Amarjeet Singh And Another vs Smt. Uma Sethi And Another
1998 Latest Caselaw 995 Del

ORDER

C.M. Nayar, J.

1. The present petition is directed against the Judgment dated November 5, 1997 passed by Shri S.M. Aggarwal, Rent Control Tribunal, Delhi. The appeal filed by the petitioners against the Order dated January 27, 1995 of Shri J.R.Aryan, Additional Rent Control, Delhi was dismissed. The petitioners filed objections under Section 25 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') read with Order 21 Rules 98 & 99 and Section 151 CPC claiming independent right in the suit premises and praying that execution of eviction Order dated February 2, 1994 be not effected against them.

2. The respondent Smt. Uma Sethi filed eviction petition under Section 14-D of the Act on September 15, 1993 seeking recovery of tenanted premises being flat No.38, Khan Market, New Delhi comprising of premises on first floor and second floor. It was alleged that M/s. Hindustan Thompson Associates Ltd. was let out the suit premises by her father late Shri P.N. Mehta and after his demise the tenanted premises were inherited by her and she became co-owner/co-landlady qua the tenant who started paying rent to her. The eviction petition was contested by the tenant M/s Hindustan Thompson Associates Ltd. culminating into passing of an Order on February 2, 1994. Shri B.L. Anand who was employee of the tenant/judgment debtor filed his objections under section 25 of the Act, when execution proceedings were initiated claiming that he was the actual tenant in the premises and his employer M/s Hindustan Thompson Associates Ltd. was only guarantor regarding payment of rent by him. The objections were dismissed by the Trial Court vide Order dated August 25, 1994 and Civil Revision filed by him was also dismissed by this Court. Shri B.L. Anand did not accept the orders passed in eviction petition as well as the dismissal of his objections and handed over the possession of premises to the petitioners who allegedly came in possession after Shri B.L. Anand had failed in his efforts to stay in the demised property. Consequently, objections were filed by the present petitioners claiming "that their late father Shri Prabhash Singh was the owner of the suit flat and their names have been substituted in the record of the L.&D.O. after the demise of Prabhash Singh. Prabhash Singh had filed a suit for possession against the JD herein and Shri B.L.Anand who were claimed to be in unauthorised occupation of the suit flat. During the pendency of that said suit, the Decree-holder herein and other legal heirs of late Shri P.N.Mehta were imp leaded when they filed their application u/o 1 rule 10 CPC and they filed written statement on 2.11.92. The said suit is still pending trial. It was claimed that the eviction petition was filed by Mrs.Uma Sethi, respondent herein as the sole petitioner concealing material fact regarding pendency of the suit and without impleading the objectors or other legal heirs of Shri P.N.Mehta. It was then claimed that M/s Hindustan Thompson Associates Ltd. was paying rent to Shri P.N.Mehta and after his demise the rent was being paid to all the legal heirs jointly through Shri S.K.Mehta s/o P.N.Mehta. It was specifically admitted that last payment of rent was made by the JD for the month of September, 93 under covering letter dated 7.9.93. It was then claimed that B.L.Anand who was in actual occupation of the flat realising the real facts surrendered the second floor portion of the tenanted premises to the objectors and undertook to deliver the vacant possession of the rest of the flat to them. Hence they were enjoying the possession of the suit premises in their own independent right as owners".

3. In view of the averments as referred to above, the petitioners are presently in possession of the entire premises. The Additional Rent Controller dismissed these objections and affirmed the eviction Order made under the provisions of Section 14-D of the Act. The Rent Control Tribunal upheld the Order and came to the conclusion that admittedly the premises were let out by late Shri P.N. Mehta, predecessor in interest /father of Smt. Uma Sethi, who had inherited the same as co-owner/co-landlady. The question whether the Objectors/Appellants are the actual owners is yet to be decided by the Court dealing with the suit for possession filed on behalf of petitioners. Further it was noticed that the petitioners obtained possession of the suit premises from Shri B.L. Anand, who was an employee of the tenant Hindustan Thompson Associates Ltd. and therefore, an Order passed under Section 14-D of the Act was in accordance with law. The respondent was entitled to recover possession of the property as the employee of the judgment debtor/tenant was duty bound to deliver back possession to the decree holder. The appeal as a consequence was also dismissed by the Rent Control Tribunal.

4. The learned counsel for the petitioners has contended that the suit between the parties being Suit No.7/82 is pending in the civil court and the respondent was duty bound to state full particulars with regard to the suit in the eviction proceedings before the respective courts. The information having been withheld by the respondent was clearly an abuse of the process of court as there would not have been decree for eviction passed in case full facts were disclosed in those proceedings. Reliance is placed on the Judgement reported as Satish Khosla Vs. Eli Lilly Ranbaxy Ltd. 1998 Rajdhani Law Reporter, 180. It is next argued that it is well within the rights of the petitioners to take recourse to the remedy under Section 25 of the Act as well as under the provisions of Order 21 Rule 97 (1). Reference is made to the Judgment reported as Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal 1997(1) Rent Control Reporter page 332. Paragraphs 11 and 12 of this Judgment may be referred to in this regard:

"11. A conjoint reading of Order XXI Rules 97, 98, 99 and 101 projects the following picture :

(1) If a decree-holder is resisted of obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35 then the decree-holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decreeholder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI Rule 98. It is obvious that after such adjudication if it is found that the resistance obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI Rule 98 sub-rule (2) and the decree holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.

