Usually, the appellate court, or sometimes the executing court, requires the tenant to pay compensation pending the appeal on the execution so that the appealed decree could be stayed. Lest the tenant should face a summary eviction. Here, the obstruction proceedings are deemed original proceedings. Had the Obstructor failed in those proceedings, in the appeal he would have been compelled to pay the compensation. True, here, he did fail. But now that judgment stands set aside, and the matter remanded. So, the parties have been relegated to their original position. Therefore, we cannot compel the Objector to pay compensation.{Para 66 }
Pending the original proceedings, which the obstruction proceedings are, the tenant or the occupier should pay only the admitted rent or license fee. Here, the Owner maintains that he has no privity of contract with the Obstructor. On the contrary, the Obstructor asserts that the consent terms, which had the judicial imprimatur, recognised him as an occupant.
69. The Obstructor has pleaded that he had been paying the rent to the tenant. But the fact remains that the tenant has defaulted in paying rent to the Owner. At least, until the High Court decides the eviction proceedings that is the judicial finding. When this Court wanted the tenant to pay the compensation or mesne profits as a condition-precedent for staying the decree of eviction, the Tenant remained unresponsive. That has paved the way for eviction proceedings. In this situation, the Obstructor cannot be heard saying that he has no obligation to pay rent to the Owner, for he cannot have the cake and eat it, too.
70. Therefore, it serves the interest of justice if the Obstructor pays to the Owner the admitted rent, regularly. As to the arrears if any, the Obstructor should pay the accumulated arrears from the date of obstruction proceedings. The arrears must be paid in three months from the date of first hearing before the Executing Court after the remand. If the Obstructor fails to pay the arrears or defaults on paying the regular rent, the owner may apply to the Executing Court to strike off the Obstructor's plea or defence. I also clarify that the Obstructor's paying the rent and the Owner's receiving that is without prejudice to their rival contentions in the proceedings. Otherwise, the impugned Order, dt. 28.02.2018 remains unaffected.
IN THE HIGH COURT OF BOMBAY
Writ Petition Nos. 5341 and 5342 of 2018
Decided On: 27.04.2020
Udyavara R. Acharya and Ors.Vs. Jugal Kishor Jagannath Sharda Zenith Co-operative Housing Society Ltd.
Hon'ble Judges/Coram:
Dama Seshadri Naidu, J.
Citation: MANU/MH/0539/2020
I. Introduction:
1. When the successful decree-holder takes out eviction proceedings and wants to evict the tenant, the occupier obstructs. That obstruction results in adjudication, and that adjudication favours the owner. Aggrieved, the obstructor appeals, and that appeal favours the obstructor. Then, the owner challenges: Writ Petition No. 5342 of 2018.
2. In fact, besides the obstruction petition, the trial Court also considers the owner's application for mesne profits and allows it. The Appellate Court, however, holds that the question of mesne profits is interlinked with that of possession; it refuses to affirm the trial Court's order. So, the landlord files the second writ petition: WP No. 5341 of 2018.
3. The owner maintains that the original tenant has breached the contract; therefore, the Obstructor, put in possession by the tenant, should take the consequences. He need not be heard independently. The Obstructor, conversely, asserts that his right is independent, and the eviction decree does not bind him; so he should be given an opportunity to vindicate his version. Whose plea should prevail? Let us see.
4. As both the Writ Petitions, to employ the appellate Court's expression, are interlinked, I have taken them up for consideration together.
II. Facts:
(a) First Round of Eviction:
5. The tenancy began in 1930. In 1969, Baliga, the original owner, sued Satyavathi Kapoor, the original tenant, for eviction. In September 1981, the suit ended in a compromise. As a part of the compromise, Satyavathi wrote a letter to Baliga admitting that she had divided the first floor of the leased property into 17 compartments and put others in possession of those compartments. She has given the names of those persons compartment-wise. Among those occupiers, Jugal Kishor Sharda, Sharda Impex Pvt., Ltd., and L. Ramachandran occupied Compartment Nos. 5, 5A, and 5B respectively. Satyavathi gave that letter "as part and parcel of the consent agreement." In that letter, Satyavathi has also requested Baliga not to mention in the suit the names of the occupants, "as it may create difficulties between them and [her]"
(b) Second Round of Eviction:
6. In 2001 the owner filed a suit--RAE & R Suit No. 1012/1743 of 2001--against the tenant (but not the occupiers) for ejectment. It was on these grounds: illegal subletting of the compartments; arrears of rent; illegal alterations; bonafide requirement. On 7 February 2007, the trial Court decreed the suit. The original tenant filed Appeal No. 204 of 2007. That was dismissed. Ultimately the original tenant filed Writ petition No. 1812 of 2009 before this Court. Though the Writ petition was admitted. Then, the owner filed Civil Application No. 840 of 2009 for interim compensation.
7. On 7 February 2007, in the application for interim compensation, this Court fixed the amount. And the tenant's paying that amount was made the precondition for the stay in the Writ petition. Against this conditional order of stay, the original tenant filed Special Leave Petition No. 17928 of 2012 before the Supreme Court but could not succeed. As the tenant did not comply with the conditional order of stay, the owner filed Execution Application No. 354/2012, seeking recovery of possession under Order 21, Rule 35 of CPC.
