Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 4580 (MAD)

Veluthai v. E. K. K. Shaiddu Mohammed (died)

2018-12-21

S.S.SUNDAR

body2018
ORDER : (Prayer in C.R.P.(NPD)(MD)No.428 of 2014: Petition filed under Section 227 of Constitution of India, to set aside the fair and decreetal order dated 06.01.2014 passed in E.P.No.51 of 2011 on the file of District Munsif Court, Manaparai in R.C.O.P.No.5 of 2008 on the file of the Rent Controller Authority (District Munsif), Manaparai. C.R.P.(NPD)(MD)No.757 of 2014: Petition filed under Section 227 of Constitution of India, to set aside the fair and decreetal order dated 06.01.2014 passed in E.P.No.50 of 2011 on the file of District Munsif Court, Manaparai in R.C.O.P.No.3 of 2008 on the file of the Rent Controller Authority (District Munsif), Manaparai.) 1. The tenants, who have suffered order of eviction in R.C.O.P.Nos.3 and 5 of 2008 on the file of the District Munsif Court, Manaparai, are the revision petitioners in these Civil Revision Petitions. 2. These Civil Revision Petitions have been filed as against the order of delivery in E.P.Nos.50 and 51 of 2011 passed by the learned District Munsif, Manaparai. 3. The brief facts that are necessary for the disposal of these Civil Revision Petitions are as follows: 3.1. One K. Mohamed Nazeem, represented by his power of attorney agent, E.K.K. Syed Mohamed, filed R.C.O.P.Nos.3 and 5 of 2008 before the Rent Controller (District Munsif), Manaparai, for evicting the revision petitioners on the ground of wilful default in payment of rent for a long period. The eviction petition was instituted by the landlord through his power of attorney agent, who is none else than the respondent herein. During the pendency of the petition for eviction, the respondent herein purchased the property from the owner by a registered sale deed dated 16.10.2008. Though the property was purchased by the power of attorney agent, namely, the respondent herein, the eviction proceedings continued by the landlord, represented by the power of attorney agent. The eviction petitions in R.C.O.P.Nos.3 and 5 of 2008 were allowed on 10.03.2011. It is not in dispute that the order of eviction has now become final, as there was no further appeal by the tenants, namely, the revision petitioners. The eviction petitions in R.C.O.P.Nos.3 and 5 of 2008 were allowed on 10.03.2011. It is not in dispute that the order of eviction has now become final, as there was no further appeal by the tenants, namely, the revision petitioners. It is to be seen that the respondent herein while purchasing the property, mentioned about the pendency of the proceedings initiated by the landlord in respect of the properties leased out not only to the revision petitioners, but also to other tenants and got all the rights of the landlord to prosecute the proceedings further and collect all the rents, that are due from the tenants. 3.2. The respondent herein filed execution petitions in his name as assignee and purchaser of the demised property, not only against the revision petitioners, but also against other tenants, who had got lease from the landlord in respect of other shops. In the execution petitions, the respondent herein clearly stated about the sale deed, under which he got the right as landlord. The execution petitions were resisted by the tenants on the ground that the respondent did not disclose the transfer of the property in favour of the respondent by the original owner and that no notice for attornment was received by the revision petitioners. The respondent was also put to strict proof of genuineness of the sale deed obtained by the respondent. Since the respondent continued the proceedings as power of attorney agent and that he is not a bona fide purchaser for value, during the pendency of the petition for eviction, the maintainability of the petition is questioned. Though the revision petitioners had not raised any specific defence in the counter before the Executing Court about the validity of decree, it was argued at the time of hearing by stating that the eviction order, obtained before the Rent Controller without any intimation about the change of ownership, is not appropriate and that the power of attorney agent has no right to continue the proceedings, which were originally instituted by the respondent's vendor. However, the Executing Court ordered delivery of the property and allowed the execution petitions. Aggrieved by the said order, the above Civil Revision Petitions have been filed. Against the order in E.P.No.50 of 2011 in R.C.O.P.No.3 of 2008, C.R.P.(MD)No.757 of 2014 is filed and against the order in E.P.No.51 of 2011 in R.C.O.P.No.5 of 2008, C.R.P.(MD)No.428 of 2014 is filed. However, the Executing Court ordered delivery of the property and allowed the execution petitions. Aggrieved by the said order, the above Civil Revision Petitions have been filed. Against the order in E.P.No.50 of 2011 in R.C.O.P.No.3 of 2008, C.R.P.(MD)No.757 of 2014 is filed and against the order in E.P.No.51 of 2011 in R.C.O.P.No.5 of 2008, C.R.P.(MD)No.428 of 2014 is filed. 