Bombay High Court
Bhaurao vs Smt. Savitribai And Others on 20 August, 1990
Equivalent citations: AIR1991BOM55, 1991(1)MHLJ136, AIR 1991 BOMBAY 55, (1991) MAH LJ 136
ORDER
1. The non-applicants/landlords were the plaintiffs in the earlier proceedings Special Civil Suit No. 346 of 1983. They had filed the said suit against the present applicant/tenant for ejectment and possession without permission from the Rent Controller since no permission was then necessary. That suit was decreed ex parte vide order dated 23-12-1983. The present non-applicants are the owners of the three storied building "Prayag Sadan" situated in Ward No. 1, Variety Square, bearing House No. 1, Nag-pur. In the present proceedings, we are concerned only with the first floor of the said building. In pursuance of the decree in Special Civil Suit No. 346 of 1983, the non-applicants/ landlord got possession of the first floor. The applicant/tenant challenged the ex parte decree by way of first appeal before this Court. The appeal was dismissed by this Court on 14-2-1985. Thereafter the tenant filed Special Leave Petition before the Supreme Court of India, but that was also dismissed on 26-5-1986. Thus, the decree for ejectment and possession obtained by the present non-applicants/landlords in Special Civil Suit No. 346 of 1983 against the present applicant/tenant became final.
2. The applicant/tenant filed Regular Civil Suit No. 1134 of 1984 on 2-8-1984 against the non-applicants/landlords for a declaration that the ex parte judgment and decree dated 23-12-1983 in Special Civil Suit No. 346 of 1983 was obtained by fraud. The applicant/tenant also applied for temporary injunction. The 4th Joint Civil Judte, Junior Division, Nagpur, vide order dated 2-8-1984 directed the non-applicants/landlords to open the lock which they had put on the first floor. In pursuance of this order, the applicant/tenant got possession of the first floor. The non-applicants/landlords challenged the order of injunction passed by the trial Court by way of an appeal before the District Court, Nagpur (Misc. Civil Appeal No. 188 of 1984), However, the appeal was dismissed and hence the non-applicants/landlords had to approach this Court by way of revision (Civil Revision Application No. 55 of 1986) When the matter came up for hearing before this Court on 14-3-1990, the applicant/ tenant filed a pursis which reads as under:
"The non-applicant hereby withdraws the Civil Suit No. 1134 of 1984 to persue his remedy under S. 47 of the Civil Procedure Code in view of the changed position of law after the pronouncement of the judgment reported in 1986 Mah LJ 506, provided this Honourable High Court grants status quo till the decision of his objection under S. 47 of the Civil Procedure Code."
In view of the pursis, this Court allowed the present applicant/tenant to withdraw Regular Civil Suit No. 1134 of 1984. While allowing the applicant/tenant to withdraw the suit, this Court observed:
"In view of the withdrawal of the suit, the injunction granted by the trial Court automatically stands vacated. No further orders are necessary on that point."
3. In view of the withdrawal of Civil Suit No. 1134 of 1984, the non-applicants/landlords filed an application for restitution of possession of the first floor on 13th March, 1990. The trial Court, vide order dated 6th April, 1990, directed the applicant/tenant to restore possession of the first floor to the non-applicants/landlords. This order was challenged by the applicant/tanant in appeal before the 6th Additional District Judge, Nagpur, but the appeal also came to be dismissed by an order dated 24th April, 1990 and hence this revision.
4. The question that falls for my consideration is whether the application under S. 144 of the Code of Civil Procedure for restitution of possession of the disputed property is tenable.
5. One of the main contentions of Mr. Mohta appearing on behalf of the applicant/ tenant is that the non-applicants/landlords had initiated the proceedings for ejectment and possession in Special Civil Suit No. 346 of 1983 without obtaining permission from the Rent Controller to determine the tenancy of the applicant/tenant. Therefore, he contended that the decree in that suit was a nullity. In my view, it is not possible to entertain this argument in the present proceedings which have their origin to Regular Civil Suit No. 1134 of 1984 which was withdrawn. I have already pointed out that the decree is Special Civil Suit No. 346 of 1983 was challenged by the applicant/tenant by way of first apepal before this Court which was dismissed on 14-2-1985. Thereafter, the matter was agitated before the Supreme Court by way of Special Leave Petition which was also dismissed. In view of this background, it is not possible to entertain the argument that the decree in Special Civil No. 346 of 1983 is a nullity, apart from the fact that present proceedings have not arisen out of that suit. The suit out of which the present proceedings have arisen was withdrawn by the applicant/tenant and, therefore, he cannot retain the benefit which he got on account of the order of temporary injunction passed in the present proceedings in pursuance of which he dispossessed the non-applicants/landlords of the first floor. This Court had already observed that in view of the withdrawal of Civil Suit No. 1134 of 1984, the order of injunction also stands vacated. The non-applicants/landlords were already in possession of the first floor before filing of Civil Suit No. 1134 of 1984 in their capacity as owners thereof. Because of the order passed by the trial Court on an application for an injunction filed by the applicant/tenant that the non-applicants/landlords lost possession of the first floor. That injunction order having been vacated as a consequence of the withdrawal of the Civil Suit No. 1134 of 1984, the benefit which the applicant/tenant had obtained cannot be retained by him. That would be contrary to the very object of S. 144 of the Civil Procedure Code. The portion of S. 144 of the Code of Civil Procedure, which is material for our purpose, is reproduced below:
"144. (1) Where and in so far as a decree or an order is varied or reversed in any appeal revision or other proceeding 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.
X X X X X X (2) No suit shall be instituted for the purpose of obtaining any restitution of other relief which could be obtained by application under sub-section(1)."
From the close scrutiny of the above section, it is clear that it is an obligation on the Court that it shall on the application of any party entitled to any benefit by way of restitution, cause such restitution to be made in so for as it may place the party in the position which it could have occupied, but for such order as has been varied. In the facts and circumstances of the present case, application for restitution is the only remedy available to the non-applicants since a fresh suit is barred in view of sub-section (2) of S. 144 of the Code of Civil Procedure. The Courts below were, therefore, perfectly justified in directing the applicant/ tenant to restore possession of the first floor to the non-applicants/landlords.
6. Mr. Mohta has invited my attention to the decision reported in AIR 1979 (3) SCC 794, Prithinath singh v. Suraj Ahir. After going through this decision, I do not think it in any way supports Mr. Mohta. In this case, restitution was refused on the ground that the property which was the subject-matter of the restitution had vested in the State free from all encumbrances and the State was notjoined as a party to the restitution proceedings. He has also relied on, AIR 1965 SC454, Suraj Ahirv.
Prithinath Singh, but even this case does not support him. The last portion of para 21 of the said judgment reads as under (at page 458 AIR 1963 SC) :
"21 ************************************** It is clear therefore that the land in suit cannot be deemed to be settled with the respondents by the State in accordance with the provisions of S. 6. of the Act. In the absence of any such settlement, no rights over the land in suit remained in the respondents after the date of vesting, all their rights having .
vested in the State by virtue of sub-sec. (1) of S. 5 of the Act."
In para 22 of the judgment, it is observed :
"22. We are therefore of opinion that the respondents lost their right to recover possession from the appellants, even if they were trespassers, on their estate vesting in the State, by virtue of Ss. 3 and 4 of the Act and that therefore, thereafter, they had no subsisting right to recover possession from the appellants. The right to possession now vests in the State. The respondents being no more entitled to recover possession of the land in suit the decree of the High Court has to be set aside. We, accordingly, allow the appeal, set aside the decree of the Court below and restore the decree of the trial Court, though for reasons other than those given by that Court in its judgment. In the circumstances of the case, we order the parties to bear their own costs."
Thus, it would be clear that the cases relied-upon by Mr. Mohta are where the restitution was refused on the ground that the property had already vested in the State on account of the operation of law. He has also invited my attention to the decision , B.B. Patankar v. C. G. Sastry. This decision is on the point of the scope of S. 47 of the Code of Civil Procedure. Reliance was also placed on the decision reported in, , Sunder Dass v. Ram Parkash and particularly on para 3 of the judgment, the relevant portion of which is reproduced below (at page 1204 SC; AIR 1977):
"Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the Court to try the case and a decree which is a nullity is void and can'be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all."
The maintainability of the application for restitution has to be examined on the basis of the proceedings in Civil Suit No. 1134 of 1984. Civil Suit No. 546 of 1983 was filed by the non-applicants/landlords in 1983 without obtaining permission from the Rent Controller, since the law then in force did not require any permission from the Rent Controller. It is only in the year 1986 on account of the pronouncement of the judgment by the Supreme Court in 1986 Mah LJ 906, Nanakram v. Kundalrai, that it became came necessary for the landlord to obtain permis-
sion from the Rent Controller to determine the tenancy even of such tenants to whom premises were let out without permission of the Rent Controller. The decision reported in, v. Smt. Prem Lata, has also been relied upon, but the point involved therein is also distinguishable.
7. I think, there is much substance in the contention of Mr. Bobde that subsequent change in law would not affect the cases where decree is passed. For this purpose, he has relied on the Division Bench decision of this Court reported in, 1986 Mah LJ 882, particularly the last portion which is reproduced below (at page 901 of 1986 Mah LJ):
"We, however, make it clear that this decision would not affect the validity of any proceedings in which a decree or order of eviction has become final and the landlord has already taken possession of the building or any part thereof, pursuant thereto."
He has also relied on the decision , Sarguja Transport Service v. State Transport. Appellate Tribuna, Gwalior. The material portion of which reads as under (at page SC 91 of AIR 1987):
"In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Civil P.C. insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule(3) of R. 1 of O, XXIII, The principle underlying the above rule is founded on public policy......"
8. Another limb of argument of Mr. Mohta was that the disputed site falls within the slum area. He has filed the Notification bearing 'No. SLM-1075-5280-G dated 24-1-1976 published in the Maharashtra Gover-ment Gazette dated 5th February, 1976, and also the certificate issued by the competent authority dated 23-2-1984. Mr. Mohta has invited my attention to S. 22 of the Maha-rashtra Slum Areas (Imporvement, Clearance and Redevelopment) act, 1971 (hereinafter referred to as 'the act'). In view of this section, he contended that the non-applicants/landlords could not initiate proceedings for eviction without the permission of the competent authority.
9. Mr. Bobde has, however, contended that from the Notification itself it is clear that the disputed site being in front of the Sitabuldi Main Road, does not fall within the slum area. Since this objection was not taken by Mr. Mohta before the trial Court, necessary enquiry was not made in this regard. However, after going through the notification, I am satisfied that the disputed site being in front of the road cannot be included in the slum area. Mr. Mohta, relying on the certificate dated 23-2-1984 issued by the competent authority, vehemently contended that the disputed site falls within the slum area. If the certificate is in conflict with the notification, the certificate will have to be ignored.
10. I find much force in the contention of Mr. Bobde that the question of fact and law cannot be raised for the first time in execution proceedings. He has relied on the decision of this Court in Civil Revision Application No. 638 of 1984 decided on 22-9-1988 Chandrakant Purshottam Tapas v. Vinayak Keshaojao Buty) by V. A. Mohta J. in the said revision also, the objection was taken at the stage of execution on the basis of the Maharashtra Slum Areas Act of 1971. It was contended therein that the decree obtained by the landlord was a nullity since the suit was filed without the permission from the competent authority under the Slum Act. While rejecting the objection, this Court observed as under:
"With the assistance of the learned counsel for the parties. I have examined the record. I do not see any case for interference in the revisional jurisdiction. Whether or not particular premises are governed by the Act is a mixed question of fact and law which cannot be allowed to he raised for the first time in execution proceedings. If that be the correct position, it is difficult to see how the decree is nullity specially when the judgment-debtor has not challenged it."
11. Mr. Mohta has submitted that the landlords have admitted the Notification and the certificate. On the basis of this admission, he has argued that it is not open to them to challenge the same. Mr. Bobde has rightly contended that the admission of the certificate and the Notification would not amount to admission of the contents thereof. Certainly, there can be no dispute that the notification is there and that the certificate has also been issued by the competent authority. But, as I have already observed above, when the plain reading of the notification itself excludes the houses situated in front of the Main Road, it would not be possible to hold that the property in dispute falls within the slum area. Had this objection been raised before the trial Court, then the evidence could have been led by the parties and the matter could have been enquired into. But, in the absence of evidence, it is not possible to hold that the property in dispute falls within the slum area. This would certainly be a mixed question of fact and law and, therefore, it should have been raised before the trial Court itself. Mr. Bobde has also relied on the decision reported in, 1984 Mh LJ 796, Fattechand Murlidhar Shop by Properietor v_. Shrikrishna Tejmalji) in support of his contention that there is no warrant of execution in Civil Court to entertain a suit even without the permission from the competent authority under Slum Act and the executing Court has no right to refuse to execute the decree particularly when the objection requires investigation. Mr. Bobde relied on para 17 of the said judgment which reads as under:
"17. Shri Deopujari laid stress on certain observations in Krushna Chandra Sahog v. Indramani Sahu , But that again was a case of inherent lack of jurisdiction because the objection had been raised before the executing Court that the Civil Court had no jurisdiction to try suit for eviction when Rent Control Act was in force. Though the objection had not been raised earlier in the suit or in appeal, plea of absence of jurisdiction could still be raised during the execution proceedings. In the present case, as I have already pointed out, S. 22 of Act 28 of 1971 does not create a jurisdictional bar to the Civil Court's entertaining the suit but only places restrictions on the persons who proposed to institute a suit. If the suit is instituted without the permission of the competent authority, on an objection being raised or the Court noticing the non-compliance thereof, the suit will not be entertained. It is true that the permission, as held in Kalawatibai wd/o Lokumal Sindhi v. Gopala Ganpati Bhanarkar (1984 Mah TX 261) (at page 264, 1984 Mh L.) must be obtained before instituting the suit. No post facto permission can be granted, that could not, however, clothe the Court at the stage of execution, with the power to investigate into the facts, when they are not apparent from the face of the record, for deciding whether the suit could have been entertained at all. In view of the observations of the Supreme Court, such a course would be impermissible. I, therefore find that the learned Judge of the Court of Small Causes was in error in entertaining and allowing the objection to the executability of the decree in the circumstances of the present case. The executing Court was bound to execute the decree as it stood. The executing Court also erred in holding the decree not to be executable as a whole. It was conceded by Shri Deopujari the learned advocate for the opponent that there could be no objection to executing the decree so far as the monetary parts were concerned."
I have already observed above that it was for the applicant/tenant to have proved that the disputed property or a portion thereof was within the slum area notwithstanding the entry in the Notification to the following effect:
"south -- Sitabuldi Main Road leaving front of the road."
12. I also find substance in the submission of Mr. Bobde that question of the bar under the Slum Act may not arise in so far as restitution proceedings are concerned. According to him, S. 144 of the Civil Procedure Code casts an obligation on the Court to restore the party to its old position from which it was deprived of on account of the user of the Court which was subsequently varied. The applicant/tenant in the instant case got the possession of the first floor on account of the temporary injunction which he had obtained in Civil Suit No. 1134 of 1984. The suit was subsequently withdrawn by him and the temporary injunction stood vacated. Therefore, he has got to restore the possession of the first floor to the non-applicants/landlords under S. 144, C.P.C. as rightly found by the Courts below.
13. In view of the reasons stated above, I find no substance in the revision application and the same is, accordingly, dismissed. However, there shall be no order as to costs.
Leave to appeal to Supreme Court is refused. Mr. Mohta requests for two month's time to enable him to move the Supreme Court to get the stay. However, his request for stay of possession for two months is granted.
14. Revision dismissed.