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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
A.G. Pasupathy
Versus
Mohamed Ismail
C.R.P. No. 2683 of 1997
Decided On :Decided On : 14-10-1997
RESTITUTION - RENT CONTROL ACT - EX PARTE DECREE - SET ASIDE - RESTITUTION APPLICATION - DISMISSAL - JURISDICTION - BUILDING EXEMPTED FROM RENT CONTROL ACT - SUBSEQUENT CONSTRUCTION - RELEVANCE - PRINCIPLE OF RESTITUTION - APPLICABILITY - LANDLORD AND TENANT RELATIONSHIP - CONTINUANCE - BONA FIDE OF LANDLORD - IRRELEVANCE - IMPROVEMENTS - CLAIM FOR - NOT ALLOWABLE.
Fact of the Case:
Petitioner, a tenant, filed an application for restitution under Sec. 144 read with Sec.151, C.P.C., after the ex parte order of eviction against him was set aside. The court below dismissed the petition on the ground that since satisfaction was entered in the execution petition, it had no jurisdiction to order restitution. The respondent, the landlord, contended that the petition was not maintainable, that he had not committed any fraud on court, and that the building had been exempted from the provisions of the Rent Control Act.
Finding of the Court:
The court held that the ex parte decree having been set aside, the principle of restitution applied to the Rent Control Act, and that the court below erred in dismissing the petition on the ground that satisfaction was entered in the execution petition. It further held that the respondent was bound to hand over possession of the building to the petitioner, and that the subsequent construction made by the respondent or the exemption granted by the Government could not be a ground for disallowing restitution.
Issues: 1. Whether the principle of restitution applies to the Rent Control Act? 2. Whether the court below had jurisdiction to order restitution after satisfaction was entered in the execution petition? 3. Whether the subsequent construction made by the respondent or the exemption granted by the Government could be a ground for disallowing restitution?
Ratio Decidendi: 1. The principle of restitution applies to the Rent Control Act, as held by the Supreme Court in Kavita Treben v. Sahara Hygiene Products, (1994)5 S.C.C. 380. 2. The court below erred in dismissing the petition on the ground that satisfaction was entered in the execution petition, as the obligation to make restitution arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. 3. The subsequent construction made by the respondent or the exemption granted by the Government could not be a ground for disallowing restitution, as the parties must be relegated to their original position without taking note of the subsequent events.
Final Decision: The court allowed the revision petition, set aside the order of the court below, and directed the court below to restore the restitution application to its file and direct the respondent to redeliver possession of the demised premises to the petitioner within a week from the date of receipt of a copy of the order.
1. This revision petition under Art.227 of the Constitution of India, is by the tenant in R.C.O.P.No.3678 of 1988, on the file of XI Judge, Court of Small Causes at Madras.
2. Relevant facts that are necessary for the proper disposal of the revision may be summarised as follows:
Petitioner herein is a tenant of the building belonging to the respondent. R.C.O.P.No.3678 of 1988 was filed for eviction. Petitioner herein was set ex parte on 27.7.1989, and subsequently an ex parte order of eviction was also passed on 16.8.1989.
3. Petitioner herein filed M.P.No.265 of 1990, to set aside the ex parte order of eviction, and the same was allowed as per order dated 31.10.1990. Petitioner thereafter filed a counter in the main petition on 11.12.1990. The main eviction petition itself was posted to 3.1.1991 for enquiry. The matter was again adjourned to 10.1.1991, and since there was no representation on behalf of the respondent, the eviction petition itself was dismissed for default. It is not disputed that as on date, the dismissal order has become final. It is said that pursuant to the original ex parte order, respondent herein filed E.P.No.288 of 1993, for taking delivery of the property, and in fact, dispossession also took place on 1.11.1993. It is the case of the petitioner that his dispossession is unlawful, and he is entitled to restitution.
4. Petitioner herein filed M.P.No.947 of 1993 for restitution, under Sec. 144 read with Sec.151, C.P.C.
5. A detailed counter was filed by respondent herein. According to him, the petition itself is not maintainable. It is his case that he has not committed any fraud on court. He applied for certified copy of order on 10.12.1991 and the copy was delivered on 16.4.1993, and on receipt of the certified copy, he filed the Execution Petition on 22.4.1993. It is said that notice was ordered in the execution petition on 30.4.1993, and notice was returnable by 16.6.1993, and the execution petition was posted on 29.6.1993, On that day, notice was issued and the case was posted to 7.7.1993. The case was being adjourned from time to time, viz., on 9.8.1993, 16.8.1993 and 17.8.1993, and finally substituted service was ordered on 9.9.1993. After effecting publication on 17.9.1993, delivery was ordered by court on 20.9.1993. Respondent has further said that he took the bailiff on 29.9.1993, and the bailiff found that the house was locked, and, therefore, an application was filed to break open the lock, and finally he took possession through orders of court. It is the case of the respondent that several times delivery was ordered, and the bailiff also went to the premises and returned the warrant as he was unable to execute the warrant as the door was locked, and finally with police aid, possession was obtained. According to the respondent, the miscellaneous petition filed by the petitioner herein is barred, since, on the termination of the Execution Petition, the court has become functus officio. It is further said that the court has no jurisdiction to entertain the petition since the Government of Tamil Nadu has exempted the building from the provisions of Rent Control Act. It is further said that the petitioner himself filed a writ petition questioning the exemption, but failed. According to the respondent, once the building has been exempted from the provisions of Rent Control Act, the court cannot entertain any application in respect of the building, and the application for restitution is also not maintainable. It is said that the restoration application filed by the petitioner was one without jurisdiction since there was a delay of more than five months. The entire procedure in me restoration matter is one without jurisdiction and he came to know about it only on 10.1.1990 when notice in the miscellaneous petition viz., M.P.No.265 of 1990 was served on him. It is his case that no notice was served on him in the proceedings filed for setting aside the ex parte order of eviction. It is said
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