Madras High Court
V.Hithayathulla vs N.Ganasekaran (Deceased) on 10 January, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
CRP.Nos.646, 647 & 649 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 10.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
CRP.Nos.646, 647 and 649 of 2024
and CMP.Nos.27009, 3236, 3246, 3250, 26781 and 26782 of 2024
V.Hithayathulla ... Petitioner in all CRPs
Versus
N.Ganasekaran (Deceased)
1.N.Seit
2.G.Mulliammal
3.G.Kumar
4.N.G.Sugumar
5.G.Sivakumar
6.G.Jayakumar
7.G.Murugan
8.G.Sathish Kumar
9.G.Vinothkumar
10.G.Karthi ... Respondents in CRP.No.646 of 2024
N.Seit ... Respondent in CRP.Nos.647 & 649 of 2024
Common Prayer: Petitions filed under Section 25 of Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960, to set aside the judgment and decree dated
21.09.2023 in RCA.Nos.11,9 & 10 of 2001 on the file of Chief Judicial
Magistrate, Thiruvarur/Sub Court, Thiuvarur confirming the judgment and decree
dated 16.07.2001 in RCOP.Nos.9,8 & 21 of 1997 on the file of Rent
Controller/District Munsif, Tiruvarur pending disposal of the above revisions.
Page 1 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
For petitioner : Mr.B.Ramamoorthy
For Respondents : Mr.A.Muthukumar for R1 in CRP.No.646 of 2024
Mr.A.Muthukumar in CRP.No.647 & 649 of 2024
COMMON ORDER
These revisions have been filed challenging the orders of eviction passed by
the Courts below as against the revision petitioner.
2. RCOP.No.8 of 1997 has been filed by the respondent/landlord against the
revision petitioner for eviction on the ground of wilful default, RCOP.No.21 of
1997 has been filed by the respondent/landlord for eviction on the ground of
demolition and reconstruction and RCOP.No.9 of 1997 has been filed by the
revision petitioner/tenant to deposit the rent into the Court.
3. Since the issue relates to the very same premises in the RCOPs, these
revisions are heard together and disposed of by way of this common order. The
petitioner and the respondent are common in all the revisions. The petitioner is the
tenant and the respondent is the landlord. For the sake of convenience, the parties
are referred to as tenant and the landlord.
Page 2 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
4. Brief background of the cases are as follows:
4.a.The case of landlord is that the shop bearing Nos.B11 to B13 in
Thailamai Theatre Complex was let out to the tenant on a oral tenancy on a
monthly rent of Rs.1000/-. During the year 1995, the rent was enhanced to
Rs.4500/-. The respondent paid a sum of Rs.13,5000/- through his employee
Balasubramaniam towards monthly rent for the months of April, May and June
and receipt was also issued by the landlord. However, from the month of July, the
respondent sent only a sum of Rs.2000/- through cheque, the landlord returned the
cheque with a letter. Thereafter, from July 1995 till March 1997, the tenant has not
paid the rent and the tenant was due for Rs.94500/-. Therefore, RCOP.No.8 of
1997 was filed on the ground of wilful default.
4.b.RCOP.No.21 of 1997 was filed by the landlord for demolition and
reconstruction on the ground that while extending the road by the Municipality
major portion occupied by the tenant is also demolished by the Municipality.
Therefore, the petitioner intends to demolish the shop. The tenant took a stand that
the property originally belonged to the landlord, his father Natesan Chettiar and
his brother Gnanasekaran, he came as a tenant in the year 1981, at that time,
Page 3 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
Rs.350/- per month was the rent and he had paid an advance of Rs.20,000/- as
advance. Later, the rent was periodically increased and in the year 1997, the rent
collected was Rs.1000/-, receipts were issued in the name of Natesan Chettiar and
Sons. Further, advance of Rs.1 lakh is also paid by the tenant in the year 1990. Till
August 1995, the tenant has paid through cheque, as the rent have been refused by
the landlord, the respondent has deposited the same in a separate account, besides,
he also filed an application in RCOP.No.9 of 1997. According to the tenant, he has
not committed any wilful default. It is further contention that during the
encroachment drive by the Municipality, small portion of the property was
damaged, the same has been set right and the building is in good condition.
