FATHIMA AUTOMOBILES Vs. P K P NAIR

JUDGEMENT

(1.) This writ appeal is directed against the order of Mohan, J. in W. P. 7351 of 1981, dismissing the writ petition filed by the appellant on the ground that the appellant has got a right of suit against the order dated 26-8-1981, passed by the Rent Controller in W. P. 943 of 1980 in E. P. 762 of 1980 in H. R. C. 986 of 1977 on the file of the Small Cause Court, Madras.

(2.) The circumstances under which the said writ petition came to be filed before this Court may be briefly stated. Respondent 1 herein had obtained an order of eviction against his tenants in H. R. C. 986 of 1977. In those proceedings, there was no resistance at all on the part of the tenants. However, the appellant herein obstructed delivery of possession and therefore respondent 1 filed an application for removal of obstruction in W. P. 943 of 1980. The appellant resisted the said application for removal of obstruction contending that he is not one claiming any rights under the tenants against whom the order of eviction has been passed, that he is claiming independent right through one Dhanabagyammal who is claiming to be the owner of the premises. The Rent Controller after taking evidence with reference to the relative contentions of parties ordered removal of obstruction. It is as against that order the writ petition came to be filed. Mohan, J. before whom the writ petition came up for final hearing passed the following order :-

(3.) Before us, learned counsel for the appellant submits that though the appellant has filed a suit questioning the order of the Rent Controller directing removal of obstruction, since the question as to whether a suit will lie after O.21, R.101 has been amended by the Amending Act of 1976, is a moot point, the appellant has filed the appeal seeking a ruling on the question as to whether the suit could be maintained against an order of the execution court directing removal of obstruction. It is significant to note that Mohan, J. who disposed of the writ petition has not gone into the merits of rival contentions as to whether the order removing obstruction could be justified on merits or not. The learned Judge has merely proceeded on the basis that since the appellant has got a remedy by way of suit, the order removing obstruction passed by the Rent Controller does not call for interference. Having regard to the order passed by the learned Judge which is under appeal, the question that arises for consideration by us is 'what is the remedy available to the appellant as against the order passed against him by the Rent Controller removing obstruction.'