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Judgment
Aloke Chakrabarti, J.—The facts relevant for disposal of the present appeal are that one Pulin Chandra Daw and his three brothers being the then owners of premises no. 57. Diamond Harbour Road, Calcutta, measuring about 7 Bighas 7 Kathas and 11 Chit tacks demised the said premises by a lease deed dated December 25, 1956 in favour of M/s. Bungo Steel Furniture Pvt. Ltd. for 25 years commencing from December 1, 1956 with an option for renewal for further 25 years on same terms and conditions. By a deed of partition dated February 21, 1957, the said property was exclusively allotted to the share of Pulin Daw and he became the sole and absolute owner thereof.
By a further deed of lease dated November 6, 1962. Pulin Daw granted lease of the said premises in favour of M/s. Bungo Steel Furniture Pvt. Ltd. providing a prohibitory clause against transfer or subletting without prior written consent of the lessor.
Pulin Daw filed Suit No. 2255 of 1969 against M/s. Bungo Steel Furniture Pvt. Ltd. on the ground of default in payment of rent. Pulin Daw again instituted Title Suit No. 43 of 1972 against M/s. Bungo Steel Furniture Pvt. Ltd. for ejectment of the lessee on the ground of default. This suit was decreed on September 10, 1979 and M/s. Bungo Steel Furniture Pvt. Ltd. (hereinafter referred to as Judgment Debtor) preferred an appeal which was also dismissed on July 21, 1980 whereupon, the judgment debtor preferred second appeal before the High Court being S.A. No. 49 of 1981. During pendency of the appeal Pulin Daw died leaving four legal heirs (herein after referred as landlord decree holders moved the Hon''ble Supreme Court of India challenging the said judgment and decree in the second appeal and the Special Leave was granted.
The Landlord decree holder and the judgment debtor entered into a compromise which provided that the judgment debtor would deliver vacant and peaceful possession of the suit premises to the landlord decree holders within three months failing which the decree holder would be entitled to execute the decree and to obtain police help for obtaining vacant possession of the suit property. On such compromise the landlord and the lessee obtained a decree from the apex Court.
Appellant claimed to be a subtenant in respect of the disputed premises. As the appellant''s possession as a sub tenant was under a threat jeopardizing the shed constructed in the said property by the appellant out of his own funds, the appellant lodged a complaint with the local police station and ultimately filed an application u/s 144 of the Code of Criminal Procedure whereon by an order dated December 3, 1996 the local police was directed to see that status quo is maintained in respect of the said premises and the structure.
On December 3, 1996 the possession of the said premises was taken in execution of the said compromise decree.
Accordingly, the appellant filed Misc. case under Order 21 Rules 99, 100 and 101 of the CPC praying for direction upon the decree holder and their agents to put back the appellant in possession of the entire rare portion of the premises leased to the judgment debtor. The said proceeding was contested denying and disputing the averments made by the appellant. In a contested hearing the Misc. Case was dismissed by judgment and order dated November 15, 1997. The appeal being Misc. Appeal No. 485 of 1997 filed by the present appellant was also dismissed on May 30, 1998. Being aggrieved the appellant preferred this Second Misc. Appeal on the grounds contained in the memorandum of appeal.
This appeal was admitted on September 23, 1998 on grounds no. 10, 26, 49 and 59 of the memorandum of appeal.
Heard Mr. Haradhan Banerjee learned counsel for the appellant. Mr. Aninda Mitra, learned counsel for the decree holder and Mr. Saktinath Mukherjee learned counsel for the judgment debtor.
At the stage of hearing, the appellant filed application for urging additional grounds over and above the grounds on which appeal was initially admitted. An objection was raised on behalf of the respondents contending that the appellant is not entitled to raise such additional grounds after admission of appeal on specified grounds. In support of such right to urge additional grounds on behalf of the appellant reliance was placed on the judgment in the cases of Panchugopal Barua and others Vs. Umesh Chandra Goswami and others, Smt. Annapoorani Ammal vs. G. Thangopalam reported in 1989 (2) SCJ 509 and Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others, It is contended that the second misc. appeal can be heard at the final stage of hearing on substantial questions of law and it need not be restricted to such questions of law that was accepted by the Court at the time of admission. In support of such contention reliance was also placed on the judgment in the case of Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., .
