The Official Receiver Vs. R. Annamalai and 2 ors. - Court Judgment

Excerpt:
- ordergovardhan, j.1. petitioners in the crp no. 2181 of 1995 are the landlords. they have filed an application seeking eviction of the tenant viz., the second respondent in the civil revision petition on the ground of wilful default in payment of rent and on the ground of denial of title of the landlord by the tenant. the official receiver, north arcot ambedkar district and timvannamalai sambuvarayar district at vellore filed an application for impleading him as a party to the proceedings. after enquiry, the learned rent controller allowed the same. against the said order in ia no. 10 of 1995 in rcop no. 18 of 1994 the civil revision petition has been filed by the landlords on the ground that for deciding the question whether the denial of title of the landlords by the tenant in the rent control proceedings the presence of the official receiver who was a third party is not necessary. this court has passed the order allowing the civil revision petition and directing the rent controller to decide the question whether the denial of title of the petitioners landlords by the tenant is a bona fide one or not.2. against the said order the present review application has been filed by the official receiver.3. the learned counsel appearing for the applicant would argue that the court is entitled to take into consideration the subsequent events and when the subsequent event of vesting of the property with the official receiver is taken into consideration, the presence of the official receiver is necessary and therefore, the order passed by this court in the civil revision petition is to be modified. there is no doubt that any error apparent on the face of the record, is a ground for review. in the present case, the learned counsel appearing for the petitioner-applicant would contend that the order passed by this court in the civil revision petition having been passed without taking into consideration the subsequent event of the vesting of the property with the official receiver, there is an error apparent on the face of the record and therefore, it has to be reviewed.4. the order passed by this court in the civil revision petition is a considered order after hearing both sides and after considering the provisions of order 1, rule 10 of the code of civil procedure. the eviction petition has been filed not only on the ground of wilful default but also on the ground of denial of title of the landlord. the tenant resists the same on the ground that the landlord who has filed the eviction petition is no more a landlord, since the property has vested with the official receiver. it appears that the said denial was on the basis of a demand made by the official receiver for the rent. whether the denial of title of the landlord is a bona fide one or not is the only fact to be decided in the eviction petition apart from the question whether the tenant has committed wilful default. for deciding the question whether the denial of title of the landlord by the tenant is a bona fide one, the presence of the official receiver is not necessary and it is enough if the tenant establishes that there is a demand by the official receiver for the rent and therefore he is unable to decide to whom the rent is payable. for the above purpose, the presence of the official receiver is unnecessary since the rent controller functioning under the tamil nadu buildings (lease and rent control) act, has no powers to decide who is the owner of the property. in other words, the rent controller cannot finally and effectually adjudicate upon the question of title to the property since he is only a persona designata functioning under the tamil nadu buildings (lease and rent control) act and not a civil court. the question that has arisen for final and effectual adjudication before the rent controller being whether the denial of title of the persons who have filed the petition seeking his eviction by the tenant is bona fide one and it is not the title of the property which has arisen for effectual and complete adjudication. it is only after considering all these aspects, the earlier order has been passed by this court on 30th october 1995. it cannot be stated that an error apparent on the face of the record has crept in the order requiring a review of the earlier order. the learned counsel appearing for the applicant has relied upon the decision reported in syed shafee v. s. asmath basha, 1988 (2) l.w. 261, in order to show that in the rent control petition, subsequent purchaser ought to have been ordered to be impleaded when the landlords have filed an application seeking eviction of the tenant on the ground of owner's occupation. even in the said decision, the learned judge has held that the landlords having lost their property, it is no longer open to them to continue the proceedings in the absence of the real owners, and the eviction proceedings have to be terminated, and that it is open to the petitioners to come forward with a fresh petition on the same ground which are available to them on the date of the purchase.5. similarly, in the present case also, when once it is decided by the rent controller that the denial of title of the revision petitioners by the tenant is bona fide, the rent control proceedings have to be terminated and the official receiver who is said to have been vested with the property, can come forward with an application for eviction of the tenant on the ground of wilful default. if, on the other hand, if the denial of title is held to be not bona fide, the revision petitioners will be entitled to an order of eviction provided they are able to establish that the respondent-defendant has committed wilful default. therefore, the applicant in the review application is not entitled to an order by which, the earlier order in the civil revision petition which has been passed by this court after considering the various aspects with regard to the order 1, rule 10 of the code of civil procedure, could be modified.

Judgment:
ORDER

Govardhan, J.

