This Civil Revision Petition is directed against the fair and decretal order dated 3.7.1996 made in I.A No. 9764 of 1996 in O.S No. 1415 of 1993 by the I Assistant Judge, City Civil Court, Madras thereby dismissing an application filed by the revision petitioner herein under Order 7 Rule 11 of the Code of Civil Procedure, 1908 with costs.
2. The Original Suit in which the above application came to be filed by the defendant to the suit is of the year 1993 and this application has come to be filed by the defendant three years after the institution of the suit and when the suit was on trial. The Original Suit has been filed by the respondent herein for declaration to the effect that the plaintiff has perfected her title by way of adverse possession in respect of the suit properties and further to declare that the judgment and decree passed in R.C.O.P No. 4229 of 1982 is null and void.
3. The averments contained in the affidavit filed in support of the petition are that the plaintiff is only a sub-tenant under one N. Ganesan, who was the tenant in respect of a hut on the Southern border in Premises No. 7-G, No. 20, Brindavanam IV Street, Chetpet, Madras and the said N. Ganesan defaulted in payment of the rents and also sublet the premises to various persons including the plaintiff; that in the litigations among the family members earlier, an Advocate Receiver was appointed and the petitioner's share was handed over to him in the year 1980, based on which he filed R.C.O.P No. 3863 of 1980 against one Appavoo Swamidoss and another R.C.O.P No. 4229 of 1982 against the respondent herein both for eviction under Sections 10 (2) (1) and 10 (2) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act and the Rent Controller by his order dated 22.4.1988 held that the said Ganesan had unauthorisedly sublet the premises to the plaintiff and others besides committing wilful default in payment of the rents and ordered eviction of the said Ganesan; that against the said eviction order, the respondent/plaintiff filed R.C.A No. 314 of 1988 and the Rent Control Appellate Authority by his judgment dated 6.2.1992 confirmed the order of the Rent Controller dismissing the said appeal and against the said order, the plaintiff has filed C.R.P No. 1136 of 1992 before the High Court, Madras on which an order of stay of eviction has also been passed by this Court in C.M.P No. 5987 of 1992, dated 15.7.1992 and the respondent/plaintiff, as per the further orders of the High Court, continuing to pay a sum of Rs. 100/- per month as rent till date.
4. The further contentions of the affidavit are that when the tenancy case is pending before the High Court, the correctness of the order passed in R.C.O.P cannot be canvassed; that there is no cause of action for the plaintiff to file the suit for declaration of title by adverse possession and the plaint has to be rejected at this score itself. It is further contended that the plaintiff has not chosen to examine herself and her daughter is sought to be examined as P.W.I, in which event the defence of the petitioner will be seriously prejudiced. With these averments, the petitioner would pray to reject the plaint.
5. In the counter filed by the respondent/plaintiff, she would urge that the petition is not maintainable, which has been filed after commencement of the trial in the suit; that the reasons assigned are also untenable and unjust; that she occupied the vacant site in the year 1962 in Survey No. 392/11 and 392/42, Egmore Village, Chetput and constructed a superstructure spending from out of her pocket but the land, in fact, belongs to the Madras Corporation; that she is paying the property tax also and got the property electrified; that the petitioner, who is living in the same locality, did not raise any objection at the time that she put up the superstructure; that she has let out the other structures adjoining to the one occupied by her; that the R.C.O.P has been filed only pertaining to the superstructure; that she is in continuous possession and enjoyment of the property for over 34 years without any hindrance or interruption; that the place has been declared 'slum area by the Housing Department in GO. Ms. No. 378, dated 2.11.1972; that the petitioner has not obtained permission under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 prior to filing the R.C.O.P; that the land belongs to the Corporation of Madras and the superstructure was constructed by her; that the Rent Controller cannot decide the title over the property and it is only the Civil Court, which is having the jurisdiction to decide such issues and hence filing of the suit for declaration and permanent injunction is proper; that the fair and decretal order passed in R.C.O.P No. 4229 of 1982, dated 22.4.1988 is null and void; that having been in continuous and unobstructed possession of the property over thirty years, she has perfected her title by way of adverse possession; that since she is aged, she authorised her daughter to adduce evidence on her behalf and there is no irregularity or impropriety involved in it; that it is false to allege that the petitioner is the owner of the land and the superstructure; that the above application is not maintainable, which could only be filed prior to framing of the issues in the suit and hence would pray to dismiss the petition.
