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Madhya Pradesh High Court · body

2012 DIGILAW 192 (MP)

Salma Begam v. Jumman Khan

2012-02-12

SUJOY PAUL

body2012
ORDER 1. This petition filed under Article 227 of the Constitution of India is directed against the order dated 18.7.2011 passed by the Court below. The petitioners, who are judgment debtors are aggrieved by order dated 18.7.2011. 2. The judgment and decree was passed in favour of respondents/ plaintiffs in Case No. 102-A/94 dated 18.7.2011 by the Civil Court. An appeal under section 96 of CPC was preferred by Jameel Khan which was registered as Appeal No. 57-A/05. The appellate Court by its judgment dated 1.7.2005 partially allowed the appeal and rejected the judgment of trial Court with regard to easementary right between all the plaintiffs but declared that the plaintiff has a right to use the way at the north of his house towards Mahatma Gandhi Road as per map and from the room mentioned in the said map. Interestingly, an application under Order 6 Rule 17 CPC was filed by Jumman Khan before the Appellate Court. It was stated in the application for amendment that the map is erroneously prepared and the room in question is in the first floor. For the reasons mentioned in the amendment application, plaintiff himself prayed to allow the same. However, the appellate Court for the reasons mentioned in paras 14 and 15 rejected the same. 3. The judgment debtor then filed second appeal before this Court which was registered as S.A. 1194/05. This Court by order dated 7.4.2010 dismissed the appeal as withdrawn with the liberty to raise a ground about unexecutability of the decree on account of vagueness. In turn, the petitioners/judgment debtors filed an application for appointment of Commissioner. The said application was rejected, against which the present petitioners filed W.P. No. 2078/11. This Court again observed as under : "From perusal of record, it appears that against the decree passed by learned trial Court the matter came up before this Court in Second Appeal No. 1194/2005 and the said appeal was decided on 7.4.2010, wherein it was observed that appellant Jameel Khan (petitioners are his wife and sons and daughter) is at liberty to raise a ground about the unexecutability of the decree on account of vagueness as to indentity of suit land at appropriate stage. It appears that the appropriate application was not filed by the petitioners. It appears that the appropriate application was not filed by the petitioners. The petitioners were to file an application that the execution itself is not maintainable due to unexecutability of the decree on account of vagueness as to identity of suit land. In the facts and circumstances of the case, the petition filed by the petitioners is disposed of with a short direction that if an appropriate application is filed by the petitioners for dismissal of execution proceedings as per direction dated 7.4.2010, then, the same shall be decided by learned trial Court in accordance with law." 4. In turn, the petitioners again preferred an application under Order 21 Rule 97 read with sections 100, 101 and 151 CPC. The Court below by order dated 18.7.2011 rejected the prayer of the petitioners to record the evidence in the matter. 5. Shri Bohre, learned counsel for the petitioners submits that the amendment application preferred by the plaintiffs/respondents itself shows that there is a serious error in description of property rooms etc in the map itself. Thus, unless the same is correctly described and ascertained, the judgment and decree is unexecutable. By placing reliance on an application preferred by respondents in First Appeal No.102-A/94 (Annexure P-6), Shri Bohre submits that respondents themselves agreed and stated that for proper determination of the way a Commission needs to be issued. Shri Bohre submits that the respondents accepted as per amendment application and reply (Annexure P-6) that there exists ambiguity in identifying and determining the way which needs to be sorted out and identified by issuance of Commission. He thus submits that in the fitness of things the Court below ought to have permitted the petitioners to lead evidence. 6. Per contra, Shri H.K. Shukla, learned counsel for the respondents submits that the Court below has not committed any error. He relied on the judgment of the Supreme Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil reported in (2010) 8 SCC 329 to submit that in absence of any procedural error, this Court should not interfere in an article 227 proceedings. He further submits that on the basis of map available before the Court below, the Court below can determine and ascertain proper way in execution proceedings. He also relied on (2010) 9 SCC 385 (Jai Singh and others v. Municipal Corporation of Delhi and another). 7. He further submits that on the basis of map available before the Court below, the Court below can determine and ascertain proper way in execution proceedings. He also relied on (2010) 9 SCC 385 (Jai Singh and others v. Municipal Corporation of Delhi and another). 7. I have bestowed my anxious consideration on the rival contentions of the parties. 8. This Court in W.P. No. 2078/11 permitted the petitioner to file an appropriate application on the question of unexecutability of the decree on account of vagueness as to indentity of suit land. In turn, the petitioner preferred that application and made a request to record evidence to ascertain the actual and factual position. The Court below has given a finding that the objections can be decided on the basis of material on record when recording the evidence of the parties. The only question is whether this decision is proper or not? 9. I find force in the argument of Shri Bohre that the only material by which the position of rooms, house and land can be ascertained is a map. The said map is erroneous and, therefore, Juman Khan himself preferred an application under Order 6 Rule 17 CPC seeking amendment, so that the correct position of way, rooms etc. can be shown. Although this application was rejected by the Court below, the fact remains that there is no dispute between the parties that the position of way is not correctly mentioned in the aforesaid map. This fact is further strengthened on perusal of Annexure P-6, a reply filed by Jameel Khan before the Court below whereby he agreed that a Commission can be issued to determine the correct position of the }\lay. Hence, there is no dispute between the parties that the correct position of way is to be determined. Thus, on the basis of aforesaid factual backdrop, I find that the order passed by the Court below is perverse. As per the aforesaid factual position, it is clear that the position of way cannot be determined on, the basis of material on record. There was a consensus on this issue only then Jumman Khan in Annexure P-6 stated that for determination of way, a Commission is required to be issued in the interest of justice. As per the aforesaid factual position, it is clear that the position of way cannot be determined on, the basis of material on record. There was a consensus on this issue only then Jumman Khan in Annexure P-6 stated that for determination of way, a Commission is required to be issued in the interest of justice. Thus, the finding of Court below that on the basis of material on record, the position of way can be determined is factually incorrect and is perverse in nature. The anxiety of the Court should be to ascertain the truth. Since in W.P. No. 2087/11 this Court gave liberty to the petitioner to prefer such an application, the Court below while deciding the said application was obliged to take all possible measures to do justice between the parties. 10. In the opinion of this Court, the Court below has erred in rejecting the prayer of petitioner to lead evidence. The judgments cited by Shri H.S. Shukla are of no assistance. Even in Shalini Shyam Shetty (s) the Apex Court has held that in cases of procedural irregularity and perversity, this Court under Article 227 Constitution can interfere. The other judgments cited by Shri Shukla have no application in the peculiar facts and circumstances of this case. In the result, the impugned order dated 18.8.2011 is set aside. The Court below is directed to permit the parties to lead evidence to the limited extent to determine the actual and facutal position of the way before dealing with the application under Order 21 Rule 97 CPC. The Court below shall record the evidence to the extent it is permissible in law. The Court below shall keep it in mind that the executing Court cannot travel beyond and behind the decree. Thus, the Court below is only required to record the evidence to the extent the executability of the decree can be determined. The petition is allowed to the extent indicated above. No costs. Rishikesh Bohre for petitioners; H.K. Shukla for respondents.