Madras High Court
M.A.Majid @ Saleem vs Ameerunissa Begum Sashiba Endowment on 5 September, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
C.R.P. No. 3335 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.3335 of 2024
and C.M.P.No.17915 of 2024
1. M.A.Majid @ Saleem
2. M.A.Iqbal ... Petitioners
Vs
Ameerunissa Begum Sashiba Endowment,
Represented by its President. ... Respondent
PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of
India, pleased to dismiss the E.P.No.1139 of 2013 on the file of the XXVIII
Assistant City Civil Court, Chennai arising out of the judgment and decree dated
12.09.2011 in O.S.No.4131 of 2011 passed by the I Assistant City Civil Court,
Chennai.
For Petitioners : Mr.G.M.Ramasubramanian
for Tatva Legal Chennai
For Respondent : L.Gavaskar
1 / 10
https://www.mhc.tn.gov.in/judis
C.R.P. No. 3335 of 2024
ORDER
This Civil Revision Petition has been filed seeking to dismiss the execution
petition in E.P.No.1139 of 2013 on the file of the XXVIII Assistant City Civil
Court, Chennai arising out of the judgment and decree passed by the I Assistant
City Civil Court, Chennai, in O.S.No.4131 of 2011 on 12.09.2011.
2. The brief facts of the case is as under :
2.1. The respondent/plaintiff, a Muslim Religious and Charitable
Endowments had filed a suit in O.S.No.4131 of 2011 seeking to direct the
petitioners/defendants to quit, vacate and deliver vacant possession of the plot
bearing No.15, Maroof Sahib Street, Mount Road, Chennai 600 002 after removing
the superstructure standing on the land and to direct the defendants to pay arrears
of rent for the period of July 2003 to October 2009 amounting Rs.13,072/- and to
pay past damages for use and occupation of Rs.1200/- from November 2009 to
March 2011 amounting to Rs.20,400/- and also to pay future damages for use and
occupation at Rs.1200/- per month from April 2011 till delivery of vacant
possession. The suit came to be decreed on 12.09.2011 and the
petitioners/defendants have not filed any appeal challenging the said judgment and
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decree and it has become final.
2.2. Thereafter, the respondent/plaintiff has filed an execution petition
in E.P.No.1139 of 2013 to execute the judgment and decree. The petitioners have
also entered appearance and on 30.07.2024, the execution Court had passed the
following order :
“Counsel for Decree Holder Present. Bailiff report received
stating that delivery warrant executed partly. A careful perusal of
bailiff report dated 29.07.2024 it shows that the delivery warrant
executed partly and the superstructure of the schedule mentioned
property was not removed and it has been mentioned that the decree
holder sought time to remove the superstructure. Therefore, the bailiff
locked the schedule mentioned property and handover the key to the
Central Nazir. Counsel for the decree holder also sought time to take
steps to remove the superstructure of the suit property. Considering
the report of the bailiff dated 29.07.2024 as well as the request of,
counsel for the decree holder, the time extended till 30.08.2024 to
completely execute the delivery warrant dated 01.07.2024. Call on
30.08.2024.”
Challenging the execution proceedings, the present Civil Revision
Petition has been filed by the revision petitioners/Judgment Debtor.
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2.3. The ground taken in the revision petition is that as per Section
246 of the Chennai City Municipal Corporation Act, the permission of the Greater
Chennai Corporation is required for demolition of any superstructure falling within
the jurisdiction of Greater Chennai Corporation and thereby, the Corporation is a
necessary party and since the Corporation has not been added as a necessary party,
the Execution Petition has to be dismissed.
3. Learned counsel for the petitioners submitted that the land in question
belongs to the respondent Trust, whereas, the superstructure was put up by the
petitioners with their hard earned money after obtaining No Objection Certificate
vide letter dated 24.01.1995 from the respondent. He further submitted that though
the decree was obtained by the respondent on 12.09.2011, the respondent Trust has
graciously allowed them to stay in the place for a long time and that only now, the
order has been passed in the execution petition for demolition of the building. He
also submitted that as per Section 246A of the Chennai City Municipal
Corporation Act, 1919, the permission has to be obtained from the Chennai
Corporation for demolition of the building, whereas, in this case, the Chennai
Corporation has not been added as a necessary party and in such circumstances, the
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execution petition is not maintainable and has to be dismissed.