4.c. RCOP.No.9 of 1997 was filed by the tenant to deposit the rent in the
Court. According to the tenant, originally building is let out by the respondent’s
landlord, respondent and his brother. After the death of the respondent’s father, the
tenant is not aware of the partition effected in their family and he is also not aware
of the fact that the petitioner is entitled to receive the rent. The petitioner’s brother
is also died and his legal heirs are also entitled to receive the rent. Therefore,
since, there was a doubt as to who is entitled to receive the rent, he has deposited
Page 4 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
the rent in a separate account. He also sent a legal notice dated 15.04.1997 calling
upon the landlord to name a bank for depositing the rent, however, there was no
reply. That application has been disputed by the landlord. The Trial Court by
orders dated 16.07.2001 allowed the petition on the ground of wilful default as
well as demolition and reconstruction and dismissed the application filed by the
tenant to deposit the rent. The Appellate Court also confirmed the said orders.
Challenging the same, these revisions are filed.
5. The main contention of the learned counsel for the revision
petitioner/tenant that appellate Court failed to take note of the subsequent
development, wherein, subject premises was sold by the legal heirs of
Gnanasekaran/brother of the landlord. In fact, suit filed by the revision petitioner
in O.S.No.229 of 2000 for specific performance is already decreed in his favour.
Pursuant to the decree, the sale deed is also registered. At this stage, the landlord
cannot seek for eviction of the tenant, since, tenant has became an owner of the
premises. Hence, seeks for allowing these revisions. In support of his submissions
he placed reliance on the following judgments:
i) Abdul Rahim vs. Jothi and others reported in 2016 (3) CTC 671
Page 5 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
ii) Chellakannu vs. Kolanji reported in 2005 (4) CTC 197
6. Whereas, learned counsel for the respondent landlord would submit that
the so-called unregistered agreement has been created only for the purpose of
thwarting the execution proceedings. Though agreement dated 13.01.1998 said to
have been executed by legal heirs of one of brother of the landlord, even before
the RCOP proceedings, upto 2001, this agreement has not seen the light of the
day, only for the first time, in the Appellate Court, the revision petitioner sought to
file additional documents which has been rejected by the Appellate Court and later
confirmed by this Court in CRP.Nos.754 to 757 of 2006 by order dated
24.08.2003 holding that the tenant has never pleaded the above facts even before
filing the RCAs in 2001 and he has filed application for additional documents
after five years which clearly shows that the revision petitioner filed the
applications only in order to protract the rent control appeals. While dismissing
the revisions, this Court directed the first appellate court to dispose of the appeal
within a period of 15 days from the date of receipt of a copy of that order.
Page 6 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
7. In any event, according to the learned counsel for the respondent that the
judgment and decree of the Trial Court relied upon by tenant is a exparte decree
which contains no reasons whatsoever, same can be set aside in a collateral
proceedings. Having admitted the landlord and tenancy relationship, now, he
cannot take a different stand. Hence, opposed the revisions. In support of his
submissions, he placed reliance on the following judgments:
i) Asma Lateef and another vs. Shabbir Ahmad and others reported in (2024) 1
MLJ 563 (SC)
ii)J.Savithri and another vs. Selvaraj and others reported in (2023) 6 MLJ 70
8. Heard both sides and perused the materials placed on record.
9. In light of the above submissions, now the following points arises for
consideration:
i) Is it permissible for the tenant to deny the title of the landlord when having
admitted the relationship?
ii) Whether exparte decree obtained during the pendency of the RCOP
proceedings without any reasons can be interfered in a collateral proceedings?
Page 7 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
iii) Whether the orders passed by the Rent Controller as well as the Appellate
Court is based on merits?
