Himachal Pradesh High Court
Mr.R.L Sood vs Mr.Y.P. Sood on 18 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CMP No.4316 of 2019
In
.
Ex.Petition No.2 of 2018
In
CR No.125 of 2016
Judgment Reserved on: 26.08.2019
Date of decision: 18.09.2019
Rohit Madan .... Non-Objector-Decree Holder
Versus
Narinder Kumar & Others .... Objector-Judgment Debtor
Coram
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Petitioner-Non-Objector- : Mr.R.L Sood, Senior Advocate
DH with Mr.Arjun Lall, Advocate.
For Respondent No.1-Objector-JD : Mr.Y.P. Sood, Advocate
Sandeep Sharma,J.
By way of objections filed under Section 47 of the Code of Civil Procedure (for short 'CPC'), a prayer has been made on behalf of Objector-Judgment Debtor-Original Petitioner Mr.Narinder Kumar (hereinafter referred to as 'JD') for dismissal of Execution Petition No.2 of 2018, having been filed by the Non-
Objector-Decree Holder-Original respondent No.1, Mr.Rohit Madan (hereinafter referred to as 'DH') seeking therein execution of judgment dated 03.08.2018, passed by this Court in Civil Revision No.125 of 2016, whereby this Court, while holding JD to be 1 Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 2trespasser, directed him to deposit a sum of Rs.52,500/- as mesne profits w.e.f. 30.06.2011.
2. The execution/implementation of judgment sought to .
be executed in the instant proceedings is objected to by the JD on the following grounds:-
(i) That the judgment passed by this Court in Civil Revision No.125/2016 is not a decree as envisaged under Section 2(2) CPC and same cannot be executed in the instant proceedings.
(ii) That the judgment passed by this Court in aforesaid revision petition is nullity and is not executable against objector for the reasons that the objector was not party at any stage of proceedings and no order of eviction ever came to be passed against him, therefore, the present petition, being not competent in law, is liable to be dismissed.
(iii) That the judgment as sought to be executed is nullity since this Court lacked inherent jurisdiction to pass any order with regard to payment of mesne profits against the objector.
(iv) The order for payment of mesne profits can only be passed by the appellate authority or in revision filed under the provisions of H.P. Urban Rent Control Act, 1987 in case the tenant, in appeal or revision filed against the order of ejectment passed against him, seeks the stay of execution of order of eviction during the pendency of appeal/revision.::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 3
3. Before determining the correctness and genuineness of the aforesaid grounds raised by the JD to the execution of judgment sought to be executed in the instant proceedings, this .
Court, with a view to have bird's eye view, deems it necessary to take note of certain undisputed facts, which have led to filing of instant execution petition. In the year 1997, DH gave shop No.2, Ground Floor, Long Acre Estate, The Ridge, Shimla, (hereinafter referred to as the 'demised premises') on rent to Dr.Kailash Kumar Kashyap for commercial purposes. In the year 2006, Rohit Madan (hereinafter referred to as the 'landlord-successor of original landlord Shri Narinder Nath Madan), filed a petition for ejectment of the aforesaid tenant on the ground of carrying out additions and alterations in the demised premises without concurrence of landlord. Eviction petition, referred hereinabove, came to be allowed vide order dated 30.06.2011, passed by the Rent Controller-I, Shimla in Rent Application No.8-2 of 2006, titled as Rohit Madan vs. Dr.Kailash Kumar Kashyuap. Being aggrieved and dissatisfied with the aforesaid ejectment order passed by the Rent Controller, tenant, as named hereinabove, filed an appeal before the Appellate Authority i.e. District Judge, Shimla, who vide order dated 27.07.2013, passed in Rent Appeal No.59-S/14 of 2011, titled as Dr.Kailash Kumar Kashyuap vs. Rohit Madan, dismissed the same, as a consequence of which, order of eviction dated 30.06.2011, passed by the Rent Controller-I, Shimla, H.P. came to be upheld.
::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 44. It is not in dispute before this Court that both tenant and landlord accepted the findings of fact as well as order of ejectment. However, after issuance of warrant of possession, JD .
Narinder Kumar filed a revision petition under Section 24(5) of the H.P. Urban Rent Control, Act, 1987 (hereinafter referred to as the 'Act'), in this Court, praying therein to set aside the eviction order dated 30.06.2011, which was further upheld by the Appellate Authority vide judgment dated 27.07.2013.
5. The JD in Civil Revision raised a ground that the impugned order passed by the Appellate Authority upholding the order of Rent Controller is highly illegal, wrong, unjust and contrary to the facts and circumstances of the case and, as such, same deserves to be set aside.
6. He further alleged that both the Authorities below have failed to exercise jurisdiction vested in them by passing order of eviction without appreciating that the premises in dispute are in the 'Ground Floor' of the four storeyed building of which upper three storeyes are owned by different owners. He further alleged that no rebuilding or reconstruction work is possible in the 'Ground Floor' until or unless the upper storyes of the building are not demolished. He further alleged that Authorities below have committed grave illegality and material irregularity by not appreciating that before ordering the eviction of the tenant on the ground that "premises being required for the purpose of rebuilding and reconstruction", satisfaction is required to be recorded to the effect that the intended rebuilding/reconstruction and alterations ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 5 are of such a nature, which cannot be carried out without getting the premises vacated. JD also raised a ground that order of eviction has been got passed in collusion of tenant and landlord.
.
He alleged that he had taken 'Ground Floor' of the premises on rent from original tenant - Dr.Kailash Kumar Kashyap in October, 2009 and since then he has been carrying on his business in the same under the name and style of 'Special Tibetan & Chinese Food Shop'. He alleged that in the year 2010, original tenant Dr.Kailash Kumar Kashyap had started issuing threats to dispossess him from the premises and, as such, he, with a view to protect his possession and illegal dispossession, filed a Civil Suit against respondent No.2 Dr.Kailash Kumar Kashyap in the Court of learned Civil Judge (Jr.Division), Court No.6, Shimla, with a prayer to restrain respondent No.2 from dispossessing him from the premises in his occupation, except by following due process of law. He further stated in the revision petition that since original tenant died after decision rendered by the Appellate Authority in the appeal and as such revision petition at hand is being filed against him through his widow and legal representatives.
7. Alongwith aforesaid revision petition, JD also filed a separate application bearing CMP No.7228 of 2016, seeking therein leave to file revision petition. JD also filed an application, bearing CMP(M) No.1489 of 2016, for condonation of delay in maintaining the Revision Petition. It also emerge from the record that pending adjudication of Revision Petition, referred hereinabove, the execution and operation of the impugned order ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 6 dated 27.7.2013, passed by District Judge, Shimla (exercising powers of Appellate Authority under H.P. Urban Rent Control Act, 1987) in Rent Appeal No.59-S/14 of 2011, titled as Dr.Kailash .
Kumar Kashyap vs. Rohit Madan, referred hereinabove, came to be stayed vide order dated 22.9.2016, passed by this Court in Civil Revision.
8. Record further reveals that during the pendency of Revision Petition, DH filed an application bearing No.6299 of 2017, seeking therein direction to JD to pay mesne profits.
9. Careful perusal of judgment dated 03.08.2018 passed by this Court in Civil Revision No.125 of 2016, filed by JD, further reveals that the Court formulated following questions for its determination:-
(a) As to whether compromise arrived at between the parties to the lis through their counsel, as recorded in the record of proceedings of the learned Mediator is binding upon them and that the Court is bound to accept the same as such, making it executable in law?
(b) As to whether an unauthorized person claiming to be a sub-tenant/trespasser can be said to be "any aggrieved party", having any right to prefer a petition under Sub-
Section (5) of Section 24 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act).
(c) Whether the petitioner has got any locus to challenge the findings returned by the authorities under the Act?
(d) Whether findings returned by the authorities below are based on correct and complete appreciation of material placed on record?
::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 7(e) Whether such findings are result of collusion between the landlord and the tenant?
(f) Whether the petitioner is liable to pay use and occupation charges @ 52,500/- per .
month and if so? Then for what period and from which date?"
10. Subsequently, this court vide judgment dated 03.08.2018, which is sought to be executed in the instant execution proceedings, though dismissed the application having been filed by the JD, seeking therein leave to file revision, however, proceeded to adjudicate other connected ancillary issues on merits. Vide aforesaid impugned judgment, this Court held the JD to be trespasser in the property and while allowing application for mesne profits (CMP No.6299 of 2016), filed by DH, directed JD to pay a sum of Rs.52,500/- per month, w.e.f. 30.06.2011 i.e. the date of passing of order of ejectment within a period two months from the date of passing of the impugned judgment.
11. Being aggrieved and dis-satisfied with the aforesaid judgment passed by this Court in CR No.125 of 2016, JD filed a Special Leave Petition bearing No.SLP(C) 25892 of 2018 in the Hon'ble Supreme Court of India (Annexure-PB). In the aforesaid proceedings filed before the Hon'ble Apex Court, JD made a statement that he is willing to vacate the suit premises on any terms and conditions, which may be fixed by this Court and, as such, Hon'ble Apex Court vide order dated 4.10.2018 (Annexure PA) issued notice limited only to the aforesaid statement made by the JD.
::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 812. On 20.11.2018, DH filed the present Execution Petition No.2 of 2018, seeking therein execution/implementation of order dated 03.08.2018 passed by this Court in CR No.125 of .
