Mrs. Shanta Narayanan and 5 others vs K.M. Nambi

Venkataswami, J.—The basis for these two Civil Revision Petition is an order of eviction passed against one P.C. Narayanan, a tenant

under the respondent herein. The said P.C. Narayanan died during the pendency of the appeal preferred by him against the eviction order passed

by the Rent Controller. His legal representatives have further prosecuted the appeal, and having lost their case in the appeal, now they have

preferred these Civil Revision Petitions. For the sake of convenience, the petitioners are hereinafter collectively alleged as tenant and the

respondent as ''landlord''. At the outset, I would like to make the following comment: I find that the petitioners as well as their predecessor in

interest have kept the landlord at bay for long by abusing the process of court and thereby have successfully prevented the landlord from reaping

the fruits of the eviction order obtained by him, as early as on 28.10.1980.

Brief facts are the following:- The landlord moved the Rent Controller namely, Xth Judge Court of Small Causes, Madras, by filing H.R.C.

1501 1980, for eviction of the tenant and got an order of eviction on 28.10.80. The tenant was given two years'' time to vacate at the time of

passing of eviction order. It appears, subsequently, under some pretext or other, he was getting extension of time, and ultimately the landlord was

forced to file E.P. 371 of 1988 for evicting the tenant. The landlord was able to get an order of delivery in the E.P. as well. But the tenant

successfully prevented the execution of the warrant and consequently the Bailiff returned the warrant, pointing out obstruction. Immediately, the

tenant filed two petitions, namely, M.P.Nos. 826 and 827 of 1988, purporting to be one filed under S. 47 of the CPC one for stay of execution,

and the other, challenging the order of delivery of possession, on the ground that there was a subsequent agreement for lease and, therefore the

order of eviction became in-executable. One other ground was also raised, namely, that the order passed in the Execution petition without notice,

was illegal, as it was not in accordance with O. 21, R. 22, C.P.C., Without disclosing the resistance by the above-said M.Ps., the tenant moved

this court under Article 226 of the Constitution of India, by filing W P.No. 10789 of 1988, for the insurance of a writ of mandamus, forbearing the

Xth Judge, Court of Small Causes and also the landlord from proceeding further with E.P.No. 371 of 1988. After the landlord entered appearance

in the said writ petition and brought to the notice of the court the real facts, S.A. Kader, J., by order dated 3.10.1988, while dismissing the writ

petition with costs, observed as follows:-

Again the petitioner has come to this court with unclean hands, He has not only and with ulterior motive suppressed the fact that he has moved the

executing court itself by means of two petitions in M.P 826 and 827 of 1988 to stay of execution and for holding that the order of eviction has

become in-executable, because of a fresh agreement of lease. There is not even a whisper of a reference to these petitions in the affidavit filed in

support of the writ petition. The learned counsel appearing for the petitioner apologies before me for the suppression of these facts in the affidavit

filed in support of the writ petition. This mischief has been done, and his apologies are of no use. Such a practice cannot be too strongly

condemned.

The matter is now well before the executing court No delivery has been affected. The petitioner-tenant has filed a petition for stay of execution and

another petition under S. 47 of the CPC for declaring that the order of eviction has become en-executable because of the fresh agreement of lease.

The executing court is fully seized of the matter. The petitioner can no longer raise the question of want of notice under Order 21, Rule 22 of the

Code of Civil Procedure. The matter has been heard by the executing court and it is open to the executing court to pass such order as it deems fit

in the matter.

The tenant did not seem to have taken up the matter further in writ appeal, against the order in W.P. No. 10789 of 1988.

Finding that the executing court will proceed further, the tenant filed another writ petition, namely, W.P. 12221 of 1986, purporting to challenge

the constitutional validity of S. 18 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as ''the Act'') and

obtained an interim order disabling the landlord from proceeding with the Execution petition.

