Revision dismissed dismissing the Civil Revision Petition, the High Court directed the trial court to dispose of the underlying suit within one month.
Petitioner ‒ Civil Revision Petition dismissed; Trial court directed to dispose of suit within one month.
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C.R.P.(PD) No.417 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 07.11.2019 Pronounced On : 06.02.2020
CORAM:
THE HON'BLE Mr. JUSTICE R.PONGIAPPAN
Civil R evision Petition (PD) No.417 of 2014
and M.P.No.1 of 2014
M.L.Altafar Rahman,
Rep. By its Power Agent .. Petitioner
Vs
K.H.Ameenur Rahman .. Respondent
PRAYER: Civil Revision Petition filed under Section 115 of Code of Civil Procedure, to set aside the Fair and Decreetal order dated 08.01.2014 made in CMA No.6 of 2013 on the file of the Subordinate Judge, Vanniyambadi and confirming the order dated 10.06.2013 passed in IA No.280 of 2008 in O.S.No.158 of 2008 on the file of the learned Principal District Munsif, Ambur.
This Civil Revision Petition is directed against the order dated 08.01.2014 made in CMA No.6 of 2013, on the file of the learned Subordinate Judge, Vaniyambadi, Vellore District.
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suit against the petitioner herein, seeking the relief of permanent injunction restraining the defendant/petitioner herein and his men and agents and servants, from interfering with his peaceful possession and enjoyment of the suit scheduled non residential premises, except under due process of law and for the costs. Alongwith the suit, he filed an interlocutory application in IA No.280 of 2008 under Order XXXIX Rule 1 and 2 of CPC and prayed to pass an order of ad interim injunction. After affording an opportunity to the petitioner herein, the learned District Munsif, Ambur, by order dated 10.06.2013, had allowed the application.
Miscellaneous Appeal in CMA No.6 of 2013 on the file of the Subordinate Court, Vaniyambadi. After elaborate enquiry by order dated 08.01.2014,
the learned Subordinate Judge, Vaniyambadi, had dismissed the appeal filed by the petitioner herein and confirmed the order passed by the learned District Munsif, Ambur. Being aggrieved over the said findings, the petitioner / defendant is before this Court with the present Civil Revision Petition.
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petition filed by the petitioner is as follows:
(i) The petitioner is in the occupation of suit scheduled non residential premises of the respondent and carrying on business in the name and style of M/s.HRA Leather Exports. Originally, he is paying a monthly rent of Rs.22,500/- and the same is increased to the tune of Rs.24,187.50p. The petitioner is very regular and prompt in payment of monthly rents. The respondent often requested and forced the petitioner to vacate and hand over the possession of the suit scheduled property.
(ii) On that occasion, the petitioner made a submission before the respondent that the machineries worth about several lakhs have been installed in the suit property, further a sum of Rs.20 Lakhs has to be collected from the customers and hence in the said situation it is not very easy to vacate the suit scheduled property, immediately. Thereafter, after hearing the same, the respondent made arrangements to evict the petitioner by unlawful means.
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(iii) On 27.01.2005, the respondent came alongwith his henchmen,
agents and attempted to interfere with the petitioner's peaceful possession and enjoyment of the suit scheduled property. In fact the Essam Tannery Company building is leased out to the petitioner for carrying the business under the name and style of HRA Leather Exports.
(iv) On 27.01.2005 with great difficulty the petitioner prevented the
respondent from committing the act of trespassing into the suit scheduled property. Unless the respondent is restrained by an order of injunction, a great prejudice will be caused to the petitioner. According to him, he shall
be evicted only by due process of law.
(i) The averments contained in the affidavit filed in support of the
petition are all false. In fact the petitioner is a tenant under the respondent from 2002 August. He is irregular in payments. He constructed a superstructure and altered the suit scheduled property and thereby, the
value of the suit scheduled property was reduced. The petitioner sublet the premises without getting permission from the respondent, for which a case
has been pending before the learned Principal District Munsif, Ambur.
