Karnataka High Court
Smt. Zehra Khanum vs J. Jayakumar And Anr. on 17 July, 1996
Equivalent citations: ILR1997KAR19, 1997(1)KARLJ89, 1997 A I H C 563, (1997) 2 CIVLJ 725 (1997) 1 KANT LJ 89, (1997) 1 KANT LJ 89
ORDER M.F. Saldanha, J.
1.This C.R.P is directed against an order passed by the Small Causes Court in Execution Petition No. 2025 of 1987, dated 28.10.1991. This is a hotly contested litigation but the few facts that are material for purposes of deciding the issue are only being recounted by me. The dispute centers around a small shed that stands in property bearing No. 60/A and in respect of which it is contended that one Nawab Jan was the tenant. It is also essential to record that the property on which this shed was standing is supposed to have originally belonged to one Abdul Rahman and that after his death, his widow and the sons had sold the property to one Jayakumar who is the present respondent-1 to this proceeding. Jayakumar had instituted H.R.C.No. 590/1987 for eviction of the tenant Nawab Jan who is the 2nd respondent to this petition and the sequence of events as far as that suit is concerned are of some consequence. The suit was filed on 2.3.87 and was returnable on 16.4.87. It is contended that since the tenant was not interested in the premises and was not using them that he agreed to the passing of a compromise decree for which purpose, an application was made to the Court for listing the matter earlier and on 20.3.87 a compromise decree was passed against the tenant giving him 15 days time to vacate. Since he did not vacate, Execution Petition No. 2025/87 was filed on 6.4.87 i.e. the very day after the 15 days time had expired. Thereafter, on 16.4.87 one more application was made to the Court alleging that the premises were locked and that the decree holder should be given Police assistance for purposes of executing the decree, if necessary forcibly. This application was also granted and on 18.4.87 the Rule 1 through the assistance of the Police and the Bailiff took possession of the premises. On the same day, the present petitioner filed an application under Order 21 Rule 99 C.P.C. for restoration of possession. Her case is that her husband had taken the shed on lease from the original landlord and that a rent of Rs. 50/ - was being paid. She also contended that a firewood depot was being run there by her late husband and that she was thereafter carrying on the business, though the licence in respect of the business stood in the name of her son Mahaboob. She contended that she was not even a party to the proceedings nor was the decree liable to be executed against her and that the dispossession was wrongful and that consequently, the Court ought to restore possession to her.
2. This application was resisted by the respondents to this petition. It was contended by the first respondent-Jayakumar that the applicant is a resident of the adjoining premises, that she has no concern whatsoever with the execution of the decree and that the entire application is false. It therefore became necessary for the Court to examine the entire dispute in detail in the course of which the applicant examined as many as 4 witnesses and produced various supportive documents. The respondent examined two witnesses and also produced certain documents and the learned trial Judges after examining the evidence and all the other material that was produced before him came to the conclusion that the application was liable to be dismissed. This revision is directed against that order.
3. Petitioner's learned Advocate has alleged serious mala fides in this case. He has submitted that the entire proceeding filed before the Trial Court was a total fraud and in support thereof, what is contended is that it is impossible to believe that the proceeding would have culminated in such a short period of time, that any tenant would agree to vacate and surrender the premises in the manner that is alleged and further more, his submission is that the entire proceeding was a ruse in order to wrongfully dispossess the present applicant and that therefore, it is necessary that this Court should come down heavily on the first repondent for what has happened. Learned Advocate submitted that the entire story made out about the 2nd respondent being the tenant of the premises is absolutely false and in this regard, he relied heavily on a series of documents, the most important document on which reliance is sought to be placed is Ext.p.15 which is a licence for the running of the fire wood depot. The Learned Advocate submitted that a perusal of this licence will indicate that it related to the premises No. 60/A, 7th Cross, Wilson Garden, which is according to him the premises in dispute. Secondly, the Learned Advocate submitted that the licence in question was very much alive at the time when the incident took place. The learned Advocate also draws my attention to a lot of other material which according to him the Learned Trial Judge has totally overlooked. Among these, reliance is sought to the placed on a series of photographs that have been produced in relation to the demolition of the premises and the fire wood and charcoal that was found scattered there. His submission is that these photographs very conclusively establish that the shed in question which was there was in a demolished condition and further more, that the fire wood depot which was being conducted under the licence-Ext.P.15 was in fact a business that was running from that place because the photographs do indicate that the fire wood and charcoal was found scattered there. Apart from this, learned Advocate submits that the applicant's son has given evidence and that he has pointed out that they apprehended some sort of legal action against them, vis-a vis the premises in question which was why the caveat petition was filed before the Small Causes Court and the City Civii Court despite which the proceedings were instituted in the name of a totally bogus party who had nothing to do with the premises. Apart from this, reliance is placed on some other documents such as the money order receipts in relation to the return of the rent which was not accepted and evidence showing that a draft of Rs. 500/- had been obtained from the Bank and that this had been forwarded against payment of the rent some time prior to the incident. The submission canvassed is that all this material cumulatively, will conclusively establish that the applicant has discharged the burden cast on her under Order 21 Rule 100 C.P.C. and that in having totally overlooked all this crucial material, a serious error apparent on the face of the record has befallen. The submission therefore is that the impugned order be set-aside and the application for restoration be allowed.
4. As against this position, learned Advocate who represents Rule 1 has submitted that the crucial document-Ext.P.15 namely the licence on which so much reliance is being placed is totally inconclusive. He submits that the document in question only refers to the property bearing No. 60/A and that if one were to tally it with the document Ext. P.16 which happens to be the certificate showing the khatha which the applicant possesses, that the two numbers will be found to tally. His submission therefore is that if at all the applicant was doing any business or her son was doing any business that this was being conducted in the adjoining premises which belong to her and that the licence has nothing to do with the premises against which the decree has been executed. Learned Advocate submits that his client is in no way concerned with the bakground of the case and the relationship between the applicant's late husband and the previous landlord because as far as his client was concerned, after he took-over the premises and found that respondent-2 was not using the premises of which he was the tenant he decided to obtain a decree against him and having obtained the decree that the same has been executed. As regards the question of extreme expedition, or rather indecent haste regarding the proceedings before the Trial Court, Learned Advocate submitted that it is not unknown for a tenant who is not interested in the premises to surrender the same instead of burdening himself with the payment of rent if he is not using the premises. He submits that it was in this background that the 2nd respondent agreed to a compromise decree and he contended that one that decree was obtained, since the 2nd respondent went back on his assurance to handover possession which was why the decree came to be executed. His further case is that since the Rule 2 had kept the premises locked and since the landlord anticipated the need to have to break open the premises, that out of abundant caution he had applied to the Court for Police help which the Court sanctioned. His submission is that Rule 1 has acted completely within the framework of law and that there is absolutely nothing wrong with his conduct.
5. Another submission that was advanced by the learned Advocate who represents Rule 1 proceeds on the footing that the Trial Court has rightly rejected the application on two grounds. Firstly, the learned Advocate submits that the applicant for some strange reason has not given evidence herself. He states that it is quite obvious that the applicant who claims some interest in the adjoining property was not in a position to substantiate her case and therefore, she has not come before the Court. Under these circumstances, the submission is that the application ought not to have been entertained at all by the Trial Court. Further more, the second line of argument proceeds on the footing that even if the Trial Court proceeded to examine the application, that it was rightly rejected because the licence-Ext.P.15 which is supposed to confer the rights to carry on the charcoal/fire wood business in the disputed premises admittedly stood in the name of Mahaboob who was the son of the applicant. Learned Advocate points out that no valid reason is adduced before the Court for Mahaboob not having come forward to give evidence and that it is inconceivable to believe that if the premises belonging to him had been forcibly demolished and that his property thrown out, that he has not even come before the Court to give evidence in the restoration proceedings. In law, what is contended by the learned Advocate is that if at all any body had a right to claim restoration that it was Mahaboob and no one else and in the absence of this person moving the application for restoration that the Trial Judge has rightly rejected the claim putforward by the mother.
6. As regards this set of submissions, I need to only record that the relationship between the applicant and Mahaboob is that of mother and son. The other son has come before the Court and deposed and his evidence has been recorded by the Court. I do concede that it would have been far more appropriate for either the applicant or Mahaboob to have given evidence but in this case, the other son Mohamed Ali has been examined as P.W.1 and he is the power of attorney holder of the claimant. The case made out is that the fire wood / charcoal business was started originally by the late father and that after his death, the mother and brother Mahaboob were running the business. It is true that the respondent has denied this position but the fact remains that the evidence does indicate that there was some sort of firewood business started by the deceased father and if this was the position, if the mother was thereafter looking after the business irrespective of the fact that the son was the licence holder, one cannot strictly contend that the applicant had no interest whatsoever either in the business bequeathed or the premises. The ambit and scope of Rule 100 C.P.C. is wide enough to include any person who claims to have interest in the premises in respect of which wrongful dispossession has taken place. Under these circumstances, I am unable to uphold any legal bar as far as the maintainability of the application filed by the present petitioner who was the mother is concerned. It is true that the application would have been equally maintainable had Mahaboob filed it but, that does not mean that the application necessarily fails because it has come from the mother. Secondly, the fact that Mahaboob was not examined would not necessarily be fatal to the proceedings. Again, he would have probably been the best witness to depose about the facts and the dispute but if for whatever reason he has not come before the Court, no adverse inference can be drawn because his brother has given evidence and all that can be said is that in Mahaboob not having come forward, the applicant was possibly running a risk with the best evidence not having come before the Court. This however would not necessarily mean that the application should in any manner fail for want of the evidence from Mahaboob.
7. The real question is as to whether the Trial Court has erred and that too, whether the error is so manifestly wrong as to warrant interference from this Court. I am conscious of the fact that this is a Civil Revision Petition and the ambit and scope of Section 115 of the C.P.C. is necessarily circumscribed. It would not justify, unlike in an appeal reappreciation of evidence and therefore, it would be very necessary to ascertain as to whether there has been a gross error of law in the decision of the Trial Court before interference is competent. As far as that aspect of the matter is concerned. I need to record two significant aspects of the case.
8. The first of these is an angle of propriety. It is the unfortunate experience of the Courts that all judicial proceedings under the Rent Act, irrespective of which forum before which they are instituted take an abnormally long period of time and even in cases where the tenants are not interested in defending them, for the simple passing of an exparte order, several dates of hearing do elapse. Many reasons are given for this delay, the most important of them is that all Courts particularly the subordinate Courts, are hopelessly overburdened with the number of cases and the amount of work from day today, that it has become absolutely impossible to get proceedings disposed of with a degree of expeiency. In the present instance, we have a startling example of lightning expediency the type of which is almost unprecedented. The suit is filed on 2.3.87 and made returnable on 16.4.87. Even before the returnable date i.e. within hardly 4 weeks, on 17.3.87 an application was made to the Trial Court to advance the date of hearing and on this application the Court agrees to take up the matter on 20.3.87. The reason for this extreme hurry was that a compromise petition was presented to the Court on 17.3.87 with the request that the matter be disposed of and on 20.3.87, the Court passed a decree. What this Court needs to take cognisance is that this was an eviction proceeding and there is probably no parallel in legal history at least in this state, of a situation whereunder with such a high degree of cooperation, a tenant who is in possession of business premises agrees to give them up. In any event, the decree was not only passed on that date but 15 days time was given for the tenant to vacate. What amazes me is the fact that if the tenant was so over-willing to surrender the premises to the landlord in so far as he did not even want to wait until the returnable date and accompanied the landlord to the Court to have a decree passed on 20.3.87 as to why and under what circumstances was the 15 days time provided for him to vacate. If the case of the landlord is to be believed that the tenant was not interested in the premises or not using them and the landlord was only seeking to restore the possession, I fail to understand why 15 days time would have ever been given to the tenant and what is the need for providing this time period. What happened thereafter is even more incredible in so far as according to the landlord, the tenant went back on his assurance and therefore, the need came to thereafter seek Police protection and to, execute the decree forcibly. The entire story that has been put forward before the Trial Court and which the Trial Court has very guliibly accepted is, to say the least impossible to swallow. Viewed at from any angle, I need to take cognizance of the fact that the applicant has contended that since they anticipated legal proceedings that they had taken the approval to file caveats both before the Small Causes Court and City Civil Court and despite this having been done, the proceeding was filed against respondent-2 without making the applicant or any of her family members parties. This was obviously in order to avoid the consequences of the applicant having notice of the proceedings and defending them and in this background to my mind, this sequence of events itself disdoses that a fraud was played on the Trial Court and that on this ground alone, if not on any other the application ought to have been allowed.
9. I have already held that the applicant did have the locus standi to present the application. To my mind, the material that was produced in support of the application was more than sufficient to establish that the applicant was in fact in possession of the premises on the date when the decree was executed. Admittedly, the decree was not passed against the applicant or against any of her family members and therefore, under the provisions of Order 21 rule 100 of C.P.C. the Trial Court was grossly in error in having refused to restore the possession of the applicant.
10. The last aspect of the matter that requires consideration is the fact that since there was no order from the Trial Court, the premises in dispute which had already been demolished were thereafter built over. The Court Commissioner who has been examined does make a reference to the fact that construction of some new structures has been commenced which was thereafter stopped. The fact remains, as is clear from the record that the shed which happens to be the premises in dispute was in fact demolished and that it is no longer in existence. The question that would therefore arise is as to whether at all it is possible for the Court to pass an order for restoration of possession?
11. The scheme of Rule 100 of Order 21 dearly envisages that if wrongful dispossession was taken that it is incumbent on the part of the Court to direct restoration of possession. It is not unusual and in fact, it is the order of the day in all cases where wrongful dispossession taken place which in fact is rather rampant now a days, to immediately demolish the premises, and present the Court with a fait accompli. It is precisely for this reason that a Court if satisfied that the dispossession is wrongful is within its powers to direct restoration of the premises. In an appropriate case, the Court would direct that the original premises be reconstructed and restored to their original condition and their possession be restored. If that is not possible, a Court would direct that equivalent alternate premises identical to the one in respect of which wrongful dispossession has taken place must be restored to the party. If this is not done, it would only mean that it would frustrate the operation of the rule of law and would serve as an encouragement to those who seek to breach the law. It is in this background that the following directions are issued:-
a) That the impugned order is set-aside;
b) The application filed by the petitioner under Order 21 Rule 100 of C.P.C. is allowed and it is directed that the respondent-1 shall restore possession of the premises to the petitioner within an outer limit of thirty days from today.
I am conscious of the fact that some other construction is supposed to have been commenced. The first respondent is given the option to either demolish that construction and restore possession of the original premises to the petitioner or in the alternative, to put the petitioner in possession of equivalent identical premises area-wise in that very place or so close thereby as is feasible within the said period of time. At this stage, the learned Advocate who represents respondent-1 states that without prejudice to her client's rights, at the level of the Advocates and the clients she would like to explore the possibility of arriving at a total compromise in the matter. I do agree that this course of action would be highly desirable. The parties are present in Court and so are the Learned Advocates and if they are able to arrive at any compromise formula, they are at liberty to mention the matter to the Court for recording the same.