Bombay High Court
Baun Foundation Trust And Anr. vs Faredoon Rustom Tirandaz And Anr. on 19 June, 2002
Equivalent citations: 2002(5)BOMCR438
Author: F.I. Rebello
Bench: F.I. Rebello
JUDGMENT F.I. Rebello, J.
1. Rule. Learned Counsel for the respondents waive notice. By consent, petition is taken up for hearing and final disposal. Heard forthwith.
2. This petition is directed against an order dated 30th January, 2002, whereby the Appellate Bench of the Small Causes Court in Appeal No. 490 of 1999 allowed the appeal against an order dated 20th September, 1999 passed by a learned Judge of the Small Causes Court in injunction Notice No. 5749 of 1998 in RAD (ST) No. 2946 of 1998.
3. A few facts may be adverted to in order to correctly appreciate the controversy that arises. Prior to 26th January, 1931, one Ardeshir B. Patel was the tenant in respect of the premises at West Front on the 2nd floor of the building known as "Mama Chambers" situated at 93, August Kranti Marg, Cumballa Hill, Mumbai 400 006. Ardeshir B. Patel expired leaving behind his widow Mrs. Pirojbai Ardeshir Patel and three sons Behram, Kurshed and Dhunjishaw. The widow of Ardeshir Patel, Pirojbai expired on 5th September, 1967. Rent receipts were transferred in the name of Behram from that of deceased Ardeshir Patel. On 31st October, 1982, Hilla, the widow of Behramji expired. On 9th December, 1985 Mrs. Jaloo Khurshed Patel, the wife of Mr. Khurshed expired. All the three sons of late Ardeshir expired between 26th December, 1985 and 25th April, 1998. Respondent No. 2, the widow of Dhunjishaw Patel was the only heir and legal representative surviving. She became the tenant. Rent receipts were issued in her name. The property belongs to a trust who needed the suit premises for accommodating the doctors working in the Cumballa Hill Hospital.
4. R.A.E. Suit No. 846/1543 of 1998 was filed against respondent No. 2 for eviction from the suit flat. On service of the summons on respondent No. 2, respondent No. 2 submitted to a decree on admission on 6th November 1998 and a decree was passed in terms of the minutes of the order. The case of the petitioners is that on 2nd December, 1998 the bailiff of the Small Causes Court handed over the possession of the suit flat to petitioner No. 2 at about 2 p.m. whereafter petitioner No. 2 put his own lock on the suit flat.
5. It is the case of the petitioners that they learnt that respondent No. 1 along with his father and 6 to 7 persons broke the lock of the suit flat and took forcible possession of the suit flat. The petitioners filed a complaint at Gamdevi Police Station as also the F.I.R. Respondent No. 1 after taking forceful possession filed a suit in the Small Causes Court being R.A.D. Suit No. 1975 of 1998 for a declaration that respondent No. 1 is a lawful tenant of the suit flat and for a further declaration that the decree dated 6th November, 1998 is a nullity. Relief by way of permanent injunction against the petitioners from interfering with the possession of respondent No. 1 was also sought. An injunction notice was taken out for interim relief. The same was contested by the petitioners. One of the objections raised was that the suit as framed and filed is not maintainable and, therefore, liable to be dismissed. An objection was also raised under section 9-A that the Court had no jurisdiction to entertain the suit under section 28 of the Bombay Rent Act with a prayer that the issue of jurisdiction be tried as a preliminary issue. Parties filed their respective affidavits. On 20th September, 1999, a learned Judge of the Court of Small Causes held that the suit was not maintainable under law and the Court had no jurisdiction to entertain and try the suit.
Against the order dated 20th September, 1999 dismissing the suit as not maintainable, an appeal came to be preferred before the Court of Small Causes, being Appeal No. 490 of 1999. There were some other applications which will not be adverted to. On 30th January, 2002 the Appellate Bench of the Small Causes Court allowed the appeal and set aside the order dated 20th September, 1999 holding that the suit was maintainable and the Court had jurisdiction. It is against that order that the present appeal has been preferred.
6. Petitioner No. 2 in his capacity as a trustee of petitioner No. 1, filed a suit in this Court, being Suit No. 6075 of 1999, for a declaration, injunction damages, appointment of Court Receiver in respect of the suit flat and to be appointed as an agent of the Court Receiver and other reliefs. An application was made by way of an ad interim relief. On 27th October, 1999 an order was passed granting the ad interim relief. Appeal preferred was dismissed. On 30th September, 1999 the Receiver took physical possession. On 27th January, 2000 a learned Judge of this Court directed that the petitioners be put in possession of the suit flat as agent of the Court Receiver without royalty and security.
7. The case of respondent No. 1 is that from 1989 the respondents had been residing in the suit premises as a member of the family of the tenant Behramji Patel to whom he was related. Behramji Patel expired in December 1992. After the death of Behramji Patel, respondent No. 1 continued to reside in the suit premises. The petitioners were fully aware of this as they had addressed correspondence to respondent No. 1 at the suit premises. Respondent No. 1 was an active member of the tenants association. The petitioners, however, refused to accept respondent No. 1 as their tenant and have returned the cheques. The petitioners have relied upon various correspondence. It is the case of the respondents that in May/June 1998, the petitioners purported to recognise Behramji's sister-in-law Mithoo Dhunjishaw Patel, the wife of Behramji's younger brother Dhunjishaw as tenant of the suit premises. It is the case of respondent No. 1 that Dhunjishaw and his wife Mithoo had shifted to premises at Bandra in 1970 and had never resided at the suit premises after 1970. It is the case of respondent No. 1 that the suit filed by the petitioners against Mithoo was a collusive suit and in purported execution of the said decree, the petitioners took possession of the premises on 21st December, 1998 while respondent No. 1 was away at work. Though the petitioners were aware that respondent No. 1 was residing in the premises and claiming to be the tenant thereof, no proceedings were taken out against respondent No. 1 under Order 21, Rule 97. On returning, respondent No. 1 found a lock on the premises with no indication that the same had been put in execution of the said consent decree. Respondent No. 1 accordingly informed the police, broke open the lock and resumed possession. It is after this that respondent No. 1 came to know about the collusive suit.
8. On behalf of the petitioners it is contended that on a reading of Order 21, Rule 99 in its correct perspective, it would be clear that the only remedy of a stranger to the decree which affects him would be under Order 21, Rule 99 and no independent suit would be maintainable. The submission in various facets has been spelt out in para 17 of the petition.
On the other hand, on behalf of respondent No. 1, it is contended that the bar under Order 21, Rule 99 applies only to parties to a proceeding on an application under Rule 97 or Rule 99. Therefore, in the event respondent No. 1 had commenced proceedings against the petitioners under Order 21, Rule 99 or the petitioners had commenced proceedings against respondent No. 1 under Order 21, Rule 97, the provisions of Order 21, Rules 97 to 102 would bar a separate suit. If a person's possession/right to premises is sought to be affected in execution of a decree, without the decree holder having initiated proceedings against him under Order 21, Rule 97 or without the person having initiated proceedings against the decree holder under Order 21, Rule 99 an independent suit by the stranger to the decree would be maintainable.
9. The issues which arise for consideration, are whether, considering Order 21 of the Code of Civil Procedure, 1908 what is that remedy of a party dispossessed pursuant to a decree. Is the remedy of the party only under Order 21, Rule 99 or if the decree holder takes out objection under Order 21, Rule 97 under that Rule? Would a suit filed by a person not a party to the suit where the decree was passed, be barred as not maintainable?
10. For consideration of the issue it would be useful to reproduce Order 21, Rules 97, 99 and 101 which read thus:
"97. Resistance or obstruction to possession of immovable property.---(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistence or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
"99. Dispossession by decree-holder or purchaser.---(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
'101. Question to be determined.---All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
Under Order 21, Rule 106, the applicant against whom an order is made under sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that Rule or under sub-rule (1) of Rule 23, may apply to the Court for setting it aside. Under Rule 104 proceedings by way of a suit filed before commencement of the proceeding under Order 21, Rule 97 or under Order 21, Rule 99 are saved. Under Rule 101, all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. In the State of Maharashtra and Goa, there is a Bombay amendment which is not relevant for the discussion and will not be referred to. It is thus clear from a reading of this Rule that if an application is made under Rule 97 or Rule 99, then all questions including question relating to right, title or interest in the property shall be decided, determined in such proceeding and not by a separate suit. In other words, the Court has jurisdiction to decide all these issues notwithstanding anything to the contrary contained in any other law for the time being in force and is deemed to have jurisdiction to decide such questions. It is, therefore, clear that once an application is made under Order 21, Rule 97 or Rule 99 then in respect of the subject-matter of that application, no independent suit would be maintainable.
