Sh. M.L. Dawar vs Sh. M.L. Seth
2011 Latest Caselaw 3443 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 20.07.2011

+            CM(M) No. 2601/2005

SH. M.L. DAWAR                                    ........... Petitioner
                           Through:   Mr. J.P. Sengh, Sr. Advocate
                                      with Mr. Rajiv Vig, Advocate.

                      Versus


SH. M.L. SETH                                    ..........Respondent
                           Through:   Mr. Rama Chandra, Sr.
                                      Advocate with Mr. A.K. Tandon
                                      and Mrs. R. Ratham Nagar,
                                      Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 This petition has impugned the order dated 14.10.2005

whereby the objections filed by the judgment debtor against the

judgment and decree dated 31.08.1966 had been dismissed.

2 The parties are at logger-heads and are litigating against

one another since 1962. The present suit had been filed in a

representative capacity under Order 1 Rule 8 of the Code of Civil

Procedure (hereinafter referred to as the „Code‟) for permanent

injunction and for eviction of the respondent from the suit

premises. The plaintiff had described himself as Rajeshwar Dayal

for self and on behalf of other members of the Jamna Lodge. The

defendant had been described as the Honorary Secretary for self

and on behalf of other members of the Masonic Club. Contention

was that the plaintiff owned a building known as Freemasons

Lodge and is in possession of the suit property since the last

several years. In 1944, the defendant club was allowed to use a

part of the premises of Freemasons Hall as a licensee on a

monthly fee of `50/-; that license was initially up to 31.12.1945;

license was thereafter terminated; the secretary of the defendant

club vide letter dated 13.12.1961 refused to vacate the premises;

contention being that club was a tenant under the Lodge. The

following issues were framed by the trial Court:-

1. Whether the defendant is a licensee of the plaintiff? If so, the terms, thereof?

2. Whether the license is irrevocable?

3. Whether the property being used by the defendant is not premises as defined by the Delhi Rent Control Act and that the relationship between the parties is governed by the common law of landlord and tenant only?

4. Relief.

3 Oral and documentary evidence was led. All the four issues

were decided in favour of the plaintiff and against the defendant;

it was held that the defendant is a licensee of the plaintiff; there is

no bar of the Delhi Rent Control Act (DRCA); the license of the

defendant having been revoked, the plaintiff was entitled to the

relief. The judgment dated 31.08.1966 granted a decree of

permanent injunction in favour of the plaintiff and against the

defendant; the defendant club was restrained from entering into

the property in dispute.

4 This decree was assailed in appeal and thereafter in a

second appeal. The findings of the trial Judge were affirmed right

up to the second appeal. The second appeal had been disposed of

on 05.03.1970. RSA was dismissed with observations of the High

Court that the parties might eventually settle the matter. Letter

Patent Appeal preferred against the Regular Second Appeal was

dismissed on 07.08.1970. The contention of the judgment debtor

that a suit for permanent injunction is not maintainable against a

licensee who refuses to vacate the premises had also been noted;

this petition as also the appeal had been dismissed.

5 Execution petition had been filed by the decree holder in the

year 1985. Those proceedings were kept in abeyance as the

parties had thereafter sought time to compromise the matter and

in fact an application under Order 23 Rule 3 of the Code had also

been filed before the executing court wherein the judgment

debtor had agreed to enhance the license fee which was initially

fixed at `50/- per month; it stood enhanced to `1,450/-per month.

This execution petition thus remained in abeyance up to 1998

when it was again revived.

6 On 17.07.2000, the Land and Building Office (L&DO) sent a

notice to the defendant/judgment debtor/Masonic Club wherein

damages in the sum of `2,66,12,260/- were levied upon the

Masonic Club; contention was that the Masonic Club was sitting

on Government land and he had failed to pay any user charges;

damages were imposed upon the judgment debtor/Masonic club in

the aforenoted amount. Vide of the same day, eviction order was

also passed against the Masonic club under Section 5 (1) of the

Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

This order was assailed by the defendant/judgment debtor before

the Appellate Authority whereby as an interim measure the

petitioner club had been directed to pay 10% of the impugned

demand of `2.66 crores and to further pay a sum of `75,000/- on

or before 17th day of each calendar month. This order of the

appellate body was assailed in a writ petition being W.P.(C)

No.5434/2000. This writ petition was disposed of on 21.07.2003.

The relevant extract of the said order which has been highlighted

by learned counsel for the petitioner reads as under:-

"In view of these facts and circumstances, it appears that there would be no

useful purpose for keeping the present writ petition pending before this Court.