Point No.i
10. The contention of the revision petitioner that he has entered into an
unregistered agreement for sale with the legal heirs of one Gnanasekaran/brother
of the landlord on 13.01.1998. It is relevant to note that all along in the rent
control proceedings from the year 1997 and when examined in RCOP.No.8 of
1997 on 13.02.2001, even in his evidence, he has not disclosed about the so-called
unregistered agreement dated 13.01.1998 and the suit filed by him for a specific
performance in O.S.No.229 of 2000 and exparte decree obtained thereon. Though
he claims to have obtained an exparte decree on 25.09.2000, in his oral evidence,
on 13.02.2001, he has not whispered anything about the decree and judgment.
Whereas he admitted in his evidence that he has never received any objections
from the legal heirs of Gnanasekaran in paying the rent to the landlord, i.e.,
respondent in the revision petitions. Even after the disposal of the rent control
proceedings and thereafter the appeal proceedings in RCA.Nos.9 to 11 of 2001, he
has not disclosed anything about the subsequent events. Whereas, for the first
Page 8 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
time, the tenant filed application that too after five years in the year 2006 seeking
to file subsequent documents executed in his favour. Such application was
dismissed by the appellate authority which has been confirmed by this Court in
CRP.Nos.754 to 757 of 2006.
11. In CRP.Nos.754 to 757 of 2006, this Court, by Order dated 24.08.2023
has clearly recorded the finding that the tenant has never pleaded such facts before
the rent controller. Even at the time of filing the rent control appeals in the year
2001, the tenant did not file applications immediately and filed applications only
in the year 2006(un-numbered) after 5 years which clearly shows that the tenant
filed those applications in order to protract the rent control appeals. Be that as it
may, the very conduct of the tenant remaining silent for more than 5 years and
disclosing the above facts to the appellate authority after five years about the so-
called unregistered agreement and exparte decree itself indicate that those
documents are only sham and nominal only to protract the proceedings.
Page 9 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
Point No.ii
12. It is relevant to note that the suit for specific performance was filed on
04.09.2000. The very next hearing, the suit was decreed exparte, i.e., on
25.09.2000 within a period of 20 days. The Exparte decree reads as follows:-
Defendant set exparte. The plaintiff examined as P.W.1. Exs.A1 to A3
marked. Claim proved. Suit is decreed as prayed for. Time for
execution – two months.
13. The above judgment makes it clear that it is not a judgment in the eye of
law, particularly, when the suit for specific performance is filed, the Trial Court
ought to have seen the basic requirements, genuineness of agreement, readiness
and willingness, further there must be reasons and decisions thereon. When the
unreasoned judgment is contrary to the provisions under Order XX of CPC, such
judgment is not a judgment in the eye of law. When the judgment of the Court
does not comply with the requirements under Order XX Rule 4 and 5 of CPC,
even if the defendant remains exparte, it is the duty of the Court to give reasons
for its judgment. The Court has duty to analyse the pleadings and evidence and
reasons must be given in the judgment.
Page 10 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
14. In K.P.Natarajan and another vs. Muthalamman reported in 2021 15
SCC 817, the Hon’ble Apex Court has held that if in collateral proceedings, it
comes to the notice of the High Court that the judgment is contrary to law, the
High Court under Article 227 of the Constitution of India is empowered to set
aside such a decree. Similar, view is also taken by this Court in
CRP(PD).Nos.3689, 3707 & 3709 of 2019, vide order dated 22.09.2023, wherein,
this Court has held that High Court sitting under Article 227 of the Constitution of
India can take into consideration such a judgment, even in a collateral proceedings
and set aside the same. The Full Bench of the Hon’ble Supreme Court in the case
of Asma Lateef and another vs. Shabbir Ahmad and others reported in (2024) 1
MLJ 563 (SC) has held as follows:
42. There is one other reason which we wish to assign as a
ground for upholding the order of the executing court and the High
Court.
