Dismissed

R. Balasubramanian, v. S. Sethukarai Nadar

Madras HC20 Jan 2014CRP(MD)/50/2014

Case brief

AI extract

What is this about?

A tenant challenged the dismissal of a stay petition filed in execution proceedings. The Single Judge upheld the Execution Court's dismissal due to lack of evidence regarding a pending review petition and allowed the tenant time to hand over possession instead of an immediate break-open order.

What did the court decide?

Time granted to hand over possession by 31.10.2014; permission to close entrance wall in landlord's presence; trial court to deliver possession by break-open order if default occurs by 01.11.2014.

R. Balasubramanian, Vs S. Sethukarai Nadar — Landlord and Tenant | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated : 20.01.2014

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CORAM:

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THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN

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C.R.P.(PD)(MD)No.50 of 2014 and M.P.(MD)No.1 of 2014

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R.Balasubramanian

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... Petitioner/Petitioner

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Vs - S.Sethukarai Nadar ... Respondent/Respondent

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Prayer: Petition filed under Article 227 of Constitution of India, to set aside the fair and Executable order dated 18.12.2013 passed in E.A.No.283 of 2013 in E.P.No.70 of 2013 in R.C.O.P.No.782 of 1982 on the file of the Additional District Munsif Court, Madurai Town.

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For Petitioner : Mr.M.Senthil Kumar For Respondent : Mr.S.Subbiah

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ORDER

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The tenant is the petitioner before this Court challenging the dismissal of the petition in the E.P. filed for staying of the execution proceedings till the disposal of the review petition filed against the order passed in C.R.P.No.1248 of 1996.

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The petitioner is the tenant under the respondent landlord. The respondent filed R.C.O.P.NO.782 of 1982 for eviction of the petitioner on the ground of demolition and reconstruction and lost the case both before the trial Court as well as the lower Appellate Court, however successful before this Court in C.R.P.No.1248 of 1996. The order was passed by this Court in the aforesaid Civil Revision Petition on 22.02.2007.

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Since eviction order was passed, the respondent/landlord filed E.P.No.70 of 2013. In the said E.P. only, the petitioner took out the stay petition to stay the proceedings of the E.P. contending that the petitioner filed a review petition against the order passed in C.R.P.No.1248 of 1996, dated 22.02.2007.

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However, the Execution Court, taking into consideration that no material is placed before the said Court about the pendency of the review petition filed in S.R.No.48491 of 2008, dismissed the petition. Against that order only, the petitioner is before this Court.

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Heard Mr.M.Senthil Kumar, learned Counsel for the petitioner https://hcservices.ecourts.gov.in/hcservices/ and Mr.S.Subbiah, learned Counsel for the respondent and perused the materials available on record.

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The Execution Court rightly dismissed the petition, taking into consideration of non-production of any material to show that the review petition has been filed against the order passed by this Court in C.R.P.No.1248 of 1996, dated 22.02.2007. When the order was passed about six years ago, by this time the petitioner should have diligently prosecuted the review petition, which is an exceptional remedy to any party. Even as on date, there is no evidence with regard to the steps taken by the petitioner for having filed the review petition and the subsequent steps taken in that regard. The Courts cannot endlessly wait for the disposal of the alleged review petition, for which no evidence is available. Therefore, the order passed by the Execution Court cannot be interfered with.

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The learned Counsel for the petitioner seeks time till 31.10.2014 to hand over the possession of the premises of the respondent and filed an undertaking affidavit dated 20.01.2014.

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Considering the reasonable request made by the petitioner, this Court grants time till 31.10.2014 as per the undertaking affidavit. In paragraph No.4 of the undertaking affidavit, the petitioner stated that as there is an entrance to the property leased out to the petitioner by the respondent is only through his own shop, he seeks permission to close the entrance by putting up a wall. There is no objection by the landlord to close the wall. However he seeks to close the wall only in the presence of the landlord. Therefore, the petitioner is permitted to close the entrance by putting up a wall with consent, in the presence of the landlord, after giving prior notice, atleast one week in advance.

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Accordingly, the Civil Revision Petition fails and the same is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. No costs. As per the undertaking affidavit, time is granted to the petitioner to hand over the possession to the respondent on or before 31.10.2014. If in case the petitioner fails to hand over the possession by 31.10.2014, the trial Court is directed to deliver the possession to the respondent by issuing break open order as well as police aid on 01.11.2014.

Sd/-

Assistant Registrar

/True Copy/

Sub – Assistant Registrar

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The Additional District Munsif , Madurai Town. ( encl : a copy of undertaking dt.20.01.14 filed herein)

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1 CC to Mr.S.Subbiah, Advocate in Sr.No.3228 ( encl : a copy of undertaking dt.20.01.14 filed herein)

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C.R.P.(PD)(MD)No.50 of 2014

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https://hcservices.ecourts.gov.in/hcservices/

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and M.P.(MD)No.1 of 2014

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20.01.2014

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gdr 28.01.2014 2p/3c

R. Balasubramanian, v. S. Sethukarai Nadar

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R. Balasubramanian, v. S. Sethukarai Nadar

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