Calcutta High Court (Appellete Side)
M/S. Autocade vs Smt. Ranjita Roy & Anr on 13 May, 2010
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Present:
The Hon'ble Justice Jyotirmay Bhattacharya C.O. No. 872 of 2010 M/s. Autocade
-Vs-
Smt. Ranjita Roy & Anr.
For the Petitioner : Mr. Aniruddha Chatterjee, Mr. Swarup Banerjee.
For the Opposite : Mr. Bidyut Kr. Banerjee, Party. Mr. Mintu Kr. Goswami. Judgment On : 13-05-2010.
The judgment debtor/opposite party no.2 has obstructed the execution of an eviction decree passed by the learned Trial Judge on 31st March, 1993 which was affirmed upto the Hon'ble Supreme Court, by setting up the petitioner herein who filed an application under Order 21 Rule 97 read with Rule 101 of the Civil Procedure Code for protecting his possession in the suit property which he allegedly received from the judgment debtor in pursuance of a franchise agreement entered between the judgment debtor and the petitioner herein on 18th September, 2002. The petitioner also claimed that his right to remain in possession in the suit property arising out of the said franchise agreement was further strengthened by a subsequent letter allegedly written by the 2 decree holder on 14th August, 2005 wherein she assured that she would accept the petitioner as a direct tenant as soon as the litigation with the direct tenant would be over. The rate of rent for such letting was mentioned in the said letter. Even the acceptance of a sum of rupees one lakh in cash as advance was mentioned in the said letter. It was alleged by the petitioner that the said letter was written by the decree holder in pursuance of the request made by the petitioner herein for accepting it as a direct tenant under the decree holder vide its letter dated 8th August, 2005. Thus, these three documents viz. (1) the franchise agreement dated 18th September, 2002 entered between the judgment debtor and the petitioner, (2) the letter dated 8th August, 2005 written by a partner of the petitioner company addressed to the decree holder and (3) the letter dated 14th August, 2005 allegedly written by the decree holder addressed to the petitioner, are the sheet-anchor of the petitioner's claim in support of its right of possession in the suit property.
The decree holder opposite party no.1 contested the petitioner's said application under Order 21 Rule 97 read with Rule 101 of the Civil Procedure Code by denying the plaintiff's right of possession in the suit property. The receipt of the letter dated 8th August, 2005 issued under the signature of a partner of the petitioner company, by the decree holder was specifically denied by her in her objection filed against the petitioner's said application. Even the signature of the decree holder appearing in the letter allegedly written by her on 14th August, 2005 was categorically denied by the decree holder in her objection. The decree holder contended that she was not in India at the material time when the petitioner's said letter dated 8th August, 2005 was allegedly sent to her at her address in Calcutta. She further contended that even at the time of issuance of the letter dated 14th August, 2005, she was not in India and as such, not only the receipt of the petitioner's letter was denied but also the issuance of the letter dated 14th August, 2005 by her, was 3 categorically denied by her in her objection. The decree holder claimed that her signature was forged in the said letter and the said letter was never issued by her.
Since the decree holder disputed her signature in the letter dated 14th August, 2005, the petitioner herein applied for referring the said disputed signature of the decree holder to the handwriting expert for comparing the same with her admitted signature so that the dispute regarding the genuineness of the said letter can be decided by the learned Executing Court. The learned Executing Court rejected the petitioner's said application and directed the decree holder to appear before the Court to give her signature before the Court so that her signature can be compared with the disputed signature appearing in the letter dated 14th August, 2005 by the Executing Court. In fact, the learned Executing Court compared the signature given by the decree holder in Court with the disputed signature appearing in the letter dated 14th August, 2005 and came to a conclusion that the signature appearing in the said letter is not the signature of the decree holder as the style of writing the letter "Y" and "R" is different from the style of writing of those two letters in the signature appearing in the disputed letter. Thus, the learned Executing Court came to the conclusion that the signature appearing in the said letter is a forged one.
After taking into consideration the evidence of the respective parties particularly the visa and air tickets etc. produced by the decree holder, the learned Executing Court came to the conclusion that the decree holder was not in India either at the time when the request letter dated 8th August, 2005 was allegedly given by the petitioner to the decree holder at her address at Calcutta or at the time when the letter dated 14th August, 2005 was allegedly issued by the decree holder from her address at Calcutta. Incidentally it may be mentioned, that in both the aforesaid letters, the 4 address of the decree holder was mentioned as 44, Charu Chandra Avenue, Kolkata-33. The learned Executing Court also held that in the absence of any material to show that such request letter, in fact, was delivered to the decree holder, no Court can be believe that such letter was, in fact, delivered to the decree holder. The learned Executing Court also held that non-examination of the person through whom the letter dated 14th August, 2005 "Exhibit 7" was allegedly sent to the petitioner caused fetal to the case of the petitioner particularly when the decree holder stated in her evidence that she did not know any such person from whom the petitioner received the letter allegedly sent by the decree holder. Even the payment of a sum of rupees one lakh by the petitioner to the decree holder towards advance rent of the said premises was also disbelieved by the learned Executing Court as the petitioner failed to produce either any acknowledgement of such receipt by the decree holder or any other material disclosing the source wherefrom such money was withdrawn by the petitioner for payment of the same to the decree holder.
