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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Kannammal, J.
M. Ezhilmaran - Appellant
Versus
K. Karunanidhi and ors. – Respondents
Second Appeal No.432 of 2021
Decided On : 17-12-2021
SARFEASI Act - Section 34 - Constitution of India,1950 - Articles 129, 215 – Auction - Sale certificate - Eviction of tenant- Debts Recovery - Whether the finding Court below that statutory tenant could get protection against landlord only before Rent Controller and not from regular Civil Court is right - expressions ‘due process of law', ‘due course of law' and ‘recourse to law' have been interchangeably used in the various decisions both by High Courts and Apex Court which emphasize that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly' by the true owner taking law in his own hands. Para 27.
Finding of the Court:
However it is pertinent to note that in a decision reported in versus Bank of India and others Hon'ble Supreme Court has held that Civil Courts have jurisdiction to try suit filed by a lawful tenant to save himself from eviction except by following due process of law even though proceeding SARFAESI Act was initiated by Bank - Further a person can approach a Civil Court and seek a declaratory or other relief in respect of secured asset since such relief cannot be granted by Debts Recovery Tribunal or Appellate Tribunal as they are not a Civil Court - Therefore it cannot be held that jurisdiction of Civil Court is completed barred by law and as such any suit filed by a lawful tenant and any person who claims declaratory relief over the secured asset can very well entertained by a Civil Court - To this extent orders of Courts below are modified holding that a Civil Court has jurisdiction to entertain suit filed by a lawful tenant or a person who claims declaratory relief over secured asset.
Result: Second Appeal Dismissed.
JUDGMENT :
Challenge in this Second Appeal is to the judgment and decree dated 01.02.2021 passed in A.S No.141 of 2017 on the file of the Principal District Court, Vellore, confirming the order passed in I.A.Nos.625 of 2016 and 626 of 2016 in O.S.No.536 of 2012 dated 02.11.2016 on the file of the Additional District Munsif, Vellore.
2. The main suit in O.S.No.536 of 2012 has been filed by the appellant herein for declaring the appellant as a lawful occupant as bonafide tenant. During the pendency of the above suit, the appellant herein filed petitions in I.A.No.151 of 2011 in O.A.No.150 of 2007 before the Debts Recovery Tribunal-III, Chennai and the same was dismissed.
3. The Admitted facts are that the scheduled mentioned property belongs to one Gnanasekaran and the same was under the mortgage with the second defendant. The second defendant filed O.A. No. 150 of 2007 before the Tribunal for recovery of sum of Rs.49,09,801/- with interest and the same was allowed. The recovery proceedings were initiated on the basis of sale certificate issued by the Tribunal. The Recovery Officer auctioned the scheduled property and the first respondent herein has purchased the property in auction and sale certificate was also issued in his favour on 17.02.2011. The Recovery Officer issued an order of eviction of the appellant herein on 04.03.2011 treating him as an unauthorized occupant in the property and he was asked to deliver the possession on or before 31.03.2011. The appellant herein filed I.A.No.151 of 2011, claiming that he is a lawful tenant and he cannot be evicted and the same was dismissed and consequently, he was directed to handover vacant possession of the premises to the second respondent by 30.06.2011.
4. The appellant herein filed petition in R.C.O.P.No.37 of 2011 for permitting him to deposit the rent into the Court and the same was also dismissed on 10.09.2013 by holding that the appellant is not a lawful tenant and there is no tenant and landlord relationship between the appellant and the first respondent. Further the appellant herein filed appeal in R.C.A.No.14 of 2013 against the dismissal order passed in R.C.O.P.No.37 of 2011 and the same was also dismissed. The appellant herein filed O.S.No.536 of 2012 with the following prayer :
b) Declare that the plaintiff should not be evicted except in accordance with the procedure established by law.
c) Grant permanent injunction restraining the defendants 1 and 2 and his servants agents etc., from in any manner interfering with the petitioners peaceful possession and enjoyment of the suit property till evicted under due process of law.
d) Grant permanent injunction restraining the 3rd defendant from passing any eviction order against this plaintiff in R.P.No.171 of 2008 in DRC.No.147 of 2008 and for the cost.
5. While the suit was pending for trial, the first and second respondents herein filed petitions in I.A.Nos.625 of 2016 and 626 of 2016 respectively, praying for rejection of the plaint and the above petitions were allowed. Against those orders, the appellant herein filed appeal in A.S.No.141 of 2017 the same was also dismissed by the first appellate Court by confirming the orders passed in I.A.Nos.625 of 2016 and 626 of 2016 by the trial Court. Aggrieved by the same, the appellant has preferred the present Second Appeal.
6. The learned counsel for the appellant would submit that the first appellate Court ought to have allowed the appeal in A.S.No.141 of 2017 and set aside the common order made in I.A.Nos.625 of 2016 and 626 of 2016. It is submitted that the first appellate Court simply confirmed the eroneous findings of the trial Court in holding a
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