Dhanraj Gupta vs Savitri Malhotra And Ors.
1996 Latest Caselaw 233 Del

JUDGMENT

Dalveer Bhandari, J.

(1) This appeal is directed against the judgment of the learned Single Judge dated 6th November, 1995 delivered in E.A. No. 177/94 and 178/94. The brief facts which are necessary to decide this appeal are recapitulated as under :

(2) In the year 1967, a suit for partition was filed by Chiranjeet Lal Malhotra against Ram Nath Malhotra of House No. J-III 30, Lajpat Nagar, New Delhi. The suit was decreed in the year 1971 and judgment and decree was passed in favour of Chiranjeet Lal Malhotra against Ram Nath Malhotra.

(3) After considerable litigation, execution petition was filed on 19th September, 1981 for execution of the said decree. Notice of execution petition was directed to be issued to R. N. Malhotra, Judgment debtor, who appeared in person in court on 20th October 1981 and was allowed to file reply. R. N. Malhotra expired on 4th November, 1981. Immediately thereafter, notices were directed to be issued to the legal heirs of the judgment debtor. Notices were served on the legal heirs almost after a year.

(4) Before the notices could be served on the legal heirs, Smt. Santosh Malhotra, widow of the Judgment debtor R. N. Malhotra by means of a sale deed transferred the whole of the property bearing No. J-III/30, Lajpat Nagar, New Delhi to one Shri Dhanraj Gupta and possession of the first floor of the property was given to him.

(5) On 20th November, 1981, the court was informed that no decree was framed in the suit and the decree-holder was directed to file a certified copy of the decree sheet on 18th January, 1982. Non-judicial stamp papers of Rs. 300 were filed by the counsel for the decree-holder for preparing the decree. By 1st February, 1982, it was ordered that the office should assess the quantum and prepare the decree sheet and in case the stamp papers filed by the decree-holder were in order, the decree sheet should be prepared.

(6) It may be pertinent to mention that the legal representatives of the judgment debtors were substituted on 28th July, 1982 and on 5th November, 1982, warrants of possession were issued.

(7) The execution application No. 67/83 was filed by the decree-holder with the prayer that warrants of possession against Dhanraj Gupta who were in actual possession of the property be issued. It has been observed by the learned Single Judge that it appeared that warrant of possession were obstructed by Dhanraj Gupta, appellant and consequently execution application No. 232184 under Order Xxi Rule 97 of the Code of Civil Procedure was filed by decree-holder. Dhanraj Gupta objector filed a reply to the application. In the application, it is mentioned that he was a bona fide purchaser of the property for valuable consideration and had no knowledge of any dispute relating to the property or of passing of the decree. It was further submitted that he was in lawful possession of the property and the decree-holder cannot legally take possession from him. It would be appropriate to reiterate the objections which were taken, by the Objector. The same are reproduced as under : "A.The objector was a bona fide purchaser for valuable consideration. B. The property has been duly entered into the records of Land & Development Office in the name of objector. C. After the purchase of the property, the objector and members of his family are in complete occupation and possession of the same. D. By his conduct, the decree holder was stopped from taking possession from the objector as he was assured that the property was free from all encumbrances and was not the subject matter of any dispute in any court of law and the decree-holder did not object to the sale of the property to the objector and even otherwise did not bring to the knowledge of the objector that the property, being sold, was the subject matter of some litigation. E. The execution was in collusion with Mrs. R. N. Malhotra as the decree-holder did not file the execution for more than ten years after passing of the decree. F. The decree cannot be executed as the property, cannot be enjoyed without the passage which was formed a part of the decree. G. After purchase, the objector has constructed one. and a half storied house spending bilge amount on its construction and decree-holder did not raise any objection even to that construction at any time."

(8) The court considered the objections filed by the appellant Dhanraj Gupta and dismissed the objections by a detailed order dated 18th November, 1985. The court directed that the decree- holder be put in possession by issue of fresh warrants of possession. The appellant aggrieved by that order filed an appeal before the Division Bench. The Division Bench of this Court by a reasoned order dismissed the appeal on 31st January, 1986.

(9) The petitioner was not satisfied even with the judgment of the Division Bench of the High Court and preferred a Special Leave petition to the Supreme Court of India. The Special Leave Petition was also dismissed as withdrawn on 19th February, 1996.

(10) The appellant objector also filed a review application E.A. 58/96, which was dismissed by this Court. He also filed an appeal against that order which was also dismissed by the Division Bench.

