Dhanaraji Baburam Yadav And Anr. vs Ramakant K. Dhanawade And Ors.
2002 Latest Caselaw 168 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioners are taking exception to the judgments and orders passed by Small Causes Court in Ejectment Application No. 715 of 1972 and consequential appeal decided by the Division Bench of the Small Causes Court bearing Appeal No. 18 of 1988 in Obstructionist Notice No. 67 of 1983.

2. The facts of the matter heed to be stated for understanding the controversy in better way. The Ejectment Application No. 715 of 1972 was filed under Chapter VII of the Presidency Small Causes Court Act (for convenience referred to as the Act). It was treated to be a summary proceeding. When the decree was put to execution by decree holder, Kondiram Dhanawade, father of original defendant Ramakant Kondiram Dhanawade obstructed the execution proceedings by contending that he was residing in the said tenement as licensee since 1972 though the suit was filed in the year 1972 and he was not participating in it as co-defendant. It is necessary to mention here that the said tenement was declared to be the slum area in view of Government Notification No. SLM/IMP/CA/I/3 on 30-8-1977 and it was published in Maharashtra Gazette part I dated 15-9-1977 at page 1626. It is also necessary to mention that the obstructionist was indeed in possession of the property at the time of inspection done by the Deputy Collector, Kurla I. The original decree holder Kondiram Dhanawade was not having any concern whatsoever with the suit tenement according to the contention of obstructionist Ramakant Dhanawade because the present petitioners have themselves created leave and licence in favour of the obstructionist in the month of November 1972 and on 1-11-1972 he was put in possession of the premises by the petitioners themselves and since then he was having the exclusive possession of the suit premises under the name and style of "Dhanawade Brothers". It is also necessary to. mention here that it was the contention of the obstructionist that though the present petitioners were aware of this fact even then they filed the ejectment proceedings against one of them only. The obstructionist had also contended that the said licence continued and was subsisting on 1-2-1973 and, therefore, the obstructionist was "deemed tenant" in respect of the suit premises. He claimed the protection in view of provisions of Section 15-A of the amended Bombay Rent Act.

3. The present petitioners denied the averment made by obstructionist in respect of the said licence and their status as deemed tenant. They denied the averment of the obstructionist in respect of the said alleged agreement.

4. The Small Cause Court which decided the said application had raised an issue "Do the obstructionists prove that they had been put into possession of the application premises by the applicants on 1-11-1972 under leave and licence agreement and the same leave and licence was subsisting on 1-2-1973?" The finding which has been recorded by the learned Judge is "No". However, the learned Judge recorded his finding that the suit premises in which the obstructionists resided was declared as "slum area" by Government of Maharashtra under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Therefore, the learned Judge declared that the order or decree obtained by the applicants in Ejectment Application No. 715 of 1972 was nullity.

5. The said order was challenged in appeal and the Division Bench of Small Cause Court confirmed the finding and order which was recorded against the petitioners by the Single Judge of Small Cause Court by judgment and order dated 23-11-1987. Thus, both these judgments and orders are being assailed by this writ petition.

6. Mr. Abhyankar, Counsel appearing for the petitioners, submitted that the Courts below committed the error of law in not noticing that both the Courts could not have gone beyond the decree when the said decree was put to execution. He also submitted that when both the Courts were making the enquiry into the matter of obstruction, they should have noticed that the contention which was raised denting the decree itself, was not raised by both, the original respondent and obstructionists, in the trial but was raised in the year 1985 only.

He submitted that when the obstructionist was residing in the same premises he could have noticed the pendency of the proceeding - suit and, therefore, immediately he should have rushed to the Court and should have pleaded that he was in exclusive possession of the premises as licensee as alleged by him. He submitted that in view of the wrong approach taken by both the Courts below, they landed in error of passing the judgments and orders which are being assailed by this writ petition. He prayed that writ of certiorari be issued in favour of the petitioners and both those judgments and orders be quashed.

7. Shri Bhat, Counsel appearing for the respondents, submitted that the judgments and orders passed by the Courts below are totally justifiable, correct and legal. He submitted that though the objection was not raised in the trial Court, the situation does not change. He further submitted that the obstructionist could know about the decree when it was put to execution only and, therefore, there was no opportunity for him to raise such contention before the trial Court. He further submitted that the provisions of Section 22(1)(b) have not been properly interpreted by Courts below and in view of that, both the Courts below were not legally empowered to execute the decree which was put to execution. He prayed that this writ petition be dismissed.

8. Section 22 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as the Act, for convenience) provides :

"22. (1) Notwithstanding anything contained in any other law for the time being in force, no person shall except with the previous permission in writing of the Competent Authority, -

(a)     institute, after commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, any suit or proceeding for obtaining any decree or order for the eviction of an occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier, or for both; or
 

(b)     when any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of an occupier from any building or land in such area or for recovery of any arrears of rent or compensation from such occupier, or for both execute such decree or order;"  
 

Both the Courts have made reference to provision of law embodied in Section 22(1)(b) and refused to put the decree already obtained by the petitioners to execution by saying that they did not have the jurisdiction to do so and Shri Bhat, Counsel appearing for the respondents, placed reliance on that provision also. Shri Abhyankar had submitted that the Courts below committed an error of law in going beyond the decree and committed the error of law in adverting their attention to provisions of Section 22(I)(b) of the Act and committed the error of passing such judgments and orders.

9. This Court finds force in his submission for the reasons stated hereunder.

It is true that by the Government Notification No. SLM/IMP/CA/I/3 the Government of Maharashtra declared the area in which the suit premises are situated as slum and that notification is dated 30-8-1977. Decree has been passed in the year 1985. That means between 30-8-1977 and the date on which the said decree was passed, neither the present respondent No. 1 nor respondent No. 2 nor respondent No. 3 raised any objection to the jurisdiction of the Civil Court where that suit was pending for hearing and adjudication. Even before the decree was passed and drawn this point was not raised at all. Furthermore, it is important to note that when the said decree was put to execution, for the first time, the present obstructionists obstructed the execution of the decree but not on the point of it being a slum area notified by the Government of Maharashtra but on a different point. He contended that he was in possession of the suit premises as licensee and was conducting the business in it under the style "M/s Dhanawade Brothers". He obstructed the execution of the decree on the ground of said alleged agreement of leave and licence executed by the present petitioners in their favour and which was in existence on 1-11-1973. They contended that both of them have acquired the status of "deemed tenant". Though the obstructionists pointed out that the said premises was situated in "slum area", that was not the contention raised even at that time by the original judgment debtor against whom the decree was sought to be executed.

10. Mr. Abhyankar submitted that in view of this situation, this Court will have to look to the judgments of Single Bench of this Court in the matter of (1) Fattechand Murlidhar Shop, Sitabuldi, Nagpur v. Shrikrishna Tejmalji Chandak, and (2) Bhaurao v. Smt. Savitribai and Ors. . He contended that in the matter of Fattechand Murlidhar's case it has been held by the Single Bench of this Court that where the objection that the suit for eviction of tenant had been instituted without obtaining the permission of the Competent Authority as required under Section 22 of the Maharashtra Act 28 of 1971 was not raised during the trial of the suit and the decree for eviction was passed, the Execution Court could not entertain and allow the said objection to the executability of the decree. It could not be said that the decree was passed by the Court having no inherent jurisdiction and was therefore nullity.

11. The Single Bench of this Court held in Bhaurao's case (supra) that when the objection about the maintainability of the suit was not raised earlier, but was raised for the first time in execution proceedings that the suit was not tenable in view of the provisions of Maharashtra Slum Areas Act, 1971, the said objection could not be taken to be tenable in execution proceedings. While holding that, the Single Bench of this Court made reference to Civil Revision Application No. 638 of 1984 decided on 22-9-1988 Chandrakant Purshottam Tapas v. Vinayak Keshaorao Buty and pointed out that in that matter also that the objection was taken at the stage of execution and was dismissed.

12. It is necessary in this context to quote the observations of the learned Single Judge in the matter of Civil Revision Application No. 638 of 1984 Chandrakant Purshottam Tapas v. Vinayak Keshaorao Buty which is as mentioned hereunder:--

"With the assistance of the learned counsel for the parties, I have examined the record. I do not see any case for interference in the revisional jurisdiction. Whether or not particular premises are governed by the Act is a mixed question of fact and law which cannot be allowed to be raised for the first time in execution proceedings. If that be the correct position, it is difficult to see how the decree is nullity specially when the judgment debtor has not challenged it."

13. It is pertinent to note that in the matter of C. Mackertich v. Steuart and Co. Ltd., , the Supreme Court held that point which has not been raised in the written statement cannot be allowed to be raised at later stage.

14. In view of provisions of Section 45 of the Act, the proceedings even connected with the provisions of the Act are to be conducted in accordance with provisions of Civil Procedure Code because Sub-section (1) of Section 45 states that in exercising the jurisdiction conferred upon it by or under this Act (Slums Act), the Tribunal shall have the powers of a Civil Court for the purpose of taking evidence on oath, affirmation or affidavit or summoning and enforcing the attendance of witnesses, or compelling discovery and the production of documents and material objects, requisitioning any public record or any copy thereof from any court or office, issuing commissions for the examination of witness or documents, and for such other purposes as may be prescribed including the power to grant stay and any other powers of a Civil Court which, may be vested in the Tribunal; and the Tribunal shall be deemed to be a civil court for all purposes of Sections 195, 480 and 482 of the Code of Criminal Procedure, 1898 and its proceedings shall be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code. Thus, the word "notwithstanding" should not be taken to be wiping out the provisions of Civil Procedure Code which are inherently necessary for carrying out the proceedings further to the adjudicating end. Therefore, the Executing Court would not be precluded from adverting its attention to the point while making the necessary enquiry where obstructionist had raised the contention which he wanted to raise at the time of the execution of the decree, before the trial Court and before the decree was passed. Apart from that, it would be bound by the well settled position of law that the Executing Court is not having the jurisdiction to go beyond the decree which has been put before it for execution. Therefore, when the Small Cause Court which initially made enquiry in respect of the obstruction put by the obstructionist in view of provisions of Order 21 Rules 101 of Civil Procedure Code it was bound to advert its attention where such plea was raised by original defendant at the time of trial either in the written statement or in putting his case before the Judgment was pronounced and consequently the decree was drawn. It was bound to advert its attention to the point that the point which was raised by the obstructionist at the time of execution of the said decree was not raised before the decree was passed by the original defendant and which was also not raised by him at the time of execution of the decree. Besides that, it was its duty to advert its attention to the point that the obstructionist and original defendant were none else but father and son and both were keeping themselves present in the said suit premises. Being it so, the Executing Court could not have avoided the information that both of them were knowing the pendency of the said suit in the trial Court and both of them were knowing the existence of the said notification issued by State of Maharashtra by its notification in the year 1977.

15. That being so, very amazingly the obstructionist has taken the plea that he happens to be "deemed tenant" of the suit premises as there was an agreement of leave and licence in his favour which was in existence on 1-11-1973. Thus, it is pertinent to note that he was seeking the protection not as a slum dweller but "a protected tenant". He was resisting the execution of the said decree not in view of the fact that the said area was declared as slum area but in view of existence of the said agreement in his favour and his status as a "deemed tenant" in view of that agreement. Thus, the falseness of the plea raised by the obstructionist was exposed to all extent when the Executing Court was adverting its attention to the execution proceedings.

16. When the parties involved do not raise a plea at initial proper stage but raise it only for the purpose of defeating the rightful claim of a decree holder, the executing court is expected to be on guard and is expected to wipe out the flimsy, false and vexatious pleas raised by obstructionist. It becomes the duty of such Court when the facts themselves eloquently tell the vested interest of the judgment debtor against whom the decree is being executed and the obstructionist who is resisting the execution of such decree.

17. When a litigant is aware of his right of contending a issue but does not contend it by preferring other, it will have to be treated as "waived". He would be estopped from raising such contention in further rounds of battle of litigation. And if that defence happens to be totally different from one raised, such litigant would be losing the right to agitate it in the later round of litigation.

18. In the present case, both the Courts have failed to do so and both of them have landed in gross error of law.

19. When a decree holder gets a decree and puts it to the execution, he attains lawful right for reaping the fruits of the decree which has fallen to his share, luck and lot. The executing court is duty bound to execute it in terms of decree and is not permitted to allow its mind to waiver on flimsy points raised by the obstructionist. When a plea which obstructionist is raising for the first time and that too at a later stage when he had an opportunity of raising it so or participating in the suit itself, such plea becomes very much weak and the executing court has to be firm and stern in disallowing it. Both the Courts have fallen in the error of not doing so and, therefore, both the judgments and orders passed by them which are being assailed by this writ petition have become an illegality which this Court should not allow to be in existence when this Court is exercising the jurisdiction of superintendence in view of Article 227 of the Constitution of India. That has to be done for the purpose of maintaining the flow of administration of justice, smoothly flowing without any obstruction. Thus, by issuing the writ of certiorari both these judgments and orders are quashed and this writ petition stands allowed with costs. Rule made absolute accordingly.

20. At this stage, Mr. Bhat prayed for staying the operation of this order for three months for enabling him to file the Special Leave Petition. This Court finds no ground and necessity of doing so. This prayer stands dismissed.

21. Parties to act on ordinary copy of this judgment authenticated by the Private Secretary of this Court.

22. Certified copy expedited.