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2013 DIGILAW 4075 (MAD)

V. Devendiran v. Syed Jan Mohamed

2013-12-02

P.R.SHIVAKUMAR

body2013
Judgment : 1. The First Respondent has entered appearance through Counsel. The Second Respondent remained absent in the Trial Court as well as the Appellate Court. Hence, dispensing with the service of notice on the Second Respondent, this Civil Revision Petition is taken up for disposal at the stage of admission itself, since purely on legal issue the Civil Revision Petition can be disposed of. 2. The submissions made by Mr. Venkatachalapathy, Learned Senior Counsel for the Petitioner and by Mr. M. Balasubramanian, learned Counsel for the First Respondent are heard. The materials produced in the form of typed set of papers are also perused. 3. The First Respondent claiming to be the Landlord, under whom the Second Respondent was a Tenant, filed R.C.O.P.No.1192 of 2005 which was disposed of by the Rent Controller/XII Judge, Small Causes Court at Chennai allowing the R.C.O.P. and directing eviction of the Second Respondent herein. As against the said Order of Eviction dated 5.10.2005, the Second Respondent herein preferred an Appeal before the Rent Control Appellate Authority in R.C.A.No.324 of 2006. The learned Rent Control Appellate Authority dismissed the Appeal by judgment dated 18.2.2010 confirming the Order of Eviction passed by the Rent Controller. Thereafter, the First Respondent filed E.P.No.71 of 2011 for execution of the Eviction Order. Meanwhile, the Petitioner came to be found occupying the Petition premises and he resisted the execution. Besides offering such resistance, the Revision Petitioner filed a Petition under Order 21, Rules 97 & 99, C.P.C. claiming tenancy right in respect of the Petition premises on the basis of a tenancy arrangement allegedly made by the wife of the First Respondent. The learned Rent Controller (on Execution side), after hearing, dismissed the claim made by the Revision Petitioner and directed execution of the Eviction Order by removing the obstruction caused by the Revision Petitioner. As against the said order passed on the Execution side dated 28.11.2012 in E.A.No.40 of 2011 in E.P.No.21 of 2011 in R.C.O.P.No.1192 of 2005, the Revision Petitioner preferred an Appeal before the Rent Control Appellate Authority in R.C.A.No.721 of 2013. The learned Rent Control Appellate Authority, after hearing, dismissed the said Appeal by a Judgment and Decree dated 6.11.2013, holding that such an Appeal was incompetent because of the bar provided under Section 18(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The learned Rent Control Appellate Authority, after hearing, dismissed the said Appeal by a Judgment and Decree dated 6.11.2013, holding that such an Appeal was incompetent because of the bar provided under Section 18(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. As against the said decretal Order of the Rent Control Appellate Authority dismissing R.C.A.No.721 of 2012 on the ground of maintainability, the present Revision has been filed. 4. The learned Senior Counsel contended that the Order Appealed against could not be construed to be an Order contemplated under sub-clause (2) of Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act since the same came to be passed in an adjudication regarding the claim of the obstructor under Order 21, Rule 97, C.P.C. de hors Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is the further contention of the learned Senior Counsel that the learned Rent Control Appellate Authority committed an error in dismissing the Appeal without going into the merits of the Appeal, simply holding that the Appeal is barred by sub-clause (2) of Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. In support of his contention that such an Appeal does not come under the mischief of sub-clause (2) of Section 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 the learned Senior Counsel has relied on a judgment of a Division Bench of this Court in Fathima Automobiles v. P.K.P. Nair and another, AIR 1985 Mad. 318 and a judgment of a learned Single Judge of Rajasthan High Court in Balraj Singh v. Ajit Singh, AIR 2005 Raj. 120 . Of course in the second of the judgment cited by the learned Single Judge, the case was dealt with by a Civil Court and not by the Rent Control Court or Rent Control Appellate Authority. However, the ratio decided therein is sought to be applied to the case on hand as it was held there in that dismissal of the Application filed by the obstructor for adjudication of his claim in respect of the property regarding which the Decree had been passed can be challenged in the Appeal. The judgment of the Division Bench of this Court referred to above squarely covers the point in issue. The judgment of the Division Bench of this Court referred to above squarely covers the point in issue. When a similar issue arose before the Division Bench, it held that when a third party offers resistance by obstructing execution of an Eviction Order claiming right on himself without claiming a right derived from the judgment-debtor, such a claim should be adjudicated upon under Order 21, Rule 97, C.P.C. and that when such an Order is passed the aggrieved party can file an Appeal under Order 21, Rule 103, C.P.C. 5. However, the learned Counsel for the First Respondent would submit that none of the parties canvassed the question of maintainability before the Rent Control Appellate Authority and on the other hand arguments were advanced on the merits of the Appeal and that even then the Rent Control Appellate Authority has chosen to dismiss the Appeal holding the Appeal to be not maintainable as one of the grounds for such dismissal. However, the learned Senior Counsel would argue that except a paragraph in which the contentions regarding the merits of the case has been narrated without rendering any finding on the merits of the case, the Appeal came to be dismissed on the sole ground of maintainability. 6. Upon perusing the Order this Court is also able to see that the only ground on which the Appeal came to be dismissed was the finding of the Rent Control Appellate Authority that the Appeal was not maintainable as it stood barred by Section 18(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 6. Upon perusing the Order this Court is also able to see that the only ground on which the Appeal came to be dismissed was the finding of the Rent Control Appellate Authority that the Appeal was not maintainable as it stood barred by Section 18(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. As pointed out supra, this question has been covered by the Division Bench of this Court, which has held that an adjudication of a Third party claim under Order 21, Rule 97 is appealable as it is an adjudication between the parties to such proceedings in execution and such adjudication made under Rule 98 is made appealable as per Rule 103 of Order 21, C.P.C. Therefore, this Court agrees with the contention of the learned Senior Counsel that the learned Rent Control Appellate Authority has committed an error in dismissing the Appeal as not maintainable and that the same will also amount to refusal to exercise the jurisdiction conferred on the Appellate Authority capable of being interfered with by this Court in its exercise of power of Revision under Section 115, C.P.C. and also in exercise of the power of superintendence under Article 227 of Constitution of India. 7. Of course the Revision is stated to have been filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. When it is brought to the notice of the learned Senior Counsel, the learned Senior Counsel submitted that the originally the Petition was filed under Section 115, but due to the insistence made by the Registry, it was filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is trite that the citation of a wrong provision shall not debar a party to the proceedings from availing the relief if he is otherwise entitled to it. This High Court being a Court of equity and a Constitutional Court does have the power to grant the relief, reading the appropriate provision. Accordingly treating this Petition as a Revision filed under Section 115, C.P.C., this Court holds that Rent Control Appellate Authority’s finding that the Appeal is not maintainable and on the other hand it is barred under Section 18(2) is incorrect and same would amount to failure to exercise the jurisdiction conferred on the said Court. Accordingly treating this Petition as a Revision filed under Section 115, C.P.C., this Court holds that Rent Control Appellate Authority’s finding that the Appeal is not maintainable and on the other hand it is barred under Section 18(2) is incorrect and same would amount to failure to exercise the jurisdiction conferred on the said Court. In the result, the Revision succeeds and the Civil Revision Petition is allowed. The decretal Order dated 6.11.2013 made in R.C.A.No.721 of 2012 is set aside and the Rent Control Appellate Authority is directed to restore the R.C.A. to file, re-hear the same and dispose of the same on merits within two months from the date of receipt of a copy of this order.