Allahabad High Court
Chandra Sen And Another vs Ram Gopal on 16 November, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 1255 of 2017 Petitioner :- Chandra Sen And Another Respondent :- Ram Gopal Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma Counsel for Respondent :- Archit Mehrotra,Sushil Kumar Mehrotra with Case :- MATTERS UNDER ARTICLE 227 No. - 2310 of 2018 Petitioner :- Chandra Sen Respondent :- Ram Gopal Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma Counsel for Respondent :- Sushil Kumar Mehrotra with Case :- MATTERS UNDER ARTICLE 227 No. - 5609 of 2018 Petitioner :- Chandra Sen And Another Respondent :- Ram Gopal And Another Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma Counsel for Respondent :- Archit Mehrotra,S.K. Mehrotra Hon'ble Ajit Kumar,J.
Heard Sri Mahesh Sharma, learned counsel for the petitioner and Sri Archit Mehrotra, learned Advocate appearing for the contesting respondents.
These three matters filed under Article 227 being no.1255 of 2017, 2310 of 2018 and 5609 of 2018 arise out of a controversy between landlord and tenant and, therefore, are being decided by this common judgment taking matter filed under Article 227 No.1255 of 2017 as leading petition.
Briefly stated facts of the case are that petitioner-landlord instituted a suit being O.S. No.317 of 1986 in which initially an order of status quo was passed in respect of the suit property on 16.7.1986. While the suit remained pending and the interim injunction order of status quo directing the parties to maintain qua suit property was operating, it appears that controversy arose of alleged demolition of the backwall of the shop adjoining the main building in which the landlord has been residing and with the allegation that jewelery got stolen from the shop. Resultantly, the respondent-tenant instituted a miscellaneous case no.53 of 1986 under Order XXXIX Rule 2A claiming that the injunction order of status quo has been violated by the landlord-petitioners. The miscellaneous case proceeding culminated into a final order dated 23.4.1990 holding the landlord petitioner to be guilty of contempt and hence, in order to meet the loss and damages caused to the tenant-respondent, the property was put to auction. It has come to be recorded in the order passed by the Additional District Judge dated 17.1.2017 impugned here in this petition that although the shop was put to auction but that could not be finalized as the highest bid was for Rs.60,000/- whereas valuation fixed by the authorities ought to be Rs.1,20,000/-. It is also pertinent to mention that offshoot of alleged incident and resultant controversy, a criminal case was also instituted with lodging of the First Information Report as Case Crime No.117 of 1986 under Sections 380, 427 and 447 IPC and police submitted the chargesheet resulting in the trial of criminal case but ultimately the petitioner-landlord was acquitted in the said case with the finding that the prosecution could not establish the guilt beyond reasonable doubt. The order of acquittal was passed on 4.10.2012 which was appealed against and that also come to be dismissed by the Additional Sessions Judge vide judgment and order dated 25.6.2016. These judgments have been placed before the Court and have been taken on record.
Reverting back to the facts of the case, I find that the order passed on the miscellaneous application under Order XXXIX Rule 2A came to be rejected vide order dated 25.10.2010 holding that the case was going on for the last 24 years and the keys were deposited in the Court but the decree holder who had instituted the miscellaneous case alleging contempt, had not been coming forward to collect the keys as he was only interested in damages through auction proceedings. The case was finally rejected for non-compliance of the order passed by the executing court on 30.1.2010 and 4.5.2010. Against the said case the decree holder of the miscellaneous case, namely, the tenant, filed a revision petition no.187 of 2010, which was allowed and the matter was remanded vide order dated 29.8.2011.
On remand again, the miscellaneous execution case in respect of the order passed under Order XXXIX Rule 2A came to be dismissed on 9.10.2012 against which tenant respondent again preferred revision before the higher court which has been allowed and the matter has again been remanded vide order dated 17.1.2017, impugned in this petition.
Before I further proceed, it is also pertinent to mention here that while the miscellaneous case under Order XXXIX rule 2A of the CPC was still pending consideration, the suit itself came to be dismissed for want of prosecution on 11.11.1986.
