Sundar2.Arumugham v. Arulmighu Gangadheeswarar Temple, by its E.O.2.N.Ramalingam

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2010 CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALS.A. No.1203 of 1995andCMP No.12709 of 1995 1.Sundar2.Arumugham ... Appellants/Obstructors 3 & 4Vs. 1.Arulmighu Gangadheeswarar Temple, by its E.O.2.N.Ramalingam ... Respondents/Petitioner & 1stRespondent Prayer: Appeal filed under Section of 100 of C.P.C. against theJudgment and Decree dated 04.07.1995 made by the VII AdditionalCity Civil Judge, Madras in A.S.No.43 of 1995 against E.A.No.3020of 1990 in E.P.No.234 of 1990 in O.S.No.5292 of 1973 dated07.04.1994 on the file of X Assistant City Civil Judge, Madras.For Appellants : Ms.V.S.Sowmya for M/s.N.Rosi NaiduFor Respondents : Mr.S.Karthikeyan for R12nd Respondent : NA J U D G M E N TThe Appellants/Obstructors 3 and 4 have preferred thisSecond Appeal before this Court as against the Judgment and Decreedated 04.07.1995 in A.S.No.43 of 1995 in E.A.No.3020 of 1990 inE.P.No.234 of 1990 in O.S.No.5292 of 1973 passed by the LearnedVII Additional Judge, City Civil Court, Chennai.2. The Learned VII Additional Judge, City Civil Court,Madras while passing the Judgment in A.S.No.43 of 1995 on04.07.1995 has among other things observed that the Appellantshave marked Receipts as Documents and these receipts are not https://hcservices.ecourts.gov.in/hcservices/ anyway strengthen their case and resultantly, dismissed theAppeal.3.The First Appellate Court allowed C.M.P.No.593 of 1995filed by the Appellants under Order 41 Rule 27 praying permissionof the Court to receive the additional documents and the Receiptswere marked as Additional Documents as Ex.R12 and Ex.R13 inthe Appeal.4. Aggrieved against the Judgment and Decree passed by theFirst Appellate Court in A.S.No.43 of 1995, the Appellants havepreferred the present Second Appeal before this Court.5. At the time of admission of the second appeal, thefollowing substantial questions of law were framed by this Court:i) Whether the subsequent events should notbe taken into account by the Court before finaladjudication of the matter as laid down by theSupreme Court reported in AIR 1975 S.C. Pge.1409?ii) Whether a person in occupation of apremises can be treated as an obstructor inexecution proceedings after having recognised himas a tenant by collecting the rents for thepremises in his occupation during pendency of thevery Execution Proceedings?6. According to the Learned counsel for theAppellants/Obstructors, the Order and Decretal order of the trialCourt and Judgment and Decree of the First Appellate Court arecontrary to Law, weight of evidence and probabilities of the caseand as a matter of fact, both the Courts have come to a wrongconclusion that the Appellants are the Obstructors in the suitproperty notwithstanding the property that they are in possessionand enjoyment of the suit property with their own superstructuresfrom 1969 with the full knowledge and implied consent of the FirstRespondent/Temple. 7.It is the further contention of the Learned counsel forthe Appellants that both the Courts below have not taken the factthat the lease of the suit land to the Appellants by late NatesaMudaliar and only on their consent, the superstructure has beenput up by the Appellants in the suit land.8. Advancing her arguments, the Learned counsel for theAppellants submits that both the Courts below have wrongly heldthat the Decree obtained in the suit by the FirstRespondent/Temple is binding on the Appellants inspite of the factthat they have not been arrayed as Parties to the suit. Also, the https://hcservices.ecourts.gov.in/hcservices/ Learned counsel for the Appellants brings to the notice of thisCourt that in the order made by the Hon'ble Supreme Court in CivilAppeal Nos.3482 and 3483 of 1982, there is no mention that thisparticular portion in occupation of the Appellants has to bedelivered to the First Respondent and the First Respondent /Templehas projected the Executive Petition against the Second Respondentand later, the same was withdrawn and the present ExecutionPetition is engineered against the Appellant in collusion with thesecond respondent.9. It is the contention of the Learned counsel for theAppellants that both the Courts have come to a wrong conclusionthat the Appellants are the Direct Tenants inspite of the factthat the Hon'ble Supreme Court has not specifically mentionedabout the land to be surrendered by the Legal heirs of NatesaMudaliar and the land to be retained by him.10. According to the Learned counsel for the Appellants,the First Respondent/Temple by its Letter dated 11.02.1991 todiscuss about the suit land and accordingly in the meeting theFirst Respondent/Temple has agreed to receive the rent directlyand wanted the Appellants to give the superstructure as gift tothe temple and moreover, P.W1 before the Execution Court hasclearly admitted that the rent was also fixed to pay to theAppellants and in such circumstances, the Appellants cannot betreated as Obstructors.11. The Learned counsel for the Appellants proceedingfurther contends that the First Appellate Court considering theadditional document marked as Ex.R13 Receipt in the name of one ofthe partners viz., Panneerselvam in which the Appellants havetreated as Direct Tenants erred in coming to the conclusion thatthe Appellants cannot be considered as tenants since the rentalreceipt is issued with endorsement "subject to the approval ofthe Commissioner" and once the Appellants are treated as tenantsby collecting rent directly, the First Respondent/Temple cannotthereafter treat them as obstructors. 12. That apart, the Learned counsel for the Appellantscontend that if the permission is not accorded by the H.R & C.E.Commissioner then the rent received from the Appellants can bereturned by the first respondent and they can be treated asobstructors inspite of the fact that such a proposition iscontrary to the law and natural justice. 13. Lastly, it is the contention of the Learned counsel forthe Appellants that in any event the First Appellate Authority hascommitted an error in dismissing the appeal holding that the https://hcservices.ecourts.gov.in/hcservices/ Appellants are obstructors even after the change of circumstancesand subsequent events under which the Appellants have been treatedas tenants.14. The First Respondent/Temple has filed a suitO.S.Nos.4941 of 1973 and 5292 of 1973 against the Defendanttherein viz., M.Natesa Mudaliar and tried the suits jointly andwhile the Learned V Assistant Judge, City Civil Court, Chennaidelivering a common Judgment on 26.02.1977 has among other thingsheld that the Natesa Mudaliar in O.S.No.4941 of 1973 as Defendantis not entitled to protection under the city Tenants' ProtectionAct since his licence has been validly withdrawn by Ex.A3 Noticeand further ordered him that he is liable to surrender possessionto the temple. 15. In so far as the suit O.S.No.5292 of 1973 is concerned,the trial Court in the common Judgment has held that the DefendantNatesa Mudaliar is only a licensee and as it has been withdrawn bya notice, the Plaintiff (Temple) is entitled to possession.Resultantly, the trial Court has Decreed both the suitsO.S.Nos.4941 and 5292 of 1973 with costs. 16. In the counter filed to E.A.No.3020 of 1990, the FirstAppellant who has filed the counter on behalf of the SecondAppellant has among other things stated that both of them arerunning a shop Ganga Musicals in the E.P. Schedule mentionedproperty for the past few years and without impleading them as aparty, the Petitioner/Temple has obtained a Decree against theDefendant and stated that they have got eviction order and theyare obstructors and it is false to state that they are theobstructors.17. The First Respondent/Temple has projected E.A.No.3020of 1990 before the Executing Court viz., (X Assistant City CivilCourt, Chennai) under Order 21, Rule 97 of C.P.C. praying for anissuance of order by the Court to remove the Obstructors viz., 1)Dhanasingh 2) Dhanapal 3) Sundar and Arumugham (Appellants herein)from the suit property.18. According to the First Respondent/Temple, E.P.No.234 of1990 has been filed for delivery of the suit property and the samewas ordered by the Execution Court and when the Executive Officerof the Temple took bailiff within to execute the warrant on19.06.1990, the persons viz., 1) Dhanasingh, 2) Dhanapal 3) Sundarand Arumugham who informed that they have been in the petitionmentioned premises and requested the bailiff to note down theirobstructors and also the bailiff has noted that unless police aidis given possession cannot be taken and therefore, he returned thewarrant unexecuted. Unless the obstructors are removed from the https://hcservices.ecourts.gov.in/hcservices/ suit property it is the contention of the First Respondent/Templethat the possession cannot be taken.19. It is to be noted that as against the common Judgmentpassed in O.S.Nos.4941 and 5292 of 1973 dated 26.02.1977 by theLearned V Assistant Judge, City Civil Court, Chennai, the DeceasedNatesa Mudaliar during his life time filed A.S.Nos.348 and 349 of1977 which ultimately came to be dismissed on 20.03.1979 by theFirst Appellate Court viz., the Second Additional Judge, CityCivil Court. Thereafter, the Deceased Natesa Mudaliar (during hislife time) preferred S.A.No.2169 and 2170 of 1979 which were alsodismissed by this Court on 27.03.1980. Subsequently, the CivilAppeal C.A.Nos.3482 and 3483 of 1982 were filed by Natesa Mudaliarand later his death, his legal heir son (Second Respondent in theSecond Appeal) has been brought on record in the aforesaid CivilAppeal before the Supreme Court. The Hon'ble Supreme Court ofIndia has passed an order on 03.09.1987 as follows:"The plot nearest to the office of the temple willbe surrendered by the Appellants to theDevasthanam for the expansion of its office withinfour weeks from today. The other plot which isabout 200 yds. away from the Devasthanam will becontinued to be occupied by the tenants for thetime being at an enhanced rent of Rs.300/- permonth to be paid from 01.10.1987 by seventh day ofevery succeeding month. The appeal accordinglydisposed of. There will be no order as to costs."20. The contention of the Learned counsel for theAppellants is that in the common order passed by the Hon'bleSupreme Court in Civil Appeal Nos.3482 and 3483 of 1982 dated03.09.1987, there is no reference to the Door Number and theportion in occupation of the Appellants to be delivered to theFirst Respondent/Temple. However, the Learned counsel for theFirst Respondent/Temple submits that the words occurring in theorder of the Hon'ble Supreme Court, the other plot which is about200 yards will be continued to be occupied by then tenants for thetime being at an enhanced rent of Rs.300/- per month to be paidfrom 01.10.1987 by seventh day of every succeeding month refers tothe Door Number 78, Gangatheeswarar Koil, Purasawalkam, Chennai-84which is traceable to the Schedule of O.S.No.4941 of 1973 andother Door No.77, Gangatheeswarar Koil, Purasawalkam, Chennai-84which is traceable to the schedule of O.S.No.5292 of 1973.21. It is the case of the First Respondent/Temple that asfar as the temple is concerned that the Defendant in two suitsO.S.Nos.4941 and 5292 of 1973 viz., M.Natesa Mudaliar was the https://hcservices.ecourts.gov.in/hcservices/ tenant and the temple has nothing to do with Panneerselvam or theother obstructors in the case. 22. In response, the Learned counsel for the Appellantssubmits that Panneerselvam is the Direct Tenant of the templeinducted from 1991 itself and the said Panneerselvam is thebusiness partner of the obstructors in the case and inasmuch asPanneerselvam is the Direct Tenant and he happens to be a businesspartner of the other Appellants in the case neither Panneerselvamnor the Appellants cannot be called as obstructors in any mannerwhatsoever. 23. It is to be pointed out that in Appeal A.S.No.43 of1995 filed by the Appellants M.Dhanasingh and threeothers/Obstructors even though on their side the additionaldocuments Exs.R12 and R13, Receipts were marked in CMP No.593 of1995, the Appellate Court came to the conclusion that thosedocuments are not helpful to the Appellants' case and ultimatelydismissed the appeal. In Ex.R13, Miscellaneous Receipts the nameof Panneerselvam is seen and in the said receipt, it is mentionedas rent for one portion of Rs.3,000/-. 24. However, the Learned counsel for the Appellants informsthat there are three units, one to Dhanasingh, one to Dhanapal andthe third one belongs to the present two Appellants andPanneerselvam. On top of Ex.R13, there is an endorsement inEnglish "subject to the sanction of the Commissioner order".Therefore it is candidly clear that Ex.R13 Receipt though it is inthe name of said Panneerselvam, it is clearly written that'subject to the sanction of the Commissioner's order' and there isnothing to indicate that the Commissioner has accorded sanction inthe matter in issue. Admittedly, Panneerselvam has not taken partin the Execution proceedings. Also, the son of the DeceasedDefendant Natesa Mudaliar viz., Arumugham though shown as thesecond respondent he has no interest in the subject matter of theproperty.25. The First Respondent/Temple has filed the ExecutionPetition in pursuance of the Decree obtained in O.S.No.5292 of1973 as against the son of the deceased Natesa Mudaliar viz., theSecond Respondent. At that time only, the FirstRespondent/Temple has faced the issue of obstruction by theAppellants and others.26. One cannot ignore an important fact that an ExecutingCourt has to execute Decree passed by the Competent Court. AnExecuting Court cannot go into the tenure of the Decree passed.Admittedly, the proceedings commencing from the Original SuitO.S.No.4941 and 5292 of 1973 have ended against the deceased https://hcservices.ecourts.gov.in/hcservices/ Natesa Mudaliar and in short, the suit proceedings ended in favourof the temple.27. At this juncture, the Learned counsel for theAppellants vehemently submits that the Temple Authorities havecalled the Obstructors/Occupants for the discussions in connectionwith the aspect of treating them as Direct Tenants. However, theLearned counsel for the First Respondent/Temple submits that ithas not fructified in so far as it relates to the Appellants.28. At this stage, the Learned counsel for the Respondentsbrings to the notice of this