Allahabad High Court
Dr. Adarsh Chopra vs Smt. Champa Devi on 20 December, 2004
Equivalent citations: 2005(1)ARC424, 2005(1)AWC837
Author: Vikram Nath
Bench: Vikram Nath
JUDGMENT Vikram Nath, J.
1. This is a glaring case of the abuse of process of court and the law. A tenant having accepted the award of the Arbitrator dated 6.6.1979 and having enjoyed the conditions for continuing in possession for about five years subsequently retracted and has still not vacated the premises in dispute even after twenty years. Further the petitioner has the audacity to further obstruct to delivery of possession due on 1.4.1984 taking recourse to frivolous litigation.
2. The dispute relates to shop No. 12 in the tenancy of the petitioner, situated at, New Gandhi Nagar, Ghaziabad. Respondent is the owner and landlord of the said shop. As there was default in payment of rent, the respondent filed suit, for recovery of arrears of rent and for ejectment of the petitioner which was registered as S.C.C. Suit No. 123 of 1977, Smt. Champa Devi v. Dr. Adarsh Chopra. The said suit was decided, with the consent of the parties, on the basis of award dated 6.6.1979 given by the Arbitrator (Annexure-1 to the writ petition). The said award formed part of decree of the Court dated 5.12.1980. The decree of the Court became final. The tenant petitioner continued in possession under the decree, 3. As per the terms of the award the petitioner was to pay the rent @ Rs. 175 per month w.e.f. 1.2.1978 to 30.6.1979, thereafter the rent was to be enhanced from time to time as follows :
Sl. Dates Rent Paid Rs. No. (1) 1.2.1978 to 30.6.1979 175 (2) 1.7.1979 to 31.3.1980 220 (3) 1.4.1980 to 31.3.1981 240 (4) 1.4.1981 to .31.3.1982 260 (5) 1.4.1982 to 31.3.1983 280 (6) 1.4.1983 to 31.3.1984 300
4. Finally the tenancy would come to an end on 31.3.1984. On the said date the petitioner would vacate the shop in dispute. Further it was left open for the parties to continue the tenancy if mutually agreed.
5. The petitioner failed in honouring the award and did not pay the rent as agreed, which compelled the landlord respondent to initiate execution proceeding registered as Execution Case No. 9 of 1982 claiming arrears of rent up to 31.3.1982. The said execution was contested by the petitioner on the ground that the decree was a nullity and was not executable. The executing court wide order dated 23.8.1982 upheld the objection of the petitioner and dismissed the execution application. Aggrieved by the order dated 23.4.1982 the landlord filed S.C.C. Revision No. 274 of 1982, which was also dismissed vide judgment and order dated 16.3.1984. Against the said judgment the landlord filed writ petition before this Court, which was registered as C.M.W.P. No. 8569 of 1984, Smt. Champa Devi v. 5th Additional District Judge and Ors.. The said writ petition was allowed by judgment of this Court dated 26.9.2003 and the executing court was directed to proceed with the execution. This Court held that the tenant "after reaping the benefit of the award petitioner cannot be permitted to say that he will not discharge the liability imposed upon him by the said award, A tenant who remains in possession by virtue of order of court is liable to pay such amount for the use and occupation as the Court may impose (subject to its reasonability) even though it may be more than the agreed rent."
6. After quashing the orders dated 23.8.1982 and 16.3.1984, the Court directed the executing court to proceed with the execution.
7. The said judgment of the High Court has become final.
8. After the judgment of this Court dated 26.9.2003, the landlord filed an application for amendment praying that the possession be got delivered and also for recovery of arrears of rent from 1.4.1982 upto 31.3.2004 be added in the amendment application. Prior to the judgment of this Court dated 26.9.2003, the decree holder had no occasion to apply for amendment of the execution application seeking relief of possession and future damages. This amendment application was again opposed by the tenant petitioner on two grounds, firstly that the amendment sought was barred by time and secondly that the relief sought by amendment was not covered by the decree and beyond the scope of the executing court. The executing court vide judgment dated 20.8.2004 held that the amendment was liable to be allowed as it was neither barred by time nor any relief not covered by the decree was claimed by the landlord decree holder. The tenant filed a revision against the judgment dated 20.8.2004, which was registered as Civil Revision No. 151 of 2004. The revision has also been dismissed vide judgment dated 24.9.2004. Aggrieved by the aforesaid two orders the present writ petition has been filed by the tenant.
