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Sundaravalli & Others v/s Mumtaz Begum & Others

    C.R.P(NPD).No. 1362 of 2005

    Decided On, 09 November 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Petitioners: S.R. Sundar, Advocate. For the Respondents: Died, R2, R11, S. Kothandaraman, Advocate.



Judgment Text

(Prayer: Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure against the Judgment and Order in I.A.No.42 of 2004 in A.S.No.14 of 2004 dated 18.01.2005 passed by the learned Additional District and Session Court (FTC) Tirupattur, Vellore.)

1. This Civil Revision Petition is filed challenging the order passed by the Additional District and Session Judge (FTC), Tirupattur, in I.A.No.42 of 2004 in A.S.No.14 of 2004. The said application has been filed under the provisions of Order VI Rule 17 read with Section 151 of the Code of Civil Procedure to permit the petitioners/appellants to amend the petition in I.A.No.1331 of 1988 in O.S.No.108 of 1988 on the file of the District Munsif Court, Tirupattur, filed by the late Rathna Nadar, the father of the Appellants No.2 to 9.

2. The facts in brief relevant for the disposal of the above Civil Revision Petition are as follows:

The deceased sole respondent had filed a suit in O.S.No.108 of 1988 on the file of the District Munsif Court, Tirupattur, against the said Rathna Nadar for recovery of possessio

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n of vacant site with thatched hut, measuring about 684 Sq.ft. The respondent would contend that she had purchased the suit property on 19.09.1982 and the said Rathna Nadar was a tenant under her vendor Madani Basha. After she had purchased the property, she had requested the purchaser to vacate the property but he refused to vacate the property. Not stopping with that he had filed a suit in O.S.No.1635 of 1982 for a bare injunction, the suit was decreed on 21.04.1986 stating that the said Rathna Nadar was a tenant in respect of the suit property on a monthly rental of Rs.25/- and that he has been carrying on his business of manufacturing agricultural implements in the said premises. Thereafter, by legal notice dated 26.05.1986, the respondent terminated the tenancy, since no rents were paid by the said Rathna Nadar from the date of the purchase by the respondent. The said Rathna Nadar sent a reply dated 05.12.1986 enclosing a Demand Draft for Rs.1,225/-. The respondent by her Advocate's letter dated 12.12.1986 returned the said draft. This was followed by a notice dated 21.01.1987, from the said Rathna Nadar stating that he was depositing a sum of Rs.1,050/- towards arrears of rent from November 1982. After the said sum of money, there were no other payment made by the said Rathna Nadar and he also did not vacate the premises. This constrained the respondent to file the above suit. The said Rathna Nadar after the filing of the suit filed an application under Section 9 of the Tamil Nadu City Tenants Protection Act in I.A.No.1331 of 1988 for fixing the market rate of the suit property and directing the plaintiff to execute the conveyance in his favour. The said Rathna Nadar had also filed his written statement.

3. It appears that an exparte decree was passed and the said Rathna Nadar had filed an application to setaside the exparte decree in the suit in I.A.No.1803 of 1991 and has also filed I.A.No.1802 of 1991 to restore I.A.No.1331 of 1988. Both these applications were allowed on 10.01.1997 and the suit as well as I.A.No.1331 of 1988 was restored. After the restoration and setting aside of the exparte decree, Rathna Nadar died on 30.07.1998.

4. From the records, it is seen that the Legal heirs of Rathna Nadar were brought on record in the suit by the respondent in I.A.No.716 of 1998. However, the Legal Representatives of Rathna Nadar did not take any steps to implead themselves in the Section 9 application as the Legal heirs of the deceased petitioner.

5. Ultimately, the suit was taken up and after hearing all parties the suit was decreed in favour of the respondent and an issue had been framed as to whether the Section 9 application was maintainable and the Court had returned a finding that the Legal heirs of the deceased Rathna Nadar had not been impleaded in the said I.A.No.1331 of 1988 and consequently, the application was dismissed as abated. Therefore, no orders could be passed in an application that had abated.

6. The revision petitioners had taken up this Judgment in appeal to the Additional District Sessions Judge (FTC), Tirupattur, in A.S.No.14 of 2004. In this appeal they have taken out an application in I.A.No.42 of 2004 to amend I.A.No.1331 of 1988 to implead the revision petitioners as petitioners in that application. In the affidavit filed in support of the said application the revision petitioners would contend that the respondents had filed I.A.No.716 of 1998 to bring on record the revision petitioners as defendants in the suit and this application was allowed on 18.03.2002. They would contend that they came to know that they had not been brought on record as the Legal Representatives of the deceased Rathna Nadar in I.A.No.1331 of 1988, only when they saw the Judgment in the suit in O.S.No.108 of 1988. They would further contend that their failure to get themselves impleaded as the Legal Representatives of the deceased Rathna Nadar in the suit may be condoned and they may be permitted to amend the petition in I.A.No.1331 of 1988.

