Elumalai Vs. Kotteeswaran Alias Kotti Naicker - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

12. 02.2014 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.R.P (NPD) No.38 of 2014 & M.P.No.1 of 2014 Elumalai ... Petitioner vs. Kotteeswaran @ Kotti Naicker ... Respondent Civil Revision Petition is filed under 227 of the Constitution of India against the order and decreetal order dated 12.03.2012 passed in E.A.No.44 of 2010 in E.P.No.54 of 2009 in R.C.O.P.No.4 of 2005 by the Court of District Munsif, Chengalpattu. For Petitioner : Mr.S.Raghavan ORDER

The tenant, who suffered an order of eviction on the ground of willful default and bonafide requirement for demolition and re-construction in R.C.O.P.No.4 of 2005, which came to be confirmed by the Rent Control Appellate Authority in R.C.A.No.22 of 2008, which again came to be confirmed by the High Court in C.R.P.No.2293 of 2009, faced execution of the order of eviction in E.P.No.54 of 2009.

2. Citing the pendency of an appeal in A.S.No.41 of 2007, on the file of the Principal District Judge, Chengalpattu against the dismissal of his suit filed in O.S.No.187 of 2003 on the file of the Principal Subordinate Judge, Chengalpattu, the tenant filed an application E.A.No.44 of 2010 praying for the dismissal of the execution petition contending that the pendency of the civil proceedings in the appeal suit would make the execution order unexecutable. The learned District Munsif, Chengalpattu/Rent Controller dismissed the said execution application filed by the tenant /judgment debtor. Impugning the said order of the learned District Munsif/Rent Controller, Chengalpattu dated 12.03.2012 made in E.A.No.44 of 2010 in E.P.No.54 of 2009 in R.C.O.P.No.4 of 2005, the revision petitioner has preferred the present revision under Article 227 of the Constitution of India.

3. The Civil Revision petition stands listed today for admission. The arguments advanced by Mr.S.Raghavan, learned counsel for the revision petitioner are heard. The copy of the impugned order of the Rent Controller, grounds of revision and the other documents produced in the form of typed-set of papers are also perused.

4. Admittedly, the petition premises originally belonged to i) T.Raja, ii) R.Rajendra Prabu and iii) R.Gubendra Prabu and they let out the same to the revision petitioner herein for a non-residential purpose. The status of the revision petitioner as tenant and the basis on which the revision petitioner was inducted in possession of the property is not in dispute. The above said persons, namely the erstwhile owners of the petition premises, sold the property to Kotteeswaran @ Kotteeswara Naicker, the respondent herein under a sale deed dated 30.11.1998. The sale made in favour of the respondent herein by the erstwhile owners of the petition premises is also not in dispute. On the other hand, the revision petitioner herein chose to file a suit in O.S.No.187 of 2003 on the file of the Principal Subordinate Judge, Chengalpattu for the relief of specific performance on the basis of an alleged agreement for sale between himself and the above said erstwhile owners of the petition premises on 15.05.1991. While the suit was pending, the respondent herein filed R.C.O.P.No.4 of 2005 on the file of the District Munsif/Rent Controller, Chengalpattu for eviction on the grounds of willful default in payment of rent and requirement for demolition and reconstruction contending that the building was in a dilapidated condition requiring immediate demolition. The eviction petition was resisted by the petitioner herein contending that the purchase made by the respondent was not recognized by the petitioner herein and he did not attorn the tenancy in favour of the respondent herein and that hence, in the absence of direct jural relationship of landlord and tenant between the respondent herein and the petitioner herein, the eviction petition filed by the respondent was not maintainable.

5. The said contention was raised on the assumption that after entering into an agreement with the erstwhile owners, he need not continue the tenancy in favour of any third party who might have purchased the property in derogation of his right under the agreement for sale, based on which he had filed the suit for specific performance. The said contention did not find favour with the Rent Controller. Accordingly, the Rent Controller held him to have committed willful default in payment of rent. Rent Controller also accepted the plea of the respondent herein that the building needed demolition and that hence, the respondent was entitled to seek eviction of the revision petitioner herein on the ground of willful default and bonafide requirement for demolition and reconstruction. The said order passed by the Rent Controller on 29.08.2008 was challenged before the Rent Control Appellate Authority in R.C.A.No.22 of 2008, which was dismissed by the Rent Control Appellate Authority on 18.04.2009 confirming the order passed by the Rent Controller. The tenant, namely the revision petitioner, took the matter to the High Court by preferring a revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in C.R.P.No.2293 of 2009. This Court also concurred with the findings of the Rent Controller and the Rent Control Appellate Authority with the result that the Civil Revision Petition was dismissed on 04.12.2009. Meanwhile, the suit filed by the revision petitioner herein against the erstwhile owners and also the respondent herein as a purchaser, who purchased the property subsequent to the said suit agreement, came to be dismissed after trial on 18.12.2006. As against the decree of the trial Court, namely the Court of the Principal Subordinate Judge, Chengalpattu, the revision petitioner herein preferred an appeal in A.S.No.41 of 2007 on the file of the Principal District Judge, Chengalpattu and it is an admitted fact that the said appeal is still pending.

