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2000 DIGILAW 721 (MP)

Laxman Prasad Umraiya v. Balwant Singh Yadav

2000-07-27

S.P.SRIVASTAVA

body2000
ORDER 1. Heard the learned counsel for the judgment-debtor/applicant as well as the learned counsel representing the decree-holder/respondent and carefully perused the record. 2. Feeling aggrieved by the order passed by the executing Court rejecting his objections tiled under Section 47 of the Civil Procedure Code, the judgment-debtor/tenant, the present applicant, challenging the executability of the decree for his eviction from the premises in dispute, he has now approached this Court seeking redress praying for the setting aside of the aforesaid order and for declaring the decree passed by the civil Court to be a nullity and inexecutable and further praying for rejecting the application for execution of the decree. 3. The facts in brief shorn of details and necessary for the disposal of this revision lie in a narrow compass: The decree passed in the suit giving rise to the execution in question had been tiled on the ground of default envisaged under Section 12(1)(a), nuisance envisaged under Section 12(1)(c) and personal need envisaged under Section 12(1)(1) of the M.P. Accommodation Control Act. During the pendency of the suit, the tenant, the present applicant, moved an. application on 28.1.1985 bringing to the notice of the Court that the dispute had been settled between the parties. It was admitted by the tenant that Vinod Kumar and Ganga Prasad. the transferees pendente lite, were the owners of the premises in dispute. The present applicant in an unequivocal terms made a clear statement in his application that he did not want to continue as tenant in the premises in dispute and will hand over the possession of the same to the plaintiffs on or before 31.7.1985. In case the possession was not handed over to the plaintiffs by 31.7.1985, it will be open to the plaintiffs No.1 and 2 to get the decree executed and recover possession thereof. On the aforesaid application, the plaintiff made an endorsement that he was agreeable to the same. The aforesaid compromise was duly verified by the Court and a decree was passed in terms thereof. The tenant-Judgment-debtor sought to, challenge the aforesaid compromise on various grounds but failed in his efforts and the compromise entered into between the parties was found to be valid and in accordance with the law being not vitiated in any manner. 4. The aforesaid compromise was duly verified by the Court and a decree was passed in terms thereof. The tenant-Judgment-debtor sought to, challenge the aforesaid compromise on various grounds but failed in his efforts and the compromise entered into between the parties was found to be valid and in accordance with the law being not vitiated in any manner. 4. The civil suit came up to this Court in the shape of a second appeal being Second Appeal No. 200 of 1991 which was decided on 12.7.1995. Before this Court, Three questions had been raised by the judgment-debtor. The first question was as to whether the appeal before the first appellate Court was maintainable ? The second question was as to whether the decree of the trial Court could at all be called a decree based on compromise? and the this question was as to whether the decree of the trial Court was a nullity as having been passed in defiance of the provisions of Section 12 of the M.P. Accomodation Control Act ? This Court answered all the three questions in favour of the decree-holder/landlord. This Court expressed the view that the defendant -tenant/appellant had utterly failed to prove in spite of opportunity having been afforded that the decree passed on the basis of the compromise was liable to be set aside and upheld the decree of the Court below dated 25.3.1985. This Court further was of the opinion that in fact the tenant-Judgment-debtor had shown an unequivocal intention to surrender the tenancy and had undertook to handover the possession latest by 31.7.1985. From the facts established on record, this Court had come to the conclusion that it could not he said that the defendant had not admitted the grounds alleged by the plaintiff. It was also observed that once the tenant surrenders his tenancy, the plaintiff cannot be forced to establish the grounds of eviction. This Court also found that since the decree passed by the trial Court was a consent decree. the first appeal itself was not maintainable and the decree of the trial Court stood as it was. Allowing the second appeal in part, the judgment and decree passed by the first appellate Court was modified and the decree of the trial Court for eviction was restored. 5. the first appeal itself was not maintainable and the decree of the trial Court stood as it was. Allowing the second appeal in part, the judgment and decree passed by the first appellate Court was modified and the decree of the trial Court for eviction was restored. 5. The tenant/judgment -debtor thereafter challenged the said decree passed by this Court in the second appeal by means of a Special Leave Petition to Appeal before the Hon'ble Supreme Court. 6. The Hon'ble Apex Court while issuing notices on the application granted an ex parte stay requiring the parties to maintain the status-quo as on 30th day of September, 1996 Ultimately, after hearing the parties, the Apex Court dismissed the petition for Special Leave to Appeal No. 13090/96 vide its judgment and order dated 30.9.1996 made on the interlocutory application "be and is hereby vacated", The order passed by the Apex Court further contained a direction that the said order be punctually observed and carried into execution by all concerned. 7. The learned counsel for the appellant has strenuously urged that the decree passed by the Courts below which had merged in the decree passed by this Court in Second Appeal was not executable. The contention in this regard is that under the provisions of the M.P. Accommodation Control Act. 1961. the bar imposed against the filing of the suit seeking a decree for the eviction of a tenant stands lifted only upon the plaintiff's establishing any of the grounds stipulated in Section 12(1)(a) to (p) of the said Act and that bar continued to exist in the facts and circumstances of the present case. 8. In the present case, it is urged that the grounds on which the bar was claimed to have been lifted envisaged were as contemplated under Sections 12(1)(a), 12(1)(c) and 12(1)(1) of the Act. In the absence of any finding of the trial Court or the first appellate Court specifically upholding the claim of the plaintiffs in regard to the aforesaid grounds. it is claimed that the bar against filing of the suit could not be deemed to have been lifted with the result that the decree in question was clearly a nullity and inexecutable in law. 9. The learned counsel for the plaintiff/decree-holder. it is claimed that the bar against filing of the suit could not be deemed to have been lifted with the result that the decree in question was clearly a nullity and inexecutable in law. 9. The learned counsel for the plaintiff/decree-holder. however, on the other hand has urged that the question in regard to the executability of the decree had been specifically urged and pressed by the tenant/judgment-debtor before this Court in the second appeal and the finding returned by this Court on the aforesaid question was against the tenant. The contention is that this Court has already considered the question now sought to be raised by the judgment debtor and it is not permissible to reopen the said question all over again. specially when the decree passed by this Court has to be taken to have been affirmed even by the Hon 'ble Supreme Court. which after hearing both the parties had declined even to admit the Special Leave Petition filed by the tenant seeking to challenge the decree passed in second appeal and further no interference was possible in view of the direction issued by the Apex Court in its order dated 30.9.1997, to which a reference has already been made hereinabove. . 10. In its decision in the case of Gopal Bandhu Biswal v. Krishna Chandra Mohanty and others. reported in 1998 (4) SCC 447 , decided on 21.4.1998 after taking notice of the various earlier decisions. the Hon'ble Supreme Court had clearly indicated that the rejection/dismissal of the Special Leave Petition in effect amounted to declining to entertain an appeal. thus making the judgment and order appealed against final and binding. The Apex Court in its decision in the case of Union of India and another v. A Sanyasi Rao and others, reported in (1996) 3 SCC 465 had also made it clear that once the Court was aware that the Special Leave Petition against an order passed by it had already been dismissed by the Supreme Court, it had no power or jurisdiction to review its previous order which was the subject matter of challenge in Special Leave Petition which stands confirmed and merged with the order passed by the Apex Court with the dismissal of the Special Leave Petition though in limine. 11. The order disposing of the second appeal was an order passed by this Court. By means of the present revision. 11. The order disposing of the second appeal was an order passed by this Court. By means of the present revision. the judgment-debtor has again approached this Court and the relief claimed in essence amounts to reversing the finding of this Court recorded by it while disposing of the second appeal. the judgment and decree wherein stands affirmed by the Hon'ble Apex Court. 12. It may be noticed that there may be several reasons for declining to interfere in the proceedings under section 136 of the Constitution and rejecting or dismissing a Special Leave Petition, hut when the Hon'ble Supreme Court calls upon the respondents in the Special Leave Petition to show cause why leave to file appeal be not granted and after hearing the parties dismisses the Special Leave Petition. in that event, it can be safely presumed that the Apex Court had not found any justifiable ground to interfere in the findings returned by the High Court. In such a case. where the Special Leave Petition is dismissed after hearing both the parties, though in limine by a non-speaking order it can be safely assumed that the reasonings contained in the order passed by the High Court, which was the subject matter of the Special Leave Petition, had been affirmed. 13. There is yet another aspect of the matter. 14. In its decision in the case of Shankar Ram Chandra Abhyankar v. Krishnaji Dattatraya Bapal. reported in AIR 1970 SC 1 , the Apex Court had observed as follows: "'The right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense." In the aforesaid view of the matter, it is apparent that once the High Court while exercising its jurisdiction in a particular forum had declined to interfere. the same High Court while acting in a different forum could not take a decision contrary to the one as taken by it earlier on the same subject matter. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions. 15. The decision in the second appeal is a decision of this Court. The question which is sought to be raised by the tenant judgment-debtor is the same which had been specifically raised before this Court in the second appeal and negatived. It will be against judicial propriety and discipline to dwell upon or upset in any manner the findings recorded by this Court itself earlier on the same question in a different forum at the instance of the same judgment-debtor. This will amount to reviewing the earlier order for which there can be absolutely no justification either on facts or in law. 6. There may be one more aspect of the matter which cannot be lost sight of. 17. The basic contention of the learned counsel for the tenant-judgment-debtor has been that the civil Court had not recorded any finding in respect of any of the grounds on the establishment of which alone the bar against the filing of the suit could be taken to have been lined as contemplated under section 12 of the M.P. Accommodation Control Act. In this connection, on the filing of the compromise and giving the undel1aking the trial Court had to proceed on the basis that there was absolutely no defence put in to the claim of the plaintiff. The plaintiff had claimed a decree on the basis of default also. In the absence of any defence. In this connection, on the filing of the compromise and giving the undel1aking the trial Court had to proceed on the basis that there was absolutely no defence put in to the claim of the plaintiff. The plaintiff had claimed a decree on the basis of default also. In the absence of any defence. the plea in regard to the availability of the ground envisaged under section 12(1) of the M.P. Accommodation Control Act had to be taken to have been made out as the defendant-tenant himself had undertaken to vacate the premises within a stipulated period. The decree passed by the civil Court could not be taken to be' without jurisdiction. Moreover, it is not for the executing Court to go behind the decree. It has to execute the decree as it is subject to the exception that in case there is an inherent lack of jurisdiction. this aspect of the matter can he gone into even in execution proceedings. 18. In the present case, taking into consideration the facts and circumstances as brought on record, I am clearly of the opinion that there was no inherent lack of jurisdiction and it was not open to the executing Court to go behind the finding returned by this Court while disposing of the second appeal. which finding had to be taken as having been upheld even by the Hon'ble Apex Court in view of its directions to which a reference has already been made hereinabove. 19. It may further be noticed that in its decision in the case of Somdutt v. Govindram, Civil Appeal No. 167 of 2000, decided on 10.1.2000, (Reported in 2000 (II) MPWN 23) the Apex Court had an occasion to consider the question of the executability of the decree passed by the civil Court in the matter between landlord and tenant which decree was based on a compromise recorded between the parties in the appeal. Taking into consideration the ratio of the aforesaid decision it is apparent that apart from anything else, the judgment debtor stood clearly estopped from filing any application objecting to the execution of the decree and had to abide by the terms and conditions of the compromise which stipulated vacation of the premises in dispute by a fixed date on the failure whereof the landlord was to he at liberty to take out execution proceedings for recovery of possession. In the present case also the Judgment debtor stands estopped from filing any application objecting to the execution of the decree and on this ground alone he deserves to he non-suited. 20. In any view of the matter, considering the circumstances. I am not at all satisfied that sufficient ground has been made out justifying any interference in the impugned order by this Court while exercising the revisory jurisdiction envisaged under Section 115 of the Civil Procedure Code. 21. This revision fails and is accordingly dismissed. 22. The plaintiff-decree holder shall be entitled to his costs.