Gainda Raikwal vs Mr. Kundan Lal Menghani
2014 Latest Caselaw 4685 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CM(M) No.873/2014 & CM No. 15695/2014 (stay)

%                                             22nd September, 2014

GAINDA RAIKWAL                                      ......Petitioner
                          Through:       Mr. Ashok Kriplani, Advocate.


                          VERSUS

MR. KUNDAN LAL MENGHANI                                   ...... Respondent
                 Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This petition under Article 227 of the Constitution of India

impugns the order of the executing court dated 22.7.2014 by which the

executing court has issued warrants of possession with respect to the suit

property bearing no. 10/18, Old Rajender Nagar, New Delhi-110060,

possession of which has been decreed in favour of the respondent/plaintiff.

The judgment and decree decreeing the suit for possession is dated

20.9.2013.




CM(M) No. 873/2014                                                            Page 1 of 7
 2(i)         Respondent/plaintiff had filed a suit no. 402/2013 titled as

Kundan Lal Menghani Vs. Gainda Raikwal for possession etc of the suit

property bearing no. 10/18, 4th Floor, Old Rajender Nagar, New Delhi. In

the plaint, respondent/plaintiff stated that he had purchased the property

from one Ms. Jai Lakshmi Kashyap wife of late Sh. Vijay Kumar Kashyap

vide title documents dated 6.4.2008. Petitioner/ defendant was known to one

Mr. Kriplani (probably the Advocate who is appearing and arguing for

petitioner/JD/defendant)     and      Mr.       Kriplani     stated      that

petitioner/JD/defendant was a poor lady and earning livelihood as a maid

servant and she can be permitted to reside in a temporary/katcha constructed

room in the suit property for a month till she makes an alternative

accommodation and that the petitioner/JD/defendant would vacate the suit

premises immediately on the asking of the respondent/DH/plaintiff.

Respondent/DH/plaintiff allowed the petitioner/JD/defendant to reside in the

property but she alongwith Mr. Kriplani unauthorisedly took electricity from

the house of Mr. Kriplani and unauthorisedly extracted water from the

municipal tap and also filed a false suit for injunction alleging tenancy. In

this suit for injunction filed by the petitioner/JD/defendant, she was not

successful in obtaining any interim injunction and her injunction application

was dismissed. In the subject suit possession, mesne profits etc were prayed
CM(M) No. 873/2014                                                        Page 2 of 7
 stating that petitioner/JD/defendant is only a gratuitous licencee and who

should be asked to vacate the property.


(ii)         In the written statement filed by the petitioner/defendant/JD,

petitioner/defendant/JD took up a case of being a tenant, and with respect to

which claim a suit was already filed and the injunction application of the

JD/petitioner/defendant was dismissed. In the written statement filed in the

present suit there was no plea of protection of the tenancy under the Delhi

Rent Control Act, 1958 (hereinafter referred to as 'the DRC Act').

(iii)        This suit for possession was decreed by the civil court under

Order XII Rule 6 CPC by its judgment dated 20.9.2013. In para 8 of this

judgment it is specifically noted that the petitioner/defendant/JD does not

claim that the suit is barred by the provisions of the Delhi Rent Control Act.


(iv)         Against this judgment dated 20.9.2013 an appeal was filed but

that appeal has been dismissed for non-compliance of an interim order dated

19.5.2014 whereby the petitioner/JD/defendant/appellant in the appeal was

directed to deposit admitted rent because the best case of the

petitioner/JD/defendant/appellant in the appeal was that she was a tenant at

Rs.2500/- per month.     Accordingly, the appeal was dismissed for non-

prosecution and non-compliance on 4.8.2014.
CM(M) No. 873/2014                                                          Page 3 of 7
 3.           A resume of the above facts make it clear that the petitioner was

the defendant in the suit whose decree is being executed. In the written-

statement no objection was raised that the civil court had no jurisdiction.

