Patna High Court - Orders
Md. Shamim Ahmad And Anr vs Nashima Khatun on 17 July, 2023
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.449 of 2017
======================================================
1. Md. Shamim Ahmad, Son of Md. Hanif,
2. Bibi Israt Begum, W/o Md. Shamim Ahmad,
Both residents of Badrul Hassan Lane, Mullachak or Maulanachak, P.S.-
Mojahidpur, District- Bhagalpur.
... ... Appellant/s
Versus
Nashima Khatun, Wife of Late Kaishar Khan, Resident of Badrul Hussain
Lane Mullachak or Maulana Chak, P.S.- Mojahidpur, District- Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rajendra Narain, Sr. Advocate
Dr. Manoj Kumar, Advocate
For the Respondent/s : Mr.Atal Bihari Pandey, Advocate
Mr. Akshay Bahadur Mathur, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV ORDER
17 17-07-2023By this common order, I intend to dispose of I.A. Nos.9659 of 2018 & 3 of 2022 & 5 of 2023.
2. The learned senior counsel for the appellants as well as learned counsel for the respondent have already been heard on all the three interlocutory applications.
3. I.A.No.9659 of 2018 has been filed by the appellants under Order 41, Rule 5 read with Section 151 of the Code of Civil Procedure for stay of further proceeding in Misc. Case No.10 of 2018 filed by the respondent under Section 144 of the CPC which is pending in the court of learned Sub-Judge- XII, Bhagalpur till the final disposal of the instant second Patna High Court SA No.449 of 2017(17) dt.17-07-2023 2/20 appeal.
4. I.A.No.3 of 2022 has been filed by the appellants under Section 151 of the Code of Civil Procedure for staying the operation of order dated 07.04.2022 passed in Misc. Case No. 10 of 2018 by learned Sub-Judge-XII, Bhagalpur till the disposal of present second appeal.
5. I.A. No. 5 of 2023 has been filed by the appellants under Order 41 Rule 5 of the Code of Civil Procedure for stay of further proceeding in Execution Case No. 12 of 2022 pending in the court of learned Sub-Judge-I, Bhagalpur, till the disposal of present second appeal.
6. The learned senior counsel appearing on behalf of the appellants has submitted that the appellants filed Eviction Suit No. 2 of 2004 for decree of eviction in respect of suit premises and also for decree for Rs.36,000/- with interest thereon being rent from March 2001 to February 2004 @ Rs.1,000/-per month besides other reliefs. The learned trial court after hearing the parties and considering the materials on record decreed the suit of the plaintiffs-appellants herein vide judgment and decree dated 22.09.2015 directing the defendant-respondent herein to vacate the suit premises positively within 60 days from the date of order. Being aggrieved with the aforesaid judgment Patna High Court SA No.449 of 2017(17) dt.17-07-2023 3/20 and decree dated 22.09.2015, the defendant-respondent preferred Title Appeal No. 40 of 2016, which was decided in favour of defendant-respondent vide judgment and decree dated 14.07.2017. Being aggrieved with the judgment and decree dated 14.07.2017, the plaintiff-appellants preferred the instant second appeal. The learned senior counsel further submitted that the defendant-respondent in order to harass the plaintiffs- appellants filed Misc. Case No. 10 of 2018 for restoration of possession of the suit premises and for a direction to the plaintiffs-appellants to pay Rs. 5 lacs by way of compensation for demolishing the outstanding structure and further submitted that when the suit was decreed under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to 'BBC Act'), as such, the aforesaid misc. case was not maintainable. The learned senior counsel further submitted that the appellants filed a petition in Misc. Case No.10/2018 to stay the further proceedings in Misc. Case No.10/2018 till disposal of S.A.No.449/2017 which was rejected on 12.07.2019 against which appellants filed Civil Misc. No.1214/2019 before this Court, which was dismissed vide order dated 03.03.2022 as not maintainable. Meanwhile, the learned Sub-Judge-XII vide order dated 07.04.2022 partly Patna High Court SA No.449 of 2017(17) dt.17-07-2023 4/20 allowed the Misc. Case No. 10 of 2018 and its operative part reads as under :-
"That the miscellaneous petition is partly allowed. The Opposite party is hereby directed to hand over the vacant possession of the suit premises detailed in schedule-A of this Miscellaneous petition within 60 days, in whatever form it exists today. The petitioner, Nasima Khatoon is permitted to fully enjoy the possession of the suit premises but she shall not demolish or destroy any structure or trees, if present in the suit premises till the outcome of the decision of Hon'ble Patna High Court in S.A. No. 449/2017. The O.P. is also directed to pay Rs.50 thousand as interim compensation to the petitioner in 60 days from this order. Final amount of compensation shall be decided after the decision in aforesaid second appeal".
7. The learned senior counsel for the appellants further submitted that in the present case restoration of possession as well as payment of compensation does not arise at all. The learned trial court has exceeded its jurisdiction in passing the order dated 07.04.2022 and, as such, for the ends of justice operation of order dated 07.04.2022 is fit to be stayed till the final decision of present second appeal.
8. The learned senior counsel for the appellants further submitted that pursuant to said order dated 7.4.2022, Patna High Court SA No.449 of 2017(17) dt.17-07-2023 5/20 decree was prepared on 13.04.2022 and respondent of this second appeal then filed Title Execution Case No.12/2022 before Learned Sub-Judge-XII, Bhagalpur for execution of decree in Misc.Case.No.10/2018 under Section 144 of the Civil Procedure Code. The learned senior counsel at this stage submitted that the appellants moved before the court of learned District Judge by filing Title Appeal No.28 of 2022 against the order and decree of learned Sub-Judge-XII passed in Misc. Case No. 10 of 2018 and the learned District Judge vide order dated 16.08.2022 directed both the parties to maintain status quo till further orders. But inadvertently this fact could not be mentioned by the appellants before this Court and the appellants tender unqualified apology for the same.
9. The appellants also filed I.A.No.3/2022 in the said appeal for stay of operation of order dated 7.4.2022 which is pending. The learned counsel further submitted that the appellants have got strong prima facie case in their favour as shown by the framing of substantial question of law in the second appeal and there is every chance of success in the present appeal which is against the judgment of reversal and the appellants shall suffer irreparable loss and injury if further proceedings of Title Execution Case No.12/2022 is not stayed Patna High Court SA No.449 of 2017(17) dt.17-07-2023 6/20 till the disposal of present second appeal.
10. On the other hand, the learned counsel for the respondent has submitted that by filing the present interlocutory applications, the appellants are delaying the restitution of property. The learned counsel further submitted that soon after coming in possession over the suit property, the appellants have demolished the residential house of the respondent standing thereon and made 'Pucca' construction over some part of the suit land which caused irreparable loss to the respondent. The learned counsel further submitted that the respondent is a poor widow having no residential accommodation to live in with her family and due to eviction from the said residential house, she is living with her married daughter. The learned counsel, thus, submitted that no interference is required by this Court in the present matter.
11. The learned counsel for the respondent further submitted that a counter affidavit in response to I.A. No. 5 of 2023 has been filed on behalf of sole respondent. The learned counsel further submitted that against the order dated 07.04.2022, the appellants have filed a Title Appeal No. 28 of 2022 before the District Judge, Bhagalpur praying therein for staying the proceeding of Misc. Case no. 10 of 2018 till the Patna High Court SA No.449 of 2017(17) dt.17-07-2023 7/20 decision of the present Second Appeal No. 449 of 2017 pending before this Court. The learned District Judge, Bhagalpur, without hearing the respondent, passed an ex-parte order dated 16.08.2022 and directed both the parties to maintain status quo on the suit premises till further orders. Thus, the appellants have suppressed the fact of filling Title Appeal No. 28 of 2022 as well as passing of the order dated 16.08.2022 by the District Judge, Bhagalpur in their Interlocutory Application No.5 of 2023 before this Court which was filed in the month of April 2023. Without mentioning the said order before this Court, the appellants are seeking another order of stay of the further proceeding of Execution Case no. 12 of 2022 pending in the court of learned Sub-Judge-1, Bhagalpur till disposal of the present Second Appeal. The learned counsel further submitted that thus the said action of suppression of fact and misrepresentation of fact by the appellants have been deliberate. The Hon'ble Supreme Court in the case of K.D. Sharma v. SAIL reported in (2008) 12 SCC 481, in paragraph 39, has held as follows :
"39. If the primary object as highlighted in Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a Patna High Court SA No.449 of 2017(17) dt.17-07-2023 8/20 writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court".
