S.M. Abdul Wahab, J.
1. These revisions arise out of a common order passed in M.P.Nos.683 of 1993 and 738 of 1993 in E.P.No. 368 of 1993 in R.CO.P.No. 40 of 1993 dated 6.12.1993.
2. M.P.No. 683 of 1993 is for setting aside the exparte order dated 6.9.1993 in E.P.No. 368 of 1993 and M.P.No. 738 of 1993 is for a direction to the bailiff to effect redelivery of the demised property "as is where condition" to the petitioner. Learned XIII Judge, Small Cause Court by his order dated 6.12.1993 rejected the M.P.No. 738 of 1983 and consequently on the same date rejected M.P.No. 368 of 1993 also. The above two petitions were filed by aggrieved tenant.
3. The short facts for understanding the scope of the revisions are as follows:
R.CO.P.No. 40 of 1993 was filed by the landlord for eviction of the petitioner from a godown bearing door No. 7, Thambu Naick Street, Madras-79. The said godown forms part of a big building. Notices were sent to the said addresses. As the petitioner herein did not appear, an exparte eviction order was passed. Subsequently in E.P.No. 368 of 1993 the landlord has taken possession of the said godown. The delivery order in E.P.No. 368 of 1993 was also an exparte order. Thereafter, taking possession through court on 10.9.1993 he has demolished the godown and reconstructed it. The demolition and reconstruction were as per the permission and permits obtained from the Corporation of Madras.
4. Learned counsel for the petitioner vehemently contended that the order for eviction and the consequent order for delivery were. obtained by playing a fraud upon court. Therefore, the entire proceedings starting from the order of eviction and resulting in delivery of possession must be set aside. According to the learned counsel the petitioner was carrying on business at No. 149, Govindappa Naick Street, Madras. In other proceedings instituted by the respondent notices were served on the petitioner only to the said address. In R.CO.P.No. 40 of 1993, even though addresses for service has been given as No. 149, Govindappa Naick Street, Madras, notices were sent to premises No. 7, Thambu Naick Street, Madras. In the petition for eviction, it is stated that the respondent was carrying on business at No. 149, Govindappa Naick Street, Madras-1. But it is not stated that it is the address for service on the respondent. But in para 3 also it is stated that the petitioner is a tenant occupying a shop carrying on business in the ground-floor of the premises No. 7, Thambu Naick Street, Madras. The notices to the building in question has been sent and publication also been made giving the said address. When the petitioner is having a godown in the said address, stored articles worth about Rs. 5 lakhs for the business. It cannot be said that the petitioner is carrying on business at No. 149, Govindappa Naick Street alone and not at the premises No. 7, Thambu Naick Street, Madras-79. Further, it is unbelievable that the petitioner does not go to the godown at all daily or atleast twice or thrice a week. In the counter filed in R.C.O.P.No. 40 of 1993 the petitioner has stated that the premises has been used by this respondent. There is no statement in the counter that he is not visiting the godown daily. Even though it could be at the most that it was a clever act on the part of the respondent in not sending notice to No. 149, Govindappa Naick Street, Madras-1, it cannot be definitely said to be a fraud. When a person is a tenant in respect of a building and if notice is sent in eviction proceedings in the said address, it cannot be said to be a fraud. On the other hand, he is bound to send notice to the address. Merely because, he has chosen to send the notice in other proceedings to a different address that does not mean that he is bound to send notice in the petition for eviction from premises No. 7, Thambu Naick Street, he should send notice to No. 149, Govindappa Naick Street, Madras-1.
5. It is also possible for the petitioner to contend that instead of sending notice to the building in question, the notice was sent to different addresses. I cannot agree that any fraud or irregularity has been committed in ending the notice to the address at No. 7, Thambu Naick Street, Madras-79, from which alone eviction is sought for.
6. The main contention urged by the learned counsel for the petitioner is that in a hurried manner the respondent has demolished the building and constructed a new building and there fore his conduct was not bonafide.
7. Possession was taken on 10.9.1993. The redelivery petition is dated 28.9.1993. On 15.3.1993 itself the respondent has obtained permission to demolish and reconstruct the building. Even earlier on the same day he has also obtained permit to construct the new building. This is evident from the original planning permit as well as the permit for the demolition dated 15.3.1993 issued by the Corporation of Madras and enclosed to C.M.P.No. 15218 of 1996. Another important factor is that even though the petition for redelivery is dated 28.9.1993, the order has been passed only on 6.12.1993. No record was produced to show that any stay or injunction was obtained against the respondent from demolishing and reconstructing the new building. At the most, it can be said that the respondent has acted quickly but definitely it is not in an illegal and unlawful manner. If a person has acted quickly and promptly to safeguard his interest even if that act affects any right that is likely to accrue to a person in future, the act of the person cannot be said to be lacking of bonafide. In this complicated and competitive world, it is natural that one who is prompt and alert is able to succeed over the other who is slow and it in in keeping with the law of nature.
8. Another contention of the learned counsel for the petitioner is that the lower court has erred in rejecting the petition for redelivery on the ground that the building was not there since the bailiff reported that there was no roof and door of the building.
9. Learned counsel's contention is that as against the report of the Bailiff, the Commissioner's report which was filed in III Assistant Judge, City Civil Court, Madras in O.S.No. 7557 of 1993 is relevant. No Commissioner was appointed in the proceedings before the lower court. The Commissioner was not examined. Further, the said report has not been marked as exhibit. Yet, the lower court has chosen to consider it. It is not proper. The photographs taken by the Commissioner has also been considered. However, even in the said report, it is mentioned that the door has been removed. The roofs have been broken, only iron rods are protruding and south side door has been demolished. The Northern wall though demolished would be reconstructed. The permits for demolition and reconstruction have been obtained on 15.3.1993. Now before this court it is admitted that a new construction has been put up. Therefore, the old building is not there. However, learned counsel altered his submission and contended if a building is there, whether it is the same old building or new one, the redelivery is possible.
10. One intrinsic fallacy that is involved in the argument is that the building let out to the petitioner is not there. It is not a case of renovation or repair but it is a case of total demolition and reconstruction. Now we have a different building which was not let out to the petitioner. Can he now ask for redelivery?
11. Learned counsel was not in a position to cite any authority on the aforesaid question, but he relied upon several decisions to show that the redelivery is possible Under Section 144 of the Code of Civil Procedure. He also contended that even if Section 144 of the Code of Civil Procedure is not applicable Under Section 151 of the Code of Civil Procedure, redelivery can be ordered even in Rent Control Case.
12. Two learned Judges of this Court have taken note of this distinction and have held that Section 144 of the Code of Civil Procedure is not applicable to Rent Control Proceedings. Decisions in T.K. Sundaram v. V.Balraj, and T.S. Pichaiya,
Tuticorin v. The Rent Controller, Tuticorin and Anr., 1983 (I) MLJ 18 are to the said effect.
13. in T.K. Sundaram v. V. Balraj, Justice S.Nainar Sundaram (as he then was) has taken the view that there must be some difficulty with reference to the invocation of the aid of Section 144 of the Code, yet, the Controller having been vested with all the trappings and powers of a civil court definitely could order restitution Under Section 151 of the Code, if not Under Section 144. Section 144 by itself does not confer any new right which a party litigant otherwise possesses under the general law. The civil court is clothed with an inherent jurisdiction to order restitution in appropriate cases where the ends of justice do demand the same. Such a power is available to the civil court even though the application for exercise of that power may not come within the ambit of Section 144 of the Code.