4. The submissions made by the learned counsel for the respondent are as
follows :-
4.1 The respondent/plaintiff is a religious endowment which has been
carrying out the philanthropic activities for the welfare of the poor and needy. The
petitioners/defendants, who are residing in the premises for more than 30 years,
have failed to pay the rent, thereby, the respondent/plaintiff had filed a suit in
O.S.No.4131 of 2011 before the Ist Assistant City Civil Court cum Wakf Tribunal,
Chennai and in which, decree was passed on 12.09.2011.
4.2. Thereafter, the petitioners had filed an application in I.A.No.3284
of 2017 in O.S.No.4131 of 2011 to condone the delay of 1959 days in filing the
petition to set aside the ex-parte decree dated 12.09.2011 and the same was
allowed by the trial Court on 05.04.2018. Challenging the same, the respondent
approached this Court in C.R.P.No.2109 of 2018 and this Court, by an order dated
30.06.2021 was pleased to set aside the order condoning the delay in filing the
petition to set aside the ex parte decree and thereby, the Judgment and decree
passed in O.S.No.4131 of 2011 has been confirmed and no appeal has been filed
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against the same.
4.3. Thereafter, the execution petition in E.P.No.1139 of 2013 had
been and since the petitioners did not appear, they were set ex parte and an order of
eviction was passed against the petitioners on 12.06.2014. Thereafter, the
petitioner has filed an application in E.A.No.5155 of 2015 seeking to set aside the
ex parte order passed in E.P.No.1139 of 2013 and the same was dismissed for
default on 25.04.2017. Subsequently, the petitioners had filed E.A.No.2575 of
2018 to set aside the dismissal order passed on 25.04.2017. After hearing the
matter, the XXVIII Assistant City Civil Court, Chennai, had dismissed the same.
Against the dismissal of E.A.No.2575 of 2018, the petitioners have not preferred
any appeal as on date.
4.4. While so, on 12.07.2024, the Bailiff had visited the petition
premises to execute the decree passed in O.S.No.4132 of 2011 and the petitioners
have vacated from the premises and have handed over the key to the Central Nazir
of the City Civil Court, Chennai. The delivery warrant after execution was filed
before the execution Court and thereafter, the Court had ordered for removing the
superstructure which is existing on the respondent endowment land.
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4.5. On 06.08.2024, the Bailiff has visited the petition premises and
had partly removed the superstructure. At the time of removing superstructure,
some persons claiming to be the agents of the petitioners have created ruckus on
the ground that there is no order from the Greater Chennai Corporation for
removing the superstructure. Due to which, the Bailiff was unable to remove the
remaining superstructure and while so, the present civil revision petition has been
filed.
4.6. Subsequently, based on the request given by the
respondent/plaintiff, the Greater Chennai Corporation had granted permission vide
U.14/C.No./Spl/2024 dated 14.08.2024 for demolishing the superstructure by
following all safety measures and guidance. The respondent has also paid the
necessary fees for the same.
4.7. Due and appropriate permission has been obtained from the
authorities for demolishing the building and when a Greater Chennai Corporation
is not a necessary party to decide the proceedings, the non impleadment cannot be
a ground to terminate the execution proceedings. The respondent endowment has
obtained the decree in the year 2011 and even after a period of 13 years, the
respondent are unable to execute the decree, since the petitioners are adopting one
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or the other method to scuttle the process and no grounds have been raised in this
petition to dismiss the execution petition.
5. Heard the learned counsel for appearing for both the petitioners and the
respondent and perused the materials available on record.
6. The ground urged in the revision seeking to dismiss the execution petition
is that the Greater Chennai Corporation is a necessary party and that the
continuation of the execution proceedings without including the Greater Chennai
Corporation as a necessary party is not proper. It is stated by the respondent/decree
holder that the petitioners have already vacated and handed over the possession
and that the respondent has obtained proper permission from the Greater Chennai
Corporation and in such circumstances, there is no requirement to implead them as
a necessary party. The ground raised by the petitioners cannot be sustained. The
respondent/decree holder has obtained proper permission from the Greater Chennai
Corporation for demolition subject to conditions and in the event of any violation
of any condition, it is for the Corporation to take action and the execution petition
cannot be terminated for that reason. This Court finds no merit in the grounds
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raised by the petitioners and it is only a feeble attempt taken by the petitioners to
delay the execution of the decree obtained in the year 2011.
7. In view of the above, this Court does not find any merits in this petition.
Accordingly, the Civil Revision Petition stands dismissed. Consequently, the
connected miscellaneous petition is also closed. No costs.
05.09.2024
Index : Yes / No
Neutral Citation : Yes / No
ham
To
1. The XXVIII Assistant City Civil Court, Chennai
2. The I Assistant City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA, J.
ham
05.09.2024
https://www.mhc.tn.gov.in/judis
