Rajasthan High Court - Jaipur
Ramesh Kumar Malpani vs Ummed Singh Sushila Ors on 3 May, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
(1) D.B. CIVIL SPECIAL APPEAL(WRIT) NO.377/2013
IN
S.B. CIVIL MISC. APPLICATION NO.61/2013
IN
S.B. CIVIL WRIT PETITION NO.7976/2008
RAMESH KUMAR MALPANI
Vs.
UMMED SINGH SUSHILA DEVI MEMORIAL TRUST,
JAIPUR & ORS.
WITH
(2) D.B. CIVIL MISC. APPLICATION NO.61/2013
IN
S.B. CIVIL WRIT PETITION NO.7976/2008
UMMED SINGH SUSHILA DEVI MEMORIAL TRUST, JAIPUR
Vs.
THE RENT APPELLATE TRIBUNAL, JAIPUR CITY,
JAIPUR & ORS.
DATE:03.05.2013
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN
HON'BLE DR. JUSTICE SMT. MEENA V. GOMBER
REPORTABLE
Mr. S. Kasliwal, Senior Counsel assisted by
Mr. R.N. Vijay and
Ms. Suruchi Kasliwal, for the appellant.
Mr. Anil Upman, for the respondent No.1.
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Heard the learned counsel for the parties.
2. This intra-Court appeal is directed against the orders of the Single Bench dated 01.03.2013, 08.03.2013 and 18.03.2013, whereby time to vacate the rented premise, has been extended, despite specific directions of the Division Bench, not to extend the time to vacate the rented premise.
3. From the submissions of the learned counsel for the parties and the impugned orders of the Single Bench as well as other documents placed on record, it appears that appellant/landlord/applicant, Ramesh Kumar Malpani filed an application for grant of decree of eviction as well as recovery of amount before the Rent Tribunal, Jaipur, which was allowed in part vide order dated 04.10.2007 and a decree of eviction was passed in favour of landlord, however, decree in respect of recovery of amount was not passed. Therefore, the landlord and tenant, both, preferred two appeals before the Rent Appellate Tribunal. The tenant preferred an appeal against the order of eviction, whereas the landlord preferred an appeal for granting decree of recovery of amount in dispute also. The Rent Appellate Tribunal, Jaipur, vide its judgment dated 13.08.2008, dismissed the appeal of tenant and affirmed the findings of the Rent Tribunal in respect of eviction matter. So far as appeal filed by the landlord is concerned, the same was allowed and the matter was remitted to the Rent Tribunal for fresh decision on an issue as to whether the landlord is entitled to get a decree of arrears of rent amount of Rs.1,25,700/-.
4. Being aggrieved with the order of the Rent Appellate Tribunal, the tenant/respondent No.1 filed S.B.Civil Writ Petition No.7976/2008. During pendency of the writ petition, the parties entered into a compromise and an application under Order 23 Rule 3 CPC for recording the compromise was filed before the Single Bench. As per terms of the compromise, the tenant was required to hand over vacant and peaceful possession of the rented premise on or before 28.02.2013. It was also agreed upon between the parties that the tenant will pay the amount of rent till the date of eviction of the premise. The details of monthly cheques of the rent amount, were mentioned in para-(iii) of the compromise. It was also mentioned that in case, there is any default in any of the terms and conditions, then it will be open for the landlord to get the order passed by the Rent Tribunal executed and to get the possession of the rented premise.
5. It appears that cheques of rent given by the tenant, as per terms of compromise, were dishonoured. Since there was a breach of the terms of compromise, therefore, the landlord filed an application before the Rent Tribunal for execution of decree. The Executing Court passed an order of possession of the rented premise to landlord. Thereafter, the tenant preferred S.B. Civil Writ Petition No.15012/2012 before this Court, which was dismissed by the learned Single Judge vide order dated 27.09.2012. Being aggrieved with the same, the tenant again preferred D.B. Civil Special Appeal No.1269/2012, which was also dismissed by the Division Bench vide its order dated 03.10.2012. However, default in payment of rent was condoned by the Division Bench and time to vacate the premise was granted up to 28.02.2013, which was granted by way of compromise. The order dated 03.10.2012 passed by the Division Bench, is reproduced as under:-
Though, we find no fault with the order passed by the Single Bench on 27.9.2012, however, as per agreement of the learned counsel, we direct that default is condoned and in case, the appellant commits any default in future, the decree shall be executed without further reference to the court. The extension of period granted to vacate the premises shall stand lapsed and decree shall be executable forthwith without further reference to the court & no further extension shall be granted.
Let fresh undertaking be furnished by the appellant within a period of ten days from today that he shall vacate the premises on or before 28.2.2013.
The Special Appeal stands disposed-of. The stay petition is also disposed off.
6. It appears that the tenant did not handover the possession of the rented premise on or before 28.02.2013 and moved an application before the Single Bench for extension of time to vacate the rented premise. The said application was registered as S.B. Civil Misc. Application No.61/2013 in S.B. Civil Writ Petition No.7976/2008. The learned Single Judge vide its order dated 01.03.2013, fixed the application for 08.03.2013 and passed an interim order that till then, the premises in question shall not be vacated. The matter was listed on 08.03.2013 and again it was adjourned for 18.03.2013 and interim order dated 01.03.2013 was ordered to be continued. Thereafter, the matter was listed before the Single Bench on 18.03.2013 and it was again adjourned for 02.04.2013 and the interim order was ordered to be continued till next date. The aforesaid three orders of the Single Bench have been challenged in this intra-Court appeal.
7. Mr. S. Kasliwal, learned Senior Counsel assisted by Mr. R.N. Vijay and Ms. Sukriti Kasliwal, appearing on behalf of appellant, submitted that the decree of eviction was passed in the present case before the Single Bench of this Court, on the basis of compromise and time was granted to the tenant to vacate the premise up to 28.02.2013. Since, there was a clause in the compromise that in case, there is any default of any of the terms and conditions, the landlord will be entitled to get the possession of the premise even before due date. Admittedly, there was default in making the payment of rent, therefore, an application was filed for execution of the decree. The order of execution of decree was passed by the Executing Court, but the order of Executing Court was challenged before the Single Bench. The learned Single Judge dismissed the writ petition of the tenant vide order dated 27.09.2012. Thereafter, the tenant preferred a D.B. intra-Court appeal, wherein while condoning the default, the Division Bench directed that the tenant shall vacate the premise on or before 28.02.2013, with further directions that there will be no extension of time to vacate the premise. He submitted that despite specific directions of the Division Bench, the learned Single Judge extended the time to vacate the premise. Therefore, the orders of the learned Single Judge, are absolutely illegal and contrary to the directions of the Division Bench. He also submitted that the impugned orders are against the judicial propriety. He, therefore, submitted that the orders passed by the learned Single Judge may be set aside and the Executing Court may be directed to execute the decree forthwith.
8. On the other hand, Mr. Anil Upman, the learned counsel for respondent No.1 submitted that the tenant is running a Blood Bank in the disputed premises, an alternative accommodation has been made available to it, but due to certain reasons, the Blood Bank could not be shifted to the alternative accommodation. Therefore, an application was moved for extension of time to vacate the premise. He submitted that looking to the averments made in the application, the learned Single Judge was right in extending the time to vacate the premises. He, therefore, submitted that there is no merit in this intra-Court appeal and the same may be dismissed as such.
9. We have considered the submissions of the learned counsel for the parties and examined the impugned orders of the Single Bench, record of the case and also the other orders of the Single Bench as well as the Division Bench of this Court.
10. Hon'ble Supreme Court in Santanu Choudhari V. Subir Ghosh, reported in 2007 AIR SCW 5693 in similar circumstances where special leave petition against decree for eviction of tenant was dismissed by granting six months time on condition of filing of undertaking by tenant within three weeks. The tenant, however, neither filed any undertaking, nor handed over vacant possession. The Hon'ble apex Court observed that Court can ensure compliance of its order by ensuring delivery of possession to landlord and directed the trial court to cause delivery of vacant possession of premise by eviction of tenant. Para 6 of the judgment is reproduced as under:
6. We, accordingly, direct the trial Court to cause delivery of vacant possession of the premises in dispute to the petitioner Santanu Chaudhuri(landlord) by eviction of the respondent Subir Ghosh(tenant) or anybody else found in occupation of the premises, if necessary, with the help of police, within one month of presentation of a certified copy of this order before the trial Court. We make it clear that this order will not prevent or prejudice the petitioner(landlord) from taking any steps for recovery of rent and mesne profits as he is entitled in accordance with law. The petitioner will also be entitled to Rs. 50,000/- as costs for the present proceedings. The respondent Subir Ghosh(tenant) is granted one month time to deposit the cost in the trial Court. In case the cost is not deposited as aforesaid, the trial Court shall recover the amount from Subir Ghosh(tenant) in accordance with law and the same shall be paid to the petitioner, Santanu Chaudhuri.
11. In Sudarshan Prosad Jaiswal & Another Vs. Maya Sen & Others, reported in (2007) 14 SCC 39, where the time was granted for vacation of premises on furnishing a written undertaking, but the same was not filed in time. The Hon'ble Apex Court recalled the order granting time to vacate premises and directed the executing court to effect delivery of possession within a period of four weeks from receipt/production of copy of the order by observing that in case armed force is required for delivery of possession, S.P. to depute the same within 48 hours from the date the requisition is received therefor. Paras 5 and 6 of the judgment are reproduced as under:
5. In the facts and circumstances of the case, the order dated 7-3-2007, granting time to the petitioners to vacate the premises in question by 30-9-2007, is recalled and the executing court is directed to effect delivery of possession within a period of four weeks from the receipt/production of copy of this order.
6. In case any armed force is necessary for effecting delivery of possession, the same shall be deputed by the Superintendent of Police concerned within forty-eight hours from the receipt of requisition. It is further made clear that if anybody else is found to be in possession of the premises in question, he shall be also dispossessed by the armed force.
12. In K.C.G. Verghese Vs. K.T. Rajendran & Another, reported in (2003) 2 SCC 492, the Hon'ble Apex Court considered the facts, where contemnor filed written undertaking to vacate disputed premises and not to induct any other person in the said premises, passed an order that said order is binding on third person, who has been inducted by the judgment-debtor and directed the executing court to take steps to give effect to the order of the Court, if necessary, with the help of the police for ejecting the judgment-debtor by removing all obstructions thereto. Paras 3 and 4 of the judgment are reproduced as under:
3. The stand of Contemnor 1 is plainly untenable. When the undertaking was given by him to the court, he did not indicate that he was in possession of a part of the premises and not the other portion of the premises nor was such a stand taken in any of the pleadings raised before the High Court or the Rent Controller. In these circumstances, we have to hold that the order of eviction passed against the first contemnor is equally binding upon the second contemnor K.T. Baskaran. Indeed, a power of attorney has been executed by Contemnor 1 K.T. Rajendran in favour of K.T. Baskaran to the effect to attend to all the matters relating to the tenancy of house, ground and Premises No. 7, IV Main Road, Gandhi Nagar, Adyar 600020, which are the tenanted premises in the present case and in that document there is no mention of his independent right to the premises as claimed now. In these circumstances, we overrule the objections raised by the said K.T. Baskaran for vacating the premises in question.
4. We, therefore, direct that the Principal Judge, City Civil and Sessions Court shall take steps to give effect to our order, if necessary, with the help of police for ejecting the said K.T. Baskaran from the said premises and the possession is delivered to the complainant in these proceedings by removing all obstructions thereto and make a report after compliance with this order.
13. The Hon'ble Apex Court considered similar controversy in D.D.A. V/s Skipper Construction Co.(P) Ltd. and Another (1996) 4 SCC 622 held that contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. The Hon'ble Apex Court considered its earlier judgment in Mohd. Idris Vs. Rustam Jehangir Babuji (1984) 4 SCC 216 and other judgments including Full Bench Judgment of Madras High Court and Division Bench judgment of Calcutta High Court in para 19 and 20 of the judgment, Para Nos. 17 to 21 are reproduced as under:
17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of the contempt is well settled. In Mohd. Idris vs. Rustam Jehangir Babuji (1984) 4 SCC 216, this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking).
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil Court. In Clarke Vs. Chadhurn (1985) 1 All ER 211, Sir Robert Megarry V.C. Observed:
I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequence of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. Vs. S.Suppiah (AIR 1975 Mad 270) and Sujit Pal Vs. Prabir Kumar Sun (AIR 1986 Cal 220). In Century Flour Mills Ltd., it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
20. In Sujit Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The Court must ensure full justice between the parties before it.
14. This Court in S.B. Civil Contempt Petition No. 556/1993 titled Jagdish Prasad Avasthi Vs. Ramji Lal Meena & Others, vide order dated 10.11.2010, on the basis of above-mentioned judgment of the Hon'ble Apex Court in D.D.A. Vs. Skipper Construction Co.(supra) held as under:
13. The Hon'ble Apex Court has clearly held that the Court must ensure full justice between the parties before it. Division Bench judgment of Calcutta High Court in Sujit Pal Vs. Prabir Kumar Sun (AIR 1986 Cal. 220) was considered by the Apex Court in para 20 of the judgment by referring the fact that Court had directed restoration of possession to the plaintiff with the aid of Police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent power.
14. In these circumstances, it has become necessary to pass an appropriate order for restoration of possession of the petitioner, if the non-petitioners have dispossessed him, as per the report of SHO, Kotwali, Alwar.
