Raj Kumari Kapoor v. Civil Judge, Kanpur — 1986 DIGILAW 756 (ALL)

Judgment S.D. Agarwala, J. 1. THESE are two petitions under Article 226 of the Constitution of India arising out of proceedings under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972, hereinafter referred to as the 1972 Act. Writ petition no. 343 of 1985 filed by the tenant is directed against the order dated 15th September, 1984 passed by the 1st Additional Civil Judge, Kanpur. Writ petition no. 16971 of 1984 directed against the order dated 13-11-1984 passed by the 1st Additional Civil Judge, Kanpur has been filed by the landlady. Since both these petitions relate to the same property, they are being decided by a common judgment. 2. SMT. Raj Kumari Kapoor is the landlady of a shop situate in the ground floor of premises no. 48/84, Generalganj, Kanpur. The tenants are the firm M/s. Bhola Nath Kashi Nath and its proprietor Sri Kashi Nath Kapoor. In 1971 a suit no. 1230 of 1971 was filed by the landlady for ejectment and recovery of arrears of rent against the tenants on the ground of default as contemplated by the U. P. Temporary (Control of Rent and Eviction) Act, 1947, U. P. Act 3 of 1947, hereinafter referred to as the 1947 Act. This suit was decreed on 7-5-75. The decree of the trial court dated 7-5-1975 was challenged in a revision under section 25 of the U. P. Provincial Small Causes Court Act. This revision came up for hearing before the IVth Additional District Judge, Kanpur. The revision was dismissed. The tenants thereafter filed a revision before the High Court. The revision was dismissed as not maintainable. Since the revision was' dismissed as not maintainable the tenants filed a writ petition in the High Court being writ petition no. 5803 of 1979. 3. WRIT petition no. 5803 of 1979 came up for hearing before Hon'ble Mr. Justice Deoki Nandan (as he then was) who by his judgment dated 17th December 1980 dismissed the petition. The effect was that the decree for ejectment passed by the trial court became final by the High Court and it was held that the tenants were defaulters within the meaning of 1947 Act. 4. Justice Deoki Nandan (as he then was) who by his judgment dated 17th December 1980 dismissed the petition. The effect was that the decree for ejectment passed by the trial court became final by the High Court and it was held that the tenants were defaulters within the meaning of 1947 Act. 4. THE judgment of this court dated 17-12-1980 was challenged in special leave petition before the Hon'ble Supreme Court of India and the tenants obtained an interim order on 12-2-1982 staying the execution of the decree. The above mentioned facts relate to one set of proceedings taken for eviction of the tenants. The landlady also filed application under section 3 of 1947 Act for permission to file a suit for ejectment. These proceedings were initiated in the year 1970. The application was allowed by the Rent Control and Eviction Officer subject to certain conditions. The landlady preferred a revision under section 3 (2) of 1947 Act before the Commissioner, Allahabad Division, Allahabad. The revision was allowed by the Commissioner, Allahabad Division, Allahabad. 5. THE tenants aggrieved by the decision of the Commissioner filed revision under section 7-F of 1947 Act before the State Government of U. P. THE State Government in exercise of its power under section 7-F of the 1947 Act affirmed the order of the Commissioner, Allahabad Division made in favour of the landlady and dismissed the tenants revision by order dated 18th July, 1972. This order dated 18th July 1972 was challenged by means of a writ petition in this Court. THE learned Single Judge allowed this petition. THE petitioner landlady challenged the order of the learned Single Judge by means of special appeal. THE Division Bench of this court allowed the special appeal. THE effect was that the order passed under section 3 of the Act for permission under the 1947 Act became final. After this permission became final, the petitioner landlady made an application under section 21 alongwith Section 43 (2) (rr) of 1972 Act for eviction of the tenants. 6. THE prescribed authority under 1947 Act allowed the application by his order dated 1-11-1977. THE tenants filed an appeal which was dismissed on 1-12-1977. Again the orders were challenged by means of another writ petition in this Court, namely, writ petition no. 2212 of 1977. This writ petition came up for final hearing before a Bench consisting of Hon'ble Mr. THE prescribed authority under 1947 Act allowed the application by his order dated 1-11-1977. THE tenants filed an appeal which was dismissed on 1-12-1977. Again the orders were challenged by means of another writ petition in this Court, namely, writ petition no. 2212 of 1977. This writ petition came up for final hearing before a Bench consisting of Hon'ble Mr. Justice M. P. Mehrotra and Hon'ble K. C. Agarwal, J. who by their judgment dated 9-1-1981 dismissed the petition. Against the order of this court dated 9-1-1981 the tenants preferred a special leave petition before the Hon'ble Supreme Court which was also dismissed on 12-2-1981. THE result was that the order of the prescribed authority stood affirmed. After the above proceedings were over, the petitioner landlady made an application under section 23 of 1972 Act for enforcement of the eviction order. The prescribed authority refused to evict the tenant or restore the possession to the petitioner landlady on account of the interim order passed by the Supreme Court in special leave petition filed by the tenants against the judgment of this Court in writ petition no. 5803 of 1979. Since the prescribed authority refused to enforce the eviction order under section 23 of 1972 Act, the petitioner landlady filed a writ petition no. 10451 of 1982 in this court for seeking a writ of certiorari quashing the order of the prescribed authority dated 24-4-1982 refusing to dispossess the tenants under section 23 of 1972 Act. 7. THIS petition came up for final hearing before a Division Bench of this Court. The Division Bench of this court quashed the order of the prescribed authority dated 24-4-1982 by judgment dated 24-4-1984. The judgment of the court was delivered by Hon'ble K. N. Singh, J. (as he then was). It was held by this court as follows :- "It is well settled principle that where there are several decrees against a party and the stay order is passed only in one of them, the remaining decrees can be executed under law. The prescribed authority failed to exercise its jurisdiction in accordance with law. It appears that when the Supreme Court passed the order dated 12-2-1982 staying dispossession of the tenants in special leave petition filed against the order of this court dismissing writ petition no. The prescribed authority failed to exercise its jurisdiction in accordance with law. It appears that when the Supreme Court passed the order dated 12-2-1982 staying dispossession of the tenants in special leave petition filed against the order of this court dismissing writ petition no. 5803 of 1979, it was not expressly brought to the notice of the Supreme Court that there was another order for ejectment against the respondent-tenants which had become final". 8. AFTER the judgment of this court was delivered on 24th April, 1984 and the landlady took steps to get the eviction order enforced, the tenants now adopted another procedure for delaying the execution of the decree by setting up a compromise alleged to have taken place on the 28th of May 1984. The landlady filed objections to" the effect that no compromise had ever taken place. The alleged compromise was a forged and fabricated document. This matter was considered in detail by the 1st Additional Civil Judge, Kanpur. Objections of the landlady were accepted and the application moved by the tenants that the proceedings for eviction may not be taken against him was rejected. This order was passed on 15th September, 1984. Alter this order was passed on 15th September, 1984, on 25th September, 1984 an application was moved by the tenants supported by an affidavit praying that 15 days time may be granted to him to vacate the accommodation. The ground on which this time was sought was stated in paragraph 3 of the affidavit. It was stated that a lot of huge material (clothes) for the purposes of Pooja festival has been collected by the tenant and is lying in the shop and if the tenant is evicted at this time great loss would be caused to him and the whole family will be ruined. The court accepted the application of the tenants and directed that possession be not taken from the tenants till 8th October, 1984. Before making the application for grant of time on 25th September 1984, it is clear that the tenants had prepared the plaint of suit no. 329 of 1984 which has been attached as Annexure 4 to the counter affidavit of Paras Nath Kapoor who is the son of the tenant. This plaint which was prepared on 24th September, 1984 was filed in the court and was registered as suit no. 23 of 1984. 329 of 1984 which has been attached as Annexure 4 to the counter affidavit of Paras Nath Kapoor who is the son of the tenant. This plaint which was prepared on 24th September, 1984 was filed in the court and was registered as suit no. 23 of 1984. The suit was filed before the court of 1st Civil Judge, Kanpur. In this suit an application was made for grant of ad interim order restraining the landlady from evicting the tenant in pursuance of the release order passed in her favour. The 1st Civil Judge, Kanpur passed the interim order restraining the landlady from evicting the tenant on 13th November, 1984. 9. BESIDES filing the above mentioned suit the tenant in order to further delay the execution of the order for release of the accommodation two more suits were got filed in respect of the same property. One suit no. 1564 of 1984 was filed by one Atul Kumar Mehrotra on the allegations that he was the tenant of the accommodation in dispute and that it had been let out to him on 1-1-1984. This suit was filed in the court of Munsif-11, Kanpur. The Munsif-11 Kanpur granted an exparte injunction order on 25th September, 1984 in the said suit. The suit is still pending in the court of Munsif-11 Kanpur. 10. ONE more suit was filed by one Amar Nath Kapoor during the pendency of the release proceedings being suit no. 628 of 1981 in the court of Munsif-City, Kanpur for a permanent injunction to restrain the landlady from evicting him on the ground that he was a tenant in common alongwith the tenants against whom the landlady had filed the suit. In this suit also initially an interim injunction was granted. But after hearing the parties the trial court dismissed the injunction application. Then Shri A. N. Kapoor filed an appeal before the District Judge, Kanpur. The said appeal was dismissed for non-prosecution. Subsequently the suit itself has also been dismissed for non-prosecution. The landlady filed writ petition No. 16971 of 1984 in this court not only challenging the order dated 13-11-1984 passed in suit no. 329 of 1984 but 'also sought quashing of the proceedings in suit no. 329 of 1984 as well as the proceedings in suit no. Subsequently the suit itself has also been dismissed for non-prosecution. The landlady filed writ petition No. 16971 of 1984 in this court not only challenging the order dated 13-11-1984 passed in suit no. 329 of 1984 but 'also sought quashing of the proceedings in suit no. 329 of 1984 as well as the proceedings in suit no. 1564 of 1984 filed by Atul Kumar Mehrotra on the ground that they are nothing but an abuse of the process of the court as these suits have been got filed simply to avoid the enforcement of the eviction order which had been passed by this Court and had become final. 11. AFTER filing of the above mentioned petition, the tenant also filed writ petition no. 343 of 1985 challenging the order dated 15th September, 1984 by which the compromise alleged to have been utered into between the landlady and the tenant was not accepted by the court below. 12. I have heard the learned counsel for both the landlady and the tenant in both the above writ petitions. I will first consider the arguments raised in writ petition no. 16971 of 1984. 13. LEARNED counsel for the respondent-tenant has raised a preliminary objection that an appeal lies against the impugned order dated 13-11-1984 and as such the petitioner has clearly an alternative remedy by filing an appeal and as such the present petition under Article 226 of the Constitution of India is not maintainable. It is no doubt true that against the order granting an injunction an appeal does lie under Order 43 Rule 1 (r) of the Code of Civil Procedure, but in the instant case the petitioner has further sought quashing of the proceedings of suit no. 329 of 1984 in which an injunction order has been passed, as well as the quashing of the proceedings of suit no. 1564 of 1984 on the ground that both these suits are an abuse of the process of the court. Since the petitioner has not only challenged the order dated 13-11-1984 but has also sought quashing of the proceedings in the suit, it cannot be said that the petitioner has an alternative remedy and that the present petition is not maintainable. In an appeal under Order 43 rule 1 Civil Procedure Code the proceedings in the suit cannot possibly be quashed. The preliminary objection, therefore, in my opinion, has no substance. 14. In an appeal under Order 43 rule 1 Civil Procedure Code the proceedings in the suit cannot possibly be quashed. The preliminary objection, therefore, in my opinion, has no substance. 