There again, when W.M.P. 20570 of 1988 came up for final disposal, Bakthavatsalam, J., after noticing the dismissal of W.P. No. 10789 of

1988, while dismissing the W.M.P. for stay has observed as follows:-

I am of the view that this is not a fit case in which the discretion of this court is to be exercised in favor of the petitioner-tenant. The petitioner has

successfully presented the landlord from taking possession for the past eight years and I am of the view that the writ court should not come to the

rescue of such litigants. Already a writ petition filed by the petitioner has been disposed of by Kader, J., on the ground that the petitioner has not

come up before this court with clean hands. It is not a proper case where the stay should be given because the petitioner is dragging up the

proceedings from 1980. He has not raised the point of jurisdiction at any point of time. No one who has taken part in the proceedings eight years

back and slept over the matter should be allowed to agitate the question. On this ground also, I am not inclined to continue the stay. In my view, on

the peculiar facts of this case, it is not necessary to continue the stay any more. As such, the stay petition is dismissed. And the petition to vacate

the stay is allowed.

Against the dismissal of W.M.P., the petitioner unsuccessfully field W.A. No. 1526 of 1988, and the writ appeal was dismissed by the First Bench

on 23.11.1988.

Thereafter, the petitioner filed C.R.P. 3193 of 1988 under Article 227 of the Constitution of India, again, challenging the order in E.P. 371 of

1988. That petition was also dismissed with costs on 13.1989. The learned judge of the Executing court, meanwhile, by order dated 4.11.1988,

dismissing M.P. 827 of 1988. M.P. 826 of 1988, being an interim application, automatically stood dismissed when the main petition was

dismissed. Against the dismissal of M.P. 827 of 1988, the petitioner preferred an appeal before the Appellate Authority under S. 23(1)(b) of the

Act That appeal was numbered as R.C.A. 496 of 1988 That appeal was ultimately dismissed by the Appellate Authority holding that no appeal

lies against the order in M.P. 827 of 1988. However, the learned Appellate Authority, while dismissing the appeal as not maintainable, has

observed that the delivery ordered in E.P. 371 of 1988 without observing O. 21, Rule 22 of the Code of Civil Procedure, was not proper, and the

tenant should not be allowed to go without any remedy, and on that ground, he gave the month''s lime to the tenant to file a Revision against the

order in M.P. 827 of 1988. The tenant has also filed CRP. 971 of 1991, challenging the judgment of the Appellate Authority, under S. 25 of the

Act.

Learned counsel on both sides ad dressed common arguments. Hence these Civil Revision Petitions are disposed of by this common order.

Mr. A. Shanmugavel, learned counsel for the tenant in both the cases, elaborately and exhaustively argued the matters. He contended that the

Appellate Authority was not right in dismissing. The appeal as not maintainable. His next contention was that the delivery ordered in E.P. 371 of

1988 without complying with O. 21, R. 22 of the CPC cannot be sustained and therefore, that order is Liable to be set aside. He also submitted

that subsequent to the order of eviction, there was an agreement between the parties, and as per the agreement, the order of eviction becomes in-

executable. It may be pointed out here that the executing court (Xth Judge, Court of Small Causes), while disposing of M.P. 827 of 1988, has

given a finding that the agreement referred to and relied on behalf of the tenant was not a genuine one. Mr. A. Shanmugavel, in support of his

contention that the order passed by the executing Court in M.P. 827of 1988will not fall under S. 18(1) of the Act, and, therefore, the bar under S.

18(2) of the Act, will not apply, placed reliance on the following judgments:- Fathima Automobiles v P.K.P. Nair 98 LW 116 (Division Bench)

Hidayathullah v. Appellate Authority, Rent Controller, etc. 98 LW 328 Balakrishnan, S. v. A. Rathinam 1989-1-L.W. 125, Hindustan Metal

Rolling Mills Vs. Kandaswamy Chettiar and Another, Pathima Beevi v. PathamuthuJoharari 1991 1 MLJ 322 = 1991-1 L.W. 233, and

VincentPoobalarayary. The Rent Controller (Munsif) Tuficorin 1990 2 LW 521 (Division Bench).

In support of his argument that the delivery ordered without compliance of Order 21 Rule 22 C.P.C. is bad, learned counsel for the tenant

(petitioners) placed reliance on the decision i Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, , and also on

the decision in Muthammal Vs. Kaveriammal and Others, .

Mr. A.L. Somayaji, learned counsel appearing for the respondent (landlord), submitted that the order passed by the executing court in M.P.