12. The learned counsel for the respondent further submitted that the prayer for staying the proceedings of Restitution of Property u/s 144 of CPC due to pendency of SA No-449 of 2017 is not proper and justified in view of the fact that the appellants have taken the possession of suit property on 11-12- 2016 during pendency of the Title Appeal No. 40 of 2016 in a proceeding of Title Execution Case No. 01 of 2015 initiated in pursuance of judgment and decree dated 22-09-2015 in Title Eviction Suit No.02 of 2004. Therefore, after setting aside of the said judgment and decree in the Title Appeal, the appellants have a statutory responsibility towards restitution of the suit Patna High Court SA No.449 of 2017(17) dt.17-07-2023 9/20 property. In this regard, the learned counsel relied on the decision of the Hon'ble Supreme Court in the case of Zafar Khan V/s Board of Revenue reported in 1984 (Supp) SCC 505, wherein the Hon'ble Apex Court has held that... "Section 144 is founded on the equitable principal that one who has taken advantage of a decree of a court should not be permitted to retain it, if the decree is reversed or modified. The word restitution in the marginal note of Section 144 (1) in its etymological sense, means restoring to a party on the modification, variation or reversal of a decree. In such a proceedings, the party seeking restitution is not required to satisfy the court about its title or rights to the property save and except showing its deprivation under a decree and the reversal and variation of decree........."
In view of the above proposition of law, it has been submitted that it is a fit case for Restitution of the suit property because in pursuance of Trial Court Judgment possession of the suit property has been handed over to the plaintiff petitioner on 11-12-2016 and thereafter, the judgment and decree of the Trial Court has been set-aside in Title Appeal by the lower appellate court.
However, it has been submitted that by filing petition Patna High Court SA No.449 of 2017(17) dt.17-07-2023 10/20 for staying the proceeding of Misc. Case No.10 of 2018, the petitioners are only lingering the matter for the last more than three years i.e since 19-01-2019 after filing reply to the petition u/s 144 C.P.C. In this way the prayer of the petitioner is being made only with a view to delay the restitution of property and as such the prayer of the petitioner is fit to be rejected. The learned counsel further submitted that soon after coming in possession over the suit property, the appellants demolished the residential house of the respondent standing thereon and also erected 'Pucca' construction over some part of the suit land which caused irreparable loss to the answering respondent. it has been further submitted that the appellants were supposed to preserve and protect the residential house and land of the answering Respondent during pendency of the Title Appeal. The underlying principal for Restitution is that when the main judgment or order is varied or reversed on appeal, all orders consequential or depending upon it are affected and wrongs done under them have to be corrected by granting restitution without looking into right or title of the parties. In this manner, the appellants have violated the spirit of the order of the Execution Court. The Hon'ble Kolkata High Court in the matter of Priya Brata Maity V/S State of West Bengal (AIR 2000 Cal Patna High Court SA No.449 of 2017(17) dt.17-07-2023 11/20
32) has held that........... "Landlord, in suppression of the material fact and in brazen violation of the provisions of WB Municipal Act, succeeded in demolishing the suit premises with the help of police and the Chairman of the local corporation. It was held that the court can direct restitution of tenant in demolished premises by directing landlord and municipality to reconstruct the building, if necessary, and put the tenant in original possession..............."
