Rajasthan High Court - Jaipur
Bansidhar Sharma S/O Pt. Bhuramal vs The State Of Rajasthan on 21 August, 2019
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Application No.257/2018
IN
S.B. Civil First Appeal No.86/1979
Bansidhar (since deceased) Sharma son of Pt. Bhurmal-
Deceased represented by his legal representatives:-
----Plaintiff/Appellants
Versus
The State of Rajasthan & Ors.
----Defendant/
Respondents-Applicants
For Appellant(s) : Mr. NK Maloo Sr. Advocate with Mr. LL Gupta and Mr. Vishnu Bohra For Respondent(s) : Mr. MM Ranjan Sr. Adv., Mr. AK Jain, Mr. Anil Upman and Mr. Prahlad Sharma HON'BLE MR. JUSTICE PRAKASH GUPTA Order 21/08/2019
1. The matter has come up on an application filed under Section 151 read with Section 144 of the Civil Procedure Code (hereinafter "the CPC") filed by the respondent-State of Rajasthan for getting the possession of the suit property restored.
2. That the brief facts of the case in a nutshell are that a temple popularly called as "Baiji Ka Temple", which is situated at Badi Chopar, Khanda Manak Chowk, Jaipur. There are about 24 shops appurtenant to the temple and there is parcel of land behind the temple popularly referred to an "Bagichi". Apart from (Downloaded on 28/08/2019 at 10:38:34 PM) (2 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] the shops and the "Bagichi", there were certain other parts which form an integral part of the temple and were in possession of the State Education Department and PHED department. Even though, the temple always belonged to the state government, on an application preferred by the original plaintiff Bhansidhar Sharma (since deceased) [hereinafter "Bansidhar (since deceased)"], he was permitted by the government to perform "Seva Pooja" and later on, he was also appointed as the "Bhandari" of the said temple for a period of three months, to look after the temple. Vide order dated 21.01.1955 Bansidhar (since deceased) was confirmed as the Bhandari of the temple. When the said order dated 21.01.1955 was revoked by the government and Bansidhar (since deceased) was transferred, he brought a suit for declaration and permanent injunction, claiming ownership of the temple.
3. The said suit was dismissed by the trial Court vide judgment and decree dated 27.11.1977. Being aggrieved of the order dated 27.11.1977 passed by the learned trial Court, the plaintiff Bansidhar (since deceased) filed a First Appeal before this Court, which came to be numbered as S.B. Civil First Appeal 86/1979. The said First Appeal was allowed by this Court vide judgment dated 19.11.1997.
4. Aggrieved of the judgment dated 19.11.1997 passed by the single judge, an intra-court appeal was preferred by the State- respondents. The said intra-court appeal was disposed of by a Division Bench of this Court vide judgment dated 03.02.2017. Vide the said judgment, the Division Bench remitted the matter back.
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5. In pursuance of the order dated 03.02.2017, the First Appeal was heard on merits again, the said appeal was dismissed vide Judgment dated 20.04.2018. The operative portion of the judgment dated 20.04.2018 for deciding the miscellaneous application, reads as follows:
"An application under Section 151 CPC was filed by the respondent in which, it was prayed that this application may kindly be allowed and the order dated 10.10.1996 and 22.11.1996 passed by the Hon'ble High Court may be recalled/modified/reviewed and second stay application may be dismissed and position as on 10.10.1996 may be restored.
26. It transpires that on 22.11.1996 following order was passed in the second stay application filed by the appellant:-
"Consequently, the second stay is allowed. The respondents are directed not to interfere with the rights of the applicants to perform sewa pooja of the idols in the said temple and also not to dispossess the applicants from the premises of the temple in which they are residing. Respondents are further directed to restore the possession of the temple of Lord Laxminarainji, i.e., the temple in question to the applicants/appellants forthwith or in any case not later than 3rd of December, 1996 and the compliance report be submitted by the respondents in this regard immediately since the possession of the aforesaid temple was taken by the respondents in 1988 from Late Bansidhar forcibly and without due process of law and without obtaining any decree of possession or an order of eviction against Late Bansidhar or the present applicants/appellants from a competent court. The interim order, dated 10.10.1996 passed by this Court clarifying the earlier order dated 11.01.1978 passed by learned Division Bench of this Court, is confirmed pending hearing and final disposal of the appeal. Let the appeal be listed for hearing and final disposal on 17.12.1996.
