Madras High Court
Kamatchi vs Arulmigu Uchinimahali Amman ... on 7 October, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.10.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP PD(MD).Nos.569 to 575 of 2019
and
CMP(MD)Nos.2861 and 6701 of 2019
1.Kamatchi
2.M.Anandha Devi
3.Karthick Shankar
4.Balakrishnan : Petitioners/Petitioners/
3rd Party/3rd Party (in all petitions)
Vs.
1.Arulmigu Uchinimahali Amman Deity,
Represented by its Executive Officer,
Sivan koil Street, Tuticorin. : 1st Respondent/1st Respondent
Petitioner/Plaintiff (in all petitions)
2.Durairaj : 2nd Respondent/2nd Respondent
Respondent/Defendant (in all petitions)
PRAYER in CRP PD(MD).No.569 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.164 of 2016 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court, Tuticorin.
https://www.mhc.tn.gov.in/judis/
PRAYER in CRP PD(MD).No.570 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.165 of 2016 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.571 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.166 of 2016 in E.A.No.216 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.572 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.137 of 2018 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.573 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.138 of 2018 in E.A.No.215 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.574 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
dated 01.03.2019 made in E.A.No.139 of 2018 in E.A.No.216 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court Tuticorin.
PRAYER in CRP PD(MD).No.575 of 2019: Civil Revision Petition filed under
Article 227 of the Constitution of India, to set aside the fair and decreetal order
https://www.mhc.tn.gov.in/judis/
dated 01.03.2019 made in E.A.No.140 of 2018 in E.A.No.216 of 2012 in
E.P.No.18 of 2009 in O.S.No.25 of 2003 on the file of the Sub Court, Tuticorin.
(in all petitions)
For Petitioners : Mr.G.Prabu Rajadurai,
for Mr.R.Maheswaran.
For Respondent : Mr. V.Chandra Sekar, for R.1.
: No Appearance, for R2.
COMMON ORDER
These Civil Revision Petitions are directed against the orders passed in
E.A.Nos.164, 165, 166 of 2016 and 137, 138, 139 and 140 of 2018 in E.P.No.18
of 2009 in O.S.No.25 of 2003, dated 01.03.2019, on the file of the Sub Court,
Tuticorin.
2.The revision petitioners are Third parties. The first respondent, who is
the petitioner in E.P.No.18 of 2009 and the plaintiff in the suit, has filed the suit
in O.S.No.25 of 2003 against the second respondent/defendant for eviction of
the second respondent from the suit property and for recovery of arrears of rent
and for damages for use and occupation of the suit property. The second
respondent/defendant, after filing of the written statement, has remained
ex-parte and hence, the Subordinate Judge, Tuticorin has passed an ex-parte
decree, dated 18.01.2005, directing the second respondent/defendant to vacate
the suit premises and hand over the vacant possession of the same to the first
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respondent/plaintiff and granted other reliefs claimed by the first
respondent/plaintiff.
3.It is not in dispute that the second respondent/defendant has filed an
application for setting aside the ex-parte decree along with application under
Section 5 of the Limitation Act to condone the delay in filing the petition for
setting aside the ex-parte decree and that the trial Court, after enquiry, has
dismissed the petition filed under Section 5 of the Limitation Act to condone the
delay. Aggrieved by the order of dismissal, the second respondent has preferred
a revision before this Court, that this Court has passed an order condoning the
delay in filing the petition for setting aside the ex-parte decree by imposing costs
and that the petition to set aside the ex-parte decree is pending.
4. Meanwhile, the first respondent/plaintiff has laid the execution
petition in E.P.No.18 of 2009 for delivery. The Executing Court has also passed
an order for delivery and when the steps were taken to take delivery of property,
one Mathiyalagan, claiming himself to be the actual tenant of the suit property,
has filed two applications, one in E.A.No.215 of 2012, seeking orders for
granting stay of all further proceedings in E.P.No.18 of 2009 till the
obstructions/resistance raised by him is removed and the other petition in
E.A.No.216 of 2012, filed under Order 21 Rule 97 CPC, to declare that the
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decree dated 18.01.2005 passed in O.S.No.25 of 2003 is null and void and not
binding on him and to declare that the petitioner Mathiyalagan is a lawful tenant
under the first respondent and to terminate the execution petition.
