Shalimar Chemical Works Ltd Vs. Usha Holding and Enclave (P) Ltd. and Others - Court Judgment

Soumen Sen, J.

The order of refusal to stay execution proceeding during the pendency of an application filed under Order 21 Rule 97 to 101 read with Section 47 of the Code of Civil Procedure is the subject-matter of challenge in this revisional application.

The petitioner resisted the execution of an ex parte decree by filing the said application on the ground that the said decree was obtained against a dead person and by practising fraud upon the Court. It was alleged that the plaintiffs with the help of their recorded lawyer illegally proceeded with the suit against the wishes of the legal heirs of the defendant since deceased and obtained an ex parte decree in their favour without taking any steps for substitution of the legal representatives on record although the defendant expired on 21st August, 2007 almost immediately after filing of the suit. The applicants wanted to become a party in the ejectment suit by filing an application under Order 1 Rule 10 of the Code of Civil Procedure, but the said application was rejected on 14th March, 2008 when the suit had already abated.

The said decree by reason of the aforesaid is a nullity and cannot affect the right, title and interest of the applicant/petitioner. The applicant/petitioner claimed to be a tenant under erstwhile Mohammedan owners. The decreeholders, on the basis of such void decree, are trying to develop the said land against the provisions of law by illegal means. It was on such facts, an application was filed under Section 47 read with Order 21 Rule 97 of the Code of Civil Procedure.

In a suit for eviction, on 11th July, 2007, the original defendant appeared and filed a petition for disposal of the suit on taking evidence of the plaintiff. In the said petition, the defendant stated that he would not contest the suit and, accordingly, the suit was fixed for ex parte hearing on 27th july, 2007. The said suit was ultimately decreed on 30th May, 2008 and after the said decree, an execution case was filed on 30th July, 2008.

Mr. S.P. Roy Choudhury, the learned senior Counsel appearing on behalf of the petitioner submitted that the trial Judge had failed to consider that the petitioner was able to make out a prima facie case for granting an order of stay inasmuch as in deciding the said application for stay, the learned Judge is required to find out if the petitioner was able to make out an arguable case to go for trial. It is submitted that in deciding the said application, the learned trial Judge ought to have taken into consideration that the said decree is a nullity and accordingly not enforceable.

It was further contended that erstwhile Mohammedan owners have let out the suit properties to different persons including the petitioner and accordingly, the petitioner has an independent right to resist such decree. It is submitted that the order of the trial Judge in rejecting the said application under Order 1 Rule 10 on 14th March, 2008 and the order of affirmation of this Hon’ble Court on 3^rd June, 2008 cannot and does not have any bearing since the said orders are interlocutory orders and cannot have any bearing at the ultimate hearing of the application which is to be decided by the learned trial Judge. In this regard, Mr. Roy Choudhury has relied upon the following three decisions:-

(i) AIR 1964 SC 1305 (Karam Singh Sobti and Anr, v. Sri Pratap Chand and Anr.);

(ii) 81 CWN 400 (Jagat Enterprises v. Anup Kumar Daw and Ors.);

(iii) AIR 1970 SC 1468 (Khushro S. Gandhi and Ors. v. N.A. Guzder (dead) and Ors.)

In Karam Sing (supra) it was a suit for ejectment of tenant on the ground of subletting without consent of landlord. The tenant and the sub-tenant both were made defendants. One composite decree was passed against both. The sub-tenant only preferred an appeal in his own right against the decree even though the tenant decided not to file an appeal. It was held that sub-tenant would be entitled to have the decree set aside even though thereby the tenant would also be fit from that decree.

In Jagat Enterprises (supra), the Division Bench was considering an application of a sub-lessee in a suit for eviction against lessee. It was held that a decree for eviction and possession passed against a lessee is binding on a sublessee if the interest of the sub-lessee is extinguished along with the head lease. Where, however, the sub-lessee has an independent right or protection which can assert against his lessor or the decree is vitiated by fraud or collusion, the sublessee can challenge the decree for possession in an appropriate proceeding. In such a case, the sub-lessee is not a necessary party, and entitled to be impleaded in the suit against the lessee by his land lord, on his own in order to assert his independent right or any statutory protection.

In view thereof, the application filed under Order 1 Rule 10 of the Code of Civil Procedure at the instance of the sub-lessee was rejected.

In Khushro (supra), the Hon’ble Supreme Court was considering a suit for damages for defamation against several defendants. One of the defendants tendered an apology which was accepted by the plaintiff and embodied in a decree. The question arose whether acceptance of such apology could be treated to be a full satisfaction for the tort alleged to have been committed by the defendants. It was held that such acceptance of apology must be treated as an election on the part of the plaintiff to pursue his several remedies against the defendant apologizing. It was held that in the case of joint tort-feasors, in order to release all the joint tort-feasors the plaintiff must receive full satisfaction, or which the law must consider as such, from a tort-feasor, before other joint tort-feasors can rely on accord and satisfaction. The rule which is in consonance with equity, justice and good conscience, would recognize that liability of tort-feasors is joint and several. What is full satisfaction would depend on the facts and circumstances of each case.

Mr. Roy Choudhury, the learned senior Counsel also referred to 1995 (1) SCC 6 (Bhanwar Lal v. Satyanarain and Anr.) for the proposition that the petitioner has the locus to file the said application under Section 47 read with Order 21 Rule 97 to 101 of the Code of Civil Procedure. It is further argued that if the decree is produced, it would be evident that such decree was passed without any evidence and, accordingly, the decree is even otherwise not sustainable on merits. In fact, the decree is based on no evidence and accordingly, its validity can be questioned even in this proceeding. Inasmuch as the petitioner not being a party to the said lis, the said decree also does not and cannot bind the petitioner and for that proposition the following decisions even refered to:-

i) AIR 1970 SC 794 (Ferozi Lal jain v. Man Mal and Anr.);

ii) AIR 1973 SC 1311 (K.K. Chari v. R. M. Seshadri);

iii) AIR 1975 SC 2130 (Roshan Lal and Anr. v. Madan Lal and Ors.);

iv) AIR 1978 SC 952 (Suleman Noormohamed v. Umarbhai Janubhai);

v) 77 CWN 202 (Maharam Ali v. Dinanath Prasad Sha)

The aforesaid decisions were cited for the proposition that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact that is the existence of one or more of the conditions mentioned in the Tenancy Act were shown to have existed when the Court made the consent order. Satisfaction of the Court, which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. The Court needs to be satisfied about the grounds on which the order of eviction was based and before making an order for possession, the Court is under a duty to satisfy itself as to the truth of the landlord’s claim. However, if the tenant, in fact, admits that the landlord is entitled to possession of one or other of the statutory grounds mentioned the Act, it is open to the Court to act on such admission and make an order for possession in favour of the landlord without further enquiry.

In short, it is argued that the trial Court, at the time of deciding an application for stay, is required to be satisfied whether an arguable case has been made out to go for trial and if it satisfies such condition then the Court should grant a stay.

The aforesaid decided cases, however, do not assist the petitioner in receiving an order of stay from the trial Judge in relation the execution proceeding. The reason for refusal to grant the stay of execution is based on the principle that the facts narrated by the petitioner do not make out an arguable case. The matter has been elaborated in the later part of this judgment.

Mr. Saktinath Mukherjee, the learned senior Counsel appearing on behalf of the decree-holder, on the other hand, submitted that the said application filed under Order 21 Rule 97 to 101 read with Section 47 is mala fide and vexatious and the trial Judge was perfectly justified in exercising such discretion against the applicant/petitioner and in favour of the decree-holder.

Mr. Mukherjee, in referring to the order sheets of the suit, the order dated 14th March, 2008 and the order dated 3rd June, 2008 contended that the plea of sub-tenancy has been expressly rejected by a learned single Judge of this Hon’ble Court in considering the legality and validity of the order passed by the trial Judge in an application under Order 1 Rule 10 of the Code of Civil Procedure and he has specifically referred to the following observation of the learned single Judge:-

“The learned Trial Judge rejected the petitioner’s said prayer for addition of party by holding, inter alia, that the petitioner has failed to produce any evidence to show that such sub-tenancy was granted in favour of the petitioner by the opposite party No.9 with the consent in writing of the landlords, viz. the opposite party Nos.1 to 8.

In my view, non-notified sub-tenants have no independent status in respect of the suit premises so far as the suit for eviction is concerned filed by the landlords against the defendant.

Since the petitioner has failed to prove that his sub-tenancy was granted with the consent of the landlords in writing, the presence of the petitioner is not necessary for adjudication of the dispute in the suit as the decree passed in such a suit against the tenant is binding upon the subtenant.

Under such circumstances, this Court does not find any justification to interfere with the order impugned.

Before parting with this Court also wants to keep on record that the suit has also been decree ex parte during the pendency of this revisional application.”

In the application for addition it was alleged by the applicant that the judgment-debtor was a tenant under Bala Hari Mondal who was the father of the Krishna Gopal Mondal, the original defendant, and thereafter such rent was paid to one Dr. Soumendra Kumar Das who was the estate administrator of Bala Hari Mondal. In the year 1992 when the plaintiffs claimed ownership of the said property by reason of purchase from the original owner even at the time, the petitioner was paying rent to Dr. Soumendra Kumar Das. In the objection to the said Order 1 Rule 10, the present decree-holder denied the allegation and contended that the judgment-debtor filed a suit being Title Suit No.255 of 2006 in which the judgment-debtor claimed tenancy under Soumendra Kumar Das in respect of two houses and not under Bala Hari Mondal or Krishna Gopal Mondal. The decree-holder contended that the judgment-debtor is a stranger and he has no right to contest the said suit for eviction. After considering the said application, the trial Judge held that there are inconsistencies in the pleading and stand taken by the judgment-debtor since, on the one hand, the judgment-debtor contended that he is a tenant under Krishna Gopal Mondal, on the other hand, it was contended that the judgment-debtor presently is not a tenant under Krishna Gopal Mondal as initially he was paying rent to the father of the original defendant and, subsequently, tendered rent to the administrator of the estate of Bala Hari Mondal. The trial Judge found that there was no evidence to show that sub-tenancy was created with the consent of the landlord, although the judgment-debtor claimed sub-tenancy. On such facts, the application under Order 1 Rule 10 was rejected and such order was upheld by this Hon’ble High Court.

Mr. Mukherjee referred to the order dated 8th April, 2008 passed in connection with a petition filed by the opposite parties under Order 7 Rule 11 by the plaintiff/decree-holder for rejection of Title Suit No.255 of 2006. While allowing the said application for dismissal of the plaint, the learned trial Judge made the following observation:-

“In the prayer portion of the amended plaint plaintiff prayed for a decree of declaration that the plaintiff is a monthly tenant, defendants have no right to dispossess the plaintiff from the suit property. But plaintiff did not claim in the plaint under whom now he is a tenant. Sometime, plaintiff stated in the plaint that he is a tenant under the beneficiary as Bala Hari’s Will. Sometime, he stated that State of West Bengal is the landlord. Moreover, being a sub-tenant of the property plaintiff claims a right of tenancy over the suit property as the plaint framed by the plaintiff. Plaintiff’s case is that Bala Hari was the tenant and plaintiff is the tenant under Bala Hari. Nowhere in the plaint, plaintiff stated the name of superior landlord or the landlord of Bala Hari.”

The aforesaid order was passed in a suit filed by the judgment-debtor for a declaration that the said judgment-debtor is a monthly tenant and they are entitled to continue the tenancy until evicted by due course of law in respect of the suit property and a further declaration that neither of the defendants (the plaintiffs herein) have any right to dispossess the judgment-debtor from the suit property without due process of law.

Mr. Mukherjee on the aforesaid facts submitted that the said application under Order 21 Rule 97 to 101 read with Section 47 C.P.C. is mala fide and third attempt to resist execution.

Mr. Mukherjee relied upon Order 21 Rule 104 of the Code of Civil Procedure to show that if the parties have proceeded with a suit, touching on the self-same issue, then they would be debarred from continuing with the proceeding under Order 21 Rule 97 to 101.

It is submitted that it would be clear from the order passed in the suit that 3rd June, 2007 was fixed for ex parte order which, however, could not be pronounced for sometime until 30th May, 2008 when the decree was passed. In between on 7th September, 2007, the Court could not take up the matter due to paucity of time and, thereafter on 8th July, 2007, the application under Order 1 Rule 10 was filed which was ultimately disposed of by the trial judge on 14^th March, 2008. Ultimately, on 26th May, 2008 Shalimar filed an application for stay of the suit which, however, was rejected and the matter was kept for ex parte order on 30th May, 2008 on which date the suit was decreed ex parte. It was submitted that by reason of the Order dated 27th July, 2007, the objection with regard to the abatement of the suit is misconceived and unsustainable since by the said order the examination of P.W.1 was completed, documents were marked as exhibits and the witness was discharged. The following orders of the trial Court were refused to in order to show that before the death of the original defendant the hearing was concluded:-

“Order No.2 dt.11.07.2007

Plaintiff files hazira. Defendant appeared by filing vokalatnama, Defendant files a petition for disposal of the suit on taking evidence of the plaintiff. Defendant stated further that he will not contest the suit.

Heard, perused, considered, Considering the all respect fix 27.07.2007 for exparte hearing of the suit.

Sd/-illegible Civil Judge (Jr Divn)

Order No.3 dt.27.07.2007

Plaintiff files hazira and affidavit in chief along with documents. Affidavit in chief if accepted. PW 1 is examined in chief in full and discharged. Documents marked ext no.1 series, 2,3 and 4. To 3.8.2007 for exparte order.

Sd/-illegible, Civil Judge (Jr Divn)

Order No.4 dated 3.8.2007 for exparte order.

Sd/- illegible, Civil Judge (Jr Divn)”

Accordingly, nothing remained in the suit excepting pronouncement of judgment in the suit. In view thereof, death of the original defendant on 21^st August, 2007 does not make the said decree a nullity. It is submitted that the petitioners have also virtually admitted the same in paragraph 7 of their application filed under Order 1 Rule 10 of the Code of Civil Procedure. In any event, it was argued that judgment-debtor cannot resist the decree either on the ground that he is a sub-tenant or having any independent title. Both such contentions have been negatived by the trial Judge in earlier proceedings and such orders have attained finality. Accordingly, it is submitted that the trial Judge was justified in refusing to exercise such discretion.

It was further contended that Krishna Gopal Mondal, the original defendant died on 21st August, 2007 and the hearing of the suit was closed on 27th July, 2007. Order 22 Rule 6 of the Code of Civil Procedure provides that there could not be any abatement of the suit by reason of the death of the defendant after conclusion of the hearing and before pronouncement of the judgment (N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors., AIR 1996 SC 116) since Krishna Gopal Mondal died after conclusion of hearing there is no abatement of suit. The decree-holder further contended that the earlier attempt of the applicant to intervene in the suit by filing an application under Order 1Rule 10 of the Code of Civil Procedure was rejected by the trial court on 14^th March, 2008 which was subsequently affirmed by a learned single Judge of this Court in C.O. No.987 of 2008 on 3rd June, 2008. With these facts, the learned Civil Judge, Junior Division considered the prayer for stay and the same was rejected. In rejecting the said application, the learned Civil Judge held that the decision in 81 CWN 400 (Jagat Enterprises v. Anup Kumar Daw and Ors.) has no manner of application since the issues in Jagat (supra) are entirely different from the issues involved in the said application inasmuch as the petitioner has failed to satisfy the Court for stay of the execution proceeding till the disposal of the application under Section 47 read with Order 41 Rule 97 of the Code of Civil Procedure.

In considering the prayer for stay, the following observation of the Privy Council in Thomas Walker Vs. Auber George Jones reported in [1865-69] 1-2 L.R.P.C 50, at page 60 can be the guiding principle although it refers to the duty of an appellate court in granting an order of injunction:-

“In disposing of this appeal, we think it right, in the first place, to observe that questions possibly of some nicety and difficulty as to the rights and obligations of mortgagees, in their dealings with the mortgaged property, appear to be involved in this cause, and that the stage of the cause in which this appeal has been brought renders it difficult for us now to deal with those questions. They are questions more proper to be determined at the hearing of the cause, and it is not necessary, nor, indeed, would it be right, for us now to give any final opinion upon them; but yet the consideration of them is necessarily, to some extent at least, involved in the question which alone we have to conisder, whether the order under appeal ought or ought not to have been made. The real point before us upon this appeal is not how these questions ought to be decided at the hearing of the cause, but whether the nature and difficulty of the questions is such that it was proper that the injunction should be granted until the time for deciding them should arrive. The material points, and those with which only we think it necessary to deal, appear to us to be these:-What were the relations subsisting between the Appellant and the Respondent? What were the rights and obligations flowing from those relations? And whether the course of conduct pursued by the Appellant has been in conformity with, or in opposition to, those rights and obligations, considering as we repeat, these several questions with reference only to their bearing upon the order under appeal, and not for the purpose of finally deciding them.”

The said decision, in short, emphasized that in the event, an arguable case is made out to go for trial the party aggrieved by the judgment would be entitled to get a stay till those rights are finally adjudicated.

It is no doubt that the present application is the third proceeding initiated to resist the decree. The learned trial Judge has taken into consideration the orders passed in the earlier proceedings between the same parties. The question whether the said decree is executable in view of the fact that the said judgment was passed against a dead person, is an issue to be decided by the trial Judge before whom the said application is pending. Prima facie, it appears that the original judgment-debtor died after conclusion of hearing and before the pronouncement of judgment. It also prima facie appears that even under Order 22 Rule 4 (4) of the Code of Civil Procedure that decree may not fail having regard to the facts of the case. Moreover, the application for addition of party was made after the death of the original defendant. The said application was dismissed on merit. Prior thereto a suit for declarations of tenancy right was filed in 2006 which was dismissed on April 8, 2008 and no appeal has been preferred against the said order. The decree dated 30th May, 2008 was produced and it appears that such decree was passed after consideration of evidence on record.

Mr. Saktinath Mukherjee has also argued that in view of Order 21 Rule 104 of the Code of Civil Procedure, the said application filed under Order 21 Rule 97 to 101 is not maintainable but at the same time, he conceded the said issue is to be decided by the trial Judge before whom the proceeding is pending. This Court also in agreement with the view expressed by Mr. Mukherjee.

The considerations which weighed with the trial Judge in refusing to stay the execution proceeding, does not appear to have suffered from any jurisdictional error or suffer from illegality or material irregularity. In view thereof the Court finds no justification to interfere with the order. The order succeeds, however, there shall be no order as to costs. However, it is made clear that the observation made by this Court in upholding the said order are prima facie and only for the purpose of deciding the instant application. The observation should not influence the trial court at all when the said application filed under Section 47 read with Order 21 Rule 97 to 101 is finally considered on merits.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.