Madras High Court
Hajir Ummal vs Raja Mohamed on 20 January, 2021
C.R.P.(NPD).No.2190 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.01.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(NPD).No.2190 of 2020
and
C.M.P.Nos.13827 and 13830 of 2020
1. Hajir Ummal
2. Mohamed Ashib
3. Mohamed Imran
4. Jahabar Sathick ... Petitioners
Vs.
Raja Mohamed ... Respondent
Civil Revision Petition is filed under Section 25 of the Pondicherry
Buildings Lease and Rent Control Act, 1969, to set aside the Judgment
and Decree dated 24.09.2020 in R.C.A.No.1 of 2019 passed by the
Learned District Judge, Karaikal, conforming the fair and decreetal order
dated 12.10.2018 in H.R.C.O.P.No.17 of 2012 passed by the Learned
Rent Controller, Karaikal.
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1/12
C.R.P.(NPD).No.2190 of 2020
For Petitioners : Mr.P.Vijendran
For Respondent : No Appearance
ORDER
This Civil Revision Petition has been filed against the Judgment
and Decree passed by the Learned District Judge, Karaikal, in
R.C.A.No.1 of 2019 dated 24.09.2020, conforming the fair and decreetal
order passed by the Learned Rent Controller, Karaikal, in
H.R.C.O.P.No.17 of 2012 dated 12.10.2018.
2. The learned counsel for the petitioners submit that the 1st
petitioner is the wife of the respondent, the 2nd and 3rd petitioners are the
sons of the respondent and the 4th petitioner is the brother of the 1st
petitioner and brother-in-law of the respondent. The respondent is a
British National and he has been permanently living in London. He gave
a registered power of attorney to his wife/1st petitioner herein on
24.04.2002. As a power of attorney holder of the respondent, the 1st
petitioner settled the suit property in favour of the 2nd and 3rd petitioners
on 11.12.2003. The 4th petitioner being maternal uncle of the 2nd and
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C.R.P.(NPD).No.2190 of 2020
3rdpetitioners, let out the premises to a tenant. The relationship of
husband and wife was not disclosed by the respondent neither in
H.R.C.O.P.No.17 of 2012 nor before R.C.A.No.1 of 2019. Only in the
counter, they brought this to the knowledge of the Court. But the same
was not considered by the Court below. As they are not the tenants under
the Pondicherry Buildings (Lease and Rent Control) Act, 1969, the said
Act will not be applicable to them.
3. The learned counsel for the petitioners also submits that as the
respondent is the husband of 1st petitioner and father of 2nd and 3rd
petitioners, he is duty bound to maintain them as they are the legal heirs
of him and not the tenants. Further, he submits that the 1st petitioner as a
wife of the respondent, she has got every right to stay in the property
along with her sons and they cannot be evicted.
4. The consideration of the Court below was that the relationship
between the petitioners and the respondent is not disputed. Originally,
the respondent filed H.R.C.O.P.No.17 of 2012 alleging that he is the
owner and title holder of the schedule mentioned property. Since he is
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C.R.P.(NPD).No.2190 of 2020
residing in foreign country, he given a power of attorney to his wife/1 st
petitioner herein in order to manage and lease out the property. But the
wife misused the property and settled the same in favour of his sons/2 nd
and 3rd petitioners herein with the help of 4th respondent who is his
brother-in-law. When he came down to his native place, he was not
allowed to enter the said premises. Hence he filed O.S.No.9 of 2006
before the District Court, Karaikal, against the petitioners and a
document writer by name Iqubal, Sub Registrar, Karaikal, seeking to
cancel the settlement deed No.2698 of 2003 dated 11.12.2003 executed
by the 1st petitioner in favour of the 2nd and 3rd petitioners and a
direction to the Sub-Registrar, Karaikal, to enter the same in the register
maintained by them. He also prayed for a declaration that he is entitled to
collect the rent from the tenant as an owner of the schedule mentioned
property.
5. The suit was decreed in favour of the respondent and he was
permitted to collect the rent from the tenants as an owner of the suit
property. Aggrieved by the same, the petitioners filed an appeal suit in
A.S.818 of 2010 before the Hon'ble High Court and the same was
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C.R.P.(NPD).No.2190 of 2020
dismissed by this Court. Meanwhile, the respondent issued advocate
notice to the tenants and petitioners herein, demanding them to pay the
rent to him. The notice was duly served on them, but they neither gave
any reply nor pay the rent to him. Hence he filed a petition before the
Rent Controller at Karaikal in H.R.C.O.P.No.17 of 2012 seeking a
direction to the petitioners and the tenants to vacate and handover the
property to him. The Rent Controller after perusing the entire documents
on record has come to the conclusion that the respondent is entitled for
the relief of recovery of possession from the petitioners. Therefore,
allowed the petition, directing the tenants to vacate and handover the suit
property to the respondent within a period of two months from the date
of passing of the order.
6. As against the order passed in H.R.C.O.P.No.17 of 2012, the
petitioners preferred an appeal before the District Judge at Karaikal in
R.C.A.No.1 of 2019 and the same was dismissed as not maintainable.
Aggrieved by the same, the petitioners have filed this petition before this
Court by stating that they are neither a tenant nor a trespasser of the suit
property, the 1st petitioner being wife of the respondent, the 2nd and 3rd
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C.R.P.(NPD).No.2190 of 2020
petitioners being sons of the respondent, the 4th petitioner being brother-
in-law of the respondent, they have a right over the property. It is further
stated that the Court below erred in passing the order stating that the
Court did not venture to answer the other issues raised by the appellants
as it would affect the appeal which may be preferred by the aggrieved
parties.