827 of 1988 squarely falls under S. 18 (1) of the Act, and consequently the bar under S. 18 (2) of the Act operates and, therefore, the appellate

authority was right in holding that no appeal lies against the order of the executing court. In support of that he cited the decisions in S. Mohammed

v. State of Tamil Nadu 1985 2 MLJ 131 = 97 L.W. 361 S.S.S.A. Vivekanandam Vs. S.V. Kamala Bai, and Purushotham Chettiar v. Puskraj

Sain & others 1980 TLNJ 155.

He also submitted that non-compliance of Order 21, Rule 22, C.P.C., will not go to the root of the matter regarding jurisdiction, and therefore,

there is no case for setting aside the order of the executing court. In any event, according to the learned counsel, in the light of the earlier finding

given by S.A. Kader, J. in W.P. 10789 of 1988 on the question of notice, the petitioners (tenant) are stopped from raising the same in these

proceedings. He also placed reliance on two Division Bench judgments of the Patna High Court. They are:- Sukhdeo v. Brahmdeo AIR 1957 Pat

431 and Ramsaran Sah and Others Vs. Deonandan Singh and Others, . He also placed reliance on the finding of the executing court regarding the

agreement.

I have considered the rival submissions. I find that if I accept the case of the learned counsel for the landlord that no appeal lays against the

order of the executing court in M.P. 827 of 1988, then only I can go into the merits. Otherwise, I am obliged to remit the matter to the appellate

Authority. Therefore, let me first take up the question whether the order passed by the execution whether the order passed by the executing Court

in M.P. 827 of 1988 filed under S. 47 of the CPC challenging not only the order of delivery but also the very order of eviction, comes within the

scope of S. 18 (1) of the Act and, therefore, the bar under S. 18 (2) of the Act is attracted.

A Division Bench of this court, in the decision reported in 98 L.W. 116 (supra) has elaborately considered the scope of S. 18 (1) read with S.

23 of the Act. Ramanujam, J., speaking for the Bench, has held as follows:-

S. 18 of the Act provides that every order made under Ss. 10, 14, 15, 16 and 17, and every order passed an appeal under S. 23 or revision

under S. 25, shall be executed by the controller, as if such order is an order of a civil court, and for this purpose the controller shall have all the

powers of a civil court. Sub-S. (2) Says that in order passed in execution under S. 18 (1) shall not be subject of any appeal or revision. The object

of S. 18(2) is to see that unlike an order of eviction which could be subject to appeal under S. 23 or revision would lie against an order passed

under the section directing delivery in execution under subs(1) of S. 18 of the Act. S. 25 of the Act provides for an appeal to an appellate authority

constituted under the Act against any order passed by the Rent Controller. It is significant to not; that S. 23 does not refer to an order passed

under Ss. 10, 14, 15, 16 and 17. Thus a close reading of S. 18 and S. 23 indicates that there may be order passed by the Rent Controller which

may not fall within S. 18 (1) and S. 23 of the Act. It is further significant to note that S. 23 (1) (b) confers right of appeal to any person aggrieved

by an order passed by the Rent Controller. The use of the expression ''any person'' in S. 23 (1) (b) seems to suggest that it is not only the parties

to the eviction order but also persons affected by any order passed by the Rent Controller that could file an appeal. If the filing of an appeal under

S. 23 is contemplated only by the parties to the eviction proceeding, then the legislature would have used the words any party aggrieves'' instead of

any person aggrieved''. The use of the general expression like ''person'' would indicate that, as already stated an appeal could be maintained not

only by a party to the eviction proceeding but also by a person who feels aggrieved by any order passed by the Controller. In this case, the

executing court has passed an order directing the tenants to deliver possession of the property in pursuance of the order of eviction. That order

alone can be taken to be an order passed under S. 18 (1). Subsequent to such an order the appellant herein has obstructed the delivery and an

application under O. 21, Rule 97, C.P.C., has been filed, and an order has been passed by the Rent Controller on that application. The order

passed by the rent controller in an application under O. 21, Rule 97 cannot, in our view, be taken to be an order passed under S. 18(1) of the Act.

That should be taken to be an independent order passed under the Civil Procedure Code, and not under the Rent Control Act. Though the order

is actually passed by the Rent Controller in an application under Order 21, Rule 97, C.P.C., that should be taken to have been passed by him in

exercise of the powers of a civil court as provided in S. 18 (1) of the Act. We are not therefore in a position to construe the order passed by the

Rent Controller under S. 18(1) so that the bar under S. 18(2) could be invoked S. 18(2) bars an appeal or revision only in respect of an order

passed in execution under sub-S. (1). But that section will not be a bar of an appeal.

S. 18 of the Act reads as follows:-

Execution of orders; (1) Every order made under Ss. 10, 14, 15, 16 and 17and every order passed on appeal under S. 23 or on revision

under S. 25 shall be executed by the Controller, as if such order is an order of a civil court and for this purpose the Controller, shall have all the

powers of a civil court.

(2) An order passed in execution under sub-S. (1) Shall not be subjected to any appeal or revision.

Following the above ratio, I have held in the decision, reported in 98 L.W. 328 (supra) that an order passed by the Rent Controller on the

application under S. 144 of the CPC will not come within the scope of S. 18 (1) of the Act, and consequently S. 18 (2) of the Act was not a bar

for filing an appeal to the appellate Authority. In S. Balakrishnan Vs. A. Rathinam, Ratnam, J., as he then was, has concurred with the view

expressed in 98 L.W. 328 (supra). In 1990-2 L.W. 521 (supra) a Division Bench of this Court has reiterated the view expressed by an earlier

Division Bench in 98 L.W. 116 (supra). In 1989 (1) L.W. 539 (supra), Srinivasan, J., has distinguished 98 L.W. 116 (supra) on the facts of that

case. Srinivasan, J., again in 1991-1-M.L.J. 322 (supra) after noticing the ratio in 98 L.W. 116 (supra) has applied the same to the provisions of

the Pondicherry Buildings (Lease and Rent Control) Act

As against the above decisions, let me now refer to the decisions cited by Mr. A.L. Somayaji, learned counsel for the respondent.

In 1980 T.L.N.J. 155 (supra), Sathiadev. J., as he then was, has held as follows:-

Merely because in a statute provisions of CPC are adopted it does not meant that in spite of specific exclusion made regarding appeals and

revision there in, the procedural law, which has been invoked, would override specific provisions of the Act, Instead of annexing the provisions of

The CPC as part of S. 18 or to that of the Act, for the purpose of convenience, the applicability of the CPC to the proceedings and orders passed

by the rent controller is envisaged u/s. 18(1) of the Act. Being fully aware of the existence of the provision made for appeals and revisions in CPC

the legislative intent exclude such appeals or revisions had been specifically incorporated in S. 18(2) of the Act. The maxim generally special bus

non derogate is applicable herein. In spite of what is provided u/s. 18 (2) of the Act, if this court is to exercise jurisdiction u/s. 115 of the Civil

Procedure Code, it would be against the legislative intendment. The remedies provided under a particular statute have to be worked out within the

four corner"" of the statute.

I do not consider that the above observation will in any way help the respondent (landlord) in the light of the Division Bench judgment in L.W. 116

(supra). In 1982 I. M.L.J. 212 (supra) Balasubramaniam, J., was considering a case of orders passed in execution petition. It does not appear that

there was any petition separately taken by the tenant. Therefore, on the terms of S. 18 of the Act, the learned Judge held that for the order passed

in execution petition, the bar under S. 18 (2) of the Act will operate.

Again in 1985 II M.L.J. 131 (supra) S. Natarajan, J., as he then was has considered a case under Article 226 of the Constitution of India,

wherein the constitutional validity of S. 25 of the Act was challenged.

From the Division Bench judgment, it is clear that though the Rent Controller passed an order, it must be taken that he passed that order in the

exercise of powers of a civil court as provided under S. 18 (1) of the Act. Therefore, the order passed by the executing court (rent controller) was

one under S. 47 of the Civil Procedure Code. In this context, the judgments cited by the appellate authority, on the scope of orders passed under

S. 47 C.P.C., have to be referred to.

In Mohan Das and Others Vs. Kamla Devi, it has been observed as follows:-

The definition of"" decree ""has been amended by the Amending Act and words"" S. 47 has been omitted by the Amending Act. Before these

amendments an order passed under S. 47 CPC amounted to a decree, and was subject to first and second appeal as provided under the Code of

Civil Procedure. The amending Act, 1976, has been brought with the intention of shortening and curtailing the litigation. Orders passed under S.

47, C.P.C., now no more amounts to a decree. No appeal is provided against such orders under S. 104, C.P.C. or the rules framed there under,

x x x

Pending appeals were saved by virtue of S. 97(2)(a).

x x x

In the scheme of the Amending Act, 1976, it is writ large that the litigation should be shortened and curtailed and by omission of the words, S. 47

or, the orders under S. 47 CPC are no more appealable. The intention of the legislature therefore, is that the decree-holder should be able to reap

the fruits of his decree as expeditiously as possible, and that the judgment-debtor should not be allowed to have a second inning by way of

frivolous objections and thus defeat the very purpose of the decree. The legislature further intended that execution matter should be disposed of as

expeditiously as possible and hence these amendments.

In Parshava Properties Ltd. Vs. A.K. Bose, , the court, has observed as follows:-

It is true that the purpose of the amendment of S. 2(2) was to eliminate unnecessary appeals and a number of orders passed under S. 47 of the

Code would be non-appealable, in view of the amendment of S. 2(2) of the Code. Nevertheless, there may be certain orders which may be

appealable, which in its turn would depend on whether such orders come within the definition of decree.

If the amendment of S. 2(2) be taken to abolish right of appeal against orders under S. 47 even where final determination of rights takes place, the

provision would be discriminatory and volatile of Art. 14 of the Constitution.

Again, in Pratap Narain Agarwal Vs. Ram Narain Agarwal and Others, it is observed as follows:-

by the (Amending Act definition of the expression ''decree'' has been amended. As a consequence, an order passed on an objection under S. 47

ceases to be a decree. As the order ceases to be a decree, it could not be appealed against. The provision amending S. 2(2) was applied to the

execution proceedings, without any reservation.

From its experience, the legislature had gathered that frivolous objections used to be filed to the execution of decree and the same had the

tendency to prolong the litigation unduly. By filing objections, the judgment-debtors could successfully delay the execution. Accordingly, S. 2(2)

was amended for the purposes of meeting the aforesaid eventuality. As a result of the amendment, a decision on an objection filed under S. 47 is

no more a decree. As it is not a decree, the order passed on such an objection is not appealable.

In view of the above, it has to be held that against the order of the executing court in these cases based on the application filed under S. 47 of

the Code of Civil Procedure, no appeal lies, and only a Revision lies. Therefore, the decision cited by the learned counsel for the tenant, on the

scope of Ss. 18(1) and 18(2) of the Act will be of no use. On the other hand, the ratio laid down in the Division Bench judgment, relied on by him,

is against him. In view of the above conclusion, it is to I be held that the appellate Authority was right in J dismissing the appeal as not maintainable.

The above view of mine is supported by the decisions of Srinivasan, J. again relied on by learned counsel for the tenant. Srinivasan, J., in 1991

1 MLJ 322 = 1991-1-L.W. 233 (supra) while considering an identical question has held as follows:-

When the appeal was taken up for hearing, a preliminary objection was raised by learned counsel for 1st respondent that the appeal is not

maintainable. Really the objection is that the appeal by the appellant in the lower appellate Court was itself not maintainable and consequently the

second appeal is. Not maintainable

Learned counsel subject that under S. 18 of the Pondicherry Buildings (Lease and Rent Control) Act, an order for eviction shall be executed by

the Munsif having jurisdiction over the area in which the ""building is situated as if it were a decree passed by him. According to learned counsel, the

appeal against the order of the Munsif, shall be only to the appellate authority under S. 23, if an appeal lies. But according to him, ""under the

provisions of S. 18 of the Pondicherry Act, an appeal does not lie but a revision would like under S. 25. It is therefore, contended that the remedy

of the appellant was to file a revision against the order of the Principal District Munsif, and not an appeal to the Subordinate Judge.

