Delhi District Court
Shri Vinod Kumar vs . Shri Som Dutt Tiwari & Anr. on 25 April, 2015
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
M. No. 75/14
Shri Vinod Kumar Vs. Shri Som Dutt Tiwari & Anr.
Sh. Vinod Kumar,
S/o Shri R. P. Aggarwal,
R/o 85, Raj Nagar,
Pitampura, Delhi. ................. Appellant
Versus
1. Sh. Som Dutt Tiwari & Anr.
S/o Late Raghu Nath Prasad Tiwari,
R/o H2/12, PhaseI,
Budh Vihar, Delhi.
2. Shri Pawan Kumar,
S/o Shri Ram Kumar,
R/o Village Mungeshpur, Delhi. ................Defendant.
Date of Institution of the case : 29.07.2013
Date of hearing the arguments : 08.04.2015
Date of announcing the Order : 25.04.2015
O R D E R
1. By this order, I shall decide the appeal which is preferred against the orders dated 01.05.2013 & 07.06.2013 and other proceedings arising in the execution petition no. 07/2012.
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2. The brief facts of the case are mentioned as under:
Appellant claims himself to be the owner of the suit property in question on the basis of certain documents i.e. GPA etc. dated 13.12.2004. Appellant was the objector/intervenor before the executing court. Respondent no. 1 is the decree holder and respondent no. 2 is the judgment debtor. Respondent no. 2 had earlier filed a suit bearing no. 603/07 against respondent no. 1 for injunction which was disposed of as per the statement of parties under which respondent no. 1 stated that he shall not dispossess him without following the due process of law. Respondent no. 1, thereafter, filed the present suit no. 407/08 against respondent no. 2 seeking recovery of possession. Respondent no. 2 was proceeded exparte and exparte decree/ judgment dated 24.01.2012 was passed. During the pendency of the suit, one application under Order 1 Rule 10 CPC was filed by appellant herein, however, it was withdrawn by the appellant on 23.12.2010. Appellant, herein had also filed another suit no. 590/08 against the respondent no. 1 & 2 seeking declaration and possession. It was, however, withdrawn under Order 23 Rule 1 CPC and the liberty to file afresh was not granted.
From the facts so alleged the previous owners as per the previous chain of the documents are as under that the property was allotted on 16.02.1987 to Narender Kumar and Smt. Raj who M No. 75/14 Page No. 2/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari transferred it on the basis of agreement to sale on 19.06.1987 to Vijay Kalra who subsequently transferred to Raj Rani Pathak on 15.02.1990, Raj Rani Pathak further executed GPA in favour of Chunni Lal on 21.03.2002 and appellant has alleged to have purchased it from Chunni Lal on 13.12.2004. Respondent no. 1 has also stated that he has purchased it from Raj Rani Pathak. Both appellant and respondent no. 1 are claiming themselves to be the owner of the suit property in question.
The circumstances which led to the filing of the present appeal are that during the pendency of the execution, the appellant had filed an objection which was dismissed vide impugned order dated 01.05.2013 and executing court has further issued directions on 07.06.2013. Both these orders are under challenge.
Appellant has challenged the impugned orders alleging that Ld. Trial Court has wrongly considered that withdrawal of the suit no. 590/08 operates as resjudicata, hence, the objections filed under Order 21 Rule 97 CPC are hit by section 11 of CPC. It is further stated that the judgment/ decree dated 10.01.2012 was obtained by fraud. Ld. Trial Court has wrongly dismissed the objections filed by the appellant. One opportunity should have been granted to the objector/ appellant to prove his contentions. Respondent no. 1/ decree holder has failed to establish his title and ownership qua the suit property in question. The M No. 75/14 Page No. 3/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari suit filed by the respondent no. 1 was not a title suit and ownership issue has not been decided in the impugned judgment.
3. In his reply, respondent no. 1/ decree holder has opposed the appeal alleging that the withdrawal of suit no. 590/08 was without any liberty. The court has specifically not granted any liberty to file afresh. It is further stated that appellant was having an opportunity to become a party in the suit no. 407/08 and had moved an application under Order 1 Rule 10 CPC as well, however, it was also withdrawn by him for the reasons best known to him. Ld. Trial Court has rightly considered the objections filed under Order 21. Rule 97 CPC in the nature of suit and hence, has rightly rejected and dismissed the objections filed by the appellant. It is further stated that the appeal filed by the appellant has become infructous as the execution petition filed by respondent no.1 has been disposed of as he has taken the possession. Another serious objection taken by the respondent no. 1 is that appeal filed by the appellant is barred by the period of limitation.
