Naresh Jhanji (M/S. N.N. & Co.) vs Jugal Kishore & Another
2000 Latest Caselaw 312 Del

ORDER

Dr. M.K. Sharma, J.

1. The present revision petition has been preferred by the petitioner as against the orders dated 10.8.1994 and 7.10.1994 passed by the Subordinate Judge, Delhi in Execution Case No. 20/1989 whereby he issued directions for issuance of warrant of possession in respect of premises No. 2271/69, Nai Wala, Karol Bagh, New Delhi.

2. Shri Jugal Kishore, the decree holder/respondent No.1 herein, filed a suit for recovery possession which was registered as Suit No.273/1972. It was pleaded on behalf of the respondent No.1 in the plaint that defendant Maharaj Bahadur Singh (since deceased) was a tenant in Flat No.4, on first floor of House No.2271, Nai Wala, Karol Bagh, New Delhi at a monthly rent of Rs. 112/- and that he failed to pay the rent and therefore, in the suit a decree for recovery of money was prayed for. In the written statement the defendant denied the allegation that he was defaulter in respect of payment of rent. The Subordinate Judge Ist Class by his judgment and order dated 27.11.1973 passed an ex parte money decree as against the defendant and in favour of the plaintiff for a sum of Rs.2,080.26. For execution of the aforesaid decree an execution petition was filed in the court of Subordinate Judge Ist Class. In the said execution case an application under Section 151 CPC was moved with a request to issue warrants of attachment of movable properties of the judgment debtor. However, in the mean time the Judgment Debtor died and on account of his death the warrants of attachment to the extent of the decretal amount were passed regarding movable properties of the deceased judgment debtor dated 18.9.1992. On 23.10.1992 an application for breaking open the locks was moved which was allowed. However, on 16.12.1992 an application under Section 151 CPC was moved by the Objector for depositing the decretal amount and for locking the disputed premises, and also for depositing the keys in the Court till the disposal of the execution petition. The amount under the money decree was deposited by the Objector Shri Bakht Bahadur Singh. Directions were issued vide order dated 16.12.1992 to lock the premises in dispute and the keys were directed to be deposited in the court. On 19.12.1992 when the matter was taken up the counsel for the decree holder as also for the objector raised no objection for keeping the keys in a sealed cover in terms of which an order was passed. On 6.8.1992 an application of the objector under section 151 CPC was dismissed in default for his appearance. On 17.8.1992 the decree holder moved an application for taking back the lock and keys as the same were supplied by him were given to him by allowing the application observing that the keys and lock be returned to the decree holder as the same were purchased by the degree holder. An application was however, filed by the Objector seeking for setting aside the order dismissing the application in default and also an application under Order 47 Rule 1 CPC. On 17.1.1993 the applications were allowed and the decree holder was directed to return the keys, after locking the premises in question, to the court after getting it vacated from M/s. N.N. & Company who was inducted as a tenant by the decree holder in the meantime and subsequent to the order dated 17.8.1992. As the said orders were not complied with by the decree holder an application under section 151 CPC was moved by the Objector on 20.12.1993 for execution of orders dated 17.9.1993. On 17.12.1993 an application was moved by the decree holder for issuance of notice to M/s. N.N. & Co. It was submitted in the said application that as M/s. N.N. & Co. refused to vacate the premises the decree holder was not in a position to execute the order dated 17.12.1993. In support of his contention photocopy of letter from M/s. N.N. & Co. dated 4.10.1993 and letter dated 30.9.1993 of Shri Jugal Kishore were also placed on record.

3. Another application dated 19.3.1994 was moved for review of the orders dated 10.3.1994 by the decree holder. Under the aforesaid order dated 18.2.1994 the Executing Court directed the decree holder to deposit the amount of rent received from M/s. N.N. & Company in the Court. It was submitted that the aforesaid order dated 18.2.1994 could not have been passed as the same were passed without hearing the decree holder and was beyond the scope of pleadings. The Executing Court by order dated 10.8.1994, after considering the entire facts and circumstances of the case directed for issue of warrants of possession in respect of the property and the decree holder was directed to deposit the amount in terms of the order dated 18.2.1994 which was made subject to final decision. While passing the aforesaid order, the Executing Court observed that possession could not have been obtained in the suit seeking for money decree by the decree holder. It was also held that the respondent No.1 was entitled only for a money decree and not a decree for eviction which only the Additional Rent Controller could have granted but the decree holder at the back of the Objector clandestinely under the garb of order dated 17.8.1993 took over possession of the premises and subsequently let the same to the petitioner herein. It was also held that the said agreement entered into between the decree holder and M/s. N.N. & Company is void ab initio as the decree holder could not have entered into a contract of tenancy with M/s. N.N. & Company, taking undue advantage of the order of the executing Court and since the property was in the custody of the Court and the decree holder was only allowed to have the locks and keys for the reason that the same were purchased by him. He also held that the decree holder and M/s. N.N. & Company colluded with each other, which is apparent from the record of the case as the decree holder instead of assisting the Court in dispossession of M/s. N.N. & Co. is pleading his case.

