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PETITIONER: DALICHAND AND ANOTHER

       Vs.

RESPONDENT: C.SANTHOSH AGARWAL AND OTHERS

DATE OF JUDGMENT:       16/11/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

     Shah, J.

     Leave granted.

     This  appeal by special leave is directed against  the judgment  and  order dated 24.12.1998 of the High  Court  of Judicature  at  Madras passed in Criminal O.P.   No.8926  of 1997.   From the lengthy judgment written by the High  Court it appears that Respondent No.1 has taken undue advantage of the  proceedings under Section 482 of the Cr.P.C.   However, for the dismissal of this appeal various proceedings, orders and arguments referred to by the High Court are not required to  be  dealt with now as the matter has reached only at  an early interim stage of the litigation.

     It  is  the say of the appellants that  on  28.6.1978, appellant  No.   1 entered into an agreement with  one  Smt. Sakunthala  in  respect  of a portion of the space  at  Door No.7,  Hanumantha Rayan Koil Street, Chennai for tenancy for residential  purpose.   In  October 1987,  the  tenancy  was converted  for both residential and non-residential purpose. On  17.10.1996,  the appellants received a letter  from  the respondent  Nos.   3 and 4 claiming that they had  purchased the  premises  in question by a registered sale  deed  dated 16.10.1996  and informing that the monthly rent be  remitted to them.  Admittedly, the appellants confirmed the same with the  land  lady.   It  is the case of  the  appellants  that respondent  Nos.  3 and 4 did not accept the rent from them; with the result the appellant sent the rent by way of demand draft  on 30.12.1996 for the months of October and November, 1996  and  again  by way of pay order on 17.3.1997  for  the months  of  December  1996, January and February  1997  with advocates notice.  It is the further case of the appellants that  on  5.7.1997, they left the premises locked for  going out from Chennai and next day when they returned, they found that  the premises were opened and stock worth Rs.1,73,823/- was missing.  On 9.7.1997, a cheque for a sum of Rs.  4400/- being  rent  for  March  to June 1997 was  sent  along  with Advocates  notice  and  a  complaint was  lodged  with  the police,  but  the police refused to accept the same  on  the premise  that  it  was a civil dispute.  On  10.7.1997,  the appellants filed a suit for injunction bearing O.S.No.  4705

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of  1997  before  the  City   Civil  Court,  Madras  against respondents  Nos.  3 and 4.  The appellants further came  to know  that  the  landlord has set up  one  Santosh  Agarwal, respondent  no.1  to  take  possession of  the  premises  in question.  Thereafter, respondent no.1 filed Crl.  O.P.  No. 8926/97  in the High Court seeking directions to  respondent no.2  for  investigation of the said case by  Crime  Branch, CID,  Chennai.   Respondent  no.2 appeared before  the  High Court  on  11.7.1997 and the High Court directed  respondent no.2  to break open and handover the premises to  respondent no.1.   Accordingly, the police handed over the premises  in question  to respondent no.1.  On 22.10.1997, the appellants came to know about the proceedings of Crl.  O.P.  No.8926/97 and   filed   an  application   for  impleadment  as   party respondents  and also to vacate the interim order.  On  this application,  the  High  Court directed the police  to  take possession  of the premises in question from respondent no.1 and seal the same.

     Thereafter,  the High Court heard both the parties and vide its impugned order observed (in para no.118) that:  -

     ..this  Court (the High Court) is not able to  accept the  contention  of either side.  It may be  that  Dalichand would  have vacated the premises and put sub-tenant Santhosh Agarwal  in  the  said premises without the consent  of  the landlords  and that subsequently, after some period Santhosh Agarwal  would have shifted his loyalty to the landlords and entered  into  rental agreement with them or it may be  that the landlords would have set up Santhosh Agarwal as a tenant in  the  premises,  in  order  to  show  that  he   obtained possession  from him without going to the court to evict the original  tenant by following due process of law.   However, on the materials available on record, this Court is not able to decide as to whose contention is true.

     The High Court further deciding the question of powers of  High Court under Section 482 Cr.P.C.  observed (in  para no.116) that:  -

     ..this  Court  (the  High Court) under  Section  482 Cr.P.C.   can  direct  the  key to be  handed  over  to  the original  tenant viz.  DalichandThis Court is not  inclined to pass such orders, since the case of the landlords is that Santhosh  Agarwal  was  made as a  sub-tenant  by  Dalichand without  consent of the landlords and thereafter, sub-tenant was  recognised as direct tenant under him and fresh  rental agreement  was entered into between Santhosh Agarwal and the landlords,  whereas  the case of Dalichand is that  Santhosh Agarwal  was  never  a  sub-tenant under  him  and  Santhosh Agarwal  was set up by landlords to get some interim  orders from  the Courts, in order to get the possession in a bid to evict Dalichand without following the due process of law.

     As  against  this, in para 18, the Court has  observed thus:  -

     Since  this  Court  felt that Santhosh  Agarwal,  the petitioner  herein,  after  getting the interim  orders  and taking   possession  of  the   premises,   surrendered   the possession to the landlords and absconded without giving any instruction  to  Mr.  A.  Thiagarajan, the counsel  for  the petitioner  and  without obtaining any permission from  this

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Court,  in order to evade the process of the Court,  warrant was issued against the petitioner.

     The  High  Court  held that the only  authority  which could  decide  about the lawful possession by  granting  the required  relief is the Civil Court, where the suits of both the  parties  are pending and the Court has yet to pass  the final  order  on the same.  The High Court further  directed the Principal Sessions Judge, Channai to have both the suits (viz.   OS  No.4699  of 1997 and OS No.4705 of 1997)  to  be taken  for disposal by any one of the Courts to enable it to pass  appropriate orders after allowing the parties to  lead evidence  and by deciding the various issues to be framed by the  said  Court.   The High Court keeping in  view  of  the conduct  of  respondent no.1, Santhosh Agarwal  imposed  and directed  him to pay costs of Rs.10000/-.  The Court further directed  Mr.   S.C.  Shah, the counsel who was keeping  the key  of  the premises on behalf of the court to continue  to keep  the  key with him till the alternative arrangement  is made  by  the Civil Court as interim measure or  till  final order is passed in those suits.

     The  learned  counsel  on  behalf  of  the  appellants contended  that  the High Court has failed to note that  the tenancy  has  not been terminated and the landlord  has  not taken  possession from the appellants.  The appellants  were dispossessed  at the instance of respondents no.3 and 4,  on 8.7.1997  with  a view to cover up their illegal  activities and  they have abused the process of law by using respondent no.1  herein  to get ratified the orders of the Court as  if respondent  no.1 was tenant and that he was dispossessed  by the  appellants herein.  He further contended that the  High Court  was not justified in directing the appellants to  get possession  by  getting interim order from the Civil  Court, when  the  possession of the premises in question  has  been handed  over to respondent no.1 by the interim order of  the High Court and when the premises is covered by the provision of Tamil Nadu Buildings (Lease & Rent Control) Act.

     In  our  view,  considering the  dispute  between  the parties  and  number of proceedings, operative part  of  the order  passed  by  the  High Court does  not  call  for  any interference  except  that  portion of the  order  directing counsel  Mr.   S.C.  Shah to keep the keys.  In the  present case,  undisputedly  the appellants were the tenants of  the premises.   Whether  they had handed over possession of  the premises  to  one  Santhosh Agarwal as a sub-tenant  or  not would  require  consideration by the competent court.   But, till  that  is  decided,  appellant   can  be  handed   over possession  of  the  premises as a Court  receiver.   This would  finally protect the rights of the parties.  If it  is ultimately  held  that the appellants were not  entitled  to retain  the possession of the premises, appellant would hand over  possession to the person entitled to it and would also pay  mesne  profit  at the rate of Rupees one  thousand  per month.   The  appellant  shall deposit the amount  of  mesne profit  in  the suit filed by him and the court  would  pass appropriate  order at the time of disposal of the suit.   If the  appellant is not prepared to take possession as a Court receiver,  then the order passed by the High Court directing the  counsel Mr.  S.C.  Shah to keep in his custody the  key of  the  premises  on behalf of the court  shall  remain  in operation.

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     The  appeal  stands  disposed of accordingly  with  no order as to costs.