15. Consequently, it is directed that non-petitioners will not put any hindrance in the possession of petitioner Jagdish Prasad Avasthi over the property in dispute. If non-petitioners/contemnors are found in possession over the property in dispute, then the SHO, Police Station, Kotwali, Alwar is directed to restore the possession of the petitioner by dispossessing the non-petitioners from the property in dispute.
15. There is no dispute between the parties so far as facts are concerned that a decree of eviction was passed in favour of the landlord/appellant, which was affirmed by the Rent Appellate Tribunal. Thereafter, a compromise took place in pending writ petition before the Single bench, between the parties and time was granted to vacate the rented premise up to 28.02.2013. Since, there was default in terms and conditions of the compromise, therefore, an application was moved for execution of decree of handing over the possession, even before due date. The Executing Court passed an order for executing the decree. The said order was challenged before the Single Bench. The learned Single Judge dismissed the writ petition of the tenant vide order dated 27.09.2012. Thereafter, the tenant preferred a D.B. intra-Court appeal, which was also dismissed. However, default was condoned by the Division Bench and time to vacate the premise was restored up to 28.02.2013, as per the terms of the compromise.
16. From the order of the Division Bench dated 03.10.2012, reproduced above, it is clear that it was specifically directed that, no further extension shall be granted. The above order was passed by the Division Bench while disposing of the appeal of the tenant/respondent No.1.
17. It is relevant to mention that in case there was any reason whatsoever for extension of time to vacate the premise, then the application could have been filed only before the Division Bench in D.B. Civil Special Appeal No.1269/2012, and not before the Single Bench in S.B. Civil Writ Petition No.7976/2008, as the said writ petition had been disposed of on the basis of the compromise and thereafter, there was default in making payment of rent and execution order was passed, which was challenged before the Single Bench in S.B. Civil Writ Petition No.15012/2012, which was also dismissed vide order dated 27.09.2012 and the said order was merged in the order of the Division Bench dated 03.10.2012. In these circumstances, it was not proper on the part of the tenant to move Application No.61/2013 before the Single Bench. The said application No.61/2013, pending before the Single Bench, is also liable to be dismissed. It appears that the order of the Division Bench dated 03.10.2012, was not brought to the notice of the learned Single Judge before passing of the impugned orders.
18. That apart, it is also relevant to mention that this appeal was listed on 10.04.2013 and it was directed that copy of memo of appeal may be served upon the learned counsel, who appeared for respondent No.1 before the Single Bench. The matter was again listed on 15.04.2013 and on that day, the learned counsel for respondent No.1 appeared and he frankly admitted that time granted by the Division Bench for handing over vacant possession of the rented premise expired on 28.02.2013, however, on his request, time to handover the vacant possession of the rented premise was granted by the end of this month i.e. 30.04.2013. The matter was posted for 02.05.2013 to see compliance. On 02.05.2013, the case was adjourned for today. Today also, the learned counsel for respondent No.1 admitted that possession of the rented premise has not been handed over to the appellant. From the facts narrated above, it is clear that act of the respondent No.1 is contemptuous.
19. In these circumstances, we are of the view that the orders of the Single Bench dated 01.03.2013, 08.03.2013 and 18.03.2013, are contrary to the directions of the Division Bench dated 03.10.2012, passed in D.B. Civil Special Appeal No.1269/2012. 20. In view of above discussion, this intra-Court appeal is allowed. Impugned orders of the Single Bench dated 01.03.2013, 08.03.2013 and 18.03.2013, are set aside. Stay Application No.3787/2013 stands disposed of.
21. D.B. Civil Misc. Application No.61/2013 as well as Stay Application No.2575/2013, are also dismissed.
22. The Executing Court i.e. Rent Tribunal, Jaipur Metropolitan, Jaipur, is directed to execute the decree/certificate of possession, passed by the Rent Tribunal, affirmed by the Rent Appellate Tribunal/Single Bench of this Court within a week from the date of receipt/production of a copy of this order and send a compliance report immediately thereafter to this Court. The Rent Tribunal/ Executing Court will ensure that the possession of the rented premise is handed over to the decree-holder/appellant by dispossessing the respondent/ tenant or anybody else found in occupation of the premise, if necessary, with the help of the police. It is made clear that any order passed by any Court, except Division Bench of this Court or the Hon'ble Apex Court, will not come in the way of the Executing Court, while making compliance of this order.
23. Registry is directed to send a copy of this order for compliance to the Executing Court i.e. Rent Tribunal, Jaipur Metropolitan, Jaipur.
24. Registry is also directed to place a copy of this order on record in connected D.B. Civil Misc. Application No.61/2013.
(DR.MEENA V. GOMBER),J. (NARENDRA KUMAR JAIN),J.
/KKC/
Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A.