4. The present petitioner thereafter filed an application in which it was submitted that they were inducted as tenant in respect of the suit property by the landlord and since they had entered into the aforesaid agreement without notice of the proceedings pending in the executing court they cannot be evicted from the suit premises without taking recourse to the appropriate proceedings and not through such an application filed by the Objector. The said application was also considered by the Executing Court and by his order dated 7.10.1994 dismissed the same directing for execution of the warrant of possession through the bailiff and the bailiff was alloted to break open the locks for ensuring compliance of the order dated 10.8.1994. It was also directed that the decree holder as well as M/s. N.N. & Company would not resist the compliance of the order dated 10.8.1994.

5. When the present petition was called out for arguments, only the counsel for the petitioner was present and only he was heard. Thereafter Mr. Ahuja appeared and sought for an opportunity to argue the matter on behalf of the respondent. At his request another date was fixed for arguments, on which date also Mr. Ahuja failed to appear and accordingly, I heard the counsel appearing for the petitioner only.

6. It is submitted by Mr. Aggarwal, appearing for the petitioner that the petitioner did not have any knowledge of the various proceedings and litigation and was not a party to any such proceedings at any point of time and therefore, the petitioner being a bona fide tenant without the knowledge of any pending proceedings was fully protected by the provisions of Delhi Rent Control Act and his possession cannot be disturbed at the instance of a third party namely S. Bakht Bahadur Singh, the Objector. He further submitted that there could not have been an order for restitution at the instance of a stranger and the Court had no jurisdiction to pass an order for restitution as has been done in the present case. It was also submitted that the provisions of Section 144 CPC would be invoked only when a party had suffered injury by an act of the court and not otherwise. According to him in the instant case the objector is not a party who has suffered and therefore, there could not have been any restitution of the property at the behest of the objector.

7. The facts of the case have been set out at length in order to appreciate the conduct of the parties. From the aforesaid facts it is apparent that taking advantage of the order passed on 17.8.1993 to the effect that the keys and locks be returned to the decree holder as the same were purchased by him, he got the lock removed and entered into an agreement with M/s. N.N. & Company without any permission and consent of the Court and also without informing the court. It is, therefore, established that the decree holder clandestinely took advantage of the said orders and his actions in entering into an agreement of tenancy with M/s. N.N. & Company was mala fide, for before inducting the said tenant by an agreement he was required to obtain a decree for eviction for which a regular suit was required to be initiated in the court of Rent Controller which was not done in the present case. Custody and possession of the property was under the supervision of the Court and in total disregard of the said fact he himself removed the lock taking advantage of the order which was passed for some other circumstances and reasons. The conduct apparently was malafide and the agreement entered into by him with M/s. N.N. & Company was illegal, void ab initio and non est, for no agreement could have been entered into between the decree holder and the tenant/petitioner when the custody and possession of the property in question was with the court, inasmuch as the keys were directed to be placed with the court after the movable properties were attached by the orders of the court.

8. The tenant was in possession of the suit property and in order to evict him therefrom an order or eviction was required to be obtained from the competent court of law i.e. the Rent Controller. The submission that the tenant has died and therefore, the property reverts back to the landlord is also without any merit, for if it would have been found after consideration of the application filed by the objector that he was not a legal representative of the deceased tenant then the property would have reverted back to the State Government and not to the landlord. In my con sidered opinion the orders passed by the trial court contain reasons which are found to be cogent and strong. Both the decree holder as also the tenant have not come to the court with clean hands and both have taken undue advantage of an order of the court and entered into an agreement which is void ab initio. No right could be claimed either by the petitioner or by the respondent No. 1 on the basis of such void agreement and as such, I am of the considered opinion that the said orders do not call for any interference. No party should be allowed to take advantage of an act which is mala fide. An agreement which was entered into to frustrate the entire legal proceedings cannot be allowed to be taken advantage of.

9. The contention of the counsel appearing for the petitioner that the petitioner had no knowledge about the aforesaid proceedings and litigations also cannot be accepted for the executing court has given cogent reasons for disbelieving the aforesaid stand that the tenant was not aware of the aforesaid proceedings. According to the executing court the tenant had knowledge about the proceedings pending in the court. I do not find any error apparent on the face of the record in the said findings nor do I find any justification and merit in the submission of the counsel appearing for the petitioner that the Provisions of Section 144 CPC are not applicable to the facts and circumstances of the case. The tenant has definitely suffered injury and when a party has clandestinely taken advantage of an order of the court and has misused the order for advancing his own cause, it is the responsibility of the Court to protect the property and therefore, the orders passed by the Executing Court are legal, valid and accordingly they are upheld.

10. In the result, the petition has no merit and is dismissed. However, the parties are left to bear their own costs.