Bombay High Court
Geeta Govind Sawant Desai And Ors. vs Nandkumar Anandrao Patkar (Dr.) on 18 December, 1987
Equivalent citations: 1988(1)BOMCR338
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT Sharad Manohar, J.
1. Civil Application No. 6685 of 1987 discloses the grossest abuse of the process of the Court by the applicants and, as will be presently pointed out, I was very much inclined to pass an instant order to hear them in this behalf and found appropriate in law giving these contemners in the custody of the Sheriff after sentencing them to Civil Jail on account of this kind of abuse of the process of the Court. It is only because both the learned Counsel, Mr. Walavalkar & Mr. Hatangadi have prayed that this drastic step may not be taken that I am restraining myself from passing such order although I am not sure that this restraint is called for in this gross case.
2. A simple statement of facts is quite enough to expose the most obvious device (of taking the Court for a joy-ride) employed by these Applicants in Civil-Application No. 6685 of 1987:---
(a) One Dr. Patkar obtained a decree against one Raghunathrao Tawde (Applicant No. 5 in Civil Application No. 6381 of 1987). Mr. Hatangadi wants to convey to me that the decree was obtained on the ground of non-payment of rent. Mr. Walavalkar does not dispute this statement of fact and hence, I am assuming that the decree for possession was passed on the ground of non-payment of rent. An unfruitful Appeal was preferred against that decree. The judgment-debtor did not rest content until he had taken the matter right till the Supreme Court, but even the Supreme Court dismissed his appeal. Thus, the position came to be crystalised that a decree for possession was passed against this Raghunathrao, the original judgment-debtor, finally by the Court of competent jurisdiction. Nothing remained about passing of the decree as such.
(b) When the decree-holder (landlord) tried to execute the decree for possession secured by him so precariously, after running from pillar to post and after so many heart-burns, these applicants Nos. 1 to 4 obstructed the execution. The result was that the decree-holder had to institute obstructionist proceedings for removal of the obstructions. But while the obstructionist proceedings were afoot, these Applicant Nos. 1 to 4 filed a declaratory Suit in the Small Causes Court for a declaration that they were the lawful sub-tenants of the suit premises.
(c) There cannot be the slightest doubt that this Raghunathrao himself has set up these Applicants Nos. 1 to 4 to obstruct the execution of the decree. The original suit for eviction was filed in the year 1967 (R.A.E. Suit No. 1310 of 1967). The ultimate decree was passed by the Supreme Court probably sometime after 1976. But there is no dispute that during the pendency of the appeal by Raghunathrao in the Small Causes Court declaratory Suit No. 2090 of 1976 was filed by four persons (Applicants Nos. 1 to 4 in Civil Application No. 6685 of 1986) for a declaration that they were the sub-tenants of their uncle Raghunathrao, present Application No. 5. It may be mentioned here that applicant No. 1 Geeta is the niece of Raghunathrao, Applicant No. 2, Prashant, is her son. Applicant No. 3 is the nephew of Raghunathrao and Applicant No. 4 Sheela is his wife. All of them are the close relations of Raghunathrao & their own contention which they were declaring from the house-tops has been that they were residing in the suit premises as Raghunathrao's sub-tenants and still they did not move their small finger to do anything about suit filed against Raghunathrao but filed a separate declaratory suit and that too after the decree was passed by the trial Court in the main suit which was filed as early as in the year 1967. Obviously, they waited until the decree was passed and finding that the decree was inescapable they filed this declaratory suit. The suit was dismissed. I may mention here that the Court noticed that this was thoroughly collusive suit. The appeal against them was dismissed. They did not take the matter any further. They are finally held to be having no interest in the premises.
(d) Now starts the 3rd round of litigation. When the decree-holder had tried to execute the decree and obstruction had been caused by the present Applicants Nos. 1 to 4, they had filed the declaratory suit. Since that was dismissed, they could have had no justification for further obstruction whatsoever, because their claim of sub-tenancy was negatived by the Competent Court. Still, they persisted with the obstruction.
