Madras High Court
V.Nithyanandam(Died) vs Palani on 20 October, 2021
Rev. Appln. No.155 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 20.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Rev. Appln. No.155 of 2021
1. V.Nithyanandam(died)
2. Saravanan
3. Selvi
4. Kavitha
5. Uthayakumar
(Petitioners 2 to 5 brought on record as LRs of the
deceased P1 V.Nithyanandhan vide court order dated
20.10.2021 made in CMP No.15960/2021 in
Rev.Appl SR No.17409 of 2020) ... Petitioners
Vs.
1. Palani
2. Kalaiselvi
3. Krishnaveni (since died)
(Cause title accepted vide order dated 20.10.2021
made in CMP No.7250 of 2020) ... Respondents
PRAYER: Review Application filed under Order 47 Rule 8 read with
Section 114 of CPC to review the order passed by this court in CRP
NPD No.1059 of 2009 dated 25.02.2019.
For petitioners : Mr.R.Ganesan
For respondents : Mr.V.Lakshmi Narayanan for R1 and R2
Page 1 of 11
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Rev. Appln. No.155 of 2021
ORDER
This is an application seeking for review the order passed by this
court in CRP NPD No.1059 of 2009 dated 25.02.2019.
2. Earlier, a Civil Revision Petition in CRP NPD No.1059 of
2009 was filed as against the dismissal order of the Trial Court in
M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 in
RCOP No.1698 of 1990. This court by an order dated 25.02.2019,
allowed the revision petition and directed the Trial Court to proceed
with the restitution petition in M.P.No.623 of 1996 in E.P.No.321 of
1996 filed under Section 144 of the Code of Civil Procedure filed by
the Decree holder, who obtained a decree in O.S.No.1293 of 1995
before the XI Assistant City Civil Court, Chennai.
3. Originally, one Krishnaveni has filed a Rent Control Petition in
RCOP No.1698 of 1990 before the XV Court of Small Causes and
obtained an order for eviction. Based on the eviction order, possession
was also taken from one Palani, who is the husband of the Kalaiselvi.
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Rev. Appln. No.155 of 2021
4. Thereafter, a suit in O.S.No.1293/1995 came to be filed
before the XI Assistant City Civil Court by Kalaiselvi, as against the
Krishnaveni for declaration, declaring that the eviction order obtained
before the Rent Controller in RCOP No.1698/1990 as null and void. At
the same time, the above Krishnaveni, who obtained the orders from the
Rent Controller, has filed a suit in O.S.No.10351/1996 before the same
court, challenging the transfer of the property in the name of Kalaiselvi,
based on the sale transaction entered into between Krishnaveni and
Kalaiselvi. Both the suits were tried together and the suit filed by
Kalaiselvi was decreed, by setting aside the orders passed by the Rent
Controller and the suit filed by the Krishnaveni in O.S.No.10351/1996
came to be dismissed. Both the suits reached finality, since no appeal
whatsoever filed.
5. In the meanwhile, after passing of the orders of the Rent
Controller, a petition in M.P.No.623 of 1996 appears to have been filed
by Kalaiselvi, under Section 144 of CPC , for restitution of her
possession before the XV Small Causes Court. When the petition was
pending for delivery of possession, the first petitioner herein, son of
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Rev. Appln. No.155 of 2021
Krishnaveni, filed a petition in M.P.No.376 of 2007, under Order 21
Rule 97 of CPC for obstruction. Kalaiselvi filed a petition in
M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 in
RCOP No.1698 of 1990 to reject the above petition in
M.P.No.376/2007, filed by the petitioner herein and the same was
negatived by the Tiral Court, which triggered in filing CRP
No.1059/2009. This court by an order dated 25.02.1990 has found that
the application pending before the Rent Controller for restitution of the
possession of the property can be ordered under Section 144 of CPC
and directed the Trial Court to proceed further expeditiously.
6. At this stage, the present review application has been filed
contending that the application for restitution ought to have been filed
only before the XI Assistant City Civil Court, Chennai which passed an
order annulling the order passed by the Rent Controller, otherwise, the
main contention is that this court has no jurisdiction to pass the order.
Therefore, the review application has been filed.
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Rev. Appln. No.155 of 2021
7. Heard Mr.R.Ganesan, learned counsel appearing for the
petitioners and Mr.V.Lakshmi Narayanan, learned counsel appearing for
the respondents 1 and 2.
8. The contention of the learned counsel appearing for the
petitioners is that as per the explanation (b) of Section 144 of CPC, the
restitution petition ought to have been filed before the XI Assistant City
Civil Court, Chennai, in which the order passed by the Rent Controller
has been annulled. Otherwise, his contention is that clause (b) of the
explanation of Section 144 of CPC will apply to the present case.
Therefore, the petition in M.P.No.623 of 1996 for restitution of
possession of the property, before the XV Small Causes Court, Chennai
is not maintainable in law and it has no jurisdiction to entertain the
above petition.