14. LEARNED counsel for the petitioner contended that the 1st Additional Civil Judge, Kanpur in his order dated 15th September, 1984 in proceedings under section 23 of the 1972 Act having not accepted the compromise and having dismissed the application of the tenant, the said decision operated as res-judicata and the 1st Additional Civil Judge, Kanpur acted illegally and with material irregularity in the exercise of his jurisdiction in issuing an injunction order dated 13th November, 1984 in suit no. 329 of 1984. In Bengali v. District Judge, Allahabad, 1985 Vol. II ARC page 455 I had an occasion to consider a similar question. After considering the various authorities, I have taken the view that the principles of res-judicata are applicable to the decisions given by the authorities under the Act of 1972. The principles laid down in the case of Bengali (supra) fully applies to the instant case. The submission made by the learned counsel for the petitioner is well founded. Once the 1st Additional Civil Judge, had held in proceedings under section 23 of the Act that the alleged compromise was not enforceable the said finding operated as res-judicata in the present suit also and clearly the court while passing the injunction order acted illegally and with material irregularity in the exercise of his jurisdiction in holding that the tenant had a prima facie case in his favour on the basis of the said compromise. Now I will take up the arguments raised in writ petition No. 343 of 1985. Learned counsel for the petitioner-tenant in this petition has urged that the judgment of the 1st Additional Civil Judge dated 15th September, 1984 not accepting the compromise is manifestly erroneous as the court has not considered the evidence produced on merits to establish that a compromise has been arrived at between the landlord and tenant. 15. HE has further urged that the compromise was valid in law and the finding to the contrary is also erroneous. 16. IN my opinion, the arguments raised by the learned counsel for the petitioner tenant lacks substance. IN the instant case the release application has been filed as far back as 1970. 15. HE has further urged that the compromise was valid in law and the finding to the contrary is also erroneous. 16. IN my opinion, the arguments raised by the learned counsel for the petitioner tenant lacks substance. IN the instant case the release application has been filed as far back as 1970. After a lengthy proceedings before the authorities under the Rent Control Act, thereafter the High Court and the Supreme Court, the proceedings for release were finally concluded and it was held that the release order was enforceable under Section 23 of the Act. It cannot possibly be believed in these circumstances that immediately after the judgment of the High Court on 24th April, 1984 a compromise could have been arrived at on 28th May, 1984, the landlady clearly denied the existence of the said compromise and had urged that the compromise was a fabricated document and was another tactics adopted by the tenant to delay the proceedings for enforcement of the release order. After considering the facts and circumstances of the case, it is apparent that the tenant had set up this compromise only just to delay the enforcement of the release order. On the face of the compromise it is nothing but a fabricated document just to further put an impediment in the enforcement of the release order. After the landlady was harassed for almost 14 years, it cannot possibly be accepted that the compromise of a nature alleged to be entered into could have been entered by the landlady. IN the circumstances, it cannot be said that by mere non-consideration of technically some evidence which was produced by the petitioner-tenant resulted in making the impugned order invalid. On the other hand by going through the various proceedings taken in the matter of release leave no doubt in my mind that the compromise was a forged document and was rightly not enforced by the court below. In regard to the legal validity of the alleged compromise, on a reading of the compromise it cannot be said that the view taken by the court below was manifestly erroneous. One of the terms of the compromise is that the rent of the property in dispute for the period of four years, would be Rs. 150/- per mensem. In regard to the legal validity of the alleged compromise, on a reading of the compromise it cannot be said that the view taken by the court below was manifestly erroneous. One of the terms of the compromise is that the rent of the property in dispute for the period of four years, would be Rs. 150/- per mensem. This agreement would in terms amount to granting a fresh lease, as the tenancy of the tenant had already determined and the suit for ejectment had also been decreed against the said tenant. The argument of the learned counsel for the petitioner-tenant in this case is that this agreement is only postponement of the execution of the release order for the period of four years and no other right is created between the landlady and the tenant. This argument cannot be accepted. Once the landlady as alleged was not accepting the tenant and a fresh rate of rent is alleged to have been agreed upon, then this would clearly amount to a fresh contract between the landlady and the tenant. In view of the above, it cannot be said that the view taken by the lower appellate court is manifestly erroneous in law. 17. IN writ petition no. 16971 of 1984 the quashing of proceedings in two suits have been sought. One is suit no. 329 of 1984 filed by the tenant against the landlady and the other was suit no. 1564 of 1984 filed by one Atul Mehrotra. A certified copy of the decree in suit no. 564 of 1984 has been filed from which it is clear that the suit no. 1564 of 1984 was dismissed in default of the plaintiff with costs on 15th February 1985. IN the circumstances, the question of quashing of this suit does not arise. 