For assailing the order passed by the Court sitting in revision learned counsel for the petitioner at the very outset submits that revision petition was itself non-maintainable as there was statutory remedy provided under Order XLIII Rule 1(r) of Code of Civil Procedure, 1908.
Besides above, it is further argued that once the suit has itself culminated into dismissal, the interim injunction order had itself merged with the dismissal order of the suit and therefore, there was no justification for the order being passed on 23.4.1990. It is further submitted by learned counsel for the landlord-petitioner that the keys were still available with the executing court pursuant to the order passed in the miscellaneous case no.53 of 1986 as the shop was slated for auction. The tenant-respondents could have taken the keys and its possession but he did not choose to do that and resultantly the petitioner's release application also came to be dismissed on the ground that the tenant was not in possession of the shop in question.
The landlord laments that for all these three decades the shop is lying as barren construction without there being any possession either of the tenant or of the landlord. He submits that landlord being the owner of the property is suffering more loss and is entitled to damages against the tenant who has made the entire case as his prestige and not letting the landlord to enjoy/utilize his owned property. He submits that if so ordered from the over all conduct of the tenant-respondents in not taking the keys from the executing court and taking possession of the shop shows. It is also argued that since the dismissal of the suit itself would result in nullifying the entire proceedings of contempt under order Order XXXIX Rule 2A the Court was not justified in further getting that order enforced by remitting the matter, more in face of fact that the executing court had earlier permitted the tenant to collect the keys by taking necessary steps which tenant refused by his act and conduct.
Sri Archit Mehrotra, learned counsel for the tenant-respondent has cited a number of judgments before this Court to argue that an injunction order once passed is to be honored by the parties and merely because the original proceedings have culminated into dismissal or abatement for that matter, the party cannot be permitted to run away from the liability of contempt in the event of violation, if proved. He submits that any such view of law which exonerates the alleged contemnor from the liability of contempt will be subversive of the rule of law.
Having heard learned counsel for the parties and their arguments raised across the bar while I find that the court exercising revision had no jurisdiction to entertain the same as the order passed by the executing court was appealable under Order XLIII Rule 1(r) CPC but here I find a case where none of the parties are at any advantageous position because of the pendency of the matter under Order XXXIX Rule 2A vide execution proceeding thereof as the property is lying vacant. Still further, since the condition of the structure is such that nobody can set up a shop there, the only issue, therefore would be how to balance equities between the parties and to give a message by a judicial verdict that violation of the order of Court cannot be permitted to go unpunished. I find that Rs.60,000/- was the highest bid upon which the auction was not confirmed otherwise the tenant-respondent would have got the damages but one click is there that the landlord would have lost the property. Court is equally conscious of the fact position that owner of the property has been reduced to a position of an onlooker for justice as he has been punished much for long drawn litigation with the tenant.
In these circumstances, the best course seems to be that the property goes back to the landlord and the tenant-respondent is settled with some damages and this is aimed at giving a very happy ending to this long drawn litigation.
Learned counsel for the petitioner submits that he has instruction to offer Rs.50,000/- as damages to the tenant-respondent.
Sri Archit Mehrotra, learned counsel for landlord submits that he has instruction also to accept the offered damages in the given facts and circumstances.
In view of the above, therefore as the parties agree to come to terms, I set aside the order passed by the Additional District Judge, Court No.2, Bulandshahar dated 17.1.2017 in Civil Revision No.103 of 2012. The petitioner since has agreed, he is directed to make payment of Rs.50,000/- either in cash or through bankdraft, within a period of three weeks to the respondent-tenant, who shall accept the same. The moment bankdraft is handed over to the landlord-respondent, the petitioner shall move an application to get the keys back from the court where they are lying and court concerned shall hand over the keys to the petitioner forthwith. The application to be moved by the petitioner shall have endorsement of the respondent-tenant also and in this regard respondent-tenant shall co-operate.
The present petition stands allowed in above terms.
The petitioner is directed to file the affidavit annexing therewith the photocopy of the bankdraft to show compliance of the aforesaid directions by the next date fixed and only for this limited purpose the petition shall be placed on the top of the board again on 12.12.2022.
Order Date :- 16.11.2022 Deepika