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2010 DIGILAW 1321 (MAD)

S. Dharani Kumar v. Nirmala

2010-03-29

S.TAMILVANAN

body2010
Judgment :- 1. This Civil Revision has been preferred challenging the order, dated 07.10.2009 made in M.P.No.497 of 2009 in R.C.A.No.370 of 2009 on the file of the VII Judge, Court of Small Cause, Chennai, dismissing the petition filed under Section 23 (2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 2. The miscellaneous petition in M.P.No.497 of 2009 was filed by the petitioner herein under Section 23 (2) of Tamil Nadu Act 18 of 2006 as amended by Act 23 of 1973 and Act 1 of 1980, seeking interim stay of the order of delivery of possession passed in E.P.No.335 of 2008 in R.C.O.P.No.1536 of 2006 on the file of the Rent Controller / XII Judge, Court of Small Causes, Chennai, pending disposal of the R.C.A, on the file of the Rent Control Appellate Authority / VII Judge, Court of Small Causes, Chennai. 3. Mr.M.Kumaraswami, learned counsel appearing for the petitioner submitted that the respondent, being the party receiver has not obtained leave from the Court, as contemplated under Order 40 Rule 1 of the Code of Civil Procedure for dealing with the property and according to the learned counsel, the Court below has not considered the scope of Order 27 Rule 97 (i) subject to Order 21 Rule 104 CPC properly, holding that all the co-owners are in joint possession and enjoyment of the property, pending disposal of the Civil Suit. Learned counsel for the petitioner further contended that the tenant was inducted by the revision petitioner long back, however, without appreciating the facts and circumstance of this case, the respondent party receiver obtained an order of eviction against the tenant and now trying to implement it against the interest of the petitioner. With the above pleadings, the revision petitioner had filed the M.P., seeking interim stay of the order of delivery of possession made in E.P.No.335 of 2008 in R.C.O.P.No.1535 of 2006 on the file of the Court below. 4. With the above pleadings, the revision petitioner had filed the M.P., seeking interim stay of the order of delivery of possession made in E.P.No.335 of 2008 in R.C.O.P.No.1535 of 2006 on the file of the Court below. 4. Learned counsel appearing for the petitioner also drew the attention of this Court to Order 40 Rule 1 CPC, which reads as follows : "Appointment of receivers - (1) Where it appears to the court to be just and convenient, the Court may by order - (a) appoint a receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of the document as the owner himself has, or such of those powers as the Court thinks fit. (2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property, any person whom any party to the suit has not a present right so to remove. " 5. In support of his contention, the learned counsel for the petitioner cited the following decisions : 1. D.Amsaveni vs. Chandran, 2007-4-LW 517 2. Radha Kanta vs. Benode Behari, AIR 1934 Calcutta 444 3. Bhagwan Das vs. Sheonandan Prasad Sahu, 1925 Patna 293 6. Mr.T.Adiseshan, learned counsel appearing for the respondent submitted that originally the rents were collected by the petitioner herein and another brother, however, they failed to pay even the tax payable to the State, hence, by order, dated 12.02.2008, this Court appointed the respondent herein as party receiver in the civil suit for partition, which is pending on the file of this Court. When the respondent herein was appointed by this Court as party receiver, there was no objection from the petitioner herein and the other brother and sister. The respondent is collecting the rent from the other tenants and depositing the same, as per the direction of this Court passed in the aforesaid order. When the respondent herein was appointed by this Court as party receiver, there was no objection from the petitioner herein and the other brother and sister. The respondent is collecting the rent from the other tenants and depositing the same, as per the direction of this Court passed in the aforesaid order. However, the petitioner is collecting rent from the tenant mentioned in the petition, against the order passed by this Court, appointing the respondent as party receiver. Learned counsel for the respondent submitted that the Civil Revision Petition is not legally maintainable, as there is no error or infirmity in the impugned order passed by the Court below. With the above submissions, the learned counsel for the respondent pleaded for dismissal of the Civil Revision Petition with costs. 7. It is an admitted fact that the petitioner and the respondent herein are brother and sister and they have one more brother and sister and all the four are co-owners of the property and a suit for partition in C.S.No.849 of 2000 is pending on the file of this Court. Pending disposal of the Civil Suit, an Advocate-Receiver was appointed by order, dated 07.02.2006 passed in O.A.No.658 of 2003, by Honble Mr.Justice M.Chockalingam. 