Punjab-Haryana High Court
Kamaljeet vs Krishan Lal on 4 March, 2024
Author: Archana Puri
Bench: Archana Puri
2024:PHHC:030853
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-4488-2022 (O&M)
Date of Decision: March 04, 2024
Kamaljeet
...Petitioner
Versus
Krishan Lal
...Respondent
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Raj Kumar Bhatia, Advocate
for the petitioner.
Mr.Anuj Balian, Advocate
for the respondent.
****
ARCHANA PURI, J.
Challenge in the present revision petition is to the order dated
04.10.2022, passed by learned Executing Court, in Execution Application
No.20 of 2019, whereby, learned trial Court issued the warrant of possession
and ordered SHO to provide the police protection for execution of the
warrant of possession..
The material facts, as culled out from the paperbook, are as
follows:-
That, initially, respondent-Krishan Lal (plaintiff) had filed a suit
against petitioner-Kamaljeet (defendant) for seeking mandatory injunction,
thereby, directing the defendant to handover the possession of half portion of
House No.169, B-III, near Forest Colony, Main (Upper) Bazar, Pinjore and
2024:PHHC:030853
the identification of the portion, so sought, was given in the site plan, which
was annexed with the plaint. Besides the same, consequential relief of
permanent injunction was sought to restrain the defendant to part with some
another person, in any manner and for seeking recovery of arrears of mesne
profits and further also, permanent injunction was sought to restrain the
defendant from interfering in the legal, peaceful and physical possession of
the plaintiff, over the remaining portion of the said house.
After the trial, the said suit was decreed vide judgment dated
10.03.2015, copy whereof is Annexure P-7, whereby, the petitioner-
defendant was directed to handover the vacant possession of half portion of
the house, allegedly lying in his possession, to the respondent-plaintiff,
within a period of two months from the date of receiving certified copy of
the order, failing which, the plaintiff will be entitled to get the said relief
through the process of Court. Besides the same, relief of injunction and
recovery of mesne profits was also granted.
Thereupon, execution petition was filed at the instance of the
respondent-decree holder. After recording statement of the bailiff and
decree holder, warrants of possession was issued with permission to break
open the lock and SHO was directed to provide sufficient police help along
with Lady Constable for smooth and effective satisfaction of the order of the
Court.
Being aggrieved by the aforesaid order, the petitioner-Judgment
Debtor filed the present revision petition.
At the very outset, it is submitted by learned counsel for the
petitioner that since it was the decree for mandatory injunction passed by
2024:PHHC:030853
learned trial Court, therefore, warrants of possession could not be issued. It
is further submitted that order passed by learned Executing Court suffers
from a patent illegality because under Order XXI Rule 32 CPC, no warrant
of possession could be issued. In respect of his submissions, learned counsel
for the petitioner has placed reliance upon Full Bench judgment of Hon'ble
Delhi High Court, in the case of Sarup Singh vs. DaryodhanSingh, AIR
1972 Delhi 142.
On the other hand, learned counsel for the respondent-decree
holder-plaintiff has assiduously submitted that where mandatory directions
have been issued for vacating the premises, no other interpretation, except
that possession has to be handed over, could be put on such a decree.
Rather, learned counsel has made reference to the judgment under execution
and pin-pointed that a specific direction has been given to the defendant, to
handover the vacant possession of the half portion of the house, allegedly
lying in his possession. It is submitted that revision petition has been filed
solely to gain time to raise obstruction, vis-a-vis, execution of the judgment
passed by the Court against the petitioner.
Admittedly, the respondent had filed a suit for mandatory
injunction for seeking direction to the petitioner to vacate and handover the
possession of the property, as detailed in the decree sheet, which has been
placed on the Court file and also sought relief of permanent injunction and
recovery of arrears of mesne profits @ Rs.1500/- per month, for the use and
occupation of the premises in question from 10.09.2008, till the possession
is handed over to the plaintiff. Undisputedly, the suit was decreed by the
Court vide judgment dated 10.03.2015. Nothing, as such, is coming forth,
2024:PHHC:030853
on the record about the said judgment having been challenged any further. It
is pertinent to mention that as evident from the aforesaid judgment, the suit
property was initially ownership of Des Raj, who had executed gift deed
dated 15.04.1991, in favour of one of his son namely Kuldeep Singh, who is
brother of the petitioner. The present petitioner (who was defendant before
learned trial Court) being brother of Kuldeep Singh was also having
possession of two rooms, one kitchen and one bathroom, towards the side of
the house, where he was residing with his family and the residue portion of
the house was in possession of Kuldeep Singh. Said Kuldeep Singh had
executed a sale deed dated 30.04.2007, in favour of Krishan Lal. The
respondent-plaintiff had made a request to the petitioner-defendant to vacate
the property and handover the vacant possession of the half portion of the
house, as his licence to use the said property had already been terminated
with the service of notice dated 22.08.2008.