(11) It may be pertinent to point out that even after 10 years of the order of the Division Bench which was affirmed by the Supreme Court, the decree-holder till date has not been able to get the possession of the suit premises because the appellant had continued litigation on one pretext or the other. The suit which was filed in the year 1967 was decreed in the year 1971. The decree-holder has not been able to get possession in a suit which was decreed in 1971, till 1996 despite various orders of different courts, including the order of Apex Court. By the passage of time, Mrs. Savitri Malhotra wife of Chiranjeet Lal who had filed the execution petition also died on 13th October, 1989. Thereafter her legal heirs were brought on record on 7th November, 1990.

(12) On 4th July, 1994, the Objector appellant filed E.A. 178/94 under Section 47 of the Code of Civil Procedure stating that the decree was not executable for the following reasons : "1.That the decree had not been in-scribed or drawn on stamp papers and the decree having been drawn on a plain paper was a nullity. 2. That the stamp papers filed by the decree-holder on 18th January 1982 had not been used and the decree was still drawn on a plain paper and the stamp papers had only been placed but not have been used for inscribing the decree. 3. That the stamp papers have not been signed by the decree-holder but had been signed by the lawyers and the stamp papers had not been cancelled. 4. The Execution application has not been signed and verified nor instituted under the authority of the decree holder Ms. Savitri Malhotra. 5. That Ms. Savitri Malhotra in any case had given her consent for sale of the property to Dhan Raj Gupta."

(13) Similar objections have been raised by the appellant under Order 47 in Execution petition 177194. All possible objections have been taken to resist the execution of Warrants of possession. It is observed by the learned Single Judge that counsel appearing for the appellant had submitted lengthy arguments. Learned counsel appearing for the appellant submitted that decree sheet is only on plain papers and the stamp papers provided by the decree-holder had been placed along with the decree. This decree is a nullity and no execution on the basis of the said decree can take place. Before the learned Single Judge, he has submitted a number of authorities on the propositions that the decree-holder cannot execute the decree which was not prepared on the stamp papers.

(14) The learned counsel relied on Dilbagh Rai(1) and others vs. Mt. Teka Devi, Air 1932 Lahore, 249 before the learned Single Judge. In this case the learned Judge has taken the view that the decree having not been drawn up on a stamp paper was held to be not a decree.

(15) In the Full Ranch decision of Lahore High Court Gopi Mal vs. Vidya Wanti etc.. etc., Air (29) 1942 Lahore, 260(2) the court considered a large number of earlier judgments and came to the conclusion that partition decree drawn up without proper stamps cannot be termed as no decree at all there may be irregularity or illegality in exercise of juridection but there is no lack of inherent jurisdiction. The relevant observations are set out as under :- "WHETHER the court has drawn up a partition decree with out the proper stamp whether whether after a considered decision or whether only by inadvertance, there is no lack of inherent jurisdiction though there might be an irregularity or illegality in the exercise of jurisdiction and therefore it cannot be said that there is no decree in existence at all. There is a decree but not a decree that can be acted upon until proper stamp is supplied, but the decree can be validated by the addition of the proper stamp and therefore, it cannot be said that there is no decree at all in the sense that that decree is merely a piece of waste paper which cannot be validated by the addition of the stamp unless the presiding officer re-signs the decree after it is stamped."

(16) Learned counsel has placed reliance on the judgment of P. N. Khanna, J., Must. Shahabia Begum vs. Must. Pukhraj Begum and others.(3) In this case. learned Single Judge came to the conclusion that the final decree for partition is not engrossed as required under Art. 45 of Schedule I of the Stamp Act, the Court has no jurisdiction to act upon it. Hence if an order for sale of the property and distribution of sale proceeds between share holders is passed it would be nullity and can be challenged at any stage and even at the stage of execution.

(17) The learned counsel for the appellant has also relied on the recent judgment of the Supreme Court in the case of Shankar Balwant Lokhande vs. Chanderkant Shankar Lokhande, In the said case, a preliminary decree for partition was passed in the year 1955, declaring that the first respondent was entitled to 1/6th share and the appellants were entitled to 5/6th share in the suit properties. The decree declared certain charges in respect of certain specified properties. The first respondent supplied non-judicial stamps to engross and sign the final decree to the extent of his 1/6th share. A final decree in that behalf was engrossed on the stamp paper signed by the trial court. Since the appellant had not supplied the non-judicial stamps, no final decree was made qua them. Darkhast filed by them in 1965 was dismissed in 1968 as being barred by limitation. The first appeal was dismissed by the High Court in the year 1975 taking the view that no final decree having been passed on non-judicial stamp papers, there was no decree in existence for execution. The appellant filed miscellaneous application before the trial court to accept the non-judicial stamps and to pass a final decree. The trial court held that the application was not barred by limitation. In the first appeal, the High Court held that limitation began to run when the direction was riven to pass final decree and since the application was filed after expiry of the period of limitation counter from that date, it was barred by limitation.

(18) The crucial question for consideration is as to when the limitation began to run for filing an application to pass final decree on stamped paper. The. decree being prior to the Limitation Act. 1063. referance to Article 182 of the Limitation Act 1908, has to be made which envisages that "for the execution of a decree or order of any civil court not provided for under Article 183 by Section 48 of C.PC., the period of limitation of three years begins to run from the date the final order was passed on an application made in accordance with law to the proper court for execution, or to take some step in aid of execution of the decree order". In this case, the Supreme Court set aside the judgment of the High Court and confirmed the stand taken by the trial court. The trial court was directed to pass the final decree and to engross the same on stamp papers already supplied by the appellant. The court further observed that if further stamp papers be needed, reasonable time would be given to supply the same. The final decree would then be drawn thereon. The court would thereafter proceed with the execution of the final decree in accordance with law. The learned Single Judge has rightly observed that it is not understood as to how the said judgment in any manner helps the objector to support his contention that the decree having not been engrossed on a stamp paper cannot be executed at all. The learned Single Judge rightly observed that the courts are meant for giving substantial justice to the parties and a document cannot be made invalid merely because the same has not been drawn on a stamp paper.

(19) Learned Single Judge has relied on some leading judgments to establish that a litigant cannot legitimately take advantage of mere technicalities to suffocate the substantial justice.

(20) The Supreme Court in Hindustan Steel Limited vs. Dilip Construction Company, Air 1969 S.C. 1238(5). In this case. the Supreme Court has held,- "THE Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument."

(21) The Division Bench of Madhya Pradesh consisting of Justice J. S. Verma, and M. N. Malik, JJ. in Rameshwar Prasad and anr. Vs. Narayandas, (6) , while following aforesaid judgment in Hindustan Steel (supra) has rightly observed as under: "ONE has only to bear in mind that the Stamp Act is a fiscal measure enacted to secure revenue for the State and it has not been enacted to arm a litigant with a weapon of technicality. A just claim cannot be defeated just because the writing of the instrument ends on the first sheet of paper and the second sheet has been crossed with a signature of the executant, provided the evidence satisfies the Court that the second sheet was in fact used at the very time the instrument was drawn. The expression "such instrument shall be written on each sheet so used" in Rule 7 of the C.P. & Berar Stamp Rules, 1942, does include within its meaning the lines drawn cancelling the sheet or signature of the executant put thereon indicative of utilization of the paper. Section 13 of the Stamp Act is duly complied if the evidence of cancellation or utilization is such that the same sheet cannot be applied to any other instrument."

(22) The learned Single Judge also referred to Chloride & Exide Batteries (Eastern) Ld. vs. Smt. Uma Wati, In this case, the Court has held that under Order 20 Rule 7, Civil Procedure Code , the decree shall bear the date on which the judgment was pronounced and when the Judge has satisfied himself that the decree has been drawn up in accordance with judgment, he shall sign the decree. According to this judgment, the said rule created a fiction and since the decree is required to bear the same date as the judgment, it must be deemed to have been passed on the same date and the consequences ensuing from the fiction must be accepted without demur. Giving full effect to the fiction, the Court concluded that after the partition of the property, decree was drawn up and signed on stamp papers in August, 1974 that is, almost three years after the passing of the judgment, the decree-holder must be deemed to have become the owner as from the date of the judgment i.e. 21st December, 1971. Meaning thereby that even if the proper stamps were not provided, this is not going to make any difference as far as date of decree is concerned. Certain technical lacunas cannot be permitted to defeat the substantial justice. Learned Single Judge has observed on the basis of relevant case law that there is no invalidity in the decree merely because the stamp papers have been placed along with the decree and decree has not been inscribed upon the stamp papers. The decree-holder has full right to execute this decree and there cannot be any excuse.