2016.
13. On 16.05.2019, objection under Section 47 of CPC came to be filed on behalf of JD, wherein JD sought dismissal of execution petition on the grounds taken note hereinabove. Before this objection could be heard and decided on merit by this Court in instant proceedings, Hon'ble Apex Court vide order dated 01.07.2019 dismissed the SLP filed by the JD by categorically observing therein that "We see no reason to interfere with the impugned order passed by the High Court", as consequence of which, judgment dated 03.08.2018 passed by this Court in CR No.125 of 2016 attained finality.
14. Now, in the aforesaid background, this Court shall proceed to decide the objections to the execution petition filed by the JD.
15. I have heard learned counsel for the parties and gone through the record of the case.
16. Mr.Y.P. Sood, learned counsel representing the JD, argued that order dated 03.08.2018, passed by this Court in Civil Revision No.125 of 2016, is not a decree in terms of Section 2(2) of CPC and, as such, the same is not executable under Order 21 Rule 1 CPC, which otherwise provides for execution of decree.
Mr.Sood further contended that judgment sought to be executed is a nullity because that Court lacked inherent jurisdiction to pass ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 9 any order with regard to the payment of mesne profits against the JD and, as such, the same is not executable against the JD.
17. As per Mr.Sood, order for payment of mesne profits .
could only be passed by the Appellate Authority under the provisions of the H.P. Urban Rent Control Act. He further argued that order of payment of mesne profits could only be passed in revision petition filed under the provisions of Act, had tenant in revision made prayer to stay the ejectment order passed against him during the pendency of revision.
18. Lastly, Mr.Sood argued that since JD was not a party at any stage of proceedings and no order of eviction ever came to be passed against him, this Court exercising revisionary powers under Section 24(5) of the Act could not have levied mesne profits, which are now being sought to be realized by way of instant proceedings. While placing reliance upon judgments of the Hon'ble Apex Court, as taken note hereinabove, Mr.Sood, contended that plea of lack of jurisdiction can always be taken during execution proceedings. He further argued that jurisdiction cannot be conferred upon a Court by way of acquiescence or waiver if it otherwise does not have jurisdiction and as such, mere filing of revision petition by JD, seeking therein stay of order of execution, cannot be construed to be waiver or acquiescence on behalf of JD as far as jurisdiction of the Court is concerned.
Mr.Sood, while inviting attention of this Court to Section 26 of the Act, also contended that the order passed by the Controller or an order passed on appeal under Act is executable by Controller ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 10 under decree of Civil Court, but, order, if any, passed by High Court, while exercising reversionary powers under Section 24(5) of the Act levying/granting mesne profits/use and occupation .
charges, cannot be termed to be decree and, as such, the same is not executable in the instant proceedings. Mr.Sood, in support of his contention, placed reliance upon the followings judgments and claimed that plea of inherent lack of jurisdiction can be raised at the stage of execution:-
"1. Kiran Singh and others vs. Chaman Paswan and others, AIR 1954, SC 340.
2. Hira Lal Patni vs. Sri Kali Nath, AIR 1962 SC 199.
3. Smt.Isabella Johnson vs. M.S. Susai (dead) by Lrs. AIR 1991 SC 993.
4. Jagmittar Sain Bhagat and others vs. Director, Health Services, Haryana and others, (2013)10 SCC 136.
19. Mr.R.L. Sood, learned Senior Counsel assisted by Mr.Arjun Lall Sood, Advocate, has strenuously argued that grounds as raised by JD in the objections are frivolous and cannot be taken into consideration while considering execution petition filed by DH, who is otherwise fighting legal battle since 2006 with a view to get his premises vacated. Mr.Sood, while making this Court to peruse the pleadings as well as documents adduced on record by respective parties, made a serious attempt to persuade this Court to agree with his contention that repeatedly attempts have been made by JD to hoodwink and mislead the Court by filing false and misleading affidavits. Mr.Sood further contended ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 11 that since order for payment of mesne profits came to be filed in proceedings under Section 24(5) of the Act, it cannot be said that judgment sought to be executed is not a decree executable in the .
instant proceedings. While referring to the ground taken by JD in SLP filed by him, Mr.Sood vehemently argued that all the grounds taken in the petition as well as canvassed by the learned counsel representing JD stand decided against JD and as such objection, if any, to the execution petition filed by the DH deserves outright rejection with heavy costs. While referring to the judgment passed by Hon'ble Apex Court in Subrata Roy Sahara vs. Union of India and Others, (2014)8 SCC 470, Mr.Sood prayed that this Court, while directing JD to make payment in terms of the judgment sought to be executed, may also take stringent action against JD, who, at every stage, made an attempt to delay the proceedings by initiating frivolous litigation that too without there being any locus.