8. By order, dated 19.08.2006, Honble Mr.Justice S.R.Singharavelu in O.ANo.653 of 2006 in A.No.2829 of 2006 in the Civil Suit in C.S.No.849 of 2000 passed the order as follows : "Receiver submitted that some of the tenants are not making payment of rent. Hence, he is directed to take suitable action against the tenants on the ground of wilful default in payment of rent. He has also submitted that D2 sub-leased the premises to somebody else. If that is so, he is also directed to take suitable legal action against him. " The second defendant referred to in the order is none other than the petitioner herein and as per the order, it was brought to the notice of this Court that the petitioner herein had sublet certain portions of the property to some body else, though Receiver was appointed to collect the rent. 9. " The second defendant referred to in the order is none other than the petitioner herein and as per the order, it was brought to the notice of this Court that the petitioner herein had sublet certain portions of the property to some body else, though Receiver was appointed to collect the rent. 9. Honble Mr.Justice S.Rajeswaran, by order, dated 09.10.2006 made in O.A.No.653 of 2006 has ordered as follows : "That Dharanikumar, the 2nd respondent / 2nd defendant herein, be and is hereby restrained by an order of injunction till the disposal of the suit C.S.No.849 of 2000 from interfering in the performance of duties by the receiver viz., collecting rents and profits in the suit property morefully set out in the schedule hereunder." 10. Honble Mrs.Justice Prabha Sridevan in O.A.No.653 of 2006, by order, dated 25.09.2007 has ordered as follows : "That Dharanikumar, the 2nd respondent herein, be and is hereby restrained by an order of Interim Injunction until further orders of this Court from interfering with the Advocate Receivers discharge of duties and the O.A.No.653 of 2006 do stand closed." It is not in dispute that Dharnikumar, the petitioner herein was also restrained by an order of interim injunction from interfering with Advocate Receivers discharge of his duties. 11. Honble Mr.Justice V.Ramasubramanian, by order dated 12.02.2008 made in A.No.647 of 2008 in C.S.No.849 of 2000 has discharged the Advocate-Receiver, who was appointed, as per order, dated 07.02.2006 in O.A.No.658 of 2006 and appointed the respondent herein as Party Receiver stipulating the powers and functions of the respondent, who was appointed as Party Receiver as follows : "1. That the Advocate Receiver already appointed be and is hereby permitted to hand over whatever are in his possession to the Party Receiver now appointed by this Court. 2. That Nirmala, the plaintiff / applicant herein, be and he is hereby appointed the receiver of the movable property and of the rents, issues and profits of the immovable property mentioned in the schedule hereunder, with power to get in and collect the outstanding debts and claims due in respect of the said properties and with all the powers and duties provided for in Order XL of the Code of Civil Procedure. 3. 3. That the Plaintiffs / Defendants and all persons claiming under them do deliver up quiet possession of the said property, movable and immovable, together with all leases, agreement for lease, account books, papers, memoranda and writings relating thereto, to the said receiver. 4. That the said receiver do take possession of the said property, movable and immovable and collect the rents, issues and profits of the said immovable property and that the tenants and occupiers thereof do attorn and pay their rents in arrear and growing rents to the said receiver. 5. That the said receiver shall have power to bring and defend suits in his own name and shall also have power to use the name of the plaintiffs and defendant. 6. That the receipt or receipts of the said receiver shall be a sufficient discharge for all such sum or sums of money or property as shall be paid or delivered to him as such receiver as aforesaid. 7. That the said receiver do out of the first money to be received by him pay the municipal and other public charges due in respect of the said property and shall be entitled to retain in his hands a sum of Rs.100/- for current expenses, by subject thereto, shall pay his net receipts, so soon as the same come to his hands, into Court to the credit of this suit. 8. That the said receiver shall once in every two months file his accounts and vouchers in Court, the first of such accounts commencing from the date of appointment brought up to 12.04.2008 and being file on or before the 22.04.2008 and subsequent accounts at intervals of two months thereafter, and have the same passed before the proper officer of this Court." 