On behalf of the respondent decree holder and the respondent judgment debtor it has been contended that the appeal cannot be heard on any ground except the grounds on which it was admitted.
Considering the aforesaid contentions, it appears that relevant provision of law in this connection in Section 100 of the CPC is as follows:
S. 100 Second Appeal- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the ease involves a substantial question of law.
(2) An appeal may be under this section from an appellate decree passed exparte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard only on the question so formulated, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question of law, not formulated by it, if it is satisfied that the ease involves such question.
From the sub section 1 of said Section 100, it appears that a second appeal shall lie to the High Court if the High Court is satisfied that the case involves a substantial question of law. Sub section 4 of said Section 100 provides that where the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. Sub section 5 provides that appeal shall be heard only on the question so formulated and the respondent shall, at the hearing of the appeal be allowed to argue that the case does not involve such question. The provision contained in the proviso makes it clear that the court has power to hear the appeal on any other substantial question of law not formulated by it at the time of admission, if it is satisfied that the case involves such question. But it is categorically provided therein that such additional grounds can be considered for reasons to be recorded by the court. Such view also gets support from the judgments hereinbefore mentioned.
Therefore, it is apparent that at the time of final hearing of an appeal, the court has power to hear the appeal on some additional grounds not originally formulated at the time of admission, if this court is satisfied that the case involves such question and this can be done for reasons to be recorded by this court. Therefore, in respect of additional grounds which have been proposed to be urged by the appellant it has to be considered by this court as to whether there are sufficient reasons for satisfaction of this court that the case involves such additional substantial questions of law.
The ground no. 10 on which the appeal was admitted and urged by the learned counsel for the appellant is against the findings by courts below that realization of rent in respect of the disputed premises by the lessor Sri Pranab Chandra Daw was merely in his capacity as a Receiver and could not be treated as acceptance of rent as landlord/lessor. In this respect the relevant fact is that Sri Pranab Chandra Daw accepted rent from the present appellant for some period. The appellant argues that by such payment and acceptance of rent by the appellant and the said lessor a tenancy was created and therefore, the appellant could not be evicted from the disputed premises even in execution of the compromise decree. The landlord decree holder contended that Sri Pranab Chandra Daw was appointed as receiver by the court and he accepted rent in that capacity only and therefore such payment and acceptance of rent did not amount to creation of any separate relationship as the same was under an arrangement made by the court in a pending litigation.
Ii is not in dispute that Sri Pranab Chandra Daw was appointed Receiver by order dated December 19, 1980 when the second appeal was pending before this court wherein the judgments and decrees in the suit and the first appeal were under challenge and the said order was not having any provision for discharge of the receiver. By order dated July 15, 1982 interim order appointing receiver was confirmed with specific direction that receiver to continue until further orders. The judgment in the second appeal quashing the judgment and decree impugned therein was dated September 22, 1986 (Exhibit ''D'') does not also speak of discharge of the receiver. Admittedly no separate appointment of receiver was made when the proceeding was pending before the Supreme Court. The final order of Apex Court on compromise provided as one of the terms of compromise that "Mr. Pranab Daw receiver is discharged on filing of the accounts is dispensed with and Mr. Uttam Basu the then outgoing receiver will handover all funds which are lying in hand to the petitioner herein". On behalf of the appellant it is argued that SLP is not a continuation of the suit and therefore when the second appeal was allowed Sri Pranab Chandra Daw did not continue as receiver and therefore, his acceptance of rent from the appellant amounted to creation of a fresh tenancy. In supported of such contention reliance was placed on the judgment in the case of Laxman Marotrao Navakhare Vs. Keshavrao Eknathsa Tapar, . Reliance was also placed on Exhibit 8 being the cheque dated December 5, 1986 by which payment was made and the said cheque being an account payee cheque was encashed in the account of Sri Daw as reflected from Exhibit-7 being the letter issued by the Bank.
On behalf of the respondents, it is stated that creation of a tenancy being a fact, findings in this respect by the final court of fact i.e. the court of appeal below being in favour of the respondents, cannot be interfered with in the present appeal having a limited scope of consideration.