4. In the memorandum of grounds, the revision petitioners have challenged the execution of decree on the ground that the respondent is not the landlord and that he cannot maintain the execution petition without impleading him as a party in the ejectment or without carrying out an amendment in the order of eviction. However, in the course of argument, the learned Counsel for the revision petitioners submitted that the original cause of action for the landlord, who sought eviction on the ground of wilful default is not available to the respondent and the order of eviction in a proceeding, which was continued by the respondent as power of attorney agent without disclosing the sale deed in his favour, is invalid and in executable. 5. The learned Counsel for the revision petitioners relied upon the judgment of this Court in the case of S.V. Periasamy & Sons by its Partner S.V. Pariasamy Nadar and others vs. R.Senthil Kumar and others reported in 1997-1-L.W.-527. It is relevant to refer to the facts in the judgment relied upon by the revision petitioners. There also, the original landlord filed a petition for eviction and obtained an order of eviction on the ground of wilful default and demolition and reconstruction. However, when the appeal was pending before the appellate authority, the property was sold in favour of a third party, who got himself implededed as subsequent purchaser. Though the order of eviction was confirmed by the appellate authority, this Court allowed the revision petition and dismissed the petition for eviction on the ground that the cause of action, based on which the original landlord filed eviction petition, no more survives when he sold the property in favour of the other respondent. This Court further stated that the landlord, who initiated eviction proceedings, ceased to be landlord and he can recover the amount of arrears only as a debt arrears and that the right of landlord if assigned to the purchaser, the claim for arrears of rent will be only an actionable claim. 6. This Court further stated that the landlord, who initiated eviction proceedings, ceased to be landlord and he can recover the amount of arrears only as a debt arrears and that the right of landlord if assigned to the purchaser, the claim for arrears of rent will be only an actionable claim. 6. Since, by transfer, the relationship of landlord and tenant ceases, the eviction petition on the ground of default in payment of rent cannot be continued either by the previous landlord or by the subsequent purchaser on the same cause of action. It is also held by this Court in several judgments that even if the eviction is on the ground of immediate demolition and reconstruction, the cause of action will not survive to the subsequent purchaser and the proceedings for eviction cannot be continued by the subsequent purchaser. It has been held by this Court in several judgments that upon transfer of property, the arrears of rent, which was due to the transferor, becomes a debt and loose its character as arrears of rent. The same could be transferred as an actionable claim under Section 130 of Transfer of Property Act, 1882. Hence, when the subsequent purchaser got his right to recover arrears of rent, it can only be treated as an assignment of debt and the subsequent purchaser cannot proceed to file a petition for eviction on the ground of wilful default, as there was no landlord-tenant relationship between the tenant and the purchaser during the period of default. This Court has no quarrel with any of the propositions, in the judgments relied upon by the learned Counsel for the petitioners. 7. The learned Counsel for the petitioners further relied upon a judgment of this Court in the case of Syed Shafee & another vs. S.Asmath Basha & another, reported in 1988-2-LW -261. In that case, eviction was sought for on the ground of owner's occupation and sub letting. The Rent Controller ordered eviction only on the ground of owner's occupation. Since the sub tenant has vacated, the eviction was refused on the ground of sub letting. Two appeals were filed by the landlords as well as the tenant. The appellate authority found that the tenant is liable to be evicted on both grounds. Hence, the appeal preferred by the landlords was allowed and appeal preferred by the tenant was dismissed. Since the sub tenant has vacated, the eviction was refused on the ground of sub letting. Two appeals were filed by the landlords as well as the tenant. The appellate authority found that the tenant is liable to be evicted on both grounds. Hence, the appeal preferred by the landlords was allowed and appeal preferred by the tenant was dismissed. The tenant preferred revision petitions against both orders. When the revision petitions were pending before this Court, the landlords sold the property in favour of a third party. It is, in the said circumstances, the tenant raised a plea that the landlords ceased to have any right, title or interest in the petition mentioned property and that they are no longer entitled to receive rent from the tenant or demand eviction from the petition mentioned property. In the revision petition argument was advanced that the purchasers are entitled to continue these proceedings by impleading themselves as parties in the place of present respondents and workout their rights in these proceedings, was rejected and this Court has held as follows: “5............While so, it is not known how the present respondents are competent to plead on behalf of the purchasers in whose favour the transfer