Delhi District Court
By Present Order I Will Dispose Of The ... vs Udam Singh Jain Charitable Trust & Ors on 1 April, 2011
Atma Ram Builders Pvt. Ltd
Versus
Udam Singh Jain Charitable Trust & Ors.
Execution Number 17/2011
1.4.11
ORDER
1. By present order I will dispose of the objection petitions filed u/s 47 with Order 21 R 97 and Section 151 CPC filed on behalf of M/s Jain Tube Company Limited and M/s Jain Exports Pvt. Ltd in respect of first and second floor portion of the property bearing numbers D18,D19 and D20, D Block, Connaught Place, New Delhi respectively. Earlier vide orders dated 23.03.11 the objections of the objectors were decided wherein the objections were dismissed and warrants of possession were issued in respect of the suit property. Vide orders dated 28.03.11 the ld. Appellate Court while deciding the appeal against the aforesaid orders remanded back the matter to this Court with directions to give a finding on the letter dated 4.1.1983 relied by the objectors in the present matter. I give the specific findings on this letter dated 04.01.1983 in sub paras of para 19.
1 Exe. No. 17/2011
2. The objectors have averred in their objection petition that the objectors company are occupying the suit property which was taken on rent in January 1983 vide written permission dated 04.01.1983. It has been averred that the written permission was granted to the JD by the Decree Holder ( DH) to sublet the premises in question and as per clause 5 of the Lease Deed dated 31.12.1982 entered between the decree holder and Judgment Debtor (JD), the JD was authorized to sublet the suit property.
3. The objectors have stated that since 1983 objectors are in occupation of the suit property and this fact was well within the knowledge of the DH but even then the DH did not implead the objectors in the suit for possession filed against the JD due to which the Decree Holder succeeded in obtaining the collusive decree in respect of the suit property. It has been stated that only on 15.11.10 it came to the knowledge of the objectors that the Decree Holder has obtained a decree in its favour and in view of the orders passed in favour of the Decree Holder, the Decree Holder intends to take the possession of the suit property which is in occupation of the objectors.
4. It has been contended by the objectors that in these facts of the case the decree obtained by the Decree Holder is a nullity as the same has been obtained by playing a fraud as the objectors had no knowledge of 2 Exe. No. 17/2011 the filing of the suit by the DH. It has been prayed that the application of the objectors be allowed and it be ordered that the objectors are not bound by the decree dated 24.4.04 passed against the JD and same may not be executed against the objector.
5. The decree holder has filed the reply to the objection petition preferred by the objectors wherein it has been stated that the objectors have no right, title or interest of any nature in the suit property and the objectors have been deliberately filed by them at the behest of JD to initiate second round of litigation. The Decree Holder has further stated that the objections filed by the objector are gross abuse of the process of law and is an attempt to circumvent the orders dated 6.10.10 passed by Hon'ble Supreme Court of India which dismissed the SLP filed by the JD and the decree under execution dated 24.04.04 was upheld.
6. The DH has contended that the proceedings of the Suit of the Decree Holder were well with in the knowledge of the objectors as Sh.Raj Kumar Jain who has filed the objections on behalf of M/s Jain Exports Pvt. Ltd, is in fact son of late Sh. J R Jain who was one of the JD being one of the trustees of JD and similarly Sh.P.K.Jain through whom the objectors have been filed on behalf of M/s Jain Tube Pvt. Ltd is a family member of late Sh.R.N.Jain who was one of the JD being one of the trustees of JD trust. The DH has filed the publication effected in 3 Exe. No. 17/2011 newspaper 'Hindustan Times' dated 3.5.97 on account of death of Sh.R.N.Jain wherein the names of objectors are appearing as part of the Jain Group of companies in order to substantiate the fact that both the objector companies are nothing but one of the associated companies floated by the trustees of the JD. The DH has submitted that since the objector has no right, title or interest in the suit property as such they are liable to deliver the entire suit premises to DH.
7. The rejoinder to the objections have also been filed. I have heard ld. Counsel for the objectors as well as decree holder and I have gone through the record.
8. The objectors in the present case have stated that they are in possession of the suit property as a subtenant of the JD and the decree passed by the Court against them was at their back and they had no knowledge of the passing of the decree against them. The objectors have contended that since they are not imp leaded as the parties by the DH in the original suit as such the decree passed against them is not executable against them.
9. To appreciate this contention of the objector it is necessary to reproduce the clause 5 of the Lease Deed dated 31.12.1982 executed between the Decree Holder and JD which is reproduced as below: 4 Exe. No. 17/2011
"5 That the lessee shall be entitled to use the property itself or sublet the same only to the concerns in which the four trustees of the lessee namely Dr.R.N.Jain, Sh.J.R.Jain, Sh.S.R.Jain and Sh.N.L.Jain are interested directly or indirectly namely Jain Brothers, Jain Tube Company Ltd., Super Tube Pvt. Ltd., Jain Shudh Vanaspati and/or the concern of any of the said trustees."
10. On perusal of this Clause it is to be inferred that the JD was permitted to sublet the suit property only to the concerns in which the four trustees of the JD were interested directly or indirectly. Admittedly both the objector companies are no stranger to the trustees of JD. The name of the objector company Jain Tube Company Ltd. is appearing in the Clause 5, therefore, it has to be concluded that the objectors are not stranger to the JD but in actual they were only the concerns of the trustees of the JD.
11.One could understand the objection by a party who is not impleaded in the suit that the decree is taken at it's back. As, such a party can be put to loss by not impleading it but in this very case the clause 5 lays down a specific condition which enables the trustees of the JD to sublet the suit property only to the concerns/ companies in which they have an interest and therefore in these facts it cannot be inferred that the objectors were strangers to the suit or their interest was not being taken care by the JD as the objectors are none but are those concerns in which the trustees of the JD are having their interests. 5 Exe. No. 17/2011
12.Moreover, it is the case of the objectors that as per clause 5 of the lease deed dated 31.12.1982 they were subletted the suit property by the JD therefore the objectors are bound by the terms of the lease deed. The lease dated 31.12.1982 was executed for a limited period of 10 years w.e.f. 01.11.1982. It is not the case of the objectors that this period of 10 years was extended. Thus, the objectors in the present case are bound by the term of the lease which is for the period of 10 years. Therefore, by virtue lease deed dated 31.12.1982 through which objectors are claiming possession there did not exist the any right of the objectors to retain the possession after the expiry of 10 years.
13.The next contention raised by the objectors that they were unaware of the passing of the decree and came to know only on 15.11.10 that Decree Holder has obtained a decree in his favour and intends to take possession of the premises in question. In this regard, I am of the considered opinion that the decree under execution was first challenged by the JD before the Court of Ld.ADJ, Delhi and all the trustees were appellants in the said appeal. The said appeal of course was dismissed by ld.ADJ on 6.12.06. Thereafter, the JD through it's trustees filed a Regular Second Appeal before the Hon'ble High Court of Delhi which was also dismissed and finally the SLP filed on behalf of the JD's was also dismissed. As stated above the objector Raj Kumar Jain is son of JD JR Jain (appellant no.3) before First Appellate Court and objector P K Jain has admitted the rejoinder to the objection 6 Exe. No. 17/2011 petition that Dr RN Jain being one of the Trustees of JD had an interest in the objector Company and was one of the Director of the objector Company. As a matter of reasonable prudence no person is presumed to be acting against his own cause and the fact of the case shows that all through the first appeal and second appeal JD's were pursuing their matter and at no place they have mentioned that they have created a sub tenancy in favour of the Companies in which they have an interest. Thus, this contention of the objectors that they for the first time came to know about the decree of the Court on 15.11.10 is itself not believable as the trustees were contesting the Appeals before the Courts at every jurisdiction.