12. It is an admitted fact that the premises, that was let out for which the petitioner herein claims right to collect rent is a non-residential premises, which is under the occupation of a tenant. Neither the petitioner nor the respondent is running any business in the said premises, however, the petitioner herein, who had inducted the tenant is collecting the rent and also claiming right to collect the rent, even after appointment of Party Receiver. Neither the petitioner nor the respondent is running any business in the said premises, however, the petitioner herein, who had inducted the tenant is collecting the rent and also claiming right to collect the rent, even after appointment of Party Receiver. Now the short question is whether the petitioner is entitled to collect the rent from the said tenant, after the appointment of receiver by this Court and seek stay of further proceedings in the E.P. 13. Learned counsel appearing for the respondent drew the attention of this Court to the earlier orders passed by this Court. This Court passed an order, dated 19.08.2006 in O.A.No.653 of 2006 in A.No.2829 of 2006 in C.S.No.849 of 2000, which reads as follows : "Receiver submitted that some of the tenants are not making payment of rent. Hence, he is directed to take suitable action against the tenants on the ground of wilful default in payment of rent. He has also submitted that D2 sub-leased the premises to somebody else. If that is so, he is also directed to take suitable legal action against him. " It is an admitted fact that in the aforesaid Original Application in O.A.No.653 of 2006, the petitioner and the respondent herein, their other brother and sister were parties and D2 referred to in the order is only the revision petitioner herein, hence, the order of appointing Receiver by this Court is binding all the parties to the Civil Suit, including the Revision petitioner herein. 14. As per the order, dated 07.02.2006 made in O.A.No.658 of 2003, this Court had appointed Advocate-Receiver and subsequently, as per order, dated 12.02.2008, passed in A.No.647 of 2008 in C.S.No.849 of 2000, the respondent herein was appointed as party receiver of the whole property to collect rents, debts relating to the property with specific powers to pay tax etc., and remit the balance. It was made clear that the parties to the Civil Suit and all persons claiming right through them do deliver and quit possession of the property, movable and immovable, together with lease, agreement for lease, account books, papers, memoranda and writings relating thereto, to the said receiver and the respondent as Receiver shall have power to bring and defend suits in her own name and shall also have power to use the name of the plaintiffs and defendant. The party receiver shall pay municipal and other public charges due in respect of the said property and shall be entitled to retain in her hands a sum of Rs.100/- for current expenses. Admittedly, the petitioner, who was a party to the order passed by this Court, has not challenged the same, as per procedure known to law, hence, he cannot challenge the order before the Court below. 15. In Radha Kanta vs. Benode Behari, AIR 1934 Calcutta 444, the Calcutta High Court held that a partnership at Will and after the institution of suit, operates as dissolution of the partnership and as the plaintiffs share in the firm being admitted, a party to the suit should not be appointed as a receiver except with the consent of the other party. In the instant case, as contended by the learned counsel appearing for the respondent, the order of appointing the respondent as party receiver was neither objected nor challenged by the other co-owners, including the petitioner herein. Hence, the aforesaid decision cited by the learned counsel for the petitioner regarding Party Receiver, while dissolving the partnership firm is not applicable to the facts and circumstance of this case. 16. Similarly, the decisions, Bhagwan Das vs. Sheonandan Prasad Sahu, reported in 1925 Patna 293 is also not relevant on the facts and circumstances of this case, as the respondent Party Receiver has not violated the order of her appointment as Receiver, hence, there is no error or infirmity in the impugned order by the Court below. Under Order 40 Rule 1 CPC, leave has to be obtained from this Court, if the order is not specific with regard to powers and functions of the Receiver. Here in the instant case, this Court, by its order, dated 12.02.2008, has specifically empowered the Party Receiver to collect the rent from the parties, institute suits and defend the case relating to the suit property and to pay monthly taxes etc., hence, there is no need for the respondent, Party Receiver herein to seek any leave from the Court in discharging her duty. As per the order of this Court, dated 12.02.2008, no leave is required for the respondent under Order 41 Rule 1 CPC to take action against any tenant, who has committed wilful default in payment of rent. 17. As per the order of this Court, dated 12.02.2008, no leave is required for the respondent under Order 41 Rule 1 CPC to take action against any tenant, who has committed wilful default in payment of rent. 17. In D.Amsaveni vs. Chandran, reported in 2007-4-LW 517, this Court held that eviction order cannot be executed against the petitioner therein, who was the original owner of the property, when no tenant was in occupation of the demised premises and accordingly, order of eviction of the petitioner therein and the removal of obstruction under Order 21 Rule 97 CPC, passed by the Rent Controller, confirmed by the Rent Control Appellate Authority was found to be perverse and improper, however, the decision is not applicable to this case. 18. In the instant case, the petitioner, who is a co-owner of the property is not in occupation of the demised premises, only the tenant is in occupation of the premises and the premises was let out to the tenant for non-residential purposes. Therefore, the aforesaid decision is not applicable to this case, based on which the petitioner cannot collect the rent, in view of the order of appointment of Receiver by this Court. After the appointment of the respondent as party receiver, the revision petitioner has no right to collect rent from any tenant of the premises relating to the suit. 19. In R.Devadass vs. Subordinate Judge, Ponneri and others, reported in AIR 2004 Madras 249, this Court has held as follows : "10...A blind and stereo types method of receiving and activating every application without knowing as to whether it is bona fide or mala fide is an unhealthy trend and before an application is entertained, especially at the state of execution of a hardly won decree, the Executing Court has got an inherent duty to search for the availability of the bona fide adjudicatable material. It is in that process, the Executing Court returned the application granting two weeks time for the obstructor not only to quote the law under which he has filed the application, but also to issue a notice to the decree-holder." 20. It is in that process, the Executing Court returned the application granting two weeks time for the obstructor not only to quote the law under which he has filed the application, but also to issue a notice to the decree-holder." 20. In the case on hand, admittedly the learned single Judge of 12.02.2008, after hearing the petitioner, respondent and others this Court, as per order, dated having interest in the property, appointed the respondent herein as party Receiver, that was not objected to or challenged by the respondent or others before the appropriate forum. Pursuant to the order of appointment, the respondent as party receiver is entitled to act as per the direction given by this Court. She is empowered to collect the rent to institute and defend the suit in her own name and to pay the dues payable to the municipal authorities and other public charges. 21. As per the order of this Court, dated 12.02.2008 passed in A.No.647 of 2008 except the Receiver, no other person including the petitioner herein is empowered to collect the rent from the tenants. The joint possession and enjoyment alleged by the petitioner cannot be accepted after the appointment of Receiver and the duty of collecting the rent, to institute and defend cases and for paying municipal tax to the authorities are specifically stated in the said order by this Court. In view of the order, the revision petitioner has no right to collect rent from any tenant, in respect of the suit properties, after the appointment of the respondent as Receiver. The petitioner herein has neither submitted any account for the rent being collected, nor deposited the same before the Court. Though the petitioner and the respondent herein are brother and sister and also co-owners of the property, as their other brother and sister, after the order, dated 12.02.2008, passed in A.No.647 of 2008, the respondent, Party Receiver alone is empowered to collect the rent and perform the duty assigned to her, as per the order appointing her as Receiver until further orders. Admittedly, the petitioner has not challenged the order of appointment of Party Receiver, hence, he cannot challenge her authority before the Court below. Admittedly, the petitioner has not challenged the order of appointment of Party Receiver, hence, he cannot challenge her authority before the Court below. As per order of this Court, dated 12.02.2008, the respondent herein has right to initiate legal action against any tenant, who commits wilful default in payment of rent, for which she need not obtain any leave from this Court under Order 40 Rule 1 CPC. 22. On the aforesaid circumstances, the petitioner has no right to collect any rent from the tenants of the suit property. Similarly, the petitioner is not entitled to stay the operation of the E.P and as there is no illegality or infirmity in the order passed by the Court below, hence, this Court cannot interfere with the same by way of Revision. 23. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.