Deccan Enterprises vs Premraju @ R. Prem

K.L. Manjunath, J.—An interesting question of law that whether a person claiming through an obstructor can maintain an application under Order 21, Rule 97 CPC after rejection of the application of the obstructor by the Executing Court has been involved in this revision. This case is a classic example to show how the process of Court can be abused by the parties.

Revision Petitioner is a Decree-Holder. Revision Petitioner herein filed an eviction case against one Rajoo in H.R.C. 10010 of 1991 on the file of the Court of Small Causes, Bangalore. Based on a compromise petition, an order of eviction was passed in the aforesaid eviction petition.

The Petitioner herein filed an execution to execute the order passed in H.R.C. 10010 of 1991 in Exc. No. 10073 of 1994. One Mirza Mohd. Yousuf Baig filed a suit on the file of City Civil Judge, Bangalore in O.S. No. 5687 of 1992 contending that he is running the business under the name and style of ''Cottage Arts'' in premises No. 52, M.G. Road, Bangalore and that he has perfected his title to the property by way of adverse possession. According to him the Petitioner herein has no title to the property and that any order obtained by the Petitioner is not binding on him and that the Petitioner herein should be restrained from dispossessing him by means of perpetual injunction.

On 15.7.1994 Mirza Mohd. Yousuf Baig also filed an application in Exc. 10073 of 1994 under Order 21, Rules 97 to 100 and 103 CPC raising obstructions to execute the decree by the Petitioner contending that he is in possession of the shops in question in his own right. The application filed by the said Mirza Mohd. Yousuf Baig came to be rejected by the Executing Court. Aggrieved by the said order, he filed a Regular First Appeal before the High Court in Regular First Appeal 693 of 1994. The Regular First Appeal was rejected by this Court on 12.9.1995. However, the Court while dismissing the appeal observed that D. Hr. M/s. Deccan Enterprises shall not execute the decree as long as the order of injunction granted in O.S. No. 4256 of 1994 is in force.

5.O.S. No. 4256 of 1994 was also filed by Mirza Mohd. Yousuf Baig for a judgment and decree to declare that the order passed in H.R.C. No. 10010 of 1991 on the file of the Small Causes Court, Bangalore dated 7.7.1994 as collusive and fraudulent and that the same was not binding on him. In para-13 of the plaint it is stated by the said Mirza Mohd. Yousuf Baig that he is running ''Cottage Arts'' and a sister concern in the same premises under the name and style of M/s. Kashmir Home Industries. The schedule given to the said plaint is in respect of the property measuring east to west 11-50 metres and north to south 21-10 metres. The order of temporary injunction granted in favour of Mirza Mohd. Yousuf Baig came to be vacated by the City Civil Judge, Bangalore by his order dated 6.12.1995. Therefore, by virtue of vacating the interim order, D. Hr. M/s. Deccan Enterprises was entitled to execute the order passed in H.R.C. 10010 of 1991. Being aggrieved by the order of vacating the injunction, Mirza Mohd. Yousuf Baig filed an appeal before this Court in Miscellaneous First Appeal No. 3696 of 1995; which also came to be dismissed on 12.2.1996. Against the order of dismissal of Miscellaneous First Appeal, the matter was taken up before the Supreme Court in SLP No. 4692 of 1996 and the Supreme Court confirmed the orders of this Court on 18.3.1996.

Mirza Mohd. Yousuf Baig also filed a revision petition before this Court in House Rent Revision Petition No. 1606 of 1995 challenging the order of eviction passed against Rajoo in H.R.C. 10010 of 1991. The Court dismissed House Rent Revision Petition 1606 of 1995 on 22.12.1995 on the ground that Mirza Mohd. Yousuf Baig was not a party to the H.R.C. Petition. Therefore, the Court held that the revision petition filed by him was not maintainable. While dismissing the revision petition, the Court gave liberty to approach the Court to protect his rights, if any, in a manner legally permissible.

Mirza Mohd. Yousuf Baig who lost his Regular First Appeal 693 of 1994 filed against the rejection of his application filed before the Executing Court under Order 21, Rule 97 CPC again challenged the order of rejection of his application under Order 21, Rule 97 CPC dated 24.11.1994 passed by the Executing Court by filing House Rent Revision Petition 789 of 1996 contending that he had filed Regular First Appeal No. 693 of 1994 instead of filing a revision; the said revision petition also came to be rejected by this Court on 25.9.1996.

Being not satisfied with the filing of Special Leave Petition, appeals, revisions and suits, the said Mirza Mohd. Yousuf Baig also filed one more suit in O.S. No. 1100 of 1996 on the file of City Civil Judge, Bangalore for declaration to declare that M/s. Deccan Enterprises had no title to the property and that the order passed in H.R.C. 10010 of 1992 as well as Exc. No. 10073 of 1994 was without jurisdiction and that his possession should not be dispossessed by virtue of order of eviction obtained by the firm M/s. Deccan Enterprises and for various other reliefs. The schedule given to the said plaint discloses the measurement east-west 11-50 meters and north-south 21-10 meters. The schedule also discloses as if the said Mirza Mohd. Yousuf Baig is in possession of running business Cottage Arts as well as a sister concern M/s. Kashmir Home Industries.

After Mirza Mohd. Yousuf Baig losing the battle in all the Courts right from the Executing Court up to the Supreme Court, his nephew R-2 in this revision petition viz., Sheik Shoukat Baig filed an application before the Executing Court on 17.6.1995 under Order 21, Rules 97, 98, 100 and 103 CPC raising obstruction to execute the decree. In the affidavit filed in support of the application Sheik Shoukat Baig has traced title to the property only through the father of Mirza Mohd. Yousuf Baig and according to him, in a family arrangement drawn between Mirza Mohd. Yousuf Baig and him (R-2) Sheik Shoukat Baig, a portion of the property has fallen to the share of him and that he has been carrying on the business under the name and style of Kashmir Home Industries. Therefore, he contended that the order of eviction obtained by M/s. Deccan Enterprises cannot be executed against him. In other words, R-2 Sheik Shoukat Baig claimed title through Mirza Mohd. Yousuf Baig who is an earlier obstructor. The application filed by Sheik Shoukat Baig was resisted by the D. Hr. M/s. Deccan Enterprises. The Executing Court has allowed the application filed by Sheik Shoukat Baig by its order dated 30.6.1998 and thereby permitted Sheik Shoukat Baig to prove his claim in accordