Calcutta High Court (Appellete Side)
Sri Gorakhnath Gupta vs Sri Pranab Kumar Dutta & Ors on 18 May, 2016
IN THE HIGH COURT AT CULCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 1203 of 2016
Sri Gorakhnath Gupta
-Vs.-
Sri Pranab Kumar Dutta & Ors.
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioners : Mr. Dhiraj Trivedi,
Mr. Amit Sharma,
Mr. Pankaj Ladia,
Ms. Abha Tiwari,
Mr. Subharangshu Trivedi.
For the Opposite Party : Mr. Jiban Ratan Chatterjee, Ld. Sr. Adv.,
Mr. Hironmoy Bhattacharya,
Mr. Mrinal Kanti Ghosh.
Heard On : 06.04.2016, 15.04.2016,
22.04.2016, 28.04.2016,
06.05.2016.
C.A.V. On : 06.05.2016.
Judgment Delivered On : 18.05.2016
Siddhartha Chattopadhyay, J.:
Having lost the legal battle in connection with Order No. 124 dated 29.02.2016 and Order No. 125 dated 08.03.2016 passed by the learned Judge 6th Bench, Presidency Small Causes Court at Calcutta in Ejectment Execution Case No. 172 of 2005 [arising out of Ejectment Suit No. 74 of 2003-C], the present petitioner/judgment debtor has come before this Court with a prayer to set aside the impugned order.
2. At the very outset I would like to say that the decree- holder/opposite party has 'moved heaven and earth' to get the fruits of the decree and his journey can be equated with an expedition to 'Mount Everest.' It was a long circuitous, assiduous journey by a roller-coaster.
3. I have given all 'my ears' at the time of argument of rival parties. However, in the application under Article 227 of the Constitution of India, the present petitioner/judgment debtor has ventilated his grievances, wherein he has explained the historical events of the dispute. The present decree-holder/opposite party had filed a suit against him for eviction on the ground of defaulter and reasonable requirement and got a decree from the learned Judge, 3rd Bench, Presidency Small Causes Court at Calcutta in connection with Ejectment Suit No. 74 of 2003-C after a contested full-fledged trial. At the relevant point of time the appellate authority was West Bengal Land Reforms Tenancy Tribunal and accordingly the present petitioner/judgment debtor has preferred an appeal bearing Miscellaneous Appeal No. 1347 of 2005 [O.A. (P) - 2163 of 2005] before Land Reforms Tenancy Tribunal in connection with Ejectment Suit No. 74 of 2003-C. The learned Land Reforms Tenancy Tribunal has dismissed the appeal and upheld the order of the learned Trial Court. But before filing of the appeal, the present petitioner/judgment debtor has filed a case before this Hon'ble Court bearing No. A.S.T. No. 2126 of 2005 claiming that he has been dispossessed without due process of law. Considering the urgency and the fact that it was not executed in accordance with law, Hon'ble Division Bench of this Court has passed an order on 20.12.2005 asking "the officer-in-charge of Muchipara Police Station to put back the petitioner into possession of the Decretal Premises No.
48., Nirmal Chandra Street, in course of this day." By virtue of the said order, the present petitioner got back his possession, which he had.
4. However, challenging the order of the learned Tribunal, the present petitioner/judgment debtor has filed a writ application bearing W.P.L.R.T. No. 851 of 2005. After a contesting hearing Hon'ble Division Bench has passed the order on 04.09.2006 "in our opinion, furthermore, after the decree was passed by the learned Tribunal and after the time was prayed for by the learned Advocate, and after such undertaking given by the appellant to vacate the premises in question within six months from the date of such order, at this stage there cannot be any ground to interfere with the order." Thereafter, another application was filed by the present petitioner/judgment debtor bearing W.P.L.R.T. No. 851 of 2005 with C.A.N. No. 7453 of 2006 wherein the Hon'ble Division Bench held on 25.09.2006 "in view of that we only direct that the matter so passed by this Court be treated as a decree and the learned Judge, 3rd Bench, Small Causes Court at Calcutta shall take necessary steps, if any application is being filed by the decree-holder/opposite party in accordance with the provisions of law." Against the order of the Division Bench, the disgruntled and tenacious present petitioner/judgment debtor preferred Special Leave Petition bearing No. 1663 of 2006 which was also dismissed on 16.10.2006 with a liberty "the special leave petition is dismissed. Liberty is given to the petitioner to move the High Court for extension of time to vacate subject to filing of an undertaking." Therefore, this chequered history of the dispute is such that from filing of the suit all along the opposite party/decree-holder is the winner in all steps. Thereafter, misfortune loomed large.
5. After the said decree being reached at its finality, the present opposite party/decree holder filed an application for execution. Learned Court below issue writ of possession but the concerned bailiff could not execute the same due to discrepancy in the schedule property. Curiously enough, when this petitioner/judgment debtor was evicted without due process of law in respect of the same schedule property (decretal property), he filed an application which is numbered as A.S.T. No. 2126 of 2005 and by virtue of the order dated 20.12.2005 his such possession (schedule of the suit property) was restored by order of the Division Bench of the Writ Court. When his such possession was restored on the self- same schedule property (decretal property), the present petitioner/judgment debtor had no grievance nor expressed his anguish regarding the schedule of suit property, which he has got back by order of the Hon'ble Division Bench. Since bailiff this time could not execute due to such defect (?), the decree holder/opposite party prayed for amendment as regards schedule of the plaint. From here the misfortune of the decree holder began to turn anti- clockwise. The said amendment application was heard at length and it was rejected by the learned Executing Court. That order was challenged before the High Court and a Co-ordinate Bench held the same view. The decision of the High Court was maintained by the Hon'ble Apex Court also where Special Leave Petition was dismissed. In the meantime, another application was filed under Sections 151 and 152 of the Code of Civil Procedure and the said execution case was transferred to learned Judge 6th Bench of Presidency Small Causes Court at Calcutta and after hearing, the said Court also rejected the same.
6. The present petitioner/judgment debtor has filed an application under Section 47 of the Code of Civil Procedure and accordingly a Miscellaneous Case No. 200 of 2008 was started. The learned Court below however rejected the said miscellaneous case of the present petitioner/judgment debtor and directed the opposite party to take steps and also fixed date of delivery of possession. Against that Order No. 124 dated 29.02.2016 and Order No. 125 dated 08.03.2016 passed in connection with Ejectment Suit No. 172 of 2005 [arising out of Ejectment Suit No. 74 of 2003-C], the present petitioner/judgment debtor has filed this revisional application.
7. At the very outset, the learned Counsel appearing on behalf of the present petitioner/judgment debtor contended that amendment as regards schedule of suit property was rejected by the Hon'ble Court and also by the Hon'ble Apex Court so there is no scope to execute the said decree. On perusal of the judgment in connection with C.O. No. 2027 of 2007, it appears to me that the Co- ordinate Bench held that the amendment proposed indicate that the petitioners were not merely making formal alterations and/or changes in the description of the suit property. In the plaint, the plaintiff (herein opposite party) sought recovery of one room on the first floor at the Premises No. 48., Nirmal Chandra Street, as per the description in the schedule and by the proposed amendment petitioners were purporting it to incorporate "rooms in occupation of the plaintiffs" in Premises No. 48., Nirmal Chandra Street, Calcutta-700012. But while coming to that conclusion, Hon'ble Co- ordinate Bench also held "the stand that the bailiff could not execute the writ of possession by reason of error in description of the property, is difficult to appreciate. If the bailiff had executed the writ of possession on 19th December, 2005, as contended by the plaintiffs/petitioners, mis-description of the suit property cannot now be the ground for not delivering the possession of the suit property." Therefore, before coming to the conclusion that the amendment is to be rejected, the same Co- ordinate Bench also held the above views for coming to a decision in that regard. The said judgment of the Co-ordinate Bench has been affirmed by the Hon'ble Apex Court in connection with special leave to appeal Civil Appeal No. (S) 21838 of 2007 and held "the Special Leave Petition is dismissed." Therefore, finding of the Co-ordinate Bench practically has been re-appreciated by the Hon'ble Apex Court also.
8. After passing of the judgment of the Co-ordinate Bench as well as of Hon'ble Apex Court, much water has flown under the bridges. Without complying with the order and direction of the Hon'ble Apex Court in connection with Special Leave Petition bearing No. 1663 of 2006 dated 16.10.2006 the present petitioner/judgment debtor has filed another suit bearing Title Suit No. 964 of 2007 against the decree holder/defendant claiming a decree for declaration, declaring that the plaintiff (present petitioner) is a tenant in respect of the schedule 'C' premises and also for a declaration that the decree passed in Ejectment Suit No. 74 of 2003- C is null and void being passed for partial eviction of the plaintiffs entire tenancy as laid out in schedule 'C' and as such the same is in executable etc. In the plaint, filed by this petitioner/judgment debtor, he has mentioned the brief history of the case right from the filing of ejectment suit to the decisions of the Hon'ble Apex Court in connection with the decree as well as in connection with the amendment applications.
9. In the C.A.N. No. 7453 of 2006 the Division Bench held "in view of that we only direct that the matter so passed by this Court be treated as a decree and the learned Judge, 3rd Bench, Small Causes Court at Calcutta shall take necessary steps, if any application is being filed by the decree-holder/opposite party in accordance with the provisions of law." Now, I am to consider what is his prayer in T.S. No. 964 of 2007, filed by the present petitioner/judgment debtor. He has claimed his tenancy right in respect of Schedule 'C' premises which speaks "ALL THAT two rooms, kitchen bath and privy and sky open verandah lying and situates on the first floor of the house and Premises No. 48., Nirmal Chandra Street, P.S. Muchipara, Kolkata - 700012 [marked with blue colour and yellow colour] is butted and bounded as follows:-
ON THE NORTH : By 3 rooms mentioned in Schedule 'B' above and which the Proforma Defendant Surrender to defendants; ON THE SOUTH : Partly by stair case and partly by a narrow 'Gali' beyond which 45, Nirmal Chandra Street; ON THE EAST : By a narrow 'Gali' beyond which I, Dhiren Dhar Sarani;
ON THE WEST : By Nirmal Chandra Street."
10. Now the question is if the tenant himself knows his tenancy then question of mis-description of schedule property can arise or not. It appears that by filing affidavit-in-chief in connection with T.S. No. 964 of 2007 the present petitioner (as plaintiff in that case) mentioned Vide Paragraphs:-
(11). "I state that the Defendants No. 1 to 4
wrongfully and falsely filed a suit against me in the Presidency Small Causes Court at Calcutta for my eviction in respect of ALL THAT one room only out of my tenanted portion for eviction on the grounds stated therein and said suit has been registered as Ejectment Suit No. 74 of 2003- C. (12). I state that I as Defendant in the said Eviction Suit entered appearance in the said suit and filed my written statement to contest the said suit stating inter alia, that the suit as filed was not maintainable in respect of my tenanted premises and clearly disputed with regard to the extent of tenanted premises, which in fact is in respect of two rooms, one small room, one kitchen, sky open verandah and bath room and privy more fully described in Schedule "C" of the plaint. (Emphasis supplied by me.) (13). I state that a local inspection was held in the said Ejectment suit by the order of the Court and the learned Advocate Commissioner submitted his report, whereby the said report of the learned Advocate Commissioner corroborated my averment that I am not a tenant in respect of one room only as wrongfully laid out in the schedule of Ejectment Suit No. 74 of 2003-C."
(Emphasis supplied by me.)
11. Therefore, by filing the Title Suit No. 964 of 2007 he has admitted that in the Ejectment Suit No. 74 of 2003-C he has admitted that his tenanted premises is in respect of two rooms, one small room, one kitchen, sky open verandah and bathroom and privy. A Local inspection was held and the learned Advocate Commissioner also submitted that the said report which justifies that the present petitioner's tenancy is to the extent of two rooms, one small room, one kitchen, sky open verandah and bathroom and privy. The said Commissioner's report was not challenged by anybody. The Schedule "C" premises as shown by the present petitioner as plaintiff in Title Suit No. 964 of 2007 is also the same. (Emphasis supplied by me.). So, there is little scope to say there was any mis-description of suit property. Since the present petitioner as defendant admitted in ejectment suit that his tenancy consists of two rooms etc. The same tenancy right he has prayed for by filing Title Suit 964 of 2007. This apart, by virtue of the order passed by this Hon'ble Court, his such possession was restored once. He never expressed his anguish regarding the mis-description of the suit property. It further appears from his cross-examination as P.W. 1 in Title Suit No. 964 of 2007 (recorded on 14.07.2015) wherein he admitted categorically "I have not taken the plea that there was mis-description of the boundaries." He further admitted in course of cross-examination in connection with Title Suit No. 964 of 2007 (recorded on 29.07.2015) that "I have lost the eviction suit in respect of suit premises before the learned Judge 3rd Bench, Presidency Small Causes Court at Calcutta, Land Reforms Tenancy Tribunal Calcutta, Calcutta High Court and Supreme Court of India, New Delhi. I want to restore my tenancy right in the suit premises. I have not vacated the suit premises despite having an order of the Hon'ble Supreme Court. I would not vacate the suit premises. After being evicted by the Hon'ble Supreme Court from the suit premises, I still hold the status of tenant." Be it mentioned, that the suit premises mentioned in his evidence is in respect of "C" Schedule property of Title Suit No. 964 of 2007 and the description of the suit property has been mentioned earlier.
12. At the time of argument learned Counsel appearing on behalf of the present petitioner has referred to a decision reported in AIR 2002 Cal 108 (Mehta Suraya & Etc., Applicants -Vs.- United Investment Corporation), wherein a Co-ordinate Bench held unless the stand and the decree on admission is amended, the decree could not be amended if such amendment cannot be made and the order allowing such amendment is a nullity or void then the consequent amendment under Section 152 would also be rendered void and a nullity and also reiterated the same proposition that the Executing Court cannot go beyond the decree. It is axiomatic truth that the Executing Court cannot go beyond the decree.
13. By racking my brain, I find a decision reported in 2002 (2) CHN 134 in connection with (Sailendranath Tapaswi & Ors. -Vs.- Netai Sundar Acharya). In the said decision, relying on the decision of the Supreme Court in the case Tiko (SMT) & Ors. -Vs.- Lachman reported in 1995 Supp. (4) SCC 582, a Co-ordinate Bench held "where after the passing of a decree for redemption of mortgage, mortgagee filed an application before the Executing Court alleging that the area of land mentioned in the decree was wrongly recorded. There upon, the mortgagor filed an application before the Executing Court for amendment of plaint and decree to correct the area and description of the land. The Executing Court dismissed the application holding it would not go beyond the decree and the High Court confirmed the order in revision. In such circumstances, the Supreme Court held that though technically speaking the Executing Court could not go beyond the decree, the Executing Court happened also to be the Court to pass the decree and direct to treat the application as and one made before the original Court which passed the decree and to dispose of the same in accordance with law." In the said judgment, the Co-ordinate Bench of this High Court held that such technical objection should not be entertained. Perhaps it is needless to say, that procedure is the handmaid for justice and unless the procedure touches upon jurisdictional issue, it should be moulded to sub-serve substantial justice. Thus, the technicalities should not stand in the way to sub-serve substantial justice. This Court is armed with a decision 1990 (1) CLJ 550 (Kamala Bala Garai -Vs.- Samar Sen). In the said judgment "contention of the petitioner was not required to execute the decree to obtain possession of the premises laid out the petitioner's maternal grandfather Haricharan Bose since the judgment debtor of said suit delivered amicable possession of the petitioner and, thereafter, the opposite party was inducted in the said premises......."
"It may be noted that Ejectment Suit No. 1364 of 1970 was decreed on 06.01.1972 and the opposite party came in possession of the disputed premises sometimes thereafter. Therefore, the contention of the petitioner cannot be lightly brushed aside. It may not be over-looked that the opposite party happens to be the grandson of Hari Charan Bose. The heirs of Hari Charan, who were judgment debtors in Title Suit No. 1364 of 1970, were all relations of the opposite party and therefore, it was not unlikely that they parted with possession of the decretal property amicably in favour of the landlady having regard to the fact that the said property was again being demised to their relation Samar Sen.
The conduct of the opposite party is not very fair either. In the written statement filed in Ejectment Suit No. 433 of 74 (Annexure B) the defendant Samar Sen, the present opposite party, vaguely challenged the description of the property involved in the suit. In paragraph 9 he only said that he denied the correctness of the description of the suit premises. He was the best person to know as to what was the subject matter of the tenancy. Instead of spelling out the description of the property he only advanced the vague allegation."
14. Ultimately the Division Bench came to the finding that since the petitioner contends "that he adopts or rather incorporated the very schedule as given by the judgment debtor in the said application in her petition for amendment of the decree and the plaint and, therefore, the judgment debtor cannot raise any objection as to the identity of the property."
