Skip to content


Fathima Automobiles Vs. P.K.P. Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 271 of 1983
Judge
Reported inAIR1985Mad318
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 18, 18(2) and 23(1); Code of Civil Procedure (CPC), 1908 - Order 21, Rules 97 and 101
AppellantFathima Automobiles
RespondentP.K.P. Nair and anr.
Appellant AdvocateA. Ramanathan, Adv. for ;K.G. Ahmed, Adv.
Respondent AdvocateS.V. Jayaraman, Adv. for ;M.A. Srinivasan, Adv.
Excerpt:
.....- maintainability of suit against said direction of high court challenged - any order passed by rent controller against which person feels aggrieved can be taken in appeal by him under section 23 (1) - orders passed under section 18 (2) not appealable - prior order admittedly under order 21 rule 97 - said order not deemed to be under section 18 (2) - held, appeal against removal maintainable. - - 23 is contemplated only by the parties to the eviction proceedings, then the legislature would have used the words 'any party aggrieved' 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..........ground that the appellant has got a right of suit against the order dated 26-8-1981, passed by the rent controller in w. p. 943 of 1980 in e. p. 762 of 1980 in h. r. c. 986 of 1977 on the file of the small cause court, madras.2. the circumstances under which the said writ petition came to be filed before this court may be briefly stated. respondent 1 herein had obtained an order of eviction against his tenants in h. r. c. 986 of 1977. in those proceedings, there was no resistance at all on the part of the tenants. however, the appellant herein obstructed delivery of possession and therefore respondent 1 filed an application for removal of obstruction in w. p. 943 of 1980. the appellant resisted the said application for removal of obstruction contending that he is not one claiming any.....
Judgment:

Ramanujam, J.

1. This writ appeal is directed against the order of Mohan, J. in W. P. 7351 of 1981, dismissing the writ petition filed by the appellant on the ground that the appellant has got a right of suit against the order dated 26-8-1981, passed by the Rent Controller in W. P. 943 of 1980 in E. P. 762 of 1980 in H. R. C. 986 of 1977 on the file of the Small Cause Court, Madras.

2. The circumstances under which the said writ petition came to be filed before this Court may be briefly stated. Respondent 1 herein had obtained an order of eviction against his tenants in H. R. C. 986 of 1977. In those proceedings, there was no resistance at all on the part of the tenants. However, the appellant herein obstructed delivery of possession and therefore respondent 1 filed an application for removal of obstruction in W. P. 943 of 1980. The appellant resisted the said application for removal of obstruction contending that he is not one claiming any rights under the tenants against whom the order of eviction has been passed, that he is claiming independent right through one Dhanabagyammal who is claiming to be the owner of the premises. The Rent Controller after taking evidence with reference to the relative contentions of parties ordered removal of obstruction. It is as against that order the writ petition came to be filed. Mohan J. before whom the writ petition came up for final hearing passed the following order : -

'The matter arises under execution proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. If really the petitioner was not a party to the eviction order, it need not worry at all. It can always protect its right by means of a separate suit for declaration of the tenancy rights. In this view, I do not propose to interfere with the order. The writ petition is dismissed. No costs.'

Taking note of the order passed by Mohan J. the appellant has filed a suit questioning the order passed by the Rent Controller removing obstruction. He has also filed this writ appeal against the said order of Mohan J.

3. Before us, learned counsel for the appellant submits that though the appellant has filed a suit questioning the order of the Rent Controller directing removal of obstruction, since the question as to whether a suit will lie after O. 21 R. 101 has been, amended by the Amending Act of 1976, is a moot point, the appellant has filed the appeal seeking a ruling on the question as to whether the suit could be maintained against an order of the execution court directing removal of obstruction. It is significant to note that Mohan J. who disposed of the writ petition has not gone into the merits of rival contentions as to whether the order removing obstruction could be justified on merits or not. The learned Judge has merely proceeded on the basis that since the appellant has got a remedy by way of suit, the order removing obstruction passed by the Rent Controller does not call for interference. Having regard to the order passed by the learned Judge which is under appeal, the question that arises for consideration by us is 'what is the remedy available to the appellant as against the order passed against him by the Rent Controller removing obstruction.'

