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2007 DIGILAW 724 (MAD)

M. Dhanaraj v. J. C. Albert & Another

2007-02-27

R.BANUMATHI

body2007
Judgment :- Challenging the orders dated 02.02.2007 passed by XI Judge, Small Causes Court, Chennai in M.P.Nos.228 and 275 of 2006 in E.P.No.477 of 1999 in R.C.O.P.No.332 of 1995, ordering eviction by removal of obstruction, the obstructor has preferred these Civil Revision Petitions. 1. These Revisions arise on the following facts:- The Second Respondent – T.M. Munirathinam was the Tenant under the First Respondent for the petition mentioned premises viz., Door No.85, Seniamman Koil Street, Tondiarpet, Madras. The Second Respondent has committed wilful default in paying rent. R.C.O.P.No.332 of 1995 was filed under Sections 10(2)(i) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (for short "the Act") for eviction. By an order dated 010. 1998, eviction was ordered. Tenant - T.M. Munirathinam filed R.C.A.No.828 of 1998 against the order of eviction in R.C.O.P.No.332 of 1995. He has also filed M.P.No.882 of 1998 to stay the eviction order. In the Stay Petition, only Notice was ordered and Landlord has filed Counter stating that arrears of rent is due. 2. 2. First Respondent – Landlord has filed E.P.No.477 of 1999 for delivery of possession. The Court has ordered delivery on 17.03.2006. When Court Bailiff went to execute delivery warrant, Tenants workmen obstructed the Bailiff from effecting delivery of possession. The Landlord has filed M.P.Nos.195 and 196 of 2006 for Police Protection and to break open the lock and both Petitions were allowed. 2. 3. When First Respondent/Landlord has again taken Bailiff on 12.04.2006, the Revision Petitioner, who is none other than Brother of Second Respondent/Tenant has obstructed effecting delivery of possession, claiming that he is a Tenant. The First Respondent/Landlord has filed M.P.No.228 of 2006 for removal of obstruction caused by the Petitioner. The Petitioner/Obstructor has filed M.P.No.275 of 2006 under O.21 3.R.97 C.P.C. to record his objection and to decide Landlord/Tenant relationship between him and the First Respondent. In his Petition, the Petitioner claimed to be a Tenant under the First Respondent. According to Petitioner/Obstructor, portion was under the occupation of Munirathinam and became vacant in the month of March 2003 and thereafter, he had become Tenant under First Respondent for non-residential purpose on a monthly rent of Rs.500/- and he had also paid an advance of Rs.1,00,000/- at the inception of tenancy. 2. 4. According to Petitioner/Obstructor, portion was under the occupation of Munirathinam and became vacant in the month of March 2003 and thereafter, he had become Tenant under First Respondent for non-residential purpose on a monthly rent of Rs.500/- and he had also paid an advance of Rs.1,00,000/- at the inception of tenancy. 2. 4. According to the First Respondent/Landlord, the Petitioner/Obstructor is none other than the Brother of earlier Tenant – Munirathinam and that he has set up his Brother to cause obstruction. Finding that the Petitioner had not produced any documents showing his tenancy, the Court below has dismissed the Petition filed by the Petitioner/Obstructor and allowed the Petition filed by the First Respondent/Landlord. The Court below has ordered delivery of possession. .3. Challenging the Impugned Order, learned counsel for the Petitioner has submitted that the Petitioner is in occupation of the premises from 2003 and while so, court below has erred in holding that all the documents are fabricated after the eviction order was passed. It was further submitted that the documents produced by the Petitioner clearly shows that the Petitioner is in occupation of the premises as Tenant and only if opportunity had been given to the Petitioner, he could have explained the documents and the Petitioner has been deprived of the opportunity of contesting his application. 4. Taking me through various documents, learned counsel for the Landlord has submitted that erstwhile Tenant has put up his Brother only to stall execution proceedings. Learned counsel has submitted that after filing of obstruction petition by the Petitioner herein, erstwhile Tenant – Munirathinam had clandestinely withdrawn the Rent Control Appeals filed by him. It was further submitted that when erstwhile Tenant – Munirathinam projected himself as Proprietor of Friends Motor Work Shop, the Petitioner cannot claim any independent right in the said work shop. Learned counsel for the Landlord has drawn attention of the Court to various other proceedings. 