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2013 DIGILAW 7 (MAD)

M. Hakeem Maidheen v. G. Murugesan

2013-01-02

G.RAJASURIA

body2013
JUDGMENT 1. This Civil Revision Petition is focussed to get set aside the order of delivery passed by the learned Additional District Munsif cum Rent Controller, Madurai, in E.P.No.136 of 2010 in R.C.O.P.No.232 of 2009, dated 21.07.2012. 2. Heard both sides. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would run thus: 3(a). The learned Counsel for the revision petitioner, placing reliance on the grounds of revision, would pyramid his arguments, which could tersely and briefly be set out thus: (i) In R.C.O.P.No.232 of 2009, an exparte eviction order was passed and thereafter, an application was filed by the tenant to get the delay of 110 days condoned in filing an application to get set aside such exparte order. After hearing both sides, that petition was dismissed, as against, which R.C.A., was presented with an application for getting the delay of 12 days condoned in filing the R.C.A. The delay was condoned subject to payment of sum of Rs.200/- (Rupees Two Hundred only) as costs. There was a delay in paying the costs also; wherefore, an application was filed to get the time extended for paying the costs. In the meanwhile, E.P.No.136 of 2010 was filed by the landlord/judgment debtor and with the help of the Amin, the property was delivered. It so happened that when the Amin visited the suit property, the shop premise was kept closed by the tenant, but without getting an order from the Judge concerned for breaking open the lock, the door of the premise was broken open and delivery was effected and as against which, a complaint was lodged with the learned Principal District Judge, Madurai, which is pending. The tenant also filed an application for re-delivery under Section 144 of the Code of Civil Procedure, but the E.P. Court simply returned it. (ii) Whereas the learned Counsel for the respondent/landlord, in a bid to torpedo and pulverise the arguments as put forth on the side of the revision petitioner, would advance his arguments, thus: The delivery was effected strictly in accordance with the law. When the Court Amin went to the premises, the shop was kept open, however, the tenant refused to sign in the delivery note prepared by the Amin and only as an afterthought, the tenant did choose to file such an application for re-delivery. When the Court Amin went to the premises, the shop was kept open, however, the tenant refused to sign in the delivery note prepared by the Amin and only as an afterthought, the tenant did choose to file such an application for re-delivery. However, filing of this Civil Revision Petition as against the order of delivery, is unknown to law. There is nothing wrong with the delivery order. 4. The point for consideration is as to whether the Civil Revision Petition as such, is maintainable in the facts and circumstances of the case as narrated supra by both sides? The Point: 5. As a general proposition of law, what I would like to highlight is that as against the order passed in E.P., emerging out of an order in R.C.O.P., only the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, can exercise jurisdiction. However, this Civil Revision Petition is filed under Article 227 of the Constitution of India, because according to the tenant, gross irregularities erupted in view of the conduct of the Court Official namely the Court Amin who without obtaining proper order from the Executing Court for breaking open the lock of the shop premises concerned, exceeded his power in simply breaking open the lock of the shop and handing over delivery of the premises. 6. Be that as it may, this is a case involving factual appreciation. Already, the tenant petitioned the very same Executing Court for re-delivery invoking Section 144 of the Code of Civil Procedure. In my considered opinion, that is the proper course open for the tenant/judgment debtor if at all what he said is true or correct. 7. The learned Counsel for the respondent would explain and expound by pointing out that the Executing Court did not return the said application for nothing but on the ground that already this Court granted stay in this Civil Revision Petition. 8. Hence, I would like to resolve the impasse by passing the following direction: The proper forum to go into all these facts, is the Executing Court. 8. Hence, I would like to resolve the impasse by passing the following direction: The proper forum to go into all these facts, is the Executing Court. Therefore, the Executing Court is directed to number the said application for re-delivery filed under Section 144 of the Code of Civil Procedure, if it is otherwise in order and deal with it as expeditiously as possible, preferably within a period of one month from the date of receipt of a copy of this order untrammelled or uninfluenced by any of the observations made by this Court in passing this order. 9. On balance, this Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petitions are closed. No costs.