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Madras High Court · body

2010 DIGILAW 2249 (MAD)

P. G. Pattabi v. Mythili

2010-06-08

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 21.01.2010 passed in E.P.No.269 of 2007 in I.A.No.656 of 1986 in O.S.No.947 of 1975 by the Additional Munsif Court, Vellore, this civil revision petition is focused. 2. Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germane for the disposal of this civil revision petition would run thus: (i) O.S.No.947 of 1975 was filed by the original plaintiff-Thirunavukkarasu and on his death his LRs R1 to R5 herein came on record. Ultimately, the suit was decreed. The original defendant contested the matter on the ground that he was entitled to benefits under the Tamil Nadu City Tenants Protection Act and filed necessary I.A. also. (ii) The said suit and the application were tried together and ultimately the trial Court passed the judgement, the operative portion of it is extracted hereunder for ready reference: “18. Issue No.4: For the foregoing reasons, I hold that the defendant shall pay into Court a sum of Rs.26,187.25 within a period of 6 months in 3 instalments of 2 months intervals from the date of this Judgement with interest and in default of payment by the defendant of any one of the instalments, the application in I.A.No.180 of 1976 shall stand dismissed and the suit will stand decreed with costs. I also direct the plaintiff to execute a deed of conveyance in favour of the defendant of 3,801 ft. 9 inches in the suit site at the price of Rs.26,187.25 after the deposit of the entire sale consideration by the defendant and direct the defendant to bear the registration fee and the stamp duty for the conveyance. I also order that on the execution of the sale deed by the plaintiff to the defendant of the extent mentioned above, at the price fixed above, the suit shall stand dismissed.” (iii) Both the parties took up the matter before the appellate forum challenging the quantum of amount assessed by the trial Court. The plaintiff’s appeal was allowed in part and the defendant’s appeal was dismissed. (iv) As against the said order in the appeal, the plaintiff/landlord preferred the C.R.P.No.34 of 1984, which was allowed and ultimately the amount was fixed at Rs.12/- per sq.ft. (v) However, the defendant, who happened to be the tenant failed to comply with the order by paying the said amount within the stipulated time. (iv) As against the said order in the appeal, the plaintiff/landlord preferred the C.R.P.No.34 of 1984, which was allowed and ultimately the amount was fixed at Rs.12/- per sq.ft. (v) However, the defendant, who happened to be the tenant failed to comply with the order by paying the said amount within the stipulated time. (vi) Whereupon the plaintiff filed the I.A.No.656 of 1986 seeking the following reliefs: “to give effect to the judgement of this Honourable Court dated 31.3.1978 decree and declare that the suit has been decreed and also holding that I.A.No.180 of 1976 stands dismissed.” (extracted as such) (vii) After hearing both sides, the lower Court allowed the application by passing order, the operative portion of which would run thus: TAMIL (viii) As against the said order in I.A.No.656 of 1986, the defendant/tenant preferred the C.R.P.No.729 of 1992, which was allowed. Whereupon the plaintiff filed the Civil Appeal No.4705 of 1999 before the Honourable Apex Court and ultimately, the Apex Court by order dated 19.10.2006 set aside the order of the High Court in the said C.R.P. and the operative portion of the Apex Court’s order would run thus: “We must, therefore, hold that the High Court was in error in holding that if the sale price is deposited within three years of the date of the final order passed by the High Court, which order attained finality, the tenant should be held to have discharged the obligation cast upon him by Section 9(1)(b) of the Act. We hold that unless the order is stayed or the tenant absolved of his obligation to make the deposit by an order passed by the appellate or revisional court, the order determining the price remains operative and all necessary consequences contemplated by Section 9 (2) of the Act must follow. If the tenant fails to make the deposit within the time fixed by the Court, his application under Section 9 of the Act for sale of the land to him must stand rejected and the amount paid by him, if any, shall be refunded to him in accordance with the provisions of the Act. We, therefore, allow this appeal, set aside the order of the High Court dated 26th February, 1998 passed in Civil Revision Petition No.729 of 1992 and restore that of the Principal District Munsif, Vellore dated February 4, 1992 in I.A.No.656 of 1986 in O.S.No.947 of 1975. We, therefore, allow this appeal, set aside the order of the High Court dated 26th February, 1998 passed in Civil