The limited question, however, is whether a conjoint reading of various proceedings excludes by implication or by an express provision the filing of an independent suit. There is no express provision barring a suit. On the contrary as we have seen under Order 21, Rule 104 a previously instituted suit has been saved. Again the issue would be whether in view of the special provision, it can be said that there is an implied exclusion and that the only remedy is by following the procedure set out under Order 21, Rule 97. One more aspect of the matter is that under Order 21, Rule 106, there is a special limitation of 30 days. This would be seen on a conjoint reading also of Articles 128 and 129 of the Limitation Act. A person however dispossessed otherwise than by a due process of law of property considering Articles 64 of 65 of the Limitation Act, can file a suit for possession within 12 years from dispossession. It may be possible to contend that the application being to the Court, provisions of section 5 of the Limitation Act will apply. That would, however, be on the person applying under Order 21, Rule 99 making out a case for sufficient cause whereas if Articles 64 and 65 of the Limitation Act are applied, a party dispossessed of the property has a right to maintain the suit within 12 years from dispossession without showing sufficient cause.
It is in this background that the position has to be seen. It may be noted that the express language of Order 21, Rule 97 and Rule 104 seems not to bar a person who is not a party to the suit but whose right/possession of the premises is sought to be disturbed pursuant to a decree passed in the suit, from instituting a separate substantive suit against a decree holder for declaration of his right to the premises and for protection of his possession thereof. The amendment of 1976 to the Code of Civil Procedure, it would be clear that once the proceeding has been commenced under Rule 97 or Rule 99 no separate suit lies under Rule 98 and Rule 101 and the order made therein shall have the same force as if a decree under Rule 103. The only express bar to a suit under Order 21, Rule 97 and Rule 103 is contained in Order 21, Rule 101 which stipulates that "all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not be a separate suit ......... ."
This bar, therefore, under Rule 101 would apply only to parties to a proceeding under Order 21, Rule 97 or Rule 99. It is in these circumstances once the proceedings have commenced under that Rule, would parties to suit proceedings be barred in filing a suit.
The scheme of the amended Order 21, Rules 97 to 104 indicates that once proceedings are initiated by or against the decree holder under Order 21, Rule 97 or 99, the provisions of Order 21, Rules 97 to 103 would be a complete Code for adjudication of all questions raised therein and a separate suit by the person against whom proceedings had been commenced/orders made under Rule 101 or 103 would be barred. Once, therefore, proceedings under Order 21, Rule 97 or 99 are initiated against, or by a person, he cannot resort to filing a separate substantive suit against the decree holder. There is thus a total bar. On the other hand, however if the proceedings have not been initiated either under Order 21, Rule 97 or 99, there would be no bar in filing a separate suit, if a person's possession/right to premises is sought to be affected in execution of a decree without the decree holder having initiated proceedings against him under Order 21, Rule 97 or without the person having initiated proceedings against the decree holder under Order 21, Rule 99. This view is taken atleast by three other High Courts, i.e. in the case of Ahamed v. Rukmaniammal and another, , in the case of Pavan Kumar and another v. Gopalakrishna and another, A.I.R. 1998 Andhra Pradesh 247, and of the Full Bench of Karnataka High Court in the case of V.K. Rama Setty v. A. Gopinath, . All these courts have taken a view that a suit would be maintainable. This view also finds support in the commentary by Mulla in the Code of Civil Procedure where it is set out as under:
"The present Rule 99 is also permissive and the person who is dispossessed can either apply under this rule or file a regular suit to enforce his rights. However, once an application either under the earlier Rule 100 or under the present Rule 99 has been filed and the conditions requisite under these Rules are satisfied, it would become the duty of the Court to hold an inquiry.. ... .... .."
Similarly, Sarkar on the Law of Civil Procedure, VIII Edition 1992 Vol. II considering Rule 104, has observed as under:---
"A third party dispossessed by the decree-holder or auction-purchaser may, however, bring a regular suit to establish his right to get possession of the property without taking recourse to Rule 99, unless he has already been dragged into a proceeding under Rule 97 .... .... ..."
It is no doubt true that a commentary in the text book is not binding on the Court, but when it is to be found in a learned treatise on the relevant law, it can and does have persuasive value in so much as it demonstrates that the view of the jurist and of the Court coincides. (See para 69 of the judgment in Jethabhai v. Manbai, A.I.R. 1975 Bombay 85).
11. It is true that on behalf of the respondents, their learned Counsel has drawn the attention of this Court to judgments of the Apex Court as also of some other High Courts. Before the Division Bench of Calcutta High Court in Smt. Mira Chatterjee v. Sunil Kumar Chatterjee, , the issue was of a suit pending before an order was passed in the proceedings in execution. As noted earlier, this is saved by virtue of Rule 104. That judgment really is of no assistance. In Silverline Forum Pvt. Ltd. v. Rajiv Trust, , the Apex Court noted that if the resistor or obstructor is a person bound by a decree and he refuses to vacate the property, that question can be gone under Order 21, Rule 97. The Apex Court also noted that Rule 99 of Order 21 is not available to a person until he is dispossessed of the immovable property by the decree holder. In so far as Order 21, Rules 97 to 106, it was noted that they are intended to deal with every kind of resistance or obstruction by a person under Rule 97. On such a situation, the decree holder has to move an application complaining of the resistance or obstruction whereupon it is incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down. That judgment really would not be of much assistance for the view that has been canvassed in the present proceedings. Next reliance is placed on a judgment of the Apex Court in the case of Shreenath and another v. Rajesh and others, . Para 5 of the judgment framed the question which was to be decided as under:
"5. The question raised is, whether the third party in possession of a property claiming independent right as a tenant not party to a decree under execution could resist such decree by seeking adjudication of his objections under Order 21, Rule 97 of the Civil Procedure Code?"