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(ii) After filing of the suit, a petition has been filed by the respondent in RCOP No.13 of 2006 in which, the petitioner has appeared and filed his counter affidavit. The petitioner is a willful defaulter. On 09.04.2008 itself, in the presence of panchayatar, the petitioner vacated the suit scheduled property and handed over the possession of the suit
property to the respondent, for which a document has been executed. As
of now, the petition mentioned property is in the possession of respondent.
(iii) After obtaining the possession from the petitioner the same was leased out to one Tanveer S/o.Nissar Ahmed. As of now, the said person is the tenant under the respondent in respect to the suit scheduled property from 28.04.2008. The electricity bill has also been paid by the respondent.
The petition filed by the petitioner becomes infructuous and not maintainable.
have been examined on the side of the petitioner. Only documents have
been marked as Ex.P1 to P62. On the other hand three witnesses have been examined on the side of the respondent as RW1 to RW3 and six documents are marked as Ex.R1 to R6.
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appeal.
the present Civil Revision Petition.
to be decided only at the time of trial.
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petitioner before the trial Court was allowed and thereafter ad-interim injunction already granted was made absolute through the concurrent findings of the Courts below.
is in the lawful possession of the suit scheduled property and therefore, praying for the relief to grant an order of injunction restraining the respondent, from interfering with his peaceful possession and enjoyment of the suit scheduled property, until he is evicted by due process of law, is nothing but a lawful act of petitioner.
necessary to see the judgment of our Hon'ble Apex Court in Rame Gowda (dead) by LRs. Vs. M.Varadappa Naidu (Dead) by LRs and another ,
reported in 2004 (1) SCC 769 , wherein our Hon'ble Apex Court has held as follows.
“In India persons are not permitted to take forcible possession; they must obtain such possession as they are
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entitled to through a Court. The person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable
force.”
deed, handed over the possession of the suit scheduled property.
on the side of the petitioner, 29 documents were marked as Ex.P1 to P29. Infact the said documents are all the receipts in respect to the payment of rent to M/s.Essam Tanning Company. Further, the demand notices issued
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by Vaniyambadi Tanners Enviro Control Systems Limited to the petitioner, were marked as Ex.P31 to Ex.P33, which would prove the fact that the petitioner is in the possession of the suit scheduled property till 27.07.2007. Bills of various dates, marked as Ex.P41 to P50, are also in support of the
petitioner that he is in possession of the suit property.
respondent contended that before the trial Court the settlement deed dated 09.04.2008 executed for handing over possession by petitioner was marked as Ex.R1 and the same will prove the respondent's possession. In the said occasion, on going through the said document, it is seen that for executing the said document the stamp papers were purchased on 07.12.2006. Thereafter only on 09.04.2008 the said stamp papers were used for executing the said disputed document. Though RW1 to RW3 gave evidence in support of the said document, the same cannot be accepted for
the reason that respondent has used the said stamp paper only on 09.04.2008, after a long gap of two years, from the date of purchase. On the other hand, in respect to the said document, in 2007 itself the
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petitioner has filed a private complaint [Ex.P39], in which he made allegation that the said stamp papers were handed over to revision petitioner, in the year of 2007 itself.
[Ex.R1], is executed as alleged by the respondent, or not.
the suit scheduled property, by the petitioner, the same was leased out to one Mr.Tanveer Ahmed. Though, the case of the respondent is as above, in order to prove the same, no lease deed alleged to be executed between the respondent and Mr.Tanveer Ahmed has been exhibited before the trial
Court. Moreover, no rent receipt has been produced on the side of the respondent, to prove that the said Mr.Tanveer Ahmed, is a tenant.