of title has been effected. It is not the case of the respondents that title has not passed to the purchasers or that they have got any right or interest over the petition property so as to enable them either to receive rent from the tenants or to evict them in these proceedings. While so, as on date, the respondents have lost their title to the property and as such the substratum of the eviction petition has gone. It is no longer open to them to continue these proceedings in the absence of the real owners who are alone entitled to prosecute these proceedings and evict the tenants. While so, as on date, the respondents have lost their title to the property and as such the substratum of the eviction petition has gone. It is no longer open to them to continue these proceedings in the absence of the real owners who are alone entitled to prosecute these proceedings and evict the tenants. It is well settled principle of law that the court has to take into consideration of the subsequent events and the Court must have regard to events as they present themselves at the time of hearing and mould the relief accordingly, as held by the Supreme Court, in M/S. Variety Emporium v. V.R.M. Mohamed Ibrahim, 98 L.W.26 : Again, the Supreme Court has held in P. Venkateswarlu v. Motor & General Traders that the subsequent event disabling the landlords from seeking eviction has to be taken note of by the Court in moulding the ultimate relief. In view of this legal position, I find that the present respondents have no locus standi to continue the proceedings and evict the petitioners herein. No arguments were advanced on the merits of the case and no findings are rendered on merits. The eviction proceedings are terminated. It is open to the purchasers to come forward with a fresh petition on the same grounds which are available to them on the date of the purchase. It is open to the petitioners to raise all their contentions in such a petition. No costs.” 8. The above judgment, of course, was followed in several cases and the principles reiterated in the above judgment is that the subsequent purchaser cannot continue the proceedings for eviction and that the Court should consider the proceedings for eviction taking into account the subsequent events. When the landlord, by transfer, looses his title to the property and the cause of action for the eviction petition goes, it is no longer open to the landlord to continue the proceedings in the absence of real owners. The same position was reiterated in several judgments and one of the judgments relied upon by the petitioner is against the judgment in the case of Alaudin and another vs. A.Sathar, reported in 2011-4-L.W.891. In this case, the only question was whether the transferee of property, during the pendency of eviction proceeding, is entitled to evict the tenant on the ground of wilful default committed prior to the date of transfer. In this case, the only question was whether the transferee of property, during the pendency of eviction proceeding, is entitled to evict the tenant on the ground of wilful default committed prior to the date of transfer. After elaborately considering the principles and by referring to various precedents and principles, this Court has held as follows: “21. To conclude (i) First, I hold that an eviction proceeding by the landlord on the ground of personal necessity does not survive after the premises is transferred during the pendency of the suit or proceeding; (ii) Secondly, a transferee pending eviction proceedings cannot continue the proceeding for eviction on the ground of wilful default for the period prior to the said transfer.” 9. Thus, in all these cases, it is accepted that in a case of sale of property by the landlord pending eviction proceeding on the ground of wilful default, the cause of action originally available to the landlord will not survive and the order of eviction in favour of the transferee cannot be sustained. However, in this case, the facts are slightly different. No doubt, it is true that the respondent herein purchased the property during the pendency of the eviction proceedings. However, the order of eviction has become final and the revision petitioners have not challenged the order of eviction, relying upon the judgments rendered by this Court by filing an appeal or revision. In these revision petitions, the tenants have challenged the order of delivery directed by Executing Court in execution proceedings. To question the validity or legality of the order of eviction, one has to file an appeal or revision. The execution petition filed by the subsequent transferee cannot be questioned on the ground that the Rent Controller ought to have dismissed the execution petition as the cause of action did not survive to the respondent or anyone, after the property was transferred in favour of the respondent. In view of order 21 Rule 16 and Section 146 of CPC, the subsequent purchaser has indefeasible right to file execution petition without an assignment of a decree. In view of order 21 Rule 16 and Section 146 of CPC, the subsequent purchaser has indefeasible right to file execution petition without an assignment of a decree. In the case of Gnanasundaram and another vs Murugesa Naicker reported in AIR 1989 Mad 343 , this Court has held as follows: “5...........In