Vijaya Venkataraman vs Muniammal and Another

S. Tamilvanan, J.—The Civil Revision Petition has been preferred under Article 227 of the Constitution of India, challenging the order dated

20.12.2012 made in I.A No. 14705 of 2012 in O.S. No. 6189 of 2012 on the file of IV Assistant Judge, City Civil Court, Chennai. The suit in

O.S. No. 6189 of 2012 has been filed by the petitioner/plaintiff against the first respondent who has got a decree against the property that had

been purchased by the petitioner/plaintiff, without impleading her as one of the defendants in the Suit. The second respondent herein is only a

formal party, being the Corporation of Chennai. Mrs. Jayanthi Sekaran, learned counsel for the first respondent submits that the sale of flat by the

promoter in favour of the petitioner was not known to the first respondent, being an illiterate woman. The promoter, ignoring the sale deed

executed in favour of the first respondent, flat owner of G-3 Vinayaga Villa, conferring the rights in the common area, without the knowledge of the

first respondent and other flat owners, who purchased their respective flats from the flat owner, in a fraudulent manner, executed a sale deed in

favour of the petitioner. As the details were not available to the first respondent, she could not choose to implead the petitioner herein as one of the

defendant in the suit in O.S. No. 2653 of 2005.

On the other hand, Mr. K. Ramu, learned counsel for the petitioner submitted that having made the averments in paragraph No. 7 of the plaint,

mentioning the name of Mr. Venkataraman husband of the petitioner, atleast the first respondent could have impleaded the said person. It was

submitted that the sale deed had been executed in favour of the petitioner by the promoter/common vendor on 11.02.2002 itself and the petitioner

is in occupation of the premises and got assessment of tax by the second respondent. The first respondent being the plaintiff could have verified the

details of the sale deed with the concerned Sub Registrar or Corporation of Chennai, how without impleading the petitioner as one of the

defendants, the first respondent got a decree against the promoter/common vendor, a wrong person and trying to execute the decree against the

petitioner owner of the flat. Had the first respondent verified the ownership of Flat No. 4, she could have filed a suit by impleading the petitioner as

one of the defendant.

It is not in dispute that the petitioner purchased the said flat from the promoter from whom the first respondent had purchased her Flat No. G3.

The plea of the learned counsel for the petitioner cannot be ignored that the promoter has violated the terms and conditions of the sale deed

executed in favour of the petitioner and the first respondent and stating that the petitioner is a bonafide purchaser. The learned counsel for the

petitioner argued that the petitioner is an innocent purchaser like the first respondent for valuable consideration. The short point to be decided in

the revision preferred under Article 227 of the Constitution of India is, whether the revision is maintainable as against the respondents and whether

the impugned order passed by the court below is legally sustainable. In this regard, learned counsel for the petitioner drew the attention of this

Court to the order passed by the Hon''ble Supreme Court of India in the case of State, through Special Cell, New Delhi Vs. Navjot Sandhu @

Afshan Guru and Others, wherein the Apex Court has held thus,

...the power under Article 227 is a discretionary power and it is a difficult to attribute to an order of the High Court, such a source of power, when

the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial

superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunal''s within the bounds of their

authority and not to correct mere errors.

And in the case of Mohammed Abdul Sattar Vs. Mrs. Shahzad Tahera and another, , a Division Bench of Andhra Pradesh High Court has held

that revision is not maintainable in the absence of any jurisdictional error on the part of Appellate Court under Article 227 of the Constitution which

reads as follows:

Power of superintendence over all courts by the High Court--

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

It is an admitted fact that the City Civil Court, Chennai is subordinate to this High Court, as per Article 227 of the Constitution of India. The

Hon''ble Apex Court has held in various decisions that power under Article 227 has to be exercised sparingly by this Court and not to correct

mere errors.

It is not in dispute that the first respondent herein has got a decree in O.S. No. 2653 of 2005, which is for a mandatory injunction to demolish the

superstructure of the flat that was purchased by the revision petitioner without impleading the revision petitioner who had purchased the flat even

prior to the date of filing of the suit. It cannot be stated that it is a mere error, in fact the decree is not enforceable against a person, who is not a

party to the suit, though he owned the property even on the date of fifing of the suit. The mandatory injunction obtained by the first

respondent/plaintiff, without impleading the petitioner third party is in executable against the revision petitioner. In the instant case, flat No. 4 in

Block No. 5 of the apartment was purchased by the petitioner long prior to the filing of the suit. Hence, for seeking the relief of Mandatory

injunction to demolish the flat, the first respondent/plaintiff could have impleaded the petitioner as a necessary party, being the owner of the

property. As there is a decree obtained against the petitioner without impleading her, the same is not binding on her. When there is patent illegality

or an order or decree is being executed against any person who was not arrayed as a party, such aggrieved person is entitled to challenge the

order or decree, by way of invoking Article 227 of the Constitution of India. As the petitioner herein was not a party to the suit, in O.S. No. 6189

of 2012 she cannot prefer an appeal or regular revision u/s 115 CPC. Hence, considering the facts and circumstances of the case, I am of the view

that the petition filed under Article 227 is legally maintainable. The impugned order has been passed by the court below, without considering the

fact that the decree was obtained against the petitioner, who is third party to the suit. It is not in dispute that the first petitioner is the owner of the

flat on the date of filing of the suit, however, mandatory injunction for demolishing the construction was ordered without impleading the petitioner.

The court below without considering the factual and the legal aspect simply dismissed the Interlocutory application in I.A. No. 14705 of 2012. The

decision referred to, by the learned counsel for the first respondent is not relevant to the facts and circumstances of the case, as discussed above.

Since the petitioner was not arrayed as one of the defendants in the suit, the second portion of the decree obtained by the first respondent for

demolishing the flat that was purchased by the petitioner here even prior to the date of filing of the suit is non est so far as the Mandatory injunction

obtained against flat owner by the petitioner is concerned.

In the above said circumstances, to meet the ends of justice the Revision has to be allowed and the impugned order has to be set aside. In the

result, the Civil Revisions Petition is allowed and the impugned order dated 20.12.2012 made in I.A. No. 14705 of 2012 in O.S. No. 6189 of

2012 by the IV Assistant Judge, City Civil Court, Chennai is set aside. Consequently, the connected M.P. is closed. No order as to costs.

Considering the submissions made by both the counsel the court below is directed to dispose of the suit in O.S. No. 6189 of 2012 within a period

of 5 months from the date of receipt of a copy of this order, uninfluenced by the findings if any, by this court, in this order.