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Ex.P60. In the said order, the party to the proceedings are cited as Thenveer Ahmed and petitioner. Therefore, it is clear that on that date i.e on 26.06.2008, Tanveer Ahmed has not entered into the possession of the suit scheduled property. In fact after the alleged date on which the petitioner handed over the possession, i.e. 09.04.2008, the petitioner lodged a complaint before the police under Ex.P62. The said complaint reveals the fact that on 31.03.2008 itself, the respondent and others wrongfully entered into the possession of petitioner and stolen away the properties. Another one aspect is that, for the said occurrence, a case has
been registered, based on the order passed by the Magistrate.
to proceed with the said RCOP beyond 09.04.2008. The said circumstances has also created a doubt whether the alleged contention raised by the respondent is true or not.
written statement on 21.04.2008. If really the petitioner vacated the
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premises on 09.04.2008, definitely, it would have been reflected in the written statement filed by the respondent. But, in the written statement filed by the respondent there is no averments that on 09.04.2008 itself, the petitioner, vacated the suit scheduled property.
for deciding the issue as in whose possession the suit property is available.
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ordered to be received as additional documents, are all subsequent to the filing of the suit. Hence, the same cannot be taken into account for deciding the issue involved in the Civil Miscellaneous Appeal. Accordingly, he prayed to dismiss the Civil Revision Petition.
counsel appearing on either side, it is true that on 08.01.2014, while at the time of disposing the CMA No.6 of 2013, the learned Subordinate Judge, Vaniyambadi, disposed IA No.10 of 2013, which was filed under Order 41 Rule 27 for receiving the additional documents. Ofcourse, the said application is partly allowed and ordered to receive the original documents which was enclosed alongwith the said application. However, in the impugned order the learned Subordinate Judge, Vaniyambadi, has not stated anything about the details of documents, which were received for deciding the Civil Miscellaneous Appeal. Hence, for the said reason alone,
the order passed in Civil Miscellaneous Appeal, is liable to be set aside.
However, since the revision is filed against the interim order passed in the year 2013, if the impugned order is set aside, it will cause further inconvenience in disposing the suit, since the suit pertaining to the Civil
Miscellaneous Appeal, has been filed on 08.02.2005. The cause of action for the suit arose before 2005 and the relevancy of additional documents,
cannot be taken into account for considering the possession of the suit
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property in the year of 2013. In fact, the additional documents required to be received are all subsequent to the suit.
respondent, relied on the judgment of our Hon'ble Apex Court in http://www.judis.nic.in 15/20
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Thiruvengadam Pillai Vs. Navaneethammal and Another, reported in 2008 (4) SCC 530 , and made submission that the date found in the settlement deed cannot be taken into account for considering the averments made in the document. In this regard in the judgment relied on by the respondent our Hon'ble Apex Court has held as follows:
“14. If a person wants to create a back-dated agreement, the first hurdle he faces is the non-availability of stamp paper of such old date. Therefore tampering of the date of issue and seal affixed by the stamp vendor, as also the entries made by the stamp vendor, are quite common in a forged document. When the agreement is dated 5.1.1980, and the stamp papers used are purchased in the years 1973 and 1978, one of the possible inferences is that the plaintiff not being able to secure an anti-dated stamp paper for creating the agreement (bearing a date prior to the date of sale in favour of second defendant), made use of some old stamp papers that were available with him, to fabricate the document. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a lay man unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.”
is true only because of the reason that the stamp paper was purchased
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before the date on which the alleged execution was performed, the same cannot be accepted to hold that the alleged agreement is false one.
said document made a submission that as per the said document the possession of the suit property was handed over to him on 09.04.2008 itself. In the said circumstances Ex.P39, would go to show that the alleged stamp
paper used for the execution of the said settlement deed was handed over to the respondent. So the said circumstances create a doubt whether Ex.R1 is genuine or not.
Others Vs. Erasmo Jack De Sequeira (Dead) through LRs, reported in 2012 (5) SCC 370, our Hon'ble Apex Court has held about the due process of law , as follows:
“79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.”
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“The position is firmly established that while exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself.”
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dispose of the suit, within a specific time, is proper to settle the dispute between the either parties.
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R.PONGIAPPAN, J.,
ars
Pre-delivery order in
CRP (NPD) No.417 of 2014
06.02.2020
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M.L Altafar Rahman
K.H Ameenur Rahman
R. Pongiyappan
Justice K. Manikumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
