Madras High Court
Johnsi Philip vs Mohammed Rizwan on 25 October, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:25.10.2021
CORAM
.
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Rev.Appl.No.118 of 2021
Johnsi Philip .. Petitioner/Respondent/Respondent/
Decree holder
Vs.
Mohammed Rizwan .. Respondent/Petitioner/Petitioner/
Judgement Debtor
Prayer: Review Petition filed under Section 114 r/w order XXXXVII Rule
1 of C.P.C., to review the order passed in C.R.P.No.12 of 2021 and dismiss
the C.R.P.No.12 of 2021.
For Petitioner .. Mr.M.Kalyana Sundaram
Senior Counsel
for Mr.R.Vasudevan
For Respondent .. (Notice not issued)
2
ORDER
This Review Petition has been filed questioning the order, dated
23.07.2021 in C.R.P.No.12 of 2021.
2. There had been an agreement between the petitioner herein, who
was respondent in C.R.P.No.12 of 2021 and the respondent herein, who was
the petitioner in C.R.P.No.12 of 2021. In that particular agreement, it had
been agreed between the parties that if there is a dispute, the said subject
would be referred to arbitration.
3. The agreement was with respect to lease of a particular vacant land,
in which, there was a shed. Disputes arose. The matter was referred to
arbitration and an arbitral award was granted and Execution Petition was
filed. At that stage, the Civil Revision Petitioner approached the Court
questioning the award. This Court had, by order in the said C.R.P.No.12 of
2021, dated 23.07.2021, remanded the matter back to the learned District
Munsif at Alandur to give a finding whether the property involved comes
under the Tamil Nadu Buildings, Lease and Rent Control Act or whether it
does not come under the said Act.
4. This Court had relied on a judgment on reference by the Hon'ble
Supreme Court in Vidya Drolia Vs. Durga Trading Corporation, reported
in (2021) 1 SCC 1.
5. Heard Mr.M.Kalyana Sundaram, learned Senior Counsel and also
Mr.R.Vasudevan, learned Counsel for the petitioner.
6. On reference, owing to two separate differing judgments by two
separate benches of the Hon'ble Supreme Court, a larger bench held that in a
landlord/tenant dispute if the property is covered under special statute, then
proceedings on the said property should proceed only under the Special Act.
If not, then the parties can arbitrate on the issues if the agreement provides
for that.
7. This would mean that if the property in the instant case comes
under the purview of the Tamil Nadu Buildings, Lease and Rent Control
Act, 1960, as amended or under the Amended Act, which is now in force,
then the Special Act alone will apply in case disputes arise. If the property
does not come under the Tamil Nadu Buildings, Lease and Rent Control
Act, 1960, as amended or under the Amended Act now in force, then the
parties can enter into an agreement giving an arbitration clause to decide
disputes arising out of the agreement.
8. This is a question of fact, which this Court had directed the learned
District Munsif to determine, namely the character of the property and
whether it is covered under the Tamil Nadu Buildings, Lease and Rent
Control Act, 1960 or not.
9. A reference has been made to another judgment in 2021 1 SCC
529, Suresh Shah Vs. Hipad Technology India Private Limited, more
particularly to paragraph 18, which is extracted below:-
"18. In the backdrop of the above discussion, we
are of the considered view that insofar as eviction
or tenancy relating to matters governed by special
statutes where the tenant enjoys statutory
protection against eviction where under the
Court/Forum is specified and conferred
jurisdiction under the statute alone can adjudicate
such matters. Hence in such cases the dispute is
non-arbitrable. If the special statutes do not apply
to the premises/property and the lease/tenancy
created thereunder as on the date when the cause
of action arises to seek for eviction or such other
relief and in such transaction if the parties are
governed by an Arbitration Clause; the dispute
between the parties is arbitrable and there shall
be no impediment whatsoever to invoke the
Arbitration Clause. This view is fortified by the
opinion expressed by the Coordinate Bench while
answering the reference made in the case of Vidya
Drolia wherein the view taken in Himangni
Enterprises is overruled".
10. Even in the said portion, the Hon'ble Supreme Court had stated
that they are in conformity with the decision in Vidya Drolia Vs. Durga
Trading Corporation stated supra.
11. The question of fact has to be now determined by the learned
District Munsif, Alandur to find out whether the property involved comes
under the Tamil Nadu Buildings, Lease and Rent Control Act or not and
thereafter, the learned District Munsif has to proceed further.
12. I had referred to the subsequent judgment Suresh Shah Vs.
Hipad Technology India Private Limited referred above, inspite of the fact
that explanation to Order 47 R 1 of C.P.C specifically states that even if a
judgment referred in the course of the order is altered or modified or
reversed by a superior Court, then a review will not lie. Anyway, since the
order in Suresh Shah Vs. Hipad Technology India Private Limited had
only confirmed the position in Vidya Drolia Vs. Durga Trading
Corporation, the judgment given by me is only fortified and the Review
Petition has to suffer an order of dismissal.
13. With the above said observations, the present Review Application
is dismissed. Consequently, the connected miscellaneous petition i.e.,
C.M.P.No.14298 of 2021 is closed.
25.10.2021
Index:Yes/No
Internet:Yes/No
grs
To
The Principal District Munsif,
Alandur.
C.V.KARTHIKEYAN,J
grs
Rev.Appl.No.118 of 2021
25.10.2021
