State of U.P. and Ors. vs Pyarl Rai & Ors.

D.C. Srivastava, J.—This revision was filed against an order dated 27th January, 1997 of Civil Judge (Senior Division), Agra, allowing an application under Section 151 of the Code of Civil Procedure. It was initially filed as First Appeal from Order, which was subsequently rightly converted in a civil revision.

Sri K.S; Singh, learned counsel for the revisionists and Sri Prakash Krishna, learned counsel for the opposite parties were heard on admission of this revision. Learned counsel for the oppositeparties did not prefer to file any counteraffidavit and with the consent of the parties counsel the revision is being finally disposed of at the admission stage.

The brief facts are that a portion of Bunglow No. 13 which is part of the property bearing Municipal No. 21/269 situated at Balkeshwar Road, Jivani Mandi Agra, was in occupation of the revisionists. According to the revisionists, they are tenants of the disputed portion whereas according to the oppositeparties, the revisionists are unauthorised occupants and in any case they were licensees from the receiver appointed by the Civil Court in original Suit No. 76 of 1949 (Seth Loon Karan Sethia v. Capt. I.E. John). In that suit Hira Lal Patni was defendant No. 5 and the oppositeparties are the heirs of Hira Lal Patni. This suit was for recovery of money in which receiver was appointed by the Court. Another partition suit No. 31 of 1940 was instituted, but in this suit no receiver was appointed. Preliminary decree was passed in the partition suit and ultimately final decree was also passed on 16th July, 1964 (AnnexureIV). In Original Suit No. 31 of 1940 (Gambhir Mai Pandey (P) Ltd. v. Nirmal Kumar Patni and others) Gambhir Mai Pandey was the plaintiff and Hira Lal Patni and others were the defendants. Appeals were filed against the decree in Original Suit No. 76 of 1949 in this Court. One appeal was allowed by this Court and the other was dismissed. The matter went before the Apex Court. On 28th August, 1974 the Ap�x Court discharged the receiver under the; following order:

"The receiver is discharged in respect of properties which are not the subjectmatter of the decree passed by the High Court."

The two appeals were ordered by the Apex Court to be listed for hearing in November, 1974. Both the appeals were heard by Apex Court and ultimately Original Suit No. 76 of 1949 was dismissed which is a case reported in AIR 1977 SC 336. The suit was dismissed vide order dated 20th October, 1976. Consequent upon dismissal of the suit and order discharging the receiver passed by the Apex Court, request was made to the revisionists to vacate the accommodation, but they were avoiding. Ultimately, an application under Section 151 of the Code of Civil Procedure, whose copy is Annexure1, was moved on 1st January, 1993 in the Court of Civil Judge, Agra, mentioning it to be an application arising under Suit No. 76 of 1949. Under this application the prayer was for a direction to the revisionists in this Court, to hand over possession and also to pay the arrears of rent at the rate of Rs. 175/ per month up to the date of delivery of possession.

Objections were invited against this application. Rejoinder was also filed and after hearing the parties, the court below allowed the application and directed the revisionists to hand over possession of the accommodation within 5 months and also pay the arrears of rent with effect from 28th February, 1974 at the rate of Rs. 175 per month.

It is this order which has been challenged in this revision.

Learned counsel for the revisionists contended that since the suit was dismissed by the Apex Court in the year 1974, no application under Section 151 of the Code cf Civil Procedure could be maintained in the Court of Civil Judge in the aforesaid sisit, Maintainability of application under section 151 of the Code of Civil Procedure was also attacked on ether grounds, namely, since alternative remedy for dispossession of the revisionists is available to the oppositeparties under U.P. Act XIII of 19/2 by filing a suit for eviction and also by filing an application for dispossession of licensee under section 2A(5) of the above Act, application under Section 151 of the Code of Civil Procedure is not maintainable. Another attack has been that even if the revisionists are held to be unauthorised occupants, they could not be dispossessed under an order passed under Section 151 of the Code of Civil Procedure. The next attack has been that the suit was dismissed by the Apex Court in the year 1974 and till 1993 no action was taken by the opposite parties for dispossession of the revisionists, hence also the application is not maintainable. The last attack has been that the receiver was not discharged in respect of the property in dis pute by the Apex Court, hencs the oppositeparties have no right to dispossess them in the garb of the order of the Apex Court. All these attacks were countered by the learned counsel for the opposite parties.

I have givsn my thoughtful consideration to all these grounds of attack and I do not find force in any of these grounds.

In oider to appreciate the contention that application under Section 151 of the Code of Civil Procedure is not maintainable, the provisions of the aforesaid section have to be recapitulated. It provides that "nothing in this Code shall be deemed to limite or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

An order under Section 151 of the Code of Civil Procedure is not a decree, hence no appeal against such order lies and only revision can be maintained. The instant revision is, therefore maintainable.

Coming to the maintainability of application under Section 151 of the Code of Civil Procedure, it has to be kept in mind that if there is no provision in the Code of Civil Procedure and there is no other remedy available to the oppositeparties, they can approach the Court under Section 151 of the Code of Civil Procedure. After the dismissal of the suit by the Apex Court, the oppositeparties could not apply straightaway for eviction of the revisionists by filing an execution application. The alternative remedy by suggested by the learned counsel for the revisionists are hardly available to the oppositeparties.

The attack that from 1974 till 1993 no action was taken by the oppositeparties will not stand as a bar of limitation to the maintainability of application under Section 151 of the Code of Civil Procedure. It is mentioned in the application itself that repeated requests were being made till 1993 to the revisionists to vacate the accommodation, but they were avoiding, consequently in 1993 the application was moved and on this ground the application cannot be thrown.

The next attack that the application under Section 151 of the Code of Civil Procedure cannot be moved in a concluded proceeding also cannot be sustained. As pointed out earlier, if rhe suit was dismissed by the Apex Court in two appeals decided by it, no relief for dispossession could be sought before the Apex Court in subsequent proceedings. It is only through an application before the Civil Judge, Agra that such relief could be sought and such relief could be sought not through any execution application but only through a separate application in which inherent jurisdiction of the Court of Civil Judge, Agra could be invoked. Thus on this ground also the application could not be rejected.

I also do not find any force in the contention that alternative remedy for dispossession of the revisionists is available to the oppositeparties under U.P. Act XIII of 1972. The reason is that the Court below repelled the contention of the revisionists that they are tenants in the accommodation in dispute. The plea of licence was also not successfully accepted by the lower appellate Court, but through a function of law, it observed that the revisionists could at the most be licensees and after the discharge of receiver, their licence stood terminated. It was nowhere observed that the licence was granted by the oppositeparties. If it was concluded as a question of fact that the revisioiiists are not the tenants of the oppositeparties, no relief by filing a suit for eviction against the revisionists can be obtained by the oppositeparties under Section 20 of the said Act.

Another contention has been that even unauthorised occupant could not be dispossessed in an application under Section 151 of the Code of Civil Procedure. It is not a case of rank trespassers who are being dispossessed. On the other hand there are facts of the case that receiver was appointed by the Court and receiver granted licence to the revisionists. The receiver was ultimately dischargsd by the Apex Court. Learned counsel for the revisionists raised a controversy that receiver was not discharged in respect of the disputed property by the Apex Court and he laid stress upon the following order of Apex Court.

"The receiver is discharged in respect of properties which are not the subjectmatter of the decree passed by the High Court."

Learned counsel for the revisionists contended that the disputed property was not the subjectmatter of the decree passed by the High Court, hence the receiver was not discharged nor stood discharged by implication. Even if this contention is accepted, it is undisputed that after hearing two appeals the Apex Court dismissed Suit No. 76 of 1949 on 20th October, 1976. The interim order aforesaid was passed on 28th August, 1974. Thus, after dismissal of the suit on 20th October, 1976, receiver stood discharged. If the receiver stood discharged, the licence granted by him in favour of the revisionists also came to an end.