20. Though, cursory look of provisions contained in Order 21 Rule 1 CPC suggests that money decree, if any, passed by competent Court of law, can be executed under aforesaid provisions in the mode and manner prescribed therein, but, Section 36 CPC clearly provides that provisions of CPC relating to the execution of decree (including provisions relating to payment under a decree) shall be deemed to apply to the execution of orders including payment under an order. It would be apt to take note of Sections 36, 37 & 38 of CPC, which specifically deal with the ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 12 execution of decree and order. Sections 36, 37 and 38 of CPC provide as under:-
"Section 36 of Code of Civil Procedure 1908 .
"Application to orders"
The provisions of this Code relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order)"
"Section 37 of Code of Civil Procedure 1908 "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.
Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit."
"Section 38 of Code of Civil Procedure 1908 "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."
Close scrutiny of provisions under Order 36 clearly suggests that the provisions with regard to execution of decree ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 13 provided in CPC would also apply to the execution of orders including payment under an order and, as such, arguments advanced by Mr.Sood that under Order 21 Rule 1 CPC only the .
decree passed by Civil Court can be executed deserves outright rejection.
21. Undisputedly, in the case at hand, order sought to be executed came to be passed by this High Court exercising revisionary powers under Section 24(5) of the Act and, as such, in terms of Section 37 CPC, aforesaid order passed by the High Court, under Section 24(5) of the Act, can be executed by that Court. Section 36 CPC, as has been taken note hereinabove, clearly provides for execution of decree (including provisions relating to payment under a decree). Moreover, Section 38 CPC further provides that decree could be executed either by the Court which passed it or by the Court to which it has sent for execution.
22. Admittedly, in the instant case, order sought to be executed, which is otherwise executable in terms of Section 36 CPC, has been passed by this Court and, as such, it cannot be said that this Court has no jurisdiction to entertain the execution petition at hand, meaning thereby that this Court is well within its jurisdiction to execute the order.
23. Another argument raised on behalf of JD that order sought to be executed is nullity in the eye of law because the Court, while passing the same, had no jurisdiction to pass any order with regard to payment of mesne profits against the Objector, but, this argument is wholly misconceived on account of the fact that order sought to be executed came to be passed in ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 14 petition filed by JD under Section 24(5) of the Act, while exercising revisionary powers.
24. It is quiet apparent from the record/facts of the case, .
which has been otherwise taken hereinabove, that neither JD is/was original tenant nor he ever tried to set up a case in rent proceedings that he is sub-tenant inducted in tenanted premises by the original tenant. Record reveals that after passing of eviction order dated 30.06.2011 passed by the Rent Controller, Shimla, in the rent petition having been filed by DH, JD instead of getting himself arrayed as a party in the appeal, having been filed by the original tenant before the Appellate Authority, filed a suit in the Court of Civil Judge (Sr.Division), Court No.6, Shimla, seeking therein injunction order so that he is not evicted from the tenanted premises. It is also not in dispute that JD never chose to become party in appellate proceedings initiated at the behest of original tenant, rather he, after dismissal of appeal filed by original tenant, filed an application under Order 21 Rule 26 CPC in the execution proceedings filed by DH before the executing Court stating therein that he is in peaceful and settled possession of shop No.2, Ground Floor, Long Acre Estate, The Ridge, Shimla, i.e. 'demised premises' as a tenant at the rent of Rs.6000/- per month. It is after issuance of warrants of possession by the executing Court, the JD approached this Court by way of Civil Revision Petition No.125 of 2016, seeking stay of execution of order dated 27.7.2013 passed by the District Judge, Shimla exercising the powers of Appellate Authority under H.P. Urban Rent Control Act in a rent appeal filed ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 15 by DH. This Court vide order dated 12.09.2016 stayed the aforesaid order passed by the Appellate Authority.
25. Interestingly, JD in the Revision Petition, filed by him .
before this Court, raised grounds which otherwise ought to have been raised by the original tenant, had he filed revision petition being aggrieved with the judgment passed by the Appellate Authority affirming the order of eviction. In the case at hand, JD never chose to get himself impleaded as a party-respondent in the rent proceedings specifically stating therein that he was inducted as a sub-tenant in the premises in question by the original tenant.
For the first time, plea with regard to his having been inducted as sub-tenant in the premises in question came to be raised on behalf of JD in the execution proceedings filed by DH after dismissal of appeal filed by the original tenant against the eviction order.
Needless to say, sub-tenant does not possess better right than original tenant against whom eviction order stands already passed.
Though in the case at hand, record reveals that this Court, while entertaining the petition under Section 24(5) of the Rent Act, dismissed the application for condonation of delay in maintaining the revision petition as well as leave to file a petition, but, while doing so, in peculiar facts and circumstances of the case, this Court, proceeded to pass detailed order holding the JD to be a trespasser.
26. Since in those proceedings application for payment of mesne profits came to be filed on behalf of DH, this Court in proceedings under Section 24(5) of the Act, which admittedly came ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 16 to be initiated/filed at the behest of JD, also proceeded to order for payment of mesne profits at the rate of Rs.52,500/- per month w.e.f. 30.06.2011 i.e. date of passing the order of ejectment.
.
27. Next question, whether a Court, while exercising powers under Section 24(5) of the Act, could levy/grant mesne profits or use and occupation charges, stands duly settled/answered by the Hon'ble Apex Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd, (2005)1 SCC 705.
28. In the aforesaid judgment, Hon'ble Apex Court having taken note of the fact that the landlord-tenant litigation goes on for unreasonable length of time, and tenants, on possession of premises, do not miss the opportunity to file appeal/revision to perpetuate the life of litigation and continue in occupation of the premises, has categorically held that the tenants, after termination of tenancy, are liable to pay damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant.
It would be apt to take note of the following paragraphs:-
"4. Ordinarily this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. Landlord-tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not loose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 17 the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant."
.
29. Careful perusal of the judgment rendered by the Hon'ble Apex Court in Atma Ram Properties (supra) would reveal that following questions arose for its consideration:
"(i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate;
and
(ii) upto what point of time the tenant is liable to pay rent at the contractual rate and when does he become liable to pay to the landlord compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent?"
30. In case the judgment rendered by the Hon'ble Apex Court in Atma Ram Properties (supra) is read in its entirety, it is clearly elicited that the rationale, for directing the tenant to pay use and occupation charges, is that there was a need to deter the tenant from perpetuating the life of litigation and thereby depriving the landlord of the fruits of litigation, even if successful.
31. As has been noticed hereinabove, no revision petition, if any, ever came to be filed against the order of the Appellate Authority, whereby it affirmed eviction order passed by Rent Controller, at the behest of original tenant, but, this Court cannot loose sight of the fact that JD herein, claiming himself to be tenant qua the premises in question, approached this Court under Section 24(5) of the Act with a prayer to set aside eviction order.
JD, during the pendency of the revision filed by him, also prayed for stay of eviction order and, as such, it cannot be said that this ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 18 Court, while exercising revisionary powers under Section 24(5) of the Act, had no power to levy/grant mesne profits, especially when same were claimed by the DH by way of filing separate application.
.
32. Though this Court is fully convinced that this Court, while exercising revisionary powers under Section 24(5) of the Act, was well within its power to levy/grant mesne profits in the peculiar facts and circumstances of the case, but, there is another aspect of the matter is that though, this Court did not grant leave to the JD to file revision, laying therein challenge to the order passed by the Appellate Authority upholding the eviction order passed by the Rent Controller, but, definitely in those proceedings Court held JD to be trespasser and accordingly held him liable to pay mesne profits w.e.f. the date of eviction order. As is quiet apparent from provisions contained in Section 36 CPC, the provisions of this Code relating to execution of decree would similarly apply to execution of order including payment under an order, meaning thereby, if it is presumed that order sought to be executed is not a decree in terms of Section 2(2) CPC, yet it can be executed by resorting to the provisions contained under Section 36 CPC being an order of payment. On the top of everything, judgment sought to be executed has been already upheld by Hon'ble Apex Court that too in the Special Leave Petition filed by JD. It is also not in dispute that JD, before dismissal of his Special Leave Petition, gave categorical statement before the Hon'ble Apex Court on 4.10.2018 that he is willing to vacate the suit premises on any terms and conditions which may be fixed by this Court.
::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 1933. Careful perusal of order dated 01.07.2019, which came to be passed during the pendency of the instant execution petition, clearly suggests that the Hon'ble Apex Court found no .
reason to interfere with the judgment sought to be executed and accordingly dismissed the SLP filed by JD. Careful perusal of grounds taken by JD in SLP filed by him, copy whereof has been placed on record, clearly reveals that the question with regard to competence of levying/granting mesne profits at the rate of Rs.52,500/- was specifically taken by the JD. In para 5(ii) of the grounds, JD has categorically stated that:-
"Because the Hon'ble High Court has exceeded its jurisdiction in revision by fixing the use and occupation charges in exorbitant and without any basis, the judgment, referred to a coordinate to fix Rs.250/- per sq.ft. is wrong. The comparison of two shops requires pleadings and minute commercial detail by evidence and the Hon'ble High Court has not put its mind to that aspect. To fix the use and occupation charges Rs.52,500/- is illegal and quite unreasonable and beyond the scope of natural justice."
