Madras High Court
Lakshmi vs Mariam Ferozuddin on 13 March, 2023
C.R.P. Nos. 535 & 536 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.03.2023
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.Nos. 535 & 536 of 2023
and
C.M.P. Nos.5450 & 5454 of 2023
Lakshmi,
W/o. Late Sankaran ... Petitioner in
both C.R.P.s
Vs
Mariam Ferozuddin
W/o. C.A.Ferozuddin Ahmed ... Respondent in
both C.R.P.s
PRAYER in C.R.P. No. 535 of 2023 : Civil Revision Petition filed under
Art. 227 of Constitution of India, praying to set aside the docket order dated
22.02.2023 passed in E.A.No.3 of 2023 in E.P. No. 1187 of 2022 in
R.L.T.O.P. No. 76 of 2020 on the file of XI Small Causes Court, Chennai
allowing the Revision.
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C.R.P. Nos. 535 & 536 of 2023
PRAYER in C.R.P. No. 536 of 2023 : Civil Revision Petition filed under
Art. 227 of Constitution of India, praying to set aside the docket order dated
22.02.2023 passed in E.A.No.2 of 2023 in E.P. No. 1187 of 2022 in
R.L.T.O.P. No. 76 of 2020 on the file of XI Small Causes Court, Chennai
allowing the Revision.
For Petitioner in
both C.R.P.s : Mr.S.Panneer Selvam
For Respondent in
both C.R.P.s : Mr.S.Sahul Hameed
ORDER
Originally, challenging the docket order dated 22.02.2023 passed in
E.A.Nos. 2 and 3 of 2023 in E.P. No. 1187 of 2022 in RLTOP No.76 of
2020, on the file of XI Small causes Court, Chennai respectively, the
Revision Petitioner filed the Civil Revision Petitions and this court by an
order dated 27.02.2023 stayed the impugned orders passed in E.A.Nos.2 and
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C.R.P. Nos. 535 & 536 of 2023
3 of 2023.
2. The Revision Petitioner herein is the tenant and the respondent
herein is a landlord, who has filed RLTOP No. 76 of 2020 on the file of XI
Small Causes Court, Chennai seeking a direction directing the tenant to quit
and deliver vacant possession under her occupation. On hearing both sides,
the learned Rent Controller has ordered to vacate the premises on
15.11.2022. To execute the said order, the landlord filed an Execution
Petition E.P.No.1187 of 2022 and the same was taken on file on 19.12.2022.
In that E.P., notice was served on the respondent and she also appeared
through her counsel. Thereafter, the tenant preferred an appeal before the III
Addl. City Civil Court, Cennai in R.L.T.A.No. 02 of 2023. Before that,
caveat was filed and the learned counsel appearing for landlord also
subsequently appeared before the court, but no stay was granted by the
appellate court in favour of tenant as on date. In the meanwhile, the
Execution Court taken up the Execution Petition on file and on hearing both
sides, delivery was ordered by the Execution Court on 22.02.2023. To
execute the delivery, she has filed two applications in E.A.Nos. 2 and 3 of
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C.R.P. Nos. 535 & 536 of 2023
2023 to break open as well as to give police protection on 15.02.2023,
which were ordered by the trial court. Challenging the said orders, the
present Civil Revision Petitions have been filed and also obtained stay in
C.M.P. Nos.4389 and 4390 of 2023 on 27.02.2023 by lunch motion after
02.15 p.m..
3. Now, to vacate the stay order, the landlord preferred these Civil
Miscellaneous Petitions in C.M.P.Nos.5450 and 5454 of 2023. Today,
when the matters taken up for hearing, learned counsel for Revision
Petitioner would submit that the tenant has vacated the premises and the
landlord took possession of the same through Court Aamine on 27.02.2023
at the afternoon around 01.00 p.m. Thereafter only, she has preferred Civil
Revision Petitions and obtained stay. Hence, the relief claimed in the said
applications became infructuous and prayed to vacate the stay.