9. Per contra, the learned counsel appearing for the respondents 1
and 2, countering to the contentions of the petitioners, submitted that
the explanation is only 'inclusive definition' and Sec.144 of CPC
makes it very clear that an application for restitution can be filed either
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Rev. Appln. No.155 of 2021
before the court, which annulled the decree; or before the court, which
passed the order at the first instance to hand over the possession of the
property. Otherwise, his contention is that the explanation is 'inclusive
definition' and it gives only an option, but is not a mandatory.
Therefore, the review petition cannot be entertained and it has been
filed only in order to non suit the decree, which has already reached
finality. His further submission is that, even now, the legal heirs of the
original Decree Holder in the Rent Control Proceedings are obstructing
the restitution petition, and it is the novel method adopted by the review
petitioners to delay the restitution petition,
10. I have perused the review petition. After hearing the
submissions, the foremost contention of the petitioner is that the order
passed by this court directing the Trial Court to dispose the restitution
petition is not valid, since the petition for restitution has been
entertained by the Small Causes Court, Chennai, without any
jurisdiction. Such contention cannot be countenanced for the simple
reason that Section 144 of CPC will not differentiate, where the
restitution petition has to be filed. The explanation appended to Section
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Rev. Appln. No.155 of 2021
144 of CPC reads as follows.
144. Application for restitution.- (1) Where and in
so far as a decree or an order is varied or reversed in
any appeal, revision or other proceedings or is set
aside or modified in any suit instituted for the
purpose the Court which passed the decree or order
shall, on the application of any party entitled to any
benefit by way of restitution or otherwise, cause
such restitution to be made as will, so far as may be,
place the parties in the position which they would
have occupied but for such decree or order or such
part thereof as has been varied, reversed, set aside or
modified, and, for this purpose, the Court may make
any orders, including orders for the refund of costs
and for the payment of interest, damages,
compensation and mesne profits, which are properly
consequential on such variation, reversal, setting
aside or modification of the decree or order.
Explanation.- For the purposes of sub-section (1)
the expression "Court which passed the decree or
order" shall be deemed to include,-
(a) where the decree or order has been varied or
reversed in exercise of appellate or revisional
jurisdiction, the Court of first instance;
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Rev. Appln. No.155 of 2021
(b) where the decree or order has been set aside by a
separate suit, the Court of first instance which
passed such decree or order;
(c) where the Court of first instance has ceased to
exist or has ceased to have jurisdiction to execute, it,
the Court which, if the suit wherein the decree or
order was passed were instituted at the time of
making the application for restitution under this
section, would have jurisdiction to try such suit.
(2) No suit shall be instituted for the purpose of
obtaining any restitution or other relief which could
be obtained by application under sub-section (1).
11. A perusal of the above provision makes it clear that it is only
an inclusive definition and is not make it as mandatory to file
restitution petition only under Clause (b) of explanation of Section 144
of CPC, as projected by the review petitioner. The word " shall be
deemed to be include " makes it clear that it is only an option, which is
inclusive definition, not as an exclusive one. Such view of the matter,
this court is of the view that the contention of the reveiw petitioner that
the application for restitution ought to have been filed only before the
XI Assistant City Civil Court, Chennai which passed a decree
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Rev. Appln. No.155 of 2021
annulling the order of the Rent Controller, cannot be countenanced.
12. It is to be seen that the possession has been delivered only on
the basis of the order passed by the Rent Controller. Now, the decree
holder, who obtained a civil court decree, has filed a petition under
Section 144 of CPC for restoration of possession, before the court, in
which eviction was ordered. Therefore, it cannot be said that the court,
in which the petition is pending for several years, has no jurisdiction to
entertain such application. This court do not find any error on the
orders passed by this court. It is to be noted that despite the order of the
civil court, the Decree Holder is not able to get the benefits of the
decree and still obstruction is coming in many ways, like one before
this court, preventing the decree holder from taking possession of the
property. These are all the classic examples, how the rights of the real
owners obstructed one way or other on the strength of some procedural
lapses. If the novel application to review the order passed by this court
is entertained, there would not be any end for the litigations at all. Such
view of the matter, this court is of the view that this is a fit case to
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Rev. Appln. No.155 of 2021
invoke the Article 227 of the Constitution of India directing the
Judgment Debtor and his legal heirs to hand over vacant possession of
the property, within six months from the date of receipt of a copy of this
order. This court invoked its jurisdiction taking note of the various
litigations and number of petitions filed one way or another under
Order 21 Rule 97 of CPC and other provisions several obstruction
petitions are filed.
13. Accordingly, this review application is dismissed. The
Judgmbet Debtor and his legal heirs are directed to hand over the
possession of the property within six month from the date of receipt
of a copy of this order. No costs.
20.10.2021
Index : Yes / No
Internet : Yes / No
mst
https://www.mhc.tn.gov.in/judis/
Rev. Appln. No.155 of 2021
N. SATHISH KUMAR, J.
mst
Rev. Appln. No.155 of 2021
20.10.2021
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