34. Aforesaid ground set up by JD in SLP with regard to lack of jurisdiction to award mesne profits or use or occupation charges has been rejected by the Hon'ble Apex Court, while dismissing the SLP. True, it is, that no detailed judgment came to be passed by Hon'ble Apex Court specifically dealing with the aforesaid objection, but, as has been noticed hereinabove, Hon'ble Apex Court, while dismissing the SLP vide order dated 01.07.2019 has categorically recorded that "We see no reason to interfere with the impugned order passed by the High Court. The SLP is accordingly dismissed", meaning thereby that the Hon'ble Apex Court, having carefully perused the judgment under challenge, ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 20 found no error apparent on the face of it and accordingly dismissed the same.
35. Since question with regard to inherent lack of .
jurisdiction, as raised in the instant proceedings, stands rejected in the SLP filed by JD, JD cannot be allowed to raise the same in the instant proceedings. Otherwise also, as has been categorically ruled hereinabove, this Court, while exercising powers under Section 24(5) of the Act, was well within its powers to levy/grant mesne profits/use and occupation charges.
36. Judgments referred hereinabove, cited by learned counsel representing the JD in support of his submissions; need not to be discussed because there cannot be any quarrel with the preposition of law laid down in the aforesaid judgments that plea of inherent lack of jurisdiction can be raised in the execution proceedings. In all the aforesaid judgments, it has been ruled by Hon'ble Apex Court that plea of inherent lack of jurisdiction can be raised in the execution proceedings, which preposition is otherwise not disputed by Mr.R.L. Sood, learned Senior Counsel, representing the DH.
37. In the instant proceedings, Hon'ble Apex Court, while dismissing the SLP, has virtually decided the objection raised in the instant proceedings with regard to jurisdiction.
38. Having carefully perused material available on record as well as factual narration given in the judgment sought to be executed and eviction order passed by the Authority under Rent Controller Act, this Court is persuaded to agree with Mr.R.L. Sood, ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 21 learned Senior Counsel representing the DH, that at every step of litigation efforts have been made by JD to prolong the proceedings so that he does not loose possession of the premises in question, .
which has been held to be illegally retained/possessed by him.
There is no record, whatsoever, indicative of the fact that JD further came to be inducted as tenant in the premises in question, but, still he has successfully managed to delay the execution of eviction order passed way back on 30.06.2011. JD by way of filing Civil Suit and thereafter application in execution petition filed by DH for getting possession has successfully managed to delay the execution of eviction order for almost eight years that too on frivolous grounds. It is a classic case of sheer abuse of process of law by JD, who, on one way or the other, has succeeded in thwarting his eviction/ouster from the demised premises, to which he has been holding illegally since the year 2004. Conduct of JD, which otherwise stands duly reflected in repeated proceedings initiated at his behest, compelled this Court to conclude that he has been successfully hoodwinking the Courts of law. Pleadings available on record, which came to be adduced at his behest, definitely suggest that JD, with a view to delay the proceedings, every time took altogether different stand.
39. Record of Civil Revision Petition, judgment whereof is sought to be executed, clearly reveals that JD in mediation proceedings not only agreed to vacate the premises, but, also agreed to pay use and occupation charges at the rate of Rs.12,000/- per month. It also emerge from the order dated ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 22 08.12.2017 that during the pendency of Civil Revision No.125 of 2016, DH was ready and willing to give up his claim with regard to use and occupation charges in the event of petitioner-JD handing .
over peaceful possession of the demised premises on or before 31.03.2018, but, such proposal was rejected on the ground that compromise already stands entered into before the learned Mediator, fixing the rate at which use or occupation charges are to be paid, which allegedly DH was ready and willing to pay and abide by.
40. Despite aforesaid fair offer made by landlord-DH, petitioner-JD not only insisted to continue with the revision petition filed on his behalf but also approached Hon'ble the Apex Court by way of SLP, laying therein challenge to final judgment passed in Civil Revision, which action of him certainly indicates his dishonesty and intention to harass the DH, who despite having decree in his favour passed eight years back, has not yet been able to execute the same. Once JD, in view of order dated 12.09.2016, continued to hold possession of premises in question that too without paying mesne profits/use and occupation charges to the DH, there appears to be force in the arguments of Mr.R.L. Sood, learned Senior Counsel that JD cannot change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas. It is well settled by now that where a party had received a benefit under an order, it could not claim that it was valid for one purpose and invalid for another. In this regard reliance is placed upon the judgment of Hon'ble Apex Court in ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 23 Mumbai International Airport Private Limited vs. Golden Chariot Airport and Another, (2010)10 SCC 422, wherein the Hon'ble Apex Court has held as under:-
.