18. IN regard to the suit no. 329 of 1984, I am clearly of the opinion that it is nothing but an abuse of the process of the court. From the facts which I have given in detail, it is apparent that the release proceedings were pending since 1970. They became enforceable ultimately after passing of an order of the High Court dated 24th April, 1984 in writ petition No. 10451 of 1982. The petitioner-tenant thereafter set up a compromise dated 28th May, 1984 which was not accepted by the court by order dated 15th September, 1984. They became enforceable ultimately after passing of an order of the High Court dated 24th April, 1984 in writ petition No. 10451 of 1982. The petitioner-tenant thereafter set up a compromise dated 28th May, 1984 which was not accepted by the court by order dated 15th September, 1984. Thereafter on 25th September, 1984 an application was made by the tenant for grant of 15 days time to vacate the premises. The court below granted time to vacate the premises till 8th October, 1984. When the petitioner-tenant applied for time on 25th September, 1984, he had already got the plaint of suit No. 329 of 1984 prepared and verified on 24th September, 1984. Instead of vacating the premises on 8th October, 1984 within the time granted on the own application of the petitioner-tenant, the petitioner-tenant filed the present suit No. 329 of 1984 and the basis of the suit was the alleged compromise dated 28th May, 1984 which had not been accepted by a detailed order dated 15th September 1984. From these facts it is apparent, in my opinion, that the filing of suit No. 329 of 1984 is nothing but an abuse of the process of the court. In Darul Ulum Islamia v. The Civil Judge, Basti, reported in 1986 AWC page 441 I have held that if it is found on the face of the plaint that it is nothing but an abuse of the process of the court or that the suit is not maintainable in law, or even in a case where the relief sought is directly in conflict with the Constitution, it is open to the High Court to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India and quash the proceedings in the suit. The conduct of the tenant in this case is highly deplorable and smacks of cunningness. It is because of these types of proceedings that bad name is brought to the entire judicial system. In the interest of justice, in my opinion, this is a fit case where the proceedings in the suit be quashed in order to avoid further harassment to the landlady who had been made to fight from court to court for all the sixteen years of long drawn litigation. The tenant has been very cleverly getting suit filed in different courts and obtaining ex parte orders to resist the giving up possession. The tenant has been very cleverly getting suit filed in different courts and obtaining ex parte orders to resist the giving up possession. In the interest of justice this contingency has to be protected. 19. IN the result, writ petition no. 16971 of 1984 is allowed. The order dated 13-11-1984 passed by the 1st Additional Civil Judge, Kanpur in suit No. 329 of 1984 is hereby quashed. Proceedings in suit no. 329 of 1984 are also quashed. The petitioner will be entitled to the costs of this petition from respondent nos. 2 and 3. 20. WRIT petition No. 343 of 1985 is dismissed with costs to the respondent No. 2. A further writ of mandamus is issued to the Prescribed Authority to take steps to enforce the release order under section 23 of the U. P. Act XIII of 1972 very expeditiously. The release order be enforced forthwith. If necessary, the Prescribed Authority shall direct that effective police force is provided to the landlady for getting the release order enforced. The Prescribed Authority shall ignore any ex parte stay order produced before it in the process of enforcement, issued by any subordinate court staying the delivery of possession of the property in dispute. If such an order is produced the Prescribed Authority shall report to this court for necessary action after the release order has been enforced.