S.Sundaram v. Meer Hameed & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.02.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAC.R.P.(PD).No.340 of 2006andC.M.P.No.2942 of 2006S.Sundaram... Petitioner vs.

Meer Hameed2. Ameer Basha3. Narayani @ Nagammal... RespondentsThis civil revision petition filed under Article 227 of the Constitution of India is preferred against the order dated 13.12.2005passed by the learned Principal District Munsif (Rent Controller),Chidambaram in I.A.No.101 of 2004 in RCOP No.26 of 1991.For Petitioner : Mr.A.MuthukumarFor Respondents : Mrs. Chitra SampathORDERHeard the learned counsel on either side.

An epitome and the long and short of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The revision petitioner/petitioner filed RCOP No.26 of 1991so as to evict the defendant Narayani @ Nagammal. This case has achequered career of its own. An exparte order of eviction was passed on 07.01.1992 and subsequently, it was set aside and the matter ispending ever since 1991. While so, I.A.No.109 of 2004, under Section 27 of the Tamil Nadu Buildings Lease and Rent Control Act,1960 (hereinafter referred to as the Act) and Order 1 Rule 10 of the Code of Civil Procedure, was filed by the respondents 1 and 2 herein for getting themselves impleaded as though they are the Muthavallisof the Wakf, which is allegedly having ownership over the petition mentioned property. The lower Court after hearing both the sides, allowed the application. Being disconcerted by and dissatisfied with the order of the lower Court, this revision has been focussed on various grounds. https://hcservices.ecourts.gov.in/hcservices/

Learned counsel for the revision petitioner would develop his argument placing reliance on the grounds of revision to the effect that the alleged Muthavallis R1 and R2 are having no right toget themselves impleaded as parties and if at all they are having any right to be asserted, it is open for them to file a suit and in theRCOP, they cannot be impleaded and that too when the revision petitioner is having a specific case of his own that the revision petitioner purchased the property concerned from the father of the respondents 1 and 2 herein as per sale deeds dated 18.09.1990 and13.09.1990; the lower Court was wrong in giving a finding as thoughthe property is a Wakf property and that R1 and R2 should beimpleaded; the revision also is maintainable straightaway as no CMAneed be filed as there is gross violation on the part of the lowerCourt in applying the law. Accordingly, he prays for setting aside the order of the lower Court.

Whereas the learned counsel for the respondents 1 and 2would put forth and set forth her arguments that bypassing the Appellate Court, straightaway revision cannot be filed as whenever an order is passed by the Rent Controller and when there are appeal provisions, appeal should be filed before the Appellate Authority and not before this Court invoking Article 227 of the Constitution of India; the proposed parties in their affidavit itself specifically raised the plea that the property concerned is the Wakf property and in such a case, the learned Rent Controller under Section 10 of the Act should have dealt with the matter and driven the parties to the Civil Court for getting their rights adjudged; the original petitioner No.2 (deceased), the father of the proposed parties had no right to alienate the petition mentioned property as it happened tobe the Wakf property. Accordingly, she prays for dismissal of there vision petition.

A bare perusal of the order of the lower Court coupled with the typed set of papers would display and demonstrate that the lower court without exercising its power under Section 10 of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 has kept the matter pending on its file. The fact remains that at the earliest point of time, viz., during the year 2002 itself the original respondent, viz., R3 herein filed the counter raising the point that the property is the Wakf property and that RCOP would not be maintainable; whereupon the Court has numbered the RCOP; as per the second proviso to sub section (1) of Section 10 of the Act, the Controller should have taken it up as a preliminary point and given its verdict thereon.

The learned counsel for the revision petitioner cited the decision of this Court reported in 1996 (1) MLJ 47 (Annamalai and another vs. The Official Receiver, North Arcot Ambedkar District, https://hcservices.ecourts.gov.in/hcservices/ Thiruvannamalai Sambuvarayar District at Vellore and another) and developed his argument that in certain circumstances without filingCMA, straightaway CRP could be filed. An excerpt from the cited decision would run thus:4. Sec.2(6) of the Tamil Nadu Buildings (Lease and Rent control) Act, 1960 defines "landlord" as follows: "landlord" includes the person who is receiving or is entitled to receive the rent of abuilding, whether on his own account or on behalf of another or on behalf of himself and others oras an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant".The third respondent in the I.A., in paragraph 4 of the counter filed by him in the RCOP has stated that it isno doubt true that this respondent became a tenant under the petitioners on the basis of the purchase made by the petitioners in court auction sale by their vendors and this respondent has also been regularly paying the rent of Rs.550per month from the tenancy.

The learned counsel for the revision petitioner by inviting the attention of this Court to the order passed in I.A.No.27of 2004 in RCA No.7 of 2003 by the Sub Court, Chidambaram in one other matter would detail his argument that already in a similar matter, where one other person is a tenant, the appellate authority held that R1 and R2 herein were not necessary parties and that in the said RCA No.7 of 2003 as well as in the present RCOP different parts of one and the same building are involved.

Whereas the learned counsel for the respondents 1 and 2would submit that there is no indication that the said order inI.A.No.27 of 2004 in RCA No.7 of 2003 is having any relevancy to this case.

Be that as it may, now then, I am concerned with the fact whether the lower court has exercised its jurisdiction as contemplated under Section 10 of the Act. It is ex-facie and primafacie clear that the proper approach on the part of the lower Courtis to conduct such enquiry as per Section 10 of the Act, which it has not done so far. For conducting such enquiry, I am of the considered opinion that R1 and R2 are not necessary parties; however, they canfigure as witnesses and also file documents in order to buttress and fortify the stand of R3 herein, who is the original respondent before the Rent Controller.