Delhi High Court
Metal Box India Ltd. vs T.K. Sehgal & Sons (Huf) & Ors. on 26 May, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ RFA 97/2012
Pronounced on: 26th May, 2016
METAL BOX INDIA LTD. ..... Appellant
Through: Mr. Amit Sibal, Senior Advocate with
Mr. Jugal Wadhwa, Adv
Ms. Malvika Trivedi,Adv. ,
Mr. Ghanshyam Joshi, Adv. &
Mr. Chirag Joshi, Adv.
versus
T.K. SEHGAL & SONS (HUF) & ORS. ..... Respondents
Through: Mr. H.L. Narula, Adv. with
Mr. Bhupesh Narula, Adv.
+ CM(M) 439/2013
METAL BOX INDIA LIMITED ..... Petitioner
Through: Mr. Harish Malhotra, Senior Advocate
with Mr. Akhil Sibbal, Adv.,
Ms. Malivika Trivedi, Adv.,
Mr. Jugal Wadhawa, Adv. &
Mr. G. Joshi, Adv.
versus
T. K. SEHGAL & SONS (HUF) & ORS. ..... Respondents
Through: Mr. H.L. Narula, Advocate
+ CONT.CAS(C) 434/2013
METAL BOX INDIA LIMITED ..... Petitioner
Through: Mr. Navim R. Nath, Advocate with
Ms. Malvika Trivedid, Adv. &
Mr. G.Kandpal, Adv. &
Mr. G. Joshi, Adv.
versus
RFA 97/2012 Etc Page 1 of 36
T K SEHGAL & SONS (HUF) AND ORS ..... Respondents
Through: Mr. H.L. Narula, Advocate
+ CONT.CAS(C) 504/2013
PANKAJ K. SAHGAL ..... Petitioner
Through: Ms. Malvika Trivedi, Adv. with
Ms. Malvika Prasad, Adv.
versus
V. KRISHNA & ORS. ..... Respondent
Through: Mr. H.L. Narula, Advocate
+ CONT.CAS(C) 452/2014
SH. PANKAJ K SAHGAL ..... Petitioner
Through: Ms. Malvika Trivedi, Adv. with
Mr. G. Kandpal, Adv. &
Ms. Malvika Prasad, Adv.
versus
SH. V KRISHNA & ANR ..... Respondents
Through: Mr. H.L. Narula, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. These are three contempt petitions, one CM (Main) and one
Regular First Appeal which are being taken up together as the
present order will effect almost all these cases. Arguments were
actually heard only on the application being CM APPL.30021/2015
and other pending applications in the main matter bearing RFA
No.97/2012.
2. Before giving the facts of the present case I am tempted to
reproduce the saying that 'Fool Makes Houses and Wiseman live in
it'. This is the most apt saying in the context of the present batch of
petitions. How it is apt and fitting most appropriately to the facts
of the case will be reflected by the facts of the stance taken by the
parties. It would be pertinent here to reproduce the brief facts of the
case first.
3. One T.K. Sehgal and sons (HUF) through its Karta
Respondent/plaintiff No.1 (herein) filed a suit for possession and
damages against Metal Box India Limited, formerly known as
Metal Box of India Limited, registered office at Allahabad Bank
Building, 2nd Floor, 17, Parliament Street, New Delhi claiming the
possession of the Northern portion of the property No.4, Sardar
Patel Marg, New Delhi, comprising ground floor, first floor and
Barsati floor along with four servant quarters and two garages, etc.
on a monthly rent of Rs.4360/- exclusive of water and electricity
charges. In addition to this, a decree for a sum of Rs.50,000/- by
way of damages for use and occupation was also claimed for the
period from 01.06.1991 to 30.06.1991 as well as future
damages/mesne profits at the aforesaid rate till the actual
possession of the premises is delivered. It was the case of T.K.
Sehgal and Sons and they had let out the aforesaid property to the
appellant/Metal Box on a monthly rent of Rs.4360/- and the
tenancy month was to commence from first of each English
calendar month and to end with the last day of English Calender
month. The respondent/plaintiff had terminated the tenancy of the
appellant/Metal Box vide notice dated 07.04.1991 which was duly
served on them on 13.04.1991 by registered post the tenancy had
been terminated w.e.f. 31.05.1991 and since they failed to vacate
the premises, a suit for possession was filed and damages at the
rate of Rs.50,000/- were claimed.
4. The appellant/Metal Box denied the ownership of T.K. Sehgal and
Sons (HUF). It has taken the plea that the rent was being paid
regularly. It was denied that the rent was Rs.4360/-. It was stated
that the rent of Rs.2760/- with an interest of Rs.1600/- per month
and therefore the jurisdiction of the Civil Court is barred. The
damages @ Rs.50,000/- were also contested.