15. In this case the present petitioner once got back possession of the suit property by order of the High Court and thereafter lost the case and to frustrate the result of the said case, he has filed a Title Suit No. 964 of 2007 wherein he has described the decretal suit premises as his 'tenanted premises'. Therefore, the mis-description of the property as alleged by the present petitioner does not lie in his mouth. Argument advanced by the learned Counsel appearing on behalf of the petitioner is as 'unprofitable as smoke.' There was also a celebrated judgment of our Hon'ble Apex Court in connection with 'C.A. Niamat Ali Mollah -Vs.- Sonar Gaon Housing Co-operative Society Limited' reported in AIR 2009 SCC 225 where the Hon'ble Apex Court held "It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order."
16. Now the time is up to 'cross the Rubicon' and so I am to sum up:-
(a) Decree passed by the learned Trial Court was upheld by the W.B.L.R.T.T., confirmed by the Division Bench of this High Court as well as by the Hon'ble Apex Court. The Hon'ble Apex Court directed the present petitioner to give undertaking to vacate the suit premises but that was not complied with.
(b) When the first appeal was pending, the present petitioner/judgment debtor was evicted without due process of law and for which he has filed an application for restoration of his possession and the Division Bench of this Court came to his (judgment debtor) aid and his tenanted portion was restored accordingly. He has not expressed his grievance or anguishment over the said restoration of possession.
(c) The judgment debtor/present petitioner filed written statement in the Ejectment Suit No. 74 of 2003-C described his tenancy. At his instance, Local Inspection Commission was held in that ejectment suit filed by the present opposite party and the report of the Commissioner speaks that the judgment debtors tenanted premises tallies with his said suit filed by the opposite party. The said Commissioner's report is not challenged by anybody.
(d) Yet at the time of execution of the decree which reached at its finality by the Hon'ble Apex Court, the Court bailiff submitted a report that due to mis-
description of suit property, it could not be executed.
(e) Amendment application was filed by the decree- holder but that was rejected by the Trial Court as well as by the High Court. But while rejecting the amendment application the Hon'ble Division Bench held "the stand that the bailiff could not execute the writ of possession by reason of error in description of the property, is difficult to appreciate. If the bailiff had executed the writ of possession on 19th December, 2005, as contended by the plaintiffs/petitioners, mis- description of the suit property cannot now be the ground for not delivering the possession of the suit property."
(f) That the said order of the Division Bench was upheld in toto by the Hon'ble Apex Court.
(g) Application under Section 47 of the Code of Civil Procedure was filed by the present petitioner/judgment debtor and that was also dismissed. Again Trial Court directed to execute the writ of possession.
(h) In the meantime, the judgment debtor/present petitioner as plaintiff filed a Title Suit No. 964 of 2007, wherein he has prayed for his tenancy right over the self- same suit premises. Therefore, question of mis-description does not arise. (Emphasis supplied by me.)
(i) In course of evidence in connection with Title Suit No. 964 of 2007 he has asserted that the suit premises of Ejectment Suit No. 74 of 2003-C is the subject matter of his suit Title Suit No. 964 of 2007.
(j) Once possession was restored to the judgment debtor/petitioner over the self-same suit premises at his instance, then how could he challenge the mis-description of suit premises.
(k) Evidence led by judgment debtor/present petitioner speaks that his tenanted portion as mentioned in his Title Suit No. 964 of 2007 is exactly the same which is the subject matter of the suit premises of Ejectment Suit No. 74 of 2003-C.
17. When the Hon'ble Apex Court upheld the rejection of amendment application, this changed circumstances (story of title suit filed by the present petitioner, evidence led by him in connection with that title suit etc.) were not there. On the basis of the changed circumstances and admission by the defendant/judgment debtor/petitioner in his plaint and also in his evidence, I am of the view that there is no mis-description of the property because tenant himself knows his extent of tenancy and execution can be done on the basis of his admitted tenancy, which he got back on the basis of the order of this Hon'ble Court.
18. Basing on the decisions as mentioned above and the changed circumstances, I am of the view that there is no apparent error or mistake committed by the learned Court below in connection with the order dated 29.02.2016 and 08.03.2016 passed in Ejectment Suit No. 172 of 2005. Any contrary view would be as good as a 'sailor on a horse back.'
19. The revisional application became a fool's errand. In the result, the revisional application stands dismissed with cost of Rs.10,000/-.
20. Let a copy of this judgment be sent to the learned Court below for their information and taking necessary action in accordance with law.
21. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.