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2010 DIGILAW 3149 (MAD)

C. Ponnusamy v. Muniammal (deceased)

2010-07-29

G.RAJASURIA

body2010
Judgment :- 1. Animadverting upon the order dated 17.02.2010 passed in M.P.No.2 of 2010 in M.P.No.370 of 2007 in E.P.S.R.No.17866 of 2006 in RCOP No.215 of 2001 by the learned XV Judge, Small Causes Court at Madras, this civil revision petition is focussed. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: (i) One deceased Muniammal filed RCOP No.215 of 2001 as against Ponnsuamy, the revision petitioner herein and got an order of eviction, whereupon, RCA was filed. Even before the serving of notice of appeal it was found that Muniammal died, so to say after she having obtained eviction order in the RCOP. In such circumstances, the learned counsel who appeared for the appellant Ponnsamy was constrained to make an endorsement that in view of Muniammal having died issueless and without leaving any legal heirs, the appeal could be taken as abated. Whereupon, the lower Court also passed suitable orders dismissing the RCA as abated. It so happened that afterwards, M.P.No.565 of 2006 was filed by the respondents 1 to 4 herein projecting themselves as the legal representatives of the deceased Muniammal so as to permit them to file the E.P. to execute the eviction order passed in RCOP No.215 of 2001. Whereupon, the said M.P. was dismissed, as against which revision was filed in High Court in CRP (NPD) No.2255 of 2007. My learned Predecessor even at the admission stage without ordering notice to Ponnusamy, dismissed the CRP with the observation, which would run thus: "8......Taking into consideration the submissions made, this Court is of the considered opinion that while dismissing the revision, it is kept open for the party to substantiate the same before the authority below and get necessary orders, if so advised. There is no impediment for the petitioners even for filing necessary application before the appellate forum where the RCA was pending, seeking to set aside the order of abatement originally passed by that authority. Accordingly, this civil revision petition is dismissed. No costs." (ii) Consequent upon the same, the alleged legal heirs of the deceased Muniammal once again filed M.P.No.370 of 2007 for the purpose of enabling them to proceed with the E.P. as the legal representatives of the deceased decree holder Muniammal in the RCOP. Accordingly, this civil revision petition is dismissed. No costs." (ii) Consequent upon the same, the alleged legal heirs of the deceased Muniammal once again filed M.P.No.370 of 2007 for the purpose of enabling them to proceed with the E.P. as the legal representatives of the deceased decree holder Muniammal in the RCOP. The said Ponnusamy entered appearance and filed his counter and whereupon enquiry was conducted and oral and documentary evidence were adduced. At that juncture, M.P.No.2 of 2010 was filed by Ponnusamy with the following prayer: "To adjudicate upon preliminary issue with regard to the maintainability of M.P.370 of 2007." so to say, Ponnusamy wanted the Executing Court to decide on the maintainability of M.P.No.370 of 2007, whereupon the lower court passed the impugned order dated 17th February 2010 observing that along with M.P.No.370 of 2007, the plea of Ponnusamy would be considered relating to the maintainability of the said M.P.No.370 of 2007. Being aggrieved by and dissatisfied with the said order dated 17.02.2010 in M.P.No.2 of 2010, this revision has been filed. 4. The learned counsel for the revision petitioner by detailing and delineating the aforesaid facts would also echo the cri de coeur of the revision petitioner that he was incapacitated from prosecuting the RCA and getting orders on merits before the appellate authority; the so called legal heirs of Muniammal, who are R1 to R4 herein did not take any effort to get themselves impleaded in the RCA as respondents; but on the other hand, they tried to execute the order of eviction passed in RCOP and thereby deprived Ponnusamy of his valuable right of appeal. 5. According to the learned counsel for Ponnusamy, if at all the alleged legal heirs of the deceased Muniammal had any right, they in commensurate with the observations made by this Court in CRP as extracted supra, should have fled the application before the appellate authority to reopen the matter and get themselves impleaded as respondents, but they have not chosen to do so. But they straightaway filed M.P.No.370 of 2007 so as to enable them to file the E.P. and execute the order of eviction passed in RCOP. Accordingly, he prays for setting aside the impugned order and direct the lower Court to decide on the maintainability of M.P.No.370 of 2007. 6. But they straightaway filed M.P.No.370 of 2007 so as to enable them to file the E.P. and execute the order of eviction passed in RCOP. Accordingly, he prays for setting aside the impugned order and direct the lower Court to decide on the maintainability of M.P.No.370 of 2007. 6. Whereas, the learned counsel for Muniammal, contradicting and gainsaying, challenging and impugning the contentions/averments as put forth on the side of Ponnusamy would advance his arguments, the gist and kernel of them would run thus It is not the duty of the legal representatives of the deceased Muniammal to voluntarily get RCA reopened and impleaded themselves as representatives of Muniammal. Nowhere earlier this Court mandated that the legal representatives of Muniammal should straightaway approach the RCA Court. M.P.No.370 of 2007 was already posted for arguments and in such a case, it is too late in the day on the part of Ponnusamy to call upon the Executing court to decide on the maintainability of M.P.No.370 of 2007. According to the learned counsel for the respondent, there is nothing wrong in the order passed by the Executing Court. Accordingly, he prays for the dismissal of the revision. 7. The points for consideration are as to: (1) Whether Ponnusamy, the petitioner herein has got the right to call upon the Executing Court to decide on the maintainability of M.P.No.370 of 2007 and that too after evidence having been adduced in M.P.No.370 of 2007? and (2) Whether there is any illegality of infirmity in the order passed by the Court below? 8. The above narration of facts would make the point obviously and axiomatically clear that the respondents herein on the strength of the liberty given to them in the earlier order dated 13.08.2007, filed such an application and it is for the Executing Court to decide on merits as to whether the alleged legal representatives of Muniammal are really the legal representatives having the right to get executed the order of eviction passed in the RCOP passed by the Rent Controller and in that process, Ponnusamy, who happened to be the respondent in the RCOP is having a right to resist that M.P.No.370 of 2007 on all grounds including the ground relating to maintainability. But in the wake of the opportunity given by my learned Predecessor, the said Ponnusamy is having no right to call upon the lower Court to decide on the maintainability of M.P.No.370 of 2007 as a preliminary issue itself. I would also make it clear that if at all any further evidence has to be adduced on the side of Ponnusamy, he is at liberty to do so. As such, the lower Court should give further opportunity to both sides to adduce oral and documentary evidence and thereafter hearing both sides, the Executing Court shall pass a reasoned order touching upon all the points including the maintainability of M.P.No.370 of 2007. 9. Regarding the contention on the side of Ponnusamy, the revision petitioner herein that the respondent herein should have only approached the appellate forum for getting the matter reopened, in my opinion is not readily acceptable and Ponnusamy as a person who happened to be the appellant therein made such endorsement is always at liberty to move the appellate Court as per law and take further action in the appeal, if he is advised to do so. 10. The learned counsel for the respondents would pray for fixing time limit for the disposal of M.P.No.370 of 2007. I would like to direct that the Executing Court shall dispose of M.P.No.370 of 2007 within a period of three months from the date of receipt of a copy of this order. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closeds