4. Arguments heard at length from both the sides. Record is also perused thoroughly as well.
5. Issue of limitation is taken up first. The impugned order which are under challenge vide this appeal are 01.05.2013 & 07.06.2013. The present appeal has been filed on 30.07.2013. The month of June M No. 75/14 Page No. 4/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari every year observes vacations for about 15 days for the Civil Judge and for 21 days for the ADJs. The appeal for the first order dated 01.05.2013 is filed beyond the period of 30 days. Similar is the case with regard to the second order dated 07.06.2013. Arguments on this issue heard at length. Certain judgments are mentioned here for reference.
In case titled as Improvement Trust, Ludhiana Vs. Ujagar Singh & amp ORS, delay of two months and few days was condoned. In case titled as Collector Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors., a delay of four days in filing the appeal was condoned. In case titled as Kedar Nath Kohli Vs. Sardul Singh & Anr., delay of 120 days in refiling the appeal was condoned. In another case relied upon by the plaintiff which is titled as N. Balakrishnan Vs. M. Krishnamurthy, delay of 883 days was condoned accordingly. In this case, further, the respondent was proceeded exparte and decree was framed accordingly. It has been further observed in this case by Hon'ble Supreme Court of India that, "the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause."
In the light of the above mentioned relied judgments, it is M No. 75/14 Page No. 5/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari reflected that with regard to the limitation the endeavour of the court should be to decide the case on merits and court should not be hyper technical with regard to the issue of limitation. Therefore, in these circumstances, the delay in filing the appeal is condoned accordingly.
6. Coming to the merits of the case, the moot point raised in this appeal by the appellant is as to whether the principle of resjudicata applies in the present facts and circumstances or not. Counsel for appellant has drawn attention towards certain facts during arguments alleging that respondent no. 2 who is the judgment debtor in the said execution has also filed his objections alleging that the suit was filed by the respondent no. 1 by himself by fabricating the facts and decree has been obtained accordingly by respondent no. 1 . it is also stated during arguments by appellant that ownership issue pertaining to the suit property in question has not been decided. Counsel for respondent no. 1 on the other hand, has stated that not only the principle of resjudicata but also the principle of estoppel applies against the appellant as he cannot be said to be ignorant of the pendency of the suit filed by respondent no. 1. It is srated that he had filed an application under Order 1 Rule 10 CPC which has been withdrawn by him. It is also stated that appellant had also filed a suit no. 590/08 seeking declaration and possession which was also M No. 75/14 Page No. 6/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari withdrawn by him and the liberty to file afresh has not been granted.
In these circumstances, the relevant record and the order vide which the suit no. 590/08 was allowed to be withdrawn is perused. It is reflected that vide order dated 01.09.2012, statement of appellant Vinod Kumar was recorded under which he has stated that the suit filed by him has become infructous. The application seeking withdrawal of the suit which is available from the trial record is also perused. It is alleged by the appellant, who was plaintiff in suit no. 590/08, in the said application for withdrawal that both the defendants have filed a collusive suit and defendant no. 1 is having the collusive decree in his favour and as plaintiff has to challenge the decree, therefore, he is willing to withdraw the suit with a permission to file afresh. In the order dated 01.09.2012, Ld. Civil Judge, while disposing of this application for withdrawal of the suit has not granted the liberty and has held that, "in the facts and circumstances of the case, I deem it appropriate to allow the plaintiff to withdraw the present suit, however, without any liberty to file afresh on the same cause of action. Plaintiff, of course, can avail of any/ all remedies available/ permissible by law"
It is reflected from perusal of the order dated 01.09.2012 itself that the suit no. 590/08 was allowed to be withdrawn simply and the liberty to file afresh was refused. It is pertinent to mention here that the M No. 75/14 Page No. 7/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari disposal of the suit while allowing the withdrawal under Order 23 Rule 1 CPC does not amounts to disposal on merits. The principle of res judicata, however, operates upon the subsequent suit only when the earlier suit has been decided on merits. In other words, when the earlier suit has been disposed of after discussing the merits of the case on one point or other. No such observation on merits, however, are reflected from the order dated 01.09.2012. The law on this point is crystal clear that withdrawal of the suit under Order 23 Rule 1 does not falls under the category of disposal of the suit on merits as the court does not give any observation touching the merits of the case. Therefore, I am of the considered opinion that order dated 01.09.2012 does not operates as resjudicata upon any subsequent suit as the contentions or rights of the parties have not been decided on merits & the suit has been merely allowed to be withdrawn.