5.Pending Execution Petition, the said Mathiyalagan had died on
21.10.2015. It is not in dispute that since no steps were taken consequent to the
death of the Mathiyalagan/petitioner, the Executing Court has dismissed the
above said two applications in E.A.Nos.215 and 216 of 2012 vide order dated
15.06.2016. In the meanwhile, the revision petitioners, who are legal
representatives of the deceased Mathiyalagan/petitioner have filed three petitions
one in E.A.No.164 of 2016, to stay further proceedings in E.P.No. 18 of 2009 till
the disposal of the petition in E.A.No.216 of 2012, and the other two petitions
in E.A.Nos.165 and 166 of 2016, to restore the petition in E.A.No.215 of 2012
and E.A.No.216 of 2012, which were dismissed for default.
6.Subsequently, the revision petitioners have filed four more
applications in E.A.Nos.137, 138, 139 and 140 of 2016, viz., two petitions for
impleading the revision petitioners as legal representatives of the deceased
Mathiyalagan and other two petitions for setting aside the abatement in E.A.No.
215 and 216 of 2012. The learned Subordinate Judge, after enquiry, has passed
the impugned orders separately in all seven petitions on 01.03.2019, dismissing
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all the petitions. Aggrieved by the said orders of dismissal, the petitioners have
come forward with these present revisions.
7.At the very beginning, the learned counsel for the revision petitioners
would submit that he is placing his arguments mainly with respect to the
petitions and the revisions connected with E.A.No.216 of 2012 and the petition
in E.A.No.215 of 2012 is only for stay of further proceedings and hence, the
petitions and the revisions connected with E.A.No.215 of 2012 need not be gone
into.
8.Before entering into further discussion, it is necessary to refer to the
case of the petitioner in E.A.No.216 of 2012 and the defence /stand taken by the
decree holder/plaintiff.
9.The case of the petitioner Mathiyalagan in E.A.No.216 of 2012 is that
he is the actual and lawful tenant under the first respondent/plaintiff occupying
the suit property; that he has been running the businesses, by names
M/s.Kamatchi & Co and M/s. Kamatchi Industrial Services in the suit premises,
that the petitioner is having records to show that he had been doing business in
the suit premises, that the second respondent is a relative and was working as a
Manager in M/s.Kamatchi & Co, that he came to know recently that the first
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respondent has filed the suit against the second respondent collusively with an
intention to deny his right in the property; that the first respondent/plaintiff and
the second respondent/defendant have colluded together with the view to evict
him from the suit premises behind his back and filed the suit fraudulently; that
the petitioner/ Mathiyalagan was a former Dharmakartha of the suit temple; that
there existed strong difference of opinion between the petitioner and other
trustees of the temple and in order to wreak vengeance, the trustees in
connivance with the Executive Officer, took the second respondent in their
hands and filed the suit; that he has every right to implead himself in the
proceedings and that therefore, the decree passed in O.S.No.25 of 2003, dated
18.01.2005 is to be declared as null and void and not binding on the petitioner
Mathiyalagan and he is the lawful tenant and that the executing proceedings are
to be terminated.
10.The defence of the first respondent/plaintiff is that the plaintiff's
temple is under the control of the Tamil Nadu Hindu Religious and Charitable
Endowment Department, that they have been issuing the receipts to all the
lessees, that the petitioner's name does not find place in the lease records, that
the petitioner Mathiyalagan himself was working as a trustee for the period
between 1987 and 1990, 1992 and 1995, 2003 and 2006, that when the suit was
decreed, the petitioner was the President of Board of Trustees and hence, his
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contention that he does not know the above case, is incorrect, that the petitioner
who was the then Trustee of the temple has no right to get any leasehold interest
over the properties owned by the temple, that the second respondent alone is
running a tea shop in the name and style of Sanjay Ayyankar Bakery, that the
first respondent came to know that the petitioner was getting amounts from the
second respondent, that though the suit was decreed on 18.01.2005, the second
respondent in collusion with the petitioner have been dragging on the
proceedings, that the petitioner while serving as a trustee had committed several
irregularities, that when the Court Ameen was attempting to take possession of
the property, the petitioner and her daughter had driven the Court Ameen out of
the property and attempted to cause violence, that the petitions are also barred by
time and that therefore, the original petitioner or the present petitioners are not
entitled to get any of the reliefs claimed by them.
11.The petitioner Mathiyalagan, while challenging the execution
proceedings, has claimed that he was the actual tenant of the suit property and
there was a collusion between the first respondent/plaintiff and the second
respondent/defendant. But the defence of the first respondent/plaintiff is that the
petitioner Mathiyalagan in collusion with the second respondent/defendant has
set up a fraudulent claim of tenancy and filed the petition under Order 21 Rule
97 CPC and that thereby, they have been dragging and protracting the
proceedings.
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12.Moreover, the first respondent/plaintiff has also taken a stand that
since the petitioner Mathiyalagan was working as a trustee in the plaintiff's
temple, there was no chance or occasion for the petitioner to get the lease of the
suit property.
13.Now, coming to the present revisions, the learned Subordinate Judge,
out of 7 orders, now under challenge, has passed speaking orders only with
respect to four petitions, viz., two common orders, one with respect to E.A.Nos.
137 and 138 of 2018 and the second one with respect to E.A.Nos.139 and 140 of
2018. In the impugned orders passed in E.A.Nos.139 and 140 of 2018, dated
01.03.2019, the learned Subordinate Judge by simply observing that the
petitioner Mathiyalagan had died on 21.10.2015 and the petitions in E.P.No.215
and 216 of 2012 were ordered to be dismissed as legal representatives were not
impleaded and that, they have not filed any petition under Order 21 Rule 106
CPC within 30 days for restoring those two petitions and as such, the above
petitions are legally not maintainable, dismissed the petitions.
14.No doubt, as already pointed out, though the original petitioner
Mathiyalagan had died on 21.10.2015, the revision petitioners have not taken
any steps to get themselves impleaded and hence, the Executing Court has
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dismissed the said two petitions in E.P.Nos215 and 216 of 2012 for default. It is
pertinent to note that as per Order 22 Rule 12 of CPC, the Rules 3, 4 and 8 of
Order 22 CPC are not applicable to the execution proceedings.
15.In the case on hand, the petitioner Mathiyalagan has filed a petition
under Order 21 Rule 97 CPC. At this juncture, it is necessary to refer to the
decision of Hon'ble Suprme Court in Sheo Prakash and another Vs. Vishnu
and others [Special Leave to Appeal [Civil] No.11310 of 2007], dated
19.11.2007, wherein the Hon'ble Supreme Court has clearly observed that the
proceedings under Order 21 Rule 97 CPC are treated to be as a suit for all intent
and purport and hence, the provisions of Order 22 Rule 3 CPC shall apply to the
proceedings initiated under Order 21 Rule 97 CPC.
16.It is settled law that the abatement of proceedings on passage of 90
days from the death of a party, is automatic. In the case on hand, as already
pointed out, the petitioners have filed E.A.No.139 of 2018 for setting aside the
abatement and E.A.No.140 of 2018 for impleading the legal representatives of
the deceased petitioner and the above petitions came to be filed on 17.06.2016.
As rightly contended by the learned counsel for the revision petitioners, since
E.A.No.139 of 2018 has been filed the within 60 days from the date of
abatement, the question of filing any petition under Section 5 of the Limitation
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Act to condone the delay in filing the petition for setting aside the abatement or
petition for impleading the legal representatives, does not arise.
17.As already pointed out, the learned Subordinate Judge has dismissed
the said two petitions only on the ground that the petitioners have not filed any
application under Order 21 Rule 106 CPC for restoring the petitions in E.P.No.
216 of 2012, which was dismissed for default. But, it is pertinent to mention that
the revision petitioners have filed the petitions in E.A.No.165 of 2016 and
E.A.No.166 of 2016 to restore the petitions in E.A.No.215 and 216 of 2012,
which were dismissed for default. No doubt, they have filed the said petitions
under Order 9 Rule 9 CPC.
18.As rightly contended by the learned counsel for the revision
petitioners, in E.A.No.166 of 2016, they have claimed the relief of restoring the
petition in E.A.No.216 of 2012, which was ordered to be dismissed for default
on 15.06.2016. Previously, there was no provision under Order 21 CPC for
restoring the execution petitions/applications, which was dismissed for default.
It is necessary to refer Rules 105 and 106(1) of Order 21 CPC.
“105. Hearing of application.-
(1) The Court, before which an application under any of the
foregoing rules of the Order is pending, may fix a day for the
hearing of the application.
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(2) Where on the day fixed or any other day to which the
hearing may be adjourned the applicant does not appear when the
case is called on for hearing, the court may make an Order that the
application be dismissed.
(3) Where the applicant appears and the opposite party to
whom the notice has been issued by the court does not appear, the
court may hear the application ex parte and pass such Order as it
thinks fit.
Explanation : An application referred to in sub-rule (1)
includes a claim or objection made under rule 58.
106. Setting aside orders passed ex parte etc.
(1) The applicant, against whom an Order is made under
sub-rule (2) of the rule 105 or the opposite party against whom an
Order is passed ex parte under sub-rule (3) of that rule or under sub-
rule (1) of rule 23, may apply to the court to set aside the order and
if he satisfied the court that there was sufficient cause for his non-
appearance when the application was called on for hearing, the court
shall set aside the order on such terms as to costs or otherwise as it
thinks fit and shall appoint a day for the further hearing of the
application.”
19.Considering the above, it is very much clear that the dismissal of the
execution petition/application comes under Order 21 Rule 105(2) CPC and the
restoration of execution petition/application can be done under Order 21 Rule
106(1) CPC.
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20.Admittedly, as rightly observed by the Executing Court, the revision
petitioners have not filed any application under Rule 106(1) of Order 21 CPC,
but they have filed the petition under Order 9 Rule 9 CPC. It is settled law that
mere quoting of wrong provision of law does not disentitle the applicant to
proceed with the application and to get the relief claimed and that the same does
not debar or prevent the Court from granting the relief sought for. But the
learned Subordinate Judge, without considering the pendency of the
applications, which were filed only to restore the petitions in E.A.Nos.215 and
216 of 2012, has simply dismissed the petitions in E.A.Nos.137, 138, 139 and
140 of 2016, without assigning any other reasons.
21.Considering the above, this Court has no hesitation to hold that the
impugned orders dismissing the petitions in E.A.Nos.137, 138, 139 and 140 of
2016 are not good in law and the same are liable to be set aside. In E.A.No.166
of 2016, the learned Subordinate Judge has observed that since the petitions in
E.A.Nos.137, 138, 139 and 140 of 2016 were dismissed, E.A.Nos.166 of 2016
was also ordered to be dismissed consequently. The learned Subordinate Judge
has not passed any speaking order, but dismissed the said application as a
consequential order for the dismissal of the petition in E.A.Nos.139 and 140 of
2016 and as such, the impugned order passed in E.A.No.166 of 2016 is also
liable to be set aside.
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22.It is pertinent to mention that the first respondent/plaintiff has filed
the suit in the year 2003 and obtained a decree on 18.01.2005. Though the
execution was laid in the year 2009 and delivery was ordered in the month of
July 2012, the first respondent is still unable to get the possession of the suit
property.