Revision Petition No.729 of 1992 and restore that of the Principal District Munsif, Vellore dated February 4, 1992 in I.A.No.656 of 1986 in O.S.No.947 of 1975. The trial Court shall now pass necessary orders for refund of the sale price to the tenant in accordance with the provisions of the Act. Parties are, however, directed to bear their own costs.” (ix) Whereupon E.P.No.269 of 2007 was filed by the plaintiff/decree holder for delivery of possession without filing the certified copy of the decree passed in O.S.No.947 of 1975 on the ground that the decree copy was not available with him. However, the extract of the Suit Register was filed and the E.P. was numbered. After hearing both sides, the lower Court ordered delivery of possession. As against which, the present revision petition is focussed. 3. The gist and kernel of the contention as found set out in the C.R.P.would run thus: (i) The execution petition itself is against law and it was filed without the certified copy of the decree. (ii) The compensation amount payable to the petitioner/judgment debtor as per the provisions of the Madras City Tenants Protection Act has not been ascertained so far and without directing the plaintiff to deposit the amount in favour of the revision petitioner/judgement debtor, the trial Court should not have ordered delivery of possession. (iii) Only theorder in I.A.No.656 of 86 was sought to be enforced by the said E.P. and not the decree in O.S.No.947 of 1975. (iv) The E.P. was barred by limitation. Accordingly, the revision petitioner/judgment debtor prays for setting aside the order of the lower Court in ordering delivery of possession in favour of the respondent/decree holder. 4. The learned counsel for the revision petitioner reiterating the grounds of revision would set forth and put forth his arguments, the pith and marrow of them would run thus: (a) There cannot be an E.P. filed and got numbered without the certified copy of the decree. (b) There is no question of enforcing the order passed by the Court in I.A.No.656 of 1986, as it is quite obvious and axiomatic. (b) There is no question of enforcing the order passed by the Court in I.A.No.656 of 1986, as it is quite obvious and axiomatic. (c) The compensation contemplated under section 3 of the City Tenants Protection Act should have been assessed and the plaintiff/decree holder should have been directed to deposit the same, before ordering eviction. 5. By way of torpedoing and pulverizing the arguments as put forth on the side of the revision petitioner, the learned counsel for the respondent/plaintiff/decree holder made his submissions, the tour’d horizon of the same would run thus: (i) This Court in the judgement reported in (2000)3 M.L.J.276 – FEROZ KHAN VS. S.M.S.S.A.FAROOK ALI held that the certified copy of the decree need not be filed for filing E.P. and simply because the certified copy of the decree was not filed, the executing Court is not enjoined to reject it. (ii) The records would speak by itself that the certified extract of the Suit Register bearing the endorsement relating to the actual relief granted in the suit by the Court was filed in view of the fact that the certified copy of the decree passed in O.S.No.947 of 1975 was not available with the plaintiff. In fact, the very I.A.No.656 of 1986 was a surplusage. (iii) De hors the I.A.No.656 of 1986 and the orders passed thereunder at the instance of the plaintiff the plaintiff could have very well filed the E.P. for executing the decree in O.S.No.947 of 1975. However, by way of abundant caution, the plaintiff has chosen to file that I.A.No.656 of 1986 also and got the point reiterated by the lower Court that the judgement and the decree in favour of the plaintiff in O.S.No.947 of 1975 is an executable one and consequently, the Court in I.A.No.656 of 1986 ordered delivery of possession and that order is found specified in the concerned column, namely, column No.3 in the E.P. format and simply because the O.S.No.947 of 1975 is not referred to in the said Column, the entire E.P. cannot be treated as one having no legs to stand and even by phantasmagorical thoughts, it cannot be described that the E.P. is untenable in the eye of law. (iv) The Court has to see the over all circumstances and that too in the wake of the order passed by the Honourble Apex Court. (iv) The Court has to see the over all circumstances and that too in the wake of the order passed by the Honourble Apex Court. The Honourable Apex Court clearly found the matter in favour of the plaintiff and as against the defendant and the Apex Court was specific in its finding that the defendant committed default in availing the benefits under the Tamil Nadu City Tenants Protection Act. In such a case, the defendant cannot by hook or crook or by picking holes in the procedure try to stall the execution proceedings. Accordingly the learned Senior counsel for the respondents prays for the dismissal of the revision. 