In the written statement, the gift deed dated 15.04.1991,
allegedly executed by Des Raj, in favour of Kuldeep Singh and subsequent
sale deed dated 30.04.2007 in favour of Krishan Lal, with regard to, whole
of the house was asserted to be illegal. In the judgment under execution, on
appraisal of the evidence, brought on record and also considering the fact of
the gift deed having been challenged by Kamaljeet, in another suit, which
had since attained finality, it was held that the gift deed was executed by Des
Raj in favour of his son Kuldeep Singh and on that basis, Kuldeep had
ownership right over whole of the suit property and thus, in pursuance of
sale deed having executed in favour of Krishan Lal, he had stepped into the
shoes of owner. The suit filed by the present petitioner against Kuldeep
2024:PHHC:030853
Singh to challenge the legality and validity of the gift deed and the
subsequent sale deed, is bearing CS No.72 of 2008, wherein, vide judgment
dated 27.02.2012, the claim of the petitioner, with regard to his right claimed
in the suit property was declined. The said suit was further challenged in
appeal and by virtue of judgment dated 07.12.2014, the appeal was also
dismissed. Considering the aforesaid facts, the suit filed by Krishan Lal-
subsequent purchaser, for mandatory and permanent injunction, as such, was
decreed.
In this backdrop, useful reference can be made to the decision
rendered by this Court in Gurcharan Singh and another vs. Gurdwara Shri
Singh Sabha, 2004(2) RCR (Civil) 432, wherein, a distinction was made,
with regard to the observations made by the Hon'ble Delhi High Court in
Sarup Singh's case (supra), which related to the suit filed by the plaintiff for
mandatory injunction, directing the defendant to quit and vacate the
workshop in dispute. The plaintiff was landlord of the suit property and the
defendant was a licensee to run the workshop. The suit was decreed before
learned trial Court. First appeal filed by the defendant was dismissed and
second appeal was also dismissed by the Court. When the plaintiff filed
execution petition, the Court ordered delivery and issued delivery warrants.
Challenging the said order, revision petition was filed and while disposing of
the revision petition, it was held that when the decree is not for delivery of
possession, nor the decree holder adjudged his entitlement to receive the
possession, provisions of Order XXI Rule 35 CPC are not attracted. The
decree holder can only invoke Order XXI Rule 32 CPC for detaining the
judgment-debtor in civil prison or attaching and selling his property or both.
2024:PHHC:030853
It was observed that where a party is content to seek decree for injunction to
vacate, rather than delivery of possession in a suit, properly framed for the
purpose, he has to face its logical consequences and he can have the decree
executed only in accordance with provisions of law governing execution of
decree for injunction and he cannot employ the argument of frustration of
his object, existing behind his suit, to obtain a relief from the Court, which
was not envisaged by the suit and not granted by the Court.
True as it is, that in the aforesaid judgment, it was held that in a
suit for injunction, the decree holder has to seek remedy only in terms of
Order XXI Rule 32 CPC and cannot invoke the provisions under Order XXI
Rule 35 CPC. However, in that case, the decree for mandatory injunction
was only to quit and vacate the workshop. Seemingly, no prayer for handing
over the possession was made. However, in the case in hand, the suit was
filed for mandatory injunction. A prayer was specifically made for grant of
mandatory injunction, directing the petitioner-defendant to vacate and
handover the possession of half portion of the house. Prayer for possession
was specifically raised in the plaint. That prayer was favouraby considered
by the Court and precisely, on this account, no sustenance can be drawn
from Sarup Singh's (case).
That apart, in Gurcharan Singh's case (supra), the judgment of
the Hon'ble Delhi High Court, delivered in Sarup Singh's case (supra) came
to be considered. While quoting Law Commission's report and need to have
wider view than a narrow view on the amendment brought under Order XXI
Rule 32 Sub Rule (5) CPC, by Act 22 of 2002, with an insertion of
explanation to Order XXI Rule 32 Sub Rule (5) CPC, it was observed that
2024:PHHC:030853
the view taken in Sarup Singh's case (supra), is narrow view driving the
party to further litigation and it would not advance the cause of justice.
Therein, observations made by the Law Commission were taken into
consideration, which are reproduced, as herein given:-
"Referring to the judgment of the Full Bench of Delhi High
Court in Sarup Singh's case (supra), the Law Commission has
observed as under;-
"8.1.10. In a Delhi case (Sarup Singh v. Daryodhan
Singh, A.I.R. 1972 Delhi 142 (F.B.) the comparison was
between Order 21, Rule 32 and Order 21 Rule 35. The
injunction issued against the licensee was to vacate the
premises occupied by him as license. It was held that
steps to evict the licensee would mean, practically,
dispossession of the licensee (judgment-debtor). This was
not permissible under Order 21 Rule 32.
8.1.11. The Delhi case was really one in which the decree
against the licensee was to quit and vacate the premises.
The decree in question was sought to be enforced under
Order 21 Rule 32(5). The Court held that truly Rule 32(5)
cannot in the very nature of things come to the aid of a
decree holder to obtain possession. But the rulings of the
other High Courts (mentioned above) do reveal a conflict
of decision."
After noticing the aforementioned judgments of various
High Courts including the Full Bench judgment of Delhi High
Court in Sarup Singh's case, the Law Commission made
recommendations, which led to the insertion of explanation 5.
The recommendations of the Law Commission read as under:-
8.1.12. Recommendation.- Clarification is obviously
needed on the point at issue. It is suggested that as a
matter of legislative amendment, it is preferable to
incorporate the wider view (though the majority of the
2024:PHHC:030853
High Courts have taken a contrary view) and to provide
that the words "act required to be done" cover prohibitory
(as well as mandatory) injunctions. This would also be in
conformity with Section 3(2), General Clauses Act, 1897
which provides that in all Central Acts, the words "act"
includes illegal omissions. Besides this, on the merits
there is also justification why a decree-holder should be
driven to a separate suit for getting relief in the nature of
enforcement of a decree which he must have obtained
after considerable expenditure of time, labour and
money."
In the backdrop of recommendations of the Law Commission, it
is apt to make beneficial reference to paragraph No.10 of the Gurcharan
Singh's case (supra), which reads as herein given:-
10. It is in view of the afore-mentioned historical perspective
that the order dated 23.2.2004 passed by the Civil Judge has to
be examined. The expression 'act required to be done' has, been
extended to prohibitory as well as mandatory injunctions. The
view taken by the Full Bench of Delhi High Court has been
treated as a narrower view because that was a case, in which the
decree against the licensee was to quit and vacate the premises
but the High Court by taking a narrower view expressed its
inability to invoke Order 21 Rule 32(5). Therefore, the question
posed by the Law Commission, which led to the
recommendation for adopting wider view has been accepted by
inserting explanation to Sub-rule (5). The decree-holder is not
required to file another suit when he has already acquired a
decree in his favour by spending much time and expense. The
Court, therefore, would be fully competent to direct that the act
required to be done may be done so far as practicable either by
the decree-holder himself or by some other person appointed by
the Court at the cost of judgment-debtor. In the instant
2024:PHHC:030853
execution of the decree for mandatory injunction, where the
possession is sought from a licensee, the aforesaid order is
consistent with the spirit of law and the explanation added as
per the recommendation made by the Law Commission. The
direction to vacate the premises situated in the Gurudwara
Sahib where the judgment-debtor petitioners were allowed to
stay being the sewadars is another form and method to direct
hand over of possession. Tweedledee is Tweedledum. It can
mean nothing else except the handing over of possession and,
therefore, the wider view as suggested by the Law Commission
has to be followed because it serves the ends of justice. The
decree cannot be defeated by raising technical objections. It is
well settled that technicalities of law should be construed to
advance justice and not to defeat justice. With utmost defence
to the ld. Judges, I am of the view that the ratio of the judgment
of the Full Bench of Delhi High Court in Sarup Singh's case
(supra) stands considerably watered down by Explanation
added to Sub-rule 5 of Rule 32 of Order 21. The wider view
preferred by Allahabad High Court in Harihar Pandey's case
(supra) has rightly held that the decree holder cannot be
compelled to file another suit for it would multiply litigation
which course public policy would discourage. Courts cannot be
party to the illegal designs of a Judgment debtor who wishes to
carry on with his illegal possession. The ground realities
propagated by Realist School of Thoughts led by Jurist like
Karl Llewellyn must dawn on the parties to litigation and
substantial justice must be done. Therefore, I do not find any
ground to interfere with the order passed by Civil Judge. The
petition is liable to be dismissed.
For the reasons recorded above, this petition fails and the
same is dismissed."
Thus, in view of the notice having taken by the Law
Commission of the view expressed in Sarup Singh's case (supra), a
2024:PHHC:030853
recommendation was made for adopting wider view, which was accepted by
insertion of explanation to Sub-rule (5). In the given circumstances, the
Court is fully competent to direct the act required to be done, may be done,
so far as practicable, either by the decree holder himself or some other
person appointed by the Court, at the cost of judgment debtor. In the instant
case, the execution of decree for mandatory injunction, where possession is
sought from a licensee, who was not inclined to part with the possession of
his own, the aforementioned order is consistent with the spirit of law and
explanation added, as per the recommendation made by the Law
Commission.
Furthermore, be it noted that learned counsel for the petitioner
submits that suit for partition between the parties is pending adjudication,
but however, as already observed aforesaid, the gift deed executed by his
father, in favour of his brother Kuldeep Singh, has since been upheld by the
Court and the said judgment has since attained finality and on the basis
thereof, the sale deed in favour of Krishan Lal, at the behest of Kuldeep
Singh, has also been upheld by the Court. In the light of the same, the
question of pendency of the suit for partition (if any) will not raise
obstruction in the execution of the judgment in question.
Hence, the impugned order warrants no interference by this
Court, in exercise of revisional jurisdiction. Resultantly, the present revision
petition sans merit and the same is dismissed.
March 04, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
