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2013 DIGILAW 766 (JK)

Vaneet Gandotra v. Vinod Gandotra

2013-12-30

DHIRAJ SINGH THAKUR

body2013
1. The present revision petition under Section 115 of the Code of Civil Procedure (for short `CPC') has been preferred against the judgment and order dated 31st of August, 2010 passed by learned Sub Judge, Jammu whereby the application of the petitioner under Order XXI Rule 97 of CPC has been rejected. 2. With a view to understand the controversy in its correct perspective, it is necessary to briefly state a few facts. First round of litigation: 3. The respondent No. 1 filed a suit for mandatory injunction against respondent No. 2, who is the father of petitioner herein, seeking a direction to remove his belongings and vacate two rooms and a kitchen, which formed the subject matter of the suit. This has resulted in a decree dated 6th of December, 1993 by the court of learned Sub Judge, Jammu. Execution proceedings were filed by the decree holder-respondent No. 1 herein. 4. The petitioner herein, who claims to be also in possession of the aforementioned two rooms and a kitchen along with his father, moved an application before the court where the execution proceedings were pending, for impleadment as party respondents in the execution proceedings on the plea that he had already filed a suit, questioning the right of his father for relinquishing his share in the ancestral property without his consent. That particular application for impleadment came to be dismissed by the Executing Court on the ground that his earlier application for impleadment as party-respondent in the suit in which the decree had been passed, was dismissed. 5. Against that order of rejection, a revision petition came to be filed in the first round of litigation being Civil Revision No. 31 of 2010 by the petitioner herein. This court by virtue of judgment and order dated 3rd of May, 2010 while dismissing the revision petition held that there was no provision for impleading a person as party respondent under Order XXI of CPC. 6. It would be beneficial to reproduce the relevant paragraph of the judgment and order dated 3rd of May, 2010 as under: "There is no provision for impleading a person as party under Order 21 of Civil Procedure Code. The only provision which deals with 3rd party intervention is Rules 97 and 99 of Order 21 CPC. 6. It would be beneficial to reproduce the relevant paragraph of the judgment and order dated 3rd of May, 2010 as under: "There is no provision for impleading a person as party under Order 21 of Civil Procedure Code. The only provision which deals with 3rd party intervention is Rules 97 and 99 of Order 21 CPC. An application under Rule 97 can be made by a decree holder in the event of resistance or obstruction in obtaining possession of the property shown by the 3rd person. The present case is not covered under Rule 97. Application filed by the present petitioner can best be examined under Rule 99. This eventuality will arise only after a party claimed to be in possession of the property, is dispossessed from it. This application would lie only after its dispossession. So, the present application filed by the petitioner cannot be maintained in view of the fact that the petitioner has no where stated that he is dispossessed......" 8. The petitioner herein preferred an SLP before the Apex Court bearing No. Civil 16976/2010, which came to be subsequently withdrawn by the petitioner. Second round of litigation: 9. In the second round of litigation, the petitioner moved a specific application under Order XXI Rule 97 of CPC, which came to be dismissed by the trial court by holding as under: "After going through the law cited by both the sides and in view of the facts and circumstances of the case, it is manifestly clear that application of the applicant deserves no consideration inasmuch as the matter stands agitated before the Hon'ble Supreme Court and same was allowed to be dismissed as withdrawn meaning thereby, the observation of the High Court was not interfered with. It is the admitted case of the parties that applicant has not been dispossessed as of now and that eventuality would arise only after he is dispossessed as observed by the Hon'ble High Court." 10. Learned counsel for the petitioner submitted that the court below could not have rejected the application of the petitioner under Order XXI Rule 97 of CPC in view of the clear mandate of the Rule itself as also the ratio of the Apex Court judgment on the subject. 11. The petition has been resisted by learned counsel for the respondents, Mr. 11. The petition has been resisted by learned counsel for the respondents, Mr. L.K. Sharma, who urged that based upon the principles of res judicata, the present petition is not maintainable in view of the fact that the High Court in the first round of litigation, had already held that the application could at best be maintainable only under Order XXI Rule 99 once the petitioner was dispossessed. Order XXI Rule 97 reads as under: "97. Resistance or obstruction to possession of immovable property. "(1) Where the holder of the decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." Order XXI Rule 99 reads as under: "99. Dispossession by decree-holder or purchaser. (1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder, of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." 12. In Babulal v. Raj Kumar & ors, AIR 1996 SC 2050 , the Apex Court held as under: "5. In the execution application filed under Order 21. Rule 32 of the CPC the appellant filed an objection on the ground that he could not be dispossessed. It is not in dispute that the appellant was not a party to the decree for specific performance. His objection was over-ruled by the executing Court holding that since he had not been dispossessed, application under Order 21, Rule 97 is not maintainable. That view was affirmed by the High Court in the impugned order dated May 9, 1995 in CRP No. 656/94 by the High Court of Rajasthan at Jaipur Bench. Thus, this appeal by special leave." "6. The controversy is no longer res integra. That view was affirmed by the High Court in the impugned order dated May 9, 1995 in CRP No. 656/94 by the High Court of Rajasthan at Jaipur Bench. Thus, this appeal by special leave." "6. The controversy is no longer res integra. This Court in Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6 ; (1994 AIR SCW 4549), considered the controversy and had held that even an application filed under Order 21, Rule 35(3) or one filed under Section 47 would be treated as an application under Order 21, Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order 21, Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. In para 7 (of SCC): (Para 6 of AIR) thereof it was held thus: "In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25-5-1979 was made, the Court should have treated it to be one filed under Order 21, Rule 97(1), CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances, the appellate Court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21, Rule 35(3) and Order 21, Rules 101 and 102 of CPC" 13. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & anr, AIR 1997 SC 856 the Apex Court has held as under: "5. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder, the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97 sub-rule (1) and he cannot by pass such obstruction and insist on reissuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court, it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualize that a stranger to the decree, who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree holder." 14. While testing the order of the trial court, on the touchstone of the ratio of the judgments (supra) as also the clear provisions of Order XXI Rules 97 and 99, it can clearly be said that the same is unsustainable in law. While testing the order of the trial court, on the touchstone of the ratio of the judgments (supra) as also the clear provisions of Order XXI Rules 97 and 99, it can clearly be said that the same is unsustainable in law. The next issue then arises is whether the principles of res judicata would apply to the present proceedings even when the earlier judgment would clearly contrary to the letter of law as envisaged under Order XXI Rule 97 as also the Apex Court Judgment (supra). 15. Seen in this context, it will be pertinent to notice that in the first round of litigation, the application filed by the applicant-petitioner herein was for impleadment simpliciter in the execution proceedings. It was not an application specifically moved under Order XXI Rule 97 of the CPC. The High Court while dealing with the issue clearly stated that there was no provision for impleading a person as a party respondent in the execution proceedings. Ordinarily, the matter should have rested there. The High Court, however, proceeded to identify the various provisions under which the application could be brought under. In the course of that examination, it proceeded to hold that the application for impleadment could be filed under Rule 99 and that too after dispossession. 16. From a reading of the judgment, it becomes clear that the High Court was required to determine whether the application for impleadment was maintainable or not. Even otherwise, the judgment passed by this court in the earlier revision petition was per incuriam being contrary to the settled position of law as can be seen from the pronouncements of the Apex court judgments reproduced in the preceding paragraphs hereinabove. 17. The cardinal principles of administration of justice are that no man should suffer because of the mistake of the court. 18. In A.R. Antulay v. R.S. Nayak & anr, (1988) 2 SCC 602 the Apex Court has held as under: "82. 17. The cardinal principles of administration of justice are that no man should suffer because of the mistake of the court. 18. In A.R. Antulay v. R.S. Nayak & anr, (1988) 2 SCC 602 the Apex Court has held as under: "82. Lord Cairns in Rodger v. Comptoir D'escompte De Paris observed thus: Now, their Lordships are of the opinion, that one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and when the expression `the act of the court' is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the court." "83. This passage was quoted in the Gujarat High Court by D.A. Desai, J. speaking for the Gujarat High Court in Soni V rajilal V. Soni Jadavji as mentioned before. It appears that in giving directions on February 16, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of Sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar case which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis. 19. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis. 19. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through his LRs, (1990) 1 SCC 193 , the Apex court held that a question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. In Para 26 of the judgment (supra) the Apex Court held as under: "......But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a Court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a Court....." 20. The aforementioned judgment was specifically followed in Isabella Johnson (Smt) v. M.A. Susai (Dead) by LRs, (1991) 1 SCC 494 wherein the Apex Court in paragraph 6 held as under: "6. The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra. The aforementioned judgment was specifically followed in Isabella Johnson (Smt) v. M.A. Susai (Dead) by LRs, (1991) 1 SCC 494 wherein the Apex Court in paragraph 6 held as under: "6. The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra. We find that the decision of three learned Judges of this Court in Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh v. Jagjit Singh, and hence, to the extent, that the judgment in Avtar Singh case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law. In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law. 21. In the present case also, the judgment rendered by this court in Revision Petition No. 31/2010 decided on 3.5.2010 merely dealt with the interpretation of the provisions of Rules 97 and 99, which were pure questions of law without involving any factual aspects at all. 22. Be that as it may, the rejection of the application under Order XXI Rule 97 filed by the petitioner is held to be bad. Further the judgment and order dated 3rd of May, 2010 in Civil Revision No. 31/2010 does not in any manner constitute res judicata and was no bar to the court below from entertaining the application and deciding it in accordance with law. It is further held that the Executing Court had to determine the right of the obstructionist-the applicant/petitioner herein in terms of Order XXI Rule 97 before proceeding further in executing the judgment and decree. The court below had clearly failed to exercise the jurisdiction vested in it. 23. For the reasons mentioned above, this petition, which is also treated to be one u/s 104 of the Constitution of J&K, succeeds. Consequently, the judgment and order dated 31.08.2010 passed by the court below is set aside. 24. The court below had clearly failed to exercise the jurisdiction vested in it. 23. For the reasons mentioned above, this petition, which is also treated to be one u/s 104 of the Constitution of J&K, succeeds. Consequently, the judgment and order dated 31.08.2010 passed by the court below is set aside. 24. Disposed of accordingly along with CMA No. 123/2010.