"41. Following the aforesaid principles and the clauses in the licence agreement, this Court holds that the licence by its very term is revocable. The stand of the contesting respondent that its licence is irrevocable as it has invested money in the premises and made construction is directly contrary to the stand which it took before the Bombay High Court and which was recorded in the High Court's Order dated 12.7.01.
42. It may be noted that when the City Civil Court returned the plaint filed by the contesting respondent it came up in appeal against the said Order before the Bombay High Court, it expressly gave up its claim of irrevocable licence in order to revive the suit. On such stand being taken, the High Court remanded the suit for trial before the City Civil Court. It is therefore clear that the contesting respondent has taken a stand before a Court of Law and also got the benefit as a result of taking such stand in as much as it got the suit revived and tried and got the benefit of an interim order in the said proceedings. As a result of the aforesaid stand being taken, the suit of the contesting respondent went on before the Bombay City Civil Court from 2001 to 2004 and in view of the interim protection, the contesting respondent ran the restaurant during that period.
43. Now the question is whether the contesting respondent on a complete volte-face of its previous stand can urge its case of irrevocable licence before the Estate Officer and now before this Court? The answer has to be firmly in the negative.
44. Is an action at law a game of chess? Can a litigant change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas?
45. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel and well established in our jurisprudence also. The doctrine of election was discussed by Lord Blackburn in the decision of ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 24 the House of Lords in Benjamin Scarf vs. Alfred George Jardine (1882) 7 AC 345], wherein the learned Lord formulated: (AC p.361) "...a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has .
indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act...the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election."
46. In Tinkler vs. Hilder (1849) 4 Exch 187, Parke, B., stated that where a party had received a benefit under an Order, it could not claim that it was valid for one purpose and invalid for another. (See p.190)
47. In Clough vs. London and North Western Railway Co. (1861-73) All ER, Reprint, 646, the Court referred at All ER p.651 F to Comyn's Digest, wherein it has been stated:-
"If a man once determines his election, it shall be determined forever."
In the said case, the question was whether in a contract of fraud, whether the person on whom the fraud was practiced had elected to avoid the contract or not. The Court held that as long as such party made no election, it retained the right to determine it either way, subject to the fact that an innocent third party must not have acquired an interest in the property while the former party is deliberating. If a third party has acquired such an interest, the party who was deliberating will lose its right to rescind the contract. Once such party makes its election, it is bound to its election forever. (See page 652)
48. In Harrison vs. Wells, (1966) 3 All ER 524, Salmon LJ, in the Court of Appeal, observed that the rule of estoppel was founded on the well- known principle that one cannot approbate and reprobate. The doctrine was further explained by Salmon, L.J. by holding: (QB p.277 G) "it is founded also on this consideration, that it would be unjust to allow the man who has taken full advantage of a lease to come forward and seek to evade his obligations under the lease by denying that the purported landlord was the landlord". (See page 530) ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 25
49. In Kok Hoong vs. Leong Cheong Kweng Mines Ltd., 1964 AC 993, the Privy Council held that:
(AC p.1018) "...a litigant may be shown to have acted positively in the face of the court, making an election and procuring from it an order affecting others apart .
from himself, in such circumstances the court has no option but to hold him to his conduct and refuse to start again on the basis that he has abandoned."
50. Ashutosh Mookerjee, J. speaking for the Division Bench of Calcutta High Court in Dwijendra Narain Roy vs. Joges Chandra De (AIR 1924 Cal 600, held that it is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. This wholesome doctrine, the learned Judge held, applies not only to successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided the second suit grows out of the judgment in the first.
51. It may be mentioned in this connection that all the proceedings pursued by the contesting respondent in which it took the plea of irrevocable licence was virtually in clear contradiction of its stand which it took before the Bombay High Court on 12.7.01 where it had given up the plea of `irrevocable licence'. It is on this plea that its suit again became triable by the Bombay City Civil Court and all subsequent proceedings pursued by the contesting respondent followed thereafter.
52. This Court has also applied the doctrine of election in C. Beepathumma & Ors. vs. V.S. Kadambolithaya & Ors., AIR 1965 SC 241, wherein this Court at AIR p.246, para 17 relied on Maitland as saying:
"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it." (Maitlands Lectures on Equity, Lecture 18).
53. This Court in C.Beepathuma case at AIR p.246, para 17 also took note of the principle stated in White & Tudor's Leading Case in Equity volume 18th Edn. at p.444 - wherein it is stated:
"Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 26 rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."
54. In M/s New Bihar Biri Leaves Co. & Ors. vs. State of Bihar & Ors., (1981) 1 SCC 537, this Court .
observed that it is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim, qui approbat non reprobat (one who approbates cannot reprobate), applies in our laws too.
