Calcutta High Court
Subhendu Gupta And Anr. vs Calcutta Vyapar Pratisthan Ltd. And ... on 29 March, 1995
Equivalent citations: (1995)1CALLT427(HC)
Author: Basudev Panigrahi
Bench: Basudev Panigrahi
JUDGMENT Samir Kumar Mookherjee, J.
1. The present appeal is directed against Order No. 61, dated 8th November, 1994, passed by Sri S. Bose, learned Judge, City Civil Court, Calcutta, in Misc. Case No. 1696 of 1994, whereby an application preferred by the appellants under Order 21, Rule 101 of the Code of Civil Procedure, inter alia, praying for adjudication of the dispute regarding right, title, interest and possession of the room in occupation of the petitioners upon their addition as parties in the Misc. No. 103 of 1992 and for restraining the decree holder from executing the decree passed in Ejectment suit No. 524 of 1972 against respondent No. 3, had been rejected.
2. Ejectment suit No. 524 of 1972 had been instituted by respondents Nos. 1 & 2 against respondent No. 3 for a decree for vacant and khas possession of the disputed shop room at 3, Russel Street, Calcutta, inter alia, upon allegation of termination of the respondent No. 3's tenancy on the grounds of default, illegal additions and alterations and sub-leting, assignment and transfer without the consent of plaintiff No. 1 long after commencement of West Bengal Premises Tenancy Act, 1956. In the said suit the defendant's defence, inter alia, was that there was no sub-leting, assignment and/or transfer without the consent of the plaintiff as alleged and that the business of hair dresser and hair cutting saloon was being run by the constituted Attorney of the defendant under the supervision of the defendant's daughter and defendant was to return to India shortly. The said suit stood decreed, inter alia, upon acceptance of the ground, made out on behalf of the plaintiff, regarding unlawful transfer by the defendant in favour of one M/s. K.C. Ardesher and Co. The appeal before this Court as also the special leave petition before the Hon'ble Supreme Court proved abortive. The said decree was put into execution in Ejectment execution case No. 41 of 1985, and ultimately writ of delivery of possession was issued on 26th April, 1991. Since there was apprehended breach of peace, on behalf of the decree holder, an application under Order 21, Rule 97 of the Code of Civil Procedure, read with Section 151, had been filed on 5th February, 1992, which gave rise to the Misc. Case No. 103 of 1992. The Bailiff's report indicated that the appellants, as two of the resistors, refused to vacate the shop room and offered strong resistance giving rise to apprehension for serious breach of peace. The application for Police help had been objected to in writing by the alleged Attorney of the judgement debtor namely M/s. K.C. Ardesher and Co. In the said execution case the present appellants also filed an application under Order 21, Rule 101 read with Section 151 of the Code of Civil Procedure as stated above, inter alia, contending that they were sub-tenants for more than 30-years under the judgement debtor with the knowledge and consent of the respondents' predecessor-in-interest and as such were entitled to be heard, particularly, when they were not bound by the decree, where they were not impleaded as parties. In the objection, the decree holders disputed the truth and correctness of the assertions, made by the appellants, in their said application.
3. The learned Chief Judge, City Civil Court, Calcutta, by the impugned order, inter alia, found that:-
(i) The case of the appellants that the appellant No. 2 was inducted as a sub-tenant at the age of 12 years was not believable;
(ii) No document was filed by the appellants in support of their case of being lawful sub-tenants or being in possession.
(iii) No step was taken in terms of Section 16(2) & (3) of ihe West Bengal Premises Tenancy Act, by the appellants.
(iv) That an unlawful sub-tenant or a trespasser, even if in possession, was bound by a decree of a Competent Court of jurisdiction.
4. The facts as summarised above and the Bindings made by the Court below clearly indicate that the Misc. case had been decided, at its very early stage, without any opportunity being given to the parties to adduce. any evidence. The question, therefore, arises as to whether, in view of the amended provisions of Order 21, Rules 97 to 105 of the Code of Civil Procedure, the extent and the scope of investigation, which admittedly were of summary nature, prior to such amendments, have continued to remain the same. It is to be borne in mind that the amendment has altered the status of the order passed by a Court, in exercise of its aforesaid powers, to that of a decree and filing of a separate suit has been excluded. The decree, again, has been made appealable alike other decrees (Vide Order 21, Rules 101 to 103). Rule 104 confirms the force and impact of the decree and its conclusiveness by laying down that the same shall be subject to a suit instituted earlier than the commencement of the proceeding in which the said deemed decree may be passed.
5. It is noticeable further that the alteration of the language made in the said Rules of Order 21 clearly brings out the change in the legislative intent, In terms of Rule 35 of Order 21, it has to be necessarily implied that the right, title and interest of an obstructionist, who is not bound by the decree, would have to be determined by the Court and possession can be directed to be delivered, even by removing a non-impleaded person in a suit, wherein the decree was passed, if he is bound by the decree and refuses to vacate the property. Again, the language in Rule 58 of Order 21, which has substituted 'investigation of claims and objections' by 'adjudication of claims and objections', reflects that the legislative intent is to do away with the summary nature of; investigation as was necessary in terms of the un-amended Rule and brings about finality by imposing a process of adjudication, which necessarily involves production of evidence, oral and documentary, and consideration thereof by the Court. Similar linguistic alteration has been made by substitution of Sub-Rule 2 of Order 21, Rule, 97, by bringing in the word 'adjudication' in place of 'investigation'. In terms of Rule 101, the scope of adjudication extends to all questions (including questions 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 or their representatives and relevant to the adjudication of the application and expressly takes away the right of filing separate suit for "determination of such questions. There cannot be any controversy that a person, who obstructs, has a right of hearing and as such falls within the category of parties to the proceeding. (Vide Himangsu Paria v. Gouri Guha and Anr. Judgement of Division Bench dated 8.5.90 consisting of S. Ahmed and Haridas Das, JJ., 88 CLJ P. 105 (Debendra Nath Sarkar v. Parulbala Ghosh, 56 CWN 832 (Bhupesh Chandra Dutta v. Dr. M. N. Bose) 60 CWN 147 (Jagat Lakshmi Dasi v. Golam Hossain and Anr.). By Rule 103, order passed on an application, which has been adjudicated, has been conferred the status of a decree and is appealable as such which is a clear pointer to the requirement of consideration of evidence as the remedy by way of appeal, instead of revision, as under the earlier un-amended law, would be a mere illusion in the absence of evidence or power of the Court to consider evidence. In this connection, it is pertinent to note that by Rule 104 such an appealable order has been made subject only to a pending suit; in other words, once recourse has been taken or has been allowed to be taken to the process of adjudication, as provided in the amended provisions of Order 21, a regular suit cannot be filed for remedy.
6. In the instant case by the impugned Order only the application of the appellants under Order 21, Rule 101 read with Section 151 of the Code of Civil Procedure has been disposed of. The application, properly read, is an application for an opportunity of being heard in the Misc. case arising out of the decree holder's application under Order 21, Rule 97 of the Code of Civil Procedure. We have already indicated the settled legal position that an obstructionist is entitled to a hearing on such an application. The Court, by the impugned Order, has, in a summary fashion, determined the right, title and interest of the appellants which in our view is legally untenable. We, accordingly, set aside the Order and allow the application of the appellants for being added as parties to the decree holder's application under Order 21, Rule 97 of the Code of Civil Procedure. The Misc. case arising out of the decree holder's application, namely, Misc. case No. 103 of 1992, now be heard out on the lines of the observations made by us here-in-above according to law and on merit by the Court below, by fixing a date of hearing therefor or in terms of Rule 105 of Order 21 of the Code of Civil Procedure, upon evidence, if any is adduced by the parties. Since the Misc. cases have remained pending for a very long time we direct the Court below to endeavour to dispose of the Misc. case within six weeks from the date of communication of this Order to the concerned Court. We keep on record that all the questions, which may be relevant for adjudication by the Court below, remain open. The appeal is allowed to the extent indicated above. There will be no order as to costs.
B. Paniarahi, J.
7. I agree.