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2009 DIGILAW 2764 (ALL)

L. CEISTON v. THAKUR MADAN MOHAN JI MAHARAJ TRUST

2009-08-04

POONAM SRIVASTAVA

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JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri Prakash Gupta and Sri Ashish Gupta, learned counsels for the petitioners and Smt. Anita Tripathi Advocate for the contesting respondents. 2. The challenge in the instant writ petition are judgment and order of the Judge Small Causes Court, Agra dated 17.11.2007 and the revisional Court dated 21.7.2009. The next prayer is for a direction in the nature of mandamus to the Courts below to treat the compromise dated 30.8.2007 entered between Smt. Kalpana Nagar and petitioners as valid and satisfying the execution proceedings. 3. The basis of the dispute is that S.C.C. Suit No. 343 of 1979 was instituted by Late Sri R.P. Nagar on behalf of Shri Thakur Madan Mohan Ji Maharaj Trust Gokulpura, Agra (hereinafter referred as the Trust) for ejectment and arrears of rent. The suit was decreed by the Judge Small Causes Court and thereafter S.C.C. Revision No. 41 of 1985 was preferred. The revision was also dismissed. Subsequent thereto, the petitioners filed Writ Petition No. 23654 of 1991. During pendency of the writ petition, the original plaintiff Sri R.P. Nagar died and Smt. Kalpana Nagar was impleaded as a party. She has been arrayed as respondent No. 2 in that writ petition as trustee. One Sri Jagdish Prasad Sharma filed an impleadment application as Secretary of the Trust in the aforesaid writ petition. 4. It is submitted by learned counsel for the petitioners that this Court left the question of impleadment of Sri Jagdish Prasad Sharma to be considered at the time of final hearing of the writ petition. However, the writ petition was dismissed on 23.3.2007. The judgment dated 23.3.2007 is Annexure-3 to the writ petition. While dismissing the writ petition, this Court directed that the premises in dispute shall be vacated within a period of 30 days from the date of judgment and in the event of failing to handover vacant possession, damages for the use and occupation of the accommodation in question was fixed at the rate of Rs. 8,000/- per month till the date of actual vacation of the premises in question. Execution Case No. 196 of 1996 in O.S. No. 343 of 1979 was instituted. An objection along with preliminary objection 8-Ga as well as an affidavit 9-Ga under Section 47, C.P.C. was filed to which counter and rejoinder affidavits were exchanged. 8,000/- per month till the date of actual vacation of the premises in question. Execution Case No. 196 of 1996 in O.S. No. 343 of 1979 was instituted. An objection along with preliminary objection 8-Ga as well as an affidavit 9-Ga under Section 47, C.P.C. was filed to which counter and rejoinder affidavits were exchanged. The objection was rejected by the Executing Court and a specific direction was given for compliance of the High Court’s order in Writ Petition No. 23654 of 1991 vide order dated 17.11.2007. This order stood confirmed in S.C.C. Revision No. 72 of 2007 and the interim order was vacated. 5. Learned counsel for the petitioners has tried to impress upon the Court that during pendency of the earlier writ petition, Late Sri R.P. Nagar had instituted a suit in a representative capacity and thereafter substitution application of Smt. Kalpana Nagar was allowed and she was permitted to contest the matter. Smt. Kalpana was substituted as respondent No. 3/1. It is submitted by learned counsel for the petitioners that the question of Sri Jagdish Prasad Sharma was not decided and he could not institute the execution case and the Courts below have erred in law while rejecting his objection under Section 47, C.P.C. It is further contended that the question of impleadment of Sri Jagdish Prasad Sharma was not decided by this Court in its judgment dated 23.3.2007. 6. Smt. Anita Tripathi has contested the matter and has emphatically stated that the petitioners have all along deliberately tried to create unnecessary confusion in the matter. 7. The Court clearly held that this Court by means of an order dated 5.1.2006 had allowed the impleadment application filed on behalf of Sri Jagdish Prasad Sharma and contention of the petitioners that the suit was not instituted on behalf of the trustees though left open to be decided at the time of final hearing of the writ petition. As claimed by Late Sri R.P. Nagar who was the President of the Trust that he has been authorized by all the trustees of the Trust and instituted the suit for eviction and realization of rent since the tenants were defaulter, this cannot be challenged by the petitioners since Sri R.P. Nagar was duly authorized by the trustees to institute the suit and contest the same. It is admitted case of the petitioners that they have not paid any rent since 1972 as well as the demand notice terminating the tenancy was served on 29.8.1974 and, therefore, the decree was passed against the tenant. It was further held that frivolous objection all along was raised by the tenant only with a view to somehow create confusion. Learned counsel has also tried to impress upon the Court that there was a compromise entered into between Smt. Kalpana Nagar and the tenant and, therefore, on the basis of the said compromise, the decree cannot be executed. The Courts below have recorded a conclusive finding that the Trust is a juristic person and present application was filed by the competent person instituted on behalf of the Trust. The objection raised at this stage regarding impleadment of Sri Jagdish Prasad Sharma or for that matter anyone else is only to create unnecessary confusion. The claim of the petitioners that the so called compromise or settlement between Smt. Kalpana Nagar and the petitioners is valid and was also acted upon creating a new tenancy in favour of the petitioners is frivolous argument only with a view to stall the proceeding and evade execution. 8. Smt. Anita Tripathi has placed two judgments impugned in the instant writ petition that so called compromise cannot be looked into; firstly because Smt. Kalpana Nagar who was substituted as daughter of the President Sri R.P. Nagar of the Trust after his death and after final decision in the said writ petition she had no right or authority to enter into any compromise with the tenant as well as the fact that on the basis of alleged compromise the judgment and order of this Court cannot be declared as null and void. The said compromise was brought on record as 82-Ga. The Judge Small Causes Court categorically recorded a finding that Smt. Kalpana Nagar is not a trustee of the property. She was impleaded only as daughter of the respondent in the previous writ petition and, therefore, she had no legal right to enter into any compromise whatsoever. Besides, after the judgment of this Court, it is evident that the alleged compromise is a brain wave and after though somehow by the tenant judgment-debtor to evade the execution proceedings. 9. I have given a careful consideration to the respective arguments of the learned counsels for the parties. Besides, after the judgment of this Court, it is evident that the alleged compromise is a brain wave and after though somehow by the tenant judgment-debtor to evade the execution proceedings. 9. I have given a careful consideration to the respective arguments of the learned counsels for the parties. Assuming the contention of the learned counsel for the petitioners that Smt. Kalpana Nagar is a trustee and related with the Trust after death of her father, the petitioners are not entitled to act as representative and authorized to enter into any compromise. In the case of Roshan Lal Kunja Mal and others v. Kapur Chand and others, AIR 1960 Punj 382 (V 47 C 136), a Division Bench was of the view that assuming that the Court has admitted the appeal to be continued by a person on whom an interest of the original appellant is devolved, he can only be treated as legal representative within the meaning of Order 22 Rule 3, C.P.C. and not bestow any right on such a person for entering into any agreement during execution proceeding to nullify a decree, specially in the instant case when this High Court has put its seal and the same has become final. 10. The questions raised by the learned counsel for the petitioners is without any force. The emphasis that impleadment application of Sri Jagdish Prasad Sharma was kept pending is also not correct as the order dated 5.1.2006 passed in Writ Petition No. 23654 of 1991 clearly shows that while allowing the substitution application under Chapter XII Rule 4 of the Rules of the Court which is akin to Order 22 Rules 3 and 4, C.P.C. Smt. Kalpana Nagar and Sri Jagdish Prasad Sharma were impleaded as respondent Nos. 3 and 3/2 while condoning the delay in filing the substitution application, as well as impleadment application filed on behalf of Sri Jagdish Prasad Sharma dated 31.1.2001 was also allowed and it was directed that he be impleaded as respondent No. 3/2. In view of all these factors, the arguments of the learned counsel for the petitioners is devoid of any substance. There is no merit in the writ petition. It is obviously filed to delay the execution proceedings. The judgment of this Court to handover vacant possession within 30 days was passed on 23.3.2007. In view of all these factors, the arguments of the learned counsel for the petitioners is devoid of any substance. There is no merit in the writ petition. It is obviously filed to delay the execution proceedings. The judgment of this Court to handover vacant possession within 30 days was passed on 23.3.2007. Almost 2-1/2 years have lapsed but the decree holder is still groping to get the decree satisfied. In fact the petitioners are liable for special cost for trying to mislead the Court and also filing frivolous objections. The writ petition is accordingly dismissed with cost of Rs. 15,000/-. The petitioners are directed to handover vacant possession forthwith and also deposit Rs. 15,000/- with the Executing Court along with decreetaI amount failing which the same shall be realized as arrears of land revenue. ————