5. On the basis of the pleadings of the parties, an application under
Order 12 Rule 6 CPC was moved by the Respondent/plaintiff.
Reply to the said application was called for and the learned trial
Court after hearing the arguments passed a decree of eviction on
the basis of admission holding that the rent of the premises was
Rs.4,360/-. Prima facie, from the documents placed on record by
the respondent/plaintiff although the defendant was claiming that
the rent was only 2760/- per month and a sum of Rs.1600/- was
paid on account of interest on the fixed deposit. The notice of
termination was not denied by the appellant and since all the basic
requirements were satisfied in order to sustain a judgment on the
basis of admission, the Court passed a decree.
6. Against this decree, the Appellant/defendant/Metal Box filed RFA
No.97/2012 which came up for hearing for the first time on
28.02.2012 and since there was a caveat filed by the landlord T.K.
Sehgal & Sons (HUF), a copy of the paper book was supplied to
him and the the matter was adjourned to 06.03.2012 on the request
of Mr. Parag Tripathi and Mr. Neeraj Kishan Kaul, learned senior
counsel on 06.03.2012 the matter was again adjourned to
07.03.2012. On 07.03.2012, the following order was passed by the
Court:-
"After arguments were heard in this appeal it is agreed
that the appeal can be disposed of by granting time of
two years from today to the appellant to vacate the suit
premises and the appeal is not being pressed on merits.
The appellant agrees to pay a sum of Rs.1,00,000/- per
month as mesne profits from the date of the impugned
judgment and decree for a period of one year from today
to be paid every month and thereafter a sum of
Rs.2,00,000/- per month every month for the second year.
Any amount already paid for this period by the appellant
to the respondents can be adjusted towards payment
required to be made of the aforesaid amount of mesne
profits. The payment of mense profits is without prejudice
to the respective rights and contentions inasmuch as the
issue of mense profits is pending disposal before the Trial
Court. The appellant will also clear all electricity and
water charges payable with respect to the suit premises
till the premises are vacated. It is clarified that the period
of two years is the outer limit and the appellant can
vacate the premises earlier if its wants to. Let the
appellant file an undertaking in the aforesaid terms in
this Court within a period of two weeks from today. On
the appellant filing and complying with the terms of the
aforesaid undertaking, execution of the impugned
judgment and decree dated 4.2.2012 is stayed for a
period of two years from today or earlier till the premises
are vacated Appeal is disposed of accordingly.
Sd/-
VALMIKI J. MEHTA, J
March 07, 212."
7. In terms of the order dated 07.03.2012 one thing is clear that the
learned Judge would have heard the appeal but for the fact that the
learned two senior counsels appearing for the appellant had prayed
for grant of two years time to vacate the premises and they would
not press their appeal, this relief was granted by the court and the
appeal was disposed of subject to the appellant agreeing to pay a
sum of Rs.1,00,000/- per month as the mesne profits from the date
of order and for a period of one year and thereafter at the rate of
Rs.2,00,000/- per month for the second year. Further an
undertaking was to be filed on behalf of the appellant Metal Box.
8. This undertaking was also filed by one Rohit Kumar Sharma, aged
about 67 years as the constituted attorney of the appellant/ Metal
Box. I am tempted to reproduce the exact language of the
undertaking which reads as under:-
"UNDERTAKING ON BEHALF OF THE APPELLANT"
I, Rohit Kumar Sharma, aged about 67 years, Son
of Late J.S. Sharma, working for gain at 4 Scindia
House, Ist Floor, Connaught Place, New Delhi-110001,
do hereby solemnly affirm and state as follows:
1. That I am the Constituted Attorney of the Appellant
Company and am fully conversant with the facts and
circumstances of the case and am competent to
depose by way of the present undertaking on behalf of
the Appellant.
2. That I am filling the present undertaking on behalf of
the Appellant, in compliance of order dated 7.3.2012
passed by this Hon'ble Court in the present appeal.
3. That the Appellant Company undertakes that it shall
vacate the suit premises within a period of two years
from the date of passing of the aforesaid order
disposing of the present appeal viz. on or before
6.3.2014.
4. The Appellant Company also agrees to pay to the
Respondent, T.K. Sehgal & Sons (HUF) form the date
of the impugned judgment (4.2.2012), every month, till
the date of vacation, over the aforesaid period; a sum
of Rs.1,00,000/- (Rupees One Lakh only) per month
from the date of the impugned judgment viz 4.2.2012,
till the period of one year from the date of this
Hon'ble Court's Order dated 7.3.2012 i.e. till
6.3.2013 and thereafter from 7.3.2013 till 6.3.2014 a
sum of Rs.2,00,000/- (Rupees Two Lakhs only) per
month for the second year. The amounts already
deposited by the appellant in Tis Hazari Courts in
favour of the respondent(s) for the period 4.2.2012 to
31.12.2012 shall be adjusted from the first payment to
be made for the period 4.2.2012 to 31.3.2012. As per
the Order dated 7.3.2012 passed by this Hon'ble
Court, the said payments are without prejudice to the
rights and contentions of the Appellant in respect of
pending litigation.
5. The appellant also agrees to clear all electricity and
water charges payable with respect to the suit
premises till the premises are vacated.
Sd/-
DEPONENT
VERIFICATION:
Verified by me at New Delhi on this, the 19th day of
March 2012 that the contents of the above
Undertaking are true and correct to the best of my
knowledge and belief. That no part of it is false and
nothing material has been concealed therefrom.
Sd/-
DEPONENT"
9. Before the undertaking could be formally accepted, certain
discrepancies were pointed out by the counsel for the Respondent/
landlord because of which the constituted attorney was directed to
appear and get his statement recorded. On 23.08.2012, the
constituted attorney did not appear and a request for adjournment
was made on the ground that counsel will be changed. In the
meantime the appellant/tenant paid mesne profits/damages at the
rate of Rs. One lac for the month of April, 2012 to August, 2012.
Thereafter, the matter kept on adjourning for one reason or the
other on the ground that the stand taken by the appellant/tenant is
that the undertaking is in compliance to the order dated 07.03.2012
while as the counsel for Respondent/landlord has raised certain
objections with regard to the undertaking. As a consequence of this
the appellant filed number of successive applications stating that
the appeal be decided on merits, for stay of eviction, etc. Similarly,
the respondent also filed applications seeking execution of the
decree.
10. I have heard Mr. Amit Sibal, the learned senior counsel for the
appellant and Mr. Narula, the learned counsel for the respondent.
Mr. Sibal has contended that the order dated 07.03.2012 is an order
which is unenforceable on account of the fact that the
appellant/tenant had filed CM No.30021/2015 praying therein that
the appeal be heard and decided finally on merits. It has been
contended that the aforesaid application for decision of the appeal
on merits was filed by the appellant on account of the fact that the
respondent/plaintiff had raised objections to the undertaking having
been filed on behalf of the appellant. Further, the purported
compromise which was made as a base for deciding the appeal was
not a compromise which was enforceable in law. In order to
supplement this argument, Mr. Sibal contended that the appeal can
be disposed of in three manners, firstly on merits, secondly by
withdrawal under Order 23 Rule 1 CPC and thirdly, by a
compromise under Order 23 Rule 3 CPC. It was contended that the
order dated 07.03.2012 was neither an order recording withdrawal
of the RFA by the appellant nor could it be treated as a disposal of
the appeal on merits.
11. It was next contended that the order could also not be treated as an
order passed on the basis of a compromise in terms of Order 23
Rule 3 CPC. The learned counsel further contended that when an
appeal or a suit is disposed of in terms of compromise, the
provisions of Order 23 Rule 3 CPC have to be strictly complied
with as the same are mandatory in nature. Reliance was sought to
be placed on the judgment of the Apex Court in Jagdish Manohar
Singh vs. M/s. South Delhi Builders Pvt. Ltd., ILR (2008) Supp. (9)
Delhi, Para 8, wherein in Para 8 it has been observed as under:-
"8. The procedure for compromise as may be noticed is
outlined in Order 23 Rule 3 CPC and in the opinion of
this Court, is not merely a procedure, but also obliges the
parties and the Court to follow a particular discipline in
regard to the recording of settlement, which would result
in a binding decree. The decision of the Supreme Court
in Ajad Singh (supra) and indeed the earlier decisions
are sufficiently clear on this aspect, that, any decree
which is opposed to the letter and procedure of Order
XXIII R.3 CPC cannot be sustained so far as those who
do not participate in it. It is axiomatic that where the law
prescribes a mode of doing something, no other
procedure or mode of its performance is lawful.
Therefore, the Court has to adhere to the parameters of
Order 23 in disposing of a suit-either permit its
withdrawal (Rule 1) or record a lawful compromise
(Rule 3). In the latter event, a decree is also drawn in
terms of the compromise. The Supreme Court in Ram
Narang vs. Ramesh Narang, (2000) 11 SCC 44, held that
an order under Order 23 Rule 3 is composed of both a
command and a contract, consent of the parties being an
essential component of such an order. Such a consent
needs to be obtained in the form prescribed in the said
rule, failing which it cannot be treated as valid or
binding".
12. It was contended that for the purpose of compromise under Order
23 Rule 3 CPC there has to be an agreement in writing, signed by
all the parties and only then it should be treated as a valid
compromise and anything which is in derogation of the same is not
enforceable. To support his contention, the learned counsel has
placed reliance on Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1
SCC 27; Kamla Devi vs. Prabhat Chand, 1997 (40) DRJ (DB);
Bhai Swinder Singh vs. Ram Kishore & Anr., 66 (1997) Delhi Law
Times 575; Shyam Telelink Ltd. Vs. UOI, (2010) 10 SCC 165.
13. The learned counsel has also referred to the legislative history of
Order 23 Rule 3 CPC to indicate that before amendment to the
CPC in the year 1976 condition of compromise being in writing
and signing by the parties was not there and therefore the same was
amended by the legislature in its wisdom to avoid any confusion.
14. This aspect of the matter was contested by Mr. Narula, the learned
counsel for the respondent. He contended that the language of
Order 23 Rule 3 CPC is not applicable to the facts of the present
case and no help can be drawn from the same by the
appellant/tenant.
15. It has been contended by Mr. Narula that the conduct of the
authorized representative of the appellant is nothing but
reaffirmation of the order which has been passed by the Court on
the basis of the statement having been made by the learned
counsels appearing for the parties. It is stated that pursuant to the
order dated 07.03.2012 the two senior counsel who were appearing
on behalf of the appellant, they did not press the appeal and both
the parties representing their respective clients had agreed that the
appellant shall be given two years time to vacate the premises
subject to its paying use and occupation charges @ Rs. 1,00,000/-
for the first year and Rs.2,00,000/- for the second year. It is stated
that these charges were actually paid and deposited by appellant
with the Registrar General as per the orders dated 06.05.2015 and
18.09.2015 and further an undertaking was also filed in compliance
to the order dated 07.03.2012 which was indicative of the fact that
the appellant had accepted the terms and conditions and enjoyed
the benefit in terms of order and later on it cannot be permitted to
retrace its steps.
16. I have carefully considered the submissions made by the respective
sides and gone through the order and the record.
17. At the outset it is stated that under Section 80 of the Evidence Act
a presumption of correctness is attached to the judicial orders.
Meaning thereby, not only the judicial orders are correctly recorded
but there is a certain amount of sanctity to the judicial orders is to
be attached and in case such a sanctity is not imparted to judicial
orders then any litigant can toss around a judicial order simply
raising false, frivolous and meritless pleas after taking the
advantage in terms of the said order. It is to be noted that any
counsel who appears in Court has an authorization in his favour by
way of vakalatnama to represent the said client. The present appeal
has been filed on behalf of the appellant through Ms. Indira
Sawhney, Mr. J.K. Seth and Mr. Lakshya Saharia, Advocates and
their vakalatnama is on record. The appellant was also represented
by two reputed senior counsels, namely, Mr. Neeraj Kishan Kaul
and Mr. Parag Tripathi of this Court who only appeared on the
instructions of the briefing counsel. Similarly, the
respondent/landlord was also represented by the counsel. The
appeal came up for the first time on 28.02.2012 when the counsel
for the respondents were present as caveator. Copy of the paper
book was supplied to them and the matter was adjourned to
06.03.2012. On which date at request of the learned senior counsel
the matter was adjourned to 07.03.2012. On the next date, i.e. on
07.03.2012 after arguments were heard in the appeal, it was agreed
that the appeal can be disposed of by granting time of two years to
the appellant to vacate the suit premises from that particular date
and also on the condition that appellant would not press the appeal
on merits. Thereby meaning that the proposal of the grant of time
of two years to the appellant though may have emanated from
either of the counsel but it was accepted by both the parties.
Obviously the said proposal could not have been accepted without
the instructions of the counsel whose power of attorney was on
record and further on account of the said grant of time of two years,
the learned counsel for the appellant decided not to press their
appeal on merits. This is a statement of fact recorded in the order
sheet and it does not need any further hair splitting. Any
vakalatnama if perused carefully, clearly incorporate a condition
that any admission or concession which is made by a counsel for
and on behalf of his client will bind him and he has no occasion to
raise a grievance about the same. If there is a grievance raised by a
client on that score that his counsel had made a concession or an
admission on question of fact which he was not authorized to do or
for which no instructions were given to him, it must be matched
with a contemporaneous conduct of the client. This
contemporaneous conduct of the client would be reflected by
sending a protest letter either to the counsel or in an extreme
situation by making a complaint to the professional body against
the counsel. There is no such grievance raised in the present case of
that nature. Therefore, this concession of accepting the period of
two years as a period for vacation of the premises is full and final
and a grievance cannot be raised about it by the counsel for the
appellant now. Not only this concession was made and accepted
by the learned senior counsel appearing for the appellant but the
conduct of the party itself is further confirming that it was done by
them voluntarily and without any reservation in as much as they
further paid damages @ Rs.1 lac per month from April, 2012 to
August, 2012, that is for five months which is not a small period.