9. I have heard Sri D. C. Mathur learned counsel for the petitioner and Sri Om Prakash Misra, learned counsel representing the respondents decree holder.
10. The tenant committed default in payment of rent as per the decree and, therefore, the landlord filed execution case, which was registered as Execution Case No. 9 of 1982, claiming arrears of rent. The tenant started harassing the landlord by raising frivolous pleas even though he had consented to the award and the decree. On account of frivolous plea the landlord had to contest up to the High Court and it was only on 26.9.2003 that the High Court, after quashing the orders passed by the executing court and the revisional court, held that the execution was maintainable and directed the executing court to continue with the execution proceedings.
11. The contention of the learned counsel for the petitioner is that the cause of action for seeking possession of the premises in dispute arose on 1.4.1984 and the landlord having moved the amendment application seeking possession and other benefits in the year 2004, the relief sought by the amendment was barred by time under Article 136 of the Limitation Act and also barred under Order XX, Rule 12 (c) (1) of the C.P.C. The amendment application was, therefore liable to be rejected.
12. Learned counsel for the petitioner has relied upon the following judgments :
(1) Antonysami v. Arulanandam Pillai (D) by L.Rs. and Anr., 2002 (1) ARC 174 (SC).
(2) Bibekanada Bhowal v. Satindra Mohan Deb, AIR 1996 SC 1985.
(3) Abdul Rashid v. Sri Sitaramji Maharaj Brajman, 1974 ALJ 399 (FB).
(4) Smt. Sabitri Bala v. Alak Ranjan Paul, AIR 1980 Cal 249.
(5) Bhaskaran v. Shreedharan, 2002 (5) AWC 4180 (SC) : 2002 (47) ALR 383.
13. On the other hand, it has been contended by the learned counsel for the decree holder landlord that the execution proceedings were initiated in the year 1982, which were in respect of recovery of rent only as till then relief of possession could not have been sought. The possession was to continue under the decree till 31.3.1984.
14. Secondly, it is contended by the learned counsel for the respondent that the execution application having been dismissed by order of the executing, court dated 23.8.1982, it became alive only after the judgment of the High Court dated 26.9.2003, therefore, there was no occasion for the landlord decree holder to apply for amendment in the execution application. It has been stated that after the judgment of the High Court dated 26.9.2003, the decree holder applied for amendment within time and there was no bar of limitation nor the bar as alleged under Order XX, Rule 12 (1) (c) of the C.P.C. was applicable.
15. Learned counsel for the respondent has relied upon the following judgments :
(1) Pankaja and Anr. v. Yellappa, (2004) 6 SCC 415.
(2) Krishna Gopal Chawla and Ors., 2001 (4) AWC 3181 (SC) : (2001) 9 SCC 694.
(3) Bhavan Vaja v. Solanki Hanuji, AIR 1972 SC 1371.
(4) Radhey Shyam v. State and Ors., 1983 ALJ 557.
16. Having considered the contention I am of the definite opinion that the amendment sought by the landlord was hot barred by limitation nor was barred by Order XX, Rule 12 (c) (1) of the C.P.C. Prior to 26.9.2003 the landlord had no occasion to apply for delivery of possession of the premises in dispute and further rent and damages. The amendment, therefore, was not barred by any law and has been rightly allowed by the court below. The tenant has nowhere alleged that the compromise was obtained by fraud, misrepresentation or coercion. Having agreed to the compromise decree and enjoyed its conditions till 31.3.1984, it was not open to the tenant to take some technical ground to challenge the execution proceedings and that too, which are non-existent nor supported by law.