(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order XXI Rule 98 sub-rule (1), CPC the Executing Court can direct the stranger applicant under Order XXI Rule 99 to be put in possession of the property or if his application is found to be substance less it has to be dismissed Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order XXI Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI Rule 101.

12. In short the aforesaid statutory provisions of order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decreeholder against such an obstructionist is only under Order XXI Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order XXI Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI Rule 99. Order XXI Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI Rule 99 on the other hand deals with the subsequent stage in the execution proceedings, where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the judgment-debtor. Both these types of inquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of order XXI Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order XXI Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI Rules 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."

5. Similarly reliance is placed on Judgment reported as Smt. Sati Rani Sen Vs. M/s Indian Standard Casting Company & Anr. of this Judgment is cited hereunder in this regard :

4. Though Shri Raju Ramchandra, learned senior counsel appearing for the appellant, contends that the appellant in execution of the decree dated January 1, 1995 in Suit No.66/93 came to have lawful possession of the property in his right as a decree-holder and owner of the property. The civil Court was not right in directing restitution. Palpably, the argument is palatable and seemingly acceptable but in view of the fact situation, the contention stands no merit. Obviously, so long as the status quo order and ad interim injunction maintaining the possession of M/s Indian Standard Casting Company continue to subsist, the execution of the decree in Suit No.66/93 though became final without impleading the said respondent is to over-reach the order of injunction and is an abuse of the process of the Court. It would be obvious that the appellant being the defendant in Suit No.86/90 and having suffered the order of status quo as also adinterim injunction which is still subsisting, without that order being vacated or suit being disposed of, the appellant could not have the decree in Suit No.66/93 executed without bringing it to the notice of the court or without taking steps to have respondent No.1, Indian Standard Casting Co, imp leaded as a party-defendant to that suit. Since Indian Standard Casting Co., had already obtained the order which is operating, it could not be dispossessed by execution of an ex parte decree to which it was not a party. Obviously, the appellant wanted to over-reach the order passed in Suit No.86/90. Normally, we would have directed the appellant to restitute possession to the respondent. The status of the respondent itself is to be decided in its suit. Unfortunately, the respondent stood dispossessed on May 23, 1995. Under these circumstances, the question is what would be the proper course ? In view of the above factual situation, we think that the appellant should be appointed as Court Receiver under Order XL Rule 1, CPC and would obviously be answerable to the Court. In the event of any decision against appellant in the above suits, it would be obvious that the appellant shall surrender possession to M/s. Indian Standards Casting Co. Otherwise, the possession would remain with the appellant, the owner of the property."

6. The facts of the present case may now be examined. The objectors stated that their predecessor-in-interest Prabhash Singh filed Suit No.7/82 in the civil court claiming possession of the premises on the basis of alleged title and claiming that their names had been substituted in the records of the L.& D.O. after the demise of Prabhash Singh. An application for grant of an injunction was also moved under the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure which was dismissed by the Civil Judge by Order dated February 13, 1995. It was held that the petitioners will not suffer any loss or injury as the suit for possession was against all the defendants therein and the suit would not become infructuous. That Order of refusal of injunction to the petitioner was not challenged and has since become final. The eviction petition under Section 14-D was filed subsequently by the respondent/landlord and an Order of eviction was made as far back as on February 2, 1994. This Order has also become final. The objections filed on behalf of Shri B.L. Anand, who was an employee of the tenant, Hindustan Thompson Associates Ltd. were dismissed and an order of eviction was upheld even by this Court as far back as on November 19, 1994. The petitioners came in possession of the premises by an act of Shri B.L. Anand who had miserably failed to prove his possession of the premises as a tenant and left with no other option having failed in all proceedings handed over the possession of the premises to the petitioners against law. In this background the Judgments cited by the learned counsel for the petitioners will have no application when they are co-related to the facts of the present case. The remedy is no doubt available to the parties to approach the Court under Order 21 Rule 97(1) of the Code of Civil Procedure but it has to be exercised in genuine cases and in accordance with law. The facts clearly indicate that the petitioners came in possession of the premises due to the malafide conduct of Shri B.L. Anand whose objections were dismissed. The present petition raises questions which have been answered by both the courts by recording concurrent findings of facts and it will not be open for this Court to re-appraise the same and arrive at different conclusions in exercise of powers under Article 227 of the Constitution of India. The present petition as a consequence is misconceived and is dismissed in limine.