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2017 DIGILAW 451 (HP)

Balku v. Mani Ram (deceased) through LR’s

2017-05-02

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Delinked from RSA No. 422 of 2011. 2. Instant civil revision under Section 115 CPC is directed against judgment dated 9.8.2011 passed by Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, Himachal Pradesh in Execution Petition No. 32 of 2000, whereby executing court while allowing application having been filed by the Decree Holder-respondent (hereinafter, ‘decree holder’), held petitioners-judgment debtors (hereinafter, ‘judgment debtors) guilty of willful disobedience of orders of the Court and ordered them to be detained in civil imprisonment for one month. 3. Briefly stated the facts as emerge from the record are that Decree Holder preferred an application under Order 21 Rule 32 CPC in the court of Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, Himachal Pradesh, which came to be registered as Execution Petition No. 32 of 2000, averring therein that the Decree Holder had filed suit for permanent prohibitory injunction, against the judgment debtors, with regard to suit land, comprised in Khata Khatauni No.103 min/ 10 min, Khasra Nos. 700 and 706, kita 2 measuring 13-10-06 Bigha, situate at Muhal Bhour, Tehsil Sundernagar, District Mandi, Himachal Pradesh and vide judgment dated 20.11.1999, civil court decreed his suit bearing No. 117/97. Decree Holder, further averred that on 12.7.2000, judgment debtors, in willful disobedience of judgment and decree removed fencing and caused unlawful interference over the suit land despite requests of the Decree Holder and have willfully disobeyed the judgment and decree of the court and as such Decree Holder was compelled to file execution petition. 4. Judgment debtors filed written statement to the aforesaid petition having been filed by Decree Holder, admitting therein passing of decree dated 29.11.1999 in civil suit No. 117/97. They further admitted that vide civil decree, they were restrained from interfering in the peaceful possession of Decree Holder. Perusal of reply having been filed by judgment debtors suggests that they admitted having disobeyed judgment and decree on 12.7.2000. It also emerges from record that during the pendency of the aforesaid execution petition, judgment debtors, preferred an application seeking therein permission to amend written statement, wherein they had virtually admitted disobedience on their part. But perusal of order dated 26.6.2007 passed by executing court, during the pendency of execution petition suggests that aforesaid prayer for amendment was dismissed. It also emerges from record that during the pendency of the aforesaid execution petition, judgment debtors, preferred an application seeking therein permission to amend written statement, wherein they had virtually admitted disobedience on their part. But perusal of order dated 26.6.2007 passed by executing court, during the pendency of execution petition suggests that aforesaid prayer for amendment was dismissed. Learned executing court, on the basis of pleadings adduced on record by the parties, framed following issues: “1. Whether the respondents have willfully disobeyed the decree of the court as alleged? OPA 2. Relief.” 5. Subsequently, vide judgment dated 9.8.2011, executing court held judgment debtors guilty of willful disobedience of judgment and decree and directed them to be detained in civil imprisonment for one month. In the aforesaid background, judgment debtors approached this Court, in the instant proceedings, for setting aside judgment of civil detention passed by executing court. 6. Mr. Sanjeev Kuthiala, learned counsel representing the judgment debtors vehemently argued that impugned judgment dated 9.8.2011, passed by executing court is not sustainable in the eyes of law as the same is not based upon correct appreciation of evidence adduced on record by the respective parties, as such, deserves to be set aside. While specifically inviting attention of this Court to the impugned judgment, Mr. Kuthiala contended that since no specific evidence with regard to alleged disobedience was led on record by the Decree Holder, coupled with the fact that judgment debtors had specifically denied the allegations of disobedience, if any, it was incumbent upon the court below to ascertain the factum with regard to disobedience of judgment and decree passed by court by calling report of some independent agency. Mr. Kuthiala, further contended that bare perusal of evidence led on record by Decree Holder nowhere suggests that Decree Holder was able to prove that judgment debtors disobeyed judgment and decree passed by civil court. Mr. Kuthiala, further contended that when there were rival contentions available on record, best option for the court below was to ascertain genuineness and correctness of the claim of Decree Holder by appointing local commissioner. While concluding his arguments, Mr. Kuthiala, contended that no civil detention could be ordered by the court below, in the absence of independent evidence especially in view of rival contentions of the parties. Mr. While concluding his arguments, Mr. Kuthiala, contended that no civil detention could be ordered by the court below, in the absence of independent evidence especially in view of rival contentions of the parties. Mr. Kuthiala further contended that otherwise also, impugned judgment passed by executing court is not sustainable in the eyes of law as the same was passed in favour of a dead person. Mr. Kuthiala, with a view to substantiate aforesaid contentions, made this court to go through order dated 29.2.2012 passed by this court in the instant petition to demonstrate that though Decree Holder Mani Ram had expired on 11.4.2003 but, his legal representatives were brought on record, for the first time on 29.2.2012, whereas impugned order was passed on 9.8.2011 i.e. admittedly after his death. With aforesaid submissions Mr. Kuthiala prayed that impugned judgment dated 9.8.2011 deserves to be set aside being invalid in the eyes of law. 7. Mr. Rajnish K. Lal, learned counsel representing the Decree Holder supported the impugned judgment passed by executing court. With a view to refute aforesaid contentions having been made by the learned counsel representing the judgment debtors, he invited attention of this Court to the application having been filed by legal representatives of Decree Holder, during the pendency of the execution petition, to demonstrate that legal representatives of deceased Mani Ram had moved application on 13.11.2003 before the executing Court for bringing on record LR’s of deceased Mani Ram, who had expired on 11.4.2003. Mr. Lal, further contended that otherwise also, original applicant/ Decree Holder Mani Ram was being represented through his General Power of Attorney Shri Paras Ram son of Shri Mani Ram, resident of Bhatti, Tehsil Sundernagar, meaning thereby that after death of original applicant/ Decree Holder, his estate was sufficiently represented. Mr. Lal also invited attention of this Court to order dated 13.11.2003 passed by executing court below, to establish factum with regard to filing of application for bringing on record legal representatives of deceased Decree Holder. Apart from above, Mr. Lal invited attention of this Court to the original written statement filed by judgment debtors to suggests that there was no requirement as such for Decree Holder to lead evidence to prove disobedience on the part of judgment debtors, because, in the reply filed by judgment debtors, factum with regard to disobedience on their part has been duly admitted. In the aforesaid background, Mr. In the aforesaid background, Mr. Lal prayed that instant petition may be dismissed being devoid of merits. 8. I have heard the learned counsel for the parties and gone through the record carefully. 9. Perusal of application available on record at page 36 of the record of court below clearly suggest that original Decree Holder Mani Ram had expired on 11.4.2003, whereafter his legal representatives had moved appropriate application. It also emerges from the order dated 13.11.2003, passed by trial court below that time for filing reply was given to the judgment debtors. True it is, that perusal of order passed by court below after 13.11.2003 nowhere suggests that legal representatives, if any, of the deceased Mani Ram were brought on record till the time of passing of impugned judgment. Legal representatives of deceased Mani Ram were brought on record during the pendency of the instant petition, vide order dated 29.2.2012 but careful perusal of memo of parties in the execution petition having been filed by late Mani Ram itself suggests that same was filed through his General Power of Attorney Paras Ram, who happened to be son of Mani Ram as such this Court sees substantial force in the arguments of Mr. Lal, learned counsel representing the Decree Holder that after death of original Decree Holder, his estate was sufficiently represented through legal representative, who was prosecuting case before executing court being General Power of Attorney of late Mani Ram. Otherwise also, it is apparent from the record that all necessary steps were taken by legal representatives of deceased Mani Ram well within time and court below taking cognizance of same had issued notice to the respondents. Since trial court failed to pass order on the application having been filed by legal representatives of Mani Ram, Decree Holder can not be allowed to suffer for the fault of court. Otherwise also, as has been noticed above, legal representative namely Paras Ram, who happened to be legal representative of Mani Ram, was already on record and as such this Court sees no force in the contention of Shri Kuthiala that decree passed in favour of Mani Ram, could not be enforced at this stage, especially when his legal representatives were already on record. 10. 10. There can not be any quarrel that no decree could be passed in favour of a dead person, but, in the instant case, as is evident from the record, steps for bringing on record legal representatives were taken within time and even court below taking cognizance of the same, had called for reply hence, in the peculiar facts and circumstances of the case, where necessary steps were taken by legal representatives of deceased Decree Holder, well within time, mandate given by executing court in the execution petition filed by the deceased Mani Ram, can not be allowed to be defeated on this ground. 11. This Court after having carefully perused reply having been filed by judgment debtors to the execution petition filed by Decree Holder, found that there is clear cut admission on the part of judgment debtors that they had disobeyed judgment and decree passed by civil court in civil suit No. 117/97. Though, by way of moving application for amendment filed under Section 153 read with Section 151 CPC, judgment debtors prayed for amendment of reply, but perusal of order dated 26.6.2007, suggests that aforesaid prayer of judgment debtors was rejected. Executing court while rejecting aforesaid plea categorically concluded that judgment debtors can not be allowed to misuse provisions of Section 153 CPC to retract or withdraw from admission. It may also be noticed that aforesaid order dated 26.6.2007 was nowhere laid challenge by judgment debtors, before any competent court of law, as such attained finality. 12. Hence, this Court, after having carefully perused original/un-amended reply having been filed by judgment debtors, sees no occasion to refer to oral evidence led on record by respective parties, because there is clear cut admission on the part of judgment debtors in the reply that they disobeyed judgment and decree passed by the Court. 13. The Hon’ble Apex Court in Payal Vision Limited versus Radhika Choudhary, 2012(11) S.C.C 405 , has held as under:- “7 In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So, long as these two aspects are not in dispute the Court can pass a decree in terms of Order 12 Rule 6 CPC, with reads as under:- “6. Judgment on admission-(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and decree shall bear the date on which the judgment was pronounced.” 14. Even if, oral evidence led on record by the Decree Holders is perused, they have categorically stated that despite there being judgment and decree in civil suit, judgment debtors have removed fencing of Decree Holder. Judgment debtors while refuting aforesaid claim have only examined one of the judgment debtors, who has refuted aforesaid claim in his statement. Apart from his own evidence, no independent witness has been examined by him to falsify the stand taken by Decree Holder. 15. This Court, after having carefully perused the record, specifically the un-amended written statement filed before the Court, sees no reason to interfere with the impugned judgment passed by executing court below, which appears to be based upon correct appreciation of evidence adduced on record by the respective parties and as such same is upheld. 16. However, keeping in view the fact that more than six years have passed after the impugned judgment was passed, this Court, while rejecting present petition, deems it fit to modify judgment of civil detention passed by executing court and instead, judgment debtors are directed to pay Rs.5,000/- to the Decree Holder. 17. The petition is disposed of in view of above observations. Pending applications, if any, are disposed of. Interim directions, if any, are vacated.