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C.R.P. Nos. 535 & 536 of 2023
4. By way of reply, the learned counsel for respondent argues that
after obtaining the stay order, she informed the same to the Court Aamine
and having came to know the court proceedings, the landlord/decree holder
had forcibly taken possession of the property. Hence, she has taken steps to
initiate contempt proceedings. Further, he has also argued that during the
pendency of the appeal, the landlord has no right to take possession of the
property, for which, he has relied on the judgment of this Court in C.R.P.
(PD) Nos.1715 and 1716 of 2022, dated 13.06.2022, wherein this court has
held in para 4 as follows :-
“4. It is seen from the E-court diary that the appeal is being
adjourned from time to time 'for awaiting records' from the
lower court. Before disposal of appeal, if the execution
proceeding is completed, the appeal filed by the revision
petitioner would become infructuous. To ensure that the
appeal suit is disposed of on merits, I feel that the orders
passed by the executing court to break open and for police
protection should be set aside and the executing court should
be directed to send the suit records immediately to the first
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C.R.P. Nos. 535 & 536 of 2023
appellate court for disposing the appeal.”
5. By way of reply, the learned counsel for respondent landlord would
submit that even though on 26.02.2023, the tenant has partly started to
vacate the premises, on 27.02.2023 before 01.00 p.m, she vacated the entire
premises and Court Aamine took possession of the property and handed
over the same to the landlord. To that effect, he has produced the
endorsement made by Court Aamine at page No.10 in the typed set of
papers and also produced the photographs to show that the premises was
vacated by the tenant.
6 Heard and considered rival submissions of both learned counsel for
Revision Petitioner as well as Respondent and perused the records.
7. On perusal of endorsement made by Court Aamine, it would
reveals that on 27.02.2023 when he entered the premises, the tenant has
vacated the premises in the presence of police officials and both ground and
first floors were vacant without any material objects and possession was
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C.R.P. Nos. 535 & 536 of 2023
handed over to landlord. To that effect, he has made endorsement. So, Court
Aamine endorsement would clearly reveals that on 27.02.2023 before 1'o
clock, entire premises was vacated. Further, the photographs enclosed in the
typed set of papers also reveals that at 01.06 p.m. entire premises was
vacated in the presence of police officials as well as court aamine.
Accordingly, the landlord took possession of the premises as per manner
known to law. As on date, there is no stay with regard to the execution
proceedings. So, the Execution Court has rightly passed an order along with
police protection, as such is maintainable in law. Though there is an appeal
is pending, the Execution Court has ordered to execute the impugned order
and furthermore, the tenant has also vacated the premises. The learned
counsel for Revision Petitioner/tenant would submit that the respondent
landlord had forcibly taken possession. It is an admitted fact that the tenant
has vacated the premises on 27.02.2023 and till date, no complaint was filed
by the tenant against the landlord for vacating the premises forcibly. So, the
submissions made by the tenant is not acceptable one. Hence, the
possession taken by the landlord is valid under law. Accordingly, the stay
orders passed in C.M.P. Nos.4389 and 4290 of 2023 are vacated and the
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C.R.P. Nos. 535 & 536 of 2023
Civil Miscellaneous Petitions in C.M.P. Nos. 5450 and 5454 of 2023 are
allowed. As the tenant has vacated the premises and the landlord took
possession of the premises through Court of law, no further adjudication is
required in these Civil Revision Petitions. Accordingly, the Civil Revision
Petitions are dismissed as infructuous. No costs.
13.03.2023
Index : Yes/No
Internet: Yes/No
Speaking/Non Speaking order
rpp
N.B. : Issue order copy today
To
XI Judge,
Court of Small Causes,
Chennai.
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C.R.P. Nos. 535 & 536 of 2023
T.V.THAMILSELVI, J.
rpp
C.R.P. Nos. 535 & 536 of 2023
and C.M.P. Nos.5450 & 5454 of 2023
13.03.2023
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