It was this question that was being considered by the Apex Court. While considering the question the Apex Court has considered the law before the amendment of 1976 and the law after the amendment of 1996. The Apex Court observed that a person in possession of immoveable property can object to the execution proceedings under Order 21, Rule 97 and need not wait until he is dispossessed and then apply under Order 21, Rule 99. Referring to its judgment in Noorduddin v. Dr. K.L. Anand, , the Court observed that when an application has been made under Order 21, Rule 97, the Court is bound to adjudicate the dispute. There are some paragraphs in the judgment which need to be adverted to and which are being reproduced.
"Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976 right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus the scheme of the Code appears to be to put an end to the protection of the execution and to shorten the litigation between the parties and persons claiming right, title and interest in the immovable property in execution."
Much reliance was placed on these observation to contend that the suit was not maintainable. As pointed out earlier, this passage quoted in Noorduddin case was based on the fact that an application was made under Order 21, Rule 97. Once an application is made, there is a bar to filing of a suit. It is by now well-settled that what is binding is the ratio on the question which was under consideration. The question decided by the Apex Court was as set out in para 5 which has been reproduced earlier. This judgment would therefore be of no assistance in so far as the petitioners contention is concerned. Lastly, reliance was placed on the judgment in the case of N.S.S. Narayan Sarma and others v. M/s. Goldstone Exports (P.) Ltd. and others, . In this case also it is clear that what was in issue before the Apex Court was as to what can be decided in proceedings under Order 21, Rule 97. The Court noted that when an application has been made, then all objections can be dealt with whether it be under Rule 97 or Rule 99 between the parties or their representatives by the Court dealing with the application and not by a separate suit. Once again the issue in issue was not in a case where no application was taken out under Order 27, Rule 97 or 99. The Apex Court was not seized of the situation which is an issue before us where no proceeding have been taken out.
12. There are some other judgments which were cited including of this Court which I need not deal with as, in my opinion, they are not of much consequence. Only one more judgment of the Apex Court in the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, , may be dealt with. On a perusal of the ratio and the decision of that judgment, what the Apex Court has set out is that a person in possession can obstruct the execution of the decree without handing over possession and thereafter apply under Order 21, Rule 99. A stranger would come within the expression "any person" and if he resists then the decree holder on taking out an application-all objections would be decided. In such a situation, a separate suit would be barred.
From the above it is clear, that none of the judgments of the Apex Court has considered the issue which is an issue before this Court. The matter was, however, directly an issue, as set out earlier, before the Madras, Andhra Pradesh and the Full Bench of Karnataka High Courts. The Full Bench of the Karnataka High Court has considered regarding maintainability of the suit as under:
"We are of the view that keeping in view the language employed in Order XXI, Rule 99 it is optional for a person, who is other than judgment debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under Rule 99 the use of word "may" gives an option to a person to file application before the executing Court averring his grievance. But this Rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums."
13. It is thus clear from the reading of the language of Order 21, Rule 99, the legislature has chosen the word "may" and not "shall". It is, therefore, not obligatory or imperative on a person dispossessed of seeking recourse only under Order 21, Rule 99. The remedy of a suit is not excluded. The aggrieved person has a choice of either. This view is also supported, as set out earlier by leading commentators. Rule 104 expressly also saves pending suits before orders are passed under Rule 97 or Rule 99. It is, therefore, clear that it was never the intention of the legislature to bar a person filing a suit, though if an application is filed under Order 21, Rule 99 all questions would be open including of right, title or interest. As pointed out earlier there is a bar of limitation of 30 days in moving an application whereas in a case of a suit a person dispossessed of immoveable property, it is 12 years. Considering all these aspects, to my mind, I am in agreement with the views expressed by the learned Single Judge of the Madras High Court, by the Division Bench of the Andhra Pradesh High Court and the Full Bench of the Karnataka High Court. In the light of that, there is no merit in this petition. The petition is dismissed.
Rule discharged. In the circumstances, there shall be no order as to costs.