Rajan vs Padmavathy

P.R. Shivakumar, J.—This Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure questioning the correctness and legality of the Order dated 18.10.2011 made in E.A. No.53 of 2011 in E.P. No.46 of 2008 in O.S. No.4 of 2006 on the file of the Principal District Munsif-cwm-Judicial Magistrate, Eraniel. At the time of filing of the Civil Revision Petition, Mrs. Padmavathy, happened to be the sole Respondent. Since she died after the filing of the Revision, her Legal Representatives have been impleaded as Respondents 2 to 7.

Claiming to be the owner of the Suit property, namely two shops bearing old Door Nos. 17/28 & 17/29 (New Door Nos. 17/39 & 17/40) in Eraniel Village, comprised in R.S. NO. 156/3E1 and that the said property had been leased out to the Revision Petitioner (Defendant), Padmavathy, as Plaintiff, filed O.S. No.4 of 2006 on the file of the Principal District Munsif-cwm-Judicial Magistrate, Eraniel praying for a Decree directing the Revision Petitioner (Defendant) to vacate and hand over vacant possession of the said properties and also for payment of arrears of rent. The Suit w as filed after issuing a Notice terminating the lease and requiring delivery of vacant possession. In addition, she had also prayed for a direction to pay damages for use and occupation (Mesne Profits) at the rate of Rs.2,500/- per month from 1.12.2005 till the date of delivery of vacant possession and also for costs.

The Suit was resisted by the Defendant in the Suit (the Revision Petitioner) denying the Plaintiff Padmavathy to be his Landlord, while admitting the fact that he was in possession and enjoyment of the Suit property only as a Tenant. In this regard, the Revision Petitioner (Defendant) had taken a stand that one Muthukumaraswamy @ Rajappa, who was none other than the husband of the Plaintiff Padmavathy, was dealing with the Suit property and by an oral Agreement with him, the Revision Petitioner (Defendant) took possession of the Suit property consisting of two shops as a tenant on 1.7.1991. It was further contended by him that after the death of Muthukumaraswamy @ Rajappa, Murugan S/o. Padmavathy (the Plaintiff) used to collect the rent till the month of July 2005 and thereafter, he stopped coming to the Revision Petitioner (Defendant) for collecting the rent since the Revision Petitioner asked for issuing receipt for the payment of rent made by him and that after waiting till to pay the rent for the month of August 2005, the Revision Petitioner (Defendant) sent two separate Money Orders on 22.9.2005 to the said Murugan and the said Murugan refused to accept the same as a result of which the Revision Petitioner/Defendant is depositing the rent with the Indian Overseas Bank, Thingal Nagar Branch. Refuting other contentions made in the Plaint regarding the alleged demand made by Padmavathy, the Plaintiff, the age and condition of the building and the purpose for which the eviction was sought for, the Revision Petitioner/Defendant contended that the relief sought for in the Suit should not be granted and the Suit should be dismissed.

After contest, the learned Principal District Munsif-cwm-Judicial Magistrate, Eraniel decreed the Suit directing delivery of vacant possession and payment of Rs. 1,900/- towards rental arrears from August 2005 to November 2005 at the rate of Rs.475/- per month and directing initiation of separate proceedings under Order 20, Rule 12(l)(ba) of Code of Civil Procedure regarding the claim of Mesne Profits. The decree passed on 30.8.2007, was challenged by the Revision Petitioner (Defendant) in A.S. No.3 of 2008 on the file of the Subordinate Judge, Padmanabhapuram. The learned Subordinate Judge, Padmanabhapuram, after hearing, dismissed the Appeal without costs by his Judgment and Decree dated 3.2.2010 confirming the Decree passed by the Trial Court. As against the concurrent Judgments of the Trial Court and the Appellate Court, the Revision Petitioner/Defendant preferred a Second Appeal in S.A.(MD) No.507 of 2010 on the file of this Court. This Court, by Judgment dated 8.7.2010 dismissed the said Second Appeal and thus, the Decree passed by the Trial Court stands confirmed.

Meanwhile, M/s. Padmavathy, the Decree-holder, filed Execution Petition in E.P. No.46 of 2008 for delivery of possession. Till the disposal of the Second Appeal and even till the lapse of more than 6 months after the dismissal of the Second Appeal, the Revision Petitioner/Judgment-debtor was able to successfully resist the execution. Hence, Decree-holder, namely Padmavathy, preferred a Civil Revision Petition on the file of this Court in C.R.P.(PD)(MD) No. 1577 of 2010 praying for a direction to the Principal District Munsif-cwm-Judicial Magistrate to dispose of E.P. No.46 of 2008 in O.S No.4 of 2006 within a time to be fixed by this Court. This Court, by an Order dated 31.8.2010, allowed the said Civil Revision Petition and directed the Principal District Munsif-cwm-Judicial Magistrate, Eraniel to dispose the above said Execution Petition before the end of October 2010 and report the same to the Registry.