In Ponnammal v. N. Muthuswamy Chettiar, (1996) 7 SCC 61, a similar controversy came before the Supreme Court. It was a case where the receiver, during the pendency of the suit, granted lease to certain persons. The question was whether the lease granted by the receiver stood terminated when he was discharged. The Supreme Court considering the cases of Madras High Court held that the receiver when he leases out property does so as an agent of the Court. After all, what is the object of appointment of a receiver ? To bring the property under custodia legis, once the receiver is discharged, the tenancy also must come to an end. It further observed that if the object of appointment of receiver is to preserve the property by fastening a tenancy on the successful party, it will be detrimental to the ultimate person who succeeds to the property. With these observations the appeal was allowed and the tenants from the receiver were directed to hand over vacant possession of the disputed property by 31st March, 1995.

From the above case it appears clear that if a tenant from the receiver can be directed to hand over possession consequent upon the discharge of the receiver under the orders of the Court, there is no reason why the same view should not be taken in cases of licensees from a receiver. After all receiver is an officer appointed by the Court and the receiver takes possession of the property with a view to preserve it and collects its rent and profits. He remains Officer of the Court during the pendency of the suit and his acts are performed under the direction and supervision of the Court. His status is that of an agent or officer of the Court and not that of an agent of the party who may ultimately succeed in the suit. Consequently the act of the receiver in permitting the revisionists to occupy the disputed accommodation was nothing more than an act of licence and that too a licence granted by the receiver for and on behalf of the Court and not a licence granted on behalf of the real owner or his successorsininterest. Once the receiver is discharged, his status as an agent or officer of the vanishes and thereupon the person or persons who obtained licence from such receiver are bound in law to hand over possession of the property to the successful party, namely, the real owner of the property

Full Bench of Madras High Court in Arumugha Goundar v. Ardhanari Mudaliar, AIR 1975 Madras 231, also considered the effect of discharge of receiver and concluded that the tenancy from receiver cannot endure beyond receivership. It further held that no statutory protection is available to such tenants who are tenants from receiver during the pendency of a litigation. If no statutory protection is available to such tenants, similar view can be taken in respect of licensees from receiver and licensees also cannot claim any statutory protection. If statutory protection is not available to the revisionists, they cannot be permitted to contend that the oppositeparties should have approached the Prescribed Authority under Section 2A(5) of U.P. Act XIII of 1972. Moreover, a plain reading of Section 2A of the aforesaid Act makes it clear that jt is not applicable to the facts of the case. Section 2A applies only to licence granted by a person occupying a building as owner or as tenant or in any other capacity may permit any other person to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16. Obviously the receiver was neither owner of the accommodation nor tenant of the accommodation. If he in the capacity of a receiver granted licence, it was not a licence within the ambit of this Section nor it was a licence for a period of three months nor was it a licence in respect of the residential accommodation. The accommodation in the occupation of the revisionists is a ''Dispensary and not residential accommodation. Consequently on failure of the revisionists to vacate the disputed accommodation, the oppositeparties could not approach the Prescribed Authority under sub section (5) of Section 2Aof the Act.

Likewise if statutory protection is not available to the revisionists, they cannot be permitted to contend that the oppositeparties should be forced to file a suit for eviction either for dispossession of the revisionists under General Law or under U.P. Act XIII of 1972.

For the reasons aforesaid since no alternative remedy is available to the oppositeparties and execution also could not be moved after dismissal of the suit by Apex Court, they had the only remedy of apJreaching the lower Court, namely, Civil udge, Agra where the suit was filed for the necessary relief. The order passed under Section 151 of the Code of Civil Procedure which is under challenge will be an order, which can be executed as a formal order through execution application.

After the aforesaid analysis, I do not find any illegality in the impugned order. As such the revision has no merit and is bound to fail. The revision is accordingly dismissed. No order as to costs.

Revision dismissed.