14.The next contention raised by the objectors is that the decree passed against them is collusive and as such is not to be enforced against them. As stated above JD was authorized to sublet the suit property to those concerns only in which it's trustees were having an interest and the objectors themselves are in not in dispute with the fact that in their Companies the trustees named in the Clause 5 were having an interest. In these facts of the case, it cannot be inferred that a person who is subletting the suit property to its own concern will act against the same. Moreover,the JD has fought the legal battle tooth and nail up to the Hon'ble Supreme Court. It shows that the JD never wanted to vacate the suit property and therefore this Court has no reason to believe that the decree under execution is a collusive decree. 7 Exe. No. 17/2011
15.The objectors have also contended that they being not impleaded in original suit are not bound by the decree passed against JD. At best the right of the objectors is that of a sublessee. The Hon'ble Supreme Court in M/s. Importers and Manufacturers Ltd. v. Pheroze Frantroze Taraporewala and Ors., (AIR 1953 SC 73) has held that in a suit for possession by a landlord against a tenant, subtenant is merely a proper party and not a necessary party.
16.In Rupchand Gupta v. Raghvanshi (Pvt) Ltd. and Another, (AIR 1964 SC 1889) an ex parte decree was passed in favour of the landlord and against the tenant. An application for setting aside the decree was made by the subtenant by invoking the provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908, inter alia contending that the decree was collusive in as much as the subtenant was not joined as party defendant. The decree was, therefore, liable to be set aside. Repelling the contention, the Hon'ble Supreme Court observed :
"(I)t is quite clear that the law does not require that the sublessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub lessee as a party to the suit, the object of the landlord is to eject the sublessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sublessee. This may act harshly on the sublessee; but this is a position well understood by him when he took the sublease.
The law allows this and so the omission cannot be said to be an improper act."
8 Exe. No. 17/2011
17.Thus, in the light of the above noted Judgment I find that the objectors are at best is a sublessees that too of Companies were trustees of JD were having interest as such it was not necessary for the DH to have im pleaded them parties to the suit even if the DH was having knowledge of the sublease.
18.Moreover, I am of the considered opinion that the objectors took the possession of the suit property on a basis of a Lease Deed executed between Decree Holder and JD on 31.12.82 which was for a limited period of 10 years. The objectors thus very well knew while taking possession of the suit property that they could retain the possession for the period of 10 years and no longer. The period of 10 years have long been expired and JD had been litigating with the DH for the last 17 years. Merely by not impleading the objectors in the present case would not make the decree unexecutable especially when the objectors were fully aware the period of tenancy. To ensure the terms of the Lease Deed reaches out to the subtenants the Clause 5 itself laid it down that the sub tenancy can be created only to the firms named in clause 5 and to the related concerns of the trustees of the JD. In this peculiar facts of the case where the objectors/ sublessees are no other entities but the related concerns of trustees of the JD as such it was not necessary for the DH to implead them parties to the present suit even if the DH was having knowledge that possession was with the objectors. 9 Exe. No. 17/2011
19.The other contention raised by the objectors regarding their independent right. In this regard I am of the considered opinion that the right of the objectors in the present matter arise only from the clause 5 and therefore they were merely sublessees of the JD. Nowhere, the Lease Deed executed between the parties confers an independent right to the sublessees over the suit property. For this reason this contention of the objectors is also liable to be rejected. More so the effect of letter creating sub tenancy dated 4.1.1983 is discussed herein below:
(a) The objectors have alleged that vide the letter dated 4.1.1983 they were subletted the suit property and by virtue of this letter the objectors have attained independent right of tenancy in their favour.
This letter is signed by the trustees of the JD Dr.R.N.Jain and Mr. S.R.Jain and also the objectors besides a representative of the Decree Holder. To appreciate the contention of objectors it is necessary to reproduce the contents of relevant clause of the letter which reads as under:
"As discussed and agreed upon that as soon as that tenancy of Udham Singh Jain Charitable Trust is determined in any manner by passing of time or brought to an end, both the above said subtenants shall become dual tenants and shall pay you agreed rent which are being paid then to Udham Singh Jain Charitable Trust."10 Exe. No. 17/2011
(b) The decree holder in his reply to the objections has taken a two fold defence by stating that the letter dated 4.1.1983 appears to be forged and fabricated but has further stated that for the sake of the arguments if the letter is considered to be executed then also it does not give any right, title or interest to the objector of any nature in any of the portion of suit premises.
(c) The Ld.Counsel for the objectors has argued that since the decree holder has disputed the genuinety of the aforesaid letter hence the parties may be given opportunity to lead evidence in respect of the letter and opportunity should be given to the objector to prove the same.
(d) Now, I proceed to give my findings on the letter dated 04.01.1983 relied by the appellant as per the directions of ld. Appellate Court for the purpose I advance on the presumption that the letter dated 04.01.1983 was executed as this is also a limb of argument advanced by the decree holder.
(e) After going through the contents of the letter it becomes evident that in case the tenancy of JD determined in any manner by passing of time or brought to an end, in that case the objectors would have a right to become the tenants under the decree holder. It is an undisputed fact that tenancy was created in favour of the JD vide lease deed dated 11 Exe. No. 17/2011 31.12.1982 and as per clause 5 of the said lease deed the JD was given permission to sublet the suit property. The execution of lease deed dated 31.12.1982 and the clause 5 of the said lease deed finds mentions in the letter dated 4.1.1983 as well, therefore, the objectors who are signatory to the letter dated 04.01.1983 are bound by the terms of the lease deed. The lease dated 31.12.1982 was executed for a limited period of 10 years w.e.f. 01.11.1982. It is not the case of the objectors that this period of 10 years was extended. Thus, by virtue of letter dated 4.1.1983 the objectors in the present case are bound by the term of the lease which was for the period of 10 years and the same could not have been extended even by this letter. Therefore, by virtue lease deed dated 31.12.1982 through which objectors are claiming possession there did not exist the any right of the objectors to retain the possession after the expiry of 10 years.
(f) The letter dated 4.1.1983 categorically states that the tenancy shall be determined by passing of time or brought to an end and this means that the tenancy of the JD came to an end by efflux of time in the year 1993 itself and at the most when the notice to quit was given by DH to JD but even after the tenancy of JD came to an end the objectors never tendered any rent to the DH nor they have claimed to do so. More so the the JD never mentioned the creation of subtenancy in favour of the objectors in any Court of law till Hon'ble Supreme Court of India. The contention of the objector that tenancy of JD was determined only 12 Exe. No. 17/2011 after passing of the orders by Hon'ble Supreme Court is misconceived as per this letter placed on the record. Thus, the objectors never claimed their independent right on the basis of this letter nor at any point of time JD mentioned there existence in the suit property during the litigation between the DH and JD. This goes to show that this letter was never acted upon even if it was executed.
(g) The objectors in their objections categorically stated that they are independent tenants in the premises in question and they have paid the rent till date and there are no dues payable by the objectors. In the entire objection petition the objectors have claimed the independent right over the suit property as tenants but the objectors have not filed any document to show that they have paid any rent to the decree holder after expiry of the lease period which was for the ten years. In this regard the ld. Counsel for the objector has argued that the letter dated 4.1.1983 clearly stipulates that the independent right of the objectors would arise only when there will be determination of the tenancy of the JD and in facts of the case the tenancy of the JD came to an end when the decree of possession passed against the JD attained finality by the orders of Hon'ble Supreme Court of India in October, 2010.
(h) In my considered opinion the argument advanced by the ld.counsel for the objector has no merit at all as per the letter dated 13 Exe. No. 17/2011 4.1.1983 the tenancy had to be determined by passing of time or when it was brought to an end. Thus, by passing of time would necessarily mean that the tenancy of the JD came to an end after expiry of 10 years from 1.11.1982 and after expiry of this lease period the objectors never claimed any independent right of tenancy specially when they were aware about the terms of the lease deed dated 31.12.1982. This goes to show that the objectors never claimed their tenancy rights after the expiry of lease period nor the JD ever raised the question of their letting out of the property to the objectors at any stage of the case.
(i) The ld.Counsel for the objector has relied upon 1973 RLR 542 wherein it has been held Court should not prejudge the case by judicial scrutiny of facts pleaded AIR 1995 SC 358 wherein Hon'ble Supreme Court directed the executing Court to conduct an inquiry for removal of the obstruction for delivery or possession of the property covered by the decree. 57(1995) DLT 321 (SC) wherein it has been laid down by Hon'ble Supreme Court that the adjudication before execution is an efficacious remedy to prevent for, oppression , abuse of the process of the Court or miscarriage of justice. AIR 1996 Supreme Court 2050 wherein it was laid down that adjudication is required to be conducted under Order XXI Rule 98 CPC before dismissal of the objections. 14 Exe. No. 17/2011
(j) In the light of the aforesaid judgments I am of the considered opinion that no other view is possible except that in case of any dispute which requires adjudication of the Court in that case the parties should be directed to adduce evidence before the Court but in a case where the facts do not demand any issue to be adjudicated upon by way of calling of evidence of parties the objections can be decided straightway and it is not mandatory for the Court to direct the parties to lead evidence. The present objections are decided on the presumption the letter dated 4.1.1983 was executed and thus no dispute is left between the parties on which this Court would require parties to lead their respective evidence.
(k) The conclusion of the aforesaid discussions would necessarily mean that the letter dated 4.1.1983 does not give any independent right to the objectors in the facts of the case even if it is presumed to be executed between the parties.
20.As discussed above, the other contention of the objectors is that the proceedings under Order XXI Rule 97 CPC are in nature of a Suit and as such the Court has to frame issues and allow parties to lead evidence in the present matter. In support of this contention the JD has relied upon the judgment cited in AIR 1984 Bombay 357 wherein it has been laid down that under the proceedings under Order XXI R 101 and 105 15 Exe. No. 17/2011 CPC the Court ought to frame issues and allow the parties to lead evidence if they may desire to do so.
21.The Order XXI Rule 101 CPC lays down that all the questions including questions relating to right, title or interest in the property arising between the parties to a proceeding shall be determined by the Court dealing with the application and not by a separate suit but this provision nowhere makes it mandatory to treat the application as another suit and decide it on framing of issues after taking evidence of the parties.
22. In Silverline Forum Pvt. Ltd., Appellant v. Rajiv Trust, AIR 1998 SC 1754, the Hon'ble Supreme Court while dealing with O.XXI Rule 97 CPC held that:
"The adjudication mentioned therein need not necessarily involve detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary."
23. In my considered opinion, this is a case where adjudication is being made on the admitted facts and averments made by the objectors and the controversy raised by the objector in the present matter does not demand the framing of issues or making a detailed inquiry. 16 Exe. No. 17/2011
24.Thus, in the light of the discussions made herein above, I do not find any merit in the objections filed by the objector M/s Jain Tube Company Limited & M/s Jain Exports Pvt. Ltd and I also find that the same have been filed only to delay the execution of the present decree. Accordingly, the objections stands dismissed.
25.In consequence thereof, warrants of possession be issued in respect of the suit property on filing of PF with the police aid. Place the matter before ld. ACJ for appointment of Bailiff on 20.04.11 and to come up for report 29.04.11.
(Gautam Manan) ASCJ (Central)/Delhi/01.04.11 17 Exe. No. 17/2011 Atma Ram Builders Pvt. Ltd Versus Udam Singh Jain Charitable Trust & Ors.
Execution Number 17/2011
01.04.11
Present: None.
Vide separate orders, as per the directors of ld. Appellate Court the findings on letter dated 04.01.1983 are given and the objection petitions filed u/s 47 with Order 21 R 97 and Section 151 CPC filed on behalf of M/s Jain Tube Company Limited and M/s Jain Exports Pvt. Ltd stands dismissed and in consequence thereof, warrants of possession be issued in respect of the suit property on filing of PF with the police aid.
Place the matter before ld. ACJ for appointment of Balaiff on 20.04.11 and to come up for report 29.04.11.
(Gautam Manan) ASCJ (Central)/Delhi/01.04.11 18 Exe. No. 17/2011