17. The case relied upon by the petitioner are clearly distinguishable on facts. In the present case the executing court vide order dated 23.8.1982, had dismissed the execution application holding that the decree was a nullity and not executable. During the period of order rejecting the execution application was operative the petitioner could not have moved the amendment application after 31.3.1984. It was only after the judgment of the High Court dated 26.9.2003, that the execution application became alive and the decree was held to be executable. There was no question of bar of limitation after 26.9.2003. None of the cases cited by the petitioner deal with a situation is in the present case. No advantage can be derived by the petitioner from the judgments relied upon. The case of. Antonysami v. Arulanandam, (supra) dealt with a situation where the decree holder failed to execute the decree either in full or in part within the limitation provided under law from the date mentioned in the decree and it was in these circumstances held that the execution applications were barred by law of limitation. There was no order in the said case dropping the execution proceedings.
18. The Full Bench in case of Abdul Rashid v. Sri Sitaram Ji Maharaj, (supra) deals with a situation where execution was dependent upon fulfilment of certain conditions. The Court had held that till such time the condition is not fulfilled the limitation will not start.
19. In the case of Bibekananda Bhowal (supra) dealt with a compromise decree and was dependent upon the language used in the decree itself.
20. In the case of Smt. Sabitri Bala Mallick (supra) the Calcutta High Court held that powers under Sections 151 and 153, C.P.C. cannot be invoked to amend the execution application if it seeks to change the nature of execution application.
21. In the case of Bhaskaran (supra) the Apex Court was dealing with a compromise decree where both parties to the proceedings committed default.
22. On the other hand the judgments relied upon by the respondent are of help. In the case of Pankaja and others (supra) the Hon'ble Supreme Court has held that even time barred reliefs can be allowed by way of amendment. The Apex Court held as follows in para 14 of the judgment :
"The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such case depends on the facts , and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."
23. Further in paragraph 16 of the same judgment the Apex Court held as follows :
"Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice."
24. In the case of Krishna Gopal Chawla (supra) relied upon by the respondent the Apex Court while dealing with a situation where execution proceedings had been stayed by it and subsequently the S.L.P. was dismissed, the judgment debtor had been creating hurdles, the Court observed that conduct of parties showing lack of good faith and an intention to frustrate the administration of justice should be taken note of by the Courts and such conduct must not be allowed to succeed by taking a technical view of the issues invoked.
25. In the case of Bhavan Vaja v. Solanki Hanuji Khodaji Mansang (supra) the Supreme Court while dealing with the scope and duty of executing court under Section 47, C.P.C. held that it was the duty of the executing court to find out the true effect of the decree and where the Court fails to discharge that duty it would be deemed to have failed to exercise the jurisdiction vested in it.
26. Division Bench of this Court in M/s. Banshidhar Durga Dutta (supra) has held that limitation for execution of a decree stands from date of result of appeal.
27. The above citations apply to the facts of the present case. The amendment sought by the respondent was not barred by limitation and deserved to be allowed. The execution court has rightly allowed the amendment application. There is no infirmity or jurisdictional error in the orders passed by the courts below.
28. The tenant, who was liable to vacate the premises and ought to have regularly paid the rent from time to time has not only retained the possession but has also not paid the rent after 1982. He is an unauthorised occupant after 31.3.1984 and a rank defaulter. Looking to the conduct of the petitioner this Court declines to interfere in its extraordinary jurisdiction and exercise its discretionary and equitable jurisdiction in favour of the petitioner even if there was any technical plea available, although there is none.
29. Thus, tenant was not entitled to any relief and further liable to pay damages and also costs. The tenant has illegally continued to occupy the premises in dispute after 31.3.1984. Even after the judgment of this Court dated 26.9.2003 the delivery of possession has been obstructed raising further frivolous pleas.
30. In view of the above the writ petition lacks merit. The writ petition is, accordingly, dismissed with costs which is quantified at Rs. 10,000 to be paid by the petitioner to the respondent.