4. The matter has to be looked at in the context of the provisions of O. 21 R. 97 read with R. 101, Civil P. C. and Ss. 18 and 23, Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called the Act). Order 21 Rule 47(l), C.P.C. provides that where the decree-holder or the purchaser of any property sold in court auction is resisted or obstructed by any person, in obtaining possession of the property, the decree-holder or the auction purchaser may make an application to the Court complaining of such resistance or obstruction. Rule 97(2) enables the Court to adjudicate upon such an application for removal of obstruction in accordance with the provisions contained in O. 21 R. 101, as amended by Act, 104 of 1976, lays down that all questions arising between the parties to an application under R. 97 shall be determined by the executing court dealing with the application and not by a separate suit and for this purpose the executing Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Thus, after the Amending Act 104 of 1976 was passed, the executing Court before which an application is filed for removal of obstruction has to decide all questions arising between the parties. viz, the decree-holder, the obstructor and that no separate suit will lie for the purpose of deciding the dispute between the decree-holder and the obstructor. Having regard to the specific and express provision contained in R. 101, O. 21, C.P.C. that against an order of removing or refusing to remove obstruction, a separate suit is not maintainable, all the questions arising between the parties to the application for removal of obstruction have to be decided by the executing court itself as that Court has been conferred a specific power to decide all the questions arising between the parties while disposing of the application for removal of obstruction. Therefore, we are not in a position to agree with the view taken by Mohan J. to the effect that a suit is maintainable in this case by the appellant who is an obstructor against whom an order of removing obstruction has been passed. It is relevant to note that even the lower Court in this case has chosen to decide the issue arising between the parties in an application under R. 97 taking note of the power conferred on it under R. 101, O. 21 to decide all the disputes between the parties to the application before it.

5. If a separate suit does not lie in respect of an order passed under O. 21 R. 97, C.P.C., the question arises as to what is the other remedy that is open to the appellant. In this connection, reference has to be made to S. 18 of the Act. S. 18 runs thus-

'Execution of order: (1) Every order made under Ss. 10, 14, 15, 16 and 17 and every order passed on appeal under S. 23 or on revision under S. 25 shall be executed by the Controller as if such an order is an order of a civil Court and for this purpose the Controller shall have the powers of a civil Court.

(2) An order passed in execution under subs. (1) shall not be subject to any appeal or revision.'

Section 18 of the Act provides that every order made under Ss. 10, 14, 15, 16 and 17 and 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. Subsec. (2) says that an order passed in execution under S. 18(1) shall not be subject to 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 under S. 25, no appeal or revision would lie against an order passed under the section directing delivery in execution under sub-s. (1), S. 18 of the Act. S. 23 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 note 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 orders passed by the Rent Controller which may not fall within S. 18(1) and that those orders may be subject to appeal under 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 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 could file an appeal. If the filing of the appeal under S. 23 is contemplated only by the parties to the eviction proceedings, then the Legislature would have used the words 'any party aggrieved' 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 R. 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 R. 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 O. 21 R. 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 in an application under O. 21 R. 97, C.P.C., as an order passed by the Rent Controller under S. 18(1) so that the bar under S. 18(2) could be invoked. Section 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 for an appeal or revision being filed against an order passed in exercise of the power under O. 21 R. 97 C.P.C. If there is no bar for an appeal or revision under S. 18(2) then the next question that will arise is as to whether an appeal is available to the appellant in this case. As already stated, S. 23 of the Act providing for an appeal is comprehensive in nature and is not restricted to orders passed by the Rent Controller under Ss. 10, 14, 15, 16 and 17. As already stated S. 23(1)(b) talks of any person aggrieved filing appeal, as also any order passed. Since S. 23(1)(b) does not refer to an order passed by the Rent Controller under S. 18(1) we have to hold that any order passed by the Rent Controller against which a person is aggrieved can be taken in appeal by that aggrieved person under S. 23(1)(b) of the Act. Thus, in our view, S. 23(1)(b) enables any person aggrieved by an order passed by the Rent Controller to file appeal and it is not possible to restrict application of S. 23(1)(b) as applying only to parties to the eviction proceedings and to orders passed by the Rent Controller in exercise of the order of eviction under S. 18(l) of the Act. In this view of the matter, we have to hold that under S. 23(1)(b) of the Act an obstructor who is aggrieved against an order directing removal of obstruction passed by the Rent Controller could file an appeal under that section and the bar contained in S. 18(2) will not apply to such an order. We have to hold that in this case the appellant has a right to appeal under S. 23(1)(b) of the Act against the order impugned in the writ petition directing removal of obstruction which is an order not passed under S. 18(1), .but one passed under O. 21 R. 97, C.P.C. Since the petitioner has got a right of appeal, we cannot in exercise of the extraordinary jurisdiction go into the merits of the rival contentions urged by the parties in this writ appeal. Even now the appellant is at liberty to file an appeal under S. 23(1)(b) of the Act against the order impugned in writ petition, with a petition under S. 5, Limitation Act, to condone the delay in filing the same and if such a petition for condonation of delay is filed, the time taken by the appellant in prosecuting the writ petition and the writ appeal before this Court would naturally stand excluded. With this observation, the writ appeal is dismissed. There will be no order as to costs.

6. Appeal-dismissed


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //