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2013 DIGILAW 2339 (MAD)

Kasthuri v. C. Shankar

2013-07-05

K.RAVICHANDRA BAABU

body2013
JUDGMENT :- 1. This civil revision petition is filedagainst an order made in E.P.No.243 of 2008 in R.C.O.P.No.2229 of 1995, on the file of the learned XVI Judge, Small Causes Court, Chennai. 2. By the said order, the court below ordered delivery of the petition mentioned property to the landlord/respondent herein. The said order is challenged by the petitioners by contending that the court below has not taken into consideration of the fact that the eviction order passed by the learned Rent Controller is a nullity on the ground that compromise said to have been entered between the parties in another proceedings in O.S.No.4357/2002 during the pendency of the eviction proceedings were not in fact entered with consent and on the other hand, it was obtained by fraud. 3. According to the learned counsel appearing for the petitioners, the superstructure was put up by them and therefore, the order of eviction passed in respect of the properties belonging to them is not maintainable as the Rent Control Court has got no jurisdiction to order eviction. Therefore, the learned counsel submits that the order is a nullity and consequently, the Execution Court ought to have considered the said objection raised by the petitioners in their counter. He also relied on a decision reported in (1990) 1 Supreme Court Cases 193, SUSHIL KUMAR MEHTA v. GOBIND RAM BOHRA, in support of his submission that the question of nullity of a decree can be raised at any stage of proceedings and the court is bound to consider the same. 4. Per contra, the learned counsel appearing for the respondent/landlord submitted that the petitioners have suffered a decree of eviction which has been confirmed by this Court in C.R.P (NPD) No.878 of 2002 as early as on 02.03.2006. When a specific finding is given by this court in the above civil revision petition that the denial of title by the tenants does not have any bonafide and when this court has confirmed the order of eviction, the petitioners cannot be permitted to raise the very same issue once again before the Executing Court. It is also brought to my notice that the petitioners have filed a Review Petition in R.A.No.31/2007 as against the orders passed in C.R.P NO.878/2002 and the same was dismissed on 26.04.2007. 5. I have heard the learned counsel appearing for the petitioners as well as the respondent. 6. It is also brought to my notice that the petitioners have filed a Review Petition in R.A.No.31/2007 as against the orders passed in C.R.P NO.878/2002 and the same was dismissed on 26.04.2007. 5. I have heard the learned counsel appearing for the petitioners as well as the respondent. 6. The respondent herein as the landlord filed R.C.O.P.No.2229 of 1995, seeking for eviction of the petitioners herein by contending that they are the tenants in respect of the petition mentioned property. The R.C.O.P. was filed on the ground of willful default. Though the R.C.O.P. was dismissed by the learned Rent Controller by accepting the contention of the petitioners that their denial of title is bonafide, in an appeal filed by the landlord in R.C.A.No.853 of 1997, an order of eviction came to be passed on 08.04.2002. Thereafter, the said order of eviction was challenged by the petitioners before this Court in C.R.P.(NPD) No.878 of 2002. The learned Judge of this Court after hearing both sides and considering various submissions made by the parties, dismissed the revision by an order dated 02.03.2006. The relevant paragraph No.5 of the said order is extracted hereunder: "5. The learned counsel for the revision petitioner/tenant would aging submit that submit that Srinivasan alone had constructed this building and therefore, Balakrishnan, successor in interest cannot be termed as a tenant in order to make payment of rent. Reliance was placed upon a decree in a pro-note suit. That pro-note did not contain any recital that the borrowed was made for constructing the tenement building. There was also no issue raised in that regard. So, whatever finding given in respect of construction of the said building may not be binding upon the parties. Mere payment of tax and other charges by Balakrishnan cannot cloth any right thereto nor will it go to show that the building was constructed by either the said tenant Balakrishnan or the predecessor in interest. In the absence of which, the denial of title both to the land as well as to the building becomes malafide. There is no element of bonafide found on the said Balakrishnan in making such dispute." The said order was sought to be reviewed in R.A.No.31/2007. An elaborate order was passed on 26.04.2007 thereby rejecting the review. At paragraph Nos.27 and 28, finally the learned Judge held as follows: 27. There is no element of bonafide found on the said Balakrishnan in making such dispute." The said order was sought to be reviewed in R.A.No.31/2007. An elaborate order was passed on 26.04.2007 thereby rejecting the review. At paragraph Nos.27 and 28, finally the learned Judge held as follows: 27. It is true that in the RCOP proceedings, nobody had drawn the attention of the Court about the earlier proceedings in O.S.No.7831 of 1994, in which an injunction was granted protecting the possession of the revision petitioner, which was confirmed in A.S.No.62 of 2001. To mention again, what was protected in that proceedings was the possession of the revision petitioner subject to the landlord's rights to establish the relationship of landlord and tenant and also subject to his right of getting an order of eviction by due process of law. So, the earlier proceedings is not a bar in filing the rent control original petition. So far as the merits of the rent control original petition is concerned, we already discussed in detail that the denial of title made on the side of the revision petitioner was not bona fide; that he is liable to pay rent for the sake of his possession as he had no other right or title to be in possession of the property; that therefore, he was a tenant and when once there was malafide denial or title on that score itself, he will be liable for eviction. So even if the new material is considered, there is nothing to be reviewed in favour of revision petitioner. 28. Even after considering the earlier proceedings in the suit and its appeal, it was concretely found that it will not improve the case of the revision petitioner for reasons mentioned supra. Therefore, there are no merits in the review petition and is liable to be dismissed." 7. A perusal of the said finding rendered by this Court show that the denial of title does not have any bonafide on the part of the petitioners and this Court has found that mere payment of tax and other charges by Balakrishnan cannot confer any right thereto nor will it go to show that the building was constructed by either the said tenant Balakrishnan or the predecessor in title. It is also found that in the absence of which, the denial of title both to the land as well as to the building becomes nullified. W hen such finding rendered by this court has become final and conclusive, in view of the fact that even the review filed by the petitioners came to be dismissed and no further appeal is filed before the Apex Court, certainly, the petitioners cannot be permitted to raise the very same issue before the Executing Court by contending that the decree passed by the learned Rent Controller is nullity. An issue which has been considered, decided and reached its finality cannot be reagitated once again. 8. At this juncture, it is relevant to refer a decision of the Hon'ble Supreme Court reported in 2007(1) SCC 457 , State of Haryana & Others v. M.P.Mohla, at paragraph No.22, which is as follows: "22...The dispute between the parties has to be decided in accordance with law. What, however, cannot be denied or disputed is that a dispute between the parties once adjudicated must reach its logical conclusion. If a specific question which was not raised and which had not been decided by the High Court the same would not debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res judicata or constructive res judicata." 9. That apart, the conduct of the petitioners also does not favour them. It is seen that when the matter was called on 30.10.2012 before the court below, the petitioners did not appear and there was no representation on their behalf. Therefore, the court below has closed their side argument and after observing that there is no S.L.P. pending and the civil revision petition also got disposed of, the court below has ordered delivery. 10. No doubt, the court has not given a detailed order but at the same time, the fact remains that the petitioners herein did not appear on the said date. Even assuming that they appeared and the contentions raised in the counter could have been raised before the court below, a perusal of the same would show that they are trying to reopen the very same issue which had already reached its finality. Even assuming that they appeared and the contentions raised in the counter could have been raised before the court below, a perusal of the same would show that they are trying to reopen the very same issue which had already reached its finality. They are trying to reiterate their stand once again by contending that the R.C.O.P. is not maintainable as the superstructures were put up by them. When such contention was already rejected by this Court in CRP (NPD) No.878 of 2002 dated 02.03.2006, I find that no useful purpose would be served by sending the matter back to the Court below to pass a detailed order. 11. In view of the admitted position that the contentions of the petitioners were already negatived by this court in C.R.P.No.878/2002, I find no merits in this civil revision petition. While considering the decision relied on by the learned counsel appearing for the petitioners reported in 1990 (1) SCC 193 , Sushil Kumar Mehta v. Gobind Ram Bohra, it is seen that the Apex Court also held therein that the fact decided by a competent court is final determination between the parties and cannot be reopened between them in another proceedings. Needless to say that each and every case is to be decided based on the facts and circumstances of that case. Therefore, the learned counsel for the petitioners is not justified in relying the said decision when the same is factually distinguishable. 12. In the result, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.