6. Heard both sides. 7. The points for consideration are as under: "(i) Whether the E.P.No.269 of 2007 filed without the certified copy of the decree is tenable or not in the eye of the law? (ii) Whether the plaintiff was justified in specifying in the 3rd column of the E.P.format the I.A.No.656 of 1986 instead of O.S.No.947 of 1975. (iii) Whether the E.P. is an illegal one, which is liable to be struck down. (iv) Whether the failure to assess the amount as contemplated under Sec.3 of the Tamil Nadu City Tenants Protection Act and to direct the same to be paid to the Judgment Debtor is fatal to the order of delivery passed by the lower Court? 8. All these points are taken together for discussion as they are interlinked and interwoven, entwined and interconnected with one another. 9. Indubitably and indisputably, unarguably and unassailably the E.P.was filed without the certified copy of the decree in O.S.No.947 of 975. On seeing this glaring situation, my learned predecessor ordered the lower Court to furnish report in that regard. 10. Whereupon, the lower Court submitted its report, enclosing the photo copy of the Suit Register containing the endorsements made relating to the reliefs granted in the suit and also the copy of the I.A.No.656 of 1986 and the E.P.concerned with all endorsements found thereon. 11. No doubt even at the time of entertaining the E.P. itself the office of the lower Court made returns and it was represented by the advocate for the plaintiff by making the following endorsement. 11. No doubt even at the time of entertaining the E.P. itself the office of the lower Court made returns and it was represented by the advocate for the plaintiff by making the following endorsement. “Schedule given as per the description given in the schedule of property attached to the application under Section 9 of the City Tenants’ Protection Act and that will suffice for the purpose of this E.P. since what is required in the Civil Procedure Code is only a proper identification of the properties to be delivered to the decree holder – petitioner herein. Copy of the decree is not available in the court despite intensive search in the District Court, District Munsif Court and High Court records. Moreover, it is not mandatory for the decree copy to the filed. Order 21 Rule 11 of the Code of Civil Procedure makes it clear. Since the suit is more than 32 years old and the Supreme Court passes the order more than an year ago. Hence, it is prayed that urgent orders may be passed in the above E.P." 12. Whereupon the E.P. was numbered and the defendant entered appearance and contested the E.P. Ultimately, the execution Court passed a detailed order on 21.1.2010. 13. A mere perusal and poring over of the said order would demonstrate and display that the lower Court correctly understood the entire issue, appreciated the facts on record and also relied on the judgement of this Court reported in (2000)3 M.L.J.276 – FEROZ KHAN VS. S.M.S.S.A.FAROOK ALI and held that the mere non filing of the certified copy of the decree in O.S. is not fatal to the matter. 14. The lower Court in its report would state that earlier in connection with C.R.P.No.729 of 1992 the entire case records were submitted to the High Court. There were lot of proceedings, which emerged between the parties and in that connection records were also transmitted from one Court to another. As such, it could be understood that readily the original decree relating to the suit is not traceable. Even then, the Suit Register would clearly demonstrate and display as to what are the operative portions of the said decree. The last paragraph of the judgement in O.S.No.947 of 1975 passed by the trial Court and the reliefs granted in that decree, as found exemplified in the Suit Register, do tally with each other. Even then, the Suit Register would clearly demonstrate and display as to what are the operative portions of the said decree. The last paragraph of the judgement in O.S.No.947 of 1975 passed by the trial Court and the reliefs granted in that decree, as found exemplified in the Suit Register, do tally with each other. In such a case, this Court could have no hesitation in placing reliance on that Suit Register as well as the last portion of the judgement of the trial Court in O.S.No.947 of 1975 for the purpose of enforcing the decree. 15. Decree is found defined in the Code of Civil Procedure as under: "'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." 16. It is therefore obvious that decree follows the judgement and it reflects the intention of the Court as to what relief a party is precisely entitled to. Here a mere reading of the said judgement of the lower Court as well as the extract of the Suit Register would clearly exemplify and expatiate that the decree comprised of two parts, so to say, if the defendant complies with the direction relating to the payment of the value of the property, the suit of the plaintiff would stand dismissed, as otherwise, the suit of the plaintiff would stand decreed. 17. 17. Here the Honourable Apex Court’s decision in Civil Appeal No.4705 of 1999 would convey and demonstrate, display and expatiate that the defendant failed to comply with the portion of the decree which was in his favour and in such a case it is quite obvious that the plaintiff is entitled to enforce that decree by way of obtaining delivery of possession. 18. In fact, the Honourable Apex Court in the judgment dated 19th October 2006 pellucidly and palpably pointed out that the defendant’s application under Section 9 of the Act for the sale of the land to him must stand rejected and the amount paid by him, if any, should be refunded to him in accordance with law. 19. It is therefore crystal clear that the portion of the lower Court’s decree in favour of the defendant cannot be pressed into service by the defendant and what remains is only the portion of the decree in favour of the plaintiff to obtain delivery of possession from the defendant. 20. Once the factual as well as the legal position is clear, I am at a loss to understand as to how the defendant/judgement debtor could place reliance on certain hyper technicalities and try to achieve success in the litigative process. No doubt, the plaintiff specified in the relevant column, namely, column No.3 in the E.P. format only the I.A.No.656 of 1986 and the order dated 4.2.92 passed thereunder. 21. The learned counsel for the revision petitioner would submit that had the judgement and decree in O.S.No.947 of 1975 been found referred to therein then all technical objections would not have arisen from the side of the revision petitioner. 22. All the same and be that as it may, the Court has to see cutting across the technicalities the realities. At this juncture I could call up and recollect the following maxims: (1) Actus curiae neminem gravabit- An act of the Court shall prejudice no man. (2) Actus legis nemini facit injuriam- The act of the law does injury to no one. (3) Executio juris non habet injuriam- The execution of law does no injury. (4) Jus ex injuria non oritur – A right does (or can) not rise out of a wrong. (2) Actus legis nemini facit injuriam- The act of the law does injury to no one. (3) Executio juris non habet injuriam- The execution of law does no injury. (4) Jus ex injuria non oritur – A right does (or can) not rise out of a wrong. The aforesaid maxims would connote and denote that no one could raise any objection or complain that he has been wronged by any steps legally taken by the Court. 23. The objections raised on the side of the revision petitioner would all virtually tantamount to finding fault with the Court in adhering to the procedures. In such a case, it has to be seen as to whether any substantial prejudice has been caused to the revision petitioner in the execution proceedings. 24. Mere picking holes in the procedure followed by the Court would not be sufficient to get set aside an order of the Court, which is otherwise in order. It is the bounden duty of the revision petitioner to convince this Court that because of the non-adherence to certain procedures, the revision petitioner was prejudiced substantially. 25. Here there is absolutely no shard or shred, molecular or miniscule, iota or pint of evidence to highlight and spotlight that the revision petitioner was in any way prejudiced by such alleged non adherence to the punctilious of Court procedures. Procedures are handmaids of justice and time and again in catena of decisions it is found exemplified that no order shall be set aside on mere hyper technicalities unless it is proved that prejudice has been caused to the party, who seeks to get set aside such an order. 26. In this case, the defendant is not in any way prejudiced by the procedure adopted by the lower Court. In such a case, I could see no merit in this revision petitioner. 27. 26. In this case, the defendant is not in any way prejudiced by the procedure adopted by the lower Court. In such a case, I could see no merit in this revision petitioner. 27. The learned counsel for the revision petitioner would submit that he is at a loss to understand as to where from the respondent/plaintiff/decree holder got the schedule of property, for which the learned counsel for the respondent/plaintiff would submit that from the very schedule referred to in the Section 9 application filed under the Tamil Nadu City Tenants Protection Act by the defendant and also from the schedule found exemplified in the Suit Register referred to supra, it could be taken that the E.P.scheduled property is the proper property, which should be delivered to the decree holder/plaintiff. The same ratiocination has been adhered to by the trial Court, warranting no interference by this Court. 