Madhya Pradesh High Court
Satya Pal Anand vs Bal Neketan Nyas on 24 March, 2015
Equivalent citations: AIR 2015 MADHYA PRADESH 144, (2015) 2 MPLJ 382 (2015) 3 MPHT 42, (2015) 3 MPHT 42
Author: Alok Aradhe
Bench: A.M. Khanwilkar, Alok Aradhe
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.2804/2015
Satya Pal Anand.................. ............... Petitioner
Versus
Bal Neket an Nyas, Bhopal
and two others................................. .. Respondents
===================================================
Coram
Hon'ble Mr. Justice A.M. Khanwilkar, Chief Justice
Hon'ble Mr. Justice Alok Aradhe, J.
Dat e of Hear ing: 19.03.2015
Dat e of t he Order: 24.03.2015
Whether approved for reporting? Yes
-------------------------------------------------------
Petitioner in person.
Mrs.Shobha Menon, Senior Advocate with Ms.Ankita
Khare, Advocate for the respondent No.1.
None for respondent No.2.
Mr.Swapnil Ganguly, Government Advocate for the
respondent No.3.
=============================================
O R D E R
(24.3.2015) Per Alok Aradhe, J.
I n t his p e t it io n t it le d a s one und e r Ar t ic le 2 2 6 r e a d w it h Ar t ic le s 1 4 , 1 9 , 2 1 , 2 1 5 a nd 2 3 5 of t he C ons t it ut i on of I nd ia , t he p e tit ion e r ha s p r a ye d f or m ult ip le r e l ie f s w hi c h a r e r e p r od uc e d b e l ow f or t h e f a c ilit y of r e f er e nc e :
"7 .( a) In vie w of th e s u b mis s ions ma d e ab ov e, th e i mp u gn ed or d er d a ted 2 1 6 .1 2 .2 0 1 4 d i r ec tin g d is mis s al of th e M JC N o.4 0 / 2 0 1 3 b e k in d l y b e qu a s h ed b y a wr i t of C er ti or ar i an d gr an tin g s u c h o th er r el ief s as d ee me d d es er ved in l a w exer c is in g c ons ti tu tion al p o we r s ves ted i n th is Hon 'b l e C ou r t u n d er A r tic l e 2 2 6 of th e C on s ti tu ti on of In d ia an d b y a wr i t of M an d a mu s th e r es p on d en t N o .2 b e d ir ec te d n o t to r e- is s u e an y wa r r an t of d el iver y of p h ys ic al p os s es s ion of th e p r e mis es in th e l a wf u l p os s es s ion of th e p e ti tion er in th is o wn r igh ts til l th e ma n d a tor y in v es tig a tion s ar e c o mp l e ted as p er l a w, s o th a t a r u n n in g b us in es s of th e p e ti ti on er is n o t d is tu r b e d ab r u p tl y in viol a ti on of h is r igh ts to h ave ju s tic e as p er l a w of th is l an d .
(b ) A n d th e a mou n t of th e c o mp ens a ti on c l ai me d b e k in d l y gr an ted as p r ayed or s u c h oth e r a mou n t as es ti ma ted to b e ju s t u p on th e f ac ts h er ein in t h e p u b l ic l a w p r oc eed in gs an d th e r es p on d en ts be d ir ec ted to ma k e p a y men t o f th e d ir ec ted a mou n t of th e c o mp en s a ti on an d e xe mp l ar y c os ts in a ju s t ti me an d r ep or t c o mp l i an c e to th is Hon 'b l e C ou r t wi th in d ir e c ted ti me .
(c ) A n d th e r es p on d en t N o.3 b e k in d l y d ir ec ted to in v es tig a te an d s ub mi t h is r ep or t u n d er wh a t c i r c u ms tan c es s u ch h e av y P ol ic e f or c e r e ma i n ed a t th e p r e mis es of th e p e ti tion e r wh en i t is s aid in th e or d er d a ted 1 6 .5 .2 0 1 4 th a t th er e was n o ju d ic i al or d er p as s ed d ir ec tin g th e P ol ic e f or c e to b e p r es en t th er e d u r in g th e f ar l on g ti me wh en th e exec u tion of th e wa r r an t f or d el iver y of th e p h ys ic al p os s ess ion was b ein g c ar r i ed ou t on 2 3 .4 .2 0 1 4 til l 2 .0 0 p . m. an d ev en th er e af ter wi th ou t th e au th or i ty of l a w a n d d ir ec tin g s u c h ac tion a g ain s t th e p r oc es s s er vers wh o h av e ma d e a f als e s ta te me n t of f ac t th a t th er e was n o p ol ic e f or c e wh en th e y h ad b een exec u tin g th e wa r r an t u n d er qu es tion on 2 3 .4 .2 0 1 4 .