Meanwhile, one Sivabalan raised an objection in the execution by filing Execution Application in E.A. No.65 of 2010 and came forward with C.R.P. No. 1795 of 2010 for a direction to dispose of the objection Petition. When the same came before this Court for hearing, the said Civil Revision Petition was withdrawn and accordingly, the Civil Revision Petition was dismissed as withdrawn on 1.10.2010. The Revision Petitioner (Judgment-debtor) remained ex parte and allowed an ex parte Order to be passed against him in the Execution proceedings, namely E.P. No.46 of 2008. Thereafter, he filed an Application in E.A. No.33 of 2010 to set aside the ex parte Order passed in the Execution Petition. The said Application was also dismissed by the Executing Court. Against the order dismissing the E.A. No.33 of 2010, the Revision Petitioner/Judgment-debtor filed C.M.A. No. 15 of 2010 on the file of the Sub-Court, Padmanabhapuram. Pending disposal of the Civil Miscellaneous Appeal, he filed I.A. No.224 of 2010 for stay of further proceedings. The learned Subordinate Judge, Padmanabhapuram dismissed the same by an Order dated 14.12.2010. Challenging the said Order, the Revision Petitioner herein/Judgment-debtor preferred another Revision in C.R.P.(NPD) No. 184 of 2011 before this Court. This Court, by an Order dated 1.2.2011, dismissed the said Revision at the stage of admission itself and directed the learned Subordinate Judge, Padmanabhapuram to dispose of C.M.A. No. 15 of before 21.2.2011. However, till such time, the Principal District Munsif-cwm-Judicial Magistrate, Eraniel, was directed not to pass any Order in the Execution Petition. Pursuant to the said Order, the learned Subordinate Judge, Padmanabhapuram heard C.M.A. No. 15 of 2011 and dismissed the same with costs by a Judgment dated 17.2.2011. The same was challenged in C M S.A.(MD) No. 14 of 2011 before this Court and this Court, by Judgment dated 31.3.2011, dismissed the said Civil Miscellaneous Second Appeal.

Even after his failure in all the Appeals and Revisions, the Revision Petitioner/Judgment-debtor was not prepared to allow the Decree to be executed. He was contending that the decree passed by the Trial Court was not an executable one and was offering resistance to the execution to that part of the decree directing delivery of vacant possession. Since the Officer of the Court was resisted, he returned the warrant of delivery stating that without an order to break open and also for Police protection, delivery could not be effected. Pursuant to the same, the Decree-holder, namely Padmavathy, filed an Application in E.A. Nos.49 & 50 of 2011 for necessary direction to the Bailiff to break open the locks and effect delivery and also for a direction to Superintendent of Police, Kanyakumari District at Nagercoil for providing Police help to the Bailiff for effecting delivery. The Executing Court heard those Applications. The Revision Petitioner (Judgment-debtor) made yet another attempt to protract the proceedings by filing an Application in E.A. No.55 of 2011 for re-opening E.A. No.50 of 2011. The learned District Munsif-cwm-Judicial Magistrate, Eraniel, after hearing, dismissed the Execution Application in E.A. No.55 of 2011 and pronounced Orders in E.A. No.49 of 2011 and 50 of 2011 directing the Bailiff to break upon the locks and effect delivery and directing the Superintendent of Police to give protection.

In fact in the Execution Petition, ruling out the objections raised by the Revision Petitioner/Judgment-debtor and taking note of the fact that the Appeals and Civil Revision Petitions filed by the Revision Petitioner/Judgment-debtor had been disposed of by the High Court and also the fact that the High Court had issued direction for the disposal of the Execution Petition within a time frame, the Executing Court passed a detailed Order on 29.4 2011 directing delivery of the Suit property by 7.6.2011. Thereafter, on the same day, the Revision Petitioner/Judgment-debtor submitted an objection in writing to the senior Bailiff stating that the Petition scheduled property could not be ascertained. The senior Bailiff returned the warrant on the ground that there was obstruction caused by the Judgment-debtor. Hence, the case was adjourned for taking steps for removal of obstructions. The Executing Court directed steps to be filed by the Decree-holder. Thereafter, the Decree-holder filed steps, pursuant to which, the Order dated 26.7.2011 was passed directing delivery by 11.8.2011.

