Karnataka High Court
Mr John Moses vs V Keshavamurthy on 23 June, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.499/2014
BETWEEN:
MR. JOHN MOSES
S/O JOHN P.DEVAMANI
AGED ABOUT 40 YEARS
PRESENTLY RESIDING AT
R/O NO.67/3, ST. JOHNS ROAD
BANGALORE-560 042. ...APPELLANT
(BY SRI JAYAVITTAL KOLAR, SR.COUNSEL
A/W SRI. K. SHIVAJI RAO, ADVOCATES)
AND:
1 V. KESHAVAMURTHY
S/O LATE V. VENUGOPAL NAIDU
AGED ABOUT 58 YARS
2 SMT. V. RUKMINI
W/O M. VENUGOPAL
AGED ABOUT 60 YEARS
3. SMT. V. SHAKUNTHALA
W/O SRI ELENGOOVAN
AGED ABOUT 56 YEARS
4. SMT. V. PARIMALA
W/O SRI K. KRISHNAN
AGED ABOUT 52 YEARS
2
5. SMT. V. SULOCHANA
W/O SOMSHEKAR
AGED ABOUT 50 YEARS
6. SRI. V. VENKATAPATHI
S/O LATE V. VENUGOPAL NAIDU
AGED ABOUT 48 YEARS
7. SRI. V. MANOHAR
S/O LATE V. VENUGOPAL NAIDU
AGED ABOUT 54 YEARS
ALL ARE RESIDING AT
NO. 54, BENSON CROSS ROAD
BENSON TOWN
BANGALORE-560 046.
8. M/S STAR OIL CORPORATION
REP. BY PROPRIETOR
MR. ZAHOOR AHAMED SHARIEF
S/O LATE SHARIFF SOOD
NO. 54, BENSON CROSS ROAD
BENSON TOWN
BANGALORE-560 046. .. RESPONDENTS
(BY SRI KIRAN V. RAO, ADVOCATE FOR LEXPLEXUS FOR
C/R-1 TO 7;
SRI B. MARTIN KUMAR, ADVOCATE FOR R-8)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SEC. 96 OF CPC., PRAYING AGAINST THE JUDGMENT AND
DECREE DATED 7.3.2014 PASSED ON I.A.NO.2 IN
EX.NO.2132/2013 ON THE FILE OF THE VII ADDL. SMALL
CAUSES JUDGE, BANGALORE ALLOWING THE I.A.NO.2
FILED UNDER ORDER 21 RULE 99 OF CPC.,
THIS RFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the decree holder is directed against the order passed by the Court of Small Causes in Execution No.2132/2013 dt.7.3.2014 whereunder interlocutory application filed by the applicants under order 21 Rule 99 of the Code of Civil Procedure came to be allowed and the decree holder has been directed to hand over possession of the suit schedule property to the objectors within 15 days from the date of the order and reserving liberty to the applicants/objectors to proceed against the decree holder if he fails to comply with the order by imposing cost of Rs.5,000/-.
2. Though matter is listed for admission by consent of learned Advocates appearing for the parties, it is taken up for final disposal and also in view of the fact that records of the Trial Court has been secured.
3. Parties are referred to by their rankings before the Executing Court.
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4. I have heard the arguments of Sriyuths Jayavittal Rao Kolar, learned senior counsel appearing on behalf of K.Shivaji Rao, counsel for the appellant/applicants and Sri.Kiran V.Rao learned Advocate appearing for respondents 1 to 7 and Sri.Martin Kumar appearing for respondent No.8. Perused the judgment and decree in question as also the records secured from Trial Court.
5. It is the contention of Sri.Jayavittal Rao Kolar, learned counsel appearing for Decree holder that pursuant to the compromise petition filed in S.C.NO.1266/2012, the judgment debtor therein did not deliver possession and as such the decree holder was forced to file E.P.NO.2132/2013 and delivery warrant came to be issued on 17.12.2013 and possession was delivered on 21.12.2013 to decree holder. He drew attention of this Court to paragraph 10 of the Execution Petition filed before the Trial Court in E.P.2132/2013 whereunder it is contended that judgment debtor was to be paid a sum of Rs.5,00,000/- by the Decree holder for removal of machineries and towards expenses 5 including the loss and though the said amount was paid by decree holder, possession was not delivered on account of judgment debtor residing at Dubai and he had asked his General Power of Attorney holder to hand over possession of the suit schedule property to the decree holder after removing machineries and belongings and on account of the said GPA holder not handing over physical possession of the suit schedule property, execution petition came to be filed and contends that trial Court as such has committed a serious error in ignoring this plea advanced which was required to be dealt with by framing charges to lead evidence more particularly, when the application under Order 21 Rule 97 of CPC is filed and the said provision clearly indicated that it has to be tried as a suit since it becomes a deemed decree and contends that none of these aspects have been looked into by the Trial Court. As such the order passed by the trial Court directing the decree holder to deliver possession of the suit schedule property to the applicants/objectors is erroneous, contrary to facts and as such liable to be set aside.
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6. He would further elaborate his submission by contending that application filed by the applicants/objectors under Order 21 Rule 99 was resisted by the decree holder by filing detailed statement of objections which would indicate that same called for recording of evidence and without conducting a full fledged enquiry, trial Court could not have allowed the application summarily and same is opposed to the tenor of Order 21 Rule 99 of CPC read with Rule 102 of CPC and the law laid down.
7. He would also submit when the decree holder is claiming an independent title and to ascertain as to whether said plea is genuine or not, Executing Court ought to have recorded evidence and there has been misreading of the facts by the Trial Court. He would submit that applicants, who sought for delivery of possession of the suit schedule property from the decree holder, based their claim on fraud, misrepresentation, collusion and said plea ought to have been specific and even otherwise trial Court ought to have recorded evidence in this regard and then only it should 7 have arrived at a conclusion as to whether there was fraud and misrepresentation as pleaded.
8. He would also contend that Section 52 of Transfer of Property Act is not a bar for a land lord to file an eviction petition. Mere fact that decree holder had filed an application Under Order 21 Rule 97 of CPC in E.P.No.1819/2011 is no ground to arrive at a conclusion that finding recorded while dismissing the application filed under Order 21 Rule 97 of CPC in E.P.NO.1819/2013 is to be construed as res judicata or the finding recorded thereunder by the said Executing Court and affirmed by the Appellate Court would also be binding in the present proceedings or possession acquired by the decree holder is hit by Section 52 of the Act since it is a transaction pendent lite, since right of the land lord is independent and in the instant case land lord had filed an eviction petition and to enjoy the fruits of decree, E.P.No.1819/2013 was filed and possession taken and on such application filed in present execution proceedings i.e., E.P.No.2132/2013 8 and non-consideration of this vital and as such has resulted in great prejudice to the decree holder.
9. In support of his submission he has relied upon following judgments :-
1. AIR 1926 Oudh 610 -
Mt.Fatima Khanam and another - vs Nawab Raza Ali Khan and another
2. 2003 AIHC 3144 -
Rajeeva Dutta And Others - VS - Punjab Wakf Board and another
3. Mitra's Law of possession 2006 Edition Pgs. 36 and 37
4. (2000) 6 Supreme Court Cases 359- Kunhayammed and others vs. State of Kerala and another
5. (2011) 4 Supreme Court Cases 602 Gangadhara Palo vs. Revenue Divisional Officer and another Hence, he prays for allowing the appeal by setting aside the order passed by Trial Court and dismissing the application filed by the applicants/objectors filed under Order 21 Rule 99 of CPC.
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10. Per contra, Sri.Kiran V Rao, learned counsel appearing for respondents 1 to 7 would support the order passed by the Executing Court contending that applicants were in lawful possession of the suit schedule property (property in question) and on 21.12.2013 decree holder accompanied by the Court Ameen and certain anti-social elements forcibly entered the property in question at about 4.00 p.m. and forced them from out of the premises and without their knowledge, warrant has been executed and it is contended that very suit S.C.No1266/2012 is an outcome of fraud.
11. Elaborating his submission in this regard it is contended by him that 8th respondent herein had been inducted as a tenant of the property in question by the mother of respondents 1 to 7 namely, Smt.Jayalakshmi in the year 1996 i.e., under a registered lease deed dated 17.4.1996 and for eviction of 8th respondent, she filed a suit O.S.NO.10080/2005 and during the pendency of the said suit, she died and respondents 1 to 7 herein came to be brought on record which suit came to be decreed on 25.11.2010 and for executing the decree passed therein, 10 Execution No.1819/2011 was filed by respondents 1 to 7 herein against 8th respondent since he had failed to deliver possession. In the said execution petition an interlocutory application came to be filed by the present decree holder under Order 21 Rule 97 which came to be dismissed on 30.03.2013 and same was challenged by the objector therein, in R.F.A.NO.606/2013, which also came to be dismissed by order dated 30.8.2013 with a finding that compromise decree passed in S.C.NO.1266/2012 was collusive and same had been filed to defeat the rights of respondents 1 to 7. He would also contend that same was brought to the notice of executing Court by the learned counsel for respondents 1 to 7 herein about objector (decree holder herein) in E.P.NO.1819/2011 being aggrieved by said order dated 30.8.2013 had filed an SLP before the Hon'ble Supreme Court in SLP NO.31251/2013 and the said SLP came to be dismissed on 8.10.2013 and contends immediately after the dismissal of the Special Leave Petition, Executing Court in E.P.NO.1819/2011 issued delivery warrant and same was duly executed and possession of the 11 premises in question was taken from the decree holder i.e. the appellant herein by executing the warrant on 21.10.2013 since he had claimed to be in possession by virtue of a compromise decree in S.C.NO.1266/2012.
12. He would also contend that by suppressing facts appellant herein i.e., the decree holder filed a suit against the tenant viz. the 8th respondent in S.C.NO.166/2012, knowing fully well that respondents 1 to 7 herein are agitating their rights over the property in question and despite having such knowledge and intentionally not making Respondents 1 to 7 as parties, filed said petition and entered into a collusive compromise on 30.11.2012 whereunder it was reflected that possession was handed over by 8th respondent to the appellant herein and as per the terms of the compromise petition the jurisdictional Court accepted the same and passed a decree accordingly.
13. He would draw the attention of the Court to the said compromise petition and the documents produced in this regard before the court to contend that even assuming that 12 such a compromise has been entered into, it is tainted with malafides since by virtue of said compromise petition appellant herein came into possession of the property in question and as such he could not have filed an Execution Petition in Execution Petition No.2132/2013 to execute the decree which was not required to be executed since possession had been delivered under compromise petition itself. Hence, he contends that Executing Court on appreciation of these facts rightly came to a conclusion that possession obtained by the decree holder in Execution No.2132/2013 is liable to be set aside or in other words, possession obtained by the decree holder is illegal and Respondents 1 to 7 herein had been unlawfully dispossessed from the property in question and as such order passed directing delivery of possession does not call for interference. Hence, he prays for confirming the said order.
14. He would also submit when the decree holder had filed an application under Order 21 Rule 97 of CPC in Execution No.1819/2011 and got his right adjudicated, the very same issue cannot be agitated in the Execution proceedings in 13 question i.e.E.P.NO.2132/2013 which amounts to res judicata. He also submits that order passed in Execution No. 1819/2011 dismissing the application of the decree holder filed under Order 21 Rule 97 of CPC having been confirmed by this Court in RFA 606/2013 on 30.8.2013 and said order having been affirmed by the Hon'ble Apex Court in SLP NO.31251/2013 by order dated 8.12.2013 cannot be allowed to be re-opened in these proceedings i.e., in E.P.NO.2132/2013 since Executing Court cannot sit in judgment over the order passed in R.F.A.NO.606/2013 and as such, he prays for dismissal of the appeal and also prays for affirming the order passed by the Trial Court. He would also hasten to add mere dismissal would not be sufficient and decree holder has to be imposed with exemplary costs since he was aware of the earlier round of litigation and yet suppressed these facts in S.C.NO.1266/2012 and created a compromise petition collusively with 8th respondent herein and as such both appellant as well as 8th respondent are to be imposed with exemplary costs since earlier orders passed by the Court had been suppressed in order to make a 14 wrongful gain for their personal interest and together have engineered a non-existing dispute by depicting as though a dispute is existing to obtain orders which if not curbed amounts to allowing such unscrupulous litigants taking Courts for granted. Hence, he prays for imposing exemplary costs on the decree holder and in support of his submissions, he has relied upon following judgments :
1) (1994) 1 Supreme Court Cases 1 -
S.P.Chengalvaraya Naidu (Dead) By Lrs - Vs - Jagannath (Dead) By Lrs And Others ;
2) 2102(12) SCC 133 -
V.Chandrasekaran - vs - Administrative Officer and Ors;
3) 2012(6) SCC 430 -
A. Shanmugam - vs - Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam;
4) 2012(11) SCC 574 -
5) 2003(8) SCC 648 -
South Eastern Coalfields - vs - State of M.P. & Ors.
6) 1985(1) SCC 421 -
Chandra Sahi - vs - Anil Kumar Verma, Chikkaballapur;
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7) 2006(4) SCC 412 -
S.Rajeshwri - vs - S.N.Kulasekaran & Ors.
15. Having heard the learned Advocates appearing for the and after examining various contentions raised at the Bar and also on re-appreciating the material evidence available from the records of Trial Court, I am of the considered view that following points would arise for my consideration :-
1) Whether order dated 07.03.2014 passed by 7th Addl.Small Causes Judge, Bangalore allowing 1.A.No.2 filed under Order 21 Rule 99 of CPC by respondents 1 to 7 herein by directing the decree holder to hand over possession of properties in question is liable to be set aside on account of any alleged illegality or irregularity?
OR Whether the order passed by the Executing Court dated 07.03.2014 allowing the application I.A.No.2 deserves to be affirmed or reversed?
2) What order?
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16. Objectors filed an application under Order 21 Rule 99 of CPC seeking restitution of possession of the schedule property measuring 100 ft. x 100 ft. East to West, bearing No.54, Benson Town, Bangalore, contending interalia that decree holder on 21.12.2013, accompanied by Court Ameen and about 40 to 50 anti social elements, forcibly entered into suit schedule property at about 4.00 p.m. and squatted in the property till 9.00 p.m. to oust them from the property under the guise that they are executing the warrant issued by Competent Court by deliberately keeping the objectors in dark. This application was resisted by the decree holder by filing detailed statement of objections. RE: POINT NOS. (1) & (2):
17. In order to adjudicate the points formulated above, few facts are required to be narrated and they are as under :-
At an undisputed point of time viz. in the year 1976 the mother of the objectors (respondents 1 to 7 herein) Smt.K J V Jayalakshmi had inducted 8th respondent as a tenant of suit schedule property and lease deed was executed between the parties and it was duly registered.17
8th respondent was paying rents to Smt. K.J.V. Jayalakshmi and she was collecting the rents. The said Smt.K J V Jayalakshmi filed a suit for ejectment against the tenant viz.
the 8th respondent herein in O.S.NO.10080/2005 on 15.12.2005. Said suit came to be decreed on 25.12.2010.
During the pendency of the suit, Smt.K.J.V.Jayalakshmi expired and her legal heirs i.e., respondents 1 to 7 herein came on record. In order to enjoy the fruits of the decree, legal heirs of Smt.K.J.V.Jayalakshmi filed Execution Petition in E.P.No.1819/2011. In the said execution petition, an application came to be filed by the present decree holder (appellant) under Order 21 Rule 97 CPC contending that tenant, namely 8th respondent herein has handed over possession of the property in question to the appellant pursuant to a compromise decree passed in S.C.NO.1266/2012 and he had an independent right to continue in possession of suit schedule property. Hence, Executing Court was of the view that enquiry is to be held and accordingly, enquiry came to be held and after adjudication of the claim, by order dated 30.03.2013, 18 Executing Court dismissed the application filed by the appellant herein. Said order being a deemed decree, an appeal came to be filed in RFA 606/2013 by the appellant herein, who was objector in said execution proceedings. Said appeal after contest came to be dismissed by judgment dated 30.8.2013 holding that alleged possession of the decree holder is hit by Section 52 of the Transfer of Property Act, 1882 inasmuch as during the pendency of the proceedings i.e., O.S.NO.10080/2005 (filed by Smt.K.J.V.Jayalakshmi against her tenant i.e., 8th respondent) possession had been taken by the decree holder in S.C.No.1266/2012 which culminated in execution proceedings in E.P.No.2132/2013 and he has no independent title to suit schedule property. It was also held in the said judgment that suit brought by the Decree holder in S.C.NO.1266/2012 against the judgment debtor (8th respondent herein) and the compromise petition entered into therein are acts of collusion only to defeat the rights of the objectors (respondents 1 to 7 herein) and accordingly dismissed the said appeal by judgment dated 30.08.2013. 19 Being aggrieved by this order, Special Leave Petition was filed in SLP (Civil) No.31251/ 2013 before the Hon'ble Apex Court which came to be dismissed by the following order :-
"We find no ground to entertain the special leave petition. It is dismissed".
18. At this juncture itself it would be appropriate to deal with the contentions raised by Sri.Jayavittal Rao Kolar, namely, that dismissal of SLP would not come in the way of decree holder filing a separate suit for ejectment or filing objection to the application of the applicants and to seek for adjudication of the said application with a prayer to record oral evidence.
19. At the outset it requires to noticed that said order passed by the Hon'ble Apex court cannot be held as not an order on merits as sought to be contended by Sri.Jayavittal Rao Kolar. He has relied upon the judgment of the Hon'ble Supreme Court in the case of GANGADHARA PALO vs REVENUE DIVISIONAL OFFICER & ANOTHER reported in (2011) 4 SCC 602 whereunder it has been held as follows :- 20
"7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court wile dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If on the other hand, a special leave petition is dismissed with reasons, however meager (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in Kunhayammed v. State of Kerala, S.Shanmugavel Nadar v. State of T.N., State of Manipur v. Thingujam Brojen Meetei and U.P. SRTC v.. Omaditya Verma.)""
As to whether the said judgment relied upon by Mr.Jayavittal Rao Kolar would come to his rescue or not is an issue required to be considered on facts of the present case.
20. As noticed above, Co-ordinate Bench of this Court dismissed the appeal filed by the decree holder in RFA 21 No.606/2013 by judgment dated 30.08.2013 and affirmed the rejection of the application filed by present appellant under Order 21 Rule 97 of CPC which order of this court came to be affirmed by the Apex Court by dismissing the SLP.
21. It has been contended that when order gives no reason and as such it would not prevent the aggrieved parties to seek a review before the Jurisdictional court. In the very same judgment it has been held that if an SLP is dismissed with reasons however meager it can be even of just one sentence, there is merger of judgment with the order of the Supreme Court.
22. In the instant case this Court is not faced with such a situation. Hon'ble Supreme Court while dismissing the SLP has specifically held that there is no ground to entertain SLP. As such this Court is of the considered view that judgment relied upon by Sri.Kolar would not come to the rescue of the appellant, but on the other hand it would 22 support the case of respondents 1 to 7 and the said contention is brushed aside.
