M/S Mata And Company vs State Of U.P. And Others
2023 Latest Caselaw 5009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
[Reserved]
 

 

 

 
In Chamber
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 167 of 2007
 

 
Petitioner :- M/S Mata And Company
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Sant Sharan Upadhyaya,Smt.Sadhna Upadhayaya
 
Counsel for Respondent :- C.S.C.,M.K.Gupta,Pankaj Agarwal
 

 
Hon'ble Vivek Chaudhary,J.

1. Present petition is filed by M/S Mata and Company through its managing partner Sri Hari Prakash Rajoriya challenging the order dated 02.02.2007 passed in Miscellaneous Case No.21 of 1996. By the impugned order, the learned Additional District Judge, Court No.3, Firozabad has rejected the objections filed by the petitioner under Order 21 Rule 97, 98, and 100 of the C.P.C. against the execution of the decree dated 07.04.1994 passed in SCC Suit No. 23/89 in favour of the private respondent, Dharmendra Dutt Gupta.

2. The claim of the petitioner is that the property in dispute, for which an SCC suit was filed by the private respondents claiming themselves to be owners, for eviction of Sri Satya Prakash Rajoriya S/o Sri Sukh Lal Rajoriya who is also real brother of Hari Prakash Rajoriya, the managing partner of the petitioner company, does not belong to the respondents but is owned by the petitioner.

3. The facts of the case are that by sale deed dated 02.12.1978, certain properties were purchased by Sri Dharmendra Dutt Gupta, plaintiff-private respondent from Kumar Pharmaceutical Works Pvt. Ltd. through its directors Shri Gopalchand Agarwal and Sri S. K. Agarwal. The properties sold were shown by number, boundaries and a map was also attached to it clearly describing it. The property consisted of constructed area and open space. The number of the properties in the sale deed read Plot No. 328ka/1 measuring 8800 sq.ft. The number was corrected from 328ka/1 to plot No. 330 through a correction deed dated 02.02.1988 but other description remained same. Plot No. 330 was later assigned a new number i.e., Plot No. 432. On 24.07.1969, S.K. Agarwal had mortgaged some of his properties to U.P.F.C. for securing a loan. When S.K.Agarwal defaulted on repayment of his loan his properties were auctioned. In the said auction M/S Mata and Company emerged the highest bidder. Hence, on 16.12.1987 auction sale deed was executed in its favour. The description of the property in the auction sale deed dated 16.12.1987 reads- 328kha, 328/1, 329kha, 330kha, 331ka, and 332ka.

4. Apparently, the correction deed dated 02.02.1988 to sale deed dated 02.12.1987 was executed after the auction sale deed dated 16.12.1987. The Additional Collector, Agra passed an order dated 24.05.1988, on an application of private respondent Sri Dharmendra Dutt Gupta, clarifying that the property purchased by him by sale deed dated 02.12.1978, earlier incorrectly noted the Plot No.328ka/1 and which was corrected by a correction deed dated 02.02.1988 as Plot No.330, after chakbandi got new number 432, is not sold in the recovery proceedings. Hence, there is no question of eviction of owner of Plot No.330, Sri Dharmendra Dutt Gupta from the property in dispute in auction proceedings.

5. By order dated 28.10.1988, the Additional District Magistrate, Agra also cancelled the auction sale held in favour of the petitioner company. The said order dated 28.10.1988 was challenged by the petitioner by way of Civil Misc. Writ Petition No.893 of 1989 but the same was dismissed for want of prosecution on 02.01.2006.

6. Sri Dharmendra Dutt Gupta leased the property in dispute to Sri Satya Prakash Rajoria by lease deed dated 19.05.1981. When Satya Prakash Rajoria defaulted on payment of rent, Sri Dharmendra Dutt Gupta filed an SCC Suit No.23 of 1989 for his eviction. The property which was given on lease is described by boundaries and other details in the lease deed as well as in the SCC suit.

7. The suit was decreed exparte on 07.04.1994. No revision against the said order was filed by Sri Satya Prakash Rajoria. Petitioner filed his objections under Order 21 Rule 97, 98 and 100 of CPC in the Execution Case No. 3 of 1994 filed by plaintiff-private respondent. The said objections were rejected by the Additional District Judge, Firozabad by its judgment and order dated 02.02.2007. The learned Additional District Judge gave a specific finding that the property auctioned in favour of the petitioner/objector and the property in dispute are entirely different and separate properties. The Additional District Judge has further given a finding that brother of the tenant has purposely and mischievously filed these objections only to delay the eviction of his brother. Challenging the same, petitioner approached this Court by filing a writ petition which was numbered as Writ Petition No.11375 of 2007. On 02.03.2007, the very first date, this Court passed the following order:-

"This writ petition arises out of execution proceeding in suit number 27 of 1989 and is not cognizable of this bench. Put up before appropriate bench as fresh."

8. On 07.03.2007, the matter was placed before the Bench hearing petitions under Article 227 of the Constitution of India, which passed the following order:-

"Learned counsel for the petitioner prays for and is allowed two days' time to file an application and affidavit seeking certain amendments.

Put up on 12.03.2007 as fresh."

9. Petitioner filed an application to convert the writ petition into a petition under Article 227 of the Constitution of India and thus, the Court passed the following order on 15.03.2007:-

"Learned counsel for the petitioner prays for and is allowed to amend the writ petition by converting it into on application under Article 227 of Constitution of India.

Put up on 16.03.2007 as fresh.

Office to proceed accordingly."

10. The case was directed to be put up on 16.03.2007, when the Court passed the following order:-

"Heard.

Issue notice to the respondents returnable within six weeks through registered post with acknowledge. In addition to the normal mode of service, the petitioner is permitted to serve the respondents personally and shall file an affidavit of service by the next date of listing. Requisite steps be taken within 24 hours. Office shall provide the steps be taken within 24 hours. Office shall provide the copy of Dasti summons within 48 hours to the applicant.

List this case on 28.03.2007.

Status quo as of today shall be maintained by the parties till 28.03.2007."

11. Counsel for the plaintiff-private respondent states that against the impugned order, a revision was maintainable and for the same a caveat was also filed by the plaintiff-private respondent. To avoid its reporting, instead of filing an SCC revision, a petition under Article 227 was filed.

12. I have heard counsels for the parties and perused the record.

13. The submission of counsel for the petitioner Mr. Sant Sharan Upadhyaya, Advocate is that a first appeal from order under Order 21 Rule 103 would be maitainable against the impugned order as an application under Order 21 Rule 97, 98 and 100 of CPC is rejected. He submits that he may be permitted to convert the present petition into a first appeal from order. To butress the argument, he submits that petitioner would have much larger scope to argue the case and hence, his prayer for converting the present petition under Article 227 of Constitution of India into a first appeal from order be allowed. Petitioner, for the said purposes, has relied upon the following judgments:-

(i) S. Ramachandra Rao vs. S. Nagabhushana Rao and Ors.; AIR2022SC5317

(ii) Judgment dated 18.05.2018 in WRIT-C No. 2973 of 2016 (Smt. Kusum Lata vs. State of U.P. & 3 Others)

(iii) Judgment of the Supreme Court dated 11.07.2022 in Civil Appeal No. 4113 of 2022 (Mohammed Ali vs. V. Jaya & Ors.)

(iv) Radhey Shyam and Ors. Vs. Chhabi Nath and Ors.; (2015)5SCC423

(v) Judgment dated 28.05.2018 in Matters Under Article 227 No. - 3626 of 2018 (Shiv Baba Industry Lalpur vs. State of U.P. and Ors.)

14. On the other hand, learned counsel for the plaintiff-private respondent, Mr. Pankaj Agarwal, Advocate submits that against the impugned order an SCC revision is maintainable, as the same arises out of an execution proceedings in an SCC suit. He relies upon the judgment in case of "Wahid vs. Mohd. Anwar"; reported in (2009) 3 AWC2 121 All.

15. Learned counsel for the plaintiff-private respondent further submits that he had filed a caveat in the revision, but, purposely to avoid the said caveat a writ petition/petition under Article 227 was filed. He further submits that the same is pending before this Court for the last 15 years. During this long period, no attempt was made by the petitioner for converting his petition into first appeal from order or civil revision. It is now, when the case is taken up for hearing, prayer made by the petitioner is nothing but a tactic only to further delay the proceedings. He submits that without any fault on the part of the plaintiff-private respondent the SCC suit decreed in year 1994 could not be executed for the last about 30 years.

16. Learned counsel for the plaintiff-private respondent further vehemently argues that proceedings are collusive between the two brothers and their entire family is enjoying the benefits of delay in the proceedings. He submits that the scope of hearing of this Court under a SCC revision as well as a petition under Article 227 is supervisory in nature and, therefore, the same does not in any manner impact the rights of the petitioner.

17. The issue, as to whether a revision would lie against the dismissal of objections filed under Order 21 Rule 97, 98 and 100 or an appeal would lie, is conclusively decided by this Court in case of Wahid (supra). The relevant paragraphs of the said judgment reads:-

"15. The appellant had filed his objection under Order XXI, Rule 97. In this objection he claimed himself to be the owner of the property in dispute. The counsel for the Appellant submitted that:

(i) All questions arising between the parties are to be decided in this proceedings under Order XXI, Rule 101 and not by a separate suit;

(ii) The question of title cannot be decided by the Court of Small Causes;

(iii) The order has the same force and subject to same condition as it were a decree; and

(iv) As an appeal lies against the decree under the C.P.C, the present appeal is maintainable.

16. Order XXI, Rule 101 clearly states that all questions arising between the parties to a proceeding under Order XXI, Rule 97 or Rule 98 or their representatives shall be determined by the Court dealing with the proceeding and not by a suit. It further declares that the Court shall be deemed to have jurisdiction to decide such question. It cannot be said that the Court of Small Causes cannot decide the question of title in case it so arises in these proceedings. The question, even of title, can be gone into in these proceedings.

17. The effect of Order XXI, Rule 103 is that such an order is to be treated as a decree. It does not provide for any appeal against the order. In case an appeal lies against such a decree only then appeal can be filed. Needless to say appeal is creature of a statute. It can only be filed only if there is provision for the same.

18. Section 17 of the P.S.C.C. Act provides that the C.P.C. applies to the Court of Small Causes subject to the exclusion made by it or by the C.P.C. First appeal and second appeal against a decree are provided under Section 96 and under Section 100 of the C.P.C. Application of these sections to the Court of Small Causes have been excluded by Section 7 of the CPC and as such no appeal can be filed under these sections.

19. Section 25 of the P.S.C.C. Act provides for further proceeding against a decree and the orders passed by the Court of Small Causes. It provides for a revision against the same. While discussing the 2nd point, I have already held that the impugned order is the order passed by the Court of Small Causes: this order is to be treated as a decree by the Court of Small Causes. If this is so, then appeal cannot be filed under Section 96 read with Order XXI, Rule 103 of C.P.C. Only a revision can be filed under Section 25 of the P.S.C.C. Act read with Order XXI, Rule 103 of the C.P.C."

18. Thus, from the aforesaid judgment, it is clear that it is not a First Appeal From Order but a revision that would be maintainable against the impugned order. Since, the scope of both revision as well as petition under Article 227 is supervisory in nature, this Court does not find that deciding this matter under Article 227 would in any manner adversely impact any rights of the petitioner. Even otherwise, on merits also, the sole objection raised by the petitioner is that, as per the documents filed, he is the owner of the property in dispute and the order of the learned Additional District Judge to the controversy is perverse. The said aspect of the matter can very well be looked into by this Court in its supervisory jurisdiction under Article 227 of the Constitution of India. Hence, prayer of the petitioner for converting the petition into First Appeal From Order is rejected. The sole submission on merits raised by the petitioner is that as per records the property in dispute is owned by him. Plot No. 328ka/1 was sold by Sri S.K. Agarwal to Dharmendra Dutt Gupta by sale deed dated 02.12.1978. On the other hand, property sold in auction by the auction sale deed dated 16.12.1987 in favour of the petitioner includes, amongst others plot no. 328/1. Thus, petitioner claims he purchased the property in dispute by auction sale deed. He further claims that by correction deed dated 02.02.1988 the number of the property in the sale deed was changed from Plot No.328ka/1 to Plot No.330 only to illegally bring the said property out of auction.

19. Though, the auction was cancelled by order dated 28.10.1988 and the Writ Petition No.893 of 1989 challenging the order dated 28.10.1988 was dismissed for want of prosecution on 02.01.2006 and thereafter was never restored, hence, in the said undisputed facts, the present petition can be outrightly rejected on the ground that petitioner has no right in any auction property, including the property in dispute. However, to bring finality to the entire dispute, as the same is pending since very long, this Court finds it appropriate to consider the claim of petitioner on merits also. The best claim petitioner can have is on the basis of the auction sale deed dated 16.12.1987. The property described in the said sale deed includes Plot No.328/1. It is apparent that when the property of earlier owner were auctioned, immediatly Sri Dharmendra Dutt Gupta verified the property number of his own property, which he had purchased by way of sale deed dated 02.12.1978, and got the same corrected to Plot No.330. The Additional District Magistrate also got the said facts verified and thereafter passed an order dated 24.05.1988, that neither the Plot No.330 which is owned by Sri Dharmendra Dutt Gupta is auctioned nor possession of the same is taken in auction. The said order is never disputed by the petitioner in any manner. It is now more than 30 years old and still stands. Even otherwise, petitioner also failed to prove that after auction sale deed he ever got possession of the property in dispute. The learned Additional District Judge has also considered each and every fact at length in the impugned order and found that the property leased out by the plaintiff of the suit, Sri Dharmendra Dutt Gupta, to the brother of petitioner-objector does not belong to the petitioner-objector but to the plaintiff-respondent. Even before this Court the petitioner-objector miserably failed to show as to how he became the owner of the said property. Petitioner cannot claim it on the basis of merely an incorrect noting in the sale deed which stand corrected. The petitioner has also failed to show from the description of the constructions or the boundaries of the property that it was auctioned to him. Petitioner has continued this protracted litigation only to some how maintain possession of his brother on the property in dispute.

20. From perusal of the aforesaid it is clear that petitioner never became owner of the property involved in the SCC suit. The learned Additional District Judge has also given the same finding and I do not find any illegality in his finding. It is apparent that petitioner has filed the petition in collusion with his brother to anyhow ensure that they continue their possession despite the decree of the SCC suit in favour of the private respondent. They have been able to retain their possession, in the garb of this litigation, for nearly 28 years.

21. It is further worthy to note that the petitioner had also filed an Original Suit No.154 of 1997 with the prayer seeking injunction restraining the decree holder-private respondent from taking possession of the property by claiming himself to be owner of the property involved in the SCC suit. The said suit was also dismissed for want of prosecution on 24.03.2003 and was never restored back. All the aforesaid facts show fact that the petitioner has abused the judicial processes and litigated unnecessarily to keep the plaintiff-private respondent from taking possession of the property rightfully belonging to them.

22. In the aforesaid fact, this is a fit case for imposing cost on the petitioner for filing frivolous litigations and abusing process of law. In the light of aforesaid facts, a cost of Rs. 50,000 is imposed on the petitioner to be paid to the respondent within one month from the date of pronouncement of this judgment. In case of failure to pay the same, it can be recovered as a decree through court concerned.

23. The petition is Dismissed with cost.

Order Date :-15.02.2023

Arti/-

[Vivek Chaudhary,J.]