P.Gomathi vs Abraham Inbaraj

V.M. Velumani, J.—This civil revision petition has been filed to direct the learned I Additional District Munsif, Tiruchirappalli, to take E.A.SR.No.1159/20.04.2011 in R.C.O.P.No.259 of 1990 on file and decide the same on merits and in accordance with law.

Heard Mr.K.S.Shankar Murali, learned counsel appearing for the revision petitioner and Mrs.K.Angayarkanni, learned counsel appearing for the first respondent.

The revision petitioner herein is the Obstructor/third party, the first respondent herein is the petitioner and the second respondent herein is the third respondent and the respondents 1 and 2 are died in R.C.O.P.No.259 of 1990, on the file of District Munsif Court, Tiruchirappalli. The first respondent filed R.C.O.P.No.259 of 1990 against the mother and two brothers of the petitioner herein. The petitioner was residing in the petition premises along with her mother and children from 1993 onwards. The petitioner was not impleaded in the R.C.O.P. By the order, dated 16.08.1999, eviction was ordered in R.C.O.P.No.259 of 1990. One of the brother of the petitioner viz., Ravindran, filed R.C.A.No.154 of 1999 and that was dismissed on 13.01.2004. Subsequently, he did not proceed further in the rent control proceedings, as he did not residing in the petition premises. Subsequently, the petitioner''s mother and her another brother viz., Rajendran died. The first respondent field E.P.No.185 of 2006, for delivery of possession. In the E.P., the first respondent was directed to implead the legal heirs of the mother of the petitioner. The first respondent did not take any steps for impleading the legal heirs of the deceased Visalakshiammal, the mother of the petitioner. Therefore, the E.P., was dismissed for default on 10.07.2009. Subsequently, the first respondent filed another E.P.No.582 of 2010, for delivery of possession against Visalakshiammal, the mother of the petitioner, Rajendran and Ravindran, the brothers of the petitioner. The said Visalakshiammal and Rajendran died before filing of Execution Proceedings. The E.P. was filed against the dead person. The first respondent filed E.A.Nos.296 of 2011 and 297 of 2011, for police aid and break open the lock of the door of the petition premises. On coming to know of the Execution Proceedings filed by the first respondent, the petitioner filed petition under Order 21 Rule 97(1) and (2) and Section 151 of C.P.C., as Obstructor. The said petition was unnumbered and the petitioner was directed to produce certain documents. Subsequently, it was adjourned to 30.05.2011. In the meantime, by the order, dated 23.04.2011, the learned Judge ordered break open and police aid. Hence, the petitioner filed the present Civil Revision Petition, to direct the learned I Additional District Munsif, Trichy, to take E.A.SR.No.1159/20.04.2011 in R.C.O.P.No.259 of 1990, on file and decide the same on merits.

From the records, it is seen that the second respondent herein as the third respondent in the Execution Proceedings, has filed a memo stating that the first respondent is not a landlord. The petitioner herein filed the petition under Order 21 Rule 97(1) and (2) and Section 151 of C.P.C., as Obstructor. According to the petitioner, she was residing in the petition premises with her mother from 1993 onwards and after her mother''s death, she is in possession as a tenant and is paying rent to the first respondent''s son, who is the real landlord. She has filed various documents to prove her possession and claimed that she is the tenant. While the said petition being adjourned without being numbered, the learned Judge, on 23.04.2011, without notice to the petitioner, has ordered break open the petition premises and police aid for delivery of possession. The learned counsel for the petitioner has relied on the Judgment reported in Sheik Allaudin, Asia Natchialle and Mohammed Mustafa Vs. Annibal Thamilarasi Jesintha, , wherein at paragraph No. 5, it has been held as follows:-

"5...... it is not necessary for a ''tenant'' to claim to be a legal heir of the deceased tenant and it is enough that he had been in continuous association of the deceased tenant and in such case,...."

The ratio laid down in the aforesaid Judgment, is squarely applies to the facts of this case. Therefore, the order of the learned Judge, dated 23.04.2013, ordering break open and police aid for delivery of petition premises without passing any order in the petition filed by the petitioner under Order 21 Rule 97(1) and (2) and Section 151 of C.P.C., is illegal.

In the result, this Civil Revision Petition is allowed directing the learned I Additional District Munsif, Tiruchirappalli , to number the petition in E.A.SR.No.1159/20.04.2011 in R.C.O.P.No.259 of 1990 and decide the same on merits and in accordance with law as expeditiously as possible. No costs. Consequently, connected Miscellaneous Petition is closed.