I do not agree with this contention. S. 18 (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act contains similar language but the authority

under the said sub-Section to execute the orders is the controller himself. Under the said sub-Section, the controller shall execute the order as if it

is an order of a civil court and for that purpose; he shall have all the powers of the civil court. Under Sub-S. (2) of S. 18, an order passed in

execution under sub-S. (1) Shall not be subject to any appeal or revision. The question whether an order removing obstruction passed under O.

21, Rule 97 of the CPC is an order under S. 18(1) of the Tamil Nadu Act arose for consideration before a Division Bench of this court in Fathima

Automobiles Vs. P.K.P. Nair and Another, . The Division Bench held that an order under O. 21 Rule 97 of the CPC will not fall within the scope

of S. 18 (1). The reasoning of the Division Bench is that it is an order passed by the Rent Controller in exercise of the powers of a civil court an

independent order passed under the CPC and not the Rent Control Act. The Bench proceeded to hold that the orders being passed by Rent

Controller, on appeal would lie under S. 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, as under the said section any order passed

by the Rent Controller it appealable. If the reasoning of the Bench is applied to the provisions of the Pondicherry Act, it is clear that the order

passed by the Principal District Munsif, Karaikal one under O. 21, R. 97 of the CPC and not under S. 18 of the Pondicherry Buildings (Lease and

Rent Control) Act. Consequently the proviso to S. 18 will not apply. If an order is passed under S. 18, then only, the proviso will come into play

and a revision would lie under S. 25. As the present order is an independent order under O. 21, R. 97 of the Code of Civil Procedure, the proviso

will not apply and the provision for appeal or revision under the (Pondicherry Rent Control) Act cannot be invoked. The only remedy available to

the party is to file an appeal under the provision of the CPC as the order is an appealable one.

In fact, the relevant provision in the CPC is found in Rule 103 of O. 21. Under the rule an order made under Rule 98 or 100 shall have the same

force and be subject to the same force and be subject to the same conditions as to appeal or otherwise as if it were decree. Here, the order has

been passed by the District Munsif. The authority, who is competent to entertain an appeal against the order of the District Munsif, under the CPC

is undoubtedly the Subordinate Judge, Karaikal. Learned counsel for the 1st respondent placed reliance on the judgment of Natarajan. In S.

Mohammed v. State of Tamil Nadu 1985 2 MLJ 131 = 97 L.W. 361.That was a case under the Tamil Nadu Act and the relevant provision

Authorized the Controller it pass orders in the stage of execution. That judgment will not apply to the present case.

The above view of Srinivasan, J., instead of helping the petitioners, is against them.

Consequently, C.R.P. No. 971 of 1991 is dismissed, with costs.

Now, let me consider the merits, by taking by GRP. No. 1624 of 1991.

On merits, as noticed earlier, two points were urged. One is that the order of the Executing Court ordering delivery without complying with

Order 21 Rule 22 C.P.C. is illegal and not sustainable. On this question, I feel the learned counsel for the landlord is right in placing reliance on the

finding of S.A. Kader, J., in W.P. No. 10789 of 1988. At the risk of repetition against the finding is extracted below:-

The petitioner can no longer raise the question of want of notice under Order 21, Rule 22 of the Code of Civil Procedure. The matter has been

heard by the executing court and it is open to the executing court to pass such order as it deems fit in the matter"". Only after this order of S. A.

Kader, J. the executing court have disposed of the matter. The tenant having allowed the above conclusion to become final cannot raise the same

point again to challenge the order in F.P. No. 37 of 1988. In view of this conclusion, it is not necessary for me to go into the case- law cited at the

Bar.

The only other question that remains to be considered, is regarding the reliance placed on the alleged subsequent agreement. On that the

executing court has given a finding that the alleged agreement was not genuine, for the reasons slated in the order. I have no good reason to differ

from the finding rendered by the executing court. In the circumstances, I do not find any merit in the C.R.P. 1624 of 1991 challenging the order of

the executing court. In the result, both the revision portion are dismissed with costs.

Learned counsel for the petitioners (tenant) seeks reasonable time to be given to them to vacate the premises. Having regard to the nature of the

business carried on by the petitioners, two months time from this date is given.