Calcutta High Court
Cash Register Co. (P) Ltd. Now Known As ... vs Suraj Narayan Shaw And Ors. on 9 August, 2002
Equivalent citations: (2003)1CALLT148(HC)
JUDGMENT N.C. Sil, J.
1. This revisional application under Section 115 of the Code of Civil Procedure is directed against the judment and order dated 21.3.2002 passed by Shri R.K. Dey, learned Judge, City Civil Court, VIIth Bench in connection with Misc. Case No. 1332 of 2001 arising out of Title Execution Case No. 50 of 2000.
2. It appears from the impugned order that as many as three applications were filed by the petitioner/judgment-debtor before the learned lower Court. In one application under Section 47 of the Code of Civil Procedure the petitioner prayed for stay of all further proceedings of Title Execution Case No. 50 of 2000. In other application under Order 39 Rules 1 and 2 of the Code the petitioner prayed for temporary injunction against the O.P.s/ decree-holders and in application under Section 151 of the Code of Civil Procedure the petitioner prayed for stay of all proceedings of the said Title Execution Case number. After hearing both the parties the learned Judge rejected all the three applications.
3. It appears from the record that the O.Ps. got a decree in title suit No. 1323 of 1981 on 29.4.1985 against which the petitioner preferred an appeal before the High Court and the said appeal being Nos. FAT 2630 of 1985 and F.A. No. 121 of 1997 was dismissed. Thereafter the petitioner preferred as many as two S.L.Ps. before the Hon'ble Apex Court one against the dismissal of appeal by the High Court and the other against the dismissal of the review application by the High Court. After hearing both the parties, both the S.L.Ps. were dismissed by the Hon'ble Apex Court.
4. Mr. S. Dasgupta, the learned senior counsel appearing for the revisionist submits before me that the rent deposited by the petitioner was accepted by the O.Ps. and as such a new tenancy was created with the implied surrender of the tenancy by the original tenant. It is also pointed out by Mr. Dasgupta that in terms of the provisions of Section 13(1) of the West Bengal Premises Tenancy Act (hereinafter referred as 'Act') no decree could be passed in the eviction suit and as such the decree was a nullity. It is also pointed out by Mr. Dasgupta that in the instant case the lease was for 21 years and so the West Bengal Premises Tenancy Act will not operate.
5. Mr. S.P. Roychaudhury, the learned counsel appearing for the O.P./ decree-holder submits before me that there is little scope of Section 47 of the Code of Civil Procedure. He has taken me through the pleadings of the parties in the Title suit and tries to impress upon me that the petitioner admitted the case of the O.P. in their written statement. He has also referred to paragraph 12 of the written statement filed by the petitioner wherein the entire transaction was described as oral. Mr. Roychaudhury has also submitted that only in the review application before the High Court the petitioner introduced the case of implied surrender for the first time. Mr. Roychaudhury contends that the petition under Section 47 of the Code of Civil Procedure is a mere repetition of paragraph 11 of the review application. It is also pointed out by him that from paragraph 13 of the petition under Section 47 onwards again new facts were introduced as if a new suit was brought in the application under Section 47 of the Code of Civil Procedure in order to substantiate the claim of implied surrender.
6. The learned advocates for both the parties have referred to a number of case laws which I shall discuss at the appropriate point of time. In reply Mr. Dasgupta has submitted that the function of the executing Court is not to see the execution of the decree only.
7. Mr. Dasgupta has referred to the ratio decided in the case of P.M.C.K. Nair v. C.R.N. Iyer and Ors. . In the said case the Hon'ble Apex Court after having drawn the analogy of the English law observed that just as under the English law, there can be an implied surrender under the law of transfer of property in India, if the lessor grants a new lease to a third person with the assent of the lessee under the existing lease who delivers the possession to such person or where the lessee directs his subtenant to pay the rent directly to a lessor. Here in the instant case admittedly the rent paid by the petitioner was accepted by the O.P.
8. Mr. Dasgupta then refers to the ratio decided in the case of Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. in which it was inter alia held that the decree passed without jurisdiction is a nullity and is non est and in such circumstances question of its invalidity can be raised even at execution stage. Similar decisions were made in the case of Kiran Singh v. Chaman Paswan and MPS Jaiswal v. D.N.B. Jeejeebhoy , Mr. Dasgupta has then referred to the ratio decided in the case of S.C. Pal Chowdhury v. T.P. Pal Chowdhury (ILR 40 Cal 541, 543) in which it was decided that an application for review is not a suit within the meaning of Section 13 of the Code of Civil Procedure and a decision of a question arising in an application for review cannot operate as constructive res judicata.
9. Mr. Dasgupta has also referred to the ratio decided in the case of Indian Oil Corporation Ltd. v. State of Bihar (AIR 1986 SC 1780) in which it was held that the dismissal of a Special Leave Petition in limine by a non-speaking order does not justify any inference that by necessary implication and contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. Neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of the Supreme Court dismissing the special leave petition operate to bar the trial of the identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by the Supreme Court at least by implication. Mr. Dasgupta has also referred to the ratio decided in the case of Kunhayammed v. State of Kerala in which the scope of Article 136 of the Constitution was discussed and it was inter alia held that if the petition seeking grant of leave under Article 136 of the Constitution to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out. It was also observed that the Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition of special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. It was also held that if the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. The Hon'ble Apex Court also observed in the said decision that the dismissal at the stage of special leave without any reason does not operate either as res judicata or as merger.
10. Mr. Dasgupta has also referred to the ratio decided in the case of Maharam Ali v. Dinanath Prasad Sha (77 CWN 202) in which it was inter alia held that the Court before exercising its jurisdiction by passing the order or decree for recovery of possession must be satisfied that one or more of such grounds have been established. Merely because the defence is struck out, it will not automatically imply or mean that the relevant grounds have been established as required under Section 13(1) of the West Bengal Premises Tenancy Act. It was also held in that case by the learned single Judge that Section 13(1) of the Act will not give jurisdiction to Court to pass the decree, even though the tenant's defence against ejectment is struck out, unless the grounds within its, various clauses are proved to its satisfaction. The landlord has to establish by evidence all or any or the grounds for ejectment apart from the evidence that might have been produced by him at the hearing of his application under Section 17(3) of the Act. In the case of Nandini Bala Dasstv, Bibhuti Mukherjee (1987, 1 CLJ 57) the petitioner obtained an ex parte decree of ejectment of a monthly tenant governed by the West Bengal Premises Tenancy Act against the O.P. and when the petitioner put the decree in execution the O.P. filed an objection under Section 47 of the Code of Civil Procedure on the ground that since the decree passed by the trial Court discloses no ground envisaged in any of the clauses of Section 13(1) of the Act, the decree is a nullity and is not executable. On my careful reading of the judgment passed by the trial Court in Title suit No. 1323 of 1981 it appears that the suit was decreed on contest with costs. The claim of the defendant that they are the tenants under the landlord finds place in the discussion of the learned trial Judge in his judgment. The learned Judge after having discussed the evidence and the written statement filed by the defendant came to the conclusion that the defendant admitted that there were only verbal assurance from the plaintiff. And the positive conclusion of the learned trial Judge from the materials before him is that the verbal assurance of the defendant by itself was totally unbelievable. The learned trial Judge also found that the defendant lessee having failed to exercise the right of option in terms of the specific stipulation in the deed of lease itself is not entitled to get any relief since the lease had expired by the efflux of time on the expiry on 1,7.1981. On my scrutiny it further appears that the defendant in paragraph 10 of the written statement admitted that the averments made in paragraph 10 and 11 of the plaint are correct. All these points were traversed by the learned trial Judge in his judgment. Accordingly, I do not find any application of the decisions made in the cases of Maharam Ali (supra) and Nandini Bala Dassi (supra).
11. Mr. S.P. Roychaudhury, the learned senior counsel appearing for the O.P. has referred to the ratio decided in the case of Ittyavira Mathai v. Varkey Verkey and Anr. in which it was inter alia held that where a Court having Jurisdiction over the subject matter and the party passes a decree it cannot be treated as a nullity and ignored in subsequent litigation even if the suit was one barred by limitation. Mr. Dasgupta has also referred to the ratio decided in the case of V.D. Modi v. R.A. Rehman and Ors. in which it was held that when the decree is made by a Court which has no inherent Jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. Mr. Dasgupta has also referred to the ratio decided in the case State of Uttar Pradesh v. Nawab Hussain which deals with the principle of constructive resjudicata.
12. Now the facts suggest that against the decree and judgment passed by the trial Court in favour of the plaintiff/O.P. the present petitioner preferred an appeal before the High Court where the appeal was dismissed and thereafter a review application was filed by the present petitioner before the High Court which was also dismissed. Curiously the petitioner in the application under Section 47 of the Code of Civil Procedure filed before the learned executing Court has taken the cause of the dismissal of the appeal before the High Court as of the misconduct by the learned advocate engaged on behalf of the petitioner. It was contended there in paragraph 11 of the said petition that several valid and lawful point had been omitted, and had not been taken into consideration particularly the point of implied surrender of the purported lease.
13. The review application filed before the Hon'ble Division Bench of this Court was disposed of on 19.5.2000. The Hon'ble Judges described the defendant/appellant at the very outset of the order as "an unsuccessful" defendant/appellant. I am tempted to quote the observation of the Hon'ble Division Bench in that revisional application which reads as below:
"According to the Mr. Bachwat, learned counsel, the ground which was available to the appellant and which according to the review petitioner by mistake of misapprehension on the part of the learned counsel was not urged is as regard that applicability of the West Bengal Premises Tenancy Act and with regard to the implied surrender of the tenancy. Reliance for the said propositions has been placed upon the judgment of a Division Bench of this Court in the case of Mohd. Ibrahim v. Beni Madhab Mullick, .
After having heard the learned counsel for either parties we are of the view that the instant application for review is not maintainable as is well settled review is not a rehearing of the matter much less on a new plea or ground as in the instant case which was neither a pleaded or established by adduction of evidence in the trial Court. The instant application is also not on any of the grounds set out under Order 47 Rule of the Code of Civil Procedure nor it is the case of error apparent of the face of the record. The said expression has been construed to mean an error which strikes one at merely looking and not one which has to found out after elaborate arguments.
A new case which was neither pleaded nor established before the trial Court is sought to be argued before us and on that ground review has been prayed for."
14. Ultimately the Division Bench of this Court came to the conclusion that it was apparent that a conscious plea was taken by the defendant as to how he had become a tenant under the lease deed and terms whereof would govern the parties and the positive defence of the defendant was with regard to the exercising of the option to renew the lease in terms of the clauses contained in the deed of lease. Evidence was also adduced in that behalf. The Division Bench thus drew the conclusion with the following sentences:
"It was not the case of review petitioner which is not sought to be pleaded namely, that there was either an implied surrender of tenancy or a new monthly tenancy came into effect and which would be governed by the provisions of the West Bengal Premises Tenancy Act. No issue was also framed by the trial Court as regards the implied surrender of tenancy or coming into effect of new tenancy which would be governed by the Tenancy Act."
15. And ultimately the review application was rejected. Now the petitioner has come forward before the executing Court with the similar grounds to treat the decree as a nullity inasmuch as the grounds of implied surrender and the application of the West Bengal Premises Tenancy Act particularly the provision of Section 13(1) of the said Act were not considered by the trial Court. The Division Bench of this Court categorically stated that those are the new grounds taken and with that observation it was also noticed by the Division Bench that there was no occasion for the trial Court to frame any such issue at the time of trial of the suit. That being the position I do not find any illegality or irregularity in the order impugned dated 21.3.2002 passed by the learned Judge in connection with Misc. Case No. 1332 of 2001 arising out of the Title Execution Case No. 50 of 2000. The case laws referred to by the learned advocate for the petitioner thus in my considered opinion do not find any application in the instant case. The revisional application under Section 115 of the Code of Civil Procedure is thus liable to be dismissed.
The revisional application under Section 115 of the Code of Civil Procedure is dismissed on contest. There shall be no order as to costs. The interim orders, if any, are vacated. The impugned order and judgment are hereby affirmed.
A copy of this order be sent down to the learned lower Court immediately.
After passing the order, the learned advocate for the petitioner submits for stay of the operation of the order passed by this Court. Heard the learned advocates for both the parties. But in view of what has been stated in the order passed today, the prayer for stay of the operation of this order is rejected. Matters be sent down, as prayed for at the cost of the opposite party.
If urgent xerox certified copy be applied for that should be given as early as possible.