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M.KARTHEESWARAN versus R.ESWARAN

High Court of Madras

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M.Kartheeswaran v. R.Eswaran - CRP.NPD.1678 of 2007 [2007] RD-TN 2525 (27 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 27-7-2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.R.P.NPD No.1678 of 2007

1.M.Kartheeswaran

2.M.Palanisamy

3.M.Jeevanantham .. Petitioners vs.

R.Eswaran .. Respondent Civil revision petition preferred under Sec.25(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (Tamil Nadu Act 18 of 1960) as amended by Act 23 of 1973 and Act 1 of 1980 against the fair and decreetal order dated 30.10.2006 made in RCA No.8 of 2006 on the file of the I Additional Sub Court, Erode, reversing the fair and decreetal order dated 1.2.2006 made in I.A.No.46 of 2005 in RCOP No.1 of 2004 on the file of the Rent Controller/Principal District Munsif, Erode. For Petitioners : Mr.N.Manokaran For Respondent : Mr.V.Raghavachari ORDER



Challenge is made to an order of the Rent Control Appellate Authority in RCA No.8 of 2006 whereby an order of the Rent Controller of the said place in I.A.No.46 of 2005, an application to set aside an order of dismissal of RCOP No.1 of 2004, was reversed, and the application was dismissed.

2.The Court heard the learned Counsel on either side.

3.The said RCOP No.1 of 2004 was originally brought forth by one Chinnammal alleging that the respondent herein was her tenant; and that he was to be evicted on the ground of willful default. The said RCOP was dismissed for default on 18.3.2005. Thereafter, four applications were filed by the revision petitioners namely I.A.No.45/2005 to condone the delay of 83 days in making an application to set aside the order of dismissal of the RCOP for non-prosecution, which is I.A.No.46/2005. In order to condone the delay in making an application to set aside the abatement, I.A.No.47/2005 was filed, and the said application to set aside the abatement is I.A.No.48/2005. On contest, all those applications were ordered. Aggrieved over the order passed in I.A.No.46/2005, RCA No.8 of 2006 was filed by the respondent herein before the appellate forum. On enquiry, the RCA was allowed. Not satisfied with the order, the petitioners in I.A.No.46/2005 before the Rent Controller, have brought forth this revision petition before this Court.

4.The only contention put forth by the learned Counsel for the petitioner is that the third petitioner herein was the power holder of the original owner Chinnammal; that Chinnammal had executed a Will in favour of these petitioners; that on her death, the Will came into force; that they became the owners of the property; that under the circumstances, the applications were filed; that on contest, they were all allowed; that the respondent herein has challenged only the order in I.A.No.46/2005 which was an application to set aside the order of dismissal of the RCOP for default; that they have not challenged the orders which were passed in the other three applications; that under the circumstances, the appellate authority should have dismissed the RCA and on the contrary, allowed the same, and hence, it has got to be set aside.

5.Contrary to the above, it is contended by the learned Counsel for the respondent that the respondent is equally entitled to the property like the petitioners; that it is true that in the course of the affidavit, the petitioners averred that there was a Will executed by Chinnammal; but, the Will was not proved in any way; that the Rent Controller has acted on the averments and the copy of the Will being produced, in the absence of any proof or evidence; that in the first instance, the petitioners should have proved that they are competent to prosecute the matter as the legal representatives of Chinnammal; but, they have not done so; that under the circumstances, the Rent Controller should have dismissed the application in I.A.No.46/2005 and instead, allowed the same; that so far as the other applications are concerned namely I.A.No.47 and 48/2004, they are all only consequential reliefs; that so long as the petitioners were not able to show that they were the legal representatives of Chinnammal, then the RCOP should not be further proceeded with; that under the circumstances, the appellate forum has reversed the order of the Rent Controller and hence, that order has got to be sustained and the revision be dismissed.

6.After careful consideration of the submissions made, this Court is of the considered opinion that the order of the appellate authority has got to be set aside. In the instant case, it is not in controversy that the respondent herein was the tenant under Chinnammal, and the petitioners before this Court, on her death, filed before the Rent Controller those applications stating that they are the legal representatives of Chinnammal; and that the property has come to their hands in view of the fact that the Will executed by her, has come into force. But, it is pertinent to point out that first of all, in the RCOP, they must show that they are the legal representatives of the deceased Chinnammal. In the instant case, what was all done by them was only the production of the Will and the affidavit filed; but, not even evidence was recorded. The Rent Controller has acted upon so merely on the words of the petitioners and allowed them to act as legal representatives of the deceased Chinnammal, and thus, allowed the applications. The contention put forth by the respondent's side that he is equally entitled to the property cannot now be heard. Now, at this juncture, the only thing which has got to be done is whether the petitioners could be allowed to prosecute the RCOP as legal representatives of Chinnammal has got to be found out. For that purpose, the order passed in RCA No.8/2006 dismissing the application in I.A.No.46/2005, is set aside. Following the same, the order originally made in I.A.No.46/2005 by the Rent Controller, is also set aside. The matter is remitted back to the Rent Controller to record the evidence of both the parties and to find out whether the petitioners are the legal representatives of Chinnammal and whether they are competent to prosecute the RCOP. If to be so, necessary orders are to be passed by the Rent Controller. The parties are given liberty to put forth their contentions before the Rent Controller.

7.Accordingly, this civil revision petition is allowed. No costs. To:

1.The I Additional Sub Court

Erode

2.The Principal District Munsif

Erode

nsv/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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