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2020 DIGILAW 399 (JHR)

Nikhil Kumar Singh v. Kashi Lal

2020-02-27

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition has been filed for quashing the order dated 28.03.2019 passed by the Civil Judge (Junior Division)-I, Palamau at Daltonganj in Execution Case No. 02 of 1986, whereby an application dated 25.01.2019 filed by the petitioners under Section 47 CPC has been rejected. 2. The factual background of the case as stated in the writ petition is that the grandmother of the respondent namely, Dhilni Mallahin filed a suit for eviction being Title Suit No. 10 of 1975 for recovery of arrears of rent as well as for eviction of the original defendant/judgment debtor-father of the petitioners from the suit premises consisting of a house standing over Plot No. 709, Khas Mahal Holding No. 1065 in Mohalla-Abadganj, measuring an area of 0.17 acre in the town of Daltonganj on the ground of personal necessity as the respondent who joined Daltonganj Bar as an Advocate required an accommodation in the suit premises which was suitable one. Vide judgment and decree dated 31.03.1986, the Additional Munsif, Daltonganj held that the plaintiff was able to establish the requirement of suit premises for her personal necessity and thus the same was decreed only on the ground of personal necessity and the issue of arrears of rent was not allowed. 3. Title Appeal No. 17 of 1986 as well as Second Appeal No. 82 of 1989 (R) filed by the judgment-debtor were dismissed vide judgment dated 22.04.1989 and 22.06.2004 respectively. The S.L.P filed by the defendant/judgment-debtor was also dismissed by the Hon’ble Supreme Court. The decree-holder filed an application on 20.09.1986 for execution of decree of eviction which was registered as Execution Case No. 02 of 1986. Earlier, the original defendant/judgment-debtor preferred a writ application being W.P.(C) No. 2430 of 2011 for quashing the order dated 21.02.2011, whereby an application filed under Order XXI Rule 58 read with Order 47 and Section 151 CPC was rejected. The said writ petition was dismissed vide order dated 23.11.2011. The petitioners filed an objection dated 25.01.2019 in Execution Case No. 02 of 1986 on the ground that the claim does not exist due to series of transaction relating to the said land were done either by the decree-holder or by her legal heirs. The court below vide impugned order dated 28.03.2019 rejected the said application preferred by the petitioners. Hence, the present writ petition. 4. The court below vide impugned order dated 28.03.2019 rejected the said application preferred by the petitioners. Hence, the present writ petition. 4. The learned counsel for the petitioners submits that by efflux of time, the grandson of original plaintiff (the respondent herein) suffered paralytic attack and he left the practice as a result whereof the very purpose for which the decree of personal necessity was passed got evaporated and thus, the very basis of the decree does not exist. It is further submitted that the respondent by series of transactions practically sold the entire land covering the area of suit premises. In such circumstance and especially in view of the objection raised on behalf of the decree-holder, it was incumbent for the trial court to provide opportunity to the petitioners for leading evidence to ascertain the correctness and genuineness of such plea and during such period, the executing court should not have proceeded with the execution proceeding. The court below despite vested with the powers under Section 47 CPC has completely failed to exercise its jurisdiction which has occasioned total failure of justice. The sole ground for the relief sought in the eviction suit was of personal necessity which did not exist on the date of execution of the said decree and, therefore, the petitioners validly raised objection before the said court under Section 47 CPC. 5. On the other hand, the learned counsel for the respondent submits that the court below rightly rejected the petitioners’ application. The power under Section 47 CPC is to be exercised on a very limited ground which is not available in the present case. The petitioners having lost the case up-to the Hon’ble Supreme Court is trying to delay the execution of the decree. It is also submitted that the decree passed by the original court can still be executed. In support of his argument, the learned counsel for the respondent puts reliance on the following judgments: (1) Dhurandhar Prasad Singh Vs. Jai Prakash University & Ors. reported in (2001) 6 SCC 534 ; (2) Hukum Chandra (D) through LRs. Vs. Nemi Chand Jain & Ors. reported in 2019(13) SCC 363 . 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Jai Prakash University & Ors. reported in (2001) 6 SCC 534 ; (2) Hukum Chandra (D) through LRs. Vs. Nemi Chand Jain & Ors. reported in 2019(13) SCC 363 . 6. Heard the learned counsel for the parties and perused the materials available on record. 7. The main submission of the learned counsel for the petitioners is that the purpose for which the decree was passed by the original court has been frustrated on two counts; (i) the sole ground of personal necessity for eviction of the petitioners no more exists since the respondent has suffered paralytic attack and he is not capable of practicing as an advocate and, (ii) almost the entire land being the subject matter of the suit has been sold to others by series of transactions. 8. The learned court below while rejecting the objection raised by the petitioners under Section 47 CPC has held that at the time of passing of the decree, the ground for eviction was in existence and the objection of the judgment-debtor raised after 33 years of passing of the decree to the extent that the very ground on which the judgment was passed, does not exist as on date, is not tenable. It has also been observed that the decree has already been prepared and the executing court has no authority to look into such matter at the said juncture. Further, the judgment-debtor has not stated that he is also a purchaser and, therefore, he has no locus-standi to object the execution on the said ground. The learned court below has also held that the suit land has been described in the decree passed in Title Suit No. 10 of 1975 and no one has any difficulty in identifying the suit land as mentioned in the decree. 9. In the case of “Dhurandhar Prasad Singh (supra), the Hon’ble Supreme Court has held as under: 24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. 9. In the case of “Dhurandhar Prasad Singh (supra), the Hon’ble Supreme Court has held as under: 24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. -----------” 10. It would thus be evident that the objection under Section 47 CPC is entertainable on the ground that the decree is void ab-initio or the decree has been passed in ignorance of a provision of law or the law has been promulgated making a decree inexecutable subsequently. 11. In the case of “Hukum Chandra (supra), the Hon’ble Supreme Court has held as under: 15. Rights of the parties stand crystallised on the date of institution of the suit. However, in appropriate cases, court can take note of all the subsequent events. Observing that the court may permit subsequent event being introduced into the pleadings by way of amendment as it would be necessary to do so for the performance of determining the rule in controversy for the parties provided certain conditions are being satisfied, in Om Prakash Gupta v. Ranbir B. Goyal [Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256 ], it was held as under: (SCC pp. 262-63, para 11) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. 262-63, para 11) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders, (1975) 1 SCC 770 ], this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.” 16. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. Whenever, there is subsequent events of fact or law, which have a material barring on the rights of the parties to relief or on the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognizance of the subsequent changes of fact and law to mould the relief (vide Ramesh Kumar v. Kesho Ram [Ramesh Kumar v. Kesho Ram, 1992 Supp (2) SCC 623]). 17. In [Gaya Prasad v. Pradeep Srivastava, (2001) 2 SCC 604 ] relying on earlier decisions, this Court held that the crucial date for deciding as to bona fide requirement of landlord is the date of his application for eviction. It was a case of bona fide requirement of the premises in question for starting a clinic by the son of the landlord. The litigation continued for 23 years and during that period the son of the landlord joined Provincial Medical Service and was posted at different places. The Court refused to take notice of the subsequent event holding that the crucial date was the date of filing of the eviction petition. 18. In the light of the above principles and considering the case in hand, the fact remains that the present case is of a landlord-tenant dispute. As discussed infra, the shop vacated by other tenant Babulal is for the bona fide requirement of respondent landlord's another son Rajesh Kumar Jain. In that view of the matter, the court would not be justified in taking notice of such a subsequent fact sought to be projected by the appellant to oppose the relief granted by the courts below. In the facts and circumstances of the present case, the subsequent event relied upon by the appellant tenant cannot be taken cognizance. 12. In the aforesaid case, the Hon’ble Supreme Court has specifically held that the rights of the parties are decided on the date of institution of the suit. The crucial date for deciding as to bonafide requirement of the landlord is the date of his application for eviction. If during continuation of the litigation, the bonafide requirement gets frustrated, the court cannot take notice of such subsequent development. The crucial date for deciding as to bonafide requirement of the landlord is the date of his application for eviction. If during continuation of the litigation, the bonafide requirement gets frustrated, the court cannot take notice of such subsequent development. However, the court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief as claimed originally has by reasons of subsequent events become inappropriate or cannot be granted; (ii) that taking note of such subsequent events or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that the subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 13. In the case of “Ratan Lal Jain & Ors. Vs. Uma Shankar Vyas & Ors.” reported in (2002) 2 SCC 656 , the Hon’ble Supreme Court has held as under: 5. Having heard the learned counsel for the parties, we are of the opinion that the appeals are devoid of any merit and no fault can be found with the view taken by the High Court. Rules 35 and 36 of Order 21 CPC are relevant and clinch the issue arising for decision. Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or his agent, by removing any person bound by the decree who refuses to vacate the property, if it becomes necessary to do so. [Rule 35 sub-rule (1)] Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. (Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession. (Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession. In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession. (See five-Judge Bench decision in Juggobundhu Mukerjee v. Ram Chander Bysack [ILR (1880) 5 Cal 584 : 5 CLR 548 (FB)] and Full Bench decision in Jayagopal Mundra v. Gulab Chand Agarwalla [ AIR 1974 Ori 173 : 40 Cut LT 213 (FB)]). The rights of the person bound by the decree stand extinguished, he is removed from the property in the eye of law and his right and entitlement whatever it may be qua the person in actual possession and not bound by the decree stand vested in the decree holder. 14. Thus, coming back to the present case, the objection raised by the petitioners that the decree is not executable as the subject matter of the decree i.e., the land has been sold out by a series of sale deeds is not entertainable. Even if the said factual plea taken by the petitioners is accepted, the same would not by itself frustrate the decree and make it inexcutable since the decree is still executable by giving symbolic possession of the subject matter of the suit to the decree-holder by following the provisions of the CPC. It is not the case of the petitioners that the decree was void ab-initio or the same was passed in violation of any provision of law which can be the ground for entertaining a petition under Section 47 CPC, rather the said decree has got confirmed up-to the Hon’ble Supreme Court. It is not the case of the petitioners that the decree was void ab-initio or the same was passed in violation of any provision of law which can be the ground for entertaining a petition under Section 47 CPC, rather the said decree has got confirmed up-to the Hon’ble Supreme Court. So far as the contention of the petitioners that the basis of the decree no more exists and as such, the decree cannot be executed, it has already been discussed hereinabove that merely during the pendency of the litigation, the ground on which the decree was passed has extinguished, cannot be accepted as a ground for objecting the execution of decree since the right of parties as stood on the date of filing of the plaint is the relevant factor. 15. In view of the aforesaid facts and circumstances, I do not find any infirmity in the order dated 28.03.2019 passed by the Civil Judge (Junior Division)-I, Palamu at Daltonganj in Execution Case No. 02 of 1986. 16. The writ petition is accordingly dismissed.