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T.K. Sundaram Vs. V. Balaraj - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 43 of 1982
Judge
Reported inAIR1983Mad225; (1983)1MLJ220
ActsTamil Nadu Buildings (Lease and Rent Control) Rules, 1974 - Rule 16(3); Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 18; Code of Civil Procedure (CPC), 1908 - Sections 144 and 151
AppellantT.K. Sundaram
RespondentV. Balaraj
Appellant AdvocateInamdar Abdus Salam, Adv.
Respondent AdvocateA.C. Munusamy Reddi, Adv.
Cases ReferredIn Md Hussian v. Pitchal
Excerpt:
.....laid and prosecuted before controller yet he executes orders referred as if they are orders passed by civil court - controller has all powers of civil court - contingency for restitution may not strictly arise under section 144 - controller equated to civil court for purpose of exercising all powers of civil court - controller has inherent power to order restitution in appropriate cases - held, collector did not commit any error of jurisdiction or error of law when he ordered redelivery. - - the expression used in the proviso clearly refer to all execution proceedings in pursuance of the exparte order or the order of dismissal for default. this submission omits to take note of the well accepted legal proposition in this regard. 10. the proposition of law being well settled,..........appellate authority. in case where an appeal has been preferred by the tenant against an order of eviction passed by the controller, there is a possibility that the landlord remains ex parte and the tenant may succeed in having the appeal allowed in his favour in setting aside the order of eviction passed against him by the controller. such an order passed ex parte against the landlord by the appellate authority could not be the subject matter of execution proceedings, except for costs awarded or for restitution, in case possession has been taken already by the landlord, at the instance of the tenant. if the appeal preferred by the tenant against an order of eviction passed against an order of eviction passed against him by the controller is dismissed for default, the parent order of.....
Judgment:
ORDER

1. The 'landlord' within the meaning of Tamil Nadu Buildings (lease and Rent Control)Act 18 of 1960, hereinafter referred to as the Act, is the petitioner in this revision filed under Art. 227 of the Constitution of India. The respondent herein is the 'tenant' within the meaning of the Act. The petitioner sought eviction of the respondent under the provisions of the Act in HRC No.1909 of 1980 on the file of the Eleventh Judge, Court of the Smail Causes, Madras, hereinafter referred to as the Controller, Eviction was ordered on 10-11-1980. The respondent preferred HRA No.222 of 1981, to the concerned appellate authority and the said appeal was dismissed for default on 28-9-1981. While the appeal was pending, there was on order of stay in M.P.No.107 of 1981. The respondent preferred M.P.No.631 of 1981 to set aside the order of dismissal for default on 16-10-1981. The provision quoted in the application was Rule 23 of the Tamil Nadu Buildings (Lease and Rent Control) Rules. Obviously, this is a mistake for Rule 16 of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974, hereinafter referred to as the rules. The appellate authority ordered notice to the petitioner herein on 6-11-1981. It is admitted that notice was served on the counsel for the petitioner on 21-11-1981. The Yet, the petitioner sought execution of the order of eviction in HRC No. 1909 of 1980 by filing E.P.No.1219 of 1981 before the Controller and obtained an order of delivery on 21-11-1981. The petitioner was obliged to seek on order for breaking open and police protection, obviously since he could not obtain possession by breaking open the premises with police aid and on 28-11-1981, possession was taken by the petitioner. On 30-11-1981 before the Controller for redeliver quoting the provisions of Ss. 144 and 151 of the Code of Civil Procedure, hereinafter referred to as the Code. the Controller directed redelivery on 22-12-1981, and this revision is directed against the order of the Controller.

2. Mr.Inamdar Abdus Salam, learned counsel for the petitioner, would put forth two contentions, coveting interference by this court with the orders passed by the Controller,. One is that Controller misconstrued Rule 16 of the rules when he proceeded on the basis that by the filing of the application M.P.No.631 of 1981, the execution proceedings in HRC No. 1909 of 1980 must be deemed to have been stayed. Rule 16 of Rules delineates the procedure for the disposal of appeal by the appellate authority under S. 23 of the Act. For the purpose of this revision we are only concerned with the implications of the third proviso to sub-rule (3) of Rule 16 of the Rules. Sub-rule (3) deals with the process to set aside an ex parte order passed against a 'tenant' or a 'landlord' or an order of dismissal for default. The third proviso to the said sub-rule reads as follows -

'Provided also that where an application for setting aside an ex parte order or an order of dismissal for default has been received under this sub-rule for the first time, all execution proceedings, in pursuance of the ex parte order or the order of dismissal for default shall be stayed until the disposal of the application.

