Madras High Court
M.Somasundaram ... Revision vs Kasthuri on 27 April, 2023
C.R.P(MD)No.1034 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.1034 of 2021
and
C.M.P(MD)Nos.6030 of 2021 and 1933 of 2022
M.Somasundaram ... Revision Petitioner/Petitioner/
Respondent/Defendant
Vs.
Kasthuri ... Respondent/Respondent/
Petitioner/Plaintiff
PRAYER: Civil Revision Petition is filed under Section 115 of Civil
Procedure Code, to set aside the order dated 31.03.2021 passed in
unnumbered E.A.No. of 2021 in E.P.No.117/2017 in O.S.No.250/2006
on the file of the District Munsif, Melur.
For Petitioner : Mr.N.Vallinayagam
For Respondent : Mr.R.Prabhakaran
ORDER
The present Civil Revision Petition has been filed against the order
dated 31.03.2021 passed in unnumbered E.A.No. of 2021 in E.P.No.
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C.R.P(MD)No.1034 of 2021
117 of 2017 in O.S.No.250 of 2006 on the file of the District Munsif,
Melur.
2. The petitioner is the unsuccessful tenant in the suit filed by the
respondent/plaintiff in O.S.No.250 of 2006. The suit was filed by the
respondent/plaintiff for recovery of possession of the suit schedule
property, which was leased to the petitioner and for arrears of rent. The
suit was decreed as early as on 28.07.2009.
3. Against the aforesaid judgment and decree of the District
Munsif Court, Melur, the petitioner has filed an appeal in A.S.No.207 of
2009. The appeal was dismissed for non-prosecution and no steps were
taken to restore it. Thereafter, the respondent/landlord filed E.P.No.117
of 2017. In the aforesaid proceedings, the petitioner has filed E.A. under
Section 47 of C.P.C., which has been rejected by the District Munsif
Court, Melur. The relevant portion of the order reads as under:
"This petition has been filed for the relief of deciding the
question relating to execution and to dismiss the main
Execution Petition No.117 of 2017. The main ground raised in
this petition is that the decree is non-executable and that so it
has to be decided, the other ground on which this petition has
been filed is that RCOP proceedings ought to have been
invoked by respondent since Special Act would apply, because
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C.R.P(MD)No.1034 of 2021
the suit property is at present in Madurai Corporation ward
No.49.
The executing Court cannot go beyond the decree. Also,
the Civil Court jurisdiction is not ousted, just because rent
control jurisdiction can be invoked.
If at all the petitioner is aggrieved, he has to work out
his remedy in the appropriate forum, in the manner known to
law.
It is also pertinent to note that this petitioner who is the
respondent in main E.P.No.117 of 2017, is exparte as an date
in said E.P.
So, this petition is not maintainable. Hence rejected."
4. The learned counsel for the petitioner submits that the property
is located in Naganakulam Panchayat and thus fall within the purview of
the Madurai City Municipal Corporation Act, 1971 and therefore, the
respondent ought to have filed rent control proceedings under the
provisions of the erstwhile Tamil Nadu Buildings (Lease and Rent)
Control Act. In this connection, the learned counsel for the petitioner has
placed reliance on the notification of Municipal Administration and
Water Supply Department in Tamil Nadu Gazette Notification No.321,
dated 20.10.2010. It is also submitted that the learned District Munsif
Court, Melur has committed a grave error in dismissing the application
without numbering the same.
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C.R.P(MD)No.1034 of 2021
5. It is submitted that an application filed under Section 47 of
C.P.C., has to be heard and without opportunity to adduce evidence, the
order cannot be sustained. It is submitted that the revision is also
maintainable and that rent controller ought not to take the application
without numbering the same.
6. The learned counsel for the respondent submits that it is not
open for the petitioner to once again question the jurisdiction at the stage
of the execution of the decree that came to be passed on 28.07.2019. That
apart, it is submitted that the judgment and decree of the District Munsif
Court, Melur in O.S.No.250 of 2006, dated 28.07.2009 was also
dismissed for non-prosecution. At the stage of execution, the petitioner
cannot filed an application by placing reliance on the notification, which
has been issued subsequently to the judgment and decree of the rent
control, dated 28.07.2009.
7. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent. I
have also perused the Government notification of the Municipal
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C.R.P(MD)No.1034 of 2021
Administration and Water Supply Department in Tamil Nadu Gazette
Notification No.321, dated 20.10.2010.
8. The said notification cannot be made applicable retrospectively
for the period covered by the decision of the civil suit of the District
Munsif Court, Melur in O.S.No.250 of 2006. Therefore, there is no merit
in the argument advanced by the learned counsel for the petitioner.
Although, the petitioner has filed an application under Section 47 of
C.P.C., it requires to be decided on merits. If it is filed to prolong the
litigation and to defeat the rights of the decree holder, it can be rejected
inlimine.
9. In my view, the Municipal Administration and Water Supply
Department in Tamil Nadu Gazette Notification No.321, dated
20.10.2010 is much after the suit was filed by the respondent and much
after the decree came to be passed on 28.07.2009. Therefore, the
application filed by the petitioner has to be construed as an abuse of the
Court proceedings. Therefore, there is no merit in the present Civil
Revision Petition.
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C.R.P(MD)No.1034 of 2021
10. The present Civil Revision Petition stands dismissed with the above
observations. No costs. Consequently, connected miscellaneous petitions are closed.
27.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The District Munsif,
Melur.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
C.SARAVANAN,J.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1034 of 2021
SN
C.R.P(MD)No.1034 of 2021
27.04.2023
https://www.mhc.tn.gov.in/judis