6. Based on the confirmation of the order of eviction passed by the Rent Controller, by the Appellate Authority and also the Revisional Authority, namely the High Court of Judicature at Madras, the respondent herein filed E.P.No.54 of 2009 for execution of the order of eviction. The revision petitioner / judgment debtor, after having failed in his attempt in the rent control Proceedings, in the rent control appellate proceedings and also revision arising therefrom, once again took a similar stand on the execution side by filing E.A.No.44 of 2010 contending that the eviction order was not executable because of the pendency of the appeal filed by him against the dismissal of his suit for specific performance. The learned Rent Controller rightly held that the said contention of the petitioner herein/judgment debtor could not be sustained in law. Based on such finding, the Rent Controller dismissed the Execution Application filed by him.

7. The petitioner herein admittedly got possession of the petition premises by virtue of a tenancy arrangement with the erstwhile owners. Though the revision petitioner herein might have filed a suit for specific performance on the basis of an alleged agreement for sale dated 15.05.1991, the cardinal principle of law underlying an agreement for sale is that he shall have a personnel remedy against the vendor under agreement for sale and the agreement per se will not create any interest in the property. Irrespective of the fact whether the agreement is admitted or not and irrespective of the fact whether the vendor under the agreement is entitled to the equitable relief of specific performance or not, till such a decree is obtained and it is put in execution resulting in the execution and registration of a sale deed, title to the property will not get transferred to the purchaser under the agreement for sale. Till such time, the revision petitioner cannot claim to be the owner of the property. Admittedly, the respondent is the present title holder of the property and he has also been made a party respondent in the suit filed by the revision petitioner for specific performance. When that is so, the revision petitioner cannot deny his title or deny his right to receive the rent as his landlord, unless there is an agreement to the contrary.

7. It is not the case of the petitioner that on and from the date on which the agreement for sale was entered into, his status as a tenant came to an end and thereafter he continued to be in possession of the property only as an agreement holder in part performance of the agreement for sale. It is also not the case of the revision petitioner that after the date of agreement he was absolved from making payment of rent to his landlord, namely the vendors under the agreement. Hence, it can be said without any doubt that the revision petitioner did admit the continuance of the jural relationship of landlord and tenant between himself and the erstwhile owners of the property even after he allegedly entered into an agreement for sale on 15.05.1991. Having chosen to admit and acknowledge his status as a tenant even after the date of the said agreement for sale, he will be debarred from contending that the purchaser from the admitted owners of the property will not be entitled to receive rent. The definition of landlord includes such a purchaser. All these aspects were considered in the R.C.O.P, in the appeal arising therefrom and also in the revision and such contentions, even if not raised therein, ought to have been raised in those proceedings. Having raised it and failed or having failed to raise such a contention, the judgment debtor cannot raise such a plea in the execution proceedings wherein the Executing Court cannot go beyond the decree /order which is sought to be executed.

8. This Court finds no defect, infirmity, much less any illegality in the order passed by the Rent Controller which is sought to be impugned in this revision. The order passed by the Rent Controller cannot be stated to be one passed without jurisdiction or in failure to exercise jurisdiction conferred on the Rent Controller. Nor can the order be stated to be passed with illegality or material irregularity in exercise of jurisdiction resulting in miscarriage of justice, in which event alone the supervisory jurisdiction of this Court can be invoked for interfering with the order of the Court below. For all the reasons stated above, this court comes to the conclusion that the revision does not even merit admission and the same deserves to be thrown out at the threshold. Accordingly, the revision petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 12.02.2014 Index: Yes Internet: Yes gpa To The District Munsif, Chengalpattu P.R.SHIVAKUMAR.J., gpa C.R.P (NPD) No.38 of 2014 & M.P.No.1 of 2014 12.02.2014