Roshan Lal vs Charanji Lal Jain and others

G.C. Mital, J.—By order dated 16th December, 1981, I had appointed an Advocate of this Court as a Local Commissioner to go to the spot and find out if Pushap Chander Jain was carrying on any manufacturing or industrial process in the industrial premises No. S/207, Industrial Area, Jullundur City, or was lying locked for several years as contended by the counsel for the decree-holder.

The Local Commissioner visited the premises on 17th December, 1981, and has submitted his report. The Local Commissioner recorded the statements of the persons carrying on industry or residing in the vicinity of the premises in dispute who are as follows :--

Sardul Singh, Booking Clerk of M/s P. K. Goods Transport Corp, S-179, Industrial Area, which is situate opposite the premises in dispute.

Pardaman Singh partner of M/S Bharat Tools Manufacturing Co, S-180, Industrial Area, opposite the premises in dispute.

Mohinder Singh partner of M/S Indian Tool Corporation, S-180, Industrial Area opposite Ramko Engineering Works, S-208, Industrial Area, Jullundur.

Mulkh Kaj partner of M/S Ramko Engineering Works, 208, Industrial Area, Jullundur.

besides recording the statement of Pushap Chander Jain who is the judgment-debtor in this case.

The statements of all the aforesaid persons is to the effect that no industrial process is being carried on by Mr. Pushap Chander Jain in the premises for several years and the premises is lying locked has been corroborated by Pushap Chander Jain himself whose entire statement deserves to be reproduced :--

That State Bank of India had filed a suit for recovery of loans and the Bank had locked the inner gate in 1975 and the case is pending in the Court of Shri M.M. Bhalla Sub Judge 1st Class. I do not Know whether Bank brought any Court order for locking the inner door of the factory or not. The outer gate (entrance gate) had been locked by myself in 1975, and I am not doing any work in this factory premises. Now I am doing Commission Agents Work and I used to go on tour to Kerala, Karnataka and Tamil Nadu. That I am residing in the 1st Floor of the building and the stairs are on the road.

A reading of aforesaid statement clearly goes to show that the industrial premises is lying locked since 1975 and that no work is being carried on there. The report of the Local Commissioner is also to the same effect that the premises in lying locked and the front portion of the building was having deserted look as if it was not used since long. He also corroborated the stand of Pushap Chander Jain that when he reached the spot he came from the first floor through stairs which open on the road.

The aforesaid facts have to be taken notice of in the background of the earlier history of the case that on 1st of May, 1976, Roshan Lal had filed an application for ejectment in which M/S Speedway Auto Industries through Pushap Chander Jain partner was impleaded as a respondent. The tenant was said to be Charanji Lal who was respondent No. 1 and M/s Speedway Auto Industries were impleaded on the allegation that they were sub-tenant. The rent payable by Charanji Lal was Rs. 300/- per month. Pushap Chancer Jain filed a written statement alleging that he was a direct tenant under Roshan Lal and the rate of rent was Rs. 20/- per month After filing the written statement Pushap Chander Jain did not participate in the ejectment proceedings and finally on 27th of August, 1979, order of ejectment was passed. Pushap Chander Jain sought to attack the ex parte proceedings first before the Rent Controller then upto this Court and failed in the same. When the decree-holder took out the execution of the ejectment order Pushap Chander Jain put in appearance and opposed the same. Ultimately he made a statement that he would vacate the premises on 27th of April. 1980. Since he did not vacate the premises by the due date, the decree-holder took out fresh execution proceedings on 29th of July, 1980, and in the execution proceedings Pushap Chander Jain filed objection petition contending that a fresh tenancy was created in his favour at the rate of Rs. 150/- per month and also prayed that till the objection petition was decided the execution proceedings be stayed. The executing Court came to the following conclusion :

After going through the pleadings and hearing the Learned Counsel for the parties. I hold that the old tenancy was @ Rs. 300/- per month and the decree-holder was not likely to create a new tenancy at much lesser rate of Rs. 150/- p.m. Therefore, there is no prima facie case in favour of the judgment debtor.

In spite of recording the aforesaid finding the executing Court passed the following order--

But in the interest of justice, I order that the judgment debtor-applicant should deposit the arrears of rent from 30th September, 1977, at the rate of Rs. 300/- per month as security for the decree-holder and if the objections are found to be false, then the amount would be paid to the decree holder as for use and occupation and if the objections are sustained, then the amount would be paid to the decree holder as arrears of rent. The judgment-debtor is given time to deposit the arrears within ten days and the warrant of possession be not issued in the meanwhile.

Once the facts arc taken into consideration that the ejectment order was passed in a petition on 6th March, 1976 and the objector himself gave an undertaking before the Court to vacate the premises on 27th April, 980, and the executing Court found that the plea of fresh tenancy set up by the judgment-debtor was false, there was no interest of justice left in favour of the judgment-debtor and the only course open to the executing Court was to eject the judgment-debtor forthwith if not on the basis of ejectment order atleast on the basis of undertaking given by him. To my mind, the violation of an undertaking given to a Court is a matter to be taken notice of and this would amount to Contempt of Court. Instead of resorting to that the execution Court exceeded its jurisdiction in allowing Pushap Chander Jain to stay in the premises on payment of three years rent at the rate of Rs. 300/- per month. The ejectment order was passed on the basis that the tenant was in the arrears of rent with effect from 1-8-1970. Even if there had been some favourable facts in favour of the objector, the minimum order the executing Court could pass was to direct the objector to pay the arrears from the due date i.e. 1-8-1970 upto date but on the facts of the present case, even that order would not have been a reasonable one. This revision has been filed by the decree-holder for setting aside the order of the Court below with a direction that possession be got delivered to the decree holder without any further delay.

After hearing the Learned Counsel for the parties I am of the view that the Court below exceeded its jurisdiction in granting stay of execution on the peculiar facts of this case. As already noticed above not only that the ejectment order could not be avoided by the objector upto this Court in execution he gave an undertaking which he too has fluated and therefore, he cannot be shown any indulgence by the Court.

Shri R.C. Dogra appearing for the objector contended that no revision is competent in this Court from an interlocutory order granting stay of execution of a decree. In this regard he placed reliance on section 115 of the CPC and two Supreme Court decisions in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, and Harvinder Kaur and Another Vs. Godha Ram and Another, and Division Bench judgment of this Court in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, of the CPC was amended by Central Act No. 104 of 1976 and the amended section is as follows :--

115 Revision--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation :--In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding).

A reading of the explanation shows that the expression any case which has been decided'' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. Earlier to the amendment, there was conflict of authorities as to the meaning of the expression ''any case which has been decided''. Now this controversy has been set at rest by this explanation. Even when a right or obligation in controversy is decided that order would be amenable to the revisional jurisdiction of this Court subject to the other limitations provided by section 115 of the Code of Civil Procedure.

The matter of decision of an application for grant of interim stay is a matter which decides the rights or obligations of the parties for the time being having far reaching consequences and, therefore, would clearly fall within the expression ''case decided'' and, therefore,

I am of the view that if ad-interim relief is granted or refused that order would be amenable to the revisional jurisdiction of this Court. The aforesaid two Supreme Court decisions are also in support of this view although related to the cases arising before the amendment of Section 115 of the Code of Civil Procedure.

A similar question cropped up before the Supreme Court whether grant of an ad interim injunction would be a judgment within the meaning of the Letters Patent in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, and it was ruled out that such an order would undoubtedly be a judgment and would be applicable before the Letters Patent Bench. They had overruled a Full Bench judgment of Rangoon High Court in Dayabhai Jiwandas v. A.M.M. Murugappa Chettiar AIR 1935 Rang. 267, and two decisions of the Bombay High Court in Pandy Walad Dagadu Mahar and Another Vs. Jamnadas Chotumal Marwadi, , and Vaman Ravji Kulkarni Vs. Nagesh Vishnu Joshi,

If an interlocutory order granting or refusing stay or granting an ad interim injunction or refusing the same would be a judgment and finally concluding the inter se rights of the parties for the time being, then certainly it would be a case decided within the meaning of explanation added to section 115 of the CPC and according the objection raised by the counsel for the objector that no revision is competent in this Court is overruled.

Now coming to the point whether this is a fit case for stay of execution or not the facts of the case will have to be kept in view. As regards the balance of convenience of the parties and injustice caused to them the facts as already enumerated are so eloquent that only one view is possible in this case that there should be no impediment in the way of the decree-holder to execute the decree which he obtained successfully against the judgment debtor and in execution of which the judgment debtor gave an undertaking that he would vacate the premises on 27th April, 1980. The Court below has found that there is no prima facie case in the objections filed by the judgment-debtor and, in my opinion, rightly then no injury or manifest injustice arises to the judgment-debtor, rather the grant of stay amounted to injury and manifest injustice to the decree holder who in spite of having ejectment decree in his favour and in spite of the fact that he allowed some time to the judgment debtor to vacate the premises on his asking is not allowed to get possession of the same. The objection petition filed by the judgment-debtor in the present case is nothing but an abuse of process of Court and this abuse cannot be perpetrated by granting stay in his favour Of course, if the objection petition is dismissed, the judgment-debtor will have to vacate, but if the objection petition is meritless as found by the Court below then there was no justification to allow the judgment-debtor to remain in possession even for a day thereafter.

As reported by the Local Commissioner and as stated by the judgment-debtor himself before the Local Commissioner, the industrial premises are lying locked since 1975. In this view of the matter also there was no balance of convenience in favour of the judgment-debtor. The proper order would be to deliver the possession of the demised premises to the decree holder.

I am not losing sight of the fact that the judgment-debtor is staying in upper portion of the premises but the premises are primarily for the industrial purpose and once industry is not being carried on his stay on the upper portion would be no ground not to allow execution at this stage. In somewhat similar circumstances the Supreme Court in Bhagwati Prasad Gupta Vs. Prakash Bhalotia, , concluded as follows :--

Here is a tenant who was vociferously haranguing to the Court that he is in dire need of the suit premises and his business would be totally ruined and that he would suffer irreparable loss if he is evicted from the suit shop. This is entirely false and need not be re-stated. However, an ingenious affidavit has been filed by him in which he merely denies that he has shifted his business. This is too feable an attempt to traverse what stares in our face and such prevarication must be rejected as unworthy of examination. The consequence, therefore, indicated in our order dated 30th October, 1980, must ensue. It would be abuse of the process of this Court under Art. 136 to further examine the appeal of the appellant on merits. We accordingly dismiss the appeal with no order as to costs.

The facts of the case in hand are much stronger than the facts of the Supreme Court case in favour of the decree-holder and against the judgment debtor. Accordingly, I am of the view that the stay of execution has occasioned failure of justice to the decree-holder.

Before parting I may notice one more objection raised by the judgment-debtor namely that he wants to file objections against the report submitted by the Local Commissioner Even in the aforesaid Bhagwati Prasad Gupta''s case (Supra) a Commission was appointed by the Supreme Court and the case was decided on the Commissioner''s report. I do not find that it is a fit case for granting any opportunity for filing objections against the report especially in view of the fact that judgment-debtor was present before the Local Commissioner and made a statement in writing which statement is before me. The counsel has no instructions from his client to contradict that the statement was made by his client namely Pushap Chander Jain. Accordingly, I find that the grant of opportunity would again be an abuse of process of Court and would delay the execution of the decree. Consequently, this prayer is also rejected.

For the reasons recorded above this revision is allowed, the order of Court below dated 20th January, 1931, is set aside and direction is given to issue the warrant of possession forthwith so that the possession of the premises is delivered to the decree-holder without any further delay. The tenant shall pay Rs. 300/- as costs of these proceedings to the decree-holder. It is further ordered that the amount which has been deposited by the judgment-debtor under the impugned order w.e.f. 30-9-1977 at the rate of Rs. 300/- per month should be paid to the decree-holder by way of mense profit without prejudice to his rights to claim higher amount in any appropriate proceedings because the judgment-debtor admittedly remained in possession for all this period after passing of the ejectment order because since the date of passing of the ejectment order his possession would be without any right.