The Civil Revision petitioner/petitioner/aggrieved party has filed this civil revision petition as against the order dated 05.06.2008 in M.P.No.115/08 in M.P.620 and 621 of 2007 in Execution Petition 426/07 in RCOP.No.2134/02 passed by the learned XII Judge Court of Small Causes, Madras in dismissing the application filed under Rule 11 of Tamil Nadu Buildings(Lease & Rent Control) Act to issue subpoena to the bailiffs of Central Nazir Section for the purpose of cross examination.
2.The learned Rent Controller while dismissing the miscellaneous petition 115/08 has inter alia 'opined that the petitioner is the daughter in law of the second respondent/judgment debtor and in the rent control proceedings she has adduced evidence on behalf of the second respondent and though the eviction order has been passed and also that Rent Control Appeal has been filed and resulted in dismissal and moreover nowhere in the earlier proceedings the petitioner has taken a plea that there were two portions under occupation of petitioner herein and the second respondent separately and no RCOP has been filed against her for eviction and only for the first time the delivery has been regarded. The petitioner has come forward with a plea that she is in occupation of a portion of the first floor which is not covered under RCOP proceedings and EP is not terminated and it is seen from the evidence of PW1 & 2 that the superstructure in the petition premises has now been partly demolished and no purpose would be served in summoning the bailiffs and the petition lacks bonafides and the petitioner had failed to establish the real necessity to issue subpoena to the witnesses' and resultantly dismissed the petition without costs.
3.In the grounds of revision filed by the revision petitioner, it is averred that the learned Rent Controller has failed to notice that the decree and the Execution Petition are not against the petitioner and also that the bailiffs have exceeded their limits and this can be established only by means of examining them and that the petitioner has adduced evidence on behalf of the second respondent in RCOP 2134/02 on the file of learned XII Judge Court of Small Causes, Madras and moreover the description of the property mentioned in EP 426/07 has not been clearly described and therefore the bailiffs should have clarified the same in regard to the description of property before executing the warrant and these faculative aspects have not been taken note of by the learned Rent Controller which has resulted in miscarriage of justice and therefore, prays for allowing the civil revision petition.
4.The learned counsel appearing for the respondent submits that the mother in law of the petitioner Arul Mary/ tenant has filed CRP(NPD)No.1692 of 2007 before this court and this court on 09.07.2007 while passing orders in para 9 has observed as follows:
"So far as the other revision petitioner, namely Arulmary, was concerned, there was a suit in O.S.No.1420 of 1999, wherein the plaintiff, the daughter-in-law of the revision petitioner has clearly deposed that she was the tenant in respect of the property for nearly about 40 years. Now, what we could see is that the revision petitioner is the mother-in-law of the plaintiff therein. She has well admitted that the suit was filed by her daughter-in-law in the capacity as tenant. It is pertinent to point out that the revision petitioner cannot have any independent defence, except what was taken by the daughter-in-law. Under these circumstances, the contention that they have been in possession as permissive occupants has been rightly declined by both the authorities below."
5.As far as the present case is concerned the petitioner herein is the daughter in law of the revision petitioner Arul Mary/tenant (in C.R.P.(NPD)No.1692/07). A perusal of the affidavit in M.P.No.115/08 indicates that the revision petitioner has averred that without any orders of the learned Rent Controller she has been evicted from her premisses and that she has produced all the records to show that she has been living separately in a separate portion without any connection whatever with that of Arul Mary without whom the warrant may be issued and inspite of her produce, the bailiff Ramalingam accompanied by another bailiff Selvaraj with the henchmen of the first respondent forcibly evicted her from the lawful possession and since the said bailiff Ramalingam has exceeded his limits and forcibly evicted her etc. and it is just and necessary to summon him and another bailiff Selvaraj and to examine them by means of cross examination.
6.In the counter filed by the respondent/decree holder it is specifically mentioned that the miscellaneous petition is not maintainable both in law and as well as on facts that there is no necessity for summoning the bailiffs and it is only a threatening action to spike down the decree holder and hence the said petition may be dismissed.
7.It is to be noted that the decree in RCOP 2134 of 2002 has since been executed in Execution Petition 426/07 on 25th October 2007. A report of the bailiffs have been accepted by the learned Rent Controller and ultimately the execution petition has come to an end on 26.10.2007 by means of recording the delivery effected only after the vacant possession has been handed over, it appears that the revision petitioner has come forward with this miscellaneous petition to issue summons to the bailiffs concerned for the purpose of cross examination.
8.In as much as the main execution proceedings have come to an end as early as on 26.10.2007 and since the revision petitioner has projected the miscellaneous petition No.115/08 around February 2008 this court is of the view that nothing survives in the revision petition in view of the fact that the superstructure of the demised premises has been partly demolished and also the vacant possession has already been handed over it is otiose to summon the bailiffs and resultantly the civil revision petition fails.
9.In fine the civil revision petition is dismissed leaving the parties to bear their own costs. Resultantly, the order passed by the learned Rent Controller in M.P.No.115/08 dated 05.06.2008 is confirmed for the reasons assigned by this Court in this revision. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, the miscellaneous petition is closed.
04.08.2009 Index:Yes/No Internet:Yes/No pri To
1. The XII Judge Court of Small Causes, Madras.
M.VENUGOPAL,J pri C.R.P.(NPD).No.2269 of 2008 04.08.2009