Madras High Court
M/S. Paterson Cancer Centre ... vs M/S. Vijaya Medical And ... on 4 March, 2021
C.R.P.Sr.No.22169 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2021
CORAM
THE HON'BLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.Sr. No.22169 of 2021
M/s. Paterson Cancer Centre Private Limited,
Rep. by its Managing Director,
Dr. S. Vijayaraghavan,
Registered Office at No.60/7,
IV Main Road, Gandhi Nagar, Adayar,
Chennai - 600 020. ... Petitioner
Vs.
M/s. Vijaya Medical and Educational Trust,
Rep. by its Managing Trustee Ms.B. Bharathi Reddy,
No.175, NSK Salai,
Vadapalani, Chennai - 600 026. ... Respondent
Prayer: This Civil Revision Petition filed under Article 227 of the
constitution of India seeking for to set aside the order dated 18.02.2021
made in I.A. No.12062 of 2018 in O.S. No.5040 of 2018 on the file of
the XV Assistant City Civil Court, Chennai.
For Petitioner ... Mr.A. Arumugam
For Respondent ... No Appearance
****
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C.R.P.Sr.No.22169 of 2021
ORDER
This Civil Revision Petition in S.R. stage has been filed under
Article 227 of the constitution of India seeking for to set aside the order
dated 18.02.2021 made in I.A. No.12062 of 2018 in O.S. No.5040 of
2018 on the file of the XV Assistant City Civil Court, Chennai.
2. This case is listed today under the caption for
"Maintainability".
3. The case of the petitioner is that the petitioner herein is a non-
government organisation, vide Registration No.1/45194/2000 who
entered into a Lease agreement dated 11.06.2001 with the
defendant/respondent herein in respect of the suit property and
constructed a building in the suit schedule property under the agreement
of cost of the construction which was repayable by the
Respondent/defendant. While being so, on the pretext of arrears of rent
and other maintenance expenses, the defendant/respondent herein has
issued termination notice of Lease Agreement dated 21.08.2018 to the
plaintiff/petitioner herein. Against which, the plaintiff/petitioner herein
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C.R.P.Sr.No.22169 of 2021
has claimed that the defendant/respondent herein cannot issue the
termination notice dated 21.08.2018 without repaying the construction
cost to the plaintiff/petitioner herein. Assailing the notice of termination,
the petitioner has filed O.S. No.5040 of 2018 on the file of the XV
Assistant City Civil Court, at Chennai seeking for declaration to declare
the termination of lease is null and void and permanent injunction
restraining the defendant/respondent herein from evicting the
plaintiff/petitioner herein from the suit property without following the
due process of law. During the pendency of the main petition, the
plaintiff/petitioner herein has filed I.A. No.12062 of 2018 on its file
under order XXXIX Rule 1 and 2 r/w. Section 151 of CPC to grant
ad-interim injunction restraining the defendant/respondent herein from
evicting the plaintiff/petitioner herein from the suit schedule property
without observing due process of law. The Court below by order dated
18.02.2021 has dismissed the same holding that the plaintiff/petitioner
herein has not proved his possession and made out any prima facie
against the defendant/respondent herein. Being aggrieved, the
plaintiff/petitioner herein has filed the present Civil Revision Petition
against the aforesaid order.
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C.R.P.Sr.No.22169 of 2021
4. The learned counsel for the petitioner would submit that the
dismissal of I.A. No.12062 of 2018 in O.S.No.5040 of 2018 on the file of
the XV Assistant City Civil Court, Chennai is a patent error apparent on
the face of record and non speaking order which warrants interference
under Articles 227 of the Constitution of India. Hence this petition is
maintainable. He further submits that when the plaintiff/petitioner herein
is praying for ad-interim injunction as the defendant/respondent herein is
liable to pay the cost of the construction to the plaintiff/petitioner herein,
the Court below has dismissed I.A. No.12062 of 2018 in O.S. No.5040 of
2018 by order dated 18.02.2021 without giving detailed reasons. Hence,
this Revision petition under Article 227 of the Constitution of India can
very well be invoked to set aside the impugned order 18.02.2021 made in
I.A. No.12062 of 2018 in O.S.No.5040 of 2018. In support of his
contention, he relied on the following Judgments:
(i)Kishore Kumar Khaitan & Anr Vs. Praveen Kumar Singh
reported in (2006)3SCC 312
(ii)Surya Dev Rai & Ors Vs. Ram Chander Rai & Ors. reported in
(2003)6SCC 675
(iii) Indiabulls Finance Services Limited Vs. M/s. Jubilee Plots
and Housing.
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C.R.P.Sr.No.22169 of 2021
5. Heard, the learned Counsel for the petitioner and perused the
material available on record.
6. Obviously, this Application to set aside the order of dismissal
was one under Order 39 Rule 1 and 2 of CPC. Order 43 Rule1(r) CPC
provides that an appeal shall lie against the order made under Order 39
Rule 1 and 2 of CPC. In view of the same, this Civil Revision petition is
clearly not maintainable under Article 227 of the Constitution of India.
Therefore this Civil Revision Petition is rejected as not maintainable.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed if any.
7. The petitioner is directed to file an appeal before the appropriate
Court.
04.03.2021
Lbm
Index: Yes/No.
Speaking/Non-Speaking order
Internet: Yes/No.
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C.R.P.Sr.No.22169 of 2021
V. BHAVANI SUBBAROYAN, J.,
lbm
To:
The XV Assistant City Civil Court,
Chennai.
C.R.P.Sr. No.22169 of 2021
04.03.2021
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