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Madhya Pradesh High Court · body

1992 DIGILAW 802 (MP)

Pushpabai v. Chandrakant

1992-12-02

A.R.TIWARI, V.D.GYANI

body1992
ORDER A.R. Tiwari, J. -- 1. This judgment shall also govern the disposal of M.P. No. 987/90 (Chandra Kant and another v, Smt. Pushpabai and others) preferred against the part of the same order. The petition M.P. No 1176/89 is filed by the decree-holder whereas the petition M.P. No.987/90 is filed by those, who were not parties to the main suit culminating in eviction decree, but intervened in the execution proceeding in an effort to anaesthetize the judicial command. The executing Court, sitting on the horns of dilemma, over ruled the objection of interveners, but directed enquiry into the alleged compromise as whispered in M.P. No. 955/88 on 31.8.88. This is how the decree-holder (M.P. No.1176/89) and interveners, brothers of Decree-holder (M.P.No.987/90) have come up before us under the protective umbrella of Article 227 of the Constitution of India. Promise of vacation by 30.3.87, c1imaxed.as decree, suffering eclipse and hibernation and proceedings, turning out to be elusory on the linchpin of pretexts and pettigoggery, had the tortured and tortive turn with the insignia of "Eile Mit Weila". 2. Factual matrix is obviously jejune. The facts leading to the present petitions are that the petitioner of M.P. No. 1176/89 in the capacity of owner landlord, filed the suit registered as C.O.S. No. 40-A/86 in the Court of Civil Judge Class II Indore for eviction from non-residential accommodation, bearing House No. 611 (Old No. 422) situate in Khajuri Bazar on M.G. Road, Indore, against her tenant Kailash Chandra (respondent No.4). The tenancy was evidenced by rent receipts and the rent was only Rs. 20/- per month. The ground of eviction was the bona fide need of major son Manoj Kumar for starting business. On 21.10.86, the tenant agreed to vacate by 30.3.87 and suffered a consent decree on 28.10.86. 3. The execution was levied after 30.3.87. Filed with the surge of an urge to build speed-breaker against this, the respondents No.1 to 3 all brothers of the J.Dr. instituted a separate civil suit in the Court of Civil Judge Class II, Indore registered as C.O.S. No. 446-A/87, for declaration of their alleged independent title, impugning decree as collusive and unbinding, and permanent injunction. They also claimed temporary injunction under Order 39, Rule 1, 2 of the Code of Civil Procedure. This application was rejected by the trial Court (Annexure XI) on 12.8.87. The Misc. They also claimed temporary injunction under Order 39, Rule 1, 2 of the Code of Civil Procedure. This application was rejected by the trial Court (Annexure XI) on 12.8.87. The Misc. Appeal No. 49/87 was also dismissed by the IInd Addl. Judge to the Court of District Judge, Indore on 16.8.88. (Annexure XII). It was asserted that the suit was in collusion with the judgment-debtor. These orders were assailed in this Court in M.P. No.955/88. This was later got dismissed on 31.8.88 (Annexure XVI) on statement that matter had been compromised. The nature of compromise was, however, not disclosed and the compromise as such was neither verified or certified. 4. On the date of filing the civil suit No. 446-A/87, respondents No.1 to 3 had also filed an application labelling it as under O.21, R.97 and section 151 CPC in the executing Court on 1.5.87. The respondent No.3, alleged to be mentally infirm, through his next friend Madanlal, filed an application on 8.9.88 in the Execution case. The respondent No.1 submitted an application on 13.9.88 under O.21, R. 2 and section 47 CPC, contending that the decree had stood fully satisfied in terms of the compromise as mentioned in M.P. No. 955/88 and optatively prayed for an enquiry into the factum and terms of compromise (Annexure XVII). This was assailed as untenable (Annexure XVIII). 5. The Executing Court had before it thus, three applications -- one was moved by the respondent No.1 to 3 on 1.5.87. The other one was submitted by the respondent No.3 Nemichand on 8.9.88 and the third one was filed by the respondent No.1 Chandrakant on 13.8.88. The Executing Court rejected the first two applications, but directed that enquiry shall be made and evidence shall be recorded as regards the third one by a common order dated 27.10.88 (Annexure XIX). The petitioner challenged this part of the order in Civil Revision No. 8/89 before IVth Addl. Judge to the Court of District Judge, Indore. This revisions however, filed on 21.7.89 (Annexure XX). The other connected revisions arising out of the aforesaid common order were registered as C.R. No.15/89 (filed by the respondent No.1) and C.R. No. 1/89 (filed by the respondent No.3). 6. Judge to the Court of District Judge, Indore. This revisions however, filed on 21.7.89 (Annexure XX). The other connected revisions arising out of the aforesaid common order were registered as C.R. No.15/89 (filed by the respondent No.1) and C.R. No. 1/89 (filed by the respondent No.3). 6. The decree-holder being aggrieved by the order (Annexure XIX and XX) permitting enquiry with regard to the alleged compromise, came up before us seeking writ of certiorari for quashment of these orders on the grounds, prodigious in number, stated in his petition. Chandrakant and Nemichand aggrieved by adverse orders passed in C.R.No. 15/89 and 1/89, noted above, have filed M.P. No.987/90 and prayed for reversal of orders directing enquiry into their alleged independent rights as tenants. The respondents No.1 and 3 of M.P. No. 1176/89 have filed the joint return to the petition. The gist of the opposition is that the respondent No.4 was not in possession and fraudulent and collusive decree was obtained. The original tenant was Sagarmal, the father of the respondents No.1 to 4. The respondents No.1 to 3 occupied the premises as L.Rs. tenants in their own right. The respondent No.4 had been won over by the petitioner on payment of substantial amount to him and was thus, lulled into compromise. The orders are not amenable to interference under Article 227 of the Constitution of India. This is now grounds have been controverted and tenability has been assailed. 7. The short question falling for our consideration is whether these petitions deserve to be allowed? 8. We have heard learned counsel for the parties and have perused the record. 9. Before going into' finer aspects, it is apt to observe that the object behind Article 227 is to ensure that the Courts below operate within the limits of their authority as conferred by the law and do not transgress the same. This Court is expected to exercise proper control in order that sense of confidence is not shaken or shattered. Burger, C.J. of the American Supreme Court, once very fittingly observed that-- "A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it." 10. Burger, C.J. of the American Supreme Court, once very fittingly observed that-- "A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it." 10. Here is a frustrated decree-holder inviting us to "control" the "action" of the subordinate Courts in order that "sense of confidence" resting on the honouring of the decree passed by the Court, is maintained. Law is thus, demanded to be in action. IN Jannisim v. Backer (1992 (1) All ER 997), it is stated- "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope." 11. Aware of our obligation, we proceed to examine the merits of the matter. The respondent No.4 (Judgment-debtor) does not open his month. His brothers, respondents No. 1 to 3, intrepidly embark to incinerate the decree through proceedings which are liable to be dubbed as insalubrious ones. Should the law stay petrified in the face of such moves? Should the law be seen to sit by limply? 12. Shri Mahajan, learned counsel for the respondents No. 1 to 3 has supported the impugned orders on the ground that the petitioner herself has admitted the existence of a compromise as noted in para 8 of the petition and as such, the Executing Court was fully justified in directing an inquiry into this matter. We have carefully read the averments in para 8 of the petition and find that the understanding between the parties was entirely different from what is being asserted by the respondents. In view of this as also in view of the fact that there is no written compromise signed by the parties as required under the law, this sort of averment is of no consequence and does not clothe the Executing Court with the power of directing any inquiry in respect of the compromise as was alleged. The fact remains that any inquiry at the instance of a third party is forbidden in law. This contention as also the other contentions, therefore, do not hold water and are simply liable to be rejected. 13. The fact remains that any inquiry at the instance of a third party is forbidden in law. This contention as also the other contentions, therefore, do not hold water and are simply liable to be rejected. 13. The Executing Court, unmindful of even Full Bench Decision reported in Rajeev khandelwal v. Arun Pannalal ( 1988 JLJ 416 = AIR 1987 MP 262 ) postponed the execution and directed enquiry and production of evidence Exvoto on the question of compromise as short noted, in M.P.No. 955/88 despite the uncontroverted fact that it was neither particularised nor got recorded nor was provable by documentary evidence, in terms of O.21, R. 2A of the CPC within the period of limitation and as such, was unrecognizable. This being so, the question that started in the face was as to how the Executing Court had the jurisdiction to direct enquiry intended to recognize an unrecognizable matter? Obviously, it had none. The revisional Court too, unmindful of the object behind section 115 of the CPC fell into the same error and erred in not rectifying the apparent jurisdictional error. 14. There is yet another dimension which vitiates the orders. M.P. No. 955/88 pertained to orders passed in Civil Suit and Misc. Appeal No. 49/87. Now if the matter covered by this suit was really compromised as urged, then it would fall within the purview of O. 23, R. 3 CPC. And there also it would be futile and inutile unless alleged compromise was reduced into writing and signed by the parties. It is not understood then how any matter of the nature of O. 23, Rule 3 CPC was entertained by the Executing Court under O.21, Rule 2 CPC. This is then additional ground indicating debility and infeundity of the proceeding. 15. The oppugnation in the return, on scrupulous scrutiny, is found to be devoid of merit. It cannot be gainsaid that the Executing Court possessed no right to go behind the decree and to enquire into the compromise falling foul of O.21, R.2 or O. 23, R.3 of the Code of Civil Procedure. The respondents were unable to satisfy us as to how the Executing Court acquired any jurisdiction to enquire into the – a) objection of the third party in the face of the Full Bench judgment cited above? The respondents were unable to satisfy us as to how the Executing Court acquired any jurisdiction to enquire into the – a) objection of the third party in the face of the Full Bench judgment cited above? b) Oral compromise, whispered in the proceedings of M.P. No. 955/88 contrary to O.21, R.2 of the Code of Civil Procedure on an application moved under O. 21, R.97 of the Code? c) Matter pertaining to Civil Suit No. 446-A/87 pending in a other Court, in flagrant violation of Order 23 Rule 3 CPC, more so when the Courts decided against inst the existence of a prima facie imprimis.? d) Statement noted in M.P.No.955/88 on 31.8.88 in the face of the fact that the parties allowed it to remain esoteric and unclear without the direction of the Superior Court for such an enquiry and certification. 16. Obviously, the Executing Court opted to exercise the jurisdiction which was not vested in it by law. This Court is, thus, obligated to interfere so as to prevent 'derailment' of the procedure and 'miscarriage of justice.' 17. We must, therefore, enubilate and permit the case weird that it is destined to. The respondents have, however, contested the tenability as well. We therefore, own an answer to this. True, we must not interfere to correct errors of facts or even law in proceedings under Articles 227 of the Constitution of India as laid down in Mohammad Yunus v. Mohd. Mustaquim and others ( AIR 1984 SC 38 ). It was, however, overlooked that in the case on hand, we are not called upon to correct errors but to demolish the order, ultra vires of the power and promotive of the abuse of the process of the Court. The Division Bench of this Court in Smt. Chutkbai v. Madanlal (1989 MPRCJ 229), after surveying the case law, succinctly held that- "The powers of this Court under Article 227 of the Constitution of India are not so rigid that this Court, though satisfied that a grave injustice has been caused to the petitioners; ...... Yet this Court would refuse to exercise the powers under Article 227 of the Constitution of India. (See. : State of U.P., v. District Judge Unnao AIR 1984 SC 1401 ). 18. We are satisfied that grave injustice is caused to the petitioner and orders impugned herein, if allowed to stand, occasion a failure of justice. Yet this Court would refuse to exercise the powers under Article 227 of the Constitution of India. (See. : State of U.P., v. District Judge Unnao AIR 1984 SC 1401 ). 18. We are satisfied that grave injustice is caused to the petitioner and orders impugned herein, if allowed to stand, occasion a failure of justice. This Court has thus, not only right, but also duty under Supervisory Jurisdiction conferred by Article 227 of the Constitution of India to interfere and incinerate orders dated 27.10.88 marked as Annexure XIX, passed by the Executing Court (respondent No.6) and dated 21.7,89. marked as Annexure XX, renered by the Revisional Court (respondent No.5). In the result M.P. No.1176/89 deserves to be allowed. 19. We must now turn to M.P.No.987/90. It is seen that this petition was filed on 30.7.90. Scrutinsed above. There is no satisfactory explanation as to why this was filed subsequent to the order of admission of Decree-holder's petition on 11.9.89 after about one year of the order dated 21.7.89 under attack. This delay may, however, X-ray the design and explains the riddle. Did the petitioners themselves realise the infecundity of such a proceeding? The proceedings on 15.2.91 contained the statement that the earlier petition M.P. No.1176/89 was admitted. It was thus, ordered that this petition be listed along with earlier petition. On 28.9.92, after about 19 months, it was directed that this be listed for final hearing along with earlier petition. In other words, this was linked, without formal order on admission, with M.P.No. 1176/89. This is how this was also heard finally. 20. It is noticed that this petition rested on the fulcrum of the position as L.Rs. of the alleged original tenant, Sagarmal, being sons and consequent contention that the petitioners acquired independent rights as tenants. The amendment to the return in M.P.No. 1176/89 was sought urging that documents showed the initial tenancy with Sagarmal. It was argued that the decree obtained on collusion and fraud against only one of the L.Rs. was not binding on the petitioners and as such, the Executing Court was bound to examine this aspect and hold the decree as unenforceable. It was thus, submitted that it was not proper to keep such a decree alive. Shri Kutumbale, learned counsel for the petitioners heavily relied upon the decision in Mst. Suravya Begum v. Mohd. was not binding on the petitioners and as such, the Executing Court was bound to examine this aspect and hold the decree as unenforceable. It was thus, submitted that it was not proper to keep such a decree alive. Shri Kutumbale, learned counsel for the petitioners heavily relied upon the decision in Mst. Suravya Begum v. Mohd. Usman and others [J .T. 1991 (2) SC 435] as also upon earlier decision of Textile Association (India) Bombay Unit v. Bal Mohan Kurup and another [1990) 4 SCC 700] = AIR 1990 SC 2053 , considered in the aforesaid case, and urged that the enquiry into the alleged right as L.Rs. going to the root of the matter, was inevitable and as such, the part of the order, as affirmed in C.R. No. 1/89 and 15/89, impugned here in was clearly subvertible. 21. Shri S.D. Sanghi, learned Senior Counsel with Shri N.K. Sanghi, vehemently oppugned the contentions, dubbing them as non-meritorious and urged that the aforesaid decision did not apply due to dissimilarity of facts. 22; Shri Kutumbale's submission looked attractive on the first flush; but lacked merit on deeper probe in that the eviction unit did not pertain to any original tenant or his L.Rs. as such. The following facts thus, lapidated the contention rendered it thwartingly teemless. 23. Amidst the welter of agitated controversy we thought it appropriate to scrutinise the contention only tersely lest it might prejudice the fair trial of the pending civil suit. The documents placed on record by I.A.No. 5531/92 on 23.11.92 luculently evidenced that the eviction suit was not founded on the basis of any tenancy with the deceased Sagarmal. On the other hand, it Was instituted against the Judgement-debtor labelling him as the sole tenant to the exclusion of the petitioners and respondent No.3, another brother, under Section 12(1) of the M.P. Accommodation Control Act, 1961 suit lies against the tenant. The rent receipts from 1.10.72 to 30.10.84 placed on record, enveloping the period of about 12 years, ex-facie dislodged here the contention of the petitioners that they continued to pay the rent (para 2) of the petition. The question of their documents filed in this Court, showing Sagarmal as the original tenant Was foreign to the scope of that eviction suit and lis between the decree-holder and the judgment debtor as such. The question of their documents filed in this Court, showing Sagarmal as the original tenant Was foreign to the scope of that eviction suit and lis between the decree-holder and the judgment debtor as such. What is relevant here was thus the nature of the earlier eviction suit and its support from the aforesaid rent-receipts of later period as also the vital admission of such a status by the judgment- debtor. In our view, this material then cogently clinched the issue here. This logically led to the following significant positions a) The decree - holder was described as an owner and the judgment debtor was shown as the tenant who signed the receipts in acknowledgement of this status. There was, thus, no scope for tenebrosity. b) The rent was paid by the judgment-debtor to Decree-holder as a tenant and not as L.R. or one of the tenants. c) The receipts covered a sufficiently long period of about 12 years. d) The eviction suit was filed against the judgment debtor on the basis of independent tenancy and the decree followed on the basis of this status. e) The petitioners did not pay the rent at any given point of time. In Dilbagrai punjab v. Sharad Chandra ( AIR 1988 SC 1858 = 1988 JLJ 507) it is held as under :- " The plaintiff also produced counterfoil receipts signed by the tenant appellant in which the plaintiff was described as "The owner of property". It was not a case of an isolated single receipt quite a number of such documents were produced in the trial Court. The High Court was right in pointing out that the Courts below had seriously erred in not considering the entire evidence on the record including the aforesaid documents." xxx xxx xxx The stand taken by the petitioners was thus inconsistent with the status asserted, evidenced, admitted and decreed and stood effectively dislodged. 