43. Reference may once again be made to Balram Taneja
[Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] where the law has
been reiterated succinctly, as follows : (SCC pp. 414-15, paras 41-
46)
“41. There is yet another infirmity in the case which relates to the
“judgment” passed by the Single Judge and upheld by the Division
Bench.
42. “Judgment” as defined in Section 2(9) of the Code of Civil
Procedure means the statement given by the Judge of the grounds for
a decree or order. What a judgment should contain is indicated in
Order 20 Rule 4(2) which says that a judgment
Page 11 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
“shall contain a concise statement of the case, the points for
determination, the decision thereon, and the reasons for such
decision”.
It should be a self-contained document from which it should appear
as to what were the facts of the case and what was the controversy
which was tried to be settled by the court and in what manner. The
process of reasoning by which the court came to the ultimate
conclusion and decreed the suit should be reflected clearly in the
judgment.
43.***
44. ***
45. The learned counsel for Respondent 1 contended that the
provisions of Order 20 Rule 4(2) would apply only to contested cases
as it is only in those cases that “the points for determination” as
mentioned in this rule will have to be indicated, and not in a case in
which the written statement has not been filed by the defendants and
the facts set out in the plaint are deemed to have been admitted. We
do not agree.Whether it is a case which is contested by the
defendants by filing a written statement, or a case which proceeds ex
parte and is ultimately decided as an ex parte case, or is a case in
which the written statement is not filed and the case is decided under
Order 8 Rule 10, the court has to write a judgment which must be in
conformity with the provisions of the Code or at least set out the
reasoning by which the controversy is resolved.
46. … Even if the definition were not contained in Section 2(9) or the
contents thereof were not indicated in Order 20 Rule 4(2)CPC, the
judgment would still mean the process of reasoning by which a Judge
decides a case in favour of one party and against the other. In
judicial proceedings, there cannot be arbitrary orders. A Judge
cannot merely say “suit decreed” or “suit dismissed”. The whole
process of reasoning has to be set out for deciding the case one way
or the other. This infirmity in the present judgment is glaring and for
that reason also the judgment cannot be sustained.”
(emphasis supplied)
We concur with the observation that a judgment, as envisaged
in Section 2(9)CPC, should contain the process of reasoning by
Page 12 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024
which the court arrived at its conclusion to resolve the controversy
and consequently to decree the suit.
47. It is one of the cardinal principles of the justice delivery system
that any verdict of a competent judicial forum in the form of a
judgment/order, that determines the rights and liabilities of the
parties to the proceedings, must inform the parties what is the
outcome and why one party has succeeded and not the other — the
“why” constituting the reasons and “what” the conclusion. Apart
from anything else, insistence of the requirement for the reason(s) to
support the conclusion guarantees application of mind by the
adjudicator to the materials before it as well as provides an avenue
to the unsuccessful party to test the reasons before a higher court.
50.The decree signed by the trial court on 11-11-1991 is not on
record. Nevertheless, at the cost of repetition, we record that
examination of the order dated 5-8-1991 does not reveal any
adjudication leading to determination of the rights of the parties in
relation to any of the matters in controversy in the suit and,
therefore, the decree since drawn up is not a formal expression of an
adjudication/determination since there has been no
adjudication/determination so as to conform to the requirements of a
decree within the meaning of Section 2(2). In this regard, we express
our concurrence with both the High Court and the executing court
that there is no decree at all in the eye of the law.
51.We, therefore, hold that a decree that follows a judgment or an
order (of the present nature) would be inexecutable in the eye of the
law and execution thereof, if sought for, would be open to objection
in an application under Section 47CPC. ”
15. Therefore, having obtained exparte decree within a period of 20 days of
filing a suit and all along remaining silent till 2006 and for the first time filing an
Page 13 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024application to adduce evidence before the appellate Court, the conduct of the party
clearly indicate that the so-called unregistered agreement is only a creation for the
purpose of stalling the execution proceedings. Considering the well settled
position of law, exparte decree obtained in the case is non est and cannot be given
any importance.