In compliance of the said order, appellant had been given the possession of the suit property. Through the instant application, it is prayed that the position as existed prior to 10.10.1996 be restored or the order dated 10.10.1996 be recalled or modified. In the opinion of this court, when the appeal has been dismissed and the appellant has been found to have no rights whatsoever over the disputed temple and properties appurtenant to it, the application deserves (Downloaded on 28/08/2019 at 10:38:34 PM) (4 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] to be allowed and the position as existed before 10.10.1996 deserves to be restored. Application is allowed accordingly.
27. Resultantly, this appeal is dismissed with a cost of Rupees One Lakh and the plaintiff is directed to hand over the possession of the disputed property to the defendants-respondents within a period of two months from today, failing which, the defendants-respondents will be entitled to get the possession through the court. Further, the defendant-respondents are also entitled to get the costs of litigation from the plaintiff-appellant."
6. A bare perusal of the judgment dated 20.04.2018 reveals that the plaintiff Bansidhar (since deceased) was not found to have any right, title or interest in the suit property. Further, the court had also directed appellants to handover the possession of the property to the respondents within a period of two months from date of the judgment. Furthermore, it was also clarified that in case the plaintiffs-appellants failed to deliver vacant possession of the suit property within the time specified, the State- respondents would be free to take the possession through Court.
7. The judgment dated 20.04.2018 given by this Court has been upheld by the Hon'ble Apex Court vide its order dated 17.05.2018. The operative portion of the order dated 17.05.2018 passed by the Hon'ble Supreme Court is reproduced below:
"We do not find any reason to entertain this Special Leave Petition, which is, accordingly, dismissed.
However, it is clarified that the suit, being suit No.71/1974 (86/1961) filed by the petitioner-plaintiff stands dismissed. The impugned judgment shall stand clarified to the above extent.
In the peculiar facts of the case, the order on costs is vacated.
Pending Interlocutory Applications, if any, stand disposed of."(Downloaded on 28/08/2019 at 10:38:34 PM)
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8. Since, the plaintiffs-appellants failed to hand over vacant possession to the respondents, the respondents were constrained to file the instant application for restoration of possession and that is how the matter has come up before this Court.
9. The appellants/non-applicants have filed reply to the application. The appellants/non-applicants have raised a preliminary objection regarding the maintainability of the application filed on behalf of the respondents. It has been contended by the appellants/non-applicants that the instant application under Section 144 of the CPC is not maintainable as the decree has to be executed as per law and as per Section 144, an application for restitution can be entertained only by the Court of first instance. Since, this Court is not exercising original jurisdiction, the application ought to have been filed before the trial Court. Reference has also been given to Sections 36 to 38 of the CPC to contend that only a court of first instance is the appropriate court to get the decree executed. Apart from this, the appellants/non-applicants also stated that any order passed under Section 144 of the CPC would amount to a decree as defined under Section 2(ii) of the CPC and since all decrees are appealable, only the Court of First Instance would be the Court to decide the instant application.
10. During the course of arguments, learned counsels for the applicants/respondents have reiterated the averments made in the application and re-joinder in support of the application has placed reliance on the following judgments:- (Downloaded on 28/08/2019 at 10:38:34 PM)
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1. Indian Council for Enviro-Legal Action Vs. Union of India: 2011(8) SCC 161,
2. Kalabharati Advertising Vs. Hemant Vimalnath Narichania : (2010) 9 SCC 437,
3. South Eastern Coalfields Ltd. Vs. State of M.P. and Others : (2003) 8 SCC 648,
4. Mrs. Kavita Trehan and another Vs. Balsara Hygiene Products Ltd. : AIR 1995 Supreme Court 441,
5. Maria Margarida Sequeira Fernandes and Ors. Vs. Erasmo Jack De Sequeira (Dead) through LRs : (2012) 5 SCC 370,
6. A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and Ors. : (2012) 6 SCC 430,
7. C.S. Ratanchand Vs. Multanmull Sesnamul :AIR 1964 MYSORE 117
8. Accord Finance and Properties Ltd. Vs. M/S. Besser Concrete Systems Ltd. : 2016 SCC OnLine Mad 10586
9. Mrs. Purabai Ajun Mane (Deleted) & Ors. Vs. Shankar Bhau Patil & Anr. :2018 SCC OnLine Bom 3159.
11. On the other hand, learned counsels for the appellants have opposed the application.
12. I have heard learned counsel for the parties.
13. I have perused the application filed on behalf of the State-Respondents as also the counter filed by the appellants/non- applicants. Indisputably, the appeal filed by the plaintiff-appellants was dismissed by this Court vide its judgment dated 20.04.2018 and in the said judgment, the plaintiff-appellants were not found to have any right, title or interest in the suit property. Further, in (Downloaded on 28/08/2019 at 10:38:34 PM) (7 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] the said judgment dated 20.04.2018, this Court had also directed the appellants/non-applicants to hand over possession of the suit property to the State-respondents and the respondents were also given liberty to take possession through the Court, in case the appellants/non-applicants failed to hand over possession within a period of two months from the date of judgment. It is also not in dispute that the judgment dated 20.04.2018 was also upheld by the Hon'ble Supreme Court. The only issue that has been raised by the appellants/non-applicants is the competence/jurisdiction of this Court to get the judgment dated 20.04.2018 executed and restore the possession to the State-respondents. Since, two legal arguments have been put forth in support of their contentions; I deem it appropriate to deal with the two arguments separately.
