Asha Devi vs Special Judge,Varanasi & Ors.

Sudhir Narain, J.—This writ petition arises out of an execution proceedings.

Ram Chandra was a tenant of House No. D36/145, Agustkunda, City Varanasi. One Govind Kanthaley was the original landlord. He sold the house to Pasant Rao Vedanti and Smt. Radha Devi Vedanti, respondents Nos. 3 and 4, by sale deed dated 31.3.1983. Respondent Nos. 3 and 4, after purchasing the property, sent a notice to Ram Chandra the tenant on 4.8.1983 demanding arrears of rent for the period 1.4.1983 to 31.8.1983. The notice is alleged to have been served by refusal. Respondent Nos. 3 and 4 filed Suit No. 480 of 1983 in the Court of Judge, Small Causes Court for arrears of rent and ejectment and damages, The tenant did not put in appearance in the suit and the court proceeded ex parte. On 14.3.1984 the suit was decreed ex parte for arrears of rent and ejectment.

Ram Chandra filed an application under Order IX, Rule 13 for setting aside the ex parte decree dated 14.3.1984. The said application was rejected by the Judge, Small Causes Court for noncompliance of Section 17 of the Provincial Small Clauses Court Act. Ram Chandra preferred Misc. Appeal against the said order. During the pendency of the said appeal Ram Chandra died. Smt. Rama Devi and the sons of Ram Chandra filed application for substitution. The substitution application was allowed. The Misc. Appeal was dismissed. The petitioner did not file an application for her impleadment in that Misc. Appeal. After the dismissal of Misc. Appeal, writ petition was filed by the widow and sons of Ram Chandra in this Court. The writ petition was dismissed by this Court on 4.9.1991.

The decreeholder respondents filed application for execution of the decree. The pursuance of the said decree they obtained possession of one room of the disputed accommodation. The petitioner for the first time filed objection under Section 47, C.P.C. in the execution case. The petitioner alleged that the ex parte decree dated 14.3.1994 is nullity and the same cannot be executed. The petitioner further filed an application for restoration of possession which was taken by the decreeholder in the execution case. The trial court rejected the objection of the petitioner filed under Section 47, C.P.C. as well as the application for restoration of possession by order dated 25.1.1993. The petitioner preferred Civil Revision No. 41 of 1993. Respondent No. 1 dismissed the said revision by order dated 10.1.1994. The petitioner has challenged these orders in the present writ petition.

I have heard learned Counsel for the parties. Learned Counsel for the petitioner urged that ex parte decree dated 14.3.1984 is nullity. The court had not passed the decree in accordance with law keeping in view the provisions of Order XX, Rule 4 of C.P.C. The suit was decreed by the Judge, Small Causes Court by delivering formal judgment which runs as under :

"This is the suit for arrears of rent and ejectment.

The deft, has not contested the case and the case has proceeded ex parte against him.

The plaintiff has proved his case through the affidavit 10D.

ORDER

The suit is decreed ex parte against the defolt. The defolt. To vacate the house in suit and deliver the possession to the plaintiff within 2 months and pay Rs. 175 towards arrears of rent up to 15.9.1983. The plaintiff will get mesne profits for pendente lite and future period at the rate of Rs. 32 per annum provided the courtfee is paid in execution.

Dt. 14.3.1984. Sd/ R.N. Misra,

J.S.C.C.

Varanasi."

The plaintiff, in support of his case, had filed an affidavit. Copy of the said affidavit has been annexed as Annexure9 to the writ petition. In the affidavit the plaintiff had stated the facts which were stated by him in the plaint. It was stated by him that a notice dated 4th August, 1984 was sent to the defendant claiming the rent for the period 1st April, 1983 to 31st August, 1983 at the rate of Rs. 32 per month, total Rs. 128 but in spite of service of notice on 16th August 1983 he did not pay any amount and thereby he committed default. It was further stated that the notice was sent demanding arrears of rent and terminating the tenancy. The Judge Small Causes Court while decreeing the suit relied upon the said affidavit. Admittedly the defendant had not put in appearance and did not file written statement in the case.