23. Now turning back my attention to the facts on hand, records would indicate that decree holder while he was pursuing his grievance in E.P.No.1819/2011 by filing an application under Order 21 Rule 97 CPC on 19.10.2013 contending that he had taken possession of suit schedule premises pursuant to the compromise decree passed in S.C.No.1266/2012 and as such urged for enquiry being held with regard to his title. It was specifically contended by the objector therein i.e., decree holder- appellant herein to the following effect:
"8. the Objector submits that, he filed eviction suit against the judgment debtor in S.C.No.1266/2012 wherein the objector and the judgment debtor got the matter compromised the suit by filing the compromise petition. The judgment debtor stated that in the said compromise petition, he did not know the fact that the objector is the owner of the premises wherein he stayed as a tenant. The judgment debtor after verifying the ownership records of the objector, he confirmed compromised and handed over possession of the rented premises to the objector on the same day.23
(emphasis supplied by me)
24. This application came to be dismissed by the Executing Court by order dated 30.03.2013 and it has been specifically held that objector is not the person who was in possession of the suit schedule property any time prior to the compromise petition dated 30.11.2012 recorded in S.C.No.1266/2012 nor the person who leased the premises to the judgment debtor. For this reason amongst others as assigned by the Executing Court the application filed by the objector therein under Order 21 Rule 97 CPC i.e., by the decree holder-appellant herein came to be rejected by order 30.3.2013. Aggrieved by this order, an appeal came to be filed by the objector in RFA No.606/2013. Appellant claimed that he was in lawful possession of suit schedule property and decree holders namely, the legal heirs of Smt.K.J.V.Jayalakshmi could not have initiated the execution proceedings in E.P.No.1819/2011 on the ground that he is having an independent title to the property, thereby enquiry was required to be conducted. It is in this 24 background, a co-ordinate Bench of this Court while considering the contentions of the parties and particularly that of the objector (appellant herein) as to whether the Executing Court (E.P.No.1819/2011) was required to hold an enquiry namely, record evidence or whether the possession of the objector could be construed as lawful possession and not hit by Section 52 of Transfer of Property Act, 1882 and the effect of the ejectment suit i.e., S.C.No.1266/2012 filed by respondents 1 to 7 herein came to be adjudicated and answered by judgment dated 30.08.2013. Co-ordinate Bench noticed that the judgment debtor in E.P.No.1819/2011 had dealt with the suit schedule property which was the subject matter of decree passed in O.S.No.10080/2005 and this dealing had the effect of affecting the rights of the decree holder and therefore it would be a transfer in favour of the applicant authority to 'a transfer pendente lite' and as such, it is hit by Section 52 of Transfer of Property Act, 1882.
25. Though Mr.Jayavittal Rao Kolar, learned Sr.Counsel would vehemently contend that dehorse recording of such 25 finding by a co-ordinate Bench of this Court, still this Court has the power to re-examine the said issue requires to be considered with utmost circumspection and for purposes of outright rejection, inasmuch as, this Court cannot sit in judgment over the judgment and decree passed by a co- ordinate Bench and such exercise cannot be undertaken. Further, judgment and decree passed by this Court has been affirmed by Hon'ble Apex Court in SLP No.31251/2013 vide order dated 08.10.2013. Thus, the finding recorded by the Executing Court in E.P.No.1819/2011 dismissing the application filed by the obstructor therein i.e., decree holder- appellant herein by order dated 30.03.2013 and same having been confirmed by co-ordinate Bench of this Court by order dated 30.08.2013 in RFA No.606/2013 and same having been affirmed by the Hon'ble Apex Court in SLP No.31251/2013, decree holder-appellant cannot be allowed to contend that very same contentions can be either urged by him in these proceedings or it was incumbent upon the Executing Court trying E.P.No.2132/2013 to deal such contentions and/or this Court as an appellate Court is 26 required to re-examine the said issue. Said contention cannot be accepted and it stands rejected.
26. The decree holder in the instant case engineered a litigation by filing S.C.No.1266/2012 seeking ejectment of 8th defendant from the suit schedule property contending interalia that he is the owner of the property and 8th respondent is his tenant. The decree holder was very well aware of the fact that a suit O.S.No.1949/1980 had filed against Smt. K.J.V. Jayalakshmi and others and the judgment and decree passed thereon dismissing the suit on 29.1.2002 was being pursued by the parties before this Court in RFA No.504/2002 & 611/2002 and other connected matters, inasmuch as, he himself had filed an application to get himself impleaded in those proceedings on the ground that he is a necessary and proper party. Said application came to be dismissed vide order dated 01.02.2012 and it is immediately thereafter he filed the ejectment suit S.C.1266/2012 on 03.10.2012 without arraying respondents 1 to 7 herein as parties and suppressing these facts. Even assuming for a moment as 27 contended by Mr.Jayavittal Rao Kolar, learned Sr.Counsel that in a suit for ejectment filed by the landlord, third parties are not required to be impleaded, in the instant case, it would not stop at it, particularly when both the decree holder as well as respondents 1 to 7 herein were asserting their respective rights over the suit schedule property. Be that as it may. The decree holder-appellant after filing ejectment suit in S.C.1266/2012 on 03.10.2012 within a short span of two months entered into a compromise with the 8th respondent herein i.e., the sole respondent in S.C.No.1266/2012 on 30.11.2012 whereunder it was reported that both parties had settled their disputes and in view of compromise entered into by the tenant, the decree holder had paid a consideration amount of Rs.5 lakhs. This seems to be the price for which the litigation came to be bought by the decree holder which also requires to be taken note of by this Court while answering point No.2. Parties to S.C.No.1266/2012 as observed herein above seems to have entered into a compromise petition, the copy of which came to be produced before the Executing Court and clause 10 28 would indicate that possession had been delivered to the plaintiff on the same day. The relevant clause in the compromise petition reads as under:
"10. The defendant has handed over the vacant possession of schedule premises to the plaintiff today in the presence of the witnesses before this Hon'ble Court. The defendant has given up his right, claims, possession in xxx above referred property."
