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2014 DIGILAW 354 (MAD)

G. Krishnamoorthy v. S. K. Balasundaram

2014-02-14

P.R.SHIVAKUMAR

body2014
Judgment 1. The defendant in O.S.No.5088 of 2008 on the file of the XI Assistant Judge, City Civil Court, Chennai is the petitioner in the present revision. The respondent herein was the landlord and the revision petitioner herein was the tenant in respect of the premises bearing Door No.80, Bazaar Road, Saidapet, Chennai 15 and the contractual rent was Rs.600/- per month. Alleging willful default in payment of rent, the respondent herein filed an Eviction Petition under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in R.C.O.P.No.406 of 2001. The Rent Controller allowed the R.C.O.P and directed eviction of the revision petitioner from the above said premises on the ground of his commission of willful default in payment of rent. 2. As against the order of eviction passed by the Rent Controller, the tenant, namely the revision petitioner herein, preferred an appeal before the Rent Control Appellate Authority in R.C.A.No.846 of 2002. Pending disposal of the said Rent Control appeal, the tenant, namely the revision petitioner herein chose to file a petition R.C.O.P.No.1265 of 2003 on the file of the Rent Controller under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for depositing monthly rents into Court. The said R.C.O.P filed by the tenant was dismissed by the Rent Controller on 03.01.2004. As against the said order, the tenant preferred an appeal in R.C.A.NO.133 of 2004 before the appellate authority. Both the appeals preferred by the tenant, namely R.C.A.No.846 of 2002 and R.C.A.No.133 of 2004 were dismissed by the Appellate Authority. Thereafter, the defendant preferred two revisions in C.R.P.Nos.1095 of 2006 and 1096 of 2006 on the file of this Court. This Court, after hearing, dismissed the Civil Revision Petitions, but granted 9 months time for vacating and handing over the vacant possession of the petition premises. On 12.04.2008, the tenant, namely the revision petitioner herein vacated and handed over vacant possession of the premises to the landlord, the respondent herein. 3. Thereafter, the respondent herein filed the above said suit for the recovery of arrears of rent due to him from the erstwhile tenant, namely the revision petitioner herein. On 12.04.2008, the tenant, namely the revision petitioner herein vacated and handed over vacant possession of the premises to the landlord, the respondent herein. 3. Thereafter, the respondent herein filed the above said suit for the recovery of arrears of rent due to him from the erstwhile tenant, namely the revision petitioner herein. It was contended therein that though the rent, pending CRP, came to be paid for the period from May 2006 till March 2008, the rent prior to May 2006 was not paid and that rent for the 12 days in the month of April 2008 was also not paid. The respondent herein prayed for a decree directing the revision petitioner herein to pay a sum of Rs.23,040/- as arrears of rent together with interest. The defendant in the suit, namely the present revision petitioner, remained ex parte and after ex parte trial, the trial Court decreed the suit directing the revision petitioner herein to pay Rs.23,040/- as arrears of rent together with an interest on the said amount at the rate of 9% per annum from the date of filing of the suit till the date of passing of the decree, namely from 07.07.2008 to 07.07.2009 and a further interest at the rate of 6% per annum from the date of passing of the decree. The revision petitioner, after suffering such an ex parte decree, did not take steps to get the ex parte decree set aside; nor did he file any appeal against the said decree of the trial Court. Meanwhile, the decree holder, the respondent herein, levied execution by filing E.P.No.2090 of 2010 in the above said original suit for the recovery of a sum of Rs.30,527.50 consisting of the principal portion of the decretal amount, interest portion of the decretal amount, cost allowed and the cost of the execution proceedings. Only after service of notice in the execution proceedings, the judgment debtor, namely the revision petitioner herein chose to enter appearance in the Execution Proceedings and resisted execution stating that the entire rent for the disputed period had already been deposited into Court. Besides filing such a counter, he had filed an application in E.A.No.1594 of 2011 under Section 47 of the Code of Civil Procedure contending that the execution petition should be dismissed as there was no arrears of rent left unpaid by him. 4. Besides filing such a counter, he had filed an application in E.A.No.1594 of 2011 under Section 47 of the Code of Civil Procedure contending that the execution petition should be dismissed as there was no arrears of rent left unpaid by him. 4. The learned Judge of the Executing Court, after hearing, held that the revision petitioner/judgment debtor could not canvas the said plea of defence, which ought to have been taken in the suit, as a plea in the application under Section 47 of the Code of Civil Procedure. On merits also, the learned Judge of the Executing Court held that the High Court, while disposing of the Civil Revision Petitions referred above, gave a categorical finding that any amount deposited by the revision petitioner in the Rent Control Appellate Forum could not be projected as payment made to the respondent herein and that such deposits were made unauthorisedly. Ultimately, the learned Judge of the Executing Court held that the amount decreed by the trial Court remained unpaid and the decree remained undischarged. Resultantly, the learned Judge of the Executing Court dismissed E.A.No.1594 of 2011 by order dated 11.06.2013. Impugning the said order, the present Civil Revision Petition has been filed by the revision petitioner on various grounds set out in the grounds of revision. 