Contending that the said Order is not a proper one, the Revision Petitioner filed E.A. No.53 of 2011 to review the said Order dated 26.7.2011 made in E.P. No.46 of 2008 on the premise that once an objection is raised and the same is noted by the Bailiff, thereafter delivery could not be allowed without a Petition for the renewal of the obstruction. The learned Principal District Munsif-cwm-Judicial Magistrate, after hearing, dismissed the said Application filed by the Revision Petitioner herein/Judgment-debtor and passed an Order directing the Bailiff to break open the locks and effect delivery with Police aid. In the said Order itself, the learned Principal District Munsif-cwm-Judicial Magistrate instructed the Bailiff to get necessary assistance from the Tahsildar by providing a VAO for identifying the property. The Order dismissing the Review Application in E.A. No.53 of 2011 is being challenged in the present Civil Petition. The arguments advanced by Mr. K.P. Narayanakumar, learned Counsel for the Petitioner and by Mr. J. John Jayakumar, learned Counsel for the Respondents were heard. The grounds of Revision, impugned Order of the Lower Court, copies of the material records produced in the form of typed-sets on either side were also considered.

The narration of the sequence of events made above will make it clear that no plea of defence was taken by the Revision Petitioner/Judgment-debtor either in the Suit or in the Appeal or in the Second Appeal that there was ambiguity in the description of property or that the Plaint Schedule property could not be identified. On the other hand, all along he had been contesting the case admitting his position as a Tenant in respect of the Suit property. It was his contention that there was no privity of contract between Padmavathy and himself and on the other hand, the husband of Padmavathy was his Landlord and after his death, his son Murugan was collecting the rent It was his further contention that after July 2005, he did not come forward to receive the rents and therefore, he had to send the rent by Money order. It is pertinent to note that nowhere in the Written Statement or in the other pleadings, the Revision Petitioner/Defendant denied the title of Padmavathy, the Plaintiff regarding the Suit property. It is also not his clear case that the husband of Padmavathy or her son Murugan, acted in their personal capacity in collecting rent and not as agents of Padmavathy. On the other hand, there is clear admission and in fact before this Court it has been admitted by the Counsel during argument that Padmavathy was collecting rents through her husband and after his death, through her son Murugan and that the same was the reason why rent was sought to be sent by Money Order to Murugan.

Be that as it may, it is not the case of either party that the area is a notified area to which Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has been extended. As such, for evicting a contractual Tenant, termination of tenancy under the Transfer of Property Act and demand for delivery of vacant possession alone are essential. The restrictions regarding the grounds on which one can be evicted as provided in Tamil Nadu Buildings (Lease and Rent Control) Act, 1950 are not applicable to such cases. Even though the Plaintiff (Decree-holder) would have stated such grounds thinking that the case can be projected in a better way if such grounds are also alleged, they are totally unnecessary and irrelevant. Ultimately, the Trial Court held that the tenancy was properly terminated and the Plaintiff was entitled to the relief of recovery of possession and other reliefs. On Appeal, it was confirmed by the Subordinate Judge and the same was again confirmed by the High Court in the Second Appeal. Not satisfied with the litigation upto the Second Appeal level, which the Revision Petitioner ultimately lost, he allowed an ex parte Order to be passed in the Execution Petition, filed an Application to set aside the ex parte Order, suffered an Order of dismissal of the said Petition, challenged the said Order by filing a Civil Miscellaneous Appeal which was also dismissed and challenged the Judgment made in the Civil Miscellaneous Appeal in C.M.S.A. (MD) No. 14 of 2011 before this Court. The same was also dismissed ultimately. Meanwhile, three rounds of litigation were made by preferring Revisions. In all those attempts, the Revision Petitioner/Judgment-debtor failed.

All those facts will go to show that the Revision Petitioner was bent upon not only protracting the case but also resisting the execution of the Decree by due process of law. It is not his case that he has got any other property adjacent to the Suit property and possession of such property is sought to be taken in execution of the Decree. On the other hand, his contention seems to be that the shops originally leased out to him are not there and that he has put up shops in the appurtenant land and such shops are sought to be taken from him. The said act will show how high-handed the act of the Revision Petitioner is. He defies the order of the Court and he is trying to avoid execution of the Decree and squat on the property by hook and crook. Filing of E.A. No.53 of 2011 to review the Order dated 26.7.2011 made in E.P. No.46 of 2008 is one of such attempts at protraction of the case. The filing of the present Revision will show how vexatious the claim of the Revision Petitioner is. It is patent that the Revision Petitioner has indulged in abusing the process of Court. The present Revision can also be viewed as an example of abuse of process of Court.

For all the reasons stated above, this Court comes to the conclusion that there is no merit in the Revision and Revision deserves to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs.