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2022 DIGILAW 76 (MEG)

Babulal Sharma v. Sant Kumar Bajoria

2022-04-05

SANJIB BANERJEE

body2022
JUDGMENT Sanjib Banerjee, CJ. - This petition under Article 227 of the Constitution is directed against an order dated May 22, 2019 passed in execution proceedings. Several issues have been decided by the impugned order pursuant to a direction of this Court. 2. In course of passing the order impugned, the Executing Court perceived that there was no further impediment to the execution of the relevant decree being pursued. The execution has, however, remained effectively stayed during the pendency of the present proceedings in this Court. 3. The matter brings out several features that plague the justice delivery system in this country, particularly when it comes to removing a tenant or lessee who has overstayed the welcome at the relevant property and how the resourceful disingenuously take advantage of the strict rent control laws that are really intended to protect those who do not have their own properties to live in or do business from. Indeed, the present story does not begin from the day that the suit in this case was instituted but it goes back to several decades before when a previous suit between the same parties or their predecessors-in-interest was compromised upon the petitioner herein promising to pay the rent at an enhanced rate. That was how Title Suit No. 15(H) of 1962 ended. 4. The present round of proceedings commenced in 1983 with the institution of Title Suit No. 2(H) of 1983 by which the respondents herein sought a decree for eviction against the petitioner herein from a property in upmarket Police Bazar in the city that is valued at several tens of crores of rupees. A pittance is paid by way of rent and there is default even in the payment of such apology of an amount as rent. The suit was instituted on the twin grounds of reasonable requirement and default in payment of rent. By a judgment and decree of December 23, 1988, the said suit was dismissed by the trial court upon both the grounds urged by the respondents herein being repelled. 5. A regular first appeal, Title Civil Appeal No. 7(H) of 1989, came to be filed by the respondents and the respondents succeeded in obtaining a decree of eviction, though only on the ground of default in the payment of rent and not on reasonable requirement. 5. A regular first appeal, Title Civil Appeal No. 7(H) of 1989, came to be filed by the respondents and the respondents succeeded in obtaining a decree of eviction, though only on the ground of default in the payment of rent and not on reasonable requirement. The defendant carried a revision from the appellate judgment and decree of October 19, 1990 by way of CR (P) No. 8(SH) of 1991. By the judgment and order of the Gauhati High Court of December 9, 1993, the matter was remanded for a fresh consideration by the first Appellate Court. On rebound, the first Appellate Court again held in favour of the plaintiff on the ground of default but did not accept the case of reasonable requirement. The operative part of the judgment and decree of September 24, 2008 provides, inter alia, as follows: '22. ... As the defendant is a defaulter he is liable to be evicted from the suit premises and also liable to pay the arrear rent from the month of April to December, 1982. 23. In the result the appeal is allowed on contest with cost by setting aside the impugned judgment and decree dated 23.12.88 passed by the Assistant District Judge, Shillong in Title Suit No. 2(H) of 1983. 24. Prepare the decree accordingly. 25. ...' 6. The decree merely repeats what the operative part of the judgment says at paragraph 23 thereof. In a sense, there appears to be a technical defect in the Appellate Court not specifically providing for a decree for eviction in as many words. In essence, however, the relevant judgment amounts to a decree for eviction having been passed in favour of the plaintiff and ought to have been expressly recognised as such in the formal decree that was drawn up. But, as the appearing parties submit, the prevalent practice of drawing up a formal decree is by merely repeating the operative part of the relevant order without any independent application of mind in such exercise. 7. The present petitioner assailed such appellate judgment and decree by instituting CR (P) No. 10 of 2009, which was later renumbered as CR (P) (SH) No. 48 of 2013. The relevant petition was disposed of by a judgment and order of November 6, 2015 that needs to noticed in some detail. 7. The present petitioner assailed such appellate judgment and decree by instituting CR (P) No. 10 of 2009, which was later renumbered as CR (P) (SH) No. 48 of 2013. The relevant petition was disposed of by a judgment and order of November 6, 2015 that needs to noticed in some detail. At paragraph 21 of the relevant order, after noticing that the defendant had been in occupation of the suit premises for several decades and had been expressly found to have committed default in the payment of rent, it provided the following: '21. The defendants (present petitioners) have been in occupation of the suit premises for the last several decades; and as they are going to be evicted only on the ground of default in payment of rent, they should, in the interest of justice, be given a chance to clear arrear rent within a reasonable time if they want to continue in possession of the suit premises. But the defendants (present petitioners) should pay the rent of the suit premises at the prevailing rate from this year i.e. January 2015. The prevailing rent of the suit premises should be the average of the rents paid by the tenants of the neighbouring shops or tenanted premises i.e. the average of the rents of ten of the shops/tenanted premises of the immediate surroundings of the present suit premises. Both the parties shall settle the prevailing rent of the suit premises to be paid by the defendants (present petitioners) within 3(three) months from the date of passing of this judgment and order. In view of the aforesaid observation made by this Court, the defendants (present petitioners) shall clear the arrear rent at the prevailing rate as calculated and settled by the parties in the manner indicated above from the month of January 2015 and also the arrear rent before January 2015 at the old rate within a period of 4(four) months from the date of settlement of the prevailing rent of the suit premises by the parties and shall continue to pay the rent at the prevailing rate as calculated by the parties if he continues to possess the suit premises, till the parties otherwise decide the matter amicably or according to law. It is also made clear that if the defendants (present petitioners) fail to pay arrear rent within the 4(four) months indicated above and also the current rent so calculated at first week of every month on its becoming due, the defendants (present petitioners) shall be evicted from the suit premises as per the of judgment and decree of the first Appellate Court i.e. impugned judgment and decree dated 24-09-2008 which is upheld by this Court vide this judgment and order with the certain conditions mentioned aforesaid.' 8. It is evident from the order of November 6, 2015 that by virtue thereof it was incumbent on the defendant to pay the rent in respect of the suit premises at the prevailing rate, though both sets of parties were required to settle the matter. The onus was on the defendant, who is the petitioner herein, to 'clear the arrear rent at the prevailing rate as calculated and settled by the parties in the manner indicated above from the month of January 2015 and also the arrear rent before January 2015 at the old rate within a period of 4 (four) months from the date of settlement of the prevailing rent of the suit premises...' 9. To boot, the relevant order of this Court of November 6, 2015 emphasised that if the defendant failed to pay the arrear rent within the period of four months as stipulated in the order, together with the current rent by the first week of every month on it becoming due, the 'defendants (present petitioners) shall be evicted from the said premises as per the judgment and decree of the first Appellate Court ... dated 24-09-2008 which is upheld by this Court vide this judgment and order with certain conditions mentioned aforesaid.' Thus, there can be no manner of doubt that it was the obligation of the petitioner herein to ensure that the conditions stipulated in the order dated November 6, 2015 were complied with and if there was any failure to comply with the conditions indicated therein, the effect of such non-compliance would be the eviction of the petitioner herein in accordance with the judgment and decree of the first Appellate Court dated September 24, 2008 which stood upheld, subject to the stipulated conditions being incorporated. 10. 10. Clearly, it was not a scenario where the petitioner herein could lie back and wait for the respondents to take the initiative. The wording of the order and the intention of this Court was clearly that all that was required to be done to comply with the conditions thereunder would be completed by the petitioner herein and the event of default, as specifically recorded in the order, was the non-payment of the agreed rent or of the current rent when the same fell due. It would not lie in the mouth of the petitioner to suggest that merely because the parties had not been able to agree on the quantum of rent, no default would be perceived to have happened for the petitioner herein to be subjected to suffer the eviction decree or the execution thereof. It is the same conclusion that has been arrived at by the Executing Court in the judgment assailed herein. 11. It matters little, therefore, that the parties may or may not have done certain things pursuant to the order dated November 6, 2015. The respondents submit that the petitioner herein maintained stoic silence till February 4, 2016, barely before two days before the four-month period in terms of the order of November 6, 2015 was to run out. The respondents point out that there were some discussions between the parties as to the land being surveyed and allegations are now traded at the Bar whether the idea of the land being surveyed was the petitioner's or it was the respondents'. But nothing turns on whether the respondents did or did not do anything since it is evident that the parties could not arrive at the agreement contemplated by the order dated November 6, 2015; and, the consequence of such an eventuality was clearly spelt out in the order itself, to the effect that the decree would be executed against the petitioner in such a scenario. 12. It appears that the execution proceedings were levied in or about 2018 in terms of the appellate decree of September 24, 2008 as upheld by this Court's judgment of November 6, 2015. Certain technical objections were taken by the petitioner herein before the petitioner rushed back to this Court with a further petition under Article 227 of the Constitution that culminated in an order of May 8, 2019. Certain technical objections were taken by the petitioner herein before the petitioner rushed back to this Court with a further petition under Article 227 of the Constitution that culminated in an order of May 8, 2019. Paragraph 10 of the relevant order referred to the questions that arose for determination pursuant to the previous order of this Court of November 6, 2015: '10. Admittedly, the parties have not settled the prevailing rent of the suit premises as was required to be done within three months from the date of the judgment dated 06.11.2015. Therefore, following points arose for determination; (i) whether the amount deposited by the Judgment-Debtor as mentioned above is in consonance with the rule requirement, (ii) whether default in settling the prevailing rent in terms of the judgment dated 06.11.2015 is attributable to the defendants (Judgment-Debtor), and (iii) what are the causes and reasons for not settling the prevailing rent in terms of the judgment.' 13. As a consequence of noticing that such questions had arisen, the order dated May 8, 2019 required the Executing Court to decide on the three points indicated in such order. The judgment-debtor petitioner herein was given an opportunity to file a response with supporting documents before the Executing Court by May 10, 2019. 14. The exercise contemplated by the order of May 8, 2019 has been satisfactorily completed by the Executing Court and all the three issues raised in this Court's order of May 8, 2019 have been decided against the petitioner herein and in favour of the respondents by the impugned judgment and order of May 22, 2019. 15. The challenge in the present petition is not so much as to how the three points have been considered and adjudicated upon by the Executing Court as certain other technical aspects that the petitioner herein perceives have not been complied with. The legal issues raised are that the judgment of the first Appellate Court passed on September 24, 2008 does not contain any decree and, as such, there is no executable decree as such. The legal issues raised are that the judgment of the first Appellate Court passed on September 24, 2008 does not contain any decree and, as such, there is no executable decree as such. The petitioner exhorts that the Executing Court cannot go behind the decree and, since the judgment of September 24, 2008 does not specifically require the petitioner herein to be evicted from the premises in question or even record that a decree for eviction was to be drawn up, no question arises of the petitioner being disturbed from his settled possession. On similar lines, the doctrine of merger is referred to, notwithstanding the express direction contained in the order dated November 6, 2015 that, upon a default in terms thereof being committed by the petitioner herein, the petitioner herein 'shall be evicted from the said premises as per the judgment and decree of the first Appellate Court ... dated 24-09-2008 which is upheld by this Court...' The order dated May 8, 2019 merely wanted to assess whether, in the light of the conditions imposed by the previous order of this Court of November 6, 2015, the respondents herein had acted appropriately or the respondents had thwarted any attempt at settlement or created any impediment to the petitioner herein making the payment as contemplated by the previous order of this Court. In such regard, the findings rendered in the impugned judgment are clear and categorical and do not call for any interference, particularly in this jurisdiction. 16. The Executing Court referred to the three questions and considered how the parties conducted themselves in the light of the directions contained in the order of November 6, 2015. The Executing Court concluded that it was the petitioner herein who was at fault; and, as a consequence, the petitioner herein was liable to suffer the resultant eviction. There does not appear to be any anomaly in how the Executing Court went about making the assessment. Cogent reasons have been rendered upon taking relevant considerations into account in such regard. 17. It must also be remembered that in this jurisdiction under Article 227 of the Constitution, it is the purity of the system which is of paramount concern to the High Court in seisin of a petition under such provision. Cogent reasons have been rendered upon taking relevant considerations into account in such regard. 17. It must also be remembered that in this jurisdiction under Article 227 of the Constitution, it is the purity of the system which is of paramount concern to the High Court in seisin of a petition under such provision. Article 227 of the Constitution is not a replacement for the revisional jurisdiction that has been curbed upon Section 115 of the Code of Civil Procedure, 1908 being amended. If a reasonable approach has been adopted by a court below upon following a fair procedure and cogent reasons are indicated in support of a conclusion after affording the petitioner before the High Court an opportunity to present his case, that would suffice for the extent of enquiry to be conducted by the High Court in exercise of its supervisory jurisdiction. 18. It should not be missed that in the petitioner's vain attempt to prolong the litigation, hypertechnical objections that were untenable before the Executing Court were pursued and numerous authorities cited to confuse the Executing Court and divert the focus from the three issues directed to be tried by this Court to extraneous matters that had no material bearing. The same antics have been resorted to in this Court, not the least of them being that no decree was passed for any execution to be levied. 19. It is distressing that such contention is raised at this stage despite the clear words in the order of this Court of November 6, 2015 that the appellate decree could be executed, subject to certain conditions. It is no longer open to the petitioner to raise the bogey of there being no decree. Such aspect of the matter was concluded by the order of November 6, 2015 and, in the absence of the relevant order being challenged, such ground was no longer available. 20. The further dishonesty on the part of the petitioner herein is evident from the petitioner claiming that the arrears of rent had been made good which prompted this Court to frame the first of the three issues in the order of May 8, 2019. 21. It is elementary that a decretal debt has to be discharged in accordance with the provisions of Order XXI of the Code. 21. It is elementary that a decretal debt has to be discharged in accordance with the provisions of Order XXI of the Code. No evidence was adduced by the petitioner herein before the Executing Court of having tendered any payment in terms of the applicable provisions. The Executing Court recorded that the execution proceedings were commenced on May 17, 2018, whereupon the judgment-debtor entered appearance on June 19, 2018. Though the petitioner herein as judgment-debtor contended that a demand draft of February 2, 2016 was handed over to one of the respondents, there was no material in support thereof and, at any rate, the procedure in accordance with Order XXI Rule 2 of the Code was not complied with nor was any alleged payment or adjustment certified or recorded in the manner prescribed. 22. More importantly, the second issue framed by the order of this Court of May 8, 2019 called for an adjudication on whether the default in settling the prevailing rent in terms of the previous order of this Court of November 6, 2015 was attributable to the petitioner herein. After taking into account the rival contentions on such issue, the Executing Court concluded that no meaningful steps were taken by the petitioner herein within reasonable time of the order dated November 6, 2015 being passed and only a token step was taken on February 4, 2016 on the verge of the expiry of the four-month period. On the basis of the material before it, the Executing Court appropriately found that the reason for the parties not being able to arrive at a settlement as to the prevailing rent was singularly attributable to the petitioner herein. There does not appear to be any illegality or material irregularity in the approach of the Executing Court in such regard or the reasons furnished in support of its finding. 23. In the light of the Executing Court having clearly held in favour of the respondents on all the three issues enumerated in the order of this Court of May 8, 2019, there is no further room for the petitioner herein to maneuver. 24. It must be recorded herein that at the initial stage when this petition was taken up a few months back by this Bench, it was indicated to the petitioner that there may not be much cheer for the petitioner in the present matter. 24. It must be recorded herein that at the initial stage when this petition was taken up a few months back by this Bench, it was indicated to the petitioner that there may not be much cheer for the petitioner in the present matter. Several adjournments were obtained thereafter, upon indicating that an undertaking would be furnished by the petitioner to unconditionally withdraw from the suit premises and make over possession thereof by a given date. Indeed, the dates of March 31, 2022 and April 15, 2022 were also indicated in Court though they may not have been referred to in the orders. However, in all fairness and since a final affidavit of undertaking had not been produced, the unequivocal submission on behalf of the petitioner was qualified in every order of this Court with a caveat that it was without prejudice of the rights and contentions of the petitioner. 25. But this petitioner has taken the matter way beyond the bounds of propriety. This mischievous petitioner has exploited the system and virtually brought the respondents to their knees. With the modern practice of professional advisers rampantly abetting litigants in resorting to needless multiplicity of proceedings and even indulging in grave acts of impropriety, the petitioner has made a mockery of the judicial system and has clung on to a property worth tens of crores of rupees without any justification or basis. Like all good things must end, this petitioner's continued occupation of the suit premises and any other property of the respondents appurtenant thereto must come to an immediate end and the further antics that the petitioner may be aided in adopting by way of third-party rights or like gimmicks must be bludgeoned through by the Executing Court in ruthlessly handing down the just desserts to this petitioner without further ado. 26. There is no merit in the petition which was obviously filed with ulterior motive and the oblique purpose of buying and wasting time and to thwart the respondents from rightfully obtaining the decretal property. 27. Indeed, the system owes an apology to the respondents for the matter having to wait for such a long time and for having indulged the petitioner despite the hopelessness of his cause. 27. Indeed, the system owes an apology to the respondents for the matter having to wait for such a long time and for having indulged the petitioner despite the hopelessness of his cause. It may bear repetition that the respondents had obtained a decree in the year 1990 but due to the interference in revision, the lower Appellate Court had to conduct a fresh adjudication which culminated in the same result. Despite this, two further counts of interference by this Court delayed the disposal of the lis. 28. One of the principal maladies of the justice delivery system in this country is its failure to appropriately deal with dishonest litigants espousing unworthy causes, whether by way of worthless claims or untenable defences. More often than not, the Judge is wary of imposing actual costs even though civil litigation in this country is now an extremely expensive proposition. Scheming litigants are often aided by expensive experts to exploit the inordinate delay in the court process - whatever may be the reasons for such delay - and keep justice at bay. As much as the justice delivery system needs to expedite the disposal of matters, it has also to come down heavily on frivolous claims and fanciful defences so that the message goes down loud and clear. Unfortunately, the check that was previously in place before a matter came to the Court, may no longer be there as professional interest, rather than the cause of justice, is the flavour of the times. 29. CRP No. 18 of 2019 is dismissed. 30. In addition to the decree and the costs for which the execution proceedings have been appropriately initiated, the petitioner will pay Rs. 10 lakh as costs of the present proceedings in this Court, which the respondents will be entitled to seek and obtain in course of the pending execution.