The suit for possession was decreed.          An appeal was filed by the

petitioner/defendant against the judgment and decree dated 20.9.2013, but

that appeal admittedly, has been dismissed vide order dated 4.8.2014 on

account of non-compliance in payment of rent by the petitioner/defendant of

an interim order passed in the appeal on 19.5.2014 directing payment of the

admitted rent amount of Rs.2500/-. Since the interim order dated 19.5.2014

was not complied with, the appeal was dismissed for non-compliance and

non-prosecution on 4.8.2014. There is no further challenge to the order

dated 4.8.2014. Therefore, there is finality to the judgment and decree dated

20.9.2013 for possession against the present petitioner.

4.           Once there is finality to a judgment and decree for possession,

it is not understood as to how in execution petition objection as to

jurisdiction, which had to be raised but was not raised in the written

statement filed in the suit, can be raised for the first time in execution,

because, such an objection stood waived as it had not been raised in the

written statement in the suit. If the judgment and decree dated 20.9.2013

CM(M) No. 873/2014                                                         Page 4 of 7
 was incorrect in law, then that judgment and decree had to be challenged and

pursued in the appeal, and which appeal though was filed, however that

appeal has been admittedly dismissed for non-prosecution and non-

compliance.    If the orders dated 4.8.2014 and 19.5.2014 passed by the

appellate court as per the defendant/petitioner/JD were illegal, then

petitioner/defendant had to challenge those orders further but such a

challenge is not laid to any higher court. Once the petitioner/defendant does

not challenge the orders of the first appellate court, and the judgment and

decree for possession passed by the trial court becomes final, the

petitioner/defendant against whom the judgment and decree has been passed

is bound by the decree, and defendant/JD/petitioner cannot challenge the

same by filing objections in execution proceedings. All of Delhi is not

covered by the DRC Act and an area is covered only if a notification is

issued under Section 1 of the DRC Act extending the operation of the DRC

Act to the urbanized area in question. Thus objection as to the alleged lack

of jurisdiction is deemed to be waived in the facts of the case especially in

view of the ratio of the judgment in the case of Martin & Harris Ltd. Vs.

VII Addl. District Judge, AIR (1998) 1 SCC 732 and the petitioner as per

the ratio of this case of the Supreme Court is estopped from raising the

objection as observed in para 14 which reads as under:-
CM(M) No. 873/2014                                                        Page 5 of 7
              "14. Apart from waiver the appellant was estopped from
      taking up such a contention as the respondent, on account of the
      aforesaid contention of the appellant, had irretrievably changed his
      position to his detriment and lost and opportunity of seeking leave of
      the Court to withdraw the suit with liberty to file a fresh suit, as seen
      earlier. The second point for consideration is therefore, answered in
      the negative, in favour of the respondent-landlord and against the
      appellant."


5.           Counsel for the petitioner/defendant wanted to cite various

judgments that if the decree is passed by a court without jurisdiction, then

the decree is not executable, and to which proposition of law there is no

dispute, however, once the petitioner who is the defendant in the suit, had

ample opportunity to raise such objection in the suit but did not raised such

objection, and the suit now stands directly decided against the

petitioner/defendant, as even the appeal against the judgment and decree

stands dismissed, then now in execution proceedings no objection as to the

alleged lack of jurisdiction of the civil court can be taken especially because

the objection is a factual objection which had to be raised and decided in the

suit and only if the factual objection had been raised then as per evidence to

be led in the suit it would have been decided.


6.           It is therefore clear that the petitioner/JD/defendant is most

illegally and malafidely holding on to the suit premises although

CM(M) No. 873/2014                                                          Page 6 of 7
 petitioner/JD/defendant has no rights whatsoever in the suit premises.

Obviously, there is collusion of the petitioner/JD/defendant with Mr.

Kriplani and there is clear cut lack of bonafides and honesty on the part of

the petitioner/JD/defendant. This petition is therefore dismissed with costs

of Rs.25,000/- and which shall be deposited by the petitioner with the Delhi

High Court Legal Aid Services Committee within a period of four weeks. If

costs are not deposited, then this matter be listed before the Registrar

General who can on the failure of the petitioner/JD/defendant to deposit the

costs recover the same as arrears of land revenue. List before the Registrar

General for compliance of the order of deposit of costs on 5th November,

2014.




SEPTEMBER 22, 2014                          VALMIKI J. MEHTA, J.

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