Learned Counsel for the petitioner urged that the decree was not passed in accordance with law and it was nullity and this objection could have been taken by the petitioner under Section 47 of C.P.C. He has placed reliance upon Rameshwar Dayal v. Banda (dead through his legal representatives) and another, 1993 (1) Allahabad Rent Cases 249. In that case one Rameshwar Dayal had filed suit for arrears of rent and ejectment against. One Habib slating him that he was a tenant. He had also impleaded Banda as according to him the property was sublet to Banda. Banda filed written statement stating that he was not a subtenant. The Judge Small Causes Court came to the conclusion that Habib was a tenant and decreed the suit. Banda filed civil suit on the basis of title in the property. The trial court dismissed the suit holding that Banda failed to prove ownership of the property. Banda filed appeal before the appellate court. His appeal was allowed and the suit was decreed. The judgment of the appellate Court was affirmed by the High Court in second appeal.

Rameshwar Dayal filed Civil Appeal before the Supreme Court. Two contentions were raised on behalf of appellant. Firstly, that the decision given by the Judge Small Causes Court was binding upon Banda and secondly the finding recorded by the Judge Small Causes Court does operate as res judicata. Their Lordships of the Supreme Court held that before the Judge Small Causes Court, Banda had filed written statement and had taken the plea that he is owner of the property. The Judge Small Causes Court has not decided that question. It was further observed that the decree passed by the Judge Small Causes Court must indicate that there is adjudication on the relevant issues which conclusively, determines the rights of the parties. It was found that in that case the Judge Small Causes Court had not noticed the controversy between ithe appellant and respondent. In that case it was held that the decree passed against Banda was non est as far as he was concerned.

In the present case admittedly no written statement was filed by the tenant, Ram Chandra, who was a party in the suit. There was no controversy before the Judge Small Causes Court. The plaintiff had filed an affidavit as a piece of evidence in the case. The Judge Small Causes Court has noticed the contents of the affidavit and had passed the order. The sufficiency of the evidence cannot be a ground to hold that the decree is a nullity.

Learned Counsel for the petitioner has further placed reliance upon Chet Singh v. State of Punjab and others, AIR 1977 SC 1494, where in it was held that the notice to interested parties must be given before an order is passed under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. In K.K. Chart v. R.M. Seshadri, AIR 1973 SC 1311, it was held that before passing compromise decree for eviction of tenant the court must satisfy that the statutory ground exists. Similar view was expressed in Smt. Kaushalya Devi and others v. K.L. Bansal, AIR 1970 SC 838.

Learned Counsel for the petitioner further referred to a passage of Lord Denning from his book ''The Discipline of Law'' wherein observation was made that the distinct on of exercise of power between within and without jurisdiction by a tribunal does not confer any power on the Tribunal to decide a case wrongly on a point of law. When a Parliament sets up a Tribunal it is to decide cases in accordance with law and not contrary to it.

In Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another, AIR 1972 SC 1371, it has been held that the executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto the decree.

These cases have no application to the facts of the present case. As pointed out above the Judge Small Causes Court passed the decree on the basis of the affidavit filed on behalf of the plaintiff as evidence. There was no written statement filed before the Judge Small Causes Court. There was no issue before him The question as to whether there was sufficient evidence to decree the suit cannot be said to be a ground for holding that a decree is nullity.

Learned Counsel for the petitioner then contended that during the pendency of the objections filed by the petitioner under Section 47, C.P.C. The decree holderrespondent filed an application to admit certain documents as evidence. Those documents contained a copy of the original saledeed dated 31.3.1993, carbon copy of notice dated 2.8.1993, acknowledgment due dated 14th August, 1993 and postal receipt. These documents were admitted by the executing court and thereby it committed manifest illegality. Learned Counsel for the respondent contended that these documents were already on the record but as they were withdrawn they were again filed. This fact has been controverted by the petitioner in the objection. It is, however, not necessary to decide this question. The executing court has not relied upon these documents to come to the conclusion with regard to validity of the decree.

It may further be noticed that Ram Chandra had filed an application to set aside ex parte decree. The application was rejected by the trial court. He filed miscellaneous appeal against the said order and during the pendency of appeal he has died. The widow of Ram Chandra, the tenant and his sons filed substitution application. It was open for the petitioner to have filed the substitution application. She never filed an application for substitution. It is only in the execution proceedings the petitioner'' claiming herself as judgmentdebtor, filed objection under Section 47, C.P.C.

Considering the facts and circumstances of the present case it is not a fit case for interference under Article 226 of the Constitution of India. The writ petition is accordingly dismissed with costs of Rs. 500 payable to the plaintiffrespondent within one month from today.