6. The lower Court, hearing both the parties and having its own discussion, would ultimately dismiss the application and aggrieved against such dismissal, the petitioner has come forward to file the above civil revision petition before this Court on certain grounds as alleged in the memorandum of grounds of civil revision.
7. During arguments, the learned counsel for the revision petitioner would contend that R.C.O.P No. 4429 of 1982 had been filed by the revision petitioner herein for eviction of the main tenant; that the respondent is only a sub-tenant and hence the said R.C.O.P was allowed, that the appeal filed by the respondent herein got dismissed and the Civil Revision Petition filed by the respondent herein C.R.P No. 1136 of 1992 has also been dismissed; that the respondent herein filed the suit in OS. No. 1415 of 1993 for declaring that she has perfected her title by adverse possession and further declaring that she is the owner of the superstructure of the house bearing Door No. 20. Brindavanam 4th Street, Chetput, Madras — 31 and for permanent injunction restraining the petitioner herein from interference with her peaceful possession and enjoyment of the suit property and further declaring that the judgment and decree passed in R.C.O.P No. 4429 of 1982, dated 22.4.1988 is null and void;.
8. The learned counsel for the petitioner would further contend that during pendency of the C.R.P No. 1136 of 1992 before the High Court, Madras, the suit and the above Interlocutory Application have been filed; that the C.R.P No. 1136 of 1992 is disposed of as on 13.6.1997 itself and the Rent Control Court having taken a finality of decision, now the respondent herein cannot agitate that she is entitled to the suit properties by way of adverse possession and that she cannot be allowed to prosecute the suit at all; that under Section 26 of the Tamil Nadu Buildings (Lease and Rent Control) Act, any order of eviction passed shall be binding on all sub-tenants, who were made parties to the application and any person, who has become a sub-tenant after the date of application for eviction shall also be bound by the order of eviction and to be evicted, as if he was a parts to the proceeding. With the above arguments, the learned counsel would conclude saying that in the circumstances of the case, the Civil Revision Petition has to be allowed setting aside the fair and decretal order of the lower Court.
9. In reply, the learned counsel appearing for the respondent would contend that the respondent suffered an order of eviction in the rent control proceedings; that the Rent Controller cannot decide the title; that the three questions that are to be answered are (i) whether the respondent is not entitled to file a suit of the nature that she has filed in the lower Court, (ii) whether there is no cause of action for the suit and (iii) whether it is proper to entertain an application under Order 7 Rule 11 of the Code of Civil Procedure, when P.W.I was in the box, having completed her chief-examination and when the above case got posted for her cross-examination?
10. The learned counsel for the respondent would further argue that it is not within the ambit of the lower Court to entertain an application of that sort which ought to have been filed prior to filing of the written statement; that whether the respondent is entitled to get the declaration or not is to be decided in the suit and such questions cannot be decided in the Rent Control Proceedings before the Rent Controller; that it is shown in the suit itself that there is a cause of action for the suit to be entertained; that the area is declared 'slum area under Section 3 of the Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971 and any person, who occupied the land is declared the owner and only getting permission from the authorities concerned under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 an eviction petition could be filed and since this provision is a condition precedent, the R.C.O.P proceeding instituted by the petitioner is null and void and hence a declaration is sought for to the said effect also in the suit and that even an occupier is entitled to the benefit of the said Act, wherein such a permission is necessarily to be obtained from the authorities concerned. At this juncture, the learned counsel for the respondent would cite a judgment of the Apex Court delivered in Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others reported in A.I.R 1966 S.C 153 wherein it is held:
“The High Court cannot while exercising its jurisdiction under S. 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the Subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. Points of law may arise which are related to questions of jurisdiction. A plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these pleas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of S. 115 of the Code. But an erroneous decision on a question of law having no relation to questions of jurisdiction will not be corrected by the High Court under S. 115.”
