Kokila and Others vs Anyaji and Others

Z.A. Haq, J.—Heard Shri K.P. Mahalle, the learned Advocate holding for Shri R.L. Khapre, Advocate for the petitioners and Shri R.S. Charpe, the learned Advocate for the respondent No. 1. None appears for the respondent No. 2.

The petition is filed by the decree-holders challenging the order passed by the executing Court rejecting the objection of the decree-holders regarding accepting the affidavit in lieu of examination-in-chief filed by the judgment-debtor.

Shri Vishweshwar Raghobaji Bundhade-the predecessor-in-title of the petitioners had filed Regular Civil Suit No. 305/1981 which was renumbered as Regular Civil Suit No. 2553/1987, against the respondent No. 1 praying for decree for ejectment and possession of the suit house and for damages. The civil suit was decided along with Special Civil Suit No. 438/1985 and the Regular Civil Suit No. 1578/84, by the judgment dated 04-12-1996. The trial Court decreed the Regular Civil Suit No. 2553/1987 and directed the respondent No. 1 to handover the vacant possession of the suit property to Shri Vishweshwar Raghobaji Bundhade. The judgment and decree passed by the trial Court was challenged in appeal before the District Court. The Additional District Judge, by the common judgment given in Regular Civil Appeal No. 86/1997, Regular Civil Appeal No. 87/1997 and Regular Civil Appeal No. 29/1997, dismissed the appeals filed by the respondent No. 1. The respondent No. 1 had filed Civil Revision Application No. 374/2000 before this Court challenging the judgment and decree passed by the sub-ordinate Courts in Regular Civil Suit No. 2553/1987. This Court passed the common judgment in Second Appeal No. 89/2000, Second Appeal No. 331/2001 and Civil Revision Application No. 374/2000 on 11-09-2008. The civil revision application was dismissed.

In paragraph No. 11 of the judgment given in the Civil Revision Application No. 374/2000, this Court recorded that the judgment and decree passed in favour of Vishweshwar Raghobaji Bundhade shall not be executed till he pays Court fees on valuation of northern side block of Plot No. 41 i.e. the suit property in Regular Civil Suit No. 2553/1987. The decree-holders filed an application seeking permission to pay the Court fees and the learned trial Judge passed an order on 09-03-2013 permitting the decree-holders to pay the requisite court fees.

The decree-holders proceeded with the execution. The respondent No. 1/judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure objecting to the execution of the decree. The respondent No. 1/judgment-debtor contended that he had filed written statement in Regular Civil Suit No. 305/1981 stating that the civil suit was filed in the Court of Small Causes, however the judgment-debtor was not the tenant and was co-owner of the suit property. It is stated in the objection that as dispute regarding title was raised, the decree-holders (plaintiffs in the civil suit) had filed an application praying that the civil suit be transferred to the regular civil Court but the application was rejected by the Court of Small Causes and that order was not challenged by the decree-holders (plaintiffs in that civil suit). It is stated in the objection that the decree-holders (plaintiffs in the civil suit) had moved an application before the District Judge under Section 24 of the Code of Civil Procedure praying that the civil suit be transferred for trial along with Special Civil suit No. 438/1985 and accordingly the Regular Civil Suit No. 305/1981 was transferred to the Court of 6th Joint Civil Judge, Senior Division for trial along with Special Civil Suit No. 438/1985. It is stated in the objection that though the Regular Civil Suit No. 305/1981 (renumbered as Regular Civil Suit No. 2553/1987) was tried by the 6th Joint Civil Judge, Senior Division, as per Section 24(4) of the Code of Civil Procedure, the judgment and decree passed by the learned 6th Joint Civil Judge, Senior Division has to be treated as judgment and decree passed by the Small Causes Court and the Court of Small Causes had no jurisdiction to try the civil suit and therefore, the judgment and decree is without jurisdiction and cannot be executed.

The judgment-debtor gave notice to admit the documents under Order XII Rule 3 of the Code of Civil Procedure. The petitioners/decree-holders filed reply to the application stating that the issues raised by the respondent No. 1/judgment-debtor have been decided by this Court and the required court fees has also been paid as per the orders passed by this Court and the executing Court cannot overreach the judgment passed by this Court. The petitioners/decree-holders submitted that there is no stage which enables the judgment-debtor to file documents and it was prayed that the application be dismissed with costs.

The respondent No. 1/judgment-debtor filed an affidavit in lieu of evidence. The petitioners/decree-holders filed objection and opposed the taking of the affidavit in lieu of examination-in-chief on the record. The learned trial Judge, by the impugned order, observed that the documents filed by the respondent No. 1/judgment-debtor are not admitted by the decree-holders though they are public documents and therefore, to prove the documents, examination on oath is required, and rejected the objection of the petitioners/decree-holders. The petitioners/decree-holders being aggrieved by the above mentioned order have filed this writ petition.

The learned Advocate for the petitioners has submitted that the landlord has been agitating since 1981 to obtain the possession of the property and though the judgment and decree passed by the trial Court has been affirmed by this Court and all the contentions which are now being raised by the respondent No. 1/judgment-debtor have been dealt with by this Court while deciding the Civil Revision Application No. 374/2000, the respondent No. 1/judgment-debtor is attempting to reopen the matter which cannot be permitted. It is submitted that the exercise undertaken by the respondent No. 1/judgment-debtor to file the documents and then to attempt to file the affidavit in lieu of examination-in-chief on the record is nothing but an attempt to overreach the judgment passed by this Court.

The learned Advocate for the petitioners has submitted that the respondent No. 1 has taken the objection under Section 47 of the Code of Civil Procedure to the executability of the decree on the ground that the decree is passed by the Court of Civil Judge, Senior Division after the civil suit was transferred from the Court of Small Causes and as the issue of title was raised, the Court of Small Causes had no jurisdiction to entertain and try the civil suit and in view of the provisions of Section 24(4) of the Code of Civil Procedure, it has to be treated that the judgment and decree though passed by the Civil Judge, Senior Division, in effect is passed by the Court of Small Causes. It is submitted that this objection was raised before this Court in Civil Revision Application No. 374/2000. The copy of the memorandum of revision was produced at the time of hearing by the learned Advocate for the petitioners. The ground No.(iv) in the revision is as follows :

"(iv). The Court trying the suit was exercising the jurisdiction under the provisions of the Provincial Small Causes Courts Act, as a Small Causes Court by virtue of the provision of sub-section 4 of Section 24 and not as Regular Civil Court and, therefore, the Court had no jurisdiction to try or entertain the suit on the basis of title in view of the amendment effected by the non-applicant in his plaint and, as such both the judgments of the Courts below are without jurisdiction."

The challenge as raised on behalf of the respondent No. 1 was considered by this Court and the findings are recorded in paragraph 8 of the judgment given in Civil Revision Application No. 374/2000, as follows :

"8.The institution of suit is after notice dated 30-12-1980 and in fact said notice at Exh.60 is reply to communication dated 8-12-1980, sent by the present revision applicant to Vishweshwar demanding partition. After this Exh.60 was served upon the applicant on 15-1-1981, he has sent reply thereto through his Advocate and the said reply is at Exh.57. The stand of Vishweshwar in his notice that suit property was his self-acquired property and contention of revision applicant about having undivided 1/2 share in it being false, have been specifically denied and again correctness of his story in his earlier notice dated 8-12-1980 has been affirmed by the present applicant. The suit was thereafter filed and all these facts are mentioned in the plaint. Written Statement was then filed before the Small Causes Court only by the present applicant and in his specific pleadings, he again pleaded that he was joint owner along with his brother Vishweshwar. It is thereafter the suit came to be transferred and registered as Regular Civil Suit No. 2553/1987. The transfer of suit as Regular Civil Suit was never questioned by the present revision applicant. The learned counsel for the revision applicant has tried to urge that the suit though transferred as regular civil suit still remained a suit between landlord and tenant and it was not a suit of eviction of applicant on the basis of title. However, it is to be noted that in the said regular civil suit the trial court has not framed any issue separately. The issues are framed only in Special Civil Suit Nos. 438/1985 and 1578/1984. The Trial court found that the present respondent proved that he was the exclusive owner of the suit house and he further proved that the present applicant was in forcible occupation of the suit premises. It is to be noted that the evidence in all the three suits have been jointly recorded in Regular Civil Suit No. 438/1985. It is therefore, obvious that suit No. 2553/1987 was tried as title suit. It appears that as the objection raised by the learned Advocate Shri Mohta about absence of notice under Section 111(g) was not raised before the trial Court, the question of proper valuation of that suit never arose for consideration. The fact remains that the suit has been adjudicated upon by the court of Senior Division, which has unlimited monetary jurisdiction and hence whatever may be the valuation the suit has been tried by the Court of competent jurisdiction. During arguments Advocate Shri Khapre, has stated that had such objection been raised at earliest, proper court fee upon the suit might have been paid before the trial Court. It is obvious that for not valuing the suit properly or for not paying court fee only, the suit cannot be dismissed. If this objection was raised at initial stage the trial court itself could have given liberty to the present respondent to cure the defect."

In view of the above, it has to be held that the objection as raised on behalf of the respondent No. 1/judgment-debtor is frivolous and an attempt to overreach the judgment passed by this Court which has attained finality.

I am conscious that the observations and conclusions recorded in this judgment virtually decides the objection filed by the respondent No. 1/judgment-debtor under Section 47 of the Code of Civil Procedure. However, the legality of the impugned order cannot be decided without considering the nature of objection raised by the respondent No. 1/judgment-debtor, under Section 47 of the Code of Civil Procedure.

The objection raised by the respondent No. 1/judgment-debtor under Section 47 of the Code of Civil Procedure is only to the effect that the judgment and decree passed by the Civil Judge, Senior Division has to be considered as the judgment and decree passed by the Court of Small Causes as the issue of title was raised and it has to be treated that the judgment and decree passed in favour of the decree-holder is nullity in the eye of law. As stated above, this objection was raised before this Court in civil revision application which has been decided and therefore, it is not open for the executing Court to consider the point which is decided by this Court.

Shri R.S. Charpe, the learned Advocate for the respondent No. 1/judgment-debtor has submitted that the respondent No. 1/ judgment-debtor has raised the objection under Section 47 of the Code of Civil Procedure that the judgment and decree passed in favour of the decree-holders is nullity in the eye of law and this objection can be raised under Section 47 of the Code of Civil Procedure. The learned Advocate for the respondent No. 1/judgment-debtor has relied on the following judgments :

i) Judgment given by the Hon''ble Supreme Court in the case of Sunder Dass Vs. Ram Prakash, AIR 1977 SC 1201 : (1977) 2 SCC 662 : (1977) 3 SCR 60 .

ii) Judgment given by the Hon''ble Supreme Court in the case of Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., (1989) JT 329 Supp : (1990) 97 PLR 182 : (1989) 2 SCALE 1104 : (1990) 1 SCC 193 : (1989) 2 SCR 149 Supp .

iii) Judgment given by the Hon''ble Supreme Court in the case of Budhu Mal vs. Mahabir Prasad and other With Budhu Mal Vs. Mahabir Prasad and Others, AIR 1988 SC 1772 : (1988) 3 JT 281 : (1988) 2 SCALE 294 : (1988) 4 SCC 194 : (1988) 2 SCR 238 Supp : (1988) 2 UJ 514 .

iv) Judgment given by the Hon''ble Supreme Court in the case of Kaushalya Devi and Others Vs. Shri K.L. Bansal, AIR 1970 SC 838 : (1969) 1 SCC 59 : (1969) 2 SCR 1048 .

The judgments lay down the well established principle that the earlier decision will not operate as res judicata if the cause of action is different or when the decision relates to the jurisdiction of the Court to try the earlier suit. However, in the present case, the issue which is raised by the respondent No. 1/judgment-debtor in the objection under Section 47 of the Code of Civil Procedure was raised before this Court in Civil Revision Application No. 374/2000 and has been decided. Similarly the judgment given in the case of Budhu Mal vs. Mahabir Prasad and other With Budhu Mal Vs. Mahabir Prasad and Others, AIR 1988 SC 1772 : (1988) 3 JT 281 : (1988) 2 SCALE 294 : (1988) 4 SCC 194 : (1988) 2 SCR 238 Supp : (1988) 2 UJ 514 is also not applicable in the facts of the present case as the issue is already decided by this Court in Civil Revision Application No. 374/2000.

The submission as made on behalf of the respondent No. 1/judgment-debtor is fallacious and unacceptable in law. The same objection having been raised in the earlier round of litigation and having been decided upto this Court, it is not open for the executing Court to again consider the same objection under Section 47 of the Code of Civil Procedure.

In view of the above, the following order is passed :

i) The impugned order is set aside.

ii) It is held that the affidavit in lieu of examination-in-chief filed by the respondent No. 1/judgment-debtor cannot be taken on the record.

iii) The executing Court is directed to proceed with the execution after deciding the objection filed by the respondent No. 1/judgment-debtor under Section 47 of the Code of Civil Procedure.

iv) The executing Court is directed to expedite the matter considering that the civil suit is of 1981.

Rule is made absolute in the above terms with costs quantified at Rs. 20,000/-to be paid by the respondent No. 1 to the petitioners. The respondent No. 1 shall pay the costs and produce the receipt on the record of the executing Court within two months, failing which the executing Court shall pass appropriate orders against the respondent No. 1 treating it to be non-compliance of the order passed by this Court.