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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE JAGADEESAN
Champalal Jain & Others
Versus
M. Superchand & Others
C.R.Ps. Nos. 1689, 1801 & 1802 of 1996
Decided On :Decided on : 08-10-1996
RENT CONTROL - EVICTION - SUB-TENANTS - NECESSARY PARTIES - COLLUSION - FRAUD - SECTION 47, C.P.C. - ORDER 21, RULE 97, C.P.C. - CONDUCT OF PETITIONERS - TRANSFER OF CASES.
Fact of the Case:
Petitioners filed revisions challenging the orders of the Rent Controller and Appellate Authority dismissing their applications to implead themselves as party/respondents in the execution petition and R.C.O.P. They contended that the ex parte order of eviction obtained by the respondents in R.C.O.P. 776/92 cannot be executed against them, as the same was obtained without impleading the sub-tenants. They also argued that the application filed by them under Section 47, C.P.C. ought to have been treated as one under Order 21, Rule 97, C.P.C.
Finding of the Court:
The court held that the sub-tenants are not necessary parties to the eviction proceedings and that the order of eviction will be binding on them unless they prove that it was obtained by fraud or collusion. The court also held that the petitioners had failed to make out a case that the order of eviction was collusive or fraudulent. Further, the court held that the application filed by the petitioners under Section 47, C.P.C. was not maintainable as they had not challenged the order of dismissal of the said application. The court also dismissed the petitioners' contention that the application filed under Section 47, C.P.C. ought to have been treated as one under Order 21, Rule 97, C.P.C., as they had already filed three separate suits for the same relief.
Issues: 1. Whether the sub-tenants are necessary parties to the eviction proceedings? 2. Whether the order of eviction obtained by the respondents in R.C.O.P. 776/92 is collusive or fraudulent? 3. Whether the application filed by the petitioners under Section 47, C.P.C. is maintainable? 4. Whether the application filed under Section 47, C.P.C. ought to have been treated as one under Order 21, Rule 97, C.P.C.?
Ratio Decidendi: 1. The sub-tenants are not necessary parties to the eviction proceedings, and the order of eviction will be binding on them unless they prove that it was obtained by fraud or collusion. 2. The petitioners had failed to make out a case that the order of eviction was collusive or fraudulent. 3. The application filed by the petitioners under Section 47, C.P.C. was not maintainable as they had not challenged the order of dismissal of the said application. 4. The application filed under Section 47, C.P.C. ought not to have been treated as one under Order 21, Rule 97, C.P.C., as the petitioners had already filed three separate suits for the same relief.
Final Decision: The court dismissed all the Civil Revision Petitions with costs of Rs. 5,000/-.
1. By consent of both the counsel, the Civil Revision Petitions themselves are taken up for final disposal. The respondents 1 to 9 herein filed R.C.O.P. 3297/91 for eviction on the ground of unauthorised sub-lease, R.C.O.P. 3183/91 for fixation of fair rent and R.C.O.P. 776/92 for eviction on the ground of wilful default. All the R.C.O.Ps were filed against Mr. M. Srinivasa Rao, who is the tenant of the premises. There is no dispute that the respondents had purchased the property.
2. R.C.O.P. 776/92 was decreed ex parte on 30.4.92. The respondents filed execution petition in E.P. 638/92 to execute the order of eviction. Mr. Champalal Jain, the petitioner in C.R.P. 1689/96, one of the petitioners in C.R.P. 1802/96 filed M.P. 614/93 in E.P. 638/92 in R.C.O.P. 776/92 under Section 47 C.P.C. contending that the ex parte order of eviction cannot be executed, as the same is a collusive and fraudulent one. He also filed application M.P. 1056/92 to implead himself as party/respondent in the said Execution Petition. One Mrs. Mahender Kaur, the petitioner in C.R.P. 1801/93. one of the petitioner in C.R.P. 1802/96 has filed M.P. 1057/92 to implead him as party/respondent in the said Execution Petition. The Rent Controller had dismissed all the applications by common order dated 19.8.94
2. Aggrieved by the order of the Rent Controller, Mr. Champalal Jain preferred an appeal in R.C.A. 714/94 before the Appellate Authority against the order in M.P. 1056/92 in E.P. 638/92 in R.C.O.P. 776/92. Mr. Mahender Kaur also preferred an appeal R.C.A. 716/94 against the order of dismissal in M.P. 1057/92 in the above said Execution Petition. The Appellate Authority by common order dated 21.3.96 had dismissed the said appeals, against which they have preferred revisions in C.R.P. 1689/96 and C.R.P. 1801/96 respectively before this Court. Mr. Champalal Jain did not prefer any appeal against the order in M.P. 614/93 which was filed under Section 47, C.P.C. (In the certified copy of the order of the Rent Controller it is mentioned as Mrs. Mahendra Kaur. The mistake has happened because it is so described in some of the petitions; whereas Mahendra Kaur had signed. Hence it has to be taken that only Mr. Mahendra Kaur is the petitioner)
3. Both Mr. Champalal Jain as well as Mrs. Mahendra Kaur who are the petitioners herein filed M.P. 687/92 in R.C.O.P. 3297/91 filed by the respondents to evict the chief tenant on the ground of unauthorised sub-letting. The petitioners along with five others filed the said application to implead themselves in the main R.C.O.P. on the ground that they are the authorised sub-tenants under Mr. M. Srinivasa Rao, the respondent in all the R.C.O.Ps.
4. The Rent Controller dismissed the said application on 27.4.94 and subsequently passed an order of eviction by allowing the R.C.O.P. on 29.4.94.
5. The petitioners preferred R.C.A. 433/94 on the file of Appellate Authority. The Appellate Authority had concurred with the reasoning of the Rent Controller and dismissed the appeal. Aggrieved, the petitioners filed C.R.P. 1802/96 before this Court.
6. Mr. R. Thiagarajan, the learned counsel for the petitioners contended that the order of eviction obtained by the respondents in R.C.O.P. 776/92 cannot be executed against the petitioners herein, since the respondents had obtained the order of eviction without impleading the sub-tenants. The respondent M. Srinivasa Rao though appeared in the earlier stage of the proceedings in R.C.O.PS, subsequently remained ex parte and allowed the said R.C.O.Ps to be ordered. Hence the order of eviction is collusive and fraudulent decree obtained by the respondents against the petitioners herein and as such the same cannot be executed. Further the application filed by the petitioner under Section 47, C.P.C. ought to have been treated as one under Order 21, Rule 97, C.P.C., since the rights of the petitioners are very much involved in the execution of the order of eviction obtained by the respondents.
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