(emphasis supplied)
27. This would clearly indicate that even assuming for a moment there was a lawful compromise between the parties and the contents of said compromise is to be accepted at its face value, then, it has to be presumed that contents thereof to be true. The factum of possession having been taken over by the decree holder-appellant under the compromise entered into in S.C.1266/2012 is also fortified by the fact about such delivery of possession having been recorded by the Executing Court after ascertaining the same from the parties present before it. The order sheet in S.C.No.1266/2012 would indicate that terms of the compromise petition had been read over and explained by 29 the learned trial Judge to the parties and only when they admitted the contents of compromise petition to be true and admitting the due execution of compromise petition, it came to be accepted. It has been recorded in the order sheet dated 30.11.2012 in S.C.No.1266/2012 asunder:
"Parties and their respective counsels are present. They file compromise petition U/Or.23 R 3 R/w Sec.151 of CPC.
The terms of compromise petition are read over and explained to the parties in the language known to them.
Both of them admit the same to be true and correct. Defendant admits that plaintiff is the owner of the schedule premises. The plaintiff admits that defendant has handed over vacant possession of the schedule property. Defendant reports receipt of Rs.5,00,000/- from the plaintiff. Compromise petition is accepted as the same appears to be executed between the parties on their own will and volition.
Suit is disposed of in terms of compromise petition. Full Court fee shall be refunded in favour of plaintiff.
Draw decree accordingly.
Sd/-
30.11.2012 VI Addl.Judge 30
28. The above recording of compromise petition by the trial Judge would clearly indicate that possession of suit schedule property was delivered by the defendant therein to the plaintiff i.e., the decree holder - appellant herein. In other words, appellant had come into possession of suit schedule property by virtue of a compromise petition entered into in S.C.1266/2012. If the contents of compromise petition as well as what came to be recorded by the trial Judge after ascertaining from the parties present before the Court are to be accepted as true, it is rather surprising and intriguing as to when the said possession secured by decree holder -
appellant was lost or in other words as to when appellant got divested of such possession. This has remained a moot question and there is not even a whisper anywhere in the pleadings in this regard. However, surprisingly the plaintiff in S.C.No.1266/2012 files an execution petition in E.P.No.2132/2013 intending to execute the decree passed in S.C.No.1266/2012 on the alleged ground of defendant -
judgment debtor having not delivered possession. The question would be as to whether there was any such 31 necessity to file Execution Petition at all? and the answer will have to be 'No', inasmuch as, the decree holder in E.P.No..2132/2013 had already secured possession by virtue of compromise decree and there was no need or necessity to file an execution petition giving a complete go-by to what had been stated before the trial Court in S.C.No.1266/2012.
However, to overcome admission made and to somehow obtain an order from the Court for the purposes of building up of records and to improvise his case stage by stage and step by step, he engineered or filed E.P.No.2132/2013 and in the said Execution petition he has stated with regard to possession still being continued with the agent of the decree holder and his pleading at column No.10 of Execution Petition No.2132/2013 reads as under:
"10. It is decreed xxx schedule property. As the defendant residing in Dubai he asked his GPA Mr. to handover possession of the suit schedule property to the decree holder after removing the machineries and other belongings. But the said GPA of the said judgment debtor has not yet handed over the physical possession of the suit schedule property. Hence, this petition."32
29. At the cost of repetition, it requires to be noted that the decree holder - appellant had already stated before the trial Court adjudicating S.C.NO.1266/2012, which received and accepted the compromise petition, that possession of suit schedule property had been received by him. If it is so, the plea putforward in the Execution Petition has to be held as a figment of lie and cannot be believed by any stretch of imagination.
