IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (NPD)No.1616 of 2002
M.Chokkappan. ... Petitioner.
-Vs-
C.Selvaraj. ... Respondent.
Civil Revision Petition filed under Article 227 of the Constitution of
India against the order and decretal order dated 14.2.2002 and made in
E.A.No.72 of 2001 in E.P.No.93 of 1994 in R.C.O.P.No.43 of 199 2 on the file
of the District Munsif Court, Thanjavur.
!For petitioner : Mr.R.Thirugnanam.
^For respondent : Mr.T.S.Sivagnanam.
:O R D E R
This Civil Revision Petition is filed by the decree-holder against the
dismissal of E.A.No.72 of 2001 in E.P.No.93 of 1994 in R.C.O.P.No.43 of 1992
on the file of the District Munsif Court, Thanjavur.
2. The revision petitioner on the strength of the eviction order
obtained in R.C.O.P.No.43 of 1992 filed E.P.No.93 of 1994 for delivery and it
appears that delivery was ordered. The senior bailiff concerned returned the
delivery warrant for want of survey number in the delivery warrant.
Therefore, the decree-holder filed E.A.No.72 of 2001 in E.P.No.92 of 1994 to
incorporate the survey number as T.S.66/23 13. The petition was opposed.
3. The Executing Court considering such objections dismissed the
E.A.No.72 of 2001 as per order dated 14.2.2002 and it is challenged in this
Civil Revision Petition by the decree-holder.
4. Heard the learned counsel for the revision petitioner and the
learned counsel for the respondent.
5. The learned counsel for the revision petitioner/decree-holder
argued that inasmuch as the survey number was omitted to be mentioned, the
same may be incorporated in the delivery warrant by making suitable order. In
this regard, the learned counsel relied on the decision A.Shamsuddin vs. –
K.Chellappan reported in 1998-II M.L.J. 99, in which this Court held:-
“Civil Procedure Code (V of 1908), Sections 151 and 152, Order 6 Rule
17. Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960, Section
18. Petition for eviction of tenant ordered. In the Execution Petition, Amin
reporting that he could not identify property. Praying for better
particulars. Landlord’s application to add a better description of property.
Application, held, was one under Sections 151 and 152. Order of Rent
Controller allowing application, sustained.
The Court does not think that the present application could be treated
as an amendment. It is only an explanation regarding the description of the
property. By virtue of the present applications, the landlord is only giving
better particulars to identify the rented building. If that be so, it cannot
be said that to settle a controversy, an amendment is made. Regarding the
tenanted building, there is no controversy. Naturally, it is only a
correction of the boundaries. If that be so, the application need not be
filed during the pendency of the proceedings. It can be filed even after the
proceedings have come to an end and before the satisfaction of the decree is
entered. The principle of Order 6, Rule 17 C.P.C. will apply only to pending
proceedings and when there is controversy. In this case, so long as there is
no controversy, the petitioner cannot impeach the right of the decree-holder
to the better particulars to identify the rented building. The principles of
Sections 151 and 152, Civil Procedure Code apply to the facts of this case and
the lower court has taken into consideration the interests of justice in
allowing the applications. There is no prejudice caused to the petitioner and
there is also no manifest injustice done by the court below in allowing the
applications.”
6. I am in respectful agreement with the judgment reported in 1998-II
M.L.J. 99 and of the view that at the time of filing the Rent Control
Original Petition for eviction T.S.No. could have been omitted to be
mentioned by mistake, the decree-holder can seek to incorporate the same in
the delivery warrant, in that no hardship will cause to the respondent/tenant,
inasmuch as the property was described with correct boundaries and it was also
not challenged before the Rent Controller as regards the identity of the
property. In that view the revision petition is to be allowed by setting
aside the order of the Executing Court.
7. In the result, this Civil Revision Petition is allowed setting
aside the order of the Executing Court dated 14.2.2002 made in E.A.No.72 of
2001 in E.P.No.93 of 1994 in R.C.O.P.No.43 of 1992. The Executing Court is
directed to incorporate the T.S.No.66/2313 in the delivery warrant after
making necessary amendment in the Execution Petition on the application by the
decree-holder mentioning the Town Survey Number as 66/2313 and by allowing the
said application straightaway. It is further directed to issue suitable
directions for delivery of the property.
Index: Yes
Internet: Yes
ts.
To
1) The District Munsif,
Thanjavur.
2) The Section Officer,
V.R. Section,
High Court,
Madras.