(c) Execution Proceedings - WP No. 5342 of 2018:
8. When the Owner wanted to execute the warrant of possession, a few occupants resisted his efforts. In fact, Jugal Kishor Sharda, the respondent, along with five others, obstructed. Those Obstructors themselves invoked Order 21, Rule 97 of CPC. Eventually, all the six Obstructors filed exhibit 14 of 2012 before the Execution Court under Order 21, Rule 97 of CPC. That Court rejected the obstruction application, through its order, dated 30th January 2016. Further aggrieved, only Jugal Kishor Sharda appealed.
9. That is, Jugal Kishor, one of the Obstructors, filed Appeal No. 112 of 2016 before the Appellate Bench of the Small Cause Court. That Bench, through its order dated 28th February 2018, allowed the appeal and remanded the matter to the Executing Court. In fact, the Appellate Bench wanted the Executing Court to examine a few issues which it felt to be material for determining the owner's right to execute the decree he secured. Thus, questioning the Appellate Bench's order, the owner filed Writ Petition No. 5342 of 2018.
(d) Mesne Profits - WP No. 5341 of 2018:
10. Along with the execution petition, the landlord also applied for mesne profits: exhibits 38 and 151 of 2012. Once they were allowed, Jugal Kishor filed Appeal No. 243 of 2016. The Appellate Bench allowed Jugal Kishor's appeal. It has held that the issue has to be decided only in consequence to the eviction and possession. That has given rise to the owner's Writ Petition No. 5341 of 2018.
(e) Nomenclature:
11. Now neither the original owner nor the original tenant survives; their legal representatives have been carrying on the litigation. But for clarity's sake, we will refer to the two successors of the landlord simply "the Owner", the successors of the tenant simply "the Tenant", and Jugal Kishor, "the Obstructor."
III. Submissions:
Petitioner:
12. Dr. Birendra Saraf, the learned counsel for the petitioner-owner, has strenuously contended that the Obstructor is one of the occupants as recognized in the terms of compromise filed in 1969. To be precise, he was occupying Compartment No. 5, with sub-divisions of 5A, and 5B. According to Dr. Saraf, admittedly the Obstructor has exclusively possessed Compartment No. 5, but not 5A and 5B. To elaborate, he has submitted that 5A is with a company, and 5B with one L. Ramachandra, neither has anything to do with the Obstructor.
13. Taking me through the record, Dr. Saraf has further submitted that contrary to the compromise terms of 1969, the Obstructor came into possession of compartment once held by L. Ramachandra--5B. Besides, the company that held 5A was taken over by some others. That means, even 5A too has changed hands. According to Dr. Saraf, all this happened without the Owner's prior consent. So, he contends that the Tenant has violated the compromise terms and provided the Owner with a cause of action to seek eviction of the Tenant who had violated the compromise terms.
14. Dr. Saraf has also submitted that all the occupants, including the Obstructor, have no independent tenancy. Only for this reason did the trial Court and the appellate Bench reject the Tenant's objection about the non-joinder of the occupants as the necessary parties. True, that issue has been pending before this High Court in the writ petition filed by the Tenant.
15. On the issue whether the Obstructor has any independent claim to possession or locus to obstruct the execution proceedings, Dr. Saraf submits there has been no privity of contract between the Owner and the Obstructor. He has also submitted that the Obstructor himself deposed as a witness for the Tenant in the suit; thus, he knew of the eviction proceedings.
16. In addition, Dr. Saraf has stressed that the Obstructor has been paying rent to the Tenant, but not to the Owner. Thus, viewed from any perspective, the Obstructor, according to Dr. Saraf, has neither a right to obstruct nor locus to maintain the obstruction proceedings under Order 21 Rule 97 of CPC.
17. Then Dr. Saraf has drawn my attention to Section 15A of Bombay Rent, Hotel and Lodging Control Act, 1947 ("the Bombay Rent Act") and Sections 25 and 26 of Maharashtra Rent Control Act ("the MRC Act"). Elaborating on them, he has submitted that Section 25 of the MRC Act has two limbs, and under both the limbs the tenancy must have been subsisting as on the date the Act came into force: March 2000. Otherwise, deeming provision cannot be taken advantage of. In the alternative, Dr Saraf has also argued that the Obstructor cannot be termed a sub-tenant. Even in the compromise terms of 1969, he was only recognized as an occupant. Thus, he could be called neither a licensee under Section 15A of the Bombay Rent Act nor a subtenant under Section 25 of the MRC Act.
18. In the end, Dr. Saraf has submitted that to make use of any beneficial legislative measures, the Obstructor ought to have established before the Courts below that there is a contract in terms of Section 26 of the MRC Act. There is no such contract here. So, he wants the impugned orders set aside. To support his contentions, Dr. Saraf has relied on these decisions: Balvant N. Viswamitra v. Yadav Sadashiv Mule[MANU/SC/0625/2004 : (2004) 8 SCC 706], Kanaklata Das v. Naba Kumar Das[MANU/SC/0041/2018 : (2018) 2 SCC 352], Silverline Forum Pvt. Ltd. v. Rajiv Trust[ MANU/SC/0252/1998 : (1998) 3 SCC 723], M/s. Importers and Manufacturers Ltd., v. Pheroze Framroze Taraporewala[MANU/SC/0071/1952 : AIR 1953 SC 73], Bindichand Hiralal Bhandari v. Sadashiv Borbhade[MANU/MH/0089/1972 : AIR 1972 Bombay 232], Jaswantari Tricumlal Vyas v. Bai Jiwi[MANU/MH/0156/1957 : 59 Bombay Law Reporter 168]; Babulal v. Rajkumar,[MANU/SC/0507/1996 : AIR 1996 SC 2050] Noorduddin v. Dr. K.L. Anand[MANU/SC/0533/1995 : (1995) 1 SCC 242], Shreenath v. Rajesh[MANU/SC/0286/1998 : 1998 (3) All Mr. 213]; Chandrakant Dhanu v. Shamil Kapoor[MANU/MH/0010/2009 : 2009 Bom. CR 698], and Central Bank of India v. Anil Puranmal Bansal[MANU/MH/0234/2016 : 2016 (3) Bom. CR 642].
Respondent:
19. Ms. C.S. Savitri, the learned counsel for the respondent, with equal precision, has submitted that the judgment of the Appellate Bench of the Small Cause Court is unassailable. After taking me through the record, she has contended that the Obstructor has nothing to do with the eviction proceedings. And, so, the decree does not bind him. His testifying as a witness in that suit, according to her, does not affect his independent rights. Ms. Savitri has also pointed out that even in the ejectment suit, neither the trial Court nor the Appellate Court has returned any adverse findings against the Obstructor.
20. Ms. Savitri has taken pains to explain the impact of Section 25 of the MRC Act on the rights the Obstructor has enjoyed as an occupant. The Executing Court, she stresses, has misdirected itself in holding that decree binds the Obstructor and that he could have no independent defence. In fact, Ms. Savitri has drawn my attention to the consent terms and the letter the Tenant addressed to the Owner. Both illustrate how those sublessees have been treated as occupants. She points out that the Executing Court has totally disregarded the statutory impact on the Obstructor's rights, nor has it allowed the Obstructor to lead evidence. Ms. Savitri has also explained how Compartment No. 5 has been further divided and how a company changing hands does not amount to creating further subtenancy. In the end, she has relied on most of the decisions the petitioners have relied on. According to her, those decisions, in fact, help the Obstructor. Besides, she has also relied on these decisions: Tangerine Electronics Systems Pvt. Ltd. v. Indian Chemicals [MANU/MH/0013/2004 : 2004 Mh. LJ 305], and Gordhandas Lalchand v. Kubchand Tirthdas Tailor [MANU/MH/0390/2004 : 2005 (1) Mh. LJ 396].
IV. Discussion:
WP No. 5342 of 2018:
A. The Factual and Procedural Settings:
(a) Case Confined to One Obstructor:
21. The Owner secured a decree of ejectment against the Tenant. When he put it to execution, a few occupants obstructed the execution, for none of them was a party to the decree sought to be executed. They invoked Order 21, Rule 97 CPC and filed objections. The Executing Court rejected the occupiers' objections and ordered eviction. Against that judgment, only Jugal Kishor, the Obstructor, has appealed to the Appellate Bench of the Small Cause Court. The Appellate Bench allowed the Misc. Appeal and remanded the matter.
22. And against the Appellate Bench's judgment invited by the Obstructor, the Owner has filed WP No. 5342 of 2018. As to the other Obstructors, the Executing Court's judgment, erroneous it may have been, has become final. As a result, we need to examine the dispute between the Owner and the sole Obstructor. No one else.
(b) The Rival Contentions:
23. As we have already set out, the Obstructor maintains that he has an independent right to occupy compartment No. 5, with its subdivisions, in his own right. To justify this, he relies on the terms of compromise between the landlord and the tenant in 1981. According to him, first, his name finds a place in the list of occupiers the tenant supplied to the landlord; second, he has not violated the compromise. Finally, he has also maintained that the decree does not bind him for it was not a party to it.
24. But the Owner asserted that the so-called compromise between him and the Tenant could not benefit the Obstructor. First, the terms of tenancy barred subletting; second, the occupiers had no privity of contract with the Owner; third, no subletting had been ratified by the Owner; four, the Executing Court cannot go behind the decree; five, once there is a violation of the consent terms, the contract based on that consent has become void; six, some of the Obstructors themselves gave evidence in the suit between the Owner and the Tenant and, thus knew of the eviction proceedings; and seven, the trial Court and the Appellate Court concurrently disbelieved the occupants' evidence about either their occupation or the legitimacy of their occupation.
(d) The Findings of the Executing Court:
25. (1) In the eviction suit, the trial Court framed a specific issue whether subletting was legal. It returned a negative finding, however.
(2) In the eviction suit, the landlord successfully proved that the consent terms were violated. As the eviction concerns the entire first floor, one of many occupiers not violating the terms is of no consequence. That particular portion "cannot be separated from the subject matter of the decree".
(3) The trial Court and the Appellate Court have concurrently held that the occupiers are not necessary parties.
(4) Even if the occupants were accepted as the subtenants, the subletting had already been declared illegal.
(5) Adjudication under Order XXI, Rule 97 (2) of CPC need not be elaborate, nor does it involve collection of evidence.
(6) "There is no necessity to permit any evidence in respect of the objections".
(7) The Obstructors have already led evidence as witnesses in the eviction suit, and that would suffice.
(8) There is no privity of contract between the landlord and the occupiers; if they were subtenants, the occupants are bound by the decree the principal tenant suffered.
(e) The Findings of The Appellate Court:
26. (1) In the suit between the landlord and the tenant, or in the appeal arising out of that suit, there was no adverse finding against the Obstructor.
(2) In the suit, the Obstructor deposed as a witness and established that he had been an occupant before the date of compromise.
(3) The Executing Court has not recorded the facts correctly (para 22)
(4) In the light of the statutory rights the Obstructor claimed, the Executing Court ought to have allowed him to lead evidence (para 25)
(5) The Executing Court has not discussed the statutory impact on the dispute raised by the Obstructor.
(6) The Executing Court has erroneously held that "opportunity was granted when they led oral evidence as a witness in the suit."
(7) The Obstructors could establish and substantiate the claim of independent right, title and interest of the property only when they were given a proper opportunity.
(8) The Executing Court could not have concluded that "the said compartment is illegally sublet to" the Obstructor.
(9) The Executing Court must decide the Obstructor's claim independently, otherwise the provisions under order XXI, rule 97 of CPC would become redundant.
(10) The Executing Court in para 30 recorded an erroneous finding the objectors produced no written consent from the Owner before the trial Court. But it is contrary to the record. (Para 31)
(11) An opportunity to the Obstructor to be a witness in the suit between the landlord and the tenant would not amount to sufficient opportunity for him to prove his rights under order XXI, rule 97 of CPC.
(f) The Result:
27. The Appellate Bench of the Small Cause Court set aside the Executing Court's judgment, dated 30 January 2016. Consequently, it has directed the Executing Court "to hear the application Exh. 14 afresh by granting a due opportunity to the parties in view of the observations made above in the judgment and decide the rights of the Obstructors, if any and decide the application as early as possible."
B. The Application of Law to the Facts:
(a) The Substantive Law:
28. Before the enactment of MRC Act, the now-repealed Bombay Rent Act had been regulating the rent control activities in the State of Maharashtra. Section 15A of that Act reads:
15A. Certain licencee in occupation on 1st February 1973 to become tenants. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licencee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.
(2) The provisions of Sub-section (1) shall not affect in any manner the operation of Sub-section (1) of Section 15 after the date aforesaid.
29. After the repeal of the 1947 Act, the regnant regulatory regime is the MRC Act. Both the parties have repeatedly referred to Sections 25 and 26 of that Act. They deal with "sub-tenancies and other matters concerning tenancies" and read:
25. Certain sub-tenants to become tenants on determination of tenancy:
When the interest of a tenant of any premises is determined for any reason, any subtenant to whom the premises or any part thereof have been lawfully sub-let and such subtenancy is subsisting on the date of commencement of this Act or where sub-tenancy is permitted by a contract between the landlord and the tenant, such sub-tenant shall, subject to the provisions of this Act, be deemed to become the tenant of his landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.
26. In the absence of contract tenant not to sub-let or transfer or give on licence.
Notwithstanding anything contained in any law for the time being in force, but subject to any contract to the contrary, it shall not be lawful for any tenant to sub-let or give on licence the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:
Provided that, the State Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases any premises or class of premises other than those let for business, trade or storage to such extent as may be specified in the notification.
(b) Execution: An Overview:
30. To begin with, Sections 36 to 47 and Order 21 of CPC concern 'execution.' Section 54 of CPC deals with the "powers of Court to enforce execution.". Section 47, a pivotal provision, enables the executing court to determine all questions arising between the parties to the suit in which the decree was passed, or their representatives, "and relating to the execution, discharge or satisfaction of the decree." It should not be by a separate suit. Indeed, if a question arises "whether any person is a representative of the party to the suit, that question, too, falls within the mischief of Section 47. As Explanation II to Section 47 clarifies, "all questions relating to the delivery of possession" of the suit property to the purchaser (in the execution) or his representative must also be treated as questions of "execution, discharge or satisfaction of the decree."
31. C.K. Thakker's Code of Civil Procedure [1] admirably adumbrates the scheme of obstruction and the resultant adjudication. Rule 97 of Order 21 CPC enables the decree-holder or auction-purchaser to apply to the executing court "if he is resisted or obstructed in obtaining possession" of the property by "any person". On receipt of such application, the court proceeds to adjudicate it. Rule 101 requires the court to make a full-fledged inquiry and determine all questions relating to right, title, and interest in the property arising between the parties to the proceeding or their representatives. The court will then, under Rule 98, pass an order upon such adjudication. Rule 99 permits any other dispossessed person than the judgment-debtor to apply to the executing court complaining of such dispossession. The court, then, proceeds to adjudicate it (Rule 100). Rule 103 declares that an order passed under Rule 98 or 100 would be a deemed decree. Rule 104 saves the pending proceedings, though. Rule 102, on the other hand, clarifies that Rules 98 and 100 do not apply to transferee pendente lite (as the doctrine of lis pendens applies to such cases) [2].
32. Rules 97 to 106 of Order 21 CPC, as the learned author notes, are in the nature of 'complete code' dealing with all issues relating to resistance or obstruction to delivery of possession to decree-holders or auction-purchasers[2].
33. As to the framing of issues, the Supreme Court has held in N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd.[ MANU/SC/0743/2001 : (2002) 1 SCC 662], it is not obligatory for the executing court to frame issues because the proceedings under Rule 97 of Order 21 are miscellaneous. And failure to do so would not vitiate the proceedings. It is, however, always regarded advisable for the court to frame issues or to draw up points for determination so as to enable the parties to have knowledge about the controversy, particularly, after the Amendment Act, 1976. The proceedings under Rules 97 to 101 of Order 21, as held by the Supreme Court in H. Sheshadri v. K.R. Natarajan[MANU/SC/0302/2003 : (2003) 10 SCC 487], partake the nature of a suit and all questions relating to right, title, and interest in the property arising between the parties are to be determined by the executing court.
34. That is, Rule 101 of Order 21 expressly states that all questions arising between the parties or their representatives in an application under Rule 97 or 99 should be determined by the executing court "and not by a separate suit". A suit, therefore, is not maintainable. Pithily put, an application under Rule 97 or 99 has to be dealt with like a suit [3].
(c) The Specific Scheme:
35. Here, before moving on, we may notice that all questions relating to the execution, discharge, or satisfaction of the decree "between or among the parties to the suit or their representatives" fall under Section 47 of CPC. But if the same questions are raised by a third party, then the provision is Rule 58 of Order 21 of CPC. In either case, there ought to be a full-fledged inquiry, as if it were original proceedings. In fact, adjudication of claims in execution proceedings rises at different stages. One such provision is Order 21, Rule 97 of CPC.
36. We need to examine Order 21, Rule 97 in conjunction with Rule 35 of the same Order. Rule 35 reads:
"35. Decree for immovable property - (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2). ..
(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
(italics added)
37. Indeed, under Order 21 Rule 35, for the executing court to remove a person in occupation, that person must be "bound by the decree". Here, the Obstructor maintains he is not bound by the decree. So, as the Obstructor contends, only those bound by the decree should fall within the mischief of Order 21, Rule 35 of CPC. Faced with obstruction, the decree-holder invokes Order 21, Rule 97 of CPC; indeed, as precedentially established, this provision can be invoked by even the obstructor, as is the case here. It pays to examine Rule 97, which reads:
97. Resistance or obstruction to possession of immovable property--
(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
38. Analysed, the provision reveals that during execution, a holder of a decree for possession, or a purchaser of the property in execution may face resistance and obstruction from third parties. The obstructor will have an obvious defence that he possesses the property and that the decree does not bind him. Then, the decree-holder or the purchaser may apply to the executing court complaining of such resistance or obstruction.
39. Rule 98 elaborates on "Orders after adjudication." On the lines of Section 47 and Rule 58 of Order 21, Rule 101 requires the executing Court to decide all questions arising between the parties. As Rule 103 indicates, the adjudication under Rule 98 or 100 is akin to original proceedings. And the orders are to be treated as decrees. So it pays to extract Rule 101, too:
101. Questions to be determined:
All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
(d) What is the Scope of Inquiry in an Obstruction Application:
40. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [ MANU/SC/0191/1997 : AIR 1997 SC 856], the Supreme Court has examined the cumulative effect of Order 21, Rules 97, 98, 99 and 101 of CPC. It has, then, held that if "the decree-holder is resisted or obstructed in execution of the decree for possession", he has to apply to the Executing Court under Order XXI, Rule 97 for removal of that obstruction. Then, after hearing the decree-holder and the obstructor, the Court can pass appropriate orders. Obviously, if the obstruction lacks a just cause, the Executing Court orders its removal; thus, the obstruction fails. On the other hand, if the Executing Court finds that the decree does not bind the obstructor, the execution fails. In either event, "the order passed would be treated as a decree under Order XXI, Rule 101, and no separate suit would lie against such order."
41. In Noorduddin, the Supreme Court has held that adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court, or miscarriage of justice. In the end, Noorduddin holds that adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to finality of the adjudication of the right, title or interest in the immovable property under execution.
42. On fact, Noorduddin notes that the appellant was not a party to the decree, but he was sought to be evicted under that decree. In that context, it has held that when the appellant has been claiming right, title, and interest over the suit property, from which he is sought to be dispossessed in the execution of the decree, "the executing court necessarily has to go into the question whether the appellant has any independent right over the property.
43. Now, let us examine Babulal. In an ejectment suit, the owner secured a decree and put it to execution. In execution, the person in possession of the leased property objected to eviction. He was not a party to the suit. But the executing court disregarded the occupier's objection. As he had not been dispossessed yet, it felt Order 21, Rule 97 of CPC would not apply. In Babulal, the Supreme Court has held that the Obstructor must be heard; his actual dispossession is not a precondition. The procedure prescribed, the Court further noted, is a complete code in itself. Therefore, the executing court is required to determine the question about the Obstructor's justification to defy the decree and stay in possession.
44. According to Shreenath, Order 21, Rule 99 of CPC conceives of resistance or obstruction by "any person" to the possession of an immovable property in execution of a decree. A decree holder, in such case, should apply to the executing court, complaining of such resistance and for delivery of possession of the property. Then, under Order 21, Rule 101 of CPC, the executing court decides all questions relating to the Obstructor's right, title, or interest in the property. The expression " any person " under sub-clause (1) is used deliberately, Shreenath holds, for widening the power of the Executing Court. After investigation under Rule 98 of Order 21, the executing court will put the decree-holder back in possession if it finds that the obstruction is without any just cause. On the contrary, if it finds the obstruction valid, the executing court dismisses the execution.
(e) Is Recording of Evidence Necessary in Obstruction Application?
45. Let us not forget that the obstruction proceedings are deemed to be original proceedings. The application under Order 21, Rule 97 CPC stands governed by a legal fiction. The obstruction must be tried as if it were a suit between the decree-holder and the obstructor concerning the immovable property which is the subject of decree sought to be executed. Post-1976 Amendment to CPC, the obstructor has no option of filing a separate suit.
46. In Silverline Forum, the owner let out the property. With the owner's leave, the tenant subleased the property. Again, that sublessee further sublet the property. Here, in the ejectment suit, the subtenants were not made parties. So, the second subtenant obstructed the execution. True, West Bengal Premises Tenancy Act permitted subtenancy but subject to certain procedural safeguards, but the tenant has not adhered to them. Even with the owner's consent, there can be only one subtenancy--not a succession of them. In this context, the Supreme Court has held that when a decree-holder complains of resistance to the execution of a decree, it is incumbent on the execution court to adjudicate upon it. But while adjudicating, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must relate to the adjudication.
47. Silverline Forum has stressed that the words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court does not have to determine a question merely because the resistor raised it. Succinctly stated, it is necessary that the questions raised by the resistor or the Obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resistor or Obstructor legally arises between the parties. That is, the executing court can decide whether the resistor or Obstructor is a person bound by the decree, and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. In this context, it has held that
The adjudication mentioned therein need not necessarily involve a 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.
48. In this context, we may refer to Para 435 of Bombay High Court Civil Manual. Under Chapter XXI, appropriately, dealing with Execution of Decrees, Para 435 requires the Executing Court to frame issues, to take evidence, and to deliver judgment in any dispute arising during the execution proceedings. The Paragraph reads:
345. When the dispute arise in the course of execution proceedings, the provisions as to suits, unless inapplicable, should be followed. In such cases, issues must be framed, evidence taken and judgment written according to the law applicable to the suits.
49. Before we answer the question about the need to record evidence, we must accept that the Executing Court, too, has felt that it was necessary. But it dissuaded itself from letting the parties lead evidence. On that count, it has suffered from certain legal fallacies. Let us examine them.
(f) The Fallacies the Executing Court's Order Suffered From:
(a) The trial Court and the Appellate Court in the eviction suit between the landlord and the tenant have concurrently found against the Obstructor:
50. The Executing Court has heavily relied on the findings--concurrent ones, at that--in the ejectment suit. But to those ejectment proceedings, then Obstructor is not a party. It has held that the issue of subtenancy or, to be precise, its legitimacy went against the Obstructor. Again, we cannot be oblivious that no finding in the suit, to which the Obstructor is not a party, binds him. When the Obstructor raised a dispute, the Executing Court ought to have adjudicated that dispute as if it were a suit by its own right. It should not have imported the findings from the ejectment suit, where the Obstructor had no say. True, the Obstructor testified in that suit as a witness; he deposed for the tenant --not for himself. That is, he deposed as a mere witness but not as a party to the proceedings. In any judicial proceedings, a party may examine witnesses of his choice. The depositions of those third-party witnesses may help his plea or harm it. But the eventual findings affect the witnesses in the least--much less does the decree bind those witnesses. At best, in any other proceeding involving any witness, his earlier deposition may come in his way as an aspect of estoppel. Nothing more.
(b) The Executing Court has harped on the point that in the eviction suit, the Obstructor had already been declared not to be a necessary party:
51. True, in Kanaklata Das, the Supreme Court has summarised the well-settled principles of law in ejectment suits. First, the landlord and tenant alone are the necessary parties. In other words, in a tenancy suit, only two persons are necessary for the court to decide the dispute: the landlord and the tenant. Second, the landlord should plead and prove only two things--that there exists a relationship of the landlord and tenant between them and that the grounds of eviction are legally valid. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. For, even if the landlord fails to prove his title to the leased property but proves the landlord and tenant relationship between them, besides a valid ground for eviction, that suffices. Conversely, if the landlord proves his title to the suit premises but fails to prove the relationship of the landlord and tenant, the eviction suit fails. Fourth, the Plaintiff, a dominus litis, cannot be compelled to make any third person a party to the suit, be that as a Plaintiff or as a Defendant. Of course, that third party can prove before the court that he is a necessary party to the suit. Then, the principle of dominus litis does not prevail. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. And sixth, if there are co-owners or co-landlords of the suit premises, then any co-owner or co-landlord can sue the tenant. In other words, it is unnecessary that all the owners/landlords should join in filing the eviction suit against the tenant.
52. In Kanaklata Das, as we notice the facts, a third party applied Order 1 Rule 10(2) of CPC in an ejectment suit. He wanted to implead himself in the suit as a co-plaintiff. For this, he alleged that he is a member of the landlords' family and asserted that he had a title to and interest in not only the suit premises but also the other family properties, as one of the co-owners. Affirming the trial Court's view, the Supreme Court has, first, held that the alleged co-owner is not a necessary party. Second, it has, however, declared that any finding by the trial Court touching on the title to the property does not affect that alleged co-owner's rights.
53. Here, I am afraid, Kanaklata Das does not apply. In the obstruction proceedings there ought to have been a full-fledged inquiry, with the parties placing their oral and documentary evidence on record. And, then, a finding whether the decree against the tenant binds the Obstructor, too, must have been arrived at. The Executing Court ought to have examined the impact of Section 15A of the Bombay Act or Section 25 of MRC Act, whichever is applicable. This examination essentially required the parties to lead evidence, as well. Once we have kept aside the decree, to which the Obstructor was not a party, the obstruction application required independent adjudication. And that adjudication could not have been summary; rather, it must have been comprehensive and dispositive. After a full-fledged inquiry if the Executing Court had held that the Obstructor was bound by the decree, it would have been a different ball game.
54. At any rate, whether the Obstructor was a necessary party to the ejectment suit is out of bounds for me. This Court in the connected, if we may say so, proceedings between the landlord and tenant has already been seized of this issue. Parallel adjudication by co-equal Benches is impermissible.
55. That said, we may note a couple of aspects. A person is either a necessary party to the proceedings or an outsider. If he is a necessary party, it is for the plaintiff to bring him on record. On the contrary, if the plaintiff persists with the suit without the necessary party, he suffers two legal consequences: One, the suit may get dismissed for non-joinder of the necessary party; the other, the judgment, if passed, does not bind that necessary party who had not been brought on record.
56. In Pheroze Framroze Taraporewala, the Supreme Court has, among other issues, dealt with who should be treated as a necessary party in an eviction suit. According to it, under the ordinary law, a decree for ejectment binds a person claiming title under or through the tenant whether or not he was a party to the suit. The non-joinder of such a person, Pheroze Framroze Taraporewala stresses, does not render the decree any the less binding on him. That said, it has further held that "such a person is, nevertheless, a proper party to the suit." First, the sub-tenant may be a "proper party"; second, his presence enables the court to ascertain whether the lease "has been properly determined" and whether there is any collusion between the landlord and the tenant. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. Thus concludes Pheroze Framroze Taraporewala.
57. In Balvant N. Viswamtra, third parties obstructed execution. They contended that they had been in possession of the property; in their absence, the decree the landlord secured suffered the vice of non-joinder of a necessary party. On facts, it was noted that the respondents did not claim to be the tenants, nor did they trace their possession through the original tenant. So there was no privity of contract between the landlord and the respondents. In that context, Balvant N. Viswamitra has held that respondents cannot be said to be "necessary party" to the proceedings.
58. All is said and done, it is for the plaintiff, the dominus litis, to bring on record the necessary or proper party. The knowledge about the pending suit or even his appearing as a witness in that suit puts him to no prejudice. The decree does not bind him. Prudence cautions all persons not to get embroiled in litigation if they can avoid it; meeting the trouble halfway is no valour.
59. Here, the landlord has maintained that there is no privity of contract between him and the Obstructor. No sub-tenancy was admitted. As the Obstructor was not a party to the ejectment suit, the Executing Court had a compelling reason to examine independently the issues the Obstructor raised. At any rate, the Executing Court conjecturally considered what would have happened if the Obstructor had been treated as a subtenant. According to it, the subletting has already been declared illegal. But that decision was in another suit which has not involved the Obstructor. That finding could have been, if ever possible, rendered in the obstruction application. For that, the Executing Court should have examined the statutory position--after a full-fledged inquiry, at that. As a matter of precedent, Bindichand Hiralal Bhandari and Jaswantari Tricumlal Vyas elaborate on this point.
(c) No elaborate inquiry was needed.
60. For this conclusion, the Executing Court reasons that some of the obstructors had already been examined as witnesses in the ejectment suit. This, again, is fallacious. As we have already discussed elaborately, the Objector as a witness stands on a different footing.
Conclusion in WP No. 5342 of 2018:
61. First, we should bear in mind that the owners want this Court to exercise its supervisory jurisdiction under Article 227 of the Constitution. Suffice to note the supervisory jurisdiction is no appellate jurisdiction in disguise. Pure and simple, the Constitutional command to a High Court is to ensure that the courts, tribunals, and all other judicial and quasi-judicial bodies in its territorial limits function within their jurisdictional limits; put conversely, to ensure that they do not transgress their adjudicatory limits. This jurisdiction does not involve adjudication on the merits. As pointed by a Constitution Bench of the Supreme Court in Waryam Singh v. Amarnath[MANU/SC/0121/1954 : AIR 1954 SC 215], this power of superintendence is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.
62. That is, as the Supreme Court has held in Mani Nariman Daruwala @ Bharucha v. V. Phiroz N. Bhatena[MANU/SC/0591/1991 : (1991) 3 SCC 141] in the exercise of its jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the Court or tribunal has come to. "Except to this 'limited extent' the High Court has no jurisdiction to interfere with the findings of fact."
63. Here, the Appellate Bench of the Small Cause Court has, with reasons, held that the Executing Court ought to have conducted a full-fledged inquiry into the issues raised by the obstructor and inquiry includes letting the parties lead evidence, too. That conclusion, to my mind, is unassailable. So I conclude that this writ petition has failed.
64. Nevertheless, I notice that the Appellate Bench of the Small Cause Court, as has this Court now incidentally done, adverted to the merits of the matter in certain aspects. They are, perhaps, to put the issue in perspective and to articulate on what aspects the Executing Court has erred. That said, as the Appellate Bench has set aside the Executing Court's judgment, dt. 28.02.2018, and remanded the matter for fresh adjudication, no observations made by either the Appellate Bench of the Small Cause Court or by this Court shall influence, much less bind, the Executing Court. It will decide the matter afresh, as the observation goes, uninfluenced by those observations.
WP No. 5341 of 2018:
65. The owner wants the Court to set aside the impugned order, dt. 28.02.2018, in Misc. Appeal No. 243 of 2016, passed by the appellate bench of the small cause court. Consequently, the owner also wants the court to confirm the order, dated 2 May 2016, passed by the executing court in EA No. 354 of 2012. As the record reveals, the executing court directed the obstructor to pay to the owner compensation for compartment No. 5, at ` 41 per square foot, from 7 February 2007. The total extent is 250 sq. ft.
66. Usually, the appellate court, or sometimes the executing court, requires the tenant to pay compensation pending the appeal on the execution so that the appealed decree could be stayed. Lest the tenant should face a summary eviction. Here, the obstruction proceedings are deemed original proceedings. Had the Obstructor failed in those proceedings, in the appeal he would have been compelled to pay the compensation. True, here, he did fail. But now that judgment stands set aside, and the matter remanded. So, the parties have been relegated to their original position. Therefore, we cannot compel the Objector to pay compensation.
67. In paragraph No. 43 of the impugned judgment, the Appellate Bench of the Small Cause Court has observed thus:
"The Executing Court will require to decide whether it can pass order in respect of mesne profits against the Appellant who were lawful subtenant and paying rent to the original tenant their status as a protected tenant, if any. It will also require to decide than anyone and what could be the effect of withdrawal of application for making profits against original tenant without liberty and whether the obstructionists if found in unlawful possession they are entitled to be heard on quantum of mesne profits. All these issues and other relevant issues require adjudication."
68. First, we are not concerned with the dispute about the mesne profits between the Owner and the Tenant. This Court has already been seized of that issue in WP No. 1812 of 2009. Second, pending the original proceedings, which the obstruction proceedings are, the tenant or the occupier should pay only the admitted rent or license fee. Here, the Owner maintains that he has no privity of contract with the Obstructor. On the contrary, the Obstructor asserts that the consent terms, which had the judicial imprimatur, recognised him as an occupant.
69. The Obstructor has pleaded that he had been paying the rent to the tenant. But the fact remains that the tenant has defaulted in paying rent to the Owner. At least, until the High Court decides the eviction proceedings that is the judicial finding. When this Court wanted the tenant to pay the compensation or mesne profits as a condition-precedent for staying the decree of eviction, the Tenant remained unresponsive. That has paved the way for eviction proceedings. In this situation, the Obstructor cannot be heard saying that he has no obligation to pay rent to the Owner, for he cannot have the cake and eat it, too.
70. Therefore, it serves the interest of justice if the Obstructor pays to the Owner the admitted rent, regularly. As to the arrears if any, the Obstructor should pay the accumulated arrears from the date of obstruction proceedings. The arrears must be paid in three months from the date of first hearing before the Executing Court after the remand. If the Obstructor fails to pay the arrears or defaults on paying the regular rent, the owner may apply to the Executing Court to strike off the Obstructor's plea or defence. I also clarify that the Obstructor's paying the rent and the Owner's receiving that is without prejudice to their rival contentions in the proceedings. Otherwise, the impugned Order, dt. 28.02.2018 remains unaffected.
Result:
Subject to the above observations and directions, the Court dismisses both the writ petitions. No order on costs.
1C.K. Thakker's Code of Civil Procedure (Vol. 4), pp. 1333, 34
2Id.
3N.S.S. Narayana Sarma (supra)
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