5. The arguments advanced by Mr. P. Shanthosh, learned counsel for the revision petitioner are heard. The materials produced in the form of typed-set of papers are also perused. 6. Impugning the said order, the present Civil Revision Petition has been filed by the revision petitioner on various grounds set out in the grounds of revision. 5. The arguments advanced by Mr. P. Shanthosh, learned counsel for the revision petitioner are heard. The materials produced in the form of typed-set of papers are also perused. 6. It is the contention of the learned counsel for the revision petitioner that the rent for the disputed period had already been deposited into Court by virtue of an order passed by the Rent Control Appellate Authority; that during the pendency of the Civil Revision Petition, rents were paid as per the direction of the High Court and even during the period of 9 months, after the disposal of the Civil Revision Petition granted by the High Court for vacating and handing over vacant possession, he was making payment of rent regularly; that till the end of March 2008, he had paid rent and only a sum of Rs.240/- for 12 days in April 2008 alone remained unpaid; that despite the said payments, the respondent herein obtained a decree as if the payments were not made and that since the decreetal amount (rent for the disputed period) had been paid even prior to the filing of the suit, the decree became unexecutable. 7. When this Court asked a question as to whether a defendant who suffered a decree could take a stand in the execution proceedings that the decree passed by the trial Court was in ignorance of the payment made prior to the filing of the suit towards the suit claim, the learned counsel was not in a position to give a direct answer. On the other hand, the learned counsel made an attempt to show that the learned Judge of the Executing Court committed an error in rendering a finding that rent for the period subsequent to the date of his vacating and handing over vacant possession of the premises till the date of passing of the order in the execution application remained unpaid. Such an attempt was made without even producing copies of the decree and the order passed in the earlier Civil Revision Petitions. The said contention of the learned counsel for the petitioner is quite unreasonable and untenable. 8. Such an attempt was made without even producing copies of the decree and the order passed in the earlier Civil Revision Petitions. The said contention of the learned counsel for the petitioner is quite unreasonable and untenable. 8. On perusal of the relevant part of the order of the learned Executing Court, this Court is able to understand that there is dearth in knowledge on the part of the said Judge in expression and the same has given a long rope to the revision petitioner to contend as if the finding rendered by the Executing Court is to the effect that rent for the period even after the revision petitioner's vacating the premises till the date of passing of the order in the Execution Application was due. By no stretch of imagination, such an interpretation is possible. 9. Of course it is true that the said part of the order has not been happily worded. What the learned Judge of the Executing Court wanted to mean is that the arrears of rent prior to May 2006 and the rent for 12 days in April 2008 remained unpaid from the date of filing of the suit, namely 07.07.2008 till the date of passing of the order in the execution application. With regard to the contention made by the revision petitioner that the amounts deposited in Court in the Rent Control Appeals should be taken into account, the learned Judge of the Executing Court categorically held that such a deposit was unauthorized and such deposit made unauthorisedly could not be projected as a payment in discharge of the decretal amount. Suppose, the said amount deposited by the revision petitioner was appropriated by the respondent/decree holder towards the realization of the decretal amount, even though such deposit was unauthorised, then the same can be projected as a discharge or satisfaction in full or part as the case may be. That is not the case of the revision petitioner in this case. 10. The learned Judge of the Executing Court, with a clear vision, but with a sluggish language, has rendered a correct and unimpeachable finding that the decree remained undischarged and the application E.A.No.1594 of 2011 filed by the revision petitioner deserved dismissal. That is not the case of the revision petitioner in this case. 10. The learned Judge of the Executing Court, with a clear vision, but with a sluggish language, has rendered a correct and unimpeachable finding that the decree remained undischarged and the application E.A.No.1594 of 2011 filed by the revision petitioner deserved dismissal. There is no error or infirmity in the order, much less any defect in exercise of jurisdiction by the Court below warranting interference by this Court in exercise of its power of revision. There is no merit in the revision and the revision does not even merit admission. In the result, the revision petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.