14. In T.S. Pichaiya, Tuticorin v. The Rent Controller, Tuticorin and Anr., 1983 (I) MLJ 18, Justice Padmanabhan has discussed in a different manner. The learned Judge applied the principle i.e., actus curiae neminem gravabit an act of Court shall prejudice no man. The court will not allow a suitor to suffer by reason of a wrong order and the moment the mistake is discovered it will rectify the error and put him so far as possible in the position he would have occupied had the wrong order not been passed. Further the learned Judge has upheld the observations of Justice Ratnam, with reference to the following observations, "It is well-settled that legal fictions are created only for some definite purpose and that the said fictions created by the statute cannot be extended beyond the purposes for which they were created. In interpreting the legal fiction of a statute, the Court is not expected to travel beyond the provisions of the statute by which the fiction is created and the Court also cannot extend such a fiction by importing another fiction. The fiction enacted by the legislature must be restricted by the plain terms of the statute. After approving the said observations of Justice Ratnam, (as he then was) Justice Padmanabhan has rejected the contention of the learned counsel that the Rent Controller has no power to order restitution and effect redelivery of the property to the tenant. Further at the end of the judgment Justice Padmanabhan has held that Justice Nainar Sundaram (as he then was) has taken the same view in T.K Sundaram v. V. Balraj, ). Though the learned Judge was of the view that an application for restitution is an application for execution and consequently the Rent Controller has got the power to restitution. Learned Judge in the latter part of the Judgment has chosen to stress on the inherent power of the court to order redelivery.
15. Even though from the aforesaid two decisions the restitution cannot be ordered Under Section 144 of the Code of Civil Procedure. There is another judgment of a Division Bench of this Court reported in T. Sivasankaran v. H.K. Kacharilal Sowcar, . The first
Bench of this Court after considering the aforesaid decision and also the decision of Ramanujam, J. in Md. Hussain v. Pichai, 1970 (2) MLJ 663 has categorically held that the amendment to Act, 18 of 1960 by the Act 1973 does not take away the power of the tenant to restore the possession pursuant to the reversal order of eviction. In substance, the learned Judges have held that the restitution is a continuation of execution and therefore Section 144 of the Code of Civil Procedure is applicable to Rent Control Proceedings. Therefore, it is the settled view as far as this court is concerned.
16. The next question we have to consider is whether under the said inherent power of the Rent Controller, restitution can be granted in the present case. To answer this question some of the facts of the case have to be repeated here. The delivery was taken by the respondent on 10.9.1993. The respondent has obtained permits for demolition and reconstruction on 15.3.1993. The Bailiff returned the warrant on 1.10.1993 with the endorsement stating that the building was not there and the warrant could not be executed. Knowing about the demolition, the petitioner has filed petition on 28.9.1993. The said petition was dismissed on 6.12.1993. Revision petition was filed in the High Court on 17.4.1995. In the mean time, on 28.2.1995 the lands with new building was sold to the respondents 2 and 3. C.M.P.No. 15218 of 1996 is filed by respondents 2 and 3 for reception of additional documents. In para 3 of the affidavit filed in support of the C.M.P.No. 15218 of 1996, the second respondent has stated that they have purchased an extent of 990 sq. feet in No. 7, Thambu Naick Street, Madras (Old No. 5, Bethunaickenpet). After the purchase one Warghees vacated the premises and godown and surrendered vacant possession. After demolition or the portions, he has put up a building as per the construction plan approved by the Corporation of Madras. He has also stated in para 4 that there was no proceedings pending before the Small Cause Court, Madras when they purchased the property on 28.2.1995. The revision petition has been filed by the first respondent in April, 1995 and only subsequently he himself and the third respondent were impleaded. In para 6 it is further stated that after putting up the construction he has sold the shops to various persons under different sale deeds. He has also given particulars about the sales effected by him to eight persons under different sale deeds. Therefore, at the time of purchase by respondents 2 and 3 there was no proceedings pending before the Rent Controller. Therefore, the doctrine of lis pendens will not apply assuming that the said doctrine can also be made applicable to the Rent control Proceedings. The petitioner has kept quiet from 6.12.1993 to 17.4.1995, on the later date only he filed revision before this court. Only on 25.4.1995 notice was ordered in these revisions. The petitioner's explanation that he was furnished with copy of the order dated 6.12.1993, only on 29.3.1995 cannot be an excuse as against the respondent.
17. Further even though the certified copy of the orders were ready on 2.2.1995, the copies were obtained from the court only on 29.3.1995 i.e., after the expiry of 15 days time for filing the appeal. It is apparent that since the petitioner could not file an appeal before the Rent Control Appellate Authority, he has chosen to file revision invoking the constitutional remedy conferred under Article 227 of the Constitution of India. At this juncture, it must be stated that there is some force in the contention of the learned counsel for the respondents that the revisions have been filed only with the object of circumventing the appeal proceedings, after failing to move the Appellate Authority within time.
