Calcutta High Court
Sri Bibhuti Bhusan Dutta vs Dr. Samarendra Nath Misra on 18 June, 2002
Equivalent citations: (2003)1CALLT209(HC)
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. This appeal is directed against Order No. 31 dated 12th December, 1997 passed in Misc. Case No. 1610 of 1995 by the learned Judge. City Civil Court Calcutta, Twelfth Bench. The said Misc. Case arose out of a proceeding under Order XXI Rule 99 of the Code of Civil Procedure (CPC).
Briefly stated, the facts are as follows :-
2. Pursuant to an ex parte decree against one Archana Misra, the petitioner Bibhuti Bhusan Dutta was dispossessed in course of execution. According to the applicant, the ex parte decree against Smt. Archana Misra was obtained by the plaintiff Samarendra Nath Misra by practicing fraud and collusion upon the Court. Inasmuch as the applicant was the tenant in respect of the suit premises after having the talk of tenancy with Dr. Misra, who had pointed out that the receipts would be granted by his wife and accordingly, the receipts used to be granted by the wife of Dr. Misra being Smt. Archana Misra. The said Smt. Archana Misra had instituted a suit for eviction against the applicant being suit No. 487 of 1990 in the City Civil Court at Calcutta, which was being contested, by the applicant. During the pendency of the said suit, Dr. Misra, plaintiff-decree-holder instituted a suit for eviction against his wife Smt. Archana Misra in the City Civil Court at Calcutta being Ejectment Suit No. 113 of 1993. The applicant/ appellant was inducted as tenant on June 15, 1983. The suit file by the plaintiff/respondent herein was decreed ex parte against Smt. Archana Misra on 2nd of August 1994. The bailiff submitted a report on 24th November 1984 that the execution was resisted by the wife Smt. Archana Misra. He apprehended breach of peace. Therefore, returned the writ unexecuted. On 25th November, 1994, on an application under Order XXI Rule 97 CPC, police help was granted by the Court. In execution, the appellant/applicant was dispossessed. Thereafter, the Ejectment Suit No. 487 of 1990 filed by Smt. Archana Misra was dismissed for non-prosecution, on the prayer of Smt. Archana Misra, on 31st of June, 1995. The appellant/ applicant filed an application under Order XXI Rule 99 read with Section 151 CPC being the present Misc. Case No. 1610 of 1995 on 19th July, 1995. The Misc. case was dismissed on 30th March, 1996. F.M.A. 1256 of 1997 was filed before this Court on 25th November, 1995. The said appeal was allowed on 19th of September, 1997, remanding the case to Court below. On remand, the order appealed against was passed on 12th of December, 1997 rejecting the said application under Order XXI Rule 99 CPC.
Submission of the Appellant:
3. The learned counsel for the appellant points out that under Order XXI Rule 99 of the Code of Civil Procedure, the relief can be had by a person who is not a judgment-debtor. The appellant has sought to point out that he was not the judgment-debtor. In other words, according to him, the appellant is not bound by the judgment. In order to bring his contention home, the appellant had attempted to make out a case that he was a tenant under the plaintiff Dr. Samarendra Nath Misra on whose behalf the receipts were granted by his wife Smt. Archana Misra. He was not a tenant under Smt. Archana Misra and thereby a sub-tenant in the premises and as such, the decree could not be binding upon him.
3.1. In support he had also attempted to make out a case that the ex parte decree against Archana Misra was obtained by Dr. Samarendra Nath Misra fraudulently and in collusion between themselves. In support he had pointed out to the materials on record and took us through it. He has pointed out that initially Smt. Archana Misra appeared in the suit but did not contest the same and allowed the suit to be decreed ex parte. At the time when the suit was decreed, the relationship of landlord-tenant and between Dr. Samarendra Nath Misra and Smt. Archana Misra was not established. There was no material to prove that Archana Misra was a tenant under Dr. Samarendra Nath Misra, the plaintiff. According to him, even in respect of an ex parte decree, a plaintiff has to establish his case. The Court cannot pass a decree until the case of the plaintiff is established. In the present case, a case was sought to be established through collusion between the plaintiff and defendant who did not appear in the suit.
3.2. He has also pointed out that in the plaint the plaintiff had contended that he had let out the premises to his wife at a rent of Rs. 800/- (Rupees eight hundred only) per month. It is also one of the grounds, which hints at the collusion between the plaintiff and the defendant. Inasmuch as a tenant would not sublet a premises for the same rent, which he pays to the landlord.
3.3. He also points out that the learned trial Court, in fact, has not entered into the question raised by the applicant with regard to the fraud and collusion. According to him, under Rule 101 of Order XXI of the Code, all questions raised by the parties are to be decided in the proceeding itself and not by a separate suit. Since this question has been raised, it was incumbent upon the Court to enter into the said question and decide the same as to whether there was any fraud and collusion. But the Court had proceeded only on the basis of filing of a proceeding by the appellant before the Rent Controller against Smt. Archana Misra. There he had admitted Smt. Archana Misra as his landlord. Therefore, he is estopped from contending that he is a tenant under Dr. Misra. But the Court had overlooked the question that he had alleged fraud and collusion between the plaintiff and the defendant perpetrated upon the Court in obtaining the decree in order to evict the appellant/applicant.
3.4. He also points out from the statements made by PW 1 Dr. Samarendra Nath Misra that he had admitted that he had signed on the counterfoil of some of the receipts. He has further pointed out that even during the course of this proceeding, Dr. Misra had not produced any document to show that Archana Misra was a tenant under him. He purported to show certain receipts, which were for the period from 1991. But those were not produced before the Court to mark them Exhibit. The question of fraud and collusion was staring on the face of the proceedings. This ought to have been gone into by the learned trial Court. Therefore, the judgment cannot be sustained.
4. No one appears on behalf of the respondents. From the record, it appears that one earlier occasion when the earlier appeal was decided by this Court, no one appeared on behalf of the respondents. The matter was hanging in the list for a long time.
Scope of Order XXI Rule 99 CPC :
5. After having heard the learned counsel for the appellant, it appears that, in fact, the appellant had sought to make out a case to the extent that the decree is not binding upon him. The provisions of Order XXI Rule 99 CPC specifically provides the relief to persons other than judgment-debtors dispossessed of immovable property in execution of a decree.
5.1. The provisions of Order XXI Rule 99 CPC is attracted where (i) person other than the judgment-debtor (ii) is dispossessed of immovable property (iii) covered by the decree (iv) in execution thereof. Therefore, the first condition is that the applicant shall be a person other than judgment-debtor. In other words, the decree is not binding upon him. To be precise, the applicant is not bound by the decree. The second condition is that he is to be disposed of the immovable property and the third condition is that such property must be subject matter of the decree and the fourth condition is that such dispossession is effected in-execution of such decree. In order to determine the question the point required to be determined is as to whether the applicant is in possession of such property on his own account or on account of some person other than judgment-debtor. (Bhim v. Chakradhar, 34 CWN 577; Narayan v. Jharu . But, however, while dealing with such an application, the Court cannot go behind the decree.
5.2. In order to bring the case within the scope of Order XXI Rule 99 CPC, the appellant has sought to contend that he is not a tenant of Smt. Archana Misra, though the receipts were granted by Smt. Archana Misra. According to him, it was at the behest of Dr. Samarendra Nath Misra, Smt. Archana Misra used to grant those receipts. The initiation of a proceeding before the Rent Controller against Smt. Archana Misra might be a factor which might go against the appellant to show that he was a tenant of Smt. Archana Misra. But that would not be a conclusive proof to disentitle the appellant from pleading that he was tenant under Dr. Samarendra Nath Misra in a proceeding under Order XXI Rule 99 of the Code where in view of Rule 101 of Order XXI of the Code the question including questions relating to right, title and interest in the property arising between the parties to a proceedings are to be gone into.
Scope of Order XXI Rule 101 CPC :
5.3. Rule 99 Sub-rule 2 prescribes that upon such an application being made, the Court has to proceed to adjudicate upon the application in accordance with the provisions contained therein. Rule 101 contemplates that all questions arising between the parties in a proceeding under Rule 99 relevant to the adjudication of the application shall be determined by the Court and not by a separate suit. All questions referred to 101 are inclusive and not exhaustive. The inclusiveness is indicated in the Rule itself by express words. It includes questions relating to right, title or interest in the property. For the purpose of determining such questions, the Court shall be deemed to have jurisdiction to decide such questions notwithstanding anything contrary contained in any other law for the time being in force. The question of title, if raised, can be gone into within the scope of this rule and be decided by the Executing Court (Shantilata v. Nand Kishore, ). In course of deciding such question, the question with regard to the right of tenancy or relationship is also a question, which can be gone into.
5.4. In this case, it is the right to or interest in the property, namely, right of a tenancy or interest in tenancy between the appellant and Dr. Samarendra Nath Misra, the decree-holder, was in question that is required to be determined. In the present case, it appears that such question has not been gone into. This question can be gone into only by a proof that the appellant was a tenant under Smt. Archana Misra and not under Dr. Samarendra Nath Misra. But from the records, we find that no attempt was made to find out the proof that Smt. Archana Misra the landlord (lady) of the appellant. The appellant had been attempting to prove that Smt. Archana Misra was not his landlord (lady). The initial onus, therefore, is on the appellant. It is a case of negative proof that Smt. Archana Misra, the judgment-debtor, was not his landlord (lady). Whereas Dr. Misra claimed Smt. Archana Misra to be his tenant, which he had established by obtaining the ex parte decree against Smt. Archana Misra. The decree is definitely binding upon Smt. Archana Misra. It would be equally binding if the appellant happens to be a tenant under Smt. Archana Misra. The ex parte decree would not bind the appellant with regard to his contention that he was not a tenant under Smt. Archana Misra but under Dr. Misra. Thus, examination of this question would not amount to going behind the ex parte decree sought to be executed. Inasmuch as this question was never and could not have been an issue in the suit between Dr. Misra and his wife Smt. Archana Misra. Therefore, in view of Rule 101 of order XXI CPC, this question is required to be gone into and determined in a proceeding under Rule 99 Order XXI CPC.
5.5. In order to prove that one is a landlord, the definition of landlord defined in Section 2 (d) of the West Bengal Premises Tenancy Act, 1956 (WBPT Act) has to be determined. As defined, a landlord includes a person, who for the time being is entitled to receive the rent or but for a special contract would be entitled to receive the rent. Under Section 116 of the Evidence Act, a tenant is precluded from questioning the title of the landlord. But Section 116 of the Evidence Act is not exhaustive, Section 116 Evidence Act does not exclude the tenant from questioning the derivative title of others. Here in this case, admittedly, Dr. Misra is the owner of the property. He appears to have counter-signed some of the receipts. Whether such counter-signature would construe to mean that Dr. Misra was the landlord on whose behalf rent was being collected by Smt. Misra or whether it was a sub-tenancy within the knowledge of Dr. Misra or whether Smt. Archana Misra had derived title to be the landlord of the premises let out to the appellant. Such a distinction was recognized in Bhan Madan v. Second Additional District Magistrate, ; Pal Singh v. Sinder Singh, .
5.6. Under Section 101 of the Evidence Act, when a person desires the Court to give judgment as to any legal right dependent on the existence of certain facts, then it is that person, who asserts such facts, must prove that such facts exist. This is what is known as burden of proof and it lies on the person, who would fail if no evidence at all were given on either side. But the general rule of evidence is that, if, in order to make out a title, it is necessary to prove a negative, the party who avers a title must prove the title (Pulin Behari v. Watson & Company, 9 WR 190 at p. 192; Moshuq v.
Hurunnissa, AIR 1929 O 204). In some cases allegations of claim are made in negative form either by the plaintiff or in defence by the defendant. Where a claim or defence rests upon negative allegation, one asserting such claim or defence is not relieved of the onus probandi by reason of the form of the allegation or inconvenience of proving a negative. But, in such cases a less amount of proof than is usually required, may avail. Such evidence as renders the existence of negative probable, may change the burden to the other party. When a negative fact is to be proved, the party can be expected to do nothing more than to substantiate his allegation prima facie (Krishna Swami v. Secretary of State, AIR 1943 M 15). The term negative and affirmative after all is relative and not absolute. In dealing with such a question, it is to be examined on the basis of the facts and circumstances of a case (Hem Chandra v. Mati Lal, 37 CWN 174). Therefore, when Rule 101 Order XXI CPC requires determination of interest or title, all these questions are required to be gone into. These questions cannot be overlooked or ignored simply because of filing of a proceeding before Rent Controller.
5.7. In the facts and circumstances of the case, the Court had to see whether the appellant has been able to discharge prima facie the burden relating to negative proof and whether the burden lay upon Dr. Misra to prove the positive or affirmative proof that Smt. Archana Misra was tenant of Dr. Misra (Section 101 and 102 of Evidence Act). It is also required to be examined as to whether the burden is shifted and whether the plaintiff Dr. Misra has attempted to discharge such burden. It could have been done by production of rent receipts. The plaintiff/Decree-holder appears to have sought to show some receipts. But those were not produced or marked Exhibits in the proceedings. It was also pointed out that those receipts were starting from 1991 on-wards. The question relates to the period since 1983. But no attempt appears to have been made to show that the alleged tenancy of Smt. Archana Misra had commenced before 1983, which was alleged to have commenced since 1975. It was he who could have produced the relevant receipts but non-production thereof can impel the Court to draw inference adverse to that of the plaintiff since despite having power to produce such documents, those were not produced or withheld, (Section 114(g) Evidence Act). This question ought to have weighed with the Court below in order to decide the question between the parties, in the peculiar facts and circumstances of this case. Inasmuch as, such a question relates to the determination of right or interest between the parties, which cannot be decided by a separate suit. Therefore, it was incumbent upon the said Court to enter into such questions and decide the same.
How far the Court goes behind the decree ? :
6. It is a settled proposition of law that the Executing Court cannot go behind the decree. It cannot enter into the question that the decree sought to be executed was obtained by fraud or was collusive. Therefore, the question that was raised on behalf of the appellant that the decree obtained ex parte between the husband and wife during the pendency of the suit for eviction between the wife and the applicant/appellant is fraudulent and collusive cannot be gone into. But, when it is alleged that in an attempt to execute the decree, possession was obtained through collusion between the decree-holder and judgment-debtor with a view to dispossess a third party, it is open to the Court to go into such question. At the same time, without going into the validity of the decree in view of Rule 101, the Court can very well examine the title or interest in the property as between the appellant/applicant and the decree-holder, which was not in issue in the suit, the decree whereof is being executed.
6.1. At the same time, the appellant had raised the question of fraud. He had drawn our attention to the materials relating to the passing of the ex parte decree. We find that a notice to quit was issued be Archana Misra on 1st of September, 1992, which was marked Exhibit 1. The acknowledgment due card was marked as Exhibit 2. From the ex parte decree, it appears that the Court had proceeded to decree the suit only on the basis of these exhibits without entering into any proof that there was a relationship of landlord and tenant between the parties. This question brings a different dimension when such decree is sought to be executed against a third party. The applicant was not made party to the proceeding where the tenant happens to be the wife of the landlord and in a case, where the wife, though appeared in the suit, did not contest. The situation aggravates further when a third party dispossessed in execution raises a question of fraud and collusion in obtaining police help for his dispossession.
6.2. The question pertaining to the validity of the ex parte decree and its binding effect between the parties the suit cannot be gone into within the scope of Rule 99 CPC. True it is, but where such decree is obtained by practicing fraud upon Court, when such question has been brought before the Court, the question comes within the exception of the principle that the Executing Court cannot go behind the decree, when a third party claims that the decree is not binding upon him in certain circumstances. When fraud is alleged, the Executing Court can examine the same even if it amounts to go behind the decree. Inasmuch as, fraud unravels everything. One cannot be permitted to reap the benefit of a fraudulently obtained decree even on a sound principle of law that the Executing Court cannot go behind the decree, in a case where it is claimed that the decree is not binding upon the person dispossessed in view of Rule 101 Order XXI CPC. Inasmuch as, in that event, the Court would be an idle onlooker to the abuse of its jurisdiction. Unscrupulous people would then take advantage of the judicial system. Judicial process cannot be utilized to aid fraudulent activities of a litigant. In such a case, the Court has to rise to the occasion and protect and preserve its purity. The purity of justice cannot be permitted to be soiled or polluted. It is the self-preservation of the justice delivery system. Unless it is preserved, people will loose faith in the judiciary and unscrupulous people will take advantage of their fraudulent activities, making a mockery of the judicial system. These are cases where the Court has to activate itself to find out whether its process has been abused and advantage of any fraudulent activity is obtained by any party by acting fraud upon Court.
6.3. It is not a going behind the decree. But it is an examination by the Court as to the executability of decree. In other words, it is an exercise to prevent abuse of its process and advance the self-preservation of the justice delivery system. It is incising and analyzing the executability of the decree. Inasmuch as, a decree obtained by fraud is a nullity, a decree, which is a nullity is inexecutable. If the Court executes a decree, which is nullity, it exercises its jurisdiction in void. Therefore, it is a question of examining the jurisdiction of the Executing Court as to whether it could execute the decree. If in execution of such a decree, which is nullity, someone is dispossessed, then it cannot be said that he was dispossessed in execution of a decree. The condition that dispossession is to be made, in-execution of a decree must be a decree which is not a nullity, must be a decree which is not in-executable. Therefore, for the Court, it is necessary to examine such question. Reference may be made to Mehta Suraya v. United Investment Corporation, , wherein similar view was taken following the ratio laid down in Official Trustees of W.B. v. Schindra Nath Chatterjee, and Urban Improvement Trust v. Gokul Narayan, .
6.4. Then it is pointed out that in course of execution, it is the wife who resisted the execution with reference whereof police help was obtained. This fact is to be considered from the angle that the applicant/appellant was in possession of the suit premises and whom the wife had also intended to evict by filing a suit as back as in 1990 then pending. There cannot be any earthly reason for the wife to resist eviction of such person, in a suit for eviction on the ground of reasonable requirement including that of the wife and that too in a case where the premises was let out at a rent of Rs. 8000/- per month, which she alleges to pay to her husband. It may also be noted that the present suit was filed long after and during the pendency of the suit for eviction filed by Smt. Archana Misra and that she did not raise any objection to the application under Order XXI Rule 87 CPC, thereafter, and that in execution, the appellant was evicted and not the wife, judgment-debtor, on whose resistance Order XXI Rule 97 CPC was initiated. Therefore, there are materials to suspect that the parties might have acted fraud upon the Court in securing dispossession of the appellant.
6.5. The question of collusion in between the judgment-debtor and decree-holder in obtaining an order under Order XXI Rule 97 CPC for the purpose of evicting the appellant/applicant is alleged to be collusive and fraudulent. Entering into this question would not amount to questioning the decree or going behind the decree. If the order for police help is obtained in collusion between the plaintiff and the judgment-debtor by practicing fraud upon Court in order to evict someone else, the said question can very well be gone into. If the resistance was given by the applicant, in that event, Order XXI Rule 97 could have been initiated against him. But, it was brought about through collusion between the judgment-debtor and the decree-holder, who happened to be the husband and wife and in a case where the wife had already initiated a suit for eviction for the appellant/ applicant. Therefore, these questions, which can be gone into when raised in a proceeding under Order XXI Rule 97 in view of Rule 101 CPC.
6.6. But, however, we do not propose to enter into those aspects of the matter which is dependent on determination of certain facts.
Conclusion :
7. Thus, it appears that the appellant has been able to make out, at least, a case that there were some substance in the contention of the appellant, which ought to have been determined in view of Rule 101 of Order XXI of the Code. From the Judgment and Order appealed against, we find that the learned trial Court has not entered into all these questions and did not determine the same and had purported to proceed only on the basis of the alleged admission.
7.1 In the circumstances, we cannot but disagree with the decision and set aside the same and remand the case to the trial Court for determining the questions in accordance with law having regard to Order XXI Rule 101 CPC giving opportunity to both the parties for adducing further evidence, if they are so advised, and decide the case afresh, in the light of the observations made above, after framing the relevant issues with regard to the question of relationship of landlord and tenant between the appellant and Dr. Samarendra Nath Misra and the question of collusion and fraud between Dr. Samarendra Nath Misra and Smt. Archana Misra in obtaining the dispossession in execution of the decree and to its executability.
Order :
8. In the result, the appeal succeeds and the Order No. 34 dated 12th December 1997 passed in Misc. Case No. 1610 of 1995 by the learned Judge, City Civil Court, Calcutta is hereby set aside and Misc. Case No. 1610 of 1995 is hereby remanded to the learned trial Court for the purpose of deciding the same afresh in the light of the observations made hereinabove.
8.1. The learned trial Court shall decide the case within a period of six months from the date of communication of this order after giving opportunity to the parties.
8.2. Let the records, if already come, along with a copy of the judgment be sent to learned trial Court within a period of one month from date.
The appeal is, thus, allowed.
There will be no order as to costs.
J. Banerjee, J.
I agree.