The first argument regarding the maintainability of the application under Section 144 of the CPC is premised on the assumption that the judgment and decree dated 27.11.1977 passed by the learned trial Court was reversed/modified by this Court vide its judgment dated 20.04.2018 and further by the Hon'ble Supreme Court vide its order dated 17.05.2018. After having gone through the judgment dated 20.04.2018 as also the order dated 17.05.2018 by the Hon'ble Apex Court, I am of the considered opinion that the judgment and decree dated 27.11.1977 passed by the trial Court was neither reversed nor modified. The suit had been filed by the Plaintiff-Bansidhar (since deceased) for declaration and Permanent injunction and the trial Court had vide its judgment & decree dated 27.11.1977 dismissed the suit. This court had vide its judgment dated 20.04.2018 (Downloaded on 28/08/2019 at 10:38:34 PM) (8 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] upheld the judgment and decree passed by the learned trial Court and observed that the Plaintiff-Banshidhar (since deceased) had no right, title or interest in the disputed property since the plaintiff was in possession of the property as a mere servant/employee of the government, having being confirmed as Bhandari of the temple on 21.01.1955. However, since the appellants had been given the possession of the property on their second stay application by the Co-ordinate Bench of this court vide its interim order dated 22.11.1996 and the first appeal was itself disposed of by the Co-ordinate Bench of this court vide its judgment dated 19.11.1997 and further since the matter was remitted by the Division Bench vide its judgment dated 03.02.2017, this court, while finally dismissing the appeal vide its judgment dated 20.04.2018 had also directed the appellants to hand over the possession back to the Respondents-Applicants since they were not found to have any right, title or interest in the property. In other words, this Court had not reversed or modified or altered the judgment and decree dated 27.11.1977 in any manner but merely upheld the findings of the learned trial Court. Hence, the argument related to the maintainability of the application is without substance as Section 144 does not come into play in the instant case. Further, it is more than a well-settled position of law that mentioning of a wrong provision in an application neither confers nor denudes a court of law of its jurisdiction. In Vijaya Bank V. Shyamal Kumar Lodh, (2010) 7 SCC 635, the Hon'ble Supreme Court observed as below:-
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(9 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] "25. Incorrect label of the application and mentioning wrong provision neither confers jurisdiction nor denudes the court of its jurisdiction.
Relief sought for, if falls within the jurisdiction of the Court, it cannot be thrown out on the ground of its erroneous label or wrong mentioning or provision. In the present case the Labour Court, Dibrugarh satisfies all the requirements to decide the dispute raised by the employee before it."
14. Thus, the argument related to the judgment dated 20.04.2018 as reversal/modification of the original judgment and decree dated 27.11.1977 passed by the learned trial Court is misconceived since the Court vide its judgment dated 20.04.2018 did not in any manner reversed or modified the judgment and decree passed by the trial Court.
15. Coming to the next argument about the competence/jurisdiction of this Court to get the judgment/decree dated 20.04.2018 executed, reference must be given to Section 36 and 37 of the CPC. It has been vehemently contended by the non-applicants that as per Sections 36, 37 and 38 of the Civil Procedure Code, the jurisdiction to get the judgment/decree executed lies only with the Court of First Instance and this Court, exercising its appellate jurisdiction would not be competent to get the judgment/decree executed. Sections 36, 37 and 38 of the CPC read as below:
"36. Application to orders The provisions of this Code relating to the execution of decree shall, so far as they are (Downloaded on 28/08/2019 at 10:38:34 PM) (10 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] applicable, be deemed to apply to the execution of orders.
37. Definition of Court which passed a decree.
The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include.
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
38. Court by which decree may be executed.
A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution."
16. Referring to Sections 37 and 38 of the CPC, Mr. M.M. Ranjan, senior counsel for the non-applicants submitted that only the Court of First Instance would be the court to get the judgment dated 20.04.2018.