7. On perusal of the order passed by the Appellate Court, it is seen
that the tenants who were paying the rent to the petitioners herein have
also been added as a party to the said proceedings. According to the
Court below, the 1st appellant is the wife and the 2nd and 3rd appellants
are the sons of the respondent in A.S.No.818 of 2020 being pending
adjudication of the Hon’ble High Court, Madras and no stay was granted
by the said Court against the operation of the judgment and decree
rendered by the District Court, Karaikal. In view of Order 41 Rule 5(1) of
CPC, an appeal shall not operate as a stay of proceedings under a decree
or order appealed from except so far as the Appellate Court may order.
Hence, the Rent Controller was right in proceeding further as he has no
legal impediment to proceed. The Settlement Deed No.2698 of 2003
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C.R.P.(NPD).No.2190 of 2020
dated 11.12.2003 had been cancelled by the District Court, Karaikal. The
District Court also passed an order in favaur of the respondent to collect
the rent from the 4th defendant viz, one Abdul Khadar, erstwhile tenant.
8. It is further seen that notice was issued to the appellants and the
tenants on 29.06.2012 to obey the judgment of the District Court,
Karaikal and to vacate and handover the possession of the house. But
they did not obey the directions issued by the District Court and
handover the possession to the respondent. Hence the respondent filed a
Rent Control Petition before the Rent Controller at Karaikal for eviction
on the grounds that owner’s occupation and willful default. The Rent
Control Proceeding was ended in favour of the respondent / landlord and
the tenants who were put in possession of the respondent were directed to
vacate and handover the possession to the respondent within two months
from the date of passing of the order. Aggrieved by the said order, the
petitioners herein filed R.C.A.No.1 of 2019 before the District Court,
Karaikal. The District Court after considering the contentions raised by
both the parties came to the conclusion that the Rent Control Petition is
not maintainable, and dismissed the same.
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C.R.P.(NPD).No.2190 of 2020
9. It is seen from the records that the Rent Control Appeal has been
filed by the wife, sons and brother-in-law of the respondent who are the
petitioners herein and not by any of the tenants against whom the
R.C.O.P was ordered. The eviction order was passed only against the 5th
and 6th respondents before the Rent Controller and not against the other
persons who are stating as tenants. The Court below has proceeded on
the ground that the petitioners herein have not suffered any order of the
Rent Controller. Therefore, they cannot maintain the appeal. As per
Section 23(1) of the Pondicherry Buildings (Lease & Rents Control) Act,
1960, Any person aggrieved by an order passed by the Controller may,
within fifteen days from the date of such order, file an appeal in writing
to the District Court.
10. The Appellate Court has rightly come to the conclusion that the
appellants have not suffered any order of the Rent Controller and they
cannot be permitted as a person aggrieved by the order of the Rent
Controller as they are not the tenants and they cannot maintain the appeal
before the said Court. Only the person who is aggrieved by an order
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C.R.P.(NPD).No.2190 of 2020
passed by the Rent Controller can file an appeal. The appellants who are
not the tenants in the said premises who are actually receiving rent from
the tenants as owners based on the alleged settlement deed dated
11.12.2003 executed by the 1st petitioner herein who was a power of
attorney holder cannot claim that they are aggrieved by the said order.
11. It is also admitted by R.W.1 Brother of the 1st petitioner in his
cross examination that the settlement deed executed by the 1 st petitioner
herein had been canceled by the District Court at Karaikal in O.S.No.9 of
2006. Therefore, only the respondent is having right to collect the rent
from the tenant. Further, he admitted that the respondent is the owner of
the schedule mentioned property and the petitioners have no right in the
said property.
12. The petitioners had been collecting the rent from the tenants in
the schedule mentioned property who have committed willful default.
Since they periodically evict the tenants and induct a new person as a
tenant in the schedule mentioned property, the Court below has given a
finding that the petitioner is entitled for the relief of recovery of
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C.R.P.(NPD).No.2190 of 2020
possession from the respondents and further directed the 6th respondent
therein or any other person put into a tenant in the schedule mentioned
property to vacate and handover the property to the petitioner.
13. From the above, it is clear that the petitioners who are not the
tenants in the eye of law cannot claim such a right that they can be
allowed to the suit schedule property as a wife and children of the
respondent herein. If they are claiming their rights as heirs of the
respondent, they have appropriate remedy elsewhere and the learned
counsel for the petitioners canvass the same in the Civil Revision
Petition.
14. As already it has been rightly held by the Court below that the
petitioners are not the aggrieved persons in the proceedings in
R.C.A.No.1 of 2019 and it is also found that the tenants have already
been evicted from the premises who had not challenged the same, this
Court is not inclined to interfere with the order of the Court below in
R.C.A.No.1 of 2019 and set aside the same.
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C.R.P.(NPD).No.2190 of 2020
15. Accordingly, this Civil Revision Petition is dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
20.01.2021
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
To
1. The District Court, Karaikal,
2. The Rent Controller, Karaikal.
V.BHAVANI SUBBAROYAN.J.,
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2190 of 2020
raja
C.R.P.(NPD).No.2190 of 2020
and
C.M.P.Nos.13827 and 13830 of 2020
20.01.2021
https://www.mhc.tn.gov.in/judis/
