one application after the other and preferring one appeal and after the other and hampered of the proceedings. After filing the applications, the respondent would allow the same to be dismissed for default after dragging on for some time and again used to file petitions to restore the default orders and again allowed them to be dismissed for default. 6. Even after the ex parte eviction order, dated 23. 2003, the respondent filed number of petitions, appeals and revisions, viz., M.P.No.278 of 2003, M.P.478 of 2003, M.P.No.638 of 2003, RCA No.1034 of 2003, M.P.No.607 of 2003, M.P.No.4184 of 2004, M.P.No.5859 of 2004, M.P.No.264 of 2004, Tr.O.P.No.265 of 2004, CRP No.490 of 2005, M.P.No.309 of 2005, M.P.No.846 of 2005, RCA No.1219 of 2005, M.P.No.386 of 2007, M.P.No.299 of 2007, M.P.No.300 of 2007, M.P.No.338 of 2007 and M.P.No.339 of 2007. Thereby, again from the date when the ex parte eviction passed, i.e. on 23. 2003, the respondent has dragged on the eviction proceedings till 28.08.2007 on which date, the petitioner has preferred Eviction Petition in EP SR.No.13887 of 2007. It is to be noted that all the above said petitions and appeals came to be dismissed against the respondent. 7. It is stated that after filing the eviction proceedings in E.P.SR.No.13887 of 2007, the Rent Controller has posted the matter on 9. 2007 for maintainability of the Execution Petition and thereafter, on 19. 2007, the Rent Controller after noting the fact that no M.P. is pending, directed the Registry to number the E.P. Accordingly, the E.P. was numbered as E.P.NO.420 of 2007. 8. 2007 for maintainability of the Execution Petition and thereafter, on 19. 2007, the Rent Controller after noting the fact that no M.P. is pending, directed the Registry to number the E.P. Accordingly, the E.P. was numbered as E.P.NO.420 of 2007. 8. The grievance of petitioner is that though it is prayed that the delivery of possession may be ordered without notice to the respondent on the ground that the respondent was fully aware of the proceedings and he has been fully contesting the matter and considering the attitude of the respondent and antecedents in dragging on the proceedings for the years together, the learned XIII Judge, by order, dated 19. 2007, without appreciating the contentions of the petitioner, directed notice to be served on the respondent. Challenging the same, the present Revision Petition has been filed before this court. 9. Mr. R. Balaji, learned counsel appearing for the petitioner, after narrating all the incidents and proceedings that were taken place for the past one decade as well as the attitude of the respondent in dragging on the proceedings without allowing the petitioner to get the fruits of the decree, has contended that the Rent Controller ought not to have ordered notice to the respondent, but ordered delivery of possession directly. The learned counsel put forth his contention on two grounds, firstly, as the respondent was aware of the proceedings and fully contested the matter at every stage and secondly, no indulgence should be given to the respondent after considering his attitude and abuse of process of law done by him. The learned counsel further contended that a person like the respondent being a fraudulent and vexatious litigant deserves no indulgence and the impugned order directing issuance of notice, will be again giving another opportunity to the respondent to drag on the proceedings and prolong the matter and the eviction ordered against him will get defeated. The learned counsel relied on the decisions reported in “ 1992 MLJ 498 (Nachayee Ammal and others versus Pichaimuthu)” and “ (2006) 4 MLJ 190 (Hazarath Imam Hussain Wakf, rep. by its Muthavalli versus Nayeema Adib)” in support of his contentions. 10. On a careful consideration of the facts and circumstances of the case as well as the contentions raised by the learned counsel, I find considerable force in the contention of the learned counsel. by its Muthavalli versus Nayeema Adib)” in support of his contentions. 10. On a careful consideration of the facts and circumstances of the case as well as the contentions raised by the learned counsel, I find considerable force in the contention of the learned counsel. It is not in dispute that the as against the eviction order, dated 27.03.2003, the petitioner has moved the Executing Court by filing E.P.No.420 of 2007 for delivery of possession under Order 21 Rule 35 CPC. It is to be noted that even before numbering the said E.P., the learned Rent Controller posted the matter for maintainability on 9. 2007 and thereafter, on 9. 2007, both sides were heard and again the matter was posted on 9. 2007 for orders and accordingly, on 9. 2007, the learned Rent Controller while dismissing M.P.Nos.338 and 339 of 2007 filed by the respondent, directed the Registry to number the E.P. Thus from this, it is clear that the respondent was fully aware of the execution proceedings pending against him from the date on which, the E.P. was numbered. The petitioner secured ex parte order of eviction on 23. 2003 against the respondent, by which, the respondent was granted two months time to vacate and deliver the vacant possession of the premises. However, even after expiry of the period of two month, in spite of vacating the premises, the respondent started filing the petitions for setting aside the ex parte eviction order and thereafter one after another and dragged on the proceedings till 28. 2007 on which date, the petitioner filed Execution Petition. Therefore, from this it is clear that the respondent is fully aware of the Execution Proceedings right from the date of its filing. In such circumstances, as rightly contended by the learned counsel, without ordering notice, the Rent Controller can proceed with the E.P. and can order for delivery of possession against him. Of course, Order 21 Rule 22 and Rule 35 CPC would envisage that in the event of decree-holder approaching the concerned execution Court within two years after the date of the decree, is entitled for recovery of possession by order of delivery without any notice being ordered to the judgment-debtor. Of course, Order 21 Rule 22 and Rule 35 CPC would envisage that in the event of decree-holder approaching the concerned execution Court within two years after the date of the decree, is entitled for recovery of possession by order of delivery without any notice being ordered to the judgment-debtor. No doubt, in the present case, after the decree, the petitioner has not approached the execution Court within two years, but it should not be ignored that after passing the eviction order against him in the year 2003, he has continuously dragged on the proceedings by filing number of petitions one after another and successfully prolonged the matter till the year 2007. In such circumstances, I am of the view that the petitioner is entitled for recovery of possession by order of delivery without any notice being ordered to the respondent. For the foregoing reasons, the Civil Revision Petition is allowed. The impugned order, dated 19. 2007 is hereby set aside. No costs. The Execution Court is directed to proceed with the E.P.No.420 of 2007 without ordering notice and pass appropriate orders directing delivery of possession as early as possible without any further delay.