1. Petitioners in the CRP No. 2181 of 1995 are the landlords. They have filed an application seeking eviction of the tenant viz., the second respondent in the civil revision petition on the ground of wilful default in payment of rent and on the ground of denial of title of the landlord by the tenant. The Official Receiver, North Arcot Ambedkar District and Timvannamalai Sambuvarayar District at Vellore filed an application for impleading him as a party to the proceedings. After enquiry, the learned Rent Controller allowed the same. Against the said order in IA No. 10 of 1995 in RCOP No. 18 of 1994 the civil revision petition has been filed by the landlords on the ground that for deciding the question whether the denial of title of the landlords by the tenant in the rent control Proceedings the presence of the Official Receiver who was a third party is not necessary. This Court has passed the order allowing the civil revision petition and directing the Rent Controller to decide the question whether the denial of title of the petitioners landlords by the tenant is a bona fide one or not.

2. Against the said order the present review application has been filed by the Official Receiver.

3. The learned counsel appearing for the applicant would argue that the court is entitled to take into consideration the subsequent events and when the subsequent event of vesting of the property with the Official Receiver is taken into consideration, the presence of the official Receiver is necessary and therefore, the order passed by this Court in the civil revision petition is to be modified. There is no doubt that any error apparent on the face of the record, is a ground for review. In the present case, the learned counsel appearing for the petitioner-applicant would contend that the order passed by this court in the civil revision petition having been passed without taking into consideration the subsequent event of the vesting of the property with the Official Receiver, there is an error apparent on the face of the record and therefore, it has to be reviewed.

4. The order passed by this Court in the civil revision petition is a considered order after hearing both sides and after considering the provisions of order 1, Rule 10 of the Code of Civil Procedure. The eviction petition has been filed not only on the ground of wilful default but also on the ground of denial of title of the landlord. The tenant resists the same on the ground that the landlord who has filed the eviction petition is no more a landlord, since the property has vested with the Official Receiver. It appears that the said denial was on the basis of a demand made by the Official Receiver for the rent. Whether the denial of title of the landlord is a bona fide one or not is the only fact to be decided in the eviction petition apart from the question whether the tenant has committed wilful default. For deciding the question whether the denial of title of the landlord by the tenant is a bona fide one, the presence of the Official Receiver is not necessary and it is enough if the tenant establishes that there is a demand by the Official Receiver for the rent and therefore he is unable to decide to whom the rent is payable. For the above purpose, the presence of the Official Receiver is unnecessary since the Rent Controller functioning under the Tamil Nadu Buildings (Lease and Rent Control) Act, has no powers to decide who is the owner of the property. In other words, the Rent Controller cannot finally and effectually adjudicate upon the question of title to the property since he is only a persona designata functioning under the Tamil Nadu Buildings (Lease and Rent Control) Act and not a Civil Court. The question that has arisen for final and effectual adjudication before the Rent Controller being whether the denial of title of the persons who have filed the petition seeking his eviction by the tenant is bona fide one and it is not the title of the property which has arisen for effectual and complete adjudication. It is only after considering all these aspects, the earlier order has been passed by this Court on 30th October 1995. It cannot be stated that an error apparent on the face of the record has crept in the order requiring a review of the earlier order. The learned Counsel appearing for the applicant has relied upon the decision reported in Syed Shafee v. S. Asmath Basha, 1988 (2) L.W. 261, in order to show that in the Rent Control Petition, subsequent purchaser ought to have been ordered to be impleaded when the landlords have filed an application seeking eviction of the tenant on the ground of owner's occupation. Even in the said decision, the learned Judge has held that the landlords having lost their property, it is no longer open to them to continue the proceedings in the absence of the real owners, and the eviction proceedings have to be terminated, and that it is open to the petitioners to come forward with a fresh petition on the same ground which are available to them on the date of the purchase.

5. Similarly, in the present case also, when once it is decided by the Rent Controller that the denial of title of the revision petitioners by the tenant is bona fide, the Rent Control Proceedings have to be terminated and the official Receiver who is said to have been vested with the property, can come forward with an application for eviction of the tenant on the ground of wilful default. If, on the other hand, if the denial of title is held to be not bona fide, the revision petitioners will be entitled to an order of eviction provided they are able to establish that the respondent-defendant has committed wilful default. Therefore, the applicant in the review application is not entitled to an order by which, the earlier order in the civil revision petition which has been passed by this Court after considering the various aspects with regard to the Order 1, Rule 10 of the Code of Civil Procedure, could be modified.