Telangana High Court
G. Nataraj, vs S. Srinivasulu on 14 February, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
CIVIL REVISION PETITION Nos.1200 AND 1651 of 2023
COMMON ORDER:
Since the issue in these two Revision Petitions is one and the
same, they are being decided by this Common Order.
2. Heard Mr. Bankatlal Mandhani, learned counsel for the
petitioners and Mr. D. Srinivas Prasad, learned counsel for the
respondent.
3. Civil Revision Petition No.1200 of 2023 is filed assailing the
docket order dated 11.04.2023, in E.A.S.R.No.4429 of 2023 in
E.P.No.157 of 2023 in O.S.No.135 of 2006, on the file of the I Addl.
Chief Judge, City Civil Court at Secunderabad. Similarly, Civil
Revision Petition No.1651 of 2023 is also filed assailing the docket
order dated 11.04.2023 in E.A.S.R.No.4422 of 2023, in E.P.No.157 of
2023, arising of the same suit i.e. O.S.No.135 of 2006, on the file of
the I Addl. Chief Judge, City Civil Court at Secunderabad.
4. For convenience, the facts in Civil Revision Petition No.1200 of
2023 are discussed herein under.
5. The whole issue germinates from a Civil suit that was filed way
back in the year 2006 i.e. O.S.No.135 of 2006 by the respondent
herein for declaration of title with delivery of possession, along with
mesne profits and damages. After a prolonged litigation, the suit was
finally decreed in favour of the respondent herein by the Trial Court
vide judgment and decree dated 28.04.2014. The matter was
thereafter subjected to challenge before the High Court by the
petitioners herein vide City Civil Court Appeal No.17 of 2014 which too
got dismissed on 04.01.2023. Subsequently, the decree holder
preferred execution proceedings before the I Addl. Chief Judge, City
Civil Court, Secunderabad vide E.P.No.157 of 2023. In the said
petition, an application was filed for grant of mesne profits which was
allowed and the judgment debtor was directed to pay Rs.10,000/- per
month from the date of the suit for illegal use and occupation of the
suit schedule property. In the said order, a warrant for delivery of
possession was also issued on 04.04.2023. However, the bailiff could
execute the warrant on 06.04.2023 due to illegal resistance put by the
petitioners herein; the report of which was submitted by the bailiff to
the concerned Court.
6. Pending the execution proceedings and issuance of warrant of
possession, the judgment debtor i.e. the petitioners herein have filed a
petition under Section 47 of Civil Procedure Code, 1908 (for short, the
'CPC') raising an objection so far as the jurisdiction of the Civil Court
to the dispute also the jurisdiction of the Court in executing the
decree.
7. As per the contention of the petitioners in the said application
under Section 47 of CPC, they claim to have entered into the premises
and are occupying the same in the capacity of tenants and since it was
a landlord tenant dispute, the Civil suit was not the proper remedy for
the decree holder and in terms of the provisions of the Telangana
(Lease, Rent and Eviction) control Act, 1960, a tenant can be evicted
only in accordance with Sections 12 and 13 of the Rent Control Act
and it is only the authority under the Rent Control Act or the Rent
Control Court which has the jurisdiction to pass orders of eviction.
Further, the contention of the petitioners was that the entire suit
proceedings and the subsequent proceedings drawn thereafter are all
nullity and void ab initio without jurisdiction.
8. Initially when the said application was filed under Section 47 of
CPC the Execution Court refused to entertain the same and returned
to the petitioners holding it to be not maintainable. Then the
petitioners again resubmitted the same and made an out of order
mentioning for urgently taking up the matter as the Execution Court
had already issued warrant of delivery of possession and prayed for
stay of the execution proceedings in the light of the said objections.
The said application was taken up at the S.R. stage vide
E.A.S.R.No.4422 of 2023. After hearing the learned counsel for the
parties at length, the impugned order was passed rejecting the said
application holding it to be un-sustainable.
9. It is this rejection of the said application under Section 47 of
CPC which led to the filing of the instant Revision Petition.
10. While challenging the impugned order, the contention of the
learned counsel for the petitioners was that; firstly as regards the
manner in which the objection was decided by the Execution Court
inasmuch as according to the petitioners upon an application under
Section 47 of CPC being filed in an execution proceedings it is
incumbent for the Court to have registered the said application as an
Interlocutory Application and only upon hearing the parties it ought to
be decided on merit. However, in the instant case without registering
the same, the application stood rejected at the S.R. stage itself which
therefore was not sustainable and the same deserves to be set aside.
Secondly, once when a legal objection is being raised by either of the
parties, there was no reason or occasion for the Execution Court to
have not accepted the said objection; neither could it have been
decided at the threshold itself without even being numbered as an
Interlocutory Application.
11. Learned counsel for the petitioners contended that since it was a
legal objection which otherwise touches the very maintainability of the
proceedings before the Civil Court, both in respect of the authority as
also in respect of the jurisdiction, such an objection could be raised at
any stage of the proceedings including the execution stage, and as
such, these objections cannot be simply brushed aside or rejected as a
matter of routine at the S.R. stage.
12. It was also the contention of the learned counsel for the
petitioners that they were not given an effective opportunity of hearing
on the said objection and the Execution Court in a hasty manner has
taken up the application filed by the petitioners under Section 47 of
CPC and rejected the said same.
13. Learned counsel for the petitioners in support of his contentions
heavily relied upon the following decisions.
i. Kiran Singh and others vs. Paswan and others 1
ii. D. Satyanarayana Rao vs. Vasudev Asrani and another 2
iii. Sarwan Kumar and another vs. Madan Lal Aggarwal 3
AIR 1954 SUPREME COURT 340
2001 (3) ALD 510
AIR 2003 SUPREME COURT 1475
14. Per contra, the learned counsel for the respondent in the course
of his arguments justified the impugned order contending that the
petition under Section 47 of CPC filed by the petitioners is nothing but
with a mala fide intention of protracting the proceedings as far as
possible so that the petitioners can illegally retain and occupy the suit
schedule premises. It was contended that the time when the objection
under Section 47 of CPC was raised and the date on which the interim
orders have been obtained from the High Court are all crucial to
justify the aforesaid contention of mala fide intention of the
petitioners.
15. According to the learned counsel for the respondent once when
O.S.No.135 of 2006 was decided in favour of the plaintiff and which
stood confirmed up till the stage of Hon'ble Supreme Court, there was
nothing further left for the petitioners to contest. Further, suppressing
the fact that the S.L.P. they had preferred before the Hon'ble Supreme
Court has also got dismissed and in the process the decree getting
confirmed, the petitioners have pressed the High Court in respect of
the threat of eviction and have obtained an ex-parte stay by virtue of
which they are still in illegal possession of the suit premises.
16. It was also the contention of the learned counsel for the
respondent that the original suit was one which was filed in the year
2006. In the decree, the first appeal and second appeal, and thereafter
in the proceedings before the Hon'ble Supreme Court the petitioners
have never projected themselves to be in occupation of the said
premises as tenants. It was for the first time after almost two decades
of the proceedings which were initially vitiated in the year 2006 that
the petitioners have now raised an objection under Section 47 of CPC
highlighting the fact that they are in occupation of the premises as
tenants. Therefore, it was contended that the Civil Court does not have
the jurisdiction to entertain such a claim petition and the proceedings
drawn right from the institution of the suit till the S.L.P. having been
dismissed before Hon'ble Supreme Court gets vitiated for want of
jurisdiction and becomes null and void.
17. According to the learned counsel for the respondent, the
contention of the learned counsel for the petitioners now in the
objection under Section 47 of CPC cannot be accepted, nor is it
sustainable in the teeth of the specific plea that they had taken at the
first instance when the Written Statement was filed in O.S.No.135 of
2006 and the pleadings that they had raised finally at the S.L.P. stage
before the Hon'ble Supreme Court. According to the learned counsel
for the respondent, the petitioners in fact have taken the defence
before the Civil Court, the High Court and also before the Hon'ble
Supreme Court that they were the owners of the suit schedule
property having title over the same and there was also a plea of the
title having been perfected by way of adverse possession without even
being referred of having occupied the premises as tenants, or that
there being a landlord - tenant relationship between the decree holder
and judgment debtor. Therefore, such a plea cannot be permitted to be
raised now and the petitioners also have never accepted or admitted
being a tenant in the said premises.