All the issues, particularly the issue as to whether the petitioner is the owner of

the premises in question at all and other related questions have to be decided

on facts before the learned Additional District Judge in the pending Section 9

appeal. It would be heard and disposed of as expeditiously as possible and

without requiring the petitioner to deposit any further sum during the

pendency of the appeal as a condition for stay of eviction and of recovery of the

purposed damages"

7 It is not in dispute that the appeal is yet pending before the

ADJ and the matter has not been decided. At the outset, learned

counsel for the petitioner has pointed out that this matter may be

adjourned till the disposal of the appeal. This has been opposed by

learned counsel for the respondent who has pointed out that has

already been considered and although specific directions have

been given to the court below to expeditiously decide the appeal

yet the appeal remains still undecided. This petition was

thereafter directed to be listed for hearing.

8 With the consent of counsel for the parties, the matter has

now been taken up for final disposal.

9 The order impugned before this Court as noted supra is the

order dated 14.10.2005 vide which the objections filed by

judgment debtor/Masonic Club before the executing Court had

been dismissed. Counsel for the petitioner has pointed out that

the order suffers from an infirmity and it has not noted the

contentions of the petitioner in the correct perspective. First

contention raised by learned counsel for the petitioner is that

although the suit had been titled as a suit for permanent

injunction yet it was a suit for mandatory injunction and this was

clear from the observations made by the High Court while

disposing of the Regular Second Appeal in its judgment and

decree dated 05.03.1970. It is pointed out that while disposing of

the petition, the Court had noted that the relief claimed is in

substance of relief for mandatory injunction; suit in the form in

which it was filed was not maintainable. Execution filed after 12

years was time-barred. This argument has not been considered by

the executing court. It has secondly been contended that a

representative suit filed under Order 1 Rule 8 of the Code (which

was so in the present case) is not binding upon the person who is

not a party to the suit; M.L. Dawar the objector before the Court

was admittedly not a party in the trial proceedings; decree dated

31.08.1966 was not binding upon him. To support this submission

reliance has been placed upon a judgment of this Court reported

in Vol. III 1967 DLT 459 Darshan Singh Vs. Hari Nath which in

turn had also relied a judgment of the Madras High Court

reported in AIR 1955 Madras 281 Kodia Goundar and another Vs.

Velandi Goundar and other. Contention is that although a decree

obtained in a suit instituted in accordance with the provisions of

Order 1 Rule 8 of the Code will be binding on all the members that

belong to the class who are sought to be represented, by

operation of the principle of res-judicata as contained in Section

11, Explanation VI of the Code but the mere fact that such a

decree would be binding as "res-judicata" on others who were

sought to represented cannot make such a decree enforceable as

and by way of execution; such a decree cannot be executed. The

third contention of learned counsel for the petitioner is that the

role of the landlord has since changed; admittedly this was a lease

hold property and the licensor was the L&DO who had granted

the lease in favour of the judgment debtor; the superior lessor i.e.

L& DO has now by an eviction order dated 17.08.2000 passed an

eviction order against the Masonic Club/judgment debtor; the

contention of the L& DO is that this is a Government land;

Masonic Club is sitting in Government land; it does not belong to

decree holder; there is thus no relationship of lessor and licensee

between the plaintiff and the defendant i.e. between Jamna Lodge

and Masonic Club. It is contended that the doctrine of estoppel as

contained in Section 116 of the Evidence Act carves out an

exception; exception being where there is a threat to the tenant of

eviction by the paramount lessor; the tenant is not precluded from

challenging the title of the landlord For this proposition reliance

has been placed upon AIR 1987 Supreme Court 2192 D.

Satyanarayana Vs. P. Jagadish. It is submitted that these

objections have not been considered by the executing court; the

impugned order is liable to be set aside.

10 Arguments have been refuted. It is submitted that the

impugned order suffers from no infirmity.

11 Arguments of learned counsel for the petitioner are bereft of

force. The record shows that the RSA was disposed of on

05.03.1970. While disposing of that appeal, the Court had noted

that the plaintiff in substance is seeking a relief of mandatory

injunction; it had relied upon a judgment of the Punjab High Court

reported as AIR 1962 Punjab 370 Delhi Gate Service Ltd. Vs. M/s

Caltex (India) Ltd. to hold that a suit against a licensee on the

termination of his license asking him to vacate his premises is

maintainable; the present plaint asking the members of the Club

to remove their moveable lying in the premises was well covered

by the ratio of the aforenoted judgment; the suit was

maintainable. This judgment had also noted that the objection

raised by the defendant/judgment debtor that the suit as framed

was not maintainable was never a defence taken in the pleadings

in court below and therefore it could not be urged in a second

appeal. This contention after having been noted had been

rejected. Since this objection about the maintainability of the suit

was dismissed in second appeal, the question of the judgment

debtor raising it before the executing court again does not arise.

His contention that the present suit is essentially to be treated as

a s suit for mandatory injunction for which there is a limitation of

12 years, a decree passed on 31.08.1966 can be executed only up

to 12 years is thus an objection without any merit. The proviso of

Article 136 of the Limitation Act, 1963 clearly prescribes that in a

suit for perpetual injunction (which was the suit filed by the

plaintiff) there is no period of limitation which is prescribed. This

argument of learned counsel for the petitioner is rejected.

12 The second contention of learned counsel for the petitioner

that a suit under Order 1 Rule 8 of the Code which is a

representative suit is binding upon the parties inter-se under the

doctrine of res-judicata but it cannot be executed against a non-

party to the suit has also been set at rest by a judgment of the

Apex Court relied upon by learned counsel for the respondent

and reported in AIR 1996 Supreme Court 1211 Singhai Lal Chand

Jain Vs. Rashtriya Swayam Sewak Sangh, Panna and other. In this

context the following observations of the Apex Court are relevant:-

"Held further that the Sangh having been duly represented in the suit and the President, manager and Member had conducted the litigation on behalf of the Sangh bona fide, the decree of ejectment binds every member of the Sangh. No one on behalf of the Sangh could lay any objection in the execution nor plead nullity of the decree. The doctrine of res-judicata prohits the members of the Sangh to obstruct the execution of the decree."

13 This sets at rest this vehement argument of learned counsel

for the petitioner. The decree dated 31.08.1966 was thus binding

upon all the members of the Club and doctrine of res-judicata

prohibited the members of the Club to obstruct the execution of

the decree on this count. The second argument is also answered

against the petitioner.

14 The last contention urged by learned counsel for the

petitioner was based upon the judgment of Satyanarayan (Supra);

contention being that judgment debtor/Masonic Club has an

independent relationship with the L& DO who had passed an

eviction order against him on 17.08.2000 and in view of the

exception carved out by Section 116 of the Evidence Act nothing

precluded the judgment debtor/Masonic Club from challenging

the title of the landlord. This contention of the petitioner has been

answered by the Apex Court in the judgment reported in JT 2002

(1) SC 97 Vasu Deo Vs. Bal Kishan; the judgment of the

Satyanarayan was also considered in this judgment wherein it was

noted that Satyanarayan was distinct on its peculiar facts. The

Supreme Court while dealing with the defence raised by a tenant

for eviction by the title paramount had laid down the following

three conditions which must co-exist before this defence can be

established. In this context the Supreme Court had noted as

follows:-

"To constitute eviction by title paramount so as to discharge the obligation of

the tenant to put his lessor into possession of the leased premises three

conditions must be satisfied: (i) the party evicting must have a good and

present title to the property;, (ii) the tenant must have quitted or directly

attorned to the paramount title holder against his will: (iii) either the landlord

must be willing or be a consenting party to such direct attornment by his tenant

to the paramount title holder or there must be an event, such as a change in

law or passing of decree by a competent court, which would dispense with the

need of consent or willingness on the part of the landlord and so bind him as

would enable the tenant handing over possession or attorning in favour of the

paramount title holder directly; or, in other words, the paramount title holder

must be armed with such legal process for eviction as cannot be lawfully

resisted. The burden of raising such a plea and substantiating the same, so as

to make out a clear case of eviction by paramount title holder, lies on the party

relying on such defence."

15 It is admitted by the plaintiff that these conditions do not co-

exist; it is admitted by him that he has not attorned to the

paramount title holder i.e. to the L & DO. This admission by itself

throws out this defence set up by the petitioner. In this factual

scenario, the petitioner is estopped from challenging the title of

his landlord i.e. Jamna Lodge. Admittedly the L& DO had not come

into the picture at all till the year 2000 when for the first time an

eviction notice had been received by the judgment debtor/Masonic

Club which was on 17.07.2000. Decree has been passed in this

case on 31.08.1966; judgment debtor/Masonic Club has been held

to be a licensee in the suit property. Challenge to the title of the

plaintiff as landlord is now not a defence available to the

petitioner. This argument is also bereft of any force.

16 No other argument has been urged by learned counsel for

the petitioner. The order dated 14.10.2005 impugned before this

Court calls for no interference. It suffers from no error either

jurisdictional or otherwise. Petition is without any merit.

17    Dismissed.




                                           INDERMEET KAUR, J.
JULY 20, 2011
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