N. Periaswami vs Ponnusswmi Pillai

Srinivasan, J.—This revision petition is against in order made in execution in E.P. 327 of 1987 directing the petitioner herein to deliver possession as he had failed to deposit the rent as agreed to by him in the joint endorsement made by him on 10-12-1986 before the Special Deputy Collector (Revenue Court. Lalgudi, in P.N. 518 of 1986. That petition was for eviction under S. 3 (4)(a) of the Tamil Nadu Cultivating Tenants Protection Act, 25 of 1955. Admittedly, the petitioner herein was in arrears and he made a joint endorsement along with the respondent that he would pay the arrears of Rs. 3250-80. The endorsement was to the effect that a sum of Rs. 1500 should be paid on or before 25-1-1987 and a sum of Rs. 1,750 should be paid on or before 31-3-1987. The petitioner did not choose to pay either of the installments. The respondent, instead of approaching the Revenue court for passing a final order of eviction in the petition for eviction P. 518 of 1936, sled an application for execution before the executing court in execution petition No. 327 of 1987. In the execution petition he had referred to the order dated 10-12-1986, as the order made in P. 515 of 1986 and said that as the petitioner failed to comply with that order, he was liable to be evicted. On 9-7-1987, the petitioner paid a sum of Rs. 300 and prayed for further time The matter was called on 28-8-1987, on that date, the petitioner remained absent and the court passed an order directing eviction of the petitioner. The petitioner preferred an application on 7-10-1987 for setting aside the order dated 26 8-1987 on the ground that there was an exparte order and the petitioner was not well and was bed-ridden on 26-8-1987, and, therefore, he could not pay the amount before that date. This application has not been disposed of.

The revision petition is filed against the order dated 26-8-1987, directing the eviction of the petitioner. It is submitted by learned counsel for the petitioner that there is no order of eviction passed by the Revenue Court and, therefore, the respondent could not file any application for eviction. Consequently, as the application for setting aside the ex parte order dated 26 8-1987 is still pending the execution of the order of eviction could not be carried out.

Though at first I was inclined to direct the Revenue Court to give a final disposal to P. No 515 of 1986 by taking the petition on its file, and considering the default on the part of the petitioner to deposit the amount as agreed to in the joint endorsement, I changed my mind, agreeing with the argument of learned counsel for the respondent that this is not a fit case to interfere under S. 115, C.P.C. I find that justice has Seen done by the court below in directing eviction of the petitioner. The petitioner has had more than one month''s time from 10-12-1986 to pay a sum of Rs. 1,500 as first instalment and another sum of Rs. 1750 as the second instalment for which he had more than two months time after deposit of the first instalment. As the petitioner did not choose to pay either of the instalments, it is not open to him to dictate terms to the other side. The petitioner took time on 9-7-1987 after paying a sum of Rs. 300 and the matter was adjourned to 26-8-1987. Even on that date, the petitioner was not ready to pay the arrears of rent. Therefore, the court passed an order directing eviction of the petitioner. A month and a half after this order, the petitioner preferred an application for setting aside the ex parte order. The recalcitrant attitude of the petitioner shows that he is not interested in paying the rent. In view of the attitude on the part of the petitioner. I think this is not a case in which I could exercise my discretion under S. 115, C.P.C

It is stated by learned counsel for the petitioner that pursuant to the order of this court dated 4-11-1987 a sum of Rs. 2,900 has been deposited in the Revenue Court before 20-11-1987. That, in my view, will not alter the situation. In so far as the default is concerned, the petitioner has committed default and he should suffer the consequences there for.

It has been laid down by Ismail, J. in V. Karuppan v. S.K. Lakshminarayana Iyer 83 L.W. 344=1970 2 M.L.J. 311, that the High Court will not exercise the revisional powers under S. 115, C.P.C, when it finds that interference will result in hardship and injustice to a particular party and that justice has been done by the order of the lower court. The learned Judge lias gone to the extent of saying that even if the order of the court below is one without jurisdiction, the High Court may refuse to interfere with the same under S. 115, C.P.C. That decision was approved by a Division Bench of this Court in N.S. Kumar v. Vaithinathan 1938 T.L.N.J. 1. Following the two decisions. I hold that in this case, justice has been done and this is not a case in which I should exercise my discretion under S. 115, C.P.C In the result, the civil revision petition fails and is dismissed. There will be no order as to costs.