Ram Dass Vs. Chandi and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/631670
SubjectCivil
CourtPunjab and Haryana High Court
Decided OnDec-17-2004
Case NumberCivil Revision No. 6196 of 2004
Judge M.M. Kumar, J.
Reported inAIR2005P& H230; (2005)139PLR877
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35A(4), 47 - Order 21, Rule 58; ;Village Common Lands (Regulation) Act, 1961 - Sections 13(1); Land Revenue Code - Sections 9
AppellantRam Dass
RespondentChandi and ors.
Advocates: Dhirinder Chopra, Adv.
DispositionPetition dismissed
Cases Referred and Quseph Mathai v. M. Abdul Khadir
Excerpt:
- m.m. kumar, j. 1. the judgment-debtor ram dass (for brevity, 'jd-petitioner') has filed this petition under article 227 of the constitution who has prayed for quashing order dated 30.10.2004 passed by the learned executing court in execution proceedings in civil suit no. 5 of 2004 instituted on 26.2.2004 titled as 'chandi and ors. v. ram dass and ors. the learned executing court has dismissed the objections of the jd-petitioner by holding that the objections raised by him with regard to the jurisdiction of the civil court was also subject matter of consideration of the court which had passed judgment and decree in civil suit no. 82 of 1994 instituted on 17.1.1994. the suit was decreed in favour of the 'decree-holder' respondents 1 to 4 (for brevity, 'dh-respondents') on 18.8.1999 and the first appeal was dismissed on 10.2.2004 being ca no. 188 of 1999. a regular second appeal bearing no. l19 of 2004 was also dismissed by this court on 25.3.2004 and even the s. l. p. (civil) no. 9358 of 2004 filed by the jd-petitioner also failed. the jd-petitioner who contested the suit as defendant was directed to hand over vacant possession of the suit land to the dh-respondents within two months from the date of that judgment. the operative part of the judgment and decree dated 18.8.1999 reads as under:-'on the basis of reasons recorded herein-in-before, while deciding different issues particularly issue no. l, suit filed by plaintiffs succeeds and decreed to the effect that they are entitled to possession of the suit land. defendant no. 1 is hereby directed to hand over the vacant possession of suit land to plaintiffs within two months of this judgment. it is further clarified that defendant no. 2 village panchayat will be at liberty to lease out the suit land afresh in the open auction after one year of taking possession of suit land by plaintiffs. in the meantime, plaintiffs shall pay lease money for one year to village panchayat i.e. defendant no. 2 on usual rates as decided by defendant no. 2. however, in the peculiar circumstances of the case, both the parties are left to bear their own costs. decree-sheet be prepared accordingly and file be consigned to the record-room.' 2. when the dh-respondents filed execution proceedings, the jd-petitioner preferred objections (annexure p.16) by alleging that the land belonged to gram panchayat and under the village common lands (regulation) act, 1961 (for brevity,, 'the act') only gram panchayat is entitled to seek his ejectment and in any case the jurisdiction of the civil court under section 13(1) of the act is barred. another objection raised was that the jd-petitioner is lessee under the gram panchayat and he cannot be deprived of possession in the execution proceedings.3. in the reply filed by the dh-respondents it was asserted that no lease deed in favour of the jd-petitioner was produced on record which is alleged to be dated 15.5.1992 or 20.2.1992 nor any affidavit dated 29.8.1986 was produced. the executing court rejected the objections. therefore, the plea that jd-petitioner was a tenant under the gram panchayat has been rejected and the jd-petitioner was held in unauthorised possession. the issue with regard to jurisdiction had been subject matter of decision of the civil court which was upheld upto supreme court by holding that the civil court has the jurisdiction in the facts and circumstances of the case. the executing court dismissed the objections of jd-petitioner by observing as under:-'keeping in view the arguments addressed by the learned counsel for the parties and after going through the record available on the file the court is of the view that the objection filed by the jd with regard to jurisdiction have already been decided by the trial court in its decision vide judgment and decree dated 18.8.1999. issue no. 6 in that case was exclusively for jurisdiction and that issue has already been decided against the jds with this ground that 'civil right of the possession of the plaintiff over the suit land is infringed by defendant no. 1 then certainly civil court has jurisdiction to try the present suit under section 9 of the lrc.' this issue of jurisdiction remained upheld up to the order of hon'ble apex court and case is already fixed for warrant of possession returnable for 18.11.2004 and it is the jd who has filed the present objection just to delay and harass the dh and also to frustrate the order of warrant of possession in favour of the decree holder. accordingly, it is very much clear from the conduct of the jd that he has filed these objections just to delay the possession procedure and the court is of the view that the present objections moved by the jd are wrong and baseless and these are liable to be dismissed. hence, these objections are hereby dismissed. accordingly, the objections stands disposed off.' 4. shri dhirinder chopra, learned counsel for the jd-petitioner has argued that there is lease deed dated 15.5.1992 or 20.2.1992 in favour of the jd-petitioner and their possession as a lessee of the gram panchayat must be kept intact. on that basis, learned counsel has maintained that no warrant of possession could be issued by the executing court. the learned counsel has urged that warrant of possession is liable to be revoked by accepting the objections of the jd-petitioner which has been illegally rejected by the executing court. having heard learned counsel for the jd-petitioner at some length, i am of the considered view that an attempt has been made to raise the same pleas before the executing court as well as before this court which were subject matter of adjudication before the trial court which has passed the decree in civil suit no. 82 of 1994, instituted on 17.1.1994 and decided on 18.8.1999. the aforementioned judgment and decree is sought to be executed by the dh-respondents by filing the execution proceedings in civil suit no. 5 of 2004 which has resulted into passing of order dated 30.10.2004. the objection based on the jurisdiction of the civil court was subject matter of decision of the trial court and it was held by the trial court that in the facts and circumstances of the case of civil court enjoyed the jurisdiction. similarly, the other objection based on lease deed/pattanama dated 15.5.1992 or 20.2.1992 or the affidavit dated 29.8.1986 were sought to be raised before the trial court by producing photo copies of those documents. no plea of additional evidence was allowed by the trial court and the photo copies were not accepted. it is well settled that the pleas which have already been adjudicated upon , by the trial court cannot be agitated again in executing proceedings under section 47 and order xxi rule 58 of the code of civil procedure, 1908 (for brevity, 'the code') because the executing court is not competent to go behind the decree and substitute its own opinion to the one expressed by the court which has passed the decree. the aforementioned proposition was subject matter of consideration of the supreme court in the case of ravinder kaur v. ashok kumar and anr., (2003)8 s.c.c. 289. in the aforementioned case, an identical situation was presented before the supreme court and objection with regard to correctness of the site plan was raised before the executing court which in fact stood already determined by the court which had passed the decree. rejecting the plea sought to be raised again, their lordships observed as under :-'......the objection that the learned judge referred to in the impugned order raised by the respondent herein was in regard to the correctness of the site plan. as notedearlier, this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted hereinabove. at the cost of repetition, wemust restate that this question of identity of the property was never again raised in the appeal before the appellate authority, in the revision before the revisional authority, namely, the high court or in the s.l.p. before this court. in such circumstances, we fail to understand how this very issue can be reagitated in the execution proceeding by the tenants. it is also to be noticed that the executing court has rightly observed that reopening of this issue would amount to asking that court to go behind the decree which is impermissible in law. we must, note this finding of the executing court is noteven noticed by the high court in the impugned order. the high court also did not take into consideration the reasoning of the coordinate bench of the same high courtin the dismissal order made in c. r. p. no. 5175 of 2002 on 29.10.2000 which while rejecting the similar contention of the respondents had specifically observed that the attempt of the tenants was with a view to delay their ejectment. in such a factual background, we think the impugned judgment is wholly erroneous having no legal orfactual basis to sustain it.....' 5. the parties have already litigated upto the supreme court and the jd-petitioner has been unnecessarily raising frivolous objections to the execution of the decree. i am in agreement with the opinion expressed by the learned executing court that the objections raised by the 'jd-petitioners are aimed at delaying the execution of the decree. such a tendency has to be strictly dealt with and should be completely discouraged because any frivolous objection causes delay which brings bad name to the judicial system. in ravinder kaur's case (supra), the supreme court took the view that raising of objection with regard to identity of the property and the site plan was absolutely unwarranted as it was aimed at delaying the eviction by abusing the process of the court. to discourage such a litigant from raising such frivolous objections, their lordships made some strong observations which are as under: -'.....therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. these type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system.for the reasons stated above, this appeal succeeds, the impugned order of the high court is set aside with exemplary cost of rs. 25,000/-.' therefore, i do not find any substance in the instant petition.6. even otherwise, it is well settled that jurisdiction of this court under article 227 could be invoked only in cases where there is likelihood of failure of justice or the party is likely to suffer such an irreparable loss which cannot be repaired by an ordinary remedy provided by law. the afore-mentioned view has been taken by the supreme court in laxmi chand rev chand v. pratap singh, j. t. 1995(7) s.c. 400 and quseph mathai v. m. abdul khadir, (2002)1 s.c.c. 319.7. for the reasons recorded above, this petition fails and the same is dismissed. thejd-petitioner cshall be liable to pay costs which 1 assess at rest. 5,000/-, the costs shall bedeposited with the executing court within a period of one month from the date of receipt of copy of this order so that the same be disbursed to the dh-respondents as theexecuting court has failed to impose any costs. the aforementioned course has beenadopted in view of the observations made by the supreme court in ravinder kaur 'scase (supra) and the provisions of section 35a(4) of the code. in case, the costs is notpaid, the same shall be recoverable from the jd-petitioner in accordance with law.
Judgment:

M.M. Kumar, J.

1. The judgment-debtor Ram Dass (for brevity, 'JD-petitioner') has filed this petition Under Article 227 of the Constitution who has prayed for quashing Order dated 30.10.2004 passed by the learned executing Court in execution proceedings in Civil Suit No. 5 of 2004 instituted on 26.2.2004 titled as 'Chandi and Ors. v. Ram Dass and Ors. The learned executing Court has dismissed the objections of the JD-petitioner by holding that the objections raised by him with regard to the jurisdiction of the civil Court was also subject matter of consideration of the Court which had passed judgment and decree in Civil Suit No. 82 of 1994 instituted on 17.1.1994. The suit was decreed in favour of the 'decree-holder' respondents 1 to 4 (for brevity, 'DH-respondents') on 18.8.1999 and the first appeal was dismissed on 10.2.2004 being CA No. 188 of 1999. A Regular Second Appeal bearing No. l19 of 2004 was also dismissed by this Court on 25.3.2004 and even the S. L. P. (Civil) No. 9358 of 2004 filed by the JD-petitioner also failed. The JD-petitioner who contested the suit as defendant was directed to hand over vacant possession of the suit land to the DH-respondents within two months from the date of that judgment. The operative part of the judgment and decree dated 18.8.1999 reads as Under:-

'On the basis of reasons recorded herein-in-before, while deciding different issues particularly issue No. l, suit filed by plaintiffs succeeds and decreed to the effect that they are entitled to possession of the suit land. Defendant No. 1 is hereby directed to hand over the vacant possession of suit land to plaintiffs within two months of this judgment. It is further clarified that defendant No. 2 Village Panchayat will be at liberty to lease out the suit land afresh in the open auction after one year of taking possession of suit land by plaintiffs. In the meantime, plaintiffs shall pay lease money for one year to village Panchayat i.e. defendant No. 2 on usual rates as decided by defendant No. 2. However, in the peculiar circumstances of the case, both the parties are left to bear their own costs. Decree-sheet be prepared accordingly and file be consigned to the record-room.'

2. When the DH-respondents filed execution proceedings, the JD-petitioner preferred objections (Annexure P.16) by alleging that the land belonged to Gram Panchayat and under the Village Common Lands (Regulation) Act, 1961 (for brevity,, 'the Act') only Gram Panchayat is entitled to seek his ejectment and in any case the jurisdiction of the Civil Court Under Section 13(1) of the Act is barred. Another objection raised was that the JD-petitioner is lessee under the Gram Panchayat and he cannot be deprived of possession in the execution proceedings.

3. In the reply filed by the DH-respondents it was asserted that no lease deed in favour of the JD-petitioner was produced on record which is alleged to be dated 15.5.1992 or 20.2.1992 nor any affidavit dated 29.8.1986 was produced. The executing Court rejected the objections. Therefore, the plea that JD-petitioner was a tenant Under the Gram Panchayat has been rejected and the JD-petitioner was held in unauthorised possession. The issue with regard to jurisdiction had been subject matter of decision of the Civil Court which was upheld upto Supreme Court by holding that the civil Court has the jurisdiction in the facts and circumstances of the case. The executing Court dismissed the objections of JD-petitioner by observing as Under:-

'Keeping in view the arguments addressed by the learned counsel for the parties and after going through the record available on the file the Court is of the view that the objection filed by the JD with regard to jurisdiction have already been decided by the trial Court in its decision vide judgment and decree dated 18.8.1999. Issue No. 6 in that case was exclusively for jurisdiction and that issue has already been decided against the JDs with this ground that 'civil right of the possession of the plaintiff over the suit land is infringed by defendant No. 1 then certainly civil Court has jurisdiction to try the present suit Under Section 9 of the LRC.' This issue of jurisdiction remained upheld up to the order of Hon'ble Apex Court and case is already fixed for warrant of possession returnable for 18.11.2004 and it is the JD who has filed the present objection just to delay and harass the DH and also to frustrate the Order of warrant of possession in favour of the decree holder. Accordingly, it is very much clear from the conduct of the JD that he has filed these objections just to delay the possession procedure and the Court is of the view that the present objections moved by the JD are wrong and baseless and these are liable to be dismissed. Hence, these objections are hereby dismissed. Accordingly, the objections stands disposed off.'

4. Shri Dhirinder Chopra, learned counsel for the JD-petitioner has argued that there is lease deed dated 15.5.1992 or 20.2.1992 in favour of the JD-petitioner and their possession as a lessee of the Gram Panchayat must be kept intact. On that basis, learned counsel has maintained that no warrant of possession could be issued by the executing Court. The learned counsel has urged that warrant of possession is liable to be revoked by accepting the objections of the JD-petitioner which has been illegally rejected by the executing Court. Having heard learned counsel for the JD-petitioner at some length, I am of the considered view that an attempt has been made to raise the same pleas before the executing Court as well as before this Court which were subject matter of adjudication before the trial Court which has passed the decree in Civil Suit No. 82 of 1994, instituted on 17.1.1994 and decided on 18.8.1999. The aforementioned judgment and decree is sought to be executed by the DH-respondents by filing the execution proceedings in Civil Suit No. 5 of 2004 which has resulted into passing of order dated 30.10.2004. The objection based on the jurisdiction of the civil court was subject matter of decision of the trial Court and it was held by the trial Court that in the facts and circumstances of the case of civil Court enjoyed the jurisdiction. Similarly, the other objection based on lease deed/pattanama dated 15.5.1992 or 20.2.1992 or the affidavit dated 29.8.1986 were sought to be raised before the trial Court by producing photo copies of those documents. No plea of additional evidence was allowed by the trial Court and the photo copies were not accepted. It is well settled that the pleas which have already been adjudicated upon , by the trial Court cannot be agitated again in executing proceedings Under Section 47 and Order XXI Rule 58 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') because the executing Court is not competent to go behind the decree and substitute its own opinion to the one expressed by the Court which has passed the decree. The aforementioned proposition was subject matter of consideration of the Supreme Court in the case of Ravinder Kaur v. Ashok Kumar and Anr., (2003)8 S.C.C. 289. In the aforementioned case, an identical situation was presented before the Supreme Court and objection with regard to correctness of the site plan was raised before the executing Court which in fact stood already determined by the Court which had passed the decree. Rejecting the plea sought to be raised again, their Lordships observed as Under :-

'......The objection that the learned Judge referred to in the impugned order raised by the respondent herein was in regard to the correctness of the site plan. As notedearlier, this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted hereinabove. At the cost of repetition, wemust restate that this question of identity of the property was never again raised in the appeal before the Appellate Authority, in the revision before the revisional authority, namely, the High Court or in the S.L.P. before this Court. In such circumstances, we fail to understand how this very issue can be reagitated in the execution proceeding by the tenants. It is also to be noticed that the executing court has rightly observed that reopening of this issue would amount to asking that court to go behind the decree which is impermissible in law. We must, note this finding of the executing court is noteven noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the Coordinate Bench of the same High Courtin the dismissal Order made in C. R. P. No. 5175 of 2002 on 29.10.2000 which while rejecting the similar contention of the respondents had specifically observed that the attempt of the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal orfactual basis to sustain it.....'

5. The parties have already litigated upto the Supreme Court and the JD-petitioner has been unnecessarily raising frivolous objections to the execution of the decree. I am in agreement with the opinion expressed by the learned executing Court that the objections raised by the 'JD-petitioners are aimed at delaying the execution of the decree. Such a tendency has to be strictly dealt with and should be completely discouraged because any frivolous objection causes delay which brings bad name to the judicial system. In Ravinder Kaur's case (supra), the Supreme Court took the view that raising of objection with regard to identity of the property and the site plan was absolutely unwarranted as it was aimed at delaying the eviction by abusing the process of the Court. To discourage such a litigant from raising such frivolous objections, their Lordships made some strong observations which are as Under: -

'.....Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system.

For the reasons stated above, this appeal succeeds, the impugned Order of the High Court is set aside with exemplary cost of Rs. 25,000/-.'

Therefore, I do not find any substance in the instant petition.

6. Even otherwise, it is well settled that jurisdiction of this Court Under Article 227 could be invoked only in cases where there is likelihood of failure of justice or the party is likely to suffer such an irreparable loss which cannot be repaired by an ordinary remedy provided by law. The afore-mentioned view has been taken by the Supreme Court in Laxmi Chand Rev Chand v. Pratap Singh, J. T. 1995(7) S.C. 400 and Quseph Mathai v. M. Abdul Khadir, (2002)1 S.C.C. 319.

7. For the reasons recorded above, this petition fails and the same is dismissed. TheJD-petitioner cshall be liable to pay costs which 1 assess at Rest. 5,000/-, The costs shall bedeposited with the executing Court within a period of one month from the date of receipt of copy of this order so that the same be disbursed to the DH-respondents as theexecuting Court has failed to impose any costs. The aforementioned course has beenadopted in view of the observations made by the Supreme Court in Ravinder Kaur 'scase (supra) and the provisions of Section 35A(4) of the Code. In case, the costs is notpaid, the same shall be recoverable from the JD-petitioner in accordance with law.