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2021 DIGILAW 2842 (MAD)

V. Nithyanandam(died) v. Palani

2021-10-20

N.SATHISH KUMAR

body2021
ORDER : This is an application seeking for review the order passed by this court in CRP NPD No.1059 of 2009 dated 25.02.2019. 2. Earlier, a Civil Revision Petition in CRP NPD No.1059 of 2009 was filed as against the dismissal order of the Trial Court in M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 in RCOP No.1698 of 1990. This court by an order dated 25.02.2019, allowed the revision petition and directed the Trial Court to proceed with the restitution petition in M.P.No.623 of 1996 in E.P.No.321 of 1996 filed under Section 144 of the Code of Civil Procedure filed by the Decree holder, who obtained a decree in O.S.No.1293 of 1995 before the XI Assistant City Civil Court, Chennai. 3. Originally, one Krishnaveni has filed a Rent Control Petition in RCOP No.1698 of 1990 before the XV Court of Small Causes and obtained an order for eviction. Based on the eviction order, possession was also taken from one Palani, who is the husband of the Kalaiselvi. 4. Thereafter, a suit in O.S.No.1293/1995 came to be filed before the XI Assistant City Civil Court by Kalaiselvi, as against the Krishnaveni for declaration, declaring that the eviction order obtained before the Rent Controller in RCOP No.1698/1990 as null and void. At the same time, the above Krishnaveni, who obtained the orders from the Rent Controller, has filed a suit in O.S.No.10351/1996 before the same court, challenging the transfer of the property in the name of Kalaiselvi, based on the sale transaction entered into between Krishnaveni and Kalaiselvi. Both the suits were tried together and the suit filed by Kalaiselvi was decreed, by setting aside the orders passed by the Rent Controller and the suit filed by the Krishnaveni in O.S.No.10351/1996 came to be dismissed. Both the suits reached finality, since no appeal whatsoever filed. 5. In the meanwhile, after passing of the orders of the Rent Controller, a petition in M.P.No.623 of 1996 appears to have been filed by Kalaiselvi, under Section 144 of CPC, for restitution of her possession before the XV Small Causes Court. When the petition was pending for delivery of possession, the first petitioner herein, son of Krishnaveni, filed a petition in M.P.No.376 of 2007, under Order 21 Rule 97 of CPC for obstruction. When the petition was pending for delivery of possession, the first petitioner herein, son of Krishnaveni, filed a petition in M.P.No.376 of 2007, under Order 21 Rule 97 of CPC for obstruction. Kalaiselvi filed a petition in M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 in RCOP No.1698 of 1990 to reject the above petition in M.P.No.376/2007, filed by the petitioner herein and the same was negatived by the Tiral Court, which triggered in filing CRP No.1059/2009. This court by an order dated 25.02.1990 has found that the application pending before the Rent Controller for restitution of the possession of the property can be ordered under Section 144 of CPC and directed the Trial Court to proceed further expeditiously. 6. At this stage, the present review application has been filed contending that the application for restitution ought to have been filed only before the XI Assistant City Civil Court, Chennai which passed an order annulling the order passed by the Rent Controller, otherwise, the main contention is that this court has no jurisdiction to pass the order. Therefore, the review application has been filed. 7. Heard Mr.R.Ganesan, learned counsel appearing for the petitioners and Mr.V.Lakshmi Narayanan, learned counsel appearing for the respondents 1 and 2. 8. The contention of the learned counsel appearing for the petitioners is that as per the explanation (b) of Section 144 of CPC, the restitution petition ought to have been filed before the XI Assistant City Civil Court, Chennai, in which the order passed by the Rent Controller has been annulled. Otherwise, his contention is that clause (b) of the explanation of Section 144 of CPC will apply to the present case. Therefore, the petition in M.P.No.623 of 1996 for restitution of possession of the property, before the XV Small Causes Court, Chennai is not maintainable in law and it has no jurisdiction to entertain the above petition. 9. Per contra, the learned counsel appearing for the respondents 1 and 2, countering to the contentions of the petitioners, submitted that the explanation is only 'inclusive definition' and Sec.144 of CPC makes it very clear that an application for restitution can be filed either before the court, which annulled the decree; or before the court, which passed the order at the first instance to hand over the possession of the property. Otherwise, his contention is that the explanation is 'inclusive definition' and it gives only an option, but is not a mandatory. Therefore, the review petition cannot be entertained and it has been filed only in order to non suit the decree, which has already reached finality. His further submission is that, even now, the legal heirs of the original Decree Holder in the Rent Control Proceedings are obstructing the restitution petition, and it is the novel method adopted by the review petitioners to delay the restitution petition, 10. I have perused the review petition. After hearing the submissions, the foremost contention of the petitioner is that the order passed by this court directing the Trial Court to dispose the restitution petition is not valid, since the petition for restitution has been entertained by the Small Causes Court, Chennai, without any jurisdiction. Such contention cannot be countenanced for the simple reason that Section 144 of CPC will not differentiate, where the restitution petition has to be filed. The explanation appended to Section 144 of CPC reads as follows. 144. Application for restitution.- (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified, and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. Explanation.- For the purposes of sub-section (1) the expression "Court which passed the decree or order" shall be deemed to include,- (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1). 11. A perusal of the above provision makes it clear that it is only an inclusive definition and is not make it as mandatory to file restitution petition only under Clause (b) of explanation of Section 144 of CPC, as projected by the review petitioner. The word "shall be deemed to be include " makes it clear that it is only an option, which is inclusive definition, not as an exclusive one. Such view of the matter, this court is of the view that the contention of the review petitioner that the application for restitution ought to have been filed only before the XI Assistant City Civil Court, Chennai which passed a decree annulling the order of the Rent Controller, cannot be countenanced. 12. It is to be seen that the possession has been delivered only on the basis of the order passed by the Rent Controller. Now, the decree holder, who obtained a civil court decree, has filed a petition under Section 144 of CPC for restoration of possession, before the court, in which eviction was ordered. Therefore, it cannot be said that the court, in which the petition is pending for several years, has no jurisdiction to entertain such application. This court do not find any error on the orders passed by this court. Therefore, it cannot be said that the court, in which the petition is pending for several years, has no jurisdiction to entertain such application. This court do not find any error on the orders passed by this court. It is to be noted that despite the order of the civil court, the Decree Holder is not able to get the benefits of the decree and still obstruction is coming in many ways, like one before this court, preventing the decree holder from taking possession of the property. These are all the classic examples, how the rights of the real owners obstructed one way or other on the strength of some procedural lapses. If the novel application to review the order passed by this court is entertained, there would not be any end for the litigations at all. Such view of the matter, this court is of the view that this is a fit case to invoke the Article 227 of the Constitution of India directing the Judgment Debtor and his legal heirs to hand over vacant possession of the property, within six months from the date of receipt of a copy of this order. This court invoked its jurisdiction taking note of the various litigations and number of petitions filed one way or another under Order 21 Rule 97 of CPC and other provisions several obstruction petitions are filed. 13. Accordingly, this review application is dismissed. The Judgment Debtor and his legal heirs are directed to hand over the possession of the property within six month from the date of receipt of a copy of this order. No costs.