18. As stated in the earlier paragraphs the building let out to the petitioner is not there. A new building has been put up on the land on which the old building stood. Demolition and reconstruction are with the permission of the Corporation of Madras. Apart from the sale in favour of the respondents 2 and 3 the other parties have purchased the newly constructed building, they are not before this Court. At the time of demolition, there was no impediment against the first respondent from doing so. Similarly, at the time of sale in favour of respondents 2 and 3, there was no proceedings pending at all. After the purchase, respondents 2 and 3 have put up new construction. Even though the actions of the respondents 2 and 3 are fast and hasty, they cannot be said to be unjustified. In such circumstances, I feel it is not possible to invoke the inherent powers of this Court or the powers conferred Under Section 151 of the Code of Civil Procedure.
19. Learned counsel for the petitioner contended that the restitution can be ordered even against the third parties who have entered into the field during the pendency of the litigation and even new buildings have come up in the place of old buildings. The decisions cited by the learned counsel for the petitioner are decisions Under Section 144 of the Code of Civil Suits. The doctrine of lis pendens was also applied in those cases.
20. The right granted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not a common law right as enunciated by the Transfer of Property Act. But it is only a statutory right created under the said enactment. The purpose of the said Act is only to give protection from eviction. The said protection from eviction is found in the preamble of the Act itself, which is as follows:-
"Whereas it is expedient to amend and consolidate the law relating to the regulation of the letting of residential and non- residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Tamil Nadu."
The rights conferred under the statute cannot be extended to a person from whom the building has been recovered. It is also very difficult to extend the benefit of the Act to a new building, which was not at all let out to any tenant. It is worthwhile to remember here that as per Section 30, new buildings are exempted from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Whatever may be said, as on today, the building stands exempted from the purview of the Act. When the Act itself is not applicable to the building in question, it will not be possible for this Court to make this Act applicable and grant redelivery to the petitioner. The redelivery by itself implies that what is to be redelivered is something which was delivered, when what was delivered is not there, the redelivery is impossible.
21. Learned counsel for the respondent raised an objection with reference to the maintainability of the revisions. According to them, the revision petitions are not the remedy provided under the enactment. Petitioner's remedy was only for an appeal. They have cited a decision in S. Balakrishnan v. A. Rathinam, 1989 (I) MLJ 379. In the said decision, Ratnam, J. (As he then was) has held that a bar Under Section 18(2) of the Act is not attracted, for filing an appeal against the order passed in execution application. In the said decision, pursuant to an exparte order of eviction possession was taken from the tenant. Thereafter an application was filed for redelivery. The said petition was dismissed. Against that, the tenant preferred C.R.P. under Article 227 of the Constitution of India. A preliminary objection was raised in the said case regarding the maintainability of the revision petition. The argument was that since there was a bar Under Section 18(2) of the Act for preferring an appeal, the remedy under Article 227 of the Constitution of India was resorted to. Repelling the said contention, learned Judge has held as follows:-
"Therefore the rejection of the appeal by the Appellate Authority on the ground that the bar enacted Under Section 18(2) of the Act would be attracted was unsustainable and the appellate authority was directed to entertain the appeal and dispose it of on merits. The principle of this decision would squarely apply to this case as the petitioner had prayed only for the relief of redelivery of possession by way of restitution. Consequently, the preliminary objection is upheld."
The learned Judge has considered the two earlier judgment of this Court in Hidayathula v. Appellate Authority, Rent Controller, Fathima Automobiles v. P.K.P. Nair, 1984 TLNJ 368.
In the aforesaid two decisions, learned Judges have taken the view that an order allowing application for restitution would not fall within Section 18(1) of the Act. Therefore, I see there is some force in the contention of the counsel for the respondent that the civil revision petitions are not maintainable. As I have already indicated the filing of the revision petitions by the petitioner is also not bonafide because he has chosen to file them only after the time for preferring had lapsed.
22. For the foregoing reasons, I am not in a position to accept any of the contentions raised by the learned counsel for the petitioner. Therefore, these two revision petitions are dismissed. However, there will be no order as to costs.