view of the main provision in Rule 16, it is provided that a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree, on the ground that the said document is unnecessary in view of the conveyance deed already obtained by him. There is absolutely nothing to show that the Explanation runs counter to the main rule and as such it has ho effect Hence, I do not find any merit in the said contention and I concur with the findings of both the courts below and in view of Order 21, Rule 16 read with Section 146, CP.C, the execution petition filed by the respondent is perfectly legal and correct He has every locus standi to file the same. The above conclusion is supported by the judgment of this Court reported in Karuppa Goundar v. Chinna Angappa Goundar, (1971) 84 Mad LW 143, wherein relying on the decisions in Jugalkishore Saraf v. Rao Cotton Co. Ltd., (1955) 1 Mad LJ (SC) 220 : ( AIR 1955 SC 376 ) and Sm. Saila Bala Dassi v, Nirmala Sundari Dassi, held "Having regard to the terms of Section 146, C.P.C. persons in the position of respondent can also enforce the rights under the compromise decree against the opposite party. Thus, in this case, the respondent who has obtained the rights of the first defendant in the compromise decree is entitled to enforce those rights in the same manner as the plaintiff in the suit could have enforced his rights under the compromise decree against the respondent herein as the representative in interest of the first defendant. The lower Court has therefore rightly invoked Section 146, C.P.C. and found that the respondent is entitled to ask for the amendment of the compromise decree." 6. In Jugalkishore Saraf v. Rao Cotton Co. The lower Court has therefore rightly invoked Section 146, C.P.C. and found that the respondent is entitled to ask for the amendment of the compromise decree." 6. In Jugalkishore Saraf v. Rao Cotton Co. Ltd., (1955) 1 Mad LJ 220 : ( AIR 1955 SC 376 ), their Lordships of the Supreme Court discussed the precise scope and ambit of Section 146 and Order 21, Rule 16 and pointed out that a person may become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law in which case he falls within the scope of Order 21, Rule 16, CP.C. and if he is not such a transferee, he may avail himself of the provision under Section 146 if all the conditions are fulfilled. In Ponnaiah Pillai v. Nataraja Asari, Kailasam, J. relying on the observations of the Supreme Court in the above quoted case, held that a person, who claims to be entitled to the benefit of the decree, but who does not answer the description under Order 21, Rule 46, C.P.C. is not precluded under from making an application which the person from whom he claims could have made as provided under Section 146, C.P.C The same view has been followed by Venkataraman, J. in Rangaswami v. Rangammal,. In Sm. Saila Bala Dasi v. Nirmala Sundari Dassi, the Supreme Court observed that Section 146 was introduced with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and that, being a beneficial provision, it should be construed liberally and so as to advance justice and not in a restricted or technical sense. In Rangasami Naicker v. Rangammal, it was held : "Regarding the applicability of the exact provision, on facts, it was held, Order 21, Rule 16, C.P.C. will not apply because the Will does not assign the decree; in fact, it does not refer to the suit at all. Hence, there has not been any assignment in writing or by operation of law under Order 21 Rule 16. But, the applicant can maintain the petition under Section 146, C.P.C. as a person claiming under the decree holder." ......... 10. Hence, there has not been any assignment in writing or by operation of law under Order 21 Rule 16. But, the applicant can maintain the petition under Section 146, C.P.C. as a person claiming under the decree holder." ......... 10. The learned Counsel for the respondent relied upon the judgment of this Court in the case of V. Shanmugham and another vs M/s.Carona Sahu Co., Ltd., Bombay, represented by its Shop Manager, reported in 1991-1-LW-349, wherein, this Court has specifically held that the purchaser of the building, during the pendency of a revision petition in the High Court against the order of eviction, is entitled to execute the decree for eviction, notwithstanding the fact that the purchaser has not been brought on record before the final disposal of the Revision Petition. In the above case, the revision petitioners purchased the demised property on 29.12.1984 and the original owner filed eviction petition on the ground of wilful default and obtained order of eviction. An appeal filed against the order of eviction was also dismissed. The tenant preferred a Civil Revision Petition before this Court in the year 1983. When the Civil Revision Petition was pending, a third party purchased the property. Though the landlord attorned the tenancy in favour of subsequent purchasers and started paying rent to them, they were not impleaded as party in the Civil Revision Petition. The original landlord, who was the respondent in the Civil Revision Petition preferred by the tenant, did not contest the Civil Revision Petition. However, the revision petition filed by the tenant was ultimately dismissed, the order of eviction was confirmed. In the meanwhile, the subsequent purchaser filed another eviction petition on the ground of wilful default and owner's occupation and demolition and reconstruction, but that was dismissed. After the dismissal of the eviction petition, the subsequent purchaser filed execution petition to execute the order of eviction passed in the eviction petition filed by the erstwhile landlord in the year 1976, which was confirmed by this Court in the Civil Revision Petition, long after the purchase of the property or sale in favour of the petitioner in the execution petition. The arguments and the conclusion of judgments reported are appropriate and hence, they are referred to as follows: “......3. Mr. The arguments and the conclusion of judgments reported are appropriate and hence, they are referred to as follows: “......3. Mr. S. Jagadeesan, learned counsel appearing for the petitioners, submitted that the executing court went wrong in applying the ration in 1988-2 Law Weekly 261 (supra) as the facts are entirely different. According to Mr. S. Jagdeesan, the tenant, notwithstanding the non-appearance of the original owner in the C.R.P., took a chance by arguing the C.R.P., on merits and having got a decision adverse against him, cannot now be heard to say that the order in the C.R.P., is not executable by the petitioners who are purchasers of the suit premises. He also submitted that the purchasers of the subject matter of the suit property can apply for execution of the decree without a separate assignment of the decree. In support of that, he placed reliance on a decision of this Court in Gnanasundaram and another v. Murugesan Naciker. Again, placing reliance on a judgment in M.A. Abdul Rahiman, Abdul Rahim and others v. A.P. Abdulla, the learned counsel submitted that the execution petition filed by the purchaser is maintainable. Again, he relied on another judgment in Maneuver Biota and another v. Narayanan and nother and contended that the fact that the petitioners filed R.C.O.P.101 of 1987 will not in any way deprive the petitioners from executing the eviction order in R.C.O.P.90 of 1976 as confirmed in C.R.P.No.2076 of 1983. For the same contention, he cited another judgment in Subbanna v. Seshagiri Rao. 4. Mr. T.R. Rajagopalan, learned counsel appearing for the tenant, contending contra, submitted that the ratio laid down in 1988-2 L.W.261 (supra) squarely applies to the facts of this case and, therefore, the executing Court was right in dismissing the execution petition as not maintainable. He submitted that the decision in AIR 1961 Madras 200 = 1961 (2) M.L.J.Page 176 (supra) is distinguishable on facts. According to him, in the judgment reported in 1961 (2) M.L.J. Page 176 (supra), the purchaser got himself impleaded soon after the purchase and continued the proceedings and, therefore, the principle laid down therein cannot be applied to the facts of this case wherein the purchaser failed to come n record and continue the proceedings. 5. I have considered the rival submissions. 5. I have considered the rival submissions. In 1988 (2) L.W. page 261 (supra), the tenant who was the Revision Petitioner, at the time of final hearing of the Civil Revision Petition, advanced an argument stating that the landlords having parted with the property, and the purchaser having not been brought on record, the proceedings cannot be continued by the quondam owners, and the quondam owners also will have no locus standi to continue the proceedings. Accepting that argument, this Court (Sivasubramanian, J.) terminated the eviction proceedings. But in the case on hand, as noticed earlier, though the quondam owner was not interested in prosecuting the matter by not contesting the case, it is the tenant who argued the matter on merits and got an order adverse against him. The tenant could have taken a stand as the one advanced by the tenant in the case reported in 1988-2-L.W.-261 (supra). Instead, the tenant in the case on hand took a chance and got a decision adverse against him. Therefore, I am of the view that the tenant cannot press into service the ratio laid down in 1988-2-L.W.-261 (supra).”..... 11. Thus, In this case also, the tenants have taken a stand as the one advanced by the tenant in the above case without challenging the order of eviction in an appeal or by filing revision petition. The tenant cannot rely upon the judgment in the case of 1988-2-LW-261 for obstructing the execution, even though the execution petition is filed by the subsequent purchaser, who had purchased the property during the pendency of the proceeding. This Court is in agreement with the judgment in the case of V. Shanmugham and another vs M/s.Carona Sahu Co., Ltd., Bombay, represented by its Shop Manager, reported in 1991-1-LW-349. In view of the factual position in this case, the submission of the learned Counsel for the revision petitioners is against the proposition of law reiterated in the judgment above referred. Hence this Court is of the view that the Civil Revision Petitions are liable to be dismissed. 12. As a result, these Civil Revision Petitions are dismissed and the order passed by the District Munsif, Manaparai, in E.P.Nos.50 and 51 of 2011 in the respective R.C.O.P. directing order of delivery in the execution petition is confirmed. No Costs. Consequently, connected miscellaneous petitions are closed.