Madhya Pradesh High Court
Ranjan Sharma vs Rambabu Vaishya And Ors. on 20 November, 2002
Equivalent citations: AIR2003MP186, AIR 2003 MADHYA PRADESH 186, (2003) 1 MPLJ 310, (2003) 1 CURCC 421, (2003) 2 CIVLJ 396
JUDGMENT S. SAMVATSAR, J.
1. The order in this revision shall also govern the disposal of Civil Revision No. 670 of 2000 (Raju Sharma v. Rambabu Vaishya) and Civil Revision No. 671 of 2000 (Smt. Laxmidevi Sharma v. Rambabu Vaishya), as all these three revisions arise out of a common order dated 31-3-2000 passed by Eighth Civil Judge Class-I. Gwalior in Case No. 4A/96.
2. All these revisions are filed by the defendant, against whom a decree for ejectment was passed and was maintained up to the Supreme Court. The petitioners were tenant of the respondent landlord paying rent at the rate of Rs. 270/- per month. The suit was decreed by the trial Court on 15-7-96. The first appeal was dismissed on 15-12-1998. Second Appeal was also dismissed by this court on 7-7-1999 and the Apex Court dismissed the Special Leave Petition on 6-3-2000. While passing the original decree the Court directed the Executing Court to assess the amount of mesne profits. Accordingly, the mesne profits were decided by the Executing Court by order dated 5-8-96 and it was directed that the present petitioner shall pay mesne profits to the respondents at the rate of Rs. 270/- per month. Against this order the landlord preferred an appeal but the said appeal was withdrawn and thus, the order dated 5-8-96 deciding the mesne profits has become final. Thereafter, the landlord filed an application under Section 151 of the Code of Civil Procedure on 2-2-2000. On this application, the Executing Court has directed that the petitioner tenant will pay compensation at the rate of Re. 1/per sq. ft. from 15-12-1998 till the date of possession. This order is under challenge in this revision.
3.It is pertinent to point out that the possession of the suit premises was handed over to the landlord on 7-9-2001 by executing the decree for ejectment.
4. Now the only question before this Court is whether the executing Court has jurisdiction to pass a direction for payment of compensation at the rate of Re. 1/- per sq. ft. per month.
5. Learned counsel for the petitioner submits that the question of mesne profit between the parties has already attained finality, as the appeal filed by the landlord against the order dated 5-8-96 was withdrawn by him and, therefore, the Court below has no jurisdiction to grant mesne profit exceeding Rs. 270/- per month. According to him, even though damages have been caused to the landlord by not vacating the suit premises, still the executing Court has no jurisdiction to pass an order granting compensation. The only, remedy open to the landlord was to file a separate suit or other proceedings and prove the amount of damages. The executing Court cannot go behind the decree and is bound to execute the decree as it is and in such a situation the impugned order, according to the counsel for the petitioner, is totally without jurisdiction and, therefore, it cannot be allowed to sustain. Moreover, the rate of compensation is arbitrarily fixed by the executing Court at the rate of Re. 1/- per sq. ft. without any enquiry.
6. From the facts of the case, it appears that the plaintiff/landlord has filed a suit for ejectment in the year 1969, which was decreed after the long litigation on 15-7-96. Thereafter, the tenant preferred a first appeal which was dismissed on 15-12-1998. On 13-1-1999 the petitioner-tenant gave an undertaking before the Court that he will vacate the suit premises and handover the peaceful possession of the same on or before 15-4-99, but in spite of the said undertaking the tenant did not vacate the premises and filed a Second Appeal before this Court and then Special Leave Petition to the Supreme Court. Not only that, an application under Order XXI, Rule 97 of the Code of Civil Procedure, which was registered as Case No. 100/99, was also filed by one third party resisting the execution of the decree. As per the finding of the Court below the said application was filed in collusion with the petitioner. At the same time one suit for declaration and injunction was also filed by the petitioner with the intention to delay the matter. This suit is also dismissed. The petitioner has committed a breach of undertaking given by him on 13-1-1999 by not vacating the premises by 15-4-1999. Considering these facts the executing Court has passed the impugned order, whereby the Court, directed the tenant to pay compensation to the landlord at the rate of Re. 1/- per sq. ft. per month.
7. The question before this Court is whether the Court below has jurisdiction to pass such order. The entire emphasis of the order is that the tenant has given a false undertaking and by giving a false undertaking, which was not fulfilled by him, the Court was misled by the said undertaking. The tenant instead of complying with the undertaking has filed Second Appeal and Special Leave Petition. He also got an application under Order XXI, Rule 97, CPC, filed in the Court at his instance and, therefore, he is liable to pay the compensation.
8. Shri N. K. Mody, learned counsel for the petitioner, vehemently argued that this order is totally without jurisdiction. He referred to number of judgments stating that the function of the executing Court is to execute the decree as framed. The order fixing mesne profits has already attained finality between the parties and, therefore, the Court could not have directed him to pay the amount of compensation. According to him, filing of the undertaking will not deprive him from prosecuting his legal rights. He, therefore, relied on the judgment of the Apex Court in the cases of P.R. Deshpande v. Maruti Balaram Haibatti, reported in AIR 1998 SC 2979 and, Jagdish Lal v. Parma Nand, reported in (2000) 5 SCC 44 : (AIR 2000 SC 1822), in which it has been held that filing of the undertaking does not deprive a party from filing the appeal to the higher Court. A party giving undertaking can prosecute his appeal and his appeal cannot be dismissed on that count and, therefore, in view of the said judgment, according to Shri Mody, the Court should not have passed an order granting compensation to the respondents.
9. It is true that filing of the affidavit does not deprive a party from filing an appeal to the higher Court. It is his right to challenge the orders by which he is aggrieved. The question of maintainability of the appeal is not there before this Court or was not there before the executing Court.
The question is whether a person, on his giving a false undertaking or does not honour his own undertaking which was filed by him in a way of undertaking, can be dealt with leniently or should be dealt with seriously.
10. In this case, it is clear that the tenant has given the undertaking on 13-1-1999 that he will vacate the premises by 15-4-1999 and in spite of the said undertaking he did not vacate the premises. Not only that even after the judgment of the Supreme Court on 6-3-2000 the possession of the premises was not handed over to the landlord. The possession was obtained by the landlord on 7-9-2001 by executing the decree through the Court. If the petitioner was honestly defending the case then it was expected from him to vacate the premises immediately after rejection of the Special Leave Petition but he has not done so. The record also shows that an application under Order XXI, Rule 97, CPC was filed at his instance. Thus the conduct of the petitioner is not that of an honest or bona fide litigant. He has misled the Court as well as the opposite party by giving a false undertaking and, in such circumstances, the Court below has rightly awarded the compensation.
11. As regards the question of jurisdiction is concerned, even though the order is without jurisdiction, the powers under Section 115, CPC, cannot be exercised in this case. The powers under Section 115, CPC are intended to be exercised with a view to subserve and not to defeat the ends of justice. Where the order of the Court below is in the interest of justice, the High Court can refuse to interfere under Section 115, CPC. even if the Court below has no jurisdiction to pass such an order. The interference in revision is discretionary and should be exercised only in the interest of justice and not in a case where interference is against the interest of justice. The order even if not regular may not be interfered with in revision if it is made irregularly or even improperly unless grave injustice or hardship would result from a failure to do so. Where the interference is likely to work not in the interest of justice but rather against it, the High Court will not interfere in its revisional jurisdiction. For this purpose, reliance is placed on a judgment in the case of Ramswaroop Raghuwardayal v. Mataprasad Prabhudayal, reported in AIR 1952 Madhya Bharat 8.In the light of the said judgment, this Court is not bound to interfere in each cases in which it is found that the subordinate Court has acted without jurisdiction. The conduct of the petitioner in the present case in giving false undertaking before the Court cannot be dealt with leniently. Hence, in spite of the fact that the order passed by the executing Court in awarding compensation is not strictly in accordance with law, this Court refuses to interfere with the said order.
12. However, looking to the fact that the petitioner has given the undertaking to the effect that he will vacate the premises and hand over the possession to the respondents by 15-4-1999, he is liable to pay the compensation from 15-4-99 till the date he has actually handed over the possession of the premises to the respondents, i.e. 7-9-2001, and to this extent the impugned order of the Court below is modified.
13. Thus, the revision is partly allowed and the impugned order is modified in the manner as indicated above. No order as to costs.