(d ) T h a t th e or d er p as s ed in c as e of M JC N o.5 6 3 / 1 2 on 1 6 .1 2 .2 0 1 4 be k in d l y qu as h ed an d s et as id e p as s in g s u c h or d er th er eu p on as d ee med j u s t.3
(e) T h a t Ju d ges (P r o tec tion ) A c t, 1 9 8 5 b e k in d l y r e ad d o wn as p r a yed h er ein .
(f ) T h a t s u c h f u r th er or ad d i ti o n al r el ief s as d ee med j u s t b e k in d l y gr an ted to ge th er wi th c os ts d ee me d ju s t" .
2. I n or d e r t o a p pr e c ia t e t he s c op e a nd a m b it of r e lie f s a nd t he c ont e xt in w hic h t he a f or e s a id r e lie f s are pr a ye d f or by t he p e t it io ne r , it is a p p os it e t o r e f e r t o f e w r e le v a nt fa c t s w hic h a r e s t a t e d inf r a. T he r e s p ond e nt N o. 1 T r us t f ile d a s uit f or e v ic t i on, p o s s e s s io n a nd mes n e p r of it s a ga ins t Ana nd Aut om ob i le s of w hic h p e t it i one r is t he ow ne r a nd p r op r ie t or . I n t he p la int , it w a s a v er r e d t ha t pr ov is ions of M. P . Ac c om m od a t io n C ont r ol Ac t , 1 9 6 1 (he r e i na f t e r r e f e rr e d t o a s " t he Ac t " ) a r e i na p p lic a b le t o t he s uit p r e m is e s a s it i s ow ne d b y a c ha r it a b le t r us t , in v ie w of not if ic a t i o n d a t e d 7 . 9. 1 9 8 9 is s ue d b y t he St a t e Gov e r nm e nt gr a nt ing e xe m p t i on to a c c om m od a t ion s f r om p r ov is ions of t he Ac t is s ue d in e xe r c is e of p ow e r s und e r Se c t i on 3 (2 ) of t he Ac t f r om p r ov is ions of t he Ac t . T he t e na nt r e s is t e d t he s uit int e r - a lia on t he gr ound t ha t is s ua nc e of n ot if i c a t ion d a t e d 7 . 9 . 1 9 8 9 d oe s n ot r e s ult in a n e xe m p t ion f r om p r ov is ions of t he Act in so far as r e s p ond e nt N o. 1 -T r us t is c onc e r ne d . T he t r ia l C our t f r am e d a n is s ue a nd 4 d e c id e d t he s a m e in f a v our of r e s p ond e nt N o. 1 v id e or d e r dated 1 5 . 3. 2 0 0 4 . B e ing a ggr ie v e d , t he p e t it io ne r f ile d a w r it pe t it io n na m e ly W.P. N o. 3 1 9 2 / 2 0 0 4 in w h ic h f oll ow i ng r e li e f s were c la im e d : -
" (i) f or a d ec l ar a tion th a t S ec ti o n 3 of th e A c t a r e u n c on s ti tu tion al .
(ii) f or a d ec l ar a tion th a t th e n o tif ic a tion d a ted 7 .9 .1 9 8 9 is s u ed b y th e M .P . S ta te G over n me n t in ex er c is e of p o we r u n d er S ec tion 3 (2 ) of th e A c t is con s ti tu tion al l y in val id an d voi d ab in i tio a n d als o u l tr a vir es S ec tion 3 (2 ) of th e A c t.
(iii) f or a d ec l ar a tion th a t e ac h T r u s t c l ai min g an ex e mp ti on f r o m th e ap p l ic ab il ity of th e A c t, wil l h ave to ma k e an ap p l ic a tion to th e S ta te G o ver n me n t d is c l os in g th e p ar tic u l ar s en ti tl in g th e m to ex e mp tion u n d er S ec tion 3 (2 ) of th e A c t an d th e S ta te G over n me n t wil l h ave to d ec id e wh e th er s u c h T r us t is en ti tl ed to th e e xe mp ti on af ter h ear in g th e af f ec te d p er s ons an d a f u r th er d ec l ar a ti on th a t th e n o tif ic a tion d a ted 7 .9 .1 9 8 9 d o es n ot gr an t an y g en er al exe mp tion to c h ar i ta b l e T r u s ts in p ar tic u l ar th e s ec on d r es p on d en t- T r u s t, f r o m th e ap p l ic a tion of th e A c t.
(iv) f or a c ons equ en ti al d ec l ar a tio n th a t th e c ivil C ou r t h as n o ju r is d ic tion to en ter ta in or h ear th e s u it f or evic tion C ivi l O r igin al S u i t N o.2 0 - A / 2 0 0 2 f il ed by th e s ec on d r es p on d en t- T r u s t.
(v) f or qu as h in g th e or d er d a ted 1 5 .3 .2 0 0 4 p as s ed b y th e tr i al C ou r t an s wer in g th e p r el i min ar y is s u e in f avou r o f th e l an d l or d , th e p r ovis ion of S ec tion 3 (2 ) of th e A c t is u n c ons ti tu tion al " .5
3. A Div is io n B e nc h of t his C our t v id e or d e r d a t e d 1 7 . 8 . 2 0 0 4 d is m is s e d t he w r it p e t it ion. The r e le v a nt e xt r a c t of t he or d er re a d s a s und e r : -
" O n c e th e S u p r e me C ou r t h as h el d th a t th e n o tif ic a tion d a ted 7 .9 .1 9 8 9 is val id , i t is i mp e r mis s ibl e f or us to en ter ta in a c on ten tion th a t th e d ec is ion of th e S u p r e me C ou r t u p h ol d in g th e v al id i ty of th e n o tif ic a tion d a ted 7 .9 .1 9 8 9 is er r on eou s wi th r ef er en c e to s o me gen er al p r in c ip l es l aid d o wn in an e ar l ier d ec is ion of th e S u p r e me C ou r t. A s th e n o tif ica tion wh ic h is u n d er c h al l en ge h as b een u p h el d b y th e S u p r e me C ou r t an d th e o th er r el ief s cl ai med b y th e p e ti ti on er a r e c on s equ en ti al u p on th e r el ief r el a tin g to th e v al id i ty of n otif ic a tion d a ted 7 .9 .1 9 8 9 , th e p e ti ti on is l iab l e to b e d is mis s ed as h avin g n o mer i t . A c c or d in gl y, i t is d is mis s ed " .
4. T he p e t it io ne r o nc e a ga i n f il e d a n a p p li c a t io n r a is ing s im ila r ob je c t i on i n t he C iv il Suit , w hi c h w a s r e je c t e d b y t he t r ia l C our t v id e or d e r d a t e d 2 9 . 1 1 . 2 0 0 5. T ha t or d e r was s ub j e c t matter of c ha lle n ge a t t he i ns t a nc e of t he p e t it i one r in W . P . N o. 2 8 4 2 / 2 0 0 6 , in w hic h a Div is io n B e nc h of t hi s C our t gr a nt e d s t a y of p r oc e e d ing b e f or e t he t r ia l C our t , w hic h w a s s ub s e q u e n t ly v a c a t e d v id e or d e r d a t e d 1 7 . 7 . 2 0 1 2. T he t r ia l C our t v id e jud gm e nt a nd d e c r e e d a t e d 1 0 . 1 0 . 2 0 12 d e c r e e d t he s u it f or e v ic t ion a nd d ir e c t e d t he p e t it ion e r t o v a c a t e t he s uit p r e m is e s a nd t o d e p os it a r r ea r s of r e nt d ue t o r e s p ond e nt N o. 1 -T r us t .
6
5. T he p e t it ion e r f ile d F ir s t Ap p e a l N o. 1 0 3 7 / 1 2 , w hic h w a s a d m it t e d b y a B e nc h of t hi s C o ur t v id e or d e r d a t e d 2 1 . 1 2 . 2 0 1 2 a nd t he e xe c ut i on of t he d e c r e e f or e v ic t ion w a s s t a ye d s ub je c t t o f ulf illm en t of c ond it i ons m e nt io ne d t h e r e in. T he r e le v a nt e xt r a c t of t he or d e r r e a d s a s und e r : -
" S ever al c on ten tion s h ave b een r a is ed b y ap p el l an t in c l u d in g vir u s an d p r ovis ions as en vis aged u n d er S ec tion 3 of th e M .P .
A c c o mmo d a ti on C on tr ol Act to be u n c ons ti tu tion al an d f u r th er i t h as b een s u b mi t ted th a t ap p el l an t n e ver agr eed to p a y r en t @ R s .1 5 / - p er s quar e f ee t of th e ten an ted p r e mis es an d th er e f or e h e is n ot b ou n d to p a y o r d ep os it th e r en t as d ec id ed b y l ea r n ed tr i al C ou r t in th e i mp u gn ed ju d g men t. A p p el l an t f u r th er s u b mi ts th a t n o tic e of en h an c e men t of r en t s en t b y r es p on d en ts to ap p el l an t wa s n ever s er ved u p on h i m al th ou gh i t was s er ved u p on h is M an ag er . Hen c e ac c or d in g to h i m, s er vic e on M an ag er of s aid n o tic e c a n n o t b e s aid to b e s er vic e u p on ap p el l an t. It h as als o b een s u b mi t ted b y h i m th a t h e is read y to p a y or d ep os it th e c on tr ac tu al r e n t wh ic h is Rs .7 5 / - p er mon th . Hen c e , i t h as b een p r a yed th a t mon e tar y p ar t of th e d ec r ee b e als o s ta ye d al on g wi th th e e vic tion p ar t of th e d ec r ee til l th e d ec is ion of th is ap p eal .
Ha vin g h e a r d ap p el l an t an d l ear n ed s en ior c ou ns el f or r es p on d en ts , i t is d ir ec ted th a t ev ic ti on p ar t of th e d ec r e e s h al l r e ma in s ta yed til l th e d ec is ion of th is ap p e al . Ho we ver , s in c e th e r e wil l b e n o ir r ep ar ab l e l os s to th e ap p el l an t in d ep os itin g th e d ec r ee tal a mo u n t an d f u r th er h e wil l n ot s uf f er an y ir r ep ar ab l e l os s in c as e h e d ep os its mon th l y r en t @ Rs .5 6 9 2 / - as d ir ec ted b y l e ar n ed tr i al C ou r t th a t p a r t of d ec r ee is n o t s ta yed .7
T h e ob jec tion wh ic h ap p el l an t h as r ais ed d u r in g th e c ou r s e of ar gu me n t s h all b e d ec id ed a t th e ti me of f in al ad ju d ic a ti on of th e ap p e al .
T h us , th e ex ec u ti on of evi c tion p ar t of d ec r ee s h all r e ma in s ta yed o n th e f oll o win g c on d i ti on s :-
(i) The ap p el l an t s h al l dep os it d ec r ee tal a mou n t of Rs .1 ,1 3 ,84 0 / - on or b ef or e 2 2 .1 2 .2 0 1 2 in th e tr i al C ou r t/ Exec u tin g C ou r t.
(ii) h e s h all als o d ep os it th e mon th l y r en t @R s .5 6 9 2 / - s tr ic tl y in ter ms to S ec tion 1 3 of th e M .P . A c c o mmo d a ti on C on tr ol A c t.
(iii) th e ap p el l an t s h all als o d ep os i t th e c os t of p l ain tif f s / r es p on d en ts on or b ef or e 2 2 .1 2 .2 0 1 2 as d ir ec te d b y th e l ear n ed tr i al C ou r t an d
(iv) th e r es p on d en ts N o.1 to 1 2 s hal l b e f r ee to wi th d r a w th e a mo u n t s o d ep os ited b y ap p el l an t in t h e tr i al C ou r t/ E xec u tin g C ou r t af ter f u r n is h in g s ec u r ity to th e s a ti s f ac tion of th a t C ou r t.
It is h o wev er , ma d e c l e ar th a t if an y of th e af or es aid c on d i tion s is viol a ted b y th e ap p el l an t, th e r es pon d en ts N o.1 to 1 2 s h al l b e f r ee to exec u te th e d ec r ee" .
6. T he r e a f t e r, a Div is ion b e nc h of t his C our t v id e or d e r d a t e d 2 2. 4 . 2 0 1 4 d is m is s e d t he w r it p e t it io n na m e ly W . P . N o. 2 8 4 2 / 2 0 0 6 . T he r e le v a nt e xt r a c t r e a d s a s und e r : -
"5. Suffice it to observe that the issue regarding validity of the provisions and including the 8 notification in question has already been dealt with in extenso by the Division Bench of this Court vide order dated 17th August, 2004 whilst dismissing the writ petition No.3192/04. In our opinion, it is not possible to depart from the said legal position and in any case permit the petitioner to resort to successive proceedings for the same issue.
6. Besides, we find that the issue raised by the petitioner that the impugned notification does not deal with cardinal requirement stipulated in sub- section (2) of Section 3 of the Act that the whole of the income derived from which is utilized for that institution or nursing home or maternity home. This aspect has been dealt with by the Apex Court in the case of Ramgopal and another Vs. Balaji Mandir Trust and others, AIR 2003 SC 1883. From para 4 of the said decision, it is clear that this very contention was raised on behalf of the appellants therein but it did not find favour with the Apex Court. In the circumstances, the observation made in the order dated 22nd February, 2006 by our predecessors is no impediment for us to answer the preliminary objection raised by the respondents, which we find to be appropriate. Accordingly, this petition ought to fail.
7. We may place on record that the petitioner has asked for further reliefs including to initiate criminal contempt action against First Additional District Judge, Bhopal. However, in our order passed Yesterday, while disposing of I.A. No.12193/2012, we have made it clear that the present petition having been filed under Articles 226 and 228 of the Constitution of India cannot be mixed up with the relief of initiating criminal contempt action and, more so, without making the person concerned party- respondent in the proceeding. As a result, even that relief need not detain us in disposing of this petition.
10. We also place on record that the petitioner has filed interlocutory applications No.14871/2012 for stay; 13881/2012 for taking subsequent events on record, 669/2013 for quashing the judgment and decree passed on 10.10.2012 by the Ist Additional District Judge, Bhopal and other reliefs; 1474/2014 application for amendment in the relief clause of the main petition and 4834/2014 for recalling the order dated 10.03.2014. In view of the dismissal of the 9 writ petition, in our opinion, there is no need to hear these applications separately and the same, therefore, are disposed of.
11. At this stage, the petitioner makes an oral request that the order passed today should be kept in abeyance for a period of four weeks to enable the petitioner to file SLP before the Apex Court.
12. We find no reason to accede to this request. It is a matter of record that the petitioner has already filed First Appeal against the decree passed by the trial Court in which interim relief has been granted in favour of the petitioner. In that sense, no prejudice will be caused by rejecting the request for continuing the stay of this order. In fact, in the present petition, there is no interim order operating, as of today. Hence, this request is turned down".
7. Being aggrieved by the impugned judgment and decree of eviction and arrears of rent dated 10.10.2012, the petitioner filed an application under Order 21 Rule 35 and Rule 103 of the Code of Civil Procedure which was registered as MJC No.561/12 on the ground that the decree for eviction does not bind the petitioner as the decree has been passed against the partnership firm whereas, the petitioner is in possession of the suit shop as owner of Anand Automobiles. The petitioner also filed an application which was registered as MJC No.40/13 in which inter-alia it was prayed that judgment and decree dated 10.10.2012 is null and void as the same has been passed in violation of Articles 14, 19, 21, 50, 141, 215 and 301 of the Constitution of India. The 10 Executing Court rejected both the applications vide order dated 16.12.2014. The application preferred by the petitioner under Order 21 Rule 35 read with Rule 103 of the Code of Civil Procedure was rejected on the ground that petitioner participated in the proceeding for eviction and in case he was not in occupation of the suit shop as partner, but as owner, he ought to have taken objection at the first instance. Hav ing failed to do so, the petitioner is estopped by his conduct and the decree deserves to be executed against the petitioner, as he himself is in possession of the suit shop. The application preferred by the petitioner for recalling the judgment was rejected on the ground that judgment and decree dated 10.10.2012 is subject matter of challenge in the First Appeal.
8. Thus, from above narration of facts, it is evident that principal relief in this petition preferred under Article 226 of the Constitution of India is to seek quashment of order dated 16.12.2014 passed in MJC No.561/12 and MJC No.40/13 by the executing court.
11
9. At the outset, learned senior counsel for respondent No.1 has raised an objection with regard to maintainability of this petition under Article 226 of the Constitution of India, in view of law laid down by Three Judge Bench of Supreme Court in the case of Radheshyam and another Vs. Chhabinath and others, 2015 SCC Online SC 170 and has contended that judicial orders of the Civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India. In view of aforesaid preliminary objection raised by learned senior counsel for respondent No.1, we called upon the petitioner to address this Court with regard to maintainability of the writ petition which has been filed under Article 226 of the Constitution of India, which is directed against the orders passed by the Executing Court.
10. We have heard the petitioner as well as learned senior counsel for respondent No.1 only on the issue of maintainability of this writ petition preferred under Article 226 of the Constitution of India and, therefore, we shall deal with the aforesaid limited question whether the present writ petition filed under Article 226 of the Constitution of India 12 against the order passed by the Executing Court is maintainable.
11. The petitioner submitted that the decision of the Supreme Court in the case of Naresh Shridhar Mirajkar Vs. State of Maharashtra, AIR 1967 SC 1 has been dealt with in the celebrated case of His Holiness Keshavanand Bharti Vs. State of Kerala and another, AIR 1973 SC 1461 and, therefore, the ratio laid down in the case of Mirajkar (supra) stands watered down if not overturned, in terms of the view taken by the larger Bench. The petitioner has invited our attention to paragraphs 1717 to 1719 of the judgment in the case of Keshavanand Bharti (supra) and has submitted that judiciary is a State and is an authority under Article 12 of the Constitution of India and judicial process is a State action. While referring to judgment of the Supreme Court in the case of S.P. Gupta Vs. Union of Indi a (1981) Supp. SCC 87, it is contended that judiciary is a separate but equal part of the State and is duty bound to meet the constitutional objection of providing economic and social justice through the process of law and must be involved not merely as an umpire but more actively to bring social and 13 economic justice to common man. It is further submitted that violation of fundamental right itself renders the judicial decision a nullity. In this connection, reliance has been placed on a decision of the Supreme Court in the case of A.R. Antuley Vs. R.S. Nayak, (1988) 2 SCC 602. While referring to paragraph 58 of the decision of the Supreme Court in the case of State of Rajasthan Vs. Prakash Chand, (1998) 1 SCC 1, it is pointed out that Constitution of India vests limited powers to all Judges at all levels and that a Judge is although free but not totally free. It is also pointed out that Dr. Durga Das Basu has criticized the dictum in Mirajkar's case (supra) and has observed that the same is contrary to the Constitution of India.
12. It is urged that decision of the Supreme Court in Mirajkar's case (supra) is apparently unconstitutional in as much as it holds that a judicial decision never violates fundamental right. It is also contended that State as well as respondent No.1-Trust and respondent No.2, who is a Judicial Officer, who has intentionally, willfully and deliberately refused to follow judgments of the Supreme Court, has rendered himself liable for facing suo motu contempt 14 proceeding and for payment of compensatory cost. In this connection reference has been made to the decisions of Supreme Court in the case of Pritam Pal vs. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904, Rabindra Nath Singh vs. Rajesh Ranjan alias Pappu Yadav and another, (2010) 6 SCC 417 and AIR 2009 SC 2214. It is also pointed out that the petitioner has claimed the relief for reading down the Judges Protection Act and the aforesaid reliefs can be granted only in a writ petition filed under Article 226 of the Constitution of India. It is also urged that the Executing Court while passing the impugned judgment has committed jurisdictional error which renders the judgment ultra vires and, therefore, the same is nullity. In this connection, reliance has been placed on a decision of the Supreme Court in (1981) Supp. SCC 87 and Central Inland Water Transport Corporation vs. Brojo Nath Ganguly, (1986) 3 SCC 156.
13. It is urged that the writ petition was lawfully filed and has been entertained by this Court directing issuance of notices and in compliance of the order dated 5.3.2015, the petitioner has already paid the process fee. It is further submitted that decision 15 rendered by Three Judge Bench in the case of Radheshyam and another (supra) appears to be limited to a case whereupon on facts, relief is claimed to quash the order passed by the Civil Court and no other relief is claimed as has been claimed in the instant writ petition. Therefore, the decision in the case of Radheshyam and another (supra) has no application. It is also submitted that decision of Radheshyam and another (supra) is per-incuriam, as it has failed to notice the decision rendered by 13 Judge Bench of the Supreme Court in the case of Keshavanand Bharti (supra). It is also urged that reasonable time be granted to the petitioner so that he could make deeper study on question of law. Lastly, it is contended that any adverse order is passed against the petitioner, operation of the order dated 25.2.2015 be suspended for a period of four weeks in order to enable the petitioner to approach the Supreme Court.
14. On the other hand, learned senior counsel for respondent No.1 submitted that principal relief claimed in this writ petition is with regard to quashment of orders dated 16.12.2014 passed by the Executing Court in MJC No.561/12 and MJC 16 No.40/13. It is further submitted that Three Judge Bench of the Supreme Court in the case of Radheshyam (supra), by placing reliance on decision rendered by Nine Judge Bench in the case of Mirajkar (supra) has rightly held that judicial orders passed by the Civil Courts are not amenable to writ jurisdiction under Article 226 of the Constitution of India and, therefore, the instant writ petition is not maintainable under Article 226 of the Constitution of India. It is further submitted that the petitioner has statutory remedy available to him under Code of Civil Procedure, 1908 as his objection preferred under Order 21 Rule 97 of the Code has been rejected. In case, the petitioner feels that the objection has been rejected upon adjudication, the remedy of an appeal under Order 21 Rule 103 of the Code of Civ il Procedure is available to him and in the alternative, the remedy of filing a revision under Section 115 of the Code of Civil Procedure is available to the petitioner. It is contended that the present writ petition is frivolous and vexatious proceedings initiated by the petitioner knowing full well that it is open to him to challenge the validity of the decree as well as the impugned order passed by the Executing Court by way of remedy prescribed under Order 21 of 17 the Code of Civ il Procedure. Therefore, it is urged that in any case, the instant writ petition under Article 226 of the Constitution of India is not maintainable. Learned senior counsel for respondent No.1 has also referred to Division Bench decision of Himachal Pradesh High Court in the case Deepak Khosla Vs. State of Himachal Pradesh and others, 2013 SCC Online HP 2955.
15. We have considered the respectiv e submissions made by the petitioner and learned senior counsel for respondent No.1. As stated supra, we are dealing with the issue of maintainability of this writ petition preferred under Article 226 of the Constitution of India alone and are not expressing any opinion with regard to any other issues in writ petition and in particular on the merits of the decision of the Executing Court challenged in the writ petition.
16. On perusal of the multiple reliefs claimed in the writ petition, it is evident that the principal relief claimed in the writ petition is with regard to quashment of order dated 16.5.2014 passed by the Executing Court in MJC No.561/12 and MJC 18 No.40/13, which is evident from relief clause 7(a) (c) and (d) of the writ petition. The other reliefs are founded on the validity of order dated 16.05.2014 passed by the Executing Court and not independent thereto. In other words, the other reliefs claimed by the petitioner are intrinsically dependent on challenge to the validity of the said order - having been passed without jurisdiction and nullity in law. Suffice it to observe that the other reliefs may require consideration only if the petitioner succeeds in challenging the validity of the order passed by the Executing Court referred to above.
17. It is well settled in law that right to access to justice is a fundamental right. See: Manohar Joshi Vs. State of Maharashtra and others, (2012) 3 SCC 619. However, that right is prescribed as per the procedure established by law. In this context, we may examine the grievance of the petitioner with regard to violation of fundamental right. In the instant case, the objection preferred by the petitioner under Order 21 Rule 97 of the Code of Civil Procedure has been rejected by the Executing Court vide order dated 16.5.2014 passed in MJC NO.561/12, which amounts to an adjudication under Order 21 Rule 101 19 of the Code of Civil Procedure. Against that order, the petitioner has the statutory remedy of filing an appeal under Order 21 Rule 103 of the Code of Civ il Procedure. Similarly, against the order rejecting the application preferred by the petitioner for treating the judgment and decree dated 10.10.2012 passed in Civil Suit No.19-A/2004 by the Executing court as nullity, the petitioner has the remedy of filing a revision under Section 115 of the Code of Civil Procedure. See: Sawal Singh Vs. Ramsakhi, 2002(4) MPHT 200. The contention raised in this writ petition about the validity of order of the Executing Court being without jurisdiction and nullity in law can be tested at the instance of the petitioner, if he were to resort to remedy under Order 21 of the Code of Civil Procedure mentioned herein before. It is not open to argue that that plea cannot be adjudicated by the forum/remedy prov ided for under Order 21 of the Code of Civil Procedure. Thus understood, the High Court should be loath to entertain the challenge such as in the present writ petition in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. For, statutory remedies are available to the petitioner for redressal of his grievance as well as in view of law laid down by Nine 20 Judge Bench of the Supreme Court in the case of Mirajkar (supra) and Three Judge Bench in the case of Radheshyam and another (supra), wherein, it has been held that judicial orders passed by the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution of India. The contention raised by the petitioner with regard t o violation of fundamental right is sans any substance, as the petitioner is not being denied access to justice.
18. The reliefs claimed by the petitioner with regard to reading down the provisions of Judges Protection Act, payment of compensation as well as initiation of suo motu proceeding against respondent No.2 are concerned, in our considered opinion, in the facts of the present case, have been sought only to justify the remedy by way of writ petition under Article 226 of the Constitution of India. In one sense, the other reliefs claimed (except challenge to the validity of order of the Executing Court) are premature and superfluous. These reliefs may become necessary only if the Court of competent jurisdiction in the first instance were to accept the challenge founded on the argument that the order of the Executing Court is without jurisdiction and nullity in 21 law. As a matter of fact, if the Court of competent jurisdiction were to accept that argument of the petitioner, as a necessary corollary, it would quash and set aside the order of the Executing Court on that count. We may hasten to add that the other reliefs, as sought, in the writ petition, are to justify the challenge to the order passed by the Executing Court by way of petition under Article 226. We may reiterate that if the competent forum in the specified proceedings, resorted to by the petitioner under Order 21 were to accept the plea of nullity of the decree or the order passed by the Executing Court which it is competent to do, then only the question of reading down the provisions of Judges Protection Act and for grant of compensation and initiation of suo motu contempt proceeding against respondent No.2 may arise which may have to be dealt with on it's own merit. Such a stage has not at present arisen, as the finding is yet to be recorded by the competent forum with regard to the validity of the judgment and decree dated 10.10.2012.
19. As the principal reliefs for consideration in this writ petition are of quashment of orders dated 16.12.2014 in M.J.C.Nos. 563/2012 and 40/2013 22 passed by the Executing Court, therefore, the ratio laid down in Radheshyam (supra) squarely applies to the facts of the present case and the contentions of petitioner that said decision does not apply, deserves to be repelled.
20. As far as the contention of the petitioner that the law laid down by Nine Judge Bench of the Supreme Court in the case of Mirajkar (supra) is per-incuriam and that the decision in the case of Supreme Court in the case of Radheshyam (supra) is also per-incuriam for the same reason, we are afraid we cannot entertain this contention as the law laid down in Mirajkar's case (supra) as well as in the case of Radheshyam (supra) binds us under Article 141 of the Constitution of India. [See: Suganthi Suresh Kumar vs. Jagdeeshan, (2002) 2 SCC 420].
21. Similarly, the contention of the petitioner that writ petition has already been entertained by this Court is concerned, the same only deserves to be stated to be rejected. The order dated 05.3.2015 reads as under:-
"05.03.2015 Petitioner- Satya Pal Anand appears in person.23
S mt.Shobha Menon, Senior Advocate with Ms.Ankita Khare, Advocate for the respondent no.2.
The principal grievance of the petitioner is that objection filed by him on 16 th March, 2013 has remained undecided and the Executing Court has tened to pass final orders first on 23 r d April, 2014 which later on was recalled and again on 16 th May, 2014.
According to the petitioner, the order dated 16 th May, 2014 does not deal with the written objection filed by the petitioner on 16 th March, 2013. According to the petitioner, not deciding the objection has vitiated the order dated 16 th May, 2014.
Issue notice to the respondents. Respondents to deal with this contention specifically and place on record relevant docu ments as may be advised along with the affidavit to be filed before 10 th March, 2015.
Rejoinder, if any, be filed before 12 th March, 2015.
List on 13 t h March, 2015.
The advance copy of reply-affidavit be made available to the petitioner.
At this stage, petitioner sub mits that the respondents may has ten with the execution of the decree and for which reason interi m protection be granted.
Counsel for the respondents submits that the returnable date given by the Executing Court is 23 r d Marcy, 2015.
In that case, in our opinion, no interim order is required at this stage. In the event, the matter pending before this Court cannot be decided before 23 r d March, 2015, the Court may consider reques t for grant or non- grant of interim relief.
C.C. today."
Thus, it is evident that while issuing notice this Court has not dealt with the issues of maintainability of the writ petition. It is also noteworthy that despite 24 opportunity being granted the petitioner has not filed any rejoinder affidav it.
22. The petitioner had lastly submitted that he may be given some more time to prepare as he may have to raise constitutional issues of some significance. In our opinion, keeping in mind the dictum of the recent Supreme Court decision directly on the point which is binding on this Court, no fruitful purpose would be served by giving further time to the petitioner, inasmuch as, the argument of the petitioner that the dictum of Mirajkar's case as well as Radheshyam's case is per-incuriam, if not nullity cannot be entertained by this Court as is the well established position. Hence, we reject the request of the petitioner to give further time for preparation.
23. As far as the submission made by the petitioner that the order dated 25.2.2015 should be kept in abeyance so as to enable him to approach the Supreme Court, we are not inclined to accede to the said prayer, as the petitioner is at liberty to resort to remedy prescribed by law before the Competent Court which may deal with the same in accordance with law.
25
24. In view of preceding analysis, we hold that writ petition as framed and filed under Article 226 of the Constitution of India is not maintainable. However, the petitioner would be at liberty to take recourse to such other remedy as may be available t o him under the law. However, there shall be no order as to costs.
25. Having held that the writ petition is not maintainable, we do not deem it necessary to examine the grievance of the respondents about the friv olity of present proceedings resorted to by the petitioner with full understanding to gain some more time and to deny the respondents of the fruits of the decree operating in their favour - because of non-fulfilment of the conditions by the petitioner which were imposed as condition precedent for stay of execution of the decree.
26. In the result, the writ petition is dismissed with the liberties, as aforesaid.
(A.M. Khanwilkar) (Alok Aradhe)
Chief Justice Judge
a/rm.