On the other hand, learned senior counsel, Mr. N.K. Maloo has contended that as per the judgment dated 20.04.2018, the respondents had been given liberty to take possession of the property through "court", if the appellant failed to deliver vacant possession of the suit property within a period of two months from (Downloaded on 28/08/2019 at 10:38:34 PM) (11 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] the date of the order. Learned counsel also contended that the meaning of "court" as defined under Section 37 of the CPC cannot be limited only the court of first instance.
17. Having considered the arguments put forth by counsels appearing on behalf of the applicants and the non-applicants, this Court is of the opinion that the interpretation as canvassed by the learned counsel for the non-applicants is misplaced. A bare perusal of the language used by the legislature in Section 37 of the CPC shows that the expression "the court which passed the decree" would be deemed to include the court of first instance. The operative word here is "include". Since, the legislature, in its wisdom decided to use the word "include" and the ordinary dictionary meaning of the word "include" is comprise or contain part of a whole, it can be countenanced that the legislature intended to exclude an appellate court out of the definition of "court which passed the decree". In simpler words, the expression "court which passed the decree" is inclusive and not exhaustive. My reasoning also finds support from similar interpretation given to the said section by different High Courts. in Mehar Singh and Others V. Kasturi Ram, AIR 1962 P&H 394, the Punjab and Haryana High Court observed as below:-
"Now obviously the object and purpose of these provisions along with other provisions occurring in Part II is to facilitate execution of decrees. It is well- known that the real difficulties of a claimant arise after he has obtained a decree from the Courts of law and often he fails in execution proceedings to recover what the Courts have held to be due to him. It appears to me that besides (Downloaded on 28/08/2019 at 10:38:34 PM) (12 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] the fact that a decree-holder should be able to recover what has been held to be due to him by Courts it is the duty of the Courts of law to see that their orders and decrees are enforced and that these orders do not become ineffective on some technical ground if at all possible. The procedure laid down in the Civil Procedure Code for executing decrees is obviously intended to facilitate and not to obstruct their execution provided that the judgment-debtor is not put to undue and unnecessary harassment. Therefore, these provisions should not be so construed as to impede execution of decree or as to raise obstructions in the way of their execution and if it is possible these provisions should be construed to make it convenient to the decree-holders to execute their decrees, (vide Udit Narain Chaudhuri v. Mathura Prasad, ILR 35 Cal 974).
(6) Now Section 38 lays down that a decree is to be executed by the Court that passed it or by the Court to which it has been transferred. There is no provision in the Code, which takes away this jurisdiction of such a Court. Section 37 which purports to explain the term 'the Court which passed the decree" does not exclude the decreeing Court but only empowers certain other Courts to execute them in certain specified circumstances.
It is not necessary to discuss this matter at length as all the High Courts have consistently held that the decreeing Court does not lose jurisdiction to execute the decree because of the provisions in Section 37, Civil Procedure Code (vide Latchman Pundeh v. Maddan Mohun Shye, ILR 6 Cal 513, Jahar v. Kamini Debt, ILR 28 Cal 238, Masrab Khan v. Debnath Malialias Abhu Mali, AIR 1942 Cal 321, Seeni Nandan v. Muthusamy Pillai, ILR 42 Mad 821: (AIR 1920 Mad 427), and Jagannath Nathu v. Ichharam Naroba, AIR 1925 Bom 414). This conclusion has now been approved by the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC
87."
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(13 of 13) [Civil Misc. Application No.257/2018 in CFA No.86/1979] Further, I am also of the opinion that since procedural laws are just handmaid of justice, they should not come in the way of doing substantial justice between the parties to a lis.
18. Another important thing to bear in mind is the locus standi of the non-applicants to contest the instant application. Not only this court vide its judgment dated 20.04.2018 but also the Hon'ble Supreme Court was pleased to dismissed the appeal filed by the appellants-non-applicants. The courts while doing so also gave a categorical finding that the plaintiff-Bansidhar (since deceased) had not right, title or interest in the suit property but merely holding the property as employee/servant of the respondents. Having no right, title or interest in the suit property, the appellants/non-applicants who are legal representatives of the Bansidhar (since deceased) do not have any locus to contest this application and the reply is nothing but a futile attempt to prolong the litigation.
In light of the above discussion, this application deserves to be allowed and is accordingly allowed. The applicants- respondents are entitled to take possession of the suit property. Needles to say that the applicants/respondents would be free to take police or other aid if necessary for the same.
The application stands allowed accordingly.
(PRAKASH GUPTA),J Mohit/Reserved Judgment/165 (Downloaded on 28/08/2019 at 10:38:34 PM) Powered by TCPDF (www.tcpdf.org)