C.S.Arumugam v. Petr

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.08.2007CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD.NOs. 1467 and 2509 of 2003C.S.Arumugam ... Petr., in CRP.No.1467 of 20031.Thethammal2.S.Murugesan3.C.S.Parameswaran ..Petitioners in CRP.No.2509 of 2003 Vs.

K.S.Venkateswaran2.K.S.Ramakrishnan3.K.S.Jayaraman ...Respdts. in CRP.No.1467 of 2003 and Respdts. 1 to 3 in CRp.No.2509 of 20034.C.S.Arumugam ..4th Respdt. in CRP.No.2509 of 2003CRP.No.1467 of 2003: This Civil Revision petition is filed against thefair and decretal order dated 23.7.2003 made in I.A.No.174 of 2002 inRCOp.No.39 of 1998 on the file of Rent Controller-cum-Prl. District MunsifCourt, Coimbatore.CRP.NO.2509 OF 2003: This Civil Revision petition is filed against theorder dated 23.7.2003 made in I.A.No.291 of 2002 in I.A. No.174of 2002 in RCOp.No.39 of 1998 on the file of the Principal DistrictMunsif, Coimbatore. For petitioner in CRP.No.1467 of 2003: Ms.R.Gowri For petitioner in CRP.No.2509 of 2003: Mr.V.Raghavachari for Mr.P.Anbarasan For Respondents 1 to 4: Mr.S.N.Amarnath in both CRPs https://hcservices.ecourts.gov.in/hcservices/

O R D E RThis order shall govern these two CRPs. viz. CRP.No.1467 and2507 of 2006.

Heard the learned counsel on either side.

The respondents in both the CRPs. who are landlords inrespect of the premises in question filed RCOP.No.39 of 1998 alleging thatthe revision petitioner in CRP.No.1467 of 2003 was the tenant under him inrespect of the premies on the monthly rent of Rs.2,250/-, that he has notpaid the monthly rents from July 1997 to February 1998 and thus he hascommitted wilful default and he has to be evicted. The respondent thereinwho is the revision petitioner in CRP.No.1467 of 2003 entered appearancethrough counsel and filed a counter. Pending the same, the landlords madean application under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Since no counter was filed, the said application cameto be ordered with a direction to the respondent/tenant to make thedeposit of entire arrears within the stipulated time. Since the order wasnot complied with, RCOP. was ordered accordingly. Subsequently, Executionproceedings were taken. At that juncture, the respondent/tenant filed anapplication to set aside the order of eviction originally passed againsthim calling it as an exparte order. While doing so, there was a delay of372 days. In order to condone the said delay, he filed I.A.No.174 of 2002.On contest, the said application was dismissed. Hence, CRP.No.1467 of 2003has been brought forth by the respondent in the RCOP. Pending that I.A.for condoning delay, the revision petitioners in CRP.No.2509 of 2003 madean application for impleading them as parties in RCOP, since they werealso tenants and that application, on contest, was dismissed. Thus, therearose the other Civil revision petition in CRP.No.2509 of 2003.Accordingly, these two CRPs. have arisen before this Court.

Advancing their arguments on behalf of the revisionpetitioners, two contentions were raised before this Court. Firstly, theorder that was passed by the Rent Controller in RCOP.No.39 of 1998 againstthe revision petitioner in CRP.No.1407 of 2003 was an exparte order andeven without any contest, eviction order was passed and hence it has gotto be set aside and that an application has been filed with a delay of 372days and sufficient reasons were adduced for the said delay and in orderto give an opportunity, the lower Court should have condoned the delay. Hence, the said application has got to be set aside. The second contentionthat was raised is that the premises in question belonged to therespondents and they were not only impleaded as respondents inCRP.No.1407 of 2003, but also in CRP.No.2509 of 2003, and they were putin possession consequent upon the orders passed in Contempt Application https://hcservices.ecourts.gov.in/hcservices/ No.2 of 1983, when there was a compromise entered into between thelandlords and the alll these revision petitioners who are four in numberand as per the agreement, the tenancy commences as found in thememorandum of compromise dated 1.10.1989 on the monthly rent of Rs.2,250/-and a sum of Rs.6,000/- was paid towards advance. Thus, all these revisionpetitioners were put in possession, pursuant to the tenancy and the sametenancy continued, even at the time of filing RCOP. Under suchcircumstances, the other three tenants who are revision petitioners inCRP.No.2509 of 2003 should also have been added as party, otherwise RCOP.itself was defective. Under such circumstances, though they filed anapplication to implead them as parties to the main RCOP. in I.A.291 of2002, without considering the legal position, the lower Court hasdismissed the application. Under such circumstances, the order of thelower Court has got to be set aside.

In answering to the above, counsel for therespondents/landlords would submit that what was passed by the lower Courtin RCOP.No.39 of 1998 was not an exparte order, it was only an orderpassed originally under Section 11(4) of the Act with a direction to makethe deposit of entire arrears of rent. Consequently, RCOP. came to beordered , thus it was not an exparte order, but orders were passed onlyon merits. If really the revision petitioner in CRP.No .1467 of 2003 wasaggrieved over that order, he should have preferred an appeal, instead hehas filed an application to set aside, the exparte decree and also tocondone the delay of 372 days in filing the said application. Under suchcircumstances, the lower Court has no other option than to dismiss theapplication. Hence, the order of the lower court has got to be sustained. Insofar as the second contention is concerned, at the relevant point oftime, the revision petitioner in CRP.No.1467 of 2003 was the only tenantwho was making the rent and thus there was a tenancy relationship betweenthe landlord and the tenant and thus the landlord has filed RCOP. againsthim only . Even in the counter filed by the revision petitioner inCRP.No.1467 of 2003, he has categorically admitted that he was the tenant. Under such circumstances, no question of adding any party would arise. Thelower court was perfectly correct in dismissing the application and hencethe orders of the authorities below have got to be sustained.

After careful consideration of the rival submissions made, this Court is of the considered opinion that the orders of the authoritybelow have necessarily got to be set aside for more than one reasons.RCOP.No.39 of 1998 was filed by the respondent /landlord against oneArumugham who is the revision petitioner in CRP.No.1467 of 2003 callinghim as only tenant in respect of the petition mentioned premises. But, that is not so. From the proceedings that were actually placed before this Court, it is clear that by way of contempt appeal in C.A.No.2 of 1988, theproceedings came to a close by way of compromise between the parties andit was also recorded therein. A perusal of the order would clearly revealthat all the respondents are shown as landlords of the revisionpetitioners in both the revision petitions viz., petitioner in CRP.No.1467of 2003 and petitioners in CRP.No.2509 of 2003 who are three in numbers. https://hcservices.ecourts.gov.in/hcservices/ Totally all the four were shown as tenants. According to the landlords, from 1.10.1983, the monthly rent was fixed at Rs.2250/- and advance wasalso paid. At this juncture, the contention put forth by the revisionpetitioners that the tenancy agreement which continued to be in force, has got to to be accepted. A reading of the RCOP.No.39 of 1998 wouldclearly indicate that nowhere the petitioner has clearly stated when thetenancy was commenced. But simply averred that the respondent was thetenant in the said premises, but that is not the case here, all the fourpetitioners were tenants under them. Pursuant to the agreement of tenancyentered into between the parties, by way of compromise entered into in theyear 1989, in C.A.No.2 of 1988 and when the agreement was continued to bein force, RCOP.No.39 of 1998 was filed. If that be the case, RCOP. shouldhave been filed by the landlords against all the four tenants, not againstonly one tenant. Under such circumstances, RCOP.No.39 of 1998 itself isfound to be defective in law. At this juncture, now it is pointed out thatit is a case where other three tenants, filed an application to impleadthem as parties and now there cannot be any legal impediment to allow themto participate in the proceedings and thus the order passed in theapplication by the lower court is set aside and they are allowed to beimpleaded as parties to RCOP.No.39 of 1998.

True it is that the order passed under Section 11(4) of the Act directing the tenant/petitioner in CRP.No.1407 of 2003 to make theentire deposit ,was not complied with. Following the same, another ordercame to be passed in main RCOP. and in so far as that order is concerned, it is only an appealable order. Hence, appeal should have been preferred, but the tenant did not prefer any appeal, instead calling it as an exparteorder by filing an application to set aside the exparte order and whiledoing so, a delay of 372 days has occasioned and he filed an applicationto condone the delay and the lower court has dismissed the saidapplication. The lower Court was perfectly correct in dismissing the saidapplication. But, now it is pointed out that even that order had beenpassed in RCOP. against only one tenant, even on merit and that will notstand in the way of impleading the petitioners in CRP.No.2509 of 2003 andthat order has got to be set aside without any hesitation and the partieswho are three in number,i.e. the revision petitioners in CRP.No.2509 of2003, are necessarily to be added as respondents in the original RCOP.Hence, original RCOP.39 of 1998 has got to be amended by adding thepetitioners in CRP.No.2509 of 2003 as respondents and they should be givenan opportunity by filing their counter. The matter must be decided onmerits making fresh enquiry over the same.