5. Even at the outset, it is to be noted that the Petition filed by the Obstructor is only to stall Execution Proceedings. The Petitioner is none other than Brother of erstwhile Tenant – Munirathinam – Second Respondent. It is clear from the records that the Petitioner is actually put up by Judgment Debtor against whom eviction was ordered. 6. In the Eviction Petition R.C.O.P.No.332 of 1995, eviction was ordered. The Petitioner is none other than Brother of erstwhile Tenant – Munirathinam – Second Respondent. It is clear from the records that the Petitioner is actually put up by Judgment Debtor against whom eviction was ordered. 6. In the Eviction Petition R.C.O.P.No.332 of 1995, eviction was ordered. The Second Respondent/Tenant has filed R.C.O.P.No.859 of 1995 under Sec.8(5) of the Act for deposit of rent and the Petition for deposit of rent was dismissed. The Tenant has preferred R.C.A.No.828 of 1998 against the order of eviction. In the said Appeal, no stay was granted. The First Respondent/Landlord has filed Counter stating that arrears at the rate of Rs.750/- per month is due from February 1994. The Second Respondent/Tenant has neither deposited nor paid the arrears of rent. .7. As disposal of R.C.A.No.828 of 1998 was delayed and no stay was granted, the Landlord has filed E.P.No.477 of 1999. The Second Respondent/Tenant has resisted the Execution Proceedings by filing Counter. In his Counter, the Second Respondent has alleged that he has filed R.C.A.No.828 of 1998 and E.P.No.477 of 1999 could not be taken up till the disposal of R.C.A.No.828 of 1998. The Execution Petition was adjourned for enquiry from time to time. As there was delay in disposal of R.C.A.No.828 of 1998, on 28.02.2006, the First Respondent/Landlord has filed a Memo in E.P for ordering delivery. The said Memo was objected by the Second Respondent/Tenant by filing a Counter on 17.03.2006 stating that during pendency of R.C.A., no delivery should be effected by the Execution Court. Overruling his objection, the Execution Court has ordered delivery by 31.03.2006. 8. On 18.03.2006, the Petitioner, who is Brother of Tenant has sent Money Order to the First Respondent as rent and rightly the First Respondent has refused Money Order. On 24.03.2006, Bailiff was taken to the premises for effecting delivery and Petitioner has obstructed delivery of possession. The Landlord has filed M.P.Nos.195 and 196 of 2006 on 27.03.2006 for Police help and break open the lock. Again, when Bailiff was taken to the premises, the Petitioner has obstructed delivery of possession stating that he is doing business. Thereafter, the First Respondent/Landlord filed M.P.No.228 of 2006 for removal of obstruction of the Petitioner, who is none other than Brother of erstwhile Tenant. 9. M.P.No.275 of 2006 was filed by the Petitioner in April 2006. Again, when Bailiff was taken to the premises, the Petitioner has obstructed delivery of possession stating that he is doing business. Thereafter, the First Respondent/Landlord filed M.P.No.228 of 2006 for removal of obstruction of the Petitioner, who is none other than Brother of erstwhile Tenant. 9. M.P.No.275 of 2006 was filed by the Petitioner in April 2006. The First Respondent/Landlord has filed Counter in July 2006 stating that Obstructor is only Brother of erstwhile Tenant and there is no Landlord and Tenant relationship between them. When matters stood thus, on 21.07.2006, the Second Respondent/Tenant made an endorsement in R.C.A.Nos.828 and 829 of 1998 not pressing both appeals. In view of said endorsement, both R.C. As were dismissed as not pressed. It is evident that withdrawal of Appeals is sequel to Petitioners filing of Application in M.P.No.275 of 2006 stalling Execution Proceedings. Withdrawal of R.C.As in July 2006 only appears to be for the purpose of bolstering false claim of tenancy put forth by Petitioner. After Police Aid and break open lock were ordered, in Execution Proceedings, the Petitioner appears to have initiated several proceedings claiming independent leasehold rights. He is said to have filed O.S.No.3825 of 2006 on the file of XV Assistant Judge, City Civil Court, Chennai for Permanent Injunction restraining the Landlord from evicting him except under due process of law. He is also said to have filed R.C.O.P.No.656 of 2006 for deposit of rent in the Court. .10. That the Tenant/Judgment Debtor has instigated the Petitioner to stall proceedings is clear from more than one aspect. In the Eviction Petition R.C.O.P.No.332 of 1995, the Second Respondent/Tenant – Munirathinam has engaged M/s. D. Venkateswarulu, through whom the Second Respondent has filed Counter. M.P.No.275 of 2006 – Obstruction Petition filed by the Petitioner under O.21 R.97 C.P.C is also through the same counsel M/s. D. Venkateswarulu, as is seen from the Address for service in the Petition. In R.C.O.P.No.656 of 2006, the Petitioner was examined as P.W.1. In his evidence, the Petitioner/Obstructor has stated that his counsel - Mr. D. Venkateswarulu has obtained signature in his Petition. As an afterthought, later the Petitioner has changed name of his counsel as Mr. Murugan. From the fact that Second Respondent/Tenant and Petitioner have engaged the same counsel - M/s. D. Venkateswarulu, one could easily perceive that the Second Respondent – erstwhile Tenant has set up his Brother to stall Execution proceedings. D. Venkateswarulu has obtained signature in his Petition. As an afterthought, later the Petitioner has changed name of his counsel as Mr. Murugan. From the fact that Second Respondent/Tenant and Petitioner have engaged the same counsel - M/s. D. Venkateswarulu, one could easily perceive that the Second Respondent – erstwhile Tenant has set up his Brother to stall Execution proceedings. 11. In all proceedings of R.C.O.P.No.332 of 1995, the Second Respondent was claiming as Proprietor of Friends Motor Work Shop. When the eviction was ordered and Bailiff had gone to the premises for effecting delivery along with Police Aid and order of break open, entire proceedings appear to have restarted at instance of the Petitioner, who is Brother of erstwhile Tenant. Contention of Tenant that he was not aware of the proceedings between his Brother and Landlord is devoid of factual basis. 12. Claim of Petitioner that from 2003, he has been running Motor Works is unsustainable. As noticed earlier, the Second Respondent – erstwhile Tenant has been vigorously pursuing R.C.O.P.No.332 1995 and R.C.A.Nos.828 and 829 of 1998. Even in the month of March 2006, the Second Respondent has resisted the Memo filed by the Landlord for effecting delivery. 13. This Court is constrained to observe that R.C.O.P.No.656 of 2006 and the Suit in O.S.No.3825 of 2006 are only abuse of process of Court. Since concerned courts have seized up the matters, it is appropriate to issue direction to those courts to dispose those matters expeditiously. .14. Pointing out that the Petitioner had not produced any acceptable documents to prove his claim of Tenancy, the Court below has rightly dismissed the Petition filed by the Petitioner. The Impugned Order does not suffer from any grave error or error of jurisdiction warranting interference revisional jurisdiction under Section 115 C.P.C. 15. The Impugned Orders dated 02.02.2007 of the XI Judge, Small Causes Court, Chennai in M.P.Nos.228 and 275 of 2006 in E.P.No.477 of 1999 in R.C.O.P.No.332 of 1995 are confirmed and these Civil Revision Petitions are dismissed. In these Revisions, the Petitioner is directed to pay costs of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) to the First Respondent/Landlord. Consequently, the connected M.P.No.1 of 2007 is also dismissed. 16. XI Judge, Small Causes Court, Chennai is directed to expedite further proceedings in E.P.No.477 of 1999 in R.C.O.P.No.332 of 1995. 17. In these Revisions, the Petitioner is directed to pay costs of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) to the First Respondent/Landlord. Consequently, the connected M.P.No.1 of 2007 is also dismissed. 16. XI Judge, Small Causes Court, Chennai is directed to expedite further proceedings in E.P.No.477 of 1999 in R.C.O.P.No.332 of 1995. 17. XV Assistant Judge, City Civil Court, Chennai and XV Judge, Small Causes Court, Chennai are directed to take up the Suit in O.S.No.3825 of 2006 and R.C.O.P.No.656 of 2006 and expedite the trial and dispose of the same in accordance with law.