Acceptance of the order dated 07.03.2012 and the grant of time of
two years further gets fortified by the fact that the appellant was
directed to file an undertaking in this Court in terms of order dated
07.03.2012 which was filed by one Rohit Kumar Sharma in the
capacity of a constituted attorney of the appellant. All these facts
persuade the Court to draw only one irresistible conclusion that not
only the order dated 07.03.2012 was loud and clear but it was also
accepted by them in letter and spirit but was also complied with by
the appellant/tenant. It is a different matter that the respondent on
account of its foolishness started raising objections with regard to
the contents or the modalities of the undertaking. But the fact of
the matter remains that the appellant did draw the benefit in terms
of the order dated 07.03.2012 twice over that is to say though he
was to occupy the property only for two years but even after expiry
of four years from the date of passing the order he continues to be
in possession. The credit for all this goes to the respondent counsel
and ingenuity of the counsel for the appellant/tenant. And in the
process sufferer is the poor owners of the house.
18. Undertaking which a party files has to be accepted by the court
though the opposite side may point out the deficiencies in the same
but if in the process of pointing out the deficiencies, he crosses the
limit a cantankerous, unscrupulous litigant is bound to exploit the
situation. This precisely has happened in the present case. Record
shows that the appellant is the tenant in respect of this posh
property on Sardar Patel Marg since 1966 that is as on date for
nearly 50 years. The appellant only wants to perpetuate his
possession of the property in question by raking up all frivolous
plea by taking the advantage of the conduct of the counsel for the
respondent. The respondent which is an HUF and is headed by a
Karta.
19. So far as the contention of Mr. Sibal is concerned, I do not find any
fault with the said contention. In normal circumstances, the appeal
would be decided on merits. This is not a case where the appeal
has been decided on merits. As regards Order 23 Rule 3 CPC that
is a case where a compromise is arrived between the parties in a
suit or an appeal and that compromise has to be in writing and
signed by the parties. Certainly it is a visualizing case where a
compromise may be arrived at between the parties in the Court
itself or outside the Court where the Court feels that the
compromise deserve to be placed on record in writing that the
parties will be drawing a compromise by signing it and filing it in
court along with the affidavit to certify its veracity and the court
will dispose of the matter. In appropriate cases the Court may
record the statement of the parties in Court itself to bind them.
But, certainly the present case does not fall in the said category.
20. Thus, we are left with only Order 23 Rule 1 CPC. Order 23 Rule 1
CPC talks about abandoning or withdrawal of a claim or a part
thereof. Now this could be on certain terms and conditions or it
could be without reservation. In the present case it could be very
authentically said that when the arguments were heard something
transpired due to which either the Court was not inclined to grant
relief to the appellant or the Court was inclined to grant time to the
appellant only or alternatively decide the appeal by dismissing the
same to which both the parties were reluctant and an offer for grant
to time was made by the counsel for the respondent which was
accepted by the counsel for the appellant and on account of
acceptance of this offer by the appellant it gave up its claim of
challenging the impugned order on merits. So in that sense it was
an abandoning of a relief of raising a challenge to the impugned
order on merits subject to its being granted two years time. So far
as this is concerned, it became final outcome. The appellant or the
respondent cannot to permitted to retrace their steps once this is
recorded in the judicial order. This is not a type of order or a
compromise or an agreement which is required to be in writing as
is contended by Mr. Sibal. The appellant has chosen voluntarily
without any threat, coercion or inducement not to press his appeal
on merits, subject to grant of two years time which has been
granted by the Court. This concession or admission is irreversible.
It is for the court to see how to ensure its compliance.
21. Then the question arises as to how to give shape to modalities in
which the parties would be bound by the terms and conditions of
settlement. It is in this context that the learned counsel for the
appellant had also agreed to pay a sum of Rs.1 lac as mesne profits
for the first year and Rs.2 lac for the second year and further also
filed undertaking. Undertaking also suggests all these terms and
conditions which are part of the order were complied with. It is a
fact that the appellant after the order did pay to the respondent at
the rate at which it was so directed by this Court. In the light of
this it became conclusive and the appellant was stopped from
retracing his steps from the same by contending that a formal
decree has not been passed or that objections were raised by the
respondent. These are all frivolous objections to wriggle out of the
order dated 07.03.2012. This kind of attitude on the part of the
appellant who seems to have turned dishonest and unscrupulous
cannot be permitted to be done and thus it could not only harm the
respondent because of its foolishness raising objections to the
terms and conditions of the undertaking but also the Court because
if this is permitted to be done then there will be no sanctity or
credibility attached to the orders passed by the Court and the Court
will be tossed around by litigants of such hue.
22. I am not at all impressed by the judgments which have been cited
by the learned counsel for the appellant. Reliance has been placed
by the appellant on Mrs. Jagdish Manohar Singh vs. M/s South
Delhi Builder P. Ltd; ILR(2008) Supp.(9) Delhi 89, wherein it was
laid down that when a law requires a particular thing to be done in
a manner then it has to be done in the said manner and no others.
The present case was not a case where the compromise was
required to be signed and verified in terms of Order 23 Rule 3 CPC
because it was compromise arrived at during the course of
arguments and the Court in its wisdom did not grant time to the
parties to file a compromise in terms of Order 23 Rule 3 CPC nor
did the parties asked for a time to comply with the said order and
the rule. Further, it is not necessary that every compromise be
reduced into writing and signed by the parties, especially the one
which the parties strike of their own or at the intervention of the
Court during the course of arguments. Moreover, it was a case
here that the appeal was not being pressed on merits by the
appellant.
23. If the contention of Mr. Sibal is to be accepted then practically
every compromise of the nature as is arrived in the present case
will not have to be accepted as a compromise under Order 23 Rule
3 of the CPC. Nor can it be said that such compromise are
enforceable. The argument of Mr. Sibal that a decree ought to have
been drawn mandatorily on the basis of the said compromise also
does not impress me because the very fact that the appellant
pursuant to the compromise did not press his appeal on merits
subject to it being given time of two years to vacate the premises
which actually it enjoyed and coupled with the fact that its conduct
of paying the use and occupation charges on enhanced rate
continuously for five months and giving an undertaking of it's
authorized representative to vacate the premises after enjoying the
same for two years estopps now to say that compromise is
withdrawn. Such an unprincipled and unscrupulous plea of the
appellant cannot be allowed, consequently, the appellant can also
not be permitted to take advantage of the order and then retrace its
steps. Such an argument is being advanced by the appellant only to
perpetuate the possession of the premises in a posh locality like
Sardar Patel Marg.
24. Similarly, the judgment in Gurpreet Singh vs. Chatur Bhuj Goel,
Kamla Devi, Bhai Swinder Singh (supra) are not applicable to the
facts of the case.
25. One of the arguments which Mr. Amit Sibal, the learned senior
counsel has advanced was that the respondent relying on the
deposits made by the appellant in the month of April to August,
2012 in terms of order dated 07.03.2012 or the deposits made
pursuant to the order dated 06.05.2015 and 18.09.2015 is
misplaced as subsequent conduct or the events cannot come to the
aid of the respondent after 1976 amendment of the CPC. It is
further contended that the deposits were made by the appellant in
pursuance to orders dated 06.05.2015 and 18.09.2015 only in order
to show his bona fides and without prejudice to the rights and
contention of the appellant to the merits of the case. It is also
contended that the Court took judicial notice of the objections filed
by the respondent and called upon the appellant to file its response
to the objections by order dated 05.09.2012 and which negates the
compromise dated 07.03.2012 as being enforceable.
26. I do not agree with this contention of Mr. Sibal except to the extent
that the orders dated 06.05.2015 and 18.09.2015 by virtue of which
the appellant was directed to deposit the use and occupation
charges are not being referred to. The said orders were necessitated
on account of the fact that the Court had to balance the equities.
The appellant could not have been permitted to use the luxurious
premises in a posh area of Sarder Patel Marg and yet deny paying
the amount at least in terms of the use and occupation charges
which he had agreed to pay vide order dated 07.03.2012.
Therefore, this contention of Mr. Amit Sibal that orders dated
06.05.2015 and 18.09.2015 are not being looked at except that
these orders were passed to balance the equities between the
parties. So far as the filing of the response by the appellant to the
objections filed by the respondent are concerned, these are also
inconsequential. The reason for this is that the point which is
under consideration of the Court is as to whether despite the
objections having been raised by the respondent, did the Court
categorically negate the contents of the order dated 07.03.2012.
The answer to this question is emphatic no. The reason for saying
so is that the order dated 07.03.2012 is in two parts. The first part
of the order clearly records the statement of the learned senior
counsel representing the appellant that they do not want to press
their appeal, subject to their being given two years time to vacate
the premises. This two years time was not only granted by the
counsel for the respondent and accepted by the appellant
voluntarily but it was also accepted by the appellant that it would
pay a sum of Rs.1 lac for the first year and a sum of Rs.2 lacs for
the second year as use and occupation charges. The factum of the
order having been accepted voluntarily by the appellant by his
conduct also gets reflected by the fact that for the period of five
months from April to August, 2012 he made a payment of Rs.1 lac
to the respondent. Therefore, once he did that he was estopped
now for retracing his steps. The acceptance of the terms and
conditions of not pressing its appeal get further fortified by the fact
that the appellant was called upon to file an undertaking which he
did file through his authorized representative of the appellant.
Now to say that the compromise ought to have been in writing or
that the objections were filed or that he filed reply to the objections
or that the compromise was unenforceable is nothing but an
unscrupulous and unprincipled plea raised by the appellant only to
perpetuate his occupation of the premises.
27. I have already observed that the aforesaid occasion would not have
arisen but for the foolishness of the respondent that who merely
because the respondent being foolish in raking up the issue which
was not at all relevant because enforcement of the undertaking is
between the Court and the person who is furnishing the
undertaking. The respondent had absolutely no right to rake in the
same. Therefore, I feel that it is too late in the day that instead of
having enjoyed the premises for four years instead of two years
which it had sought, cannot be permitted to the appellant to
contend today that the order dated 07.03.2012 is unenforceable on
account of the so-called technicality that the compromise was not
signed by the parties or decree was not drawn or that objections
were raised with regard to the modalities of furnishing an
undertaking or that he had filed reply to the objections of the
respondent. This kind of technical objection by the appellant
deserves to be not only to be curbed but also outrightly rejected.
28. Another subsidiary argument to the aforesaid argument which was
advanced by Mr. Amit Sibal that he was not permitted to utilize the
premises peacefully. This is again a lame duck excuse by the
appellant that it was not able to enjoy the premises peacefully. On
the contrary, as a matter of fact, the appellant being a company and
having plenty of resources of engaging counsel it has embroiled the
respondent a poor individual or a Hindu undivided family in totally
unwarranted litigation so as to ensure that he is not able to retrieve
the possession of the premises in question. I, therefore, reject this
contention of Mr. Sibal also.
29. For the reason mentioned above, I feel that the applications of the
appellant, CM APPL 6638/13 seeking stay of impugned order
dated 04.02.2012 passed by the Ld. ADJ in Civil suit No.95 of
2010 and CM APPL 30021/15 for hearing and final adjudication
of the appeal on merits is totally misconceived and they are
accordingly dismissed and it is held that the order dated 07.03.2012
by virtue of which the appellant had not pressed his appeal on
merits, subject to it being given two years time, which not only has
been enjoyed in full measure by the appellant but in fact it was
enjoyed double of the said period and by his conduct made the
payment to the respondent for the month of April to August, 2012
and also filed an undertaking, therefore, by his conduct also he
accepted the terms and conditions of the order dated 07.03.2012
and he has to comply with the said order. The said order is fully
enforceable.
30. The objections which have been now raised by virtue of the various
applications by the appellant are only ploy by the appellant to
perpetuate his holding the possession of the suit premises
endlessly. All these application are accordingly dismissed and the
appellant is given three months time from today to vacate the
premises, failing which the respondent shall be free to file the
execution petition for retrieval of the possession of the premises
which has been their occupation for the last 50 years. Direction is
also issued to the executing court that the executing court shall
provide in the first instance itself the necessary police aid to
retrieve the possession of the premises.
31. Along with the present appeal there are three contempt petitions.
The appellant had filed a contempt petition No 434/13, wherein it
was stated that the Respondents are in contempt of order dated
28.09.2012 and 07.11.2012 of this court as the Respondents have
malafidely filed and pressed an execution petition seeking
execution of a decree of possession before the learned trial court
inspite of the fact that status quo orders were passed by this court.
While as Contempt Petition No. 452/14 and 504/ 13 was filed by
the respondent wherein the respondents has sought initiation of an
action on the part of the appellant on account of having not
complied with the order dated 07.03.2012 for vacating the premises
and on account of withdrawal of undertaking dated 19.03.2012 of
one Rohit Sharma, filed in pursuance of order dated 07.03.2012
respectively.
32. I am not incline to take any action against the appellant or even the
respondent for the reason that the contempt is between the alleged
contemnor and the Court. Further, the parties have essentially filed
the contempt petitioner during the pendency of the applications in
the main matter RFA No.97/2013 in order to bring to bear pressure
on the opposite side. That is not the purpose of the contempt. The
purpose is to see that majesty of the Court is not lowered. Since
this Court has already rejected the objections/applications filed by
the appellant for hearing the appeal on merits, therefore, I am not
inclined to further multiply the litigation before this Court by
initiating the action against the appellant or the respondent by
initiating action for contempt. Therefore, all the three Contempt
Petitions are rejected.
CM(M) 439/2013
33. So far as the present CM (Main) 439/2013 is concerned, the
appellant has challenged the order dated 04.04.2013 by virtue of
which the application of the appellant under Order 18 Rule 17 CPC
was rejected.
34. Order 18 Rule 17 CPC confers a discretion on the Court to recall
any witness at any stage of a suit, who has been examined and put
such questions to him as the court may think fit. Therefore, the
Order 18 Rule 17 CPC confers, firstly, a discretion on the court
which may be exercised suo motu or an application of either of the
parties. But, it cannot be invoked by a party as a matter of right.
Secondly, the purpose of Order 18 Rule 17 CPC is to recall a
witness and the questions which could be put to him are by the
court under Section 165 of the Evidence Act. The whole purpose of
the aforesaid provision is to remove any ambiguity or seek
clarification which the court may require and which may further
the interest of justice. Normally this power would not be exercised
by the court at the instance of the party to fill up the lacuna in case
the witness has already been examined or it had sufficient
opportunity to do so.
35. In the backdrop of aforesaid provisions, the appellant had filed an
application under Order 18 Rule 17 CPC for recalling PW-3 and
PW-4 for further cross-examination in the suit. The issue which
was involved in the suit was that in a suit for possession and for
grant of damages/mesne profits for the use and occupation a decree
was passed in favour of the plaintiff/respondent under Order 12
Rule 6 CPC which has been assailed in RFA No.97/2013. The
appeal was also not pressed vide order dated 07.03.2012 and the
only surviving issue arises in the suit was with regard to payment
of future damages/mesne profits and it was in that context that the
evidence was being produced by the parties.
36. It may also be pertinent here to mention that the case which was set
up by the Respondent /plaintiff in the suit was that the appellant is
a tenant at the rate of Rs.4360/- while as the stand of the appellant
was that he was paying rent at the rate of Rs.2760/- along with
interest @ Rs.1600/- It was in this context the appellant had
contended that its registered office was in Kolkata which was
vacated in January and July, 1988 and during this period the
documents lying were shifted and dumped without clear
demarcation and the operation was completely halted in Delhi in
1995 due to no electricity at Barlow House, Delhi for six months.
Because of this reason they were unable to access the documents. It
is stated that now they were able to lay their hand on documents
which was in the nature of correspondence exchanged between
T.K. Sehgal, Karta of the plaintiff/respondent and the appellant
company. It had been contended that these documents clearly
showed that there was certain transactions between the
appellant/tenant and the respondent/landlord in the nature of loan-
cum-deposit arrangements. It was also contended that these
documents were permitted to be placed on record by the trial court,
subject to payment of cost of Rs.50,000/-. It has been stated that
these documents deserve to be put by the appellant to the
respondent in cross-examination.
37. This was opposed by the respondent/plaintiff on the ground that the
application is an abuse of process of law in as much as the
appellant is indulging in dilatory tactics. It was also contended that
the intention of the appellant in recall of PW-3 and PW-4 is to only
prolong the cross-examination and perpetuate his possession. The
learned trial court rejected the application of the appellant as an
abuse of the process of law as a consequence of which the present
CM (Main) has been filed by the appellant.
38. I have considered the impugned order and gone through the record.
39. I find myself into full agreement with the reasons for rejection of
the application of the appellant. First of all, as has been stated
above, Order 18 Rule 17 CPC confers a discretion on the Court and
the question which have to be put to the witnesses whose cross
examination has already been recorded is to be done by the court
under Section 65 of the Evidence Act and not by the parties
normally. Therefore, the provisions of Order 18 Rule 17 CPC is
essentially a discretion conferred on the court in furtherance of
administration of justice and cannot be claimed as a matter of right
by any of the parties.
40. Secondly, the purpose of filing the application by the appellant is
to recall PW-3 and PW-4 and confront them with the additional
documents which have been filed by the appellant after the closure
of the evidence. These additional documents as a matter of fact
could not have been taken on record because the appellant is trying
to place on record by way of evidence, documents of which he was
aware of, though he is claiming that these documents were not
previously known to him. Order 18 Rule 17A CPC which deals
with the production of evidence which are not previously known or
which could not be produced despite due diligence has been
deleted by the legislature in its wisdom by an amendment Act of
1999. The purpose of deletion of this provision is essentially that it
was being used as a fertile ground for trying to prolong the trial, as
has been done in the instant case. The respondent is right in
contending that the production of the documents by the appellant in
the instant case will have absolutely no bearing to the facts of the
present case because what is in issue in the suit is with regard to
quantum of money to be paid as damages/mesne profits for the user
of the premises and the decree under Order 12 Rule 6 has already
been passed while as the entire effort of the learned counsel for the
appellant is that to assail the decree of possession itself.
41. For the aforesaid reasons, I feel the trial court was absolutely right
in observing that the appellant is indulging in dilatory tactics and
has rightly rejected the application. There is no illegality,
jurisdictional error or impropriety in rejecting the application of the
appellant. Accordingly, the present petition is also totally
misconceived and the same also deserves to be dismissed. Ordered
accordingly. In view of the above order, stay granted to the
appellant stands vacated and accordingly pending applications has
become infructuous.
V.K. SHALI, J.
MAY 26, 2016
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