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2013 DIGILAW 2002 (MAD)

P. J. Murthy v. P. A. Sundari

2013-06-13

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The Civil Revision Petitions are filed by the tenant aggrieved against the orders made in E.A.Nos. 1 of 2013 and 2 of 2013 in E.P.No. 33 of 2012 in R.C.O.P.No. 2 of 2006 on the file of the District Court, Sholingur, wherein and whereby the said applications filed by the petitioner one for seeking to receive the additional counter and the other for seeking permission to examine him were rejected. 2. The short facts that are necessary for deciding the above Civil Revision Petitions are as follows:- The respondent herein is the landlady and the petitioner is the tenant. R.C.O.P.No.2 of 2006 came to be filed by the respondent seeking eviction of the petitioner on the ground of wilful default and also owner's occupation. The said R.C.O.P. was allowed by the learned Rent Controller by passing an order of eviction on 28.11.2008. An appeal preferred by the tenant in R.C.A.No. 2 of 2009 came to be dismissed on 22.11.2011 thereby confirming the order of eviction. Aggrieved against the concurrent findings of the courts below, the petitioner preferred a Civil Revision Petition before this court in C.R.P.(NPD) No. 874 of 2012. On 16.4.2012, the learned single Judge of this Court dismissed the said Civil Revision Petition. Challenging the said order, SLP was filed by the petitioner before the Hon'ble Supreme Court in SLP No. 17744 of 2012. The said SLP also came to be dismissed by the Apex Court on 19.10.2012. While dismissing the SLP, the Hon'ble Supreme Court granted time till 31.12.2012 to vacate the premises subject to the tenant / petitioner herein filing usual undertaking before the Apex Court within four weeks from 19.10.2012. Admittedly, no such affidavit of undertaking was filed by the petitioner as directed by the Apex Court. In the meantime, the respondent/landlady filed E.P. No. 33 of 2012 for execution of the order of eviction passed by the Rent Controller. On 16.4.2013, the executing court passed an order of delivery and thereafter further applications were filed by the landlady for break open and for seeking police protection. It is stated that those applications filed by the landlady are pending. While that being the position, the petitioner herein filed E.A. Nos. 1 and 2 of 2013 before the executing court for receiving the additional counter and for permitting the petitioner to be examined orally. It is stated that those applications filed by the landlady are pending. While that being the position, the petitioner herein filed E.A. Nos. 1 and 2 of 2013 before the executing court for receiving the additional counter and for permitting the petitioner to be examined orally. Both the petitions were rejected by the court below by specifically observing that the petitions were filed by the tenant only to drag on the proceedings. It is also found that these petitions filed by the tenant is an abuse of process of law. Aggrieved against the said order passed by the Court below, the present Civil Revision Petitions are filed before this Court. 3. Heard the learned counsel appearing for the petitioner and the respondent. 4. Mr.S.Parthasarathy, learned Counsel appearing for the petitioner submitted that even though the petitioner had lost before all the forums upto the Hon'ble Supreme Court, the petitioner has filed Review Petition (Civil) No. 459 of 2013 on the file of the Apex Court seeking to review the order passed in SLP No. 17744 of 2012 dated 19.10.2012. When the said Review Petition is still pending, the executing court cannot proceed with the execution proceedings and therefore he submitted that the petitions filed by the petitioner in E.A.Nos. 1 and 2 of 2013 ought to have been allowed by the executing court. 5. Per contra, the learned counsel appearing for the respondent landlady submitted that the tenant having failed before all the forums and admittedly having not filed any affidavit of undertaking before the Apex Court, is not entitled to maintain any petition before the executing Court muchless the one filed in E.A.Nos. 1 and 2 of 2013. It is also further submitted by him that even though the petitioner is stated to have filed the Review Petition, till this date, no notice was served on the respondent landlady and in fact the said Review Petition has not been brought before the Court for hearing. At any event, the learned counsel submitted that there is no interim order granted by the Apex Court preventing the execution proceedings from proceeding further. Thus, the learned counsel submitted that the present Civil Revision Petitions are devoid of merits. 6. At any event, the learned counsel submitted that there is no interim order granted by the Apex Court preventing the execution proceedings from proceeding further. Thus, the learned counsel submitted that the present Civil Revision Petitions are devoid of merits. 6. The petitioner as the tenant suffered an order of eviction before the learned Rent Controller and the said order was confirmed by the appellate authority as well as by this Court, while exercising revisional jurisdiction. When the said order of this Court was further challenged before the Apex Court, the Special Leave Petition filed by the petitioner/ tenant came to be dismissed on 19.12.2012, however, by granting time till 31.12.2012 to vacate the premises subject to filing of usual undertaking before the Apex Court within four weeks from 19.12.2012. Thus, while dismissing the SLP, the time granted was available to the petitioner only till 31.12.2012, that too only, if an affidavit of undertaking is filed within the time stipulated therein. Admittedly, no such affidavit of undertaking has been filed. At any event, the time granted therein till 31.12.2012 also expired when delivery was ordered by the executing court on 16.4.2013 in the execution proceedings. Therefore, on the date of passing the order of delivery, there was absolutely no impediment for the executing court to pass such an order of delivery and the petitioner/ tenant having lost before all the forums and having failed to file an affidavit of undertaking cannot have any ground to resist the execution proceedings. When that being the factual position, the conduct of the tenant in filing those two applications , one to receive the additional counter and another to permit him to be examined orally is undoubtedly an abuse of process of the court and it is a classic example to show as to how a proceedings can be dragged without any due respect to the law. 7. When I perused the affidavit filed by the petitioner filed in support of those applications, it is seen that the contention raised therein is not in any way having a bearing on the proceedings before the executing court. It is stated by the petitioner that a partition suit in O.S.No. 189 of 2007 is pending before the Court below and it was a suit between one P.J.Saraswathi and others in which the petitioner is a necessary party. It is stated by the petitioner that a partition suit in O.S.No. 189 of 2007 is pending before the Court below and it was a suit between one P.J.Saraswathi and others in which the petitioner is a necessary party. Therefore, in order to bring those facts the petitioner wanted to file additional counter affidavit. Likewise in the other application, the petitioner contended that he wanted to be examined for giving evidence to show that he has filed a Review Petition before the Apex Court and in order to elucidate such facts, he wanted to be examined orally. 8. The Court below rightly rejected both the applications by observing that these applications were filed by the petitioner only to drag on the proceedings apart from holding that they are filed as an abuse of process of law. Needless to say that the executing Court cannot go beyond the decree. When there is a decree of eviction passed against the petitioner and confirmed by all the forums, the petitioner cannot be permitted to bring some facts which are alien to the proceedings. In so far as his request for examining him orally is concerned, his only intention is to bring the fact of filing the Review Petition before the Apex Court. That has been taken into consideration by the Court below and found that there was no order passed by the Apex Court in the said Review Petition and nothing is placed by the petitioner to prevent the executing court from proceeding further. Thus, going by all these facts and circumstances, I am of the firm view that there is absolutely no merit in the contention of the petitioner and his sole intention is to drag the proceedings of eviction as far as possible. 9. I find that the order passed by the court below in rejecting those applications filed by the petitioner do not warrant any interference as I find no irregularity or infirmity therein. As rightly pointed out by the Court below, the petitioner is trying to drag on the proceedings, one way or other, in order to delay the delivery of vacant possession of the petition mentioned premises to the respondent landlady. Thus, I find that there are no merits in the Civil Revision Petitions and accordingly they are dismissed. Consequently, the connected M.P. is closed. No costs.