23.The Hon'ble Supreme Court in Rahul S. Shah Vs.Jinendra Kumar
Gandhi and others reported in 2021 SCC Online SC 3411, has directed the
Executing Courts to dispose of the execution petitions within a period of six
months from the date of filing, which may be extended only by recording
reasons in writing for such delay.
24.In the case on hand, the present execution petition is pending for the
past 12 years and the execution application filed under Order 21 Rule 97 CPC is
pending for the past 5 years.
25.It is very shocking and disturbing to note that though orders were
reserved on 15.09.2016, in E.A.No.166 of 2016, the petition was adjourned
again and again for 16 times till 15.03.2017 for orders, and thereafter, it was
adjourned for clarification for 37 times till 12.06.2018. Thereafter, the petition
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was adjourned for the reason that the petitions in E.A.Nos.139 and 140 of 2016
were pending. Even in E.A.Nos.139 and 140 of 2016, though the orders were
reserved on 09.08.2108, the petitions were adjourned again and again under the
caption for orders and thereafter, for clarification till 01.03.2019.
26.Order 20 CPC mandates that the judgment is to be pronounced within
30 days from the date on which, the hearing of the case was concluded and in
case of exceptional or extraordinary circumstances, the Court shall fix a future
date which cannot be ordinarily be a day beyond 60 days from the date on which,
the hearing of the case was concluded. As per Order 20 Rule 1 CPC, the
maximum time limit for pronouncing a judgment is 60 days. Though there is no
specific time limit for pronouncement of orders, it must be within some
reasonable limits, but at any rate, it should not exceed the period of 60 days as
contemplated under Order 20 CPC. But in the case on hand, as already pointed
out, the learned Subordinate Judge has adjourned the matter under the caption
'For Orders' for several hearings and thereafter, under the caption 'For
Clarification', for several hearings, running for several months and such practice
deserves to be deprecated.
27.Even after taking so much of time, he has not chosen to pass any
reasoned orders. On considering the entire facts and circumstances, this Court is
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of the view that the Civil Revision petitions in connections with E.A.Nos.216 of
2012 are to be allowed, but at the same time, considering the conduct of the
revision petitioners, this Court is of the view that the petitioners must be mulcted
with costs and that the Executing Court is to be directed to conduct enquiry in
E.A.No.216 of 2016 filed under Order 21 Rule 97 CPC and dispose of the same
within a time frame to be fixed by this Court.
28.As already pointed out by the learned counsel for the revision
petitioners, the other four revisions are with respect to the petition in E.A.No.
215 of 2012 and since the said petition in E.A.No.215 of 2012 is only for stay of
further proceedings, there is nothing for adjudication and hence, no orders need
be passed and as such, the revision petitions in CRP(PD)(MD)No. 569, 570, 572
and 573 of 2019 are liable to be dismissed.
29. In the result, CRP(PD)(MD)Nos.571, 574 and 575 of 2019 will be
allowed on payment of cost of Rs.10,000/- (Rupees Ten Thousand Only) to the
first respondent/plaintiff on or before 25.10.2021, failing which, the above
petitions shall stand dismissed. In case of allowing the above petitions on
payment of cost, the revision petitioners are directed to file a consequential
amendment petition within one week from 25.10.2021 and same is to be
disposed of within a week thereafter. The Executing Court is further directed to
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dispose of the petition in E.A.No.216 of 2016, on merits and in accordance with
law, within a period of one month, thereafter. CRP(PD)(MD)Nos.569, 570, 572
and 573 of 2019 are dismissed. No costs. Consequently, connected
Miscellaneous Petitions are closed.
07.10.2021
Index : Yes/ No
Internet : Yes/No
das
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Sub Judge, Tuticorin.
2.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
K.MURALI SHANKAR, J.
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das
CRP PD(MD).Nos.569 to 575 of 2019
and
CMP(MD)Nos.2861 and 6701 of 2019
07.10.2021
https://www.mhc.tn.gov.in/judis/