7. The sole respondent had filed a counter inter-alia contending that her application to bring on record the Legal heirs of the deceased Rathna Nadar was allowed on 18.03.2002 and thereafter was being adjourned periodically and ultimately, the suit was decreed by District Munsif, Tirupattur on 24.03.2004. She would further contend that the application now filed is not maintainable since, I.A.No.1331 of 1988 has abated long back and the said petition is not pending on the file of the District Munsif, Tirupattur. The learned Additional District and Session Judge (FTC), Tirupattur, hearing both parties dismissed the said petition. Challenging the said order the above Civil Revision Petition has been filed.

8. Heard, Mr.S.R.Sundar, learned counsel for the petitioners. He would argue that the learned District Munsif, Tirupattur, has committed a grave error in dismissing the I.A.No.1331 of 1988 as abated totally overlooking the fact that the order impleading the revision petitioners as respondents in the suit O.S.No.108 of 1988 would automatically enure to all the interlocutory applications and therefore there was no necessity to file an independent application for bringing on record the Legal Representatives in the interlocutory application. He would further argue that after the restoration of I.A.No.1331 of 1988 by order in I.A.1802 of 1991 on 10.01.1997 no further orders were passed in impugned application and that was the reason why the revision petitioners were lulled into believing that the Court was also considering I.A.No.1331 of 1988. It is also his argument that the learned District Munsif had framed a question of law as to whether the defendants are entitled to protection under Section 9 of the Tamil Nadu City Tenants Protection Act and all these put together led the revision petitioners into believing that the Court was also considering the application filed by them under Section 9 of the Tamil Nadu City Tenants Protection Act. It is only when the Judgment was pronounced that the revision petitioners came to realise that the application in I.A.No.1331 of 1988 was dismissed as abated. The learned counsel would rely on the following Judgments in support of his contentions:

i) Mithailal Dalsangar Singh and Others Vs. Annabai Devram Kini and others reported in AIR 2003 Supreme Court 4244(1).

ii) Rangubai Kom Shankar Jagtap Vs. Sunderabai Bharatar Sakharam Jedhe and others reported in (1965) 3 SCR 211.

iii) Kuttappa Vs. Katrikolli Somaiah reported in I.L.R 1991 KAR 3985 iv)N.Jayaram reddy and another Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool reported in (1979) 3 SCC 578.

v) Mithailal Dalsangar Singh and others Vs. Annabai Devram Kini and others reported in (2003) 10 SCC 691.

vi) Banwari Lal (Dead) by legal Representative and another vs. Balbir Singh reported in (2016) 1 SCC 607.

9. All these Judgments have been cited in support of the arguments that where the Legal Representatives were brought on record at some stage in the proceedings in the main suit then this order would automatically enure to all the interlocutory applications.

10. Mr.S.Kothandaraman, learned counsel appearing on behalf of the respondents would submit that the very application is not maintainable since the application which they seek to amend; namely; I.A.No.1331 of 1988 has abated long back and therefore the application seeking to amend that application is not at all maintainable. The learned counsel would further argue that the revision petitioners were very much aware about the fact that the Section 9 application had been filed by deceased defendant and despite this knowledge, they have not cared to bring themselves on record. He would further argue that the Section 9 application is the independent of the suit and therefore, the argument that once the Legal Representatives have brought on record in the suit, it would automatically enure to the interlocutory application is without any basis. The petitioner in the Section 9 petition has to independently take steps to bring on record the Legal representatives.

11. Heard the learned counsels and perused the records as well as the citations. The application in question is one seeking to amend a petition (I.A.No.1331 of 1988) by including the names of the revision petitioners as petitioners 2 to 9 and this petition has abated long back.

12. From a reading of the written statement filed by the third defendant it is evident that the revision petitioners were very much aware about the application filed under Section 9 of the Tamil Nadu City Tenants Protection Act by their father/deceased defendant. Despite such knowledge they have not taken steps to bring themselves on record, though, in the suit the plaintiff had taken such steps. Be that as it may, the very prayer that has been made in the application cannot be granted since I.A.No1331 of 1988 had abated as early as on 30.07.1998 much before the suit was decreed.

13. The Judgments relied upon by the revision petitioner would not advance his case since those Judgments relate to applications being moved under the provisions of Order XXII. The application that has now been filed by the revision petitioner is one under Order VI Rule 17 of the Code of Civil Procedure for amending I.A.No.1331 of 1988 which in the opinion of this Court cannot be granted.

14. The learned District Sessions Judge, Tirupattur has rightly held that the Section 9 application is independent of the suit and the revision petitioners ought to have taken steps to implead themselves therein. Now after the decree has been passed and I.A.No.1331 of 1988 has abated, the relief now sought for cannot be granted.

I find no infirmity in the order passed by the learned Additional District and Session Court (FTC) Tirupattur, Vellore. Therefore, this Civil Revision Petition is dismissed. There shall be no order as to costs.
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