These are the grounds on which the learned Executing Court dismissed the petitioner's application under Order 21 Rule 97 under sub-rule 101 of the Civil Procedure Code.
Being aggrieved by the said order passed by the learned Executing Court in the Misc. Case No.44 of 2006, an appeal being Misc. Appeal No.124 of 2007 was filed by the petitioner before the learned Appeal Court. The said appeal was also dismissed on contest by the learned Appeal Court on 26th February, 2010. In fact, the learned Appeal Court approved all the findings of the learned Executing Court by giving elaborate reasons for such affirmation. In fact, the learned Appeal Court was of the view that such a mala fide and vexatious application should be dismissed with exemplary cost as the judgment debtor, in fact, parted with possession of the suit premises in favour 5 of the petitioner by executing the said franchise agreement in violation of the injunction order passed by this Hon'ble Court on 3rd November, 1995 in S.A. No.22 of 1995 and the petitioner herein also entered into such an agreement with the judgment debtor knowing fully well about the pendency of the litigation between the decree holder and the judgment debtor. However, the learned Appeal Court did not impose any cost ultimately, as the Appeal Court was of the view that such compensatory cost under Section 35A cannot be imposed by the learned Appeal Court.
The propriety of the said order of the learned Appeal Court dated 26th February, 2010 passed by the Court of the learned 11th Additional District Judge at Alipore in Misc. Appeal No.124 of 2007 is under challenge in this application under Article 227 of the Constitution of India before this Court at the instance of the applicant of the application under Order 21 Rule 97 read with Rule 101 of the Civil Procedure Code.
Heard Mr. Chatterjee learned Advocate appearing for the petitioner and Mr. Banerjee learned Senior Counsel appearing for the opposite party/decree holder. Considered the materials on record including the order impugned.
Let me now consider as to how far the learned Courts below were justified in passing the aforesaid orders in the facts and circumstances as aforesaid.
Mr. Chatterjee laid much emphasis on the letter dated 14th August, 2005 being "Exhibit 7"
to impress upon the Court that the possession of his client in the suit premises which it received from the decree holder is independent of the possession of the judgment debtor as the decree holder 6 recognized Mr. Chatterjee's client as her tenant therein and such tenancy was created on acceptance of a sum of rupees one lakh as advance rent and as such, possession of such a tenant in the suit premises cannot be disturbed in execution of the said eviction decree passed against the judgment debtor, as the said decree which was passed against the judgment debtor is not binding upon the petitioner.
Mr. Chatterjee, thus, laid emphasis on the letter dated 14.8.2002 allegedly issued by the decree holder which is the source of his client's independent right of tenancy in the suit premises. But since the genuineness of the said letter has been doubted by both the Courts below, Mr. Chatterjee repeatedly invited this Court to examine the signature appearing in the said letter being "Exhibit 7" with the admitted signature of the decree holder appearing in the Vokalatnama filed in this Court to find out as to whether the learned Courts below were justified in coming to the conclusion that the signature appearing in the said letter being "Exhibit 7" is the forged signature of the decree holder.
Since Mr. Chatterjee was repeatedly insisting upon this Court for such comparison, this Court compared the admitted signature of the decree holder appearing on the Vokalatnama filed by her in this Court with the disputed signature appearing in the copy of the letter being "Exhibit 7"
which is annexed to this revisional application. It is no doubt true that such comparison cannot be effectively made in the absence of the original document being "Exhibit 7" but, still then, on looking at those two signatures on bare eyes, this Court has no hesitation to hold that even there is no similarity in the style of signature of the decree holder appearing in the said Vokalatnama with the disputed signature of the decree holder appearing in the said letter being "Exhibit 7". Not only 7 the style of writing the letters being "Y" and "R" is different in both the aforesaid documents but also style of writing of the letters "N" and "J" is also different from each other. Even the gap which is maintained in between the letters in the signature appearing in the Vokalatnama differs from the gap which is apparent in between the letters in the signature allegedly made by the decree holder in the disputed letter. Thus, even on examination of these two signatures on bare eyes, one can come to a conclusion without any hesitation that the signature appearing in the disputed letter "Exhibit 7" is not the signature of the decree holder.
That apart, non-examination of Anil Das who was allegedly the carrier of the said disputed letters and further non-disclosure of definite source of money wherefrom such money was withdrawn by the petitioner for giving the same to the decree holder as advance rent, caused fetal to the claim of the petitioner. The evidence of the petitioner's witness that the said money was kept below the petitioner's pillow is not at all trustworthy, particularly for the reason that the person under whose pillow such money was allegedly kept has not been examined in this proceeding. Even the mediator who allegedly negotiated the terms of such letting, between the parties, has not been examined in this case. In my view, both the Courts below did not commit any illegality in drawing their conclusion by expressing their suspicion regarding the genuineness of the disputed letter and/or payment of the advance money in the facts of the instant case.
Let me now consider the evidential value of the said letter being "Exhibit 7" from a different angle. The witness of the petitioner stated in his evidence that the said letter was not signed by the decree holder in his presence. The said witness never stated that he was acquainted with the signature of the decree holder. No competent witness came forward from the petitioner to 8 prove the disputed signature appearing in the disputed letter being "Exhibit 7". Even the carrier of the said letter through whom the petitioner allegedly received the said letter being "Exhibit 7" was also not examined by the petitioner. As such, this Court has no hesitation to hold that the petitioner has miserably failed to prove that the signature appearing in the said disputed document being "Exhibit 7" is the signature of the decree holder. Unless the petitioner discharges his initial duty in proving that the disputed signature is the signature of the decree holder, in accordance with law, the decree holder has no duty to prove her contention that the disputed signature is not her signature. As such, this Court holds that the said letter has no probative value at all and as such, this Court cannot hold that the said letter is a credible document in support of the petitioner's claim for his tenancy in the said premises.
Even assuming that the said letter was issued by the decree holder in reply to the request made by the petitioner for accepting it as direct tenant, still then, this Court holds that the petitioner cannot claim his existing tenancy right in the said premises under the decree holder on the strength of the said letter. If the contents of the request letter is taken into consideration carefully, then it will show that the petitioner made a request to the decree holder to accept it as a direct tenant after the litigation is over. The petitioner never made any request to the decree holder to accept it as her direct tenant during the continuation of the litigation. Similarly if the contents of the disputed letter being "Exhibit 7" is taken into consideration, then it will appear that the decree holder at best assured the petitioner to accept it as a tenant after the litigation is over. The said document itself is not a document either for creation of an immediate tenancy or for recognizing the defendant as an immediate tenant in the suit premises. In the event the said document is proved as a genuine document then the said document can at best be considered as a document of acceptance of the 9 petitioner's proposal for grant of tenancy in its favour after the litigation is over. Thus, the said document can neither be treated as a document of creation of any immediate tenancy nor the present possession of the petitioner in the suit premises can be regarded as the legal possession as that of a tenant therein.
Section 105 of the Transfer of Property Act makes it clear that in order to create a tenancy right in the demised premises, the right to enjoy such property should be transferred by the landlord in favour of the tenant for a consideration of letting. Unless such right is transferred by the landlord in favour of the tenant, tenancy cannot be created. Here is the case, admittedly the decree holder has not yet recovered khas possession of the suit premises from the judgment debtor. The execution of the eviction decree still remains unsatisfied. As such, the decree holder is incapable of transferring the right of possession in the suit property in favour of the petitioner so long as the eviction decree is not satisfied. It is nobody's case that the eviction decree has been satisfied and possession of the suit premises was recovered by the decree holder from the judgment debtor and thereafter such possession was delivered to the petitioner by the decree holder to create a tenancy in its favour. If that be so, no one can conclude that a tenancy was created by the decree holder in favour of the petitioner in respect of the suit premises by virtue of the dispute letter being "Exhibit 7".
Thus, the possession of the petitioner in the suit premises can only be regarded as its illegal possession which the petitioner received from the judgment debtor for running the business therein in terms of the franchise agreement which was entered between the judgment debtor and petitioner in violation of the order of injunction passed by this Court in the aforesaid Second Appeal. Such 10 possession cannot be regarded as legal possession of the petitioner as, such possession was taken by the petitioner from the judgment debtor in violation of the order of injunction passed by this Court as aforesaid. Even if it is found that the petitioner was not aware of the said injunction order at the time of taking over possession of the suit premises from the judgment debtor, still then, its possession in the suit premises should be equated with the possession of the judgment debtor as the petitioner is claiming such possession through the judgment debtor. Thus, since the petitioner is claiming his possession through the judgment debtor and since it has not acquired any right in the suit premises independent of the right of the judgment debtor, the petitioner is bound by the decree which was passed against the judgment debtor and thus the obstruction which was made by the petitioner in execution of the said decree, should be removed so that the vacant possession can be delivered to the decree holder in execution of the decree against the judgment debtor as well as the petitioner.
Since the execution of a lawful decree of eviction which was passed in 1993 and was approved upto the Hon'ble Supreme Court in 2005, was obstructed by the petitioner without any just and reasonable cause and thereby depriving the decree holder from enjoying the fruits of the decree till date, this Court feels that this application should be dismissed with exemplary cost so that the loss which the decree holder has suffered in this process for such a long time since 2002, can be compensated to some extent. It cannot be lost sight of that though the petitioner claims that it was not aware of the injunction order on alienation and/or creation of third party interest in the suit property passed by this Court in 1995, at the time of execution of the franchise agreement, but still then, the petitioner never volunteered to surrender its possession either to the decree holder or to the judgment debtor, after coming to know about such injunction order. On the contrary, the 11 petitioner had taken the shelter in forgery to protect his illegal possession in the suit premises. Such conduct of the petitioner should be deprecated in all possible way.
Accordingly, the revisional application stands rejected with cost of rupees one lakh to be paid by the petitioner to the decree holder.
Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )