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Gauhati High Court · body

2015 DIGILAW 32 (GAU)

Shefali Paul v. Ashok Kumar Jain (Patni)

2015-01-09

P.K.SAIKIA

body2015
1. This proceeding under Article 227 of the Constitution of India is directed against the judgment dated 23.09.2014, passed by learned Addl. District Judge (FTC), Dibrugarh in Misc.(J) Case No. 4 of 2014 allowing restoration of possession of the suit premises in favour of the respondent herein who was evicted from aforesaid shop premises on 04.01.2005 in execution of award rendered by Arbitrator in Title Execution Case No. 1 of 2004. 2. I have heard Mr. T.C. Khetri, learned Senior counsel assisted by Mr. R. Hazarika for the petitioner. Also heard Mr. B. Baruah, learned counsel for the respondent. 3. The facts projected by the petitioner herein, in short, is that the respondent herein is a monthly tenant under the petitioner in respect of shop house consisting of single storied RCC building. The respondent had been occupying the aforesaid shop premises a tenant under the petitioner over a long period of time. However, subsequently, he committed default in payment of rent for which a proceeding was initiated before the arbitrator in accordance with the terms and conditions of the lease-agreement. 4. It may be stated that according to the terms and conditions in the lease-agreement entered into between the parties, in the event of dispute regarding payment of rent etc in respect of the aforesaid premises, the parties thereto agreed to refer the matter before the arbitrator for settlement for settlement of such dispute. In terms of the aforesaid settlement, the arbitrator passed an award ex-parte granting relief sought for by the petitioner from the arbitrator aforesaid. In terms of the award so rendered by the arbitrator, the respondent was to vacate the suit premises, apart from making payment of the arrear rent amounting to Rs. 36,000/-. 5. The award rendered by the arbitrator in arbitration proceeding was challenged by the respondent herein having filed an appeal u/s 34 of the Arbitration and Conciliation Act, 1996. In the same proceeding, a petition u/s 9 of the Act was filed seeking interim relief regarding possession of the suit shop. The appellate Court in response to a petition u/s 9 of the Arbitration Act, directed the parties to maintain status-quo as on such date in respect of a property aforesaid till disposal of such appeal. In the same proceeding, a petition u/s 9 of the Act was filed seeking interim relief regarding possession of the suit shop. The appellate Court in response to a petition u/s 9 of the Arbitration Act, directed the parties to maintain status-quo as on such date in respect of a property aforesaid till disposal of such appeal. However, on hearing the parties thereto, the appellate court was pleased to set aside the award granting ex-parte with further direction to the parties to approach the court below so as to require the arbitrator to dispose of the matter in accordance with law vide judgment dated 08.07.2005 rendered in Misc. Arbitration Case No. 1 of 2005. 6. Against the aforesaid judgment, the petitioner herein preferred an appeal before this High Court and on hearing the parties, vide its judgment dated 05.05.2014, was pleased to dismiss the appeal with the following observations. “10. After hearing the learned counsel for the parties and on perusal of he materials available on record, it does not appear that the application Section 34 of the Arbitration and Conciliation Act submitted by the respondent No. 1 herein was barred by limitation. The learned Principal Civil Court, therefore, rightly entertained the application under Section 34 of the Act. Once the application under Section 34 is entertained the legality and validity of the award passed by the arbitrator becomes open. Now in view of the judgment of the Hon’ble Supreme Court in the case of Booz-Allen (Supra), the dispute itself is apparently a non arbitrable one and as such the award passed by the learned tribunal is obviously illegal and without jurisdiction. The appeal is accordingly dismissed. However, in view of law laid down in Mc. Dermott International Inc. (Supra), the direction given by the learned District Judge, Dibrugarh, directing the parties to appear before the arbitrator is also set aside in view of the law laid down by the Hon’ble Supreme court in the case of Mc. Dermott International Inc. (Supra). The order in so far as setting aside the award is not interfered inasmuch as the dispute is not arbitrable one.” 7. After the dismissal of the Arbitration Appeal, the respondent herein has filed application u/s 144 of the CPC seeking restoration of the possession from which he was evicted on 04.01.2005 following the execution of award through the Title Execution Case No. 1 of 2o14. After the dismissal of the Arbitration Appeal, the respondent herein has filed application u/s 144 of the CPC seeking restoration of the possession from which he was evicted on 04.01.2005 following the execution of award through the Title Execution Case No. 1 of 2o14. The proceeding was registered as Misc. (J) Case No. 4 of 2014 and the court below issued notice, and on hearing the parties, was pleased to grant relief with the following observations – “Whether the petitioner is a defaulter or not is to be decided as per procedure of law laid down by the Assam Urban Areas Rent Control Act, 1972. In the present case the petitioner was evicted without following the procedure laid down under the provisions of Assam Urban Areas Rent Control Act, 1972, which is specifically enacted to settle the dispute between the landlord and tenant. Admittedly , the petitioner was evicted on the basis of a writ issued by a court. The writ was issued on the execution proceeding which was instituted on the basis of an award passed by an Arbitrator who has no authority to pass such an award. Upon hearing both the sides and going through the various decisions relied on by the learned Sr. counsel for both the sides, I am constrained to hold that the petitioner is entitled to get possession of the demise premises. In the result, prayer made in Misc.(J) Case is allowed on contest. However, parties shall bear their own cost.” 8. Being aggrieved, the petitioner has preferred this appeal against the order dated 23.09.2014 alleging that the order which is impugned in this proceeding is unsustainable in law. In that connection, it may be stated that with the eviction of respondent herein from the suit shop on 04.01.2005, the respondent ceased to be the tenant under the present petitioner. In other words, the relationship between the parties as tenant and landlord stands stood determined on 04.01.2005, and as, such, he cannot claim restoration of possession as contemplated in a petition u/s 144 of the CPC. 9. Such a contention was objected to by the learned counsel for the respondent stating that the dispute between the landlord and the tenant can be adjudicated only by a statutory body created under the Assam Urban Areas Rent Control Act, 1972. 9. Such a contention was objected to by the learned counsel for the respondent stating that the dispute between the landlord and the tenant can be adjudicated only by a statutory body created under the Assam Urban Areas Rent Control Act, 1972. Since the Act has created a special forum for settlement of dispute between the landlord and tenant, the parties to a lease-agreement cannot obliterate the operation of such statutory provisions by a mutual agreement. 10. In other words, an arbitrator despite there being clause in the lease-agreement cannot decide a dispute between the landlord and tenant regarding payment of rent. Since the arbitral court has exercised jurisdiction not vested on it, has committed huge illegality by granting an award in favour of respondent herein under the authorizing eviction of tenant as well as recovery of arrear rent from the respondent. 11. In that view of the matter, it can be easily said that the respondent herein was evicted from the premises in question on execution of an illegal and non-existent award. 12. Even if, one assumes for the sake of argument that the arbitrator has the authority to entertain the dispute in question, even then such award was set aside on an appeal being preferred by respondent herein in accordance with the provisions laid down in Section 34 of the Act which was again affirmed by the appellate court which is High Court on further holding that the dispute which was executed by the arbitrator is an arbitrary one. Being so, in terms of section 144 CPC, the court below on a petition being filed by the respondent-tenant was duty bound to put him in the possession of property from he had been evicted on 04.012005 in executing an award obtained most illegally. 13. In support of such contention the learned counsel for the petitioner has referred to the decision of Hon’ble Apex Court in the case of Lakmi Chand Kummavi- Vs- Koran Devi reported in AIR 1966 SCC 1003 as well as the decision of Karnataka High Court in Chanda Sab Vs. Jamshed Khan and Ors. reported in AIR 1993 Karnataka 338. On the other hand, in support of his case, the respondent has relied on the decision of this High Court in Smt. Seelika Bala Das and Ors, Vs. Kamala Kanta Das reported in (1991) 1 GLR 35. 14. Jamshed Khan and Ors. reported in AIR 1993 Karnataka 338. On the other hand, in support of his case, the respondent has relied on the decision of this High Court in Smt. Seelika Bala Das and Ors, Vs. Kamala Kanta Das reported in (1991) 1 GLR 35. 14. Hon’ble Apex Court in the case of Lakmi Chand Kummavi- ( supra) held that when a person who as dispossessed/evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith in spite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession. The relevant part of the judgment is reproduced below:- ‘‘Para 20. The following principles emerge from a conspectus of the aforesaid decisions:- (a) Whenever an ex parte order/decree for possession/eviction is set aside, the partyWho as dispossessed/evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith in spite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession. This is in view of the salutary principle embodied in S. 144 of CPC, that no party to a lis should suffer or be prejudiced on account of an erroneous action or decision of the Court. (b).The order for restitution, if not complied with can be enforced as a decree, not only against the person who obtained the ex parte decree.order and caused the dispossession, but against his representative-in-interest, assigns, transferees, including tenants of transferees, irrespective of the fact whether such transferee or person in possession, is a party to the suit or the restitution proceedings: (c) No person who has entered into the possession through the party ontaining the ex parte decree/order, can resist or obstruct restitution on the ground that he is a bona fide transferee or tenant without notice: neither bona fides nor notice is relevant to the principle of lis pendens which is a principle of public policy that neither party to a litigation can alienate the property in dispute. Pendent lite, so as to affect his opponent: (d) Only a stranger who is in bona fide possession, in his own right and who does not claim possession is a transferee/representative of the party who obtained in pursuance of the ex parte order/decree, can resist a claim for restitution. Pendent lite, so as to affect his opponent: (d) Only a stranger who is in bona fide possession, in his own right and who does not claim possession is a transferee/representative of the party who obtained in pursuance of the ex parte order/decree, can resist a claim for restitution. (e) the provisions of S. 144 being imperative courts should aid restitution and not hlp obstruction to restitution on vague pleas of equilty or technicalities” 15. Similar view was rendered by Karnataka High Court in Binayak Swain ( supra) . The relevant part is reproduced below :- “4. …………. We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree and the court in making restitution is bound to restore the parties, so far as they can be restored , to the same position they were in that time when the court by its erroneous action had displaced them from. “ 16. Before proceeding further, I find it necessary to have a look at the provision of Section 144 of the CPC which runs as follows – “144. “ 16. Before proceeding further, I find it necessary to have a look at the provision of Section 144 of the CPC which runs as follows – “144. Application for restitution.—(1) Where and is so far as a decree 1[or an order] is varied 2[varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order] shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 1[or order] or 3[ such part thereof as has been varied, reversed, set aside or modified; and, for the payment of interest, damages, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 4[consequential] on such variation, revesal, setting aside or modification of the decree or order]. [Explanation].—For the purposes of sub-section (1) the expression “ Court which passed the decree or order” shall be deemed to include ,-- (a) Where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance ; (b) Where the decree of order has been set aside by a separate suit, the Court of first instance which passed such decree or order, (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree of order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try the suit.] (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).” 17. I have considered the submissions advanced by the learned counsel for the parties, the averments made in the petition under Article 227 of the Constitution of India, the judgment under challenge and other connect documents. 18. On the perusal of the record, it is found that it is not in dispute that the respondent had occupied the shop premises in question as a tenant over a long period of time. 18. On the perusal of the record, it is found that it is not in dispute that the respondent had occupied the shop premises in question as a tenant over a long period of time. It is also not in dispute that on the allegation of respondent herein being defaulter, the petitioner had approached the arbitrator seeking adjudication of dispute between him and the respondent regarding payment etc. No dispute lies over the fact that the arbitrator passed an award ex-parte requiring the respondent herein to vacate the suit premises and also requiring him to pay the arrear rent. 19. There is no quarrel over the fact that the said award was put into execution for which the respondent herein was evicted from the said shop on 04.01.2005. On further perusal of the record, it is also found that the award, rendered by the arbitrator, was challenged before the District Judge preferring an appeal u/s 34 of the Act of 1996 and the District Judge too had set aside such an ex-parte order requiring the parties to appear before the Court below once again to have their dispute adjudicated in accordance with law. 20. On an appeal being preferred before the High Court, the High Court while affirming the order set aside the arbitral award with further directions requiring to the parties to approach the arbitral Court to have their dispute decided in accordance with law. 21. Situation being such, in my considered opinion, the award rendered by the sole arbitrator is non-est in law since the arbitrator did not have the necessary jurisdiction to decide the dispute between the landlord and tenant over nonpayment of rent in time etc. But then, such an award was also set aside by the District Judge, Dibrugarh in an appeal u/s 34 of the Act, 1996 which was again affirmed by this High court. 22. That being the position, in my considered opinion, it is a case where the Court is bound to make restitution and in making restitution, the court is bound to restore the respondent, herein, so far as they can be restored, to the same position he was in that time when under the erroneous action he was had displaced there from. 23. 23. Such revelation also shows that submission advanced from the side of the petitioner and the decision ,relied on by the him to advance such contention do not have any forec at all. 24. Consequently, the order under which the restoration of the property in question was allowed in favour of the respondent, is found to be free from infirmities whatsoever, and as such, this proceeding lacks merit and the same is accordingly, dismissed. 25. No cost.