V C SUNDARAM Vs. C VENKATESAN

JUDGEMENT

(1.) Civil Revision Petition is directed against the order of the learned Second Assistant Judge, City Civil Court, Chennai dated 27-8-2002 made in I.A.No. 1324/2001 in O.S.No. 6412/99 in and by which the learned Judge dismissed the said petition, filed for restoration of the building possession by removal of brick wall, put up by the respondents in front of ventilator/jollys of the hotel premises.

(2.) The case of the petitioner is briefly stated hereunder: According to him, he is carrying on hotel business by name Geetha Cafe on the ground floor of No.2, Reddy Street, Villivakkam, Chennai-49. The said property is adjacent to the property bearing Door No.4, Reddy Street, Villivakkam, Chennai-49. The said property originally belonged to Neelambal and Krishnan Pillai and the petitioner was inducted as a tenant in 1962 by Neelambal. The said Neelambal and Krishnan Pillai by a Settlement Deed dated 27-2-1989 settled the said property at Door No.2, Reddy Street, Villivakkam, Chennai-49 on their third son, the 2nd respondent herein for his life time and after his life time to Manigandan, son of the 2nd respondent herein. The petitioner continued as a tenant under the 2nd respondent. The property at door No.4, Reddy street, Villivakkam also originally belonged to Neelambal and Krishnan Pillai and by settlement deed dated 27-2-89, they settled the said property on their son Santhanam alias Chandrasekharan and his sons Venkatesan, Balamurugan and Ganesan. The first respondent herein is the eldest son of Chandrasekharan. The said Chandrasekharan has taken a loan of Rs.25,000/- from the petitioner on various dates. Instead of paying interest for this loan under a Memorandum dated 1-9-93, the petitioner was given occupation of two rooms on the ground floor of door No.4, Reddy Street free from payment of any rent. The petitioner is using both the rooms as rest room for his hotel staff. In their anxiety to extort enhanced rent from the petitioner or evict him so as to induct a new tenant at highest rent, on 24-6-99 the second respondent herein who is a police head constable at H-5, New Washermanpet Police Station, closed the mouth of the chimney on the second floor, over-locked the door on the northern wall of the kitchen opening into the passage leading to the toilet and store-room, and broke the door of the toilet so as to render the same unserviceable. A criminal complaint was filed and the matter is pending before the 10th Metropolitan Magistrate, Chennai. The petitioner filed R.C.O.P.No. 1383/1999 on 19-7-99 on the file of XI Judge, Small Causes Court, Chennai for restoration of amenities under Section 17 (3) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 and also filed another R.C.O.P.No.1747/1999 on 26-8-99 for leave to deposit rents into Court under Section 8 (5) of the said act. The second respondent and his minor son Manigandan filed R.C.O.P.No.1418/1999 on the file of XIII Judge, Small Causes Court, Chennai for his eviction on the alleged ground of bona fide requirement of the premises by a member of their family. R.C.O.P.No.1383/1999 filed for restoration of amenities has been allowed on 6-3-2002 against which the landlord has filed R.C.A.No. 259/2002. Likewise, R.C.O.P.No. 1747/99 for deposit of rents into Court was allowed on 5-12-2000 against which the landlord has filed R.C.A.No. 159/2001. All the above matters are pending. While so, on 23-10-99 at the instigation of the second respondent, the first respondent and his men bricked up four Jali ventilators in the kitchen and dining hall and completely closed. He made a complaint to Villivakkam Police Station in turn they informed him the order passed by the Civil Court. On enquiry, he came to understand that they obtained an order of injunction in I.A.No.16264/99 in O.S.No.6412/99. On coming to know the order of injunction, the petitioner has filed I.A.No.17255/1999 for impleading himself as a defendant, I.A.No.17256/99 for setting aside the order of injunction dated 15-10-99 in I.A.No.16264/99 and I.A.No. 17257/99 to suspend the interim order of injunction. After notice to the respondents, the interim order of injunction dated 15-10-99 was suspended by an order on merits dated 18-11-99 finding that there is a clear abuse of judicial process collusively indulged in by the first respondent/plaintiff and the second respondent/defendant to secure an order of injunction which only affects him. The order allowing the I.A. to suspend the order of interim injunction was allowed with costs and the same has not been challenged further. I.A.No. 17255/1999 for impleading him as a defendant in the suit was allowed with costs and the same has not been challenged further. I.A.No. 17255/1999 for impleading him as a defendant in the suit was allowed on merits by an order dated 20-12-2000.

(3.) The petitioner filed I.A.No. 1324/2001 under section 144 of C.P.C. for restitution following the setting aside of the order of injunction originally granted on 15-10-99. The act of closing of ventilators which is complained of was of existing ventilators following an order of injunction procured by fraud, misrepresentation and abuse of the judicial process. The plaintiff and the defendant had colluded in the institution of the suit without impleading him even though he is a necessary party for deciding the matters in issue in the suit and even though his rights were sought to be affected by the reliefs claimed in the suit. The first respondent/plaintiff and the 2nd respondent/defendant have misused the order obtained by their abuse of the judicial process top harass the petitioner. In such circumstances, though the petitioner is entitled an order of restitution, the learned trial Judge instead of ordering the said petition, dismissed the same observing that petitioner has to seek remedy only by way of separate suit or at the time of trial of suit in O.S.No. 6412/99. Questioning the same, the petitioner has filed the above Revision.