PAPPI CHETTY RAGHAVIAH CHETTYS CHARITIES Vs. VINOD MOHAN

JUDGEMENT

(1.) THE plaintiff/decree holder is the appellant. The plaintiff/decree holder is a Public Charitable Trust and the defendant was a tenant under the plaintiff. The defendant attempted to demolish the superstructure that was leased out to him without the permission of the appellant/plaintiff and therefore, the appellant/plaintiff filed O.S.No.2364 of 2003 for injunction restraining the defendant from demolishing the tenanted premises. Thereafter, the appellant/plaintiff terminated the tenancy by issuing a notice, dated 28.04.2003 calling upon the defendant to vacant and hand over possession of the said tenancy premises on or before 01.06.2003 and also claimed damages for use and occupation. As the defendant failed to vacant and hand over possession, the plaintiff filed a suit in O.S.No.3170 of 2003 on the file of the XII Assistant Judge, City Civil Court, Chennai and that suit was filed on 13.06.2003 and a compromise was entered into between the plaintiff and the defendant in that suit and on the basis of the memo of compromise, the suit was decreed and as per the memo of compromise and as per the decree, the defendant agreed to vacate and hand over vacant possession of the premises on or before 15.03.2004, failing which the plaintiff is entitled to execute the decree and the defendant also agreed to pay future damages from March 2004 at the rate of Rs.700/ - per month, till he vacates and hands over vacant possession. The compromise decree was passed on 23.02.2004. Thereafter, the defendant did not vacate and hand over the premises as per the compromise memo and therefore, the plaintiff filed E.P.No.650 of 2004 in O.S.No.3170 of 2003 to execute the decree and while executing the decree, it was found that the respondent was in possession of the property and he raised objection stating that he was a sub -tenant under the defendant and he was not bound by the decree and he was entitled to be in possession of the property and the decree cannot be executed against him. Hence, the appellant/plaintiff filed E.A.No.3460 of 2004 in E.P.No.650 of 2004 under Order 21 Rule 97 CPC for removal of the obstruction stating that the decree passed against the defendant can be executed against the respondent/obstructor and even according to the respondent/obstructor, as per the letter (Ex.C1) given to the Bailiff, he came into possession of the property in October 2003, after the filing of the suit and therefore, he is bound by the decree and any decree passed against the main tenant is binding on the sub -tenant and hence, he cannot obstruct the delivery of vacant possession and he must be removed.

(2.) THE respondent/obstructor objected to the petition filed by the plaintiff/appellant stating that even prior to the filing of the suit by the plaintiff/appellant, he came into possession of the property in March 2003 and the plaintiff was also aware of his possession as a sub -tenant and deliberately, he was not impleaded in the suit and the decree obtained by the plaintiff/appellant against the defendant was a collusive and fraudulent one with the intention of evicting the respondent/obstructor and therefore, the decree is not binding on him and being the sub -tenant, who has been let in possession of the property by the main tenant, he is entitled to be in possession of the property and hence, he cannot be evicted.

(3.) THE learned Assistant Judge accepted the contention of the obstructor and held that the plaintiff/appellant did not produce the lease deed between the plaintiff/appellant and the defendant and had it been produced, it would disclose that the tenant was entitled to sublet the premises and therefore, it was suppressed by the plaintiff/appellant and hence, the sub -lease by the defendant in favour of obstructor was legal and the obstructor came to be in possession of the property, even in March 2003 and it is proved by the obstructor through RW2 to RW4 and also Ex.R15 to R17 and also Ex.R4 and Ex.C1, the letter executed by the obstructor was obtained by force and as the obstructor was in possession of the property, even prior to the filing of the suit, the decree passed against the defendant will not bind the obstructor, as he was not a party to the suit and the compromise decree was also not in accordance with law and the obstructor is an authorized sub -tenant and is entitled to protection under the Rent Control Act and hence, he cannot be evicted and dismissed the application filed by the appellant/plaintiff and the same was confirmed by the learned 7th Additional Judge, City Civil Court, Chennai and hence, this second appeal.