Point No.iii
16. As far as the merits is concerned, though it is the stand of the tenant that
he was paying rent upto 1995, on facts, the Courts below had clearly found that
from the year 1990 rents have been paid only to the landlord and having paid the
rent of Rs.13500/- for three months, thereafter, he has conveniently sent a cheque
of Rs.2000/- which was returned and thereafter the amount was not paid. As there
was no bonafide dispute between the brothers as to who has to receive the rent,
rent has not been properly deposited as per law. That apart, the Courts below also
found that the building is dilapidated and portion of the building is already
damaged during road expansion. In fact, tenant has also admitted in his evidence
that portion has been damaged, further, it is the only contention that portion has
been repired and he is in occupation. The condition of the building is also clearly
Page 14 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024spoken and established. Therefore, when the person is adopting dilatory tactics in
withholding rents, he cannot raise dispute as if there was a bonafide dispute
between the brothers as to who has to receive the rent. In fact, it is a categorical
admission before the Courts below that none objected for payment of rents and the
rents have been paid to the landlord from the year 1990. The Rent Controller
factually recorded that tenant has not disclosed in his evidence that there is an
objection raised by the legal heirs of Gnanasekaran. Further, factual finding is
recorded to the effect from October 1995, tenant has failed to pay amount and his
contention that he has paid advance is also rejected on appreciation of evidence.
17. As far as the demolition aspect is concerned, the rent controller factually
recorded the fact that the Commissioner has noted down the physical feature that
portion of the shops have been demolished about one feet, premises in the western
side about4 feet, eastern side about one feet have been demolished. Commissioner
also examined before the Rent Controller. The landlord has also obtained a plan
for construction and he also given undertaking to demolish the building as
required under law. Taking note of the fact that the landlord proved his case and
requires the building bonafidely, the Trial Court allowed the application. While
Page 15 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024dismissing the application filed by the tenant to deposit of rent, the learned Rent
Controller has recorded the finding that the application has been filed only to
protract the proceedings. Further, in his evidence, in RCOP.No.8 of 1997, it is
clearly admitted that there was no objection raised by other legal heirs and the
revision petitioner was continuously paying the rent from 1990 to the landlord.
Therefore, as there was no dispute arose in receiving the rent, as a matter of right,
the petitioner cannot file an application to deposit before the Court. That
application has been filed only to thwart the proceedings. Therefore, this Court is
of the view that both the Courts below have rightly held that tenant is liable to be
evicted and the application filed for deposit of rent is not bonafide one.
18. All along the tenant had taken a stand to the effect that the landlord and
his brother have equal shares and he is not aware of any partition between them,
even such stand remains to be true, he cannot claim title for the entire property
based on the such exparte decree.
19. On the other hand, as per the registered famly arrangement dated
22.11.1999 entered between the landlord and the legal heirs of his brother, the
Page 16 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024premises is already alloted to the landlord. This document is also filed as Ex.P3 in
RCOP.No.21 of 1995. Despite the production of such document in the year 1999,
tenant remaining silent about the unregistered agreement and exparte decree till
2006 indicate that it is nothing but a sham and nominal agreement and the exparte
decree is not valid in the eye of law. Therefore, now the tenant cannot resist the
order of eviction.
20. Accordingly, these revisions stand dismissed. No costs. Consequently,
connected miscellaneous petitions stand closed.
10.01.2025
Index : Yes / No
Speaking/non speaking order
dhkTo,
1. The Chief Judicial Magistrate/Sub-Judge
Tiruvarur
2.The Rent Controller/District Munsif
TiruvarurPage 17 / 19
https://www.mhc.tn.gov.in/judis
CRP.Nos.646, 647 & 649 of 2024N. SATHISH KUMAR, J.
dhk
CRP.Nos.646, 647 and 649 of 2024
and CMP.Nos.27009, 3236, 3246, 3250, 26781 and 26782 of 2024Page 18 / 19
https://www.mhc.tn.gov.in/judis