FAZULLAH SHERIFF Vs. ABDUL WAHAB KHAN

JUDGEMENT

(1.) THE predecessor in title of the respondents herein filed the suit O. S. No. 5962 of 1970 on the file of the City Civil Court, Madras against the petitioner herein for recovery of possession of the suit land or both the land and the superstructure after payment of compensation to the defendant for superstructure and for other consquential reliefs.

(2.) THE defendants, who is the petitioner herein, filed a written statement, contesting the claim. Ultimately, the suit was decreed on 26. 2. 1973 in the following terms:- 'a'1. That the defendant is directed to deliver vacant possession of the land without superstructure. 2. That the first defendant be and is hereby directed to pay the plaintiff a sum of Rs. 90/- being the arrears of rent and damages from 1. 10. 67 to 30. 9. 70. 3. That the defendant is hereby directed to pay Rs. 2. 50 per month being subsequent damages till possession is delivered. 4. That the defendant do pay to the plaintiff a sum of rs. 24. 95 (Rs. Twenty four paise ninety five only) as and towards the costs of the suit as taxed and noted below:- Particulars of costs Defendant's costs Plaintiff's costs Rs. P. Rs. P. Stamp on plaint 10 00 Vakalath 1 50 Process 1 50 Petitions 0 75 Counsel fees 11 20 Total 24 95 'a'Amended as per order in I. A. No. 5088 of 1973 dated 20. 4. 74.' THE petitioner herein filed a claim petition under section 47 C. P. C. THE predecessor-in-title of the respondents herein filed the e. P. No. 1502 of 1979 for executing the decree for delivery of possession. In the claim petition, the petitioner has stated that the suit was decreed ex-parte and the decree was amended without notice to him whereby the plaintiff/ respondent herein has been granted the relief of possession by removal of superstructures, while the original prayer in the plaint was for a direction to put the plaintiff in possession of the suit land both the suit land and the superstructure after payment of compensation. As the amendment was carried out behind the back of the petitioner, the execution petition as framed is not maintainable in law. In view of Section 4 of the Cit y Tenants' protection Act, 1921, hereinafter referred to as'the Act', the respondent cannot claim delivery of possession after removal of superstructure. Further, in the amendment petition, the respondent has prayed for provision of compensation for the superstructure and hence, the decree cannot be executed as the same is not enforceable in law.

(3.) IT could be seen that the petitioner herein who is the defendant in the suit had filed the written statement as early as on 30. 8. 1971. Ultimately, he allowed the suit to set ex-parte on 26. 2. 1973. IT is admitted by both the counsel that the suit had been decreed ex-parte. Now coming to the practical aspect of the case, in a suit for ejectment, if the defendant remains ex-parte, without claiming the compensation or without placing any materials to ascertain the quantum of compensation for the superstructure and allows the suit to be decreed ex-parte, is it open to him to challenge the decree as in the present case" By virtue of his conduct, the defendant allowed the suit to be decreed exparte, and thereafter taking the objection that the decree itself is a nullity in the absence of any quantum of compensation. Virtually, this would amount to abuse of process of court. When once the defendant in a ejectment suit remains ex-parte, thereafter, it is not open to him to challenge the decree even on the ground of want of statutory requirements. The landlord, who filed the suit as in this case, in the year 1970 and obtained the decree in 1973, will be driven from pillar to post to get the fruits of the decree. If the contention of the petitioner, is to be accepted, then on his own violation, he makes the decree nullity and it appears, the plaintiff is to file a fresh suit for the same relief. That may not be the intention of the legislature when they prescribed the conditions under Section 4 of the Act. IT will only applicable to those cases where the defendant put forth his claim and urge the court to fix the quantum of compensation. Then it is incumbent on the part of the Court to fix the amount of compensation.