18. Learned counsel for the respondent in support of his contentions
relied upon the following decisions.
i. Shivaji Balaram Haibatti vs. Avinash Maruthi Pawar 4
ii. Pradeep Mehra vs. Harijivan J. Jethwa (Since deceased thr.
LRs.) & Ors. 5
iii. Brakewel Automotive Components (India) Private Limited vs.
P.R. Selvam Alagappan 6
iv. Rahul S. Shah vs. Jinendra Kumar Gandhi and others 7
v. Asma Lateef and another vs. Shabbir Ahmad and others 8
19. Having heard the contentions put forth on either side and on
perusal of records, particularly taking into consideration the
checkered history of series of litigations and orders passed thereon,
(2018) 11 Supreme Court Cases 652
(2023) SCC OnLine SC 1395
(2017) 5 Supreme Court Cases 371
(2021) 6 Supreme Court Cases 418
2024 (1) ALD 234 (SC)
the original suit in the present dispute i.e. O.S.No.135 of 2006 being
filed was decreed in favour of the respondent herein on 28.04.2014,
the City Civil Court Appeal No.17 of 2014 preferred by the petitioners
herein also got dismissed on 04.01.2023 and rejection of the same led
to filing of the S.L.P.(C) No.7452 of 2023 and the said S.L.P. was also
dismissed by the Hon'ble Supreme Court on 13.04.2023. Right from
the Civil Court, up till the Hon'ble Supreme Court, the matter was
pending consideration at various levels and stages for almost a period
of seventeen years. All along, the stand of the petitioners was that they
are the owners of the said property and they had perfected the title by
way of adverse possession. In between, the respondent had filed an
execution petition i.e. E.P.No.157 of 2023 and a warrant of possession
was also issued on 04.04.2023. However, since the petitioners have
resisted, the bailiff could not take delivery of possession; the report of
which was also furnished to the concerned Court.
20. In the teeth of the aforesaid factual matrix, the points for
consideration now are two-fold, viz.,
a) Whether the impugned order gets vitiated since it has been
ordered at the S.R. stage?
b) Whether the Execution Court was justified in rejecting the
petition filed by the petitioners under Section 47 of CPC?
Both these points, in the opinion of this Court, are too hyper
technical an issue when we look at the proceedings as a whole.
21. As regards the rejection of the petition under Section 47 of CPC
at the S.R. stage, the wordings of the Execution Court while deciding
the objections so raised is self-explanatory by itself. It is clearly
revealed that the petitioners had at the first instance presented the
said objection which was refused by the Trial Court. The petitioners
thereafter resubmitted the said petition under Section 47 of CPC and
at the same time made an out of turn hearing of the matter on urgent
basis. It was this out of turn mentioning before the Court which led
the hearing to commence and the impugned order getting passed.
22. In the given factual backdrop, since the Execution Court had
already heard the matter so far as its maintainability is concerned, it
went on to decide the same continuously and in the process, the
registration of the said petition filed under Section 47 of CPC could not
be carried out and the impugned order was passed. But the fact
remains that the Court had heard the Counsel for the petitioners
elaborately and dealt with all the objections that were raised and
finally found no merits on the said objection. In the said
circumstances, if the order has been passed at the S.R. stage, the
same cannot be found to be erroneous or bad in law.
23. As regards the objection under Section 47 of CPC can be raised
at any stage of the proceedings including the execution stage, this
Court has no hesitation in accepting the said principle. However, the
petitioners contradictory stand raises serious concerns about the
integrity of their legal arguments and the proper administration of
justice. Not only does it appear to be a deliberate attempt to protract
the proceedings, but it also undermines the fundamental principle
that parties should present all available defense comprehensively at
the earliest opportunity. The fact that this new stance emerges after
seventeen years of litigation and particularly after the matter has been
adjudicated at various levels including the Hon'ble Supreme Court,
strongly suggests a tactical maneuver rather than a genuine legal
position. The timing and nature of this contradictory stand becomes
even more questionable when considering that the petitioners had
multiple opportunities to raise this issue during the original trial,
subsequent appeals, and most notably in their recent S.L.P. preferred
before the Hon'ble Supreme Court. This pattern of behavior shows a
calculated strategy to introduce new elements into the case solely for
the purpose of delaying its resolution, which goes against the
principles of judicial efficiency and the spirit of justice.