Court that in S.A.No.1134 of 1995,one of the occupants has been recognised as Direct Tenant of theFirst Respondent/Temple from the year 1994 onwards.Significantly, S.A.No.1134 of 1995 was ended in a compromise.Only the dispute and the lis continues in so far as the Appellantswith the Temple concerned in the present case before us. Eventhough Exs.R12 and R13 Receipts have been projected in A.S.No.43of 1995 by the Appellants and notwithstanding the fact that thesedocuments are after the disposal of the Original Suit after trialyet there is nothing to indicate to the satisfaction of this Courtthat the Appellants have been recognised directly as Tenants underthe Temple.29. Though a strenuous endeavour has been made by theLearned Counsel for the Appellants to the effect that in thepresent second appeal, a joint Memo was sought to be filed by theparties before this Court as done in the connected case inS.A.1134 of 1995 and the same has not ended in success and theLearned counsel for the Appellants in this regard points out thatthe said Memo was actually sent by the Executive Officer of theTemple wherein Panneerselvam was said to be recognised as DirectTenant and therefore, this will be a favourable circumstance infavour of the Appellants.30. Be that as it may, at this stage, this Courtpertinently points out that since a purported joint Memo in theSecond Appeal has not seen the light of the day and has notcrystallised... any amount of reliance being placed on the same bythe Appellants will not enure to their benefit, in the consideredopinion of this Court.31. It is to be borne in mind that subsequent events cannotbe looked into by the Executing Court unless they come within theambit of Or.21 R.13 read with R.13 of Civil Procedure Code.32. In the decision SILVERLINE FORUM PVT LTD. V. RAJIVTRUST & ANOTHER, 1998 3 SCC 723 at page 727, it is held that thethird parties claiming interest over suit property has no locus https://hcservices.ecourts.gov.in/hcservices/ standi to file an application. Further, in the decision SUDHIRRANJAN PAUL V. CHATER SINGH BAID, AIR 1999 CALCUTTA at pages 86,89, it is held that the Sub Tenant's application in execution forimpleading has been rejected and possession delivered to thedecree holder.33. As a matter of fact, the decree obtained in a suit isbinding on the sub tenant. 34. Besides the above, an Executing Court has to executeDecree passed by the trial court in true letter and spirit. Also,an Executing Court while ordering Delivery of Possession must alsolean in favour of Decree being executed in favour of a SuccessfulParty. However, if the Objections projected by theObjectors/Appellants are genuine, bonafide and a fair one, thenthe objections can be sustained by a Court of Law provided theObjectors/Occupants satisfy the judicial conscience of this Courtby making out a case in their favour.35. As far as the present case is concerned, since theExecuting Court has to execute Decree in terms of the Decreepassed and also because of another vital fact that it cannottraverse beyond the purview and ambit of the Decree passed and inshort, on a careful consideration of the facts andcircumstances of the case and also in the light of the detaileddiscussions mentioned supra and that too, in a cumulative fashion,this Court is of the considered view that theAppellants/Obstructors/Aliens have not made out a case in theirfavour and even though it is an axiomatic fact that an AppellateCourt or Competent Court of Law can take note of the subsequentevents after passing of the Decree and before the finaladjudication of the matter, yet this Court opines that theAppellants are not the Lawful Tenants and they can only be treatedas Strangers/Obstructors and admittedly, they are parties to theproceedings right from the Suit except at the stage of executionand it is also made clear that the Appellants claim as directtenants have not been finally approved by the H.R. & C.E.Commissioner and notwithstanding the fact that the pay rent thoughwithout the rental receipt in the name of Panneerselvam, the samewill not enure to their benefit or in any way, the same will notheighten their case and in this view of the matter, this Courtanswers to the substantial questions of law against theAppellants and resultantly, dismissed the Second Appeal withoutcosts. https://hcservices.ecourts.gov.in/hcservices/

36. In the result, the Second Appeal is dismissed leavingthe parties to bear their own costs. The connected miscellaneouspetition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvriTo1.The VII Additional City Civil Judge, Madras.2.The X Assistant City Civil Judge, Madras.3.The Section Officer,VR Section, High Court,Madras-104.+1cc to Mr.N.Rosi Naidu,Advocate SR 45360+1cc to Mr.Norton & Grant, Advocate Sr 45719GV(CO)km/13.7.S.A.NO.1203 OF 1995