Considering the aforesaid contentions, I And that admittedly Sri Pranab Chandra Daw was appointed as receiver and was receiving rents in that capacity while the second appeal was pending before this court and alter its disposal he continued to be receiver as he was not discharged by the judgment allowing the appeal nor by any other order. Even in the Apex Court in the terms of compromise, discharge was provided for the same receiver and admittedly this receiver was never appointed by the Apex Court. From these circumstances. I am of the opinion that even after disposal of the Second appeal of this court. Sri Pranab Chandra Daw continued as Receiver as he could not refuse to discharge his responsibility as receiver when there was no specific discharge order. The very fact that the Apex Court finally approved discharge of the said receiver when appeal before it was disposed of on compromise supports my above view. In view of such findings, I do not find any merit in the ground no. 10 of the appellant.
Next ground on which the appeal was admitted being ground no. 26 of the memorandum of appeal was against the findings of the Lower Appellate Court that provisions of Sections 115 and 116 of the Transfer of Property Act cannot be taken advantage of by the appellant. It is contended on behalf of (he appellant that the judgment debtor being the original lessee inducted the appellant as a sub tenant and such sub tenant continued to be in possession all through with knowledge and consent of the superior landlord being the decree holder and therefore, when the said original lessee judgment debtor by entering into a compromise with the landlord decree holder behind the back of the present appellant sub tenant, agreed to surrender the possession of the disputed property, it was by practicing fraud and could not affect the rights of the appellant by virtue of sub tenancy created in its favour. Moreover, there being no suit filed by the superior landlord against the sub tenant being the present appellant and it continued to hold over possession of the leasehold property even after expiry of the lease period and rent having been accepted by the superior landlord in his personal capacity from the appellant, the appellant is entitled to get benefits under Sections 115 and 116 of the Transfer of Properly Act.
On behalf of the respondents it is contended that her the compromise decree was obtained practicing any fraud on the part of either the superior landlord decree holder or the original lessee judgment debtor and in any event the same having been done before the Apex Court in appeal, pending before it by compromise entered into between the judgment debtor and decree holder in a proceeding wherein the present appellant was not a party admittedly and therefore, neither it amounted to fraud nor such a party is entitled to get advantage of Sections 115 and 116 of the Transfer of Property Act.
After considering the aforesaid contentions, I find the sub tenancy in favour of the appellant was neither with the prior written permission of the landlord decree holder nor there is any material which shows even a subsequent written approval of the landlord decree holder in respect of such sub tenancy. Moreover as the litigation was pending, the question of holding over in the facts of the present case did not arise. On the facts available, the superior landlord was not required to file a separate suit against the appellant as no sub tenancy was created which is valid in the eye of law. On facts neither a case of holding over was made out nor there was a fresh tenancy created as the superior landlord never accepted rent in the personal capacity and payment and acceptance of rent after dismissal of the second appeal in the High Court continued to be through the receiver who was appointed by the court and his continuance was till final disposal of the matter by the Apex Court making a clear provision for discharge of the receiver. The compromise decree in the present facts cannot be held to be upon practicing fraud. Therefore, this ground taken by the appellant is also not acceptable.
The next ground on which the appeal was admitted was ground no. 49 in the Memorandum of Appeal and the same spoke of irregularity in the order of police help in absence of satisfaction of mandatory requirements of Rule 208 of Civil Rules and Orders.
The appellant contended that for the purpose of compliance of Rule 208, provisions of Order 21 Rule 97 were to be followed and in the present case the only application filed was for police help in Execution Case No. 13 of 1995: no writ of delivery of possession under Order 21 Rule 35 was ever issued and therefore, police help could not be sought for. In such circumstances, order dated April 11, 1996 for police help cannot be allowed to stand. Reliance was placed on the judgment in the cases In Re: Gopi Krishan Maji vs. Judhisthir Dey reported in 1995 (1) Cal. L.T. 260 for showing that the decree holder cannot take recourse to extreme step of police help without affording an opportunity of hearing to the person actually in possession. Further, for contending that rule 208 can be used only in exceptional cases, when the court is of the opinion that unless police help is given there will be danger to public peace in respect of the execution of the decree. Law was relive on as decided in the case of Mrs. Ajit Kumar Ray Vs. Jnanendra Nath Dey and Others, . Reliance was also placed on the judgment in the cases of Prerna Rex (P) Ltd. vs. Industrial Reconstruction Bank of India reported in 1999(2) CHN 708. Bhanwar Lal Vs. Satyanarain and another, , Noorduddin Vs. Dr K.L. Anand, and Babulal Vs. Raj Kumar and Others,
It is contended on behalf of the respondents, that order does not become void ab initio for non-compliance of Rule 208. At best such point can be taken if an appeal is preferred. In the present case, it is contended, the appellant was evicted from the premises in execution of the compromise decree on December 3, 1996. Admittedly, the knowledge of the order was latest on December 11, 1996 and the order in respect of the police help was passed much earlier on April 2, 1996 and therefore, even after the knowledge of the order no appeal having been preferred against the said order dated April 2, 1996, the said order reached a finality. It is also contended that the direction for police help was contained in the order of the Apex Court itself and the appellant is not entitled to urge, therefore, such point regarding irregularity in the police help before the High Court in this appeal.