Counsel for appellant has relied upon certain judgments in support of his contentions.
(I) LRs of Arjun Lal Vs. LRs. Of Kundan Lal, 2013 AIR CC 2193 (Raj).
It has been held in this case that, "it is clear that estoppel and res judicata would apply only if the adjudication by court is shown in the previous round of litigation and not by a mere withdrawal of the suit or not pressing the same or writ petition under Article 226 of Constitution M No. 75/14 Page No. 8/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari of India."
(ii) Kuber Housing Vs. TCI Finance Ltd., 2013 AIR CC 2346 (Bom).
It has been held in this case that, "Order XXI, Rule 101 of the Code of Procedure, 1908 postulates that all questions (including the question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. The meaning and purport of these rules of Order XXI has been dealt with in several decisions of the Supreme Court including Ashan Devi and another V. Phulwasi Devi and other (2003) 12 SCC 219: (AIR 2004 SC 511).
(iii) DCM Ltd. Vs. DDA 2013 AIR CC 1883 (Del) It has been held in this case that, "the principle of resjudicata would not stand in the way of independent adjudication of a bona fide dispute regarding title to the disputed suit lands."
(iv) Sameer Singh Vs. Abdul Rab & Others, (2015) 1 SCC 379 It has been held in this case that, "Application complaining of dispossess from immovable property can be filed by stranger also Pursuant to such applicationexecuting court has power to adjudicate upon all questions relating to rights, title and interest in property M No. 75/14 Page No. 9/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari arising between the parties including those of stranger.
Adjudication of lis arising pursuant to filing of application by person dispossessed of immovable property, essential for treating order of executing court as decreeWhere court, without going into merits, declines to adjudicate upon lis between the parties under Order 21 Rule 101 CPC on ground that it became functus officio and thereby lacked jurisdiction, order passed by executing court cannot be deemed to be a decreeIt pertains to jurisdictional error which is revisable by High Court under S.115."
It has been further argued on behalf of the appellant that whenever any objection in an execution petition is filed by any intervenor or third party under Order 21 Rule 97 CPC then such objections should be decided separately and should be considered in the nature of suit and an opportunity should be given to such objector to prove his contentions. In this regard, he has relied upon certain judgments which are mentioned as under:
(I) Harvilas Vs. Mahender Nath, (2011) 15 SCC 377.
It has been held in this case that, "A third person claiming to be in possession of the property forming subjectmatter of decree in his own right can resist delivery of possession even by filing an objection under Order 21 Rule 97 CPC in the executing court itself and if that is done, the objection shall have to be determined by the executing court itself. The provisions of Rule 100 of the old CPC, the equivalent M No. 75/14 Page No. 10/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari provisions whereof is Rule 99 in the new CPC will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession. The appellant has already filed a suit for permanent injunction wherein a temporary injunction has been obtained by the plaintiff protecting his possession. The objections of the appellant should have been heard and decided by the executing court itself. The objection filed by the objector (appellant) shall now be heard and decided in accordance with Order 21 Rule 97 r/w Rule 101 CPC. A separate suit is not maintainable."
(ii) Niyamat Ali Molla Versus. Sonar Gon Housing CoOperative Society Ltd. (2007) 13 SCC 421.
(iii) Tanjeem E. Sufia Versus. Biwi Haliman and others (2002) 7 SCC 50.
In above mentioned two judgment have also laid down the similar observation as has been laid down in Harvilas (Supra).
Counsel for respondent no. 1 has also relied upon certain judgments. They are perused. The facts and circumstances of the present case, however, are different and peculiar in nature, hence they are not applicable in the present facts and circumstances.
In the light of the above discussion, the impugned order dated 01.05.2013 and 07.06.2013 are perused. The basis of dismissing the objections of the appellant filed under Order 21 Rule 97 CPC, as M No. 75/14 Page No. 11/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari mentioned by Ld. Executing court, is that withdrawal of the suit no. 590/08 and not granting any liberty to file afresh vide order dated 01.09.2012, operates as resjudicata upon the objections filed by the appellant. It has been observed above and has been laid down in number of judgments and I am also of the opinion that withdrawal of any suit under Order 23 Rule 1 CPC is a mere withdrawal under which no right or contention of the parties is decided on merits, hence, no observation on merits are given by the court allowing the withdrawal. Therefore, it does not operates as resjudicata upon the subsequent suit.
Now coming to the relevant provisions laid down under Order 23 CPC, withdrawal of the suit is allowed under Order 23 Rule 1 (1) CPC which reads as under:
"1. Withdrawal of suit or abandonment of part of claim(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court."
Order 23 Rule 1 (4) CPC is also important to mention here which reads as under:
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Shri Vinod Kumar Vs. Shri Som Dutt Tiwari
1. Withdrawal of suit or abandonment of part of claim(4) Where the plaintiff
(a) abandons any suit or part of claim under subrule (1) or
(b) withdraws from a suit or part of a claim without the permission referred to in subrule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim."
This provision lays down that when no liberty is to be granted or it is declined specifically then the plaintiff is precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
In the light of the provision laid down under Order 23 Rule1 (1) and Order 23 Rule 1 (4) CPC, it is important to mention here that though the objections filed under Order 21 Rule 97 CPC are to be considered in the nature of a suit, however, even though such intervenor or stranger has not filed any earlier suit in that regard or has filed and that has been disposed of or dismissed, he still has as per law a right to file and take objections under Order 21 Rule 97 CPC, contesting the execution petition. The "subject matter" as mentioned under Order 23 Rule 1 (4) CPC is different from the objections filed under Order 21 Rule 97 CPC. Therefore, I am of the considered M No. 75/14 Page No. 13/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari opinion that the objection taken by the respondent no. 1 that Ld. Trial court has rightly dismissed the objections filed by the appellant is not tenable in the eyes of law and I am of the considered opinion that Ld. Trial court has not correctly appreciated the principles of resjudicata and the provisions laid down under Order 23 Rule 1 (4) CPC. The grounds taken by the appellant becomes more relevant when he has prima facie shown from the record that respondent no. 2 has also filed his objections alleging that the decree obtained by respondent no. 1 is collusive and respondent no. 2 was asked by the respondent no. 1 to become a defendant in this case just to obtain a decree qua the suit property in question. These objections have not been decided by Ld. Trial court as stated by the appellant. In these circumstances, therefore, without touching the merits of the contentions of the appellant any further, I restrict myself to the ground raised in the present appeal and I am of the opinion that Ld. Trial court has wrongly come to the conclusion that the objections filed by the appellant are barred by the principle of resjudicata. Therefore, the appeal filed by the appellant is allowed and the order dated 01.05.2013 and 07.06.2013 are set aside.
It has been stated during arguments that the execution petition has been disposed of and respondent no. 1 has taken the possession. Therefore, the case is sent back to the Ld. Executing court with a M No. 75/14 Page No. 14/15 Shri Vinod Kumar Vs. Shri Som Dutt Tiwari direction to decide the objections filed by the appellant as per law and also directed to consider the objections filed by respondent no. 2 as well. Handing over of the possession of the suit property in question and disposing of the execution petition shall be reconsidered and subject to the outcome of the objections decided by the Ld. Executing court for which appellant is at liberty to raise appropriate application before the Ld. Executing court as per law and if the objections are decided in favour of the appellant, subject to the merits, then the Ld. Executing court shall reconsider the matter as a whole and dispose of the petition as per law by passing appropriate orders. In terms of these observations, appeal is disposed of.
7. Trial court record alongwith copy of order be sent to the Ld. Executing court for necessary information and compliance.
8. Appeal file be consigned to record room after completion of all necessary formality.
Announced & dictated in the (Prashant Kumar)
open court today i.e. on 25.04.2015 ADJ04(NW)/Rohini Courts
Delhi/25.04.2015
M No. 75/14 Page No. 15/15
Shri Vinod Kumar Vs. Shri Som Dutt Tiwari