1970 JTR(Mad) 126
1970 83 LW 745 ; 1971 1 MLJ 220
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. Ramaprasada Rao, J.
A. Arunagiri Nadar
Versus
S.P. Rathinasami
C.R.R.No. 967 of 1968.
Decided On : 21 March 1970
Tenant can claim re-delivery of property from landlord.
Act
Referred
:CIVIL PROCEDURE CODE : S.144, S.115
MADRAS BUILDINGS LEASE AND RENT CONTROL ACT : .
Madras Buildings (Lease and Rent Control) Act (XVIII of 1960) - Civil Procedure Code (V of 1908), section 144 - Ex parte eviction decree reversed on application by tenant - Tenant can claim re-delivery of property from landlord.
P. Venkataraman, for Petitioner
S.P. Rathinaswami, for Respondent.
Judgment.-
The landlord is the petitioner. He filed an application under the Madras Buildings (Lease and Rent Control) Act for eviction of the respondent who is unfortunately not represented ”before me. The petitioner obtained an ex parte order of eviction and pursuant thereto took possession of the property from the respondent. The respondent, however, filed an application to set aside the ex parte order and was successful. Basing on the observations in Raso Moopanar v. Ramamurthi Iyer1, the respondent sought re-delivery of the property from the petitioner which the Court below directed. It is against this order that the present revision petition has been filed.
2. The contention of Mr. Venkataraman, the learned Counsel for the petitioner is that the ratio in Raso Moopanar v. Ramamurthi Iyer1, is no longer good law, as it has been reversed in Mayilsami Gounder v. Mummoorthi Chettiar2, by a Division Bench of this Court to which the learned Chief Justice is a party.
3. The point involved in this case is whether, in the absence of an express statutory provision which would enable Court to direct restitution, it could do so ex debito justitiae. As a matter of fact, Alagiriswami, J., in Raso Moopanar v. Ramamurthi Iyer1, is of the view that the power of a civil Court to order restitution is not wholly governed by section 144 Civil Procedure Code. The learned Judge proceeded on the basis that a wrong order should not be perpetuated by keeping it alive and respecting the same. The learned Chief Justice in Maylisami Gounder v. Mummoorthi Chettiar2, observed:
“It may be unfortunate that notwithstanding the reversal of the eviction order the tenant is unable to get restoration. But, it is for the Legislature to provide for the situation.”
4. It is, therefore, clear that in the absence of an express provision or a provision by necessary intendment which would enable a civil Court to direct re-delivery, the civil Court does not possess such power. The order of the Court below is, therefore, wrong and the same is set aside. The civil revision petition is allowed. There will be no order as to costs.
V.K. ---------- Petition allowed.