HABEEB RAHMAN Vs. MEENAKSHI

JUDGEMENT

(1.) THE above civil revision petition has been filed under Art.227 of the Constitution of India, against the order dated 16.6.1993 in I. ANo. 1195 of 1993 in C.M. A.No.3 of l993 on the file of the Principal Sub Court, Coimbatore. THE respondents in the above revision petition have obtained an order of eviction against the petitioner herein in R.C.O.P.No.209 of 1982 on 10.2.1984. Since the petitioner did not vacate the premises pursuant to the order of eviction, E.P.No. 114 of 1985 came to be filed to execute the order of eviction. From the copy of the execution petition and the orders made available at the time of hearing, it is seen that in an earlier E.P., as per the joint endorsement made, the petitioner was granted time till 31.12.1984 for delivering possession. It is only since the petitioner did not comply with the assurance made in the earlier E.P., the present E.P., came to be filed. In the present E.P., the petitioner appears to have filed E.A.No.1319 of 1985 under Sec.47 read with Sec-151 of the Code of Civil Procedure to set aside the execution proceedings. In the said proceedings, the petitioner herein has admitted that the petitioner was a tenant on a monthly rent of Rs.100 that he was regularly paying the rents and that from 1982 onwards there was a revision of rent by increasing the rnonthly rent from Rs. 100 to Rs.250 and inasmuch as the petitioner was assured in view of the revision and enhancement of the monthly rent that the R.C.O.P. could not be pursued, the petitioner did not take steps to effectively defend the eviction proceedings and that the petitioner has been remitting the revised enhanced rent regularly till 31.3.1985 and that therefore, the respondents have no right to initiate any execution proceedings to execute the order of eviction in question.

(2.) THE respondents herein opposed the said appli-cations and the claim made by the petitioner about the new tenancy coming into force was denied. THE court below has chosen to accept the claim of the petitioner that a new tenancy came into existence with a revised and enhanced monthly rent of Rs.250 and that, therefore,the execution cannot be pursued to evict the petitioner pursuant to the order of eviction. This order came to be passed on 1.9.1986. THEreupon, the respondents herein filed E. A.No. 1211 of 1966 to review the order and by an order dated 6.4.1987, the review application was allowed. Aggrieved against the order passed on review in E.A.No.1211 of 1986, the petitioner herein filed C.M.A.No.3 of 1990 on the file of the District Court, Coimbatore. This appeal is said to be since transferred to the Principal Sub Court, Coimbatore and entertained as C.M.A.No.3 of 1990.

(3.) THE main and only ground of challenge to the order of the court below is that the provisions of Sec. 11 (4) of the Act has no application to the case on hand and that the impugned order purported to have been passed in exercise of the powers under the said provision cannot be sustained. THE learned counsel for the petitioner, while raising the said point at the time of hearing, placed reliance upon a Division Bench of this Court reported in K.Radha v. C.R.Govindarajulu. 91 L.W. 44.1 That was a case wherein a Division Bench of this Court held that an application under Sec. 11 (4) of the Act cannot be filed during the pendency of a civil revision petition in the High Court against the order of eviction. It was also clarified that a reading of Sec.11(l) and 11(4) of the Act together will exclude their applicability to all other cases except the cases where an application for eviction is pending under Sec. 10 before the Rent Controller and the appeal preferred by tenant under Sec.23 of the Act to the appellate authority is pending. THE C.M.A.No.3 of 1990 in the court below was filed to the petitioner herein under 0.43, Rule 1 and Sec.104 of the Code of Civil Procedure and not under Sec.23 of the Rent Control Act. That being the position having regard to the law declared by the Division Bench in the decision referred to supra, there is no scope or right in the respondents to file an application under Sec. 11 (4) of the Act, and the court below could not have validly passed an order invoking the powers under Sec.11(4) of the Act.