Citing the above proposition of law, the learned Counsel would exhort that the present Civil Revision Petition has been filed only to prevent the respondent from giving evidence in the suit; that whether the respondent is a tenant or occupier or entitled to adverse possession, can be settled only in a suit and would cite Section 9 of the Code of Civil Procedure, 1908 stating that according to this Section, ‘the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred and would say that the lower Court has jurisdiction to try the suit filed by the respondent especially in view of the fact that there is no specific bar for such suits to be tried by the lower Court. With the above argument, the learned counsel would pray to dismiss the above Civil Revision Petition with costs.
11. It is an application filed under Order 7 Rule 11 of the Code of Civil Procedure, 1908 praying thereby to reject the plaint filed by the respondent herein on ground that she is only a sub-tenant and in such capacity also her claim got rejected by the Rent Control. Forum upto the High Court and without any cause of action, the suit has been filed.
12. A glance at Order 7 Rule 11 of the Code of Civil Procedure, 1908 would disclose that under four circumstances, a plaint shall be rejected. They are extracted here under:
“Rejection of plaint — The plaint shall be rejected in the following cases:
a)Where it does not disclose a cause of action:
b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:
c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
d) where the suit appears from the statement in the plaint to be barred by any
law.”
From the above requirements of the Section, for the rejection of the plaint, under Rule 11 (a), ‘where it does not disclose a cause of action’ is one of the grounds for rejection of the plaint and on this ground only, the above Interlocutory Application has been filed by the defendant in the above matter praying to reject the plaint in O.S No. 1415 of 1993.
13. On the part of the respondent, it would be argued that there is a cause of action, which is disclosed on the face of the plaint and since she is in continuous and unobstructed possession of the property in question for over the statutory period, she has perfected her title by way of adverse possession and it is only the revision petitioner who lacks the right to file the eviction proceedings before the Rent Controller as he had done since the necessary permission under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act. 1971.
14. As it has been discussed and decided by the lower Court, these issues, which pertain to title, unless the suit is heard, cannot be decided based on a decision that is said to have been arrived at on the Rent Control application filed by the petitioner and unless the parties are heard fully in the suit on trial, no decision could be arrived at. Moreover, the stand taken by the petitioner is one that should have been taken at the earliest possible opportunity afforded for him i.e prior to filing his written statement or atleast prior to drawing of the issues as to be treated a preliminary issue. If really the revision petitioner is aggrieved of the filing of the suit, immediately on receipt of summons, he should have filed the petition of this sort praying the trial Court to frame preliminary issues on such legalities and settle the same prior to settling down the other issues involved in the entire suit. But it is a case in which not only the petitioner has filed his written statement but also issues have been framed based on the pleadings of parties and the trial proceeding also has commenced wherein P.W.I has already deposed her evidence in chief and when the above case got posted for her cross-examination, having been asleep for over three years, the petitioner has come forward to file the above application in a highly belated stage. Thus, in consideration of the time and even on the substance of the petition, the lower Court has rightly arrived at the conclusion to dismiss the application filed by the petitioner, in which this revisional Court does not see any valid or tangible reason to interfere with since the order of the lower Court passed in the Interlocutory Application, which is under challenge now, is well-considered and well-merited one. No patent error or perversity in approach is seen in passing of the fair and decretal order by the lower Court and hence interference that is sought to be made by this Court is absolutely unwarranted.
In result, the above Civil Revision Petition is not on merit and the same fails and dismissed. The fair and decretal order dated 3.7.1996 made in LA. No. 9764 of 1996 in O.S No. 1415 of 1993 by the I Assistant Judge, City Civil Court, Madras is hereby confirmed.
However, in the circumstances of the case, there shall be no order as to costs.
Consequently, C.M.P No. 8795 of 1996 is also dismissed.
GS/VCS
Comments