In view of the above proposition of law, it has been submitted that because the appellants have illegally demolished the residential house of the answering respondent therefore, the learned Sub- Judge-XII, Bhagalpur in Misc. Case no.-10 of 2018 has passed a justified order to handover the vacant position of the suit premises detailed in schedule-A of this Misc. Petition within 60 days, in whatever form it exists today and for further payment of Rs. 50,000/- as interim compensation to the petitioner in 60 days from this order. This has been ordered so as to enable the respondent to live in her house and she is amply compensated in suitable monetary terms for demolition of her residential house. Thus, it has been submitted that there is urgent need to uphold the order dated 07.04.2022 of learned Sub- Judge-XII, Bhagalpur and at the same time order dated Patna High Court SA No.449 of 2017(17) dt.17-07-2023 12/20 16.08.2022 passed in Title Appeal No. 28 of 2022 may be set aside and the respondent may be handed over the suit property without any delay and there is no need to interfere with the proceeding pending before the learned Sub-Judge in Execution Case No. 12 of 2022. The learned counsel further submitted that the respondent has a prima facie case as the appeal has been decided in her favour. Further she is a widow having no other accommodation whereas the appellants are involved in such type of property transactions relating to evacuee properties. Hence, the balance of convenience is in favour of the respondent and against the appellants. Similarly no irreparable loss will be caused to the appellants and he has failed to show it in his favour whereas the respondent has every reason for restitution of property in her favour.
13. The learned senior counsel for the appellants by way of reply submitted that non-mentioning of fact about ex- parte order dated 16.08.2022 passed by learned District Judge in Title Appeal No. 28 of 2022 was an inadvertent error and it was neither intentional nor deliberate. In fact the appellants have no intention at all to suppress the passing of order dated 16.08.2022 because no useful purpose would be served by such suppression. The appellants can not even imagine to suppress the material Patna High Court SA No.449 of 2017(17) dt.17-07-2023 13/20 fact or mislead this Court. At the outset, the appellants tendered unqualified apology for such act to this Court. The learned senior counsel further submitted that learned appellate court did not consider the fact that during pendency of the appeal the plaintiffs got the delivery of possession of the suit premises and this is one of he substantial questions of law framed in the second appeal.
The learned senior counsel further submitted that the learned lower appellate court completely failed to consider the reasoned order of the learned trial court and made out a case in favour of the respondent holding her not to be a tenant of the appellants completely on wrong consideration of the law especially the provision under Section 109 of the Transfer of Property Act. The learned appellate court completely failed in understanding the relationship of landlord and tenant between the appellants and the respondent which the appellants acquired after purchase of the suit property with registration of sale deed dated 18.09.2000 from the auction purchaser. The learned appellate court completely ignored the judgment dated 18.09.1971 passed in Title Suit No.90/1967 and the order dated 12.12.1978 passed in Title Appeal No.65/1977 wherein the husband of the respondent was shown to be the tenant. So, the Patna High Court SA No.449 of 2017(17) dt.17-07-2023 14/20 status of tenant would not change if there is change of ownership. The learned senior counsel further submitted that from the aforesaid facts and substantial questions framed in this second appeal, there is a very strong prima facie case in support of the appellants who are in possession of the suit property after following the due procedure as established by law.
The learned senior counsel further submitted that by order dated 16.08.2022, the learned lower appellate court has passed order to maintain status quo but not stayed the further proceeding of Execution Case No.12/2022, as a result of which, the execution case is proceeding day by day. Since S.A. No. 449/2017 has already been admitted on several substantial question of law, it will be better for the ends of justice to stay the further proceedings of Execution Case No. 12/2022 to save the valuable time of the learned Executing Court. The learned senior counsel further submitted that the learned lower court lost sight of the fact that there is entirely a new premise on the suit property and the respondent has no claim to the same. The learned appellate court also did not take this fact into consideration while passing the order of restitution.
The learned senior counsel further submitted that the appellants need premises for the purpose of their residence. Patna High Court SA No.449 of 2017(17) dt.17-07-2023 15/20 Since they are already in possession and have constructed a structure on the suit property, the balance of convenience is in their favour and they would suffer irreparable loss, if their possession is disturbed.
14. The learned senior counsel further submitted that the authorities cited by the respondent are of no help to the respondent as the same deal with different facts and circumstances. In this regard, the learned senior counsel relied on the decision rendered in the case of Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani reported in (2004) 8 SCC 579 wherein the Hon'ble Supreme Court in paragraph 9 has held as follows :
"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their Patna High Court SA No.449 of 2017(17) dt.17-07-2023 16/20 words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761) Lord MacDermott observed : (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,..."
15. I have given my thoughtful consideration to various aspect of the matter. Admitted facts of the case are as follows :-
(i) The appellants were plaintiffs before the learned trial court and eviction suit was decreed in their favour.