There is no dispute that the application M.P.No.631 of 1981 filed for setting aside the order of dismissal for default was one preferred of the first time. A bare reading of the proviso leaves no room for doubt that where such an application has been received by the appellate authority under sub-rule (3), all execution proceedings in pursuance of the order of dismissal for default shall be stayed until the disposal of the application. what the learned counsel for the petitioner states is that the proceedings in execution in H.R.C.No.1909 of 1981 cannot be stated to be execution proceedings in pursuance of the order of dismissal for default, so as to attract this provisio. According to the learned counsel, only the proceedings in execution of the very orders passed by the appelete authority must be deemed to be stayed by virtue of the proviso, and not execution of the order passed in the parent proceedings. The expression used in the proviso clearly refer to all execution proceedings in pursuance of the exparte order or the order of dismissal for default. In case of an appeal preferred by a landlord against the dismissal of his application for eviction by the Controller, there is a possibility that the tenant remains ex parte, and the appellate authority reverses the order of the Controller and passes an ex parte order in appeal for eviction of the tenant . In such a case, there will be execution proceedings in pursuance of the exparte order passed by the appellate authority. In case where an appeal has been preferred by the tenant against an order of eviction passed by the Controller, there is a possibility that the landlord remains ex parte and the tenant may succeed in having the appeal allowed in his favour in setting aside the order of eviction passed against him by the Controller. Such an order passed ex parte against the landlord by the appellate authority could not be the subject matter of execution proceedings, except for costs awarded or for restitution, in case possession has been taken already by the landlord, at the instance of the tenant. If the appeal preferred by the tenant against an order of eviction passed against an order of eviction passed against him by the Controller is dismissed for default, the parent order of eviction, which would have been stayed, gets revived and execution proceedings thereof could be prosecuted and this becomes possible only pursuant to the order of dismissal for default of the appeal by the tenant. Hence the proviso contemplates all execution proceedings pursuant to the order of dismissal for default being stayed until the disposal of the application for setting aside the said order. In the case of an appeal preferred by the landlord against the dismissal of his application for eviction, the said appeal also may be dismissed for default and in such a contingency, there may not be a chance for prosecuting the execution proceedings, except for costs awarded against the landlord. Hence I am not able to appreciate and accept the submission of the learned counsel for the petitioner. If the correct legal position, as explained above, is applied, then it has to be held that the execution in E.P.1219 of 1981 was prosecuted only pursuant to the order of dismissal of the appeal by the appellate authority and the delivery obtained by the petitioner could not be sustained in law, since there was a stay by virtue of the proviso referred to above.

3. Secondly, learned counsel would contend that the Controller had no competency to order restitution as he did. This submission omits to take note of the well accepted legal proposition in this regard. The Controller was admittedly exercising the powers of a civil court when dealing with execution of the order of eviction . S. 18 of the Act states that the orders enumerated there in shall be executed by the Controller under the Act as if such an order is an order of a civil court and for this purpose, the Controller shall have all the powers of a civil court. Though there may be some difficulty with reference to the invocation of the aid of S. 144 of the Code, yet, the Controller having been vested with all the trappings and powers of a civil court definitely could order restitution under S. 144. S. 144 by itself does not confer any new right which a party litigant otherwise possesses under the general law. The civil court is clothed with an inherint jurisdiction to order restitution in appropriate cases where the ends of justice do demand the same. Such power is available to the civil court even though the application for the exercise of the power may not come within the ambit of S. 144 of the Code. There was stay pursuant to the proviso referred to above. In spite of it, and practically in breach of it, execution was prosecuted and delivery of possession was obtained. To decline restitution in such a contingency would be practically nullifying the benefits of state conferred by the said proviso. There is plethora of decisions countenancing the inherent power of civil court to grant restitution, apart from S. 144 of the Code. I do not feel obliged to refer to all of them, except those which have a bearing on rent control statutes.

4. Md. Sukri Sahib v. Madhava Kurup, AIR 1949 Mad 809 a Division bench of this court consisting of Horwill and Rajagopalan JJ. held that possession got by a decreeholder in execution without the executing court being aware of the inhibitions found in the provisions of the Madras Non-residential Buildings Rent Control Order, 1942, as amended on 11-7-1944, can definitely be restored by the executing court under S. 151 of the Code.

5. In Thangasami Chettiar v. Bapoo Sahib : AIR1951Mad804 , Horwill and balakrishna Ayyar JJ, held that it is a basic rule that Courts will not permit a suitor to suffer by reason of a wrong order it has made and that when once the error is discovered, it will, as far as possible, put him in the position which he could have occupied if the wrong order had not been made, and the right to restitution is not derived from Sec 144, Civil Procedure Code and that Section only prescribes the method of enforcing the right. The case dealt with by the learned Judges arose under Madras Act 15 of 1946, the relevant provisions of which are not as patently worded as S 18 of the Act. There the landlord got an order of eviction and actually got possession in execution and on appeal the order of eviction was reversed and the tenant applied for restitution and redelivery, which were ordered and effected. The jurisdiction of the civil court to order restitution was questioned. The learned Judges, treated the application for restitution as an application for execution itself.

6. In Narayanaswami v. Renuka Devi, : AIR1960Mad298 , balakrishna Ayyar and Subrahmanyam JJ. countenanced the proposition that if execution of the order passed under the rent control statutes is before a civil court, the provisions of the Code relating to execution could apply to such proceedings, except to the extent to which such procedure is modified by any express provisions of the rent control statutes.

7. In B.V.Patnakar . C.G.Sastry, : [1961]1SCR591 , Supreme Court has countenanced the proposition that if the executing court ignores the inhibitions of the provisions of the rent control statutes and passes an order of delivery of possession in execution, the order can be set aside and an order of redelivery to the tenant can be passed on an application under S. 47 read with S. 151 of the Code.

8. In Md Hussian v. Pitchal : (1970)2MLJ663 , Ramanujam J. practically summarised the available case law on the subject and held that while executing the order passed under the Act, the civil court could order restitution invoking its inherent powers under S. 151 of the Code.

9. By virtue of S. 18 of the Act though the process of execution is laid and prosecuted before the Controller, yet, he executes the orders referred to therein as if they are orders passed by a civil court and he has all the powers of a civil court. The contingency for restitution may not strictly arise as contemplated under S. 144 of the Code. The Controller is equated to a civil court for the purpose of exercising all the powers of a civil court. As such, the Controller is clothed with an inherent power to order restitution in appropriate cases, though the matter may not strictly come within the ambit S. 144 of the Code.

10. The proposition of law being well settled, and also delineated in the pronouncements referred to above. I have to hold that the Controller did not commit any error of jurisdiction or error of law when he ordered redelivery, which order is being impugned in the present revision. This obliges me to dismiss the revision and accordingly the same is dismissed. there will be no order as to costs.

11. Revision dismissed.


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