(23) In Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others , the Supreme Court has observed as under :- "THE legislature has conferred the powers to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's dealy? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice consideration technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact" that it was the 'State' which was seeking condensation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the. State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condensation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making tile pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grate status. The Courts, therefore, have to inform with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do evenhanded justice on merits in preference to the approach which scuttles a decision on merits.

(24) In another case Hon'ble the Supreme Court while following the aforesaid case has laid down in Jeem Ranagoda vs. Special Land Acquisition Officer , that "Section '5' of the Limitation Act must receive a liberal construction so as to advance substantial justice."

(25) In another leading case Sadhuram Bansal vs. Pulin Behari Sarkar and others , the Supreme Court has observed as under : "THE felt necessities of time and in this case the convenience of the situation and the need for adjusting the rights of a large number of people without deprivation of any accrued right of anybody would be justice according to law. Before we reject social justice as something alien to legal justice we should remember that a meaningful definition of the rule of law must be based on the realities of contemporary societies and the realities of the contemporary societies are. ..... men are in acute shortage of living accommodation and if they are prepared to bargain and rehabilitate themselves on competitive terms, they should be encouraged and no technical rules should stand in their way. That would be justice "by highways" and not infiltration by byelanes."

(26) The obligation of the Court to do substantial justice has been reiterated in Mrs. Margaret Lalita Samuel vs. Indo Commercial Bank Ltd. . The Court has observed in this case as under: "IF the Supreme Court is satisfied that as a result of the order of remand substantial justice has been done to the parties in the consequential proceedings, the Supreme Court may decline to exercise its discretionary power to interfere. The jurisdiction under Art. 136 is not meant to correct an illegality brought to the notice of the Supreme Court, nor to undo, merely on account of such illegality, an adjudication which has done substantial justice to the parties."

(27) The crux of all the leading cases of the Supreme Court and of various High Courts is the technical lacunas if any, cannot defeat the substantial justice and deficiency or inadequacy of stamp papers in any manner would not give a right to a litigant to take benefit of the same and defeat justice.

(28) The real question in this case is whether the appellant was justified in somehow continuing the litigation in one court or the other, so that the decreeholder cannot get the possession of the premises in question. The appellant may be justified in strictly technical sense to raise all possible technical objections permissible in law but when appellant's submissions were rejected by the Single Judge, Division Bench of the High Court and the Supreme Court, then he must accept at least the final decision of the apex court of India which is otherwise final and binding.

(29) This tendency of some litigants not even to accept the judgment of the High Court, even after the later has received the seal of approval even from the Supreme Court is rather unfortunate, and such tendencies must be effectively curbed. Otherwise, no matter can even acquire finality and entire system of administration of justice would come to a grinding halt.

(30) In the instant case, in a' suit for possession filed in 1967, in which the judgment and decree was passed in favour of the decreeholder way back 'n 1971 and appeal before the Division. Bench of High Court and the Special leave petition against the judgment of the Division Bench was dismissed way back on 2nd February, 1986 but despite Supreme Court's order, affirming judgment of the High Court, the decreeholder has not been able to get possession of the premises in question till date. The appellant on one pretext or the other has retained the possession of the premises did not permit the decreeholder to enjoy the fruits of the judgment and decree passed in 1971 till this date. Unless this tendency is curbed effectively, the entire system of administration of justice cannot receive credibility. After the judgment of the High Court has received the seal of approval from the Supreme Court, thereafter it is expected of the litigant to accept the judgment of High Courts affirmed by the Supreme Court gracefully and without demur, to uphold the majesty of rule of law which is the fundamental requirement of any civilized society.

(31) We are clearly of the opinion that after the Special Leave petition was dismissed in the Supreme Court, affirming the judgment of the High Court, no proceedings ought to have been initiated in any court except to seek review of order of Special Leave Petition. To file any other proceedings before any court clearly amounted to the abuse of the process of law. This tendency of keeping the litigation alive on one pretext or the other is rather unfortunate. The subterfuge was adopted to deprive the decree-holder from getting the possession of the premises in question and the appellant had been quite successful in achieving its object till date, though the decree was passed by a court of competent jurisdiction way back in 1971.

(32) In order to effectively curb this tendency among the litigants to keep the litigation alive somehow we are left with no option but to dismiss these appeals with exemplary costs of Rs. 25,000 which the appellant is directed to pay to the respondent within 4 weeks from today.