Subsequently, the respondent moved before the learned appellate court against the order of the learned trial court and the appeal was decided in her favour. Meanwhile, in an execution proceeding, the appellants got delivery of possession of the suit premises. Against the judgment and decree of the learned lower appellate court's order, the plaintiffs have filed the present second appeal.
(ii) The respondents filed a miscellaneous case bearing Misc. Case No. 10/2018 under Section 144 of the Code Patna High Court SA No.449 of 2017(17) dt.17-07-2023 17/20 of Civil Procedure for restoration of possession of suit premises and for grant of compensation. It is also pertinent to mention here that after an order has been passed in Misc. Case No. 10/2018 by the learned Sub-Judge-12, Bhagalpur in favour of the respondent directing the appellants for restitution of suit premises, the respondent filed Execution Case No. 12/2022 in the court of learned Sub-Judge-1, Bhagalpur for delivery of possession.
16. Section 144 (1) of the Code of Civil Procedure reads as under :-
"Where and in so far as a decree [or an Order] is [varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or Order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree [or Order] or [such part thereof as has been varied, reversed, set aside or modified]; and for this purpose, the Court may make any Orders, including Orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly [consequential on such variation, reversal, setting aside or modification of the decree or Order]".
Patna High Court SA No.449 of 2017(17) dt.17-07-2023 18/20
17. A plain reading of the aforesaid provision of law shows that a person becomes entitled for restitution of suit premises after the decree of the trial court was reversed by the appellate court.
18. Without going into the further details and without considering the over all merit of the respective cases of the parties, in view of the submission of the learned counsel for appellants I am of the opinion that the appellants have been able to make out a prima facie case in their favour for grant of stay on the proceedings as well as orders of the learned court below. Admittedly the respondent was tenant of the State in the suit premises which was purchased by the vendor of the appellants in auction sale. The status of the tenant was reiterated in TS No. 90/1967. Once the respondent was declared to be a tenant, the question arises whether the tenant could have challenged the title suit of the vendor in the eviction suit, that too, merely on the ground of non-payment of rent to any person refusing to accept him as landlord or being in permissive possession. Moreover, the respondent never challenged the title of the vendor of the appellants. However, the learned appellate court took a different view on the point of title of the appellants despite the finding recorded about the title of the vendor of the Patna High Court SA No.449 of 2017(17) dt.17-07-2023 19/20 appellants in Title Suit No.90/1967 and Title Appeal No.65/1977. The respondent never questioned the findings with regard to the title of the vendor of the appellants.
At the same time, this fact is also to be noted that there exist no structure which was inhabited by the respondent and now its a new structure which was constructed by the appellants. So there cannot be any restitution unless the previous structure is revived. Since the appellants are in possession, balance of convenience is also in their favour and if dispossessed, they would suffer irreparable loss. Thus, I am in agreement with the submission of the learned senior counsel for the appellants regarding the substantial questions of law which have been framed and which need adjudication by this Court before rights of the parties are finally decided by this Court. For the aforesaid reasons, the authorities cited by the learned counsel for the respondent are of no help to the respondent.
19. Therefore, further proceeding in Misc. Case No. 10/2018, the operation of the order dated 07.04.2022 passed in Misc. Case No.10/2018 and the further proceeding in Execution Case No.12 of 2022 are hereby stayed till further orders.
20. As a result, I.A.Nos.9659 of 2018, 3 of 2022 and 5 of 2023 stand allowed.
Patna High Court SA No.449 of 2017(17) dt.17-07-2023 20/20
21. However, I find that the conduct of the appellants in not disclosing the order dated 16.08.2022 passed by the learned District Judge, Bhagalpur in Title Appeal No.28/2022 is reproachable. The appellants filed a number of applications before this Court and still they did not bring this fact to the notice of this Court as if the appellants were testing the waters. Even if the submission of learned senior counsel is taken that at the first instance an unqualified apology was tendered, but it could not be said that the appellants were not at fault and the conduct of the appellants must be deprecated.
22. List the appeal under the appropriate heading as per its seniority.
(Arun Kumar Jha, J) V.K.Pandey/-
U