28. It is not the case of the revision petitioner that some property belonging to him is sought to be taken away by the plaintiff. When such a plea is not there, the question of prejudice also does not arise. All along the parties have been litigating, so to say, for more than three decades and a half having in their mind the proper identity of the property and the said property is found exemplified in various proceedings. It is not as though they were litigating without knowing or having in their mind the identity of the property concerned. In such a case, it is too late in the day on the part of the revision petitioner to raise the plea that there is no clarity about the property found set out in the schedule of the E.P. for delivery. As such, the lower Court addressed itself properly all the issues and passed the order, warranting no interference. 29. The learned counsel for the revision petitioner/defendant would refer to the paragraph No.14 of the judgement of the lower Court dated 31.3.1978 in O.S.No.947 of 1975, which is extracted hereunder: "14. So far as the well is concerned, there is no satisfactory evidence on the side of the plaintiff that his father dug up the well. I fact the evidence of P.W.1 shows that in the partition that took place in the year 1956, the well has not been mentioned. So far as the well is concerned, there is no satisfactory evidence on the side of the plaintiff that his father dug up the well. I fact the evidence of P.W.1 shows that in the partition that took place in the year 1956, the well has not been mentioned. The defendant also has not marked any documentary evidence to show that he dug up the well. Hence, I do not think it proper to add or subtract the value of the well from the value of the site. Admittedly the huts put up by the defendants are all thathed one and even here I find that the commissioner has very fairly fixed the price of the huts on proper basis. I have already stated that only 2 huts could have been in existence before the coming into force of the City Tenants Protection Act, namely one on the southern side and one on the northern side. The defendant is not certainly entitled for compensation for the other huts put up by him from the plaintiff from the plaintiff under Section 31 of the City Tenants Protection Act. Hence, the value of the huts on the northern side and southern side alone has to be deducted from the total value. The value of these 2 huts according to Exhibit C-1 works out to Rs.1,250/-. Deducting this value, the total works out to Rs.26,487.25." it is pointed out that a sum of Rs.1,250/- was being the value of the two huts according to Ex.C1 and that amount was deducted from the value payable by the defendant/tenant and ultimately, the value payable by the defendant/tenant was quantified in a sum of Rs.26,487, but the defendant failed to deposit the said amount. 30. The learned counsel for the plaintiff would submit that even before the Honourable Apex Court there was no arguments advanced relating to the defendant’s entitlement for the superstructure and before the lower Court also there was no plea taken in that regard and when the property is about to be delivered the revision petitioner is not entitled to rack up the said point. 31. I could see considerable force in the submission made by the learned counsel for the respondent/plaintiff. 31. I could see considerable force in the submission made by the learned counsel for the respondent/plaintiff. A reading of Section 4(1) of the Tamil Nadu City Tenants Protection Act would clearly show that these are all matters, which should have been dealt with before the trial Court and if the defendant felt that the trial Court was not right in its approach, then before the appellate forum all these matters should have been adjudged and it is too late on the part of the defendant to try to press into service the provisions of Section 4(1) of the Tamil Nadu City Tenants Protection Act. It is also worth noting that even before the executing Court this point has not been raised and as such for the first time in the revision, the revision petitioner/defendant cannot try to invoke Section 4(1) of the said Act also. Hence, in this view of the matter I could see no merit in this revision and accordingly, the revision is dismissed. 32. At this juncture, the learned counsel for the respondent/plaintiff/decree holder would make an extempore submission that necessary direction might be given to the lower Court for expeditious handing over of possession of the property in favour of the decree holder/plaintiff. 33. It goes without saying that the executing Court shall take steps to effect delivery expeditiously in favour of Decree holder/plaintiff. In the result, the civil revision petition is dismissed. No costs.