24. The said contradictory stand now being raised by the petitioners
cannot be said to be a ground which the petitioners were not aware of
or they have recently come to know of such a stand and such a
relationship with that of the decree holder i.e. respondent herein. It is
particularly difficult to accept the petitioners assertion that they failed
to raise this ground earlier due to ignorance or lack of knowledge and
the extensive duration of these proceedings. This stand now raised by
the petitioners under Section 47 of CPC clearly reflects a calculated
strategy aimed at protracting the proceedings on some count or the
other, rather than a genuine legal position emerging from newly
discovered facts or circumstances. The petitioners failure to provide
any satisfactory explanation for their delayed introduction of this plea,
particularly when they had ample opportunity to raise it during their
recent S.L.P. before the Hon'ble Supreme Court severely undermines
their credibility and forces this Court to draw an adverse inference
regarding their intentions. Their conduct appears to be a deliberate
attempt to introduce new elements into the case at this belated stage
which is particularly concerning given their sophisticated
understanding of legal proceedings as shown by their previous
litigation history.
25. Another aspect which needs to be considered at this juncture is
that in the teeth of the pleadings that the petitioners have raised in
their Written Statement at the first instance and the stand now being
taken in the petition filed under Section 47 of CPC, both cannot go
simultaneously under any circumstances. A person cannot claim title
over the property or claim ownership over the said property on one
hand and at the same time project himself as the tenant of the suit
schedule property.
26. As regards the judgments relied upon by the learned counsel for
the petitioners, this Court is of the firm view that the manner in which
the present dispute has travelled from the year 2006 onwards and
after seventeen long years of battle after the initial litigation having
been concluded up till the stage of Hon'ble Supreme Court, now for
the first time, the petitioners cannot be permitted to raise altogether
fresh ground and contention totally contrary to their pleadings and
defence till now. The said ground does not seem to have too much of
force inasmuch as the petitioners could either have been the owners of
the property or the tenants on the said portion of land. However, it is
pertinent to note that the petitioners initially raised grounds which
were systematically dismissed from the Trial Court up to the Hon'ble
Supreme Court. Now, after seventeen years, the petitioners have
strategically introduced new grounds attempting to establish both
tenant and owner relationship which appears to be a calculated effort
to extend their possession and prolong the proceedings for several
more years so as to continue enjoying the possession of the suit
schedule property. This conduct itself clearly illustrates a sheer abuse
of the process of law. Therefore, the judgments which have been relied
upon can be distinguishable on facts itself and the same cannot be
applied in a straight jacket formula to the facts of the present case.
27. Further, the petitioners have miserably failed to give a plausible
explanation as to what prevented them in not taking this ground on
an earlier occasion; neither is their case that the said ground was
because of certain compelling situations that they faced. In the
absence of all these, the decision of the Execution Court cannot be
found fault with. As a consequence, this Court is of the opinion that
the Execution Court has not committed any error while rejecting the
petition filed by the petitioners herein under Section 47 of CPC.
28. As an outcome of the discussions made in the preceding
paragraphs, this Court has got no hesitation in reaching to the
conclusion so far as the first point for consideration "whether the
impugned order gets vitiated since it has been ordered at the S.R.
stage", this Court is of the considered opinion that in the compelling
circumstances at which the petitioners insisted for taking up the
matter even before the registration upon an out of order mentioning
being made by the petitioners, it cannot be said that the impugned
order would get vitiated on the ground of it being ordered at the S.R.
stage. Similarly, as regards the second point for consideration
"whether the Execution Court was justified in rejecting the petition
filed under Section 47 of CPC", in the light of the discussions made in
the preceding paragraphs and upon hearing the contentions on either
side, this Court is of the considered opinion that the Execution Court
was in fact justified while rejecting the petition filed under Section 47
of CPC. The Civil Revision Petitions thus fail and are accordingly
dismissed. No costs.
29. As a sequel, miscellaneous petitions pending if any, shall stand
closed.
__________________
P.SAM KOSHY, J
Date: 14.02.2025
GSD
