Patna High Court - Orders
Muzaffarpur Club vs Smt. Usha Sinha on 26 February, 2024
Author: Nawneet Kumar Pandey
Bench: Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.338 of 2021
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1. Muzaffarpur Club (through its Honble Members represented by Sri. R.K.
Sahu @ Lalan Babu @ Ramakant Prasad Sahu @
Ratna Kant Sahu, Appellant No. 3) at Sarai Saiyad Ali Muzaffarpur, Near
Head Post Office, Muzaffarpur, P.S. Town, P.O. H.P.O., District-
Muzaffarpur.
2. Sri Kumod Sahay son of Late Gopalji Sahay resident of Mohalla Motijhil,
P.S. Town, P.O. H.P.O., District- Muzaffarpur.
3. Sri R.K. Sahu @ Lalan Babu @ Ramakant Prasad Sahu @ Ratna Kant Sahu
son of Late Krishna Mohan Prasad Sahu resident of Mohalla Sahu Pokhar,
P.S. Town, District- Muzaffarpur.
4. Dr. C.P.N. Thakur son of Late Raghuraj Thakur resident of C/o Thakur
Nurshing Home at Mohalla Nayatola, P.S. Kazimohammadpur, District
Muzaffarpur.
... ... Appellant/s
Versus
1. Smt. Usha Sinha wife of Late Birendra Kumar Singh resident of Village
Rampurballi @ Repura, P.S. Saraiya, District Muzaffarpur, at present
resident of Jaitpur House, Mohalla Maripur, P.S. Town, District-
Muzaffarpur.
2. Sri Annunay son of Late Birendra Kumar Singh resident of Village
Rampurballi @ Repura, P.S. Saraiya, District Muzaffarpur, at present
resident of Jaitpur House, Mohalla Maripur, P.S. Town, District-
Muzaffarpur.
3. Sri Annumeet son of Late Birendra Kumar Singh resident of Village
Rampurballi @ Repura, P.S. Saraiya, District Muzaffarpur, at present
resident of Jaitpur House, Mohalla Maripur, P.S. Town, District-
Muzaffarpur.
4. Sri Pradeep Maherotra son of Late Radhey Shyam Mehrotra resident of
Mohalla Juran Chhapra Road No. 1, P.S. Barhmpura, District Muzaffarpur.
5. Sri Baidyanath Prasad Verma son of Late Dr. S.C. Prasad, resident of
Mohalla Professor Colony, Amgola, P.S. Town, District Muzaffarpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. K.N.Chaubey, Sr. Advocate
Mr.Jitendra Kishore Verma
Mr. Ranjan Dubey
Mr. Anjani Kumar
Mr. Abhishek Kumar Srivastava
Mr. Ravi Raj
Patna High Court SA No.338 of 2021(12) dt.26-02-2024
2/13
For the Respondent/s : Mr. J.S.Arora, Sr. Advocate
Mr. Ravi Bhatia, Sr. Advocate
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CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV ORDER
12 26-02-2024I have already heard the learned counsels for the appellants (petitioners) as well as the learned counsel for the respondents on I.A.No. 01 of 2023.
2. The aforesaid interlocutory application has been filed under Order XLI Rule 5 of the Civil Procedure Code (hereinafter to be referred to as 'the Code'), with a prayer to stay the further proceeding of Execution Case No. 02 of 2015 pending in the court of Sub Judge-I (East), Muzaffarpur) during the pendency of this appeal.
3. This appeal was admitted vide order dated 07.10.2023 and the following substantial questions of law have been formulated for determination:-
"(i) Whether the document in question (Ext.10/a) Patta Theka Mokarrir Istemarari dated 17.07.1989 envisages transactions of permanent/perpetual lease creating absolute right in favour of appellant not to be evicted from suit premises?
(ii) Whether the instant Title Suit No. 69 of 1983 for eviction is barred by Law of Limitation when admittedly appellant club stopped the payment of rent since July, 1956 and Patna High Court SA No.338 of 2021(12) dt.26-02-2024 3/13 put the hostile claim of the suit premises?
(iii) Whether the instant suit is barred by principle of res judicata in view of order dated 30.08.1958 (Ext.F) passed in House Control Case No. 02 of 1955 where it was held that there is no relationship of landlord and tenant between the parties ?"
4. On 07.10.2023, the order of status quo was passed and the interlocutory application was fixed for hearing on 16.10.2023, on that date, the status quo was ordered to be continued till hearing of I.A.No. 01 of 2023.
5. The brief facts of the case is that the plaintiffs/respondents filed a suit for eviction against the defendants/appellants (Muzaffarpur Club) from the suit premises with a further relief of realization of arrears of rent with interest and also the relief for compensation in respect of damages to the property in suit was claimed. The premises in question was let out/leased out to the appellant, Station Club, Muzaffarpur through its secretary for a period of ten years from 01.08.1885 to 1.08.1894 at the monthly rent of Rs. 25/-. A fresh lease deed was executed by the lessor Choudhary Mahant Raghunath Das (predecessor-in-interest of the plaintiffs) on 17.07.1889 to the same Club in the form of Theka Patta Mokarrari Istemarari (a perpetual lease). The rent was fixed at Patna High Court SA No.338 of 2021(12) dt.26-02-2024 4/13 the rate of Rs. 50 per month. The ground for determination of the lease was stipulated in the deed itself as terms and conditions of the lease, according to which if the Club ceases to exist, the property would revert to Jaitpur Estate. The eviction suit was decreed on 3.09.2015, against which the appellants preferred the Title Appeal No. 57 of 2015 before the learned District judge Muzaffarpur and the said appeal was dismissed on 06.03.2021 against which this second appeal has been filed.
6. The learned counsel for the appellant submitted that the lease deed dated 17.07.1889 makes a provision of determination of the lease. The ground for determination is the non-functioning (ceasing) of the Club. The Club is still functioning, as such, there is no ground for determination of the lease. Moreover, it was stipulated in the lease deed itself that in case of non-functioning of the Club, the premises would revert to the Jaitpur Estate. There was no provision in the deed that the premises would return to the plaintiffs. The second submission of the learned counsel is that no notice under Section 111(g)(2) of the Transfer of property Act was given to the defendants/appellants. Without giving a notice under Section 111(g)(2) of the T.P.Act, the judgment and decree of eviction cannot be passed against the petitioners. It was also submitted Patna High Court SA No.338 of 2021(12) dt.26-02-2024 5/13 that the lease dated 17.07.1889 was a perpetual lease, as such, no eviction can be made under the B.B.C. Act as there is no relationship of landlord and tenant between the parties. The learned counsel also submitted that the title eviction suit instituted by the plaintiffs/respondents was barred by the doctrine of res judicata since the predecessor-in-interest of the plaintiffs/respondents filed a suit for eviction before the House Controller bearing House Control Case No. 02 of 1955, which was dismissed. Once the suit was dismissed by the Rent Controller, the plaintiffs/respondents cannot institute the subsequent suit on the same ground. The learned counsel has submitted further that during the pendency of the first appeal (Title Appeal No.57 of 2015), the appellants had filed an application for stay of execution of the decree and the Execution Case No. 02 of 2015 was stayed. Against that order, the respondents preferred Civil Misc. No.1370 of 2016 which was dismissed by this Court vide order dated 03.12.2018 and while dismissing that application, this Court refrained from imposition of conditions, as such the order of this Court in that case will operate as res judicata in the present matter. By relying upon the decisions reported in AIR 1960 SC 941 and AIR 2005 SC 446, the learned counsel submitted that the principle of res Patna High Court SA No.338 of 2021(12) dt.26-02-2024 6/13 judicata applies also between the two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding. It has also been submitted that this Court has occasion to adjudicate upon the similar matter as reported in 2022 (3) BLJ 393 and held that in an eviction suit, there is no mandatory requirement of furnishing security and an undertaking to vacate is enough, in terms of Order XLI Rule 5 (3)(c) of the code.
7. The learned counsels for the appellants placed reliance on several decisions, such as (i) (1982) 3 SCC page 484, (ii) 2001 (2) PLJR page 268, (iii) 2017 (2) PLJR page 54 & (iv) a decision of Hon'ble Supreme Court dated 30.09.2013 passed in civil Appeal No. 8775 of 2013, and submitted that if the appeal is admitted, an order of stay must be passed, otherwise the appellant would suffer irreparable loss.
8. On the other hand, the learned counsel for the respondents submitted that the suit of the plaintiffs/respondents for eviction was decreed by the trial court and the first appeal was also finally dismissed, against which the present second appeal has been filed. The respondents have specifically Patna High Court SA No.338 of 2021(12) dt.26-02-2024 7/13 mentioned in their counter affidavit and supplementary counter affidavit that there is relationship of landlord and tenant and the relationship of landlord and tenant was found by the courts below which has become concurrent findings of facts, and not liable to be interfered with in the second appeal. The further submission is that the appellants in paragraph-11 of their interlocutory application have mentioned that Muzaffarpur Club purchased the suit land from Mahant Raghunath Prasad by sale deed dated 26.02.1896 (Exhibit 10/B) and after execution of the sale deed, they did not remain as permanent settlee, rather they became the owner of the suit land, but this plea of the respondents was not believed by the courts below. The learned counsel further submitted that the House Controller under the provisions of the B.B.C.Act has no jurisdiction to pass a decree of eviction, as such, the order of the House Controller in House Control Case No. 02 of 1955 is without jurisdiction and it is a settled principle of law that an order without jurisdiction is a nullity and cannot operate as res judicata in the present case. The learned counsel further submitted that so far as the order passed by this Court in Civil Misc. No.1370 of 2016 is concerned, that has no relevance at the present second appellate stage. That order was operative only during the pendency of the Patna High Court SA No.338 of 2021(12) dt.26-02-2024 8/13 appeal of Title Appeal No.57 of 2015 and after dismissal of that appeal that order has lost its relevance. The learned counsel for the respondents submitted that though this Court held in 2022 (3) BLJ page 393 that in an eviction suit, there is no mandatory requirement of furnishing security and an undertaking to vacate the premises is enough in terms of Order XLI Rule 5(3) (c) of the code. But in the present case, the furnishing of security is essential because the respondents have become successful in the case not only from the trial court but also from the first appellate court. The concurrent findings of the courts below are in favour of the respondents. He submitted further that the furnishing of security is also essential because in case the respondents become successful in second appeal also, it would be impossible for them to recover the damages as well as the arrears of rent from the appellant, Muzaffarpur Club. They submitted that the interlocutory application for stay of the execution of the decree should either be rejected or if it is granted, a security in terms of Order XLI Rule 5(3) (c) must be taken from the appellants. The learned counsel has submitted further that in the decisions reported in (2009) 9 SCC 772, AIR 2022 SC 1377 and (2005) 1 SCC 705, the Hon'ble Supreme Court held that as a security the rent at immediate market rate should be furnished. He submitted Patna High Court SA No.338 of 2021(12) dt.26-02-2024 9/13 further that these decisions were not placed before this Bench, while hearing the case reported in 2022 (3) BLJ page 393.
9. The learned counsels for the both the parties raised a number of points relating to the merit of this appeal which is not proper to adjudicate upon at the stage of hearing of the petition under Order XLI Rule 5 of the Code. The only point is to be considered whether an order of stay of the execution should be passed or not and if it is passed, whether a condition should be imposed on the appellants as per Order XLI Rule 5(3)
(c) of the Code, requiring a security for due performance of the decree or order.
10. In this case already an order of status quo was granted on 07.10.2023 which was extended vide order dated 16.10.2023, till hearing of this interlocutory application (I.A.No.01 of 2023). The learned counsel for the appellants relied upon the decisions reported in 1982 (3) SCC page 484, 2001(2) PLJR page 268 and 2017(2) PLJR page 54. He submitted that the Hon'ble Supreme Court as well as this Court have been pleased to hold that during the pendency of the appeal if the stay is not granted, there shall be an irreparable loss to the appellant. He submitted that the appellant/Muzaffarpur Club is in possession of the premises in Patna High Court SA No.338 of 2021(12) dt.26-02-2024 10/13 question for 130 years, and if the appellants become successful in appeal, the restoration of possession would be very difficult and almost impossible.
11. Considering the above-mentioned facts and circumstances of the case, I am of the view that for the ends of justice, the further proceedings of Execution Case No.02 of 2015 should be stayed till disposal of this second appeal.
12. The learned counsel for the respondents submitted that if the stay is granted, the appellants should furnish the security for complying the decree in terms of Order XLI Rule 5(3)(c) of the Code. The Order XLI Rule 5(3)(c) of the Code is extracted hereinbelow:-
"5(3)(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him"
13. From bare perusal of this provision, it shows that this Court is empowered to require a security from the applicant for due compliance of the decree.
14. This Court had an occasion to consider this fact in case of Shri Madhurendra Kumar Singh & another, reported in 2022(3) BLJ page 393, in which it was observed that it is the discretion of the Court to require the appellants to file security. Patna High Court SA No.338 of 2021(12) dt.26-02-2024 11/13 This Court, while deciding the case of Shri Madhurendra Kumar Singh (supra), relied upon the decision of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., reported in 2005(1) PLJR page 320. In the case of Madhurendra Kumar Singh (supra), the applicant had filed an undertaking to obey the decree and this Court found that the undertaking as sufficient security for the purposes of Order XLI Rule 5(3)(c) of the Code. But, in the present case, there is not only prayer for eviction of the appellants has been claimed, but also there is a prayer for recovery of arrears of rent as well as compensation of the damages caused to the premises by the appellants. At this juncture, it is impossible to predict the fate of the case, but it is a fact that the respondents have become successful from the trial court as well as the first appellate court. The concurrent findings of the courts below are in their favour. In case, they become successful in this appeal, it would be impossible for them to recover the damages and arrears of rent from the Club in question.
15. So far as the submission of the learned counsel for the appellants that at the first appellate stage the stay order was passed without any security and this Court also refused the prayer of the respondents to direct the appellants to furnish the Patna High Court SA No.338 of 2021(12) dt.26-02-2024 12/13 security vide order dated 03.12.2018 passed in Civil Misc.No. 1370 of 2016 and that order shall operate as res judicata. In my view, the order dated 03.12.2018 passed in Civil Misc. No. 1370 of 2016 will not operate as res judicata, as the Court has never stated in that order that the appellate court has no jurisdiction to take security for due performance of the decree. In that order, this Court has stated that it is the jurisdiction of the appellate court to take security, so even if the order passed in Civil Misc. No. 1370 of 2016 is considered at this juncture, this Court has jurisdiction to direct the appellants to furnish the security for due performance of the decree.
16. Considering the above-mentioned facts and circumstances, the further proceedings of Execution Case No. 02 of 2015 shall be stayed till the final disposal of this appeal, subject to the condition that the appellants shall deposit Rs. 1,00,000/- (rupees one lac) per month as a security till disposal of this appeal. The amount shall not be withdrawn by any of the parties, and payment of that amount shall be subject to the final outcome of this appeal. At the same time, the appellants shall furnish an undertaking that in case the respondents become successful in this appeal, they may recover the rest arrear amount from four kathas of land given by the State Government Patna High Court SA No.338 of 2021(12) dt.26-02-2024 13/13 to the Muzaffarpur Club.
17. I.A.No. 01 of 2023 stands disposed of.
(Nawneet Kumar Pandey, J) HR/-
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