55. Therefore the conduct of the contesting respondent in view of its inconsistent pleas is far from satisfactory. By taking such pleas, the contesting respondent has succeeded in enjoying the possession of the premises for the last 10 years even after the expiry of its licence on 26.5.2000.
57. The Estate Officer also declined to issue directions for inspection of documents, as prayed for by the contesting respondent on valid grounds. The Estate Officer held that it has to decide whether the contesting respondent is in unauthorized occupation of the public premises within the meaning of the 1971 Act. That being the sole purpose of his enquiry, the Estate Officer thought, and rightly so, that its enquiry cannot be widened by including a plea of discrimination under Article 14 raised by the contesting respondent.
58. Apart from that, this Court also does not find any merit in the plea of discrimination raised by the contesting respondent, by contending that cases of other licensees have been extended whereas in its case, the licence has not been extended. Such a plea is not factually correct in as much as the licence of the contesting respondent was also extended twice. In any event, a plea of discrimination can only be raised in aid of a right. If a person has a right in law, to be treated in a particular way, but that treatment is denied to him, whereas others are given the same treatment, a plea of discrimination can be made out.
::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 2764. However, from the facts discussed above, it is amply demonstrated that the contesting respondent has blown hot and cold by taking inconsistent stand, and has therefore prolonged several proceedings for more than a decade. This Court is constrained to hold that it did not .
pursue its proceedings honestly in different fora. Therefore, the appeal, being Misc. Appeal No. 50 of 2010, filed by the contesting respondent before the Principal Judge, City Civil Court, Mumbai, which was transferred to this Court by this Court's order dated 11.05.2010 and formed part of these appeals, is dismissed with costs assessed at Rs.5,00,000/- to be paid by the contesting respondent in favour of the Supreme Court Mediation Center within a period of two months from date".
41. Record clearly reveals that JD alongwith revision petition also filed an application bearing CMP No.7227 of 2016, for staying the eviction order. This Court, on the very first day i.e. 22.09.2016 stayed the operation and execution of order dated 27.7.2013, passed by District Judge, Shimla (exercising powers of Appellate Authority under H.P. Urban Rent Control Act, 1987) in Rent Appeal No.59-S/14 of 2011, titled as Dr.Kailash Kumar Kashyap vs. Rohit Madan. Under the garb of aforesaid order, petitioner-JD successfully managed to delay his eviction for more than 1½ years. But, now, in the instant proceedings, main thrust of arguments advanced by Mr.Y.P. Sood, learned counsel representing the petitioner-JD, is that the Court passing judgments sought to be executed had no jurisdiction to pass the impugned order, however, such plea, raised by Mr.Sood, deserves rejection, in view of clear law laid down by Hon'ble Apex Court in the aforesaid judgment that where a party had received benefit under an order, it cannot claim subsequently that it was valid for one purpose and invalid for another. Apart from above, in the case ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 28 at hand, JD has already filed written undertaking before this Court to hand over demised premises to the DH on or before 19.10.2019, which is part of the record.
.
42. Needless to say, judicial orders are bound to be implemented/obeyed at any costs. However, in the instant case, JD by filing frivolous petitions at every stage of litigation, has not only attempted to defeat the mandate of the Court, but, has succeeded to certain extent in delaying the execution and implementation of judicial orders. Though all the objections, which have been taken in the instant objection petition, stood rejected in the SLP filed by JD, but still he has an audacity to raise the same in the instant execution petition, which action of him certainly compels this Court to draw inference that the petitioner-
JD has no respect for law and he is a cantankerous litigant.
43. Hon'ble Apex Court in Subrata Roy Sahara's case supra has categorically held that disobedience of orders of a Court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs.
Howsoever grave the effect may be, is no answer for non-
compliance with a judicial order. The Hon'ble Apex Court has further held that judicial orders cannot be permitted to be circumvented.
44. Consequently, in view of detailed discussion made as well as law taken note hereinabove, this Court is fully convinced and satisfied that the judgment sought to be executed is duly executable in the instant proceedings filed under Order 21 Rule 1 ::: Downloaded on - 29/09/2019 04:35:01 :::HCHP 29 read with Sections 36, 37 and 38 CPC and, as such, objections filed by JD are dismissed being devoid of any merit.
45. In view of the dismissal of the objections, JD is .
directed to deposit decreetal amount, as prayed for in the execution petition on account of use and occupation charges at the rate of Rs.52500/- per month w.e.f. 30.06.2011 till date, within a period of one month, failing which, recovery of said amount shall be effected through the mode prayed for by the DH in the execution petition as well as different applications filed thereafter.
September 18, 2019 (Sandeep Sharma)
(aks) Judge
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