24. We find that the aforesaid decision in both the cases referred to above, turned on their own peculiar facts. In both the cases, it was admitted that (a) there was original tenant who had died (b) the suit was laid against the L.Rs. (c) all L.Rs. were not inpleaded as alleged. The question that arose in those cases was whether the one objecting to the execution of the decree was one of the L.Rs. on whom the decree was not binding. (c) all L.Rs. were not inpleaded as alleged. The question that arose in those cases was whether the one objecting to the execution of the decree was one of the L.Rs. on whom the decree was not binding. This is how the question of enquiry had cropped up in one of the cases. It was thus, clear that those were not the cases relating to independent tenancy to the exclusion of all others. These decisions, thus are not attracted here in view of the different "nature" of the claim. Hence, there was no question of any enquiry by the Executing Court. 25. Obviously there is sharp conflict as regards material issue as to whether Sagarmal was the tenant initially and all others (judgment-debtor, petitioners and respondent No.3) became tenants on his death as alleged or whether respondent No.2 (Judgment- debtor) alone was the tenant in reality as shown in the plaint and evidenced by several rent receipts. The objection, in view of the nature of eviction suit, is not recognizable by the Executing Court. 26. It may additionally be noticed that the aforesaid judgment, pressed into service by the petitioners itself contained the following significant observations, indicating that the enquiry was not a must in all cases :- "There may be instances in which the position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty." As noticed above, the position here was absolutely clear beyond all reilsonable doubts in the face of rent receipts and presented no difficulty. The question of enquiry by the Executing Court thus, did not arise at all. 27. So viewed, we find that there is no jurisdictional error here as was the case in M.P.No.1176/89. It is settled law that even errors of facts or law, if any, are not liable to be corrected in exercise of supervisory jurisdiction conferred by Article 227 of the Constitution of India. In Mohd. Yunus v. Mohd. Muslagim and others ( AIR 1984 SC 38 ), it is held that :- "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227. In Mohd. Yunus v. Mohd. Muslagim and others ( AIR 1984 SC 38 ), it is held that :- "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227. The supervisory jurisdiction conferred on the High Courts under Art. 227 of the Constitution is limited" to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior Court or tribunal purports to be based or to correct errors of law in the decision. xxx xxx xxx 28. In the ultimate analysis, it emerges that the order, impugned here, is within the jurisdictional periphery. It is supportable on plaint allegations. The additional consideration about joint-tenancy was irrelevant and superfluous. The order is, however, not deciduous eventually. 29. We may, however, clarify that the Civil Court as observed in para 23 shall fell free to adjudicate the issues without being in any way influenced or tied down by this judgment. 30. Law is means, justice an end. The rigid character of civil litigation, conceived as a contest between two individual parties, promoting their personal interests, should not be seen to charter a course churning the impression that law was not even on talking terms with justice. Speedy and correct justice must, therefore, be the ultimate goal. We have, thus, lifted the lambrequin and reached the epode. 31. In the circumstances, we direct as under :- a)The petition M.P. No. 1176/89, filed by the decree-holder, is allowed with costs. Consequently, the impugned orders, marked as Annexures XIX and XX are quashed. However, in view of the paucity of accommodation the judgment debtor is, granted one month's time from today to vacate the premises and in default the executing Court shall execute and enforce the decree promptly thereafter without further procrastination in the matter. b) The Petition M.P.No.987/90 is dismissed with costs. The order impugned here is maintained as noted above. However, in view of the paucity of accommodation the judgment debtor is, granted one month's time from today to vacate the premises and in default the executing Court shall execute and enforce the decree promptly thereafter without further procrastination in the matter. b) The Petition M.P.No.987/90 is dismissed with costs. The order impugned here is maintained as noted above. c) The respondents No.1 and 3 in M.P. No.1176/89, who are petitioners in M. P. No. 987/90 are ordered to pay to the petitioner in M.P. No. 1176/89, who is respondent No.1 in M.P. No.987/90, the decree-holder, the costs in both these petitions quantified at Rs. 2,000/-. 32. Let a copy of this judgment be placed in the records of M.P. No. 987/90. Surity costs in M.P. No. 1176/89 shall be refunded to its petitioner after due verification.