I may mention here further that in the declaratory Suit No. 2090 of 1976 an application for interlocutory injunction was made by these very applicants Nos. 1 to 4. The interim injunction was not granted. They filed an appeal to Small Causes Court. That appeal was rejected. Therefore, they filed Writ Petition No. 1578 of 1980 in this Court. In that writ petition, Justice S. K. Desai passed an order on 16th September, 1980 granting them time to vacate the premises by 31st March, 1981, but subject to that order the Writ Petition was dismissed. They did not vacate the premises as per the implied assurance given by them in that Writ Petition and this was the reason why obstructionist proceedings had to be continued by the decree-holder against these obstructionist. When they persisted with the obstruction, Contempt application was filed by the decree-holder. However, the contempt proceedings could not succeed on the technical ground that neither any specific order was passed by the Court directing them to vacate the premises by 31st March, 1981 nor any undertaking was given to this Court. All that the Court did was to give them time to vacate the premises by 31st March, 1981. This is the reason why contempt proceedings had to be dropped.
(e) In the obstruction proceedings which continued, the Court ordered the obstruction to be removed, by its order dated 21-2- 1986. These Applicants Nos. 1 to 4, against whom the order was passed, filed Appeal against that order. Even that Appeal was dismissed on 26th September, 1986. Writ Petition No. 5998 (out of which the present application arises) was filed by these very applicants. Even that Writ Petition was rejected by the Court. But upon their giving undertaking to vacate the premises by 31st December, 1987 time was given to them to vacate the premises by the Court till that date. But all the same, they filed a Special Leave Petition against the order rejecting the Writ Petition. Even that Special Leave Petition was dismissed by the Supreme Court in May 1987.
3. It will be, thus, seen that a full, final and conclusive decree has been passed so far as the original judgment-debtor Raghunathrao is concerned. I may mention that in the Writ Petition in which undertaking was taken from these applicants Nos. 1 to 4, a declaration was made by these very applicants to the effect that it was they and nobody else was in possession of the suit premises. Obviously, this Raghunathrao, original judgement-debtor, was fully aware of this declaration. It any evidence is needed for this, that can be amply found in the fact that the present Applicant No. 5, who is the original judgment-debtor, has made common cause with these applicants Nos. 1 to 4 who had filed the declaration as directed by Justice Jahagirdar in Writ Petition No. 5492 of 1986 stating that no one, other than themselves, was in possession of the suit premises on the date of the declaration which was filed on or after 5th December, 1986 pursuant to the order of Justice Jahagirdar dated 5th December, 1986. This means that not only that the decree against the original judgment-debtor is now final & conclusive, but now it stands executed against the original Judgment Debtor (present Applicant No. 5) in the eyes of law, because he is no longer in possession. All that remains is the task of the decree-holder to take possession from the obstructionist. They have made a declaration that no one else was in possession and that they were in exclusive possession of the same and had given an undertaking to vacate the premises by 31st March, 1981.
4. Now, starts the 4th round of litigation. The original judgment-debtor was not residing in the premises and was not in possession of the premises. The decree against him has become final and conclusive and, further, in the eyes of law, it stands executed, and still he filed an application in the Court of Small Causes in R.A.E. Suit No. 1310 of 1967 for a declaration that he decree which was passed against him and which had already been executed, in the eyes of law, was not executable and that it did not entitle the plaintiff to recover possession of the suit premises and for injunction restraining the decree-holder from executing the decree.
5. As will be presently pointed our, I asked Mr. Hatangadi time and again as to under what provision of law and particularly of the Amending Act the right of the original judgment-debtor, which had finally been wiped off, has been brought back to life by the Amending Act; it was just not possible for him to show any provision in the Act giving the judgment-debtor any such right. He no doubt relied upon section 12 and section 25 of the Amending Act. But the said two sections cannot have the slightest application to the claim of the original judgment-debtor. Still, the application was made. What the Court feels, as the most unfortunate part of this matter, is that in spite of this eloquent history of this litigation, the learned Judge found no compunction in favour of the original decree-holder, who is being driven from Pillar to Post, and it is in the most casual manner that the learned Judge has ordered notice to issue against the original decree-holder making it returnable on 20th January, 1983. I will have something to say about such most culpable and casual attitude of some of the Courts which partly accounts for the mounting of the arrears of worthless case in the Courts.
6. As mentioned above, not only a declaration but even an injunction has been asked for. The injunction has not been given. Now, these defaulting and recalcitrant applicants want to have a 5th round of litigation. They have made a common application before this Court for relieving applicants Nos. 1 to 4 from the undertaking which they have solemnly given to this Court to vacate the premises on or before 31st December, 1987.
7. I will firstly deal with the question as to whether the declaratory application filed in the trial Court is at all maintainable.
As stated above, I asked Mr. Hatangadi, the learned Counsel for the applicants, to show to the Court one single provision in the Act amending the Bombay Rent Act which gives even the remotest right to the judgment debtor, against whom the decree has been passed long ago and was not in possession of the premises to re-agitate his right. The learned Counsel firstly relied upon section 25 of the Amending Act, Maharashtra Act No. 18 of 87.
The Amending Act purports to amend the Bombay Rent Act. Under the Original Bombay Rent Act, there was no discretion to the Court in the matter of giving relief against what may be loosely termed as "forfeiture" if the tenant was in arrears of rent for a period exceeding 6 months. If the period of arrears was less, the Court was bound to grant him relief against eviction (vide sections 12(3)(a) and 12(3)(b) of the unamended Bombay Rent Act, as it stood before 1987). The Amending Act, Maharashtra Act No. 18 of 87, which was published in the Maharashtra Gazette on 27th July, 1987, has in substance, done away with section 12(3)(a) of the said Rent Act and the provision that now stands is that irrespective of the extent of arrears the Court is bound to grant relief to the tenant against eviction, provided he had not availed of such relief on two previous occasions and provided that he deposits all the arrears of rent on the 1st date of hearing of the suit or on or before such extended date as the Court may allow. This is the substance of section 11 of the Amended Act.
Section 25 of the Amending Act provides for a Saving Clause. It states that nothing in section 11 of the Amending Act will authorise the reopening of the suit or proceeding for the eviction of any person from any premise if such proceeding has been finally disposed of before the commencement of this Act. There is an explanation to that section which states as to what is meant by disposal of the suit or proceeding. It states that if any Appeal is pending or any proceeding is pending or if the period of limitation for filing the appeal is not over, the suit or proceeding will not be deemed to have been disposed of.
8. Mr. Hatangadi relied strongly, in the first instance, upon the Saving Clause. With no offence meant for the learned Counsel, I plainly fail to see as to how he can rely upon the Saving Clause affording any protection when the protection is not given by the main body of the Act. If the protection was given by the Act, the Saving Clause might provide that the protection does not apply to certain situations. But the Saving Clause itself never gives fresh protection.
All the same, I will analyse this section 25 in detail a little later. Let me now turn to section 11 of the Amending Act, reliance upon which was placed by the learned Counsel.
9. I have already mentioned the substance of section 11 of the Amending Act. All that it provides is that no decree for eviction can be passed against a person who deposits the arrears on the 1st date of hearing or on the extended date of hearing. I may even go to the extent of saying that this additional right may be availed of by the tenant during the pendency of the appeal in the Small causes Court or even during the pendency of the appeal in the Supreme Court. I must hasten to add that I do not wish to express my opinion on this point. All that I am stating is that I am prepared to assume that the tenant may be entitled to avail of the protection of this Amending Act even during the tendency of the appeal in the Supreme Court if this Amending Act comes into force during the tendency of that appeal and if the tenant is prepared to deposit the monies with the leave of the Court with a view to avail of that protection. But the point is that all this is academic. All this postulates that the decree of possession passed against the tenant has not become final and conclusive. The factual position in the present case is that all the proceedings are now over long time ago. Section 11 of the Amending Act contemplates prohibition against passing of the decree on the ground of arrears of rent. Point is that decree has already been passed. It is nobody's case that decree is rendered a nullity by virtue of the amending Act Section 11, therefore, cannot have a ghost of application to the facts of the case. If section 11 does not apply, it is inconceivable and unarguable that the saving provision will apply. Said section 11 clothes the tenant with the additional right against his landlord. A saving provision would, therefore, come to the rescue of the landlord/decree-holder, not to that of the tenant judgment debtor.
10. In the obvious attempt to clutch at any straw, the learned Counsel relied upon the expression "proceeding" used in section 25. His contention is that the execution proceeding is still pending and that hence, the newly amended section 12 must be deemed to be applying to the facts of the case.
Nothing could be farther form the correct position. The "proceeding" contemplated by said section 25 does not evidently refer to the execution proceedings. What has been done by the Amending Act is to do away with section 12(3)(a) of the old provision of the Rent Act completely and old section 12(3)(b) has been retained with certain modifications which are of no consequence for our purpose. But the law as previously existed and as it now stands is that all the arrears of rent have to be paid before the passing of the decree, not after the passing of the decree in the execution proceedings. The word "proceeding" employed by section 25 obviously contemplates a proceeding in the nature of Writ Petition or a Revision Application which may be regarded as continuation of the suit.
Even on first principle or on the elementary interpretation of the statue, therefore, the application made by the present Applicants Nos. 1 to 4 is patently unable.
11. I am very much grieved to find that this obvious position was not even looked at by the learned Judge. I can understand her not having looked at it if what was filed was a simple suit without having any history of its own. A suit has got to be entertained by the Court although the Court will not be entitled to grant interim relief in the suit by ignoring the previous history. But so far as an application in a disposed of suit is concerned, the learned Judge should have looked at the application, should have seen the nature and history of the matter and should have thrown the application in limine. Instead of doing so, she adjourned the hearing of the application quite few times and has now directed the matter to be heard on 21st January. This means another inning for the judgment-debtor and another source of annoyance to the decree-holder. What all this spells is that getting a decree in this country is an offence committed by a person having a right to the property. Flippant and frivolous proceedings are entertained by the Courts on account of such casual attitude entertained by them. I strongly disapprove of this casual attitude shown by the learned Judge.
12. To my mind, this application filed by present Applications Nos. 1 to 4 and the present Civil Application No. 6685 of 1987 is perhaps the grossest abuse of the process of the Court, including this Court. Obviously, these five applicants are colluding with each other. On the applicants' own showing, applicant No. 5 is not in possession of the suit premises. There is no impediment in their way vis-a-vis Applicant No. 5 in handing over possession to the decree-holder. They have already filed a declaration in this Court that only they and no one else is in possession of the suit premises and have given an undertaking that they will not induct anyone else therein. They must abide by the undertaking and leave applicant No. 5 to take such proceedings as he may be advised. No occasion has arisen for them to ask from this Court for getting relieved of the undertaking. On their own showing, he was not in possession. They can just hand over possession to the decree holder and there the matter ends. Obviously, they are hand-in-gloves with applicant No. 5. They are playing hide & seek with this Court and are taking all the courts for a joy-ride. A more serious case of the abuse of the process of the Court can hardly be conceived of. I have, therefore, no doubt that all these applicants are very much guilty of the Contempt of Court.
As stated above, the applicants are present in the Court and I was inclined to direct them to be taken into the custody by the Sheriff for the manifest Contempt of Court, as stated above. But, as stated above, it is only because of the request by the learned Counsel that I am desisting from passing any such order. However, an order of appointment of Receiver has already been passed. The Receiver has taken possession of the relevant part of the suit premises. He has allowed the present applicants Nos. 1 to 4 to remain in possession only as the Receiver's Agents. These applicants were directed to execute the agreement with the Receiver to hand over possession to them on or before 31st December, 1987. Mr. Walavalkar has made a grievance that they have not still executed the Agreement; probably another indication of their desire to play hide and seek with the Court. But for the reasons stated above, I do not wish to pursue that part of this matter.
13. Three of the applicant, viz. Applicant No. 1, 2 and 3 are present in the Court today. They give a personal undertaking to this Court that they will execute the necessary agreement and undertaking in favour of the Receiver during the course of the day before they leave the Court premises. Mr. Vaze appears on their behalf as the Advocate on record. He undertakes to complete all the formalities on their behalf with a view to give to the Receiver the finally executed agreement and undertaking during the course of the day. If that is not done, the Receiver is directed to take possession from all or any of the applicants, who may be in possession, forthwith during the course of the day tomorrow, if necessary, with the help of the police. If an undertaking is given by all the applicants to hand over possession on or before 31st December, 1987, the applicants concerned shall be allowed by the Receiver to remain in occupation of the relevant portion of the suit premises, but only till 30th December, 1987. In no event, any of the applicants will be allowed to be in occupation of the suit premises after 30th December, 1987. This lenient order is being passed because Mr. Hatangadi, the learned Counsel for the applicants, has given further undertaking on their behalf, in the presence of all the above mentioned 3 applicants, Applicants Nos. 1, 2 and 3, that they would not initiate any proceedings before handing over the possession. I make it clear that they are entitled to take any proceedings after the undertaking is abided with and honoured by them. If they institute any further proceedings, the Court will certainly examined their case in the light of the observations made by me above.
Since this proceeding is necessitated on account of and since so much of this courts's time is taken by these applicants for the most flippant and frivolous application, the applicants are directed to pay Rs. 1000/- to the respondent/decree-holder as costs of the day's hearing, which amount shall be deposited by them in this Court on or before Saturday, the 19th instant. Avoiding compliance with this order will be treated by this Court as another Contempt of Court.
After the deposit of the amount, order as regards payment of the same shall be passed by this Court in the 1st week of January, 1988.
Immediately after the receipt of the possession from the applicants the Receiver is directed to hand over possession of the same to the decree-holder, that is to say to the applicant.