30. Again turning my attention back to the Execution Petition filed by the legal heirs of K.G.V.Jayalakshmi i.e., E.P.No.1819/2011 which was filed by them to execute the decree passed in O.S.No.10080/2005, records would indicate that said Execution Petition was filed on 26.11.2011 and in the said Execution Petition, the very same decree holder had filed an application as an objector and it came to be dismissed, confirmed by a co-ordinate Bench of this Court and affirmed by Hon'ble Apex Court on 08.10.2013. It is thereafter i.e., on the next day i.e., on 09.10.2013, Executing Court issued delivery warrant with police help and it was duly executed on 21.10.2013 and possession was obtained 33 by respondents -1 to 7 herein from the decree holder i.e.., appellant herein since he had come into possession of the suit schedule property by virtue of collusive compromise decree entered into between himself and 8th respondent herein and had taken possession of suit schedule property under the guise of executing a decree which has been held to be a collusive decree and hit by Section 52 of Transfer of Property Act, 1882 and there was no existence of jural relationship of landlord and tenant between decree holder herein - appellant and the 8th respondent.
31. Being aware of these facts, decree holder had obtained possession by filing an Execution Petition in No.2132/2013 on 29.10.2013 by not only suppressing the material facts before the Executing Court but also by using trick and stratagem.
32. Fact that respondents 1 to 7 had taken possession of the suit schedule property through the process of Court having been suppressed and appellant having been divested or ousted of possession of suit schedule property had 34 approached the Executing Court by filing an application under Order 21 Rule 97 CPC. When this application was filed, decree holder reiterating his earlier stand namely, claiming an independent title to suit schedule property, contended that it has to be adjudicated under Rule 102 of Order 21 CPC.
33. The Hon'ble Apex Court in the case of SILVERLINE FORUM PVT. LTD., vs. RAJIV TRUST AND ANOTHER reported in AIR 1998 SC 1754 has held that adjudication referred to in Rule 97 (2) of Order 21 CPC does not necessarily involve a detailed enquiry or collection of evidence. It has been held by the Hon'ble Apex Court as under:
"13. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to 35 adduce evidence for such determination if the Court deems it necessary.
If an objector in such an application files objections for decree being executed against him and said objections would prima facie indicate that it is a bonafide claim or the objection is not tainted with malafides to protract the proceedings or such objector is not indulging in the decree being frustrated on false, frivolous, vexatious ground, then, in such an eventuality, the Executing Court enjoins the power to direct the parties to tender evidence to substantiate their respective claims. In other words, the Executing Court has to objectively satisfy itself about there being genuineness in the claim and if the objections filed by the objector on the face of it not being tenable, bonafide or is made to protract the proceedings, then, necessarily it can reject such an application at the threshold itself.
It has been held by the Hon'ble Apex Court in KAZI AKEEL AHMED vs. IBRAHIM AND ANOTHER (1996)8 SCC 372 as under:
"8. We have given serious consideration to the facts of the present case and the 36 submission made by the learned counsel for the appellant. It is true that when an application under Order 21 Rule 97 of the Code is made, it contemplates an investigation into the claim made in the application, in accordance with the provisions contained in Rule 98 and the rules following thereafter. But in the special facts and circumstances of the present case, we see no reason to hold such an enquiry or investigation as the same would be a futile exercise in view of the fact that civil suit instituted by Respondent 2 Girraj making the same claim as has been made by him in his application under Order 21 Rule 97 has been dismissed by the civil court on 02.11.1995. A perusal xxx Court of Law."
34. Keeping these contours laid down by Hon'ble Apex Court in mind, when the facts on hand are examined, at the cost of repetition, it has to be stated that records would indicate that decree holder in the instant case being fully aware and conscious of the fact that at the first instance, in the title suit which was pending before this Court in RFA Nos.504/2002 c/w 611/2002 ventured into filing an application to get himself impleaded and suffered an order of rejection of the said application by order dated 01.02.2012. 37 It has been observed by a co-ordinate Bench of this Court while dismissing the said application as under:
"It is to be noticed xxx in any manner and if he is indeed the owner of suit property and if there is interference, it is open for him to work out his remedy in appropriate proceedings. Since this appeal xxx application is rejected."
The decree holder knew way back on 01.02.2012 itself about the right of legal heirs of Smt.K J V Jayalakshmi namely, mother of respondents - 1 to 7 herein. After dismissal of this application, he filed a suit for ejectment on 18.08.2012 against 8th respondent who was also agitating his claim in RFA No.612/2002 as 11th respondent by filing an application to get himself impleaded instead of filing a suit for declaration of his title. It is also to be noted that decree holder had also sought for himself getting impleaded in the said appeal. In other words, both the parties i.e., decree holder as well as judgment debtor were very well aware of the title of the suit schedule property was held to be with Smt.KJV Jayalakshmi in the suit O.S.No.1949/1980 which was challenged in RFA Nos.504/2012 and 611/2012. Despite this fact, decree holder immediately after dismissal 38 of his application for impleadment in RFA No.504/2002 filed a suit for ejectment in S.C.No.1266/2012. Copy of the plaint in S.C.No.1266/2012 which is part and parcel of records of Executing Court, when perused, would indicate that decree holder has not whispered a word about earlier disputes and has depicted as though it is a simple suit for ejectment. Thus, decree holder is guilty of 'suppressio veri suggestio falsi' He has suppressed true facts and has suggested falsehood to the Court to obtain order by this method which not only requires to be frowned upon but also required to be dealt with firmly.
35. Hon'ble Apex Court while examining as to what amounts to subversion of justice or abuse of the process of the Court, in the case of V CHANDRASHEKARAN AND ANOTHER vs ADMINISTRATIVE OFFICER AND OTHERS reported in (2012)12 SCC 133 has held that judicial process cannot be used to subvert itself where pleadings containing false, misleading or inaccurate statements to achieve ulterior purposes and held it amounts to abuse of the process of 39 Courts. It has been held by the Hon'ble Apex Court as under:
"45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court."
(emphasis supplied)
36. A Court would lend its hands of justice, who does justice. A person who comes to the Court with unclean hands and attempts to profit himself by frivolous litigation if not dealt with sternly, the purity of judicial stream would get polluted. Every litigant is expected to state the truth before the Court of law and not make attempts to subvert the judicial system for personal gains either by suppressing the true facts or by depicting improper facts that too, on oath. In the case of A. SHANMUGAM VS. ARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA NANDHAVANA 40 PARIPALANAI SANGAM REPRESENTED BY ITS PRESIDENT AND OTHERS reported in (2012) 6 SCC 433, it has been held by the Hon'ble Apex Court as under:
"26. As stated in the preceding paragraphs, the pleadings are the foundation of litigation but experience reveals that sufficient attention is not paid to the pleadings and documents by the judicial officers before dealing with the case. It is the bounden duty and obligation of the parties to investigate and satisfy themselves as to the correctness and the authenticity of the matter pleaded.
27. The pleadings must set forth sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the Court must carefully look into it while deciding a case and insist that those who approach the Court must approach it with clean hands.
35. Unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled for litigations. Experience also reveals that our Courts have been very reluctant to grant the actual or realistic costs. We would like to explain this by giving this 41 illustration. When a litigant is compelled to spend Rs.1 lakh on a frivolous litigation there is hardly any justification in awarding Rs.1,000/- as costs unless there are special circumstances of that case. We need to decide cases while keeping pragmatic realities in view. We have to ensure that unscrupulous litigant is not permitted to derive any benefit by abusing the judicial process.
43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts."
As held by the Hon'ble Apex Court in the above referred judgment, dishonest and unscrupulous litigants have no place in the Courts of law and dicta laid down by Hon'ble Apex Court is squarely applicable to the facts on hand. As already discussed herein above and at the cost of repetition, it is to be noted that decree holder rightly or wrongly filed a suit for ejectment in S.C No.1266/2012 and within a short span of 1½ months, they got the matter compromised by filing a compromise petition in the said suit and depicting thereunder that decree holder had paid a sum of Rs.5.00 lakhs to the judgment debtor for parting with 42 possession of the suit schedule property. It was also stated in the said compromise petition that possession was delivered to decree holder by judgment debtor. The learned trial Judge having ascertained from the parties present before the Court as to whether contents of compromise petition are true and correct and satisfying himself that parties have agreed that contents of compromise petition are true, accepted the compromise petition and recorded the same. It was also recorded by the learned trial Judge that possession had been delivered by defendant in favour of the plaintiff i.e., decree holder. If possession had been delivered on the day compromise petition was filed, decree holder could not have initiated execution proceedings for taking possession at all. If he intended to execute the decree, then necessary inference that will have to be drawn is that contents of compromise petition were untrue and parties have not stated truth before Court while recording the compromise. In the Execution Petition No.2132/2013, decree holder has contended that pursuant to the compromise decree, possession was not delivered. It is 43 because of this precise reason, co-ordinate Bench of this Court while adjudicating RFA No.606/2012 has held that the very filing of S.C No.1266/2012 is a collusive proceedings and the act of delivering possession by the defendant to the plaintiff i.e., decree holder herein is hit by doctrine of pendente lite i.e., Section 52 of Transfer of Property Act, 1882 which finding has been affirmed by the Hon'ble Apex Court.
37. In that view of the matter, question of adjudicating the title of the decree holder did not arise and Executing Court has rightly ordered for restitution of possession in favour of the objectors namely, legal heirs of Smt.KJV Jayalakshmi.
38. In that view of the matter, appeal not only lacks merit but also liable to be dismissed with exemplary costs.
39. In the result, I proceed to pass the following:
JUDGMENT.
(1) Appeal is hereby dismissed with costs.44
(2) Judgment and decree passed by Court of Small Causes, Bangalore in Ex.No.2132/2013 dated 07.03.2014 is hereby affirmed.
(3) Appellant shall pay cost of Rs.50,000/- to the respondents 1 to 7 within four weeks from today, failing which they would be entitled to recover the same by filing an execution petition before the jurisdictional Court.
Sd/-
JUDGE Rsm/sp