Anil Badola vs Yogendra Kumar

Umesh Chandra Dhyani, J.—By way of present modification application (MCC no. 350/2014), the defendant-revisionist seeks to modify the judgment and order dated 06.03.2013 passed by this Court in Civil Revision no. 21/2013 giving liberty to the applicant-defendant to file objection u/s 47 CPC before the executing court in Execution no. 1/2013 captioned as "Yogendra Kumar & others vs. Anil Badola" on the point of jurisdiction of the Small Cause Courts to entertain the SCC suit no. 7/2007 for eviction of the present applicant-revisionist from nazul property.

It is the contention of learned counsel for the applicant that the property in question is a nazul property and lease deed of this property in the name of Kashmiri Lal is doubtful in the absence of any rightful lease deed. Even if it be conceded for the sake of arguments that any lease deed of this nazul land was executed in the name of Kashmiri Lal, then the same was too not renewed after 1994. The plaintiff is neither the lease holder nor the owner of the property in question. Learned counsel for the revisionist argued that the jurisdiction of eviction from the nazul land vests with the State Government only, to the Prescribed Authority under the Public Premises (Eviction of Unauthorised Occupants) Act, but not to the Small Cause Courts or to any other civil court. The plaintiffs, after concealing the true facts and playing fraud upon the SCC court, have obtained a decree for eviction from the nazul property after filing SCC suit. Hence, according to learned counsel, the judgment and order dated 14.01.2013 passed by the Judge, SCC/Addl. District Judge, Kotdwar, Garhwal is without jurisdiction and is void ab initio.

Citing the judgment of Hon''ble Apex Court''s judgment in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, learned counsel for the applicant/revisionist pleaded that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law.

Referring to another judgment of Hon''ble Apex Court in Sarwan Kumar and Another Vs. Madan Lal Aggarwal, learned counsel for the revisionist/defendant argued that the objection as to the executability of any decree earlier passed by civil court can be raised before the execution court.

In the instant case, the judgment and decree was passed by Judge, Small Cause Courts/Addl. District Judge, Kotdwar on 14.01.2013 in SCC suit no. 7/2007 Yogendra Kumar & others vs. Anil Badola, whereby the suit of the plaintiff was decreed for eviction and recovery of Rs. 16,800/-. The plaintiff was held to be entitled to get a sum of Rs. 2400/- per month as damages for the use of occupation.

The civil revision no. 21/2013 was preferred before this Court by the revisionist, which was dismissed, vide order dated 06.03.2013. However, one year''s time was granted to the revisionist/tenant to vacate the shop in question, provided he gives an undertaking before the trial court to the effect that he would handover peaceful possession of the shop in question to the landlord and shall pay the decreetal amount within a period of three months and shall continue to pay agreed rent of the shop in question.

Thereafter, instead of filing the aforesaid undertaking, a review application no. 267/2013 for recalling the order dated 06.03.2013 was moved before this Court. The said review application was rejected by this Court, vide order dated 11.09.2013 holding that the order dated 06.03.2013 requires no interference. The time to vacate the premises was, however, extended upto 30.06.2014 and the revisionist was directed to give an undertaking within 4 weeks from today (i.e. 11.09.2013) and to deposit the entire decreetal amount. It was observed by this Court on 11.09.2013 that if the undertaking is not furnished by the petitioner within the stipulated time, respondents would be at liberty to file execution proceedings.

After having lost before the court below, the revisionist moved a civil revision, which was dismissed. Instead of filing the undertaking, he moved a review application, which was also dismissed. The time to vacate the premises was, however, enlarged. Now, taking a different plea, the revisionist files this modification application to seek liberty of this Court to file objections u/s 47 C.P.C. The revisionist has not complied with any of the directions given by this Court earlier. Neither he vacated the premises nor gave the aforesaid undertaking, then, for what he is seeking liberty of this Court to file objections u/s 47 C.P.C.? He can take recourse to any provision of law, which he is advised to him. But he, like an obedient citizen, can not seek liberty to do something which he, in law, can do, if he is so advised. On the one hand, he is not giving undertaking as per the direction of this Court and on the other, he is seeking liberty to move objections u/s 47 C.P.C. Both the situations are contradictory. This Court cannot grant liberty to the revisionist to file objections u/s 47 C.P.C. before the executing court, as the same will be beyond the domain of this Court. This Court is simply reminding the revisionist about Section 116 of the Indian Evidence Act, 1872, which is as follows:

Estoppel of tenant; and of licensee of person in possession. - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

Modification application is accordingly disposed of.