Considering the aforesaid contentions, I am of the view that the order of the police help and direction for police help was contained in the compromise decree itself passed by the Apex Court. Therefore, the appellant is not entitled to challenge the same in the present appeal on the ground of alleged irregularity of violation of rule 208 and accordingly this ground fails.
The next ground on which this appeal was admitted was ground no. 59 which was of non-production of certified copy or Xerox copy or plain copy of consent decree passed by the Apex Court and therefore, the executing court had no jurisdiction to direct execution of the consent decree.
On behalf of the appellant, it is contended that no decree was produced in terms of the compromise decree though was so directed by the Apex Court. In respect of proceeding covered by Order 20 Rule 6A of the Code, a specific order by court is required. It is further stated that in the present facts the compromise decree was recorded in the Court register of the Supreme Court and therefore, satisfaction could not be under Rule 146 of the Civil Court Rules and orders and so production of a certified copy of the consent decree was compulsorily required. The use of expression ''may'' in Rule 11(3) of Order 21 of the CPC was referred to in this connection and reliance was placed on the Judgment in the cases of Krishna Das Roy and Others Vs. Sm. Santimoyee Bose and Others, and Satyendra Nath Bose Vs. Bibhuti Bhusan Bhar and Others,
Considering the aforesaid contentions, It appears that objection raised cannot be upheld as on facts it has been held by the lower appellate Court that certified copy of the decree was filed and the same get support from various records. Therefore such finding of fact cannot be challenged in the present appeal.
The additional grounds, which have been pressed at the stage of bearing of the appeal, are now to be considered. The first of such grounds is whether the dispossession of the appellant from the suit property was in due process of law and whether the findings recorded in the courts below in this regard are perverse or not.. It is stated that dispossession whether is with or without due process of law, is itself a substantial question of law. The first irregularity in the matter as relied on by the petitioner, is that the application for execution of the decree was not signed, verified or dated by the landlord or his constituted attorney which amounted to violation of mandatory requirements of Order 21 Rule 11(2) of the Code and after process of execution is issued. Order 21 Rule 17 cannot be invoked for amendment of the execution application and such requirement has been urged as upheld in various cases. It is further stated that executing Judge did not set any date or time for execution of the decree and endorsement on the face of the writ as made by the nazir/court official. Such requirement was also upheld in the various cases as referred to.
On behalf of the respondents, it is stated that such grounds are not even questions of law and far less substantial question of law and therefore, cannot be urged at all in the present appeal and far less as an additional ground to be raised at the time of final hearing.
Considering the aforesaid as it appears that such grounds are not at all substantial questions of law, cannot be urged? in the present proceeding in which only substantial question of law can be urged by the appellant. This ground therefore, cannot be allowed to be taken by the appellant.
The next additional ground urged by the appellant is whether the compromise decree is a nullity and if not whether it is binding upon the appellant who is not a party to the same and the finding recorded by the courts below in this regard whether can be sustainable in law.
The learned counsel for the appellant contended that the compromise decree itself is a nullity as there was no notice u/s 111(g) of the Transfer of Property Act. It is stated that said Section 111(g) pertains to determination of lease of forfeiture for which there must be a valid notice and a breach of the terms of covenants. In the judgment in earlier second appeal, this court observed that two notices were issued and the suit was filed on the second notice and hence there was a waiver of forfeiture for subletting and non-payment of rent The suit was dismissed in the said second appeal. Therefore, it is stated, even by compromise the Apex Court could not pass a decree for forfeiture in absence of any notice u/s 111(g). Reliance was placed on the judgment in the case of Chandra Nath Mukherjee Vs. Chulai Pashi and Another, . Ranumal Vs. Municipal Council, Ajmer, . Ramniranjan Prasad Tulshyan and Others Vs. Gajadhar Prasad and Others, and Meenakshi Jain vs. State of Madhya Pradesh reported in 1998 M.P. 78 for showing requirement of notice u/s 111(g) for obtaining a decree.
On behalf of the respondents, this contention has been opposed arguing that the compromise decree passed by the Apex Court could not be challenged before this court in the present proceeding arising out of an execution of the decree passed on such compromise.
Considering the aforesaid, I find that the compromise decree having been passed by the Supreme Court of India and the said Court having not been approached for relief, the compromise decree became final. The grounds so urged by the appellant amounts to challenge of the said compromise decree passed in the Supreme Court and therefore, the same cannot be so challenged by the appellant before this court in the present appeal. The cases cited have not decided this question and therefore do not help the appellant.
The second contention of the appellant with regard to nullity is with regard to fraud practiced upon the court in respect of an agreement/ understanding arrived at prior to compromise decree accepting cash compensation for not defending the SLP in the Supreme Court and helping the landlord in subsequent stages. Law in this regard has been cited as decided in the cases of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, 1, Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others, and United India Insurance Co. Ltd. vs. Rajendra Singh reported in JT 2000(3) SC 151.
Further argument was advanced by the appellant challenging the compromise decree itself on'' the ground that the tenant undertook to vacate khas possession of the entire suit property though finding on fact is that the tenant was not in possession of the entire suit premises.
On behalf of the respondents, this ground has also been opposed as touching the compromise decree passed before the Supreme Court.
Considering the aforesaid contentions. I am also of the opinion that questions raised in this respect by the appellant are with regard to the compromise decree itself and the irregularities in the said compromise decree and therefore, the appellant is not entitled to urge the same before this court in the present appeal. The cases cited having not dealt with this aspect have no application in this case.
Next additional ground raised by the appellant is as to whether the compromise decree is binding on the appellant though he is not a party to the compromise decree and none of the conditions for eviction under the Transfer of Property Act had been proved. If is stated that the second appeal was dismissed by the High Court for waiver of forfeiture and thereafter on compromise the decree was passed for eviction though none of the conditions required for such eviction under the Act was proved. It is further stated that the compromise decree being not an adjudicated decree of a court of law and being merely the recording of a contract between the parties having a seal of the court, the provisions of Order 23 Rule 3 of the Code are confined only to the parties to the suit and not applicable to a stranger to compromise decree. Law has been cited as decided in the cases of Ram Chandra Verma Vs. Shri Jagat Singh Singhi and Others, . Pulavarthi Venkata Subba Rao and Others Vs. Valluri Jagannadha Rao and Others, . Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, Habib Mian and Another Vs. Mukhtar Ahmad and Another, , Smt. Suraj Kumari Vs. District Judge, Mirzapur and others, and Gosto Behari Pramanik Vs. Sm. Malati Sen and Others, .
On behalf of the respondents, it has been contended that this question directly relates to the compromise decree itself and therefore, cannot be urged in the present proceeding.
Considering the aforesaid, I am also of the opinion that such contentions challenging the compromise decree passed by the Supreme Court of India having reached a finality cannot be challenged before this court in the present proceeding arising out of an execution proceeding for execution of the said compromise decree. Law cited by the appellant does not help the appellant to establish its objection in the present facts.
The next additional ground urged by the appellant is as to whether a contested decree passed in second appeal deciding a substantial question of law can be set aside on consent between the parties thereto. This question also being directed against the compromise decree itself passed by the apex Court, cannot be urged before this court in the present appeal arising out of execution proceeding for execution of the said compromise decree recorded by the Apex Court. The last additional ground urged by the appellant is whether the finding of subletting without consent are vitiated by application of wrong tests, baseless presumptions and wrong principles of law. Contention in this, connection has been made by the learned counsel for the appellant are with regard to the sub tenancy in favour of the appellant and the possession of the appellant in respect of the suit premises and the alleged admission of the superior landlord regarding the sub tenancy. These grounds, in my opinion, are questions of facts, which could not be urged within the scope of the present appeal.
In view of may aforesaid findings and in view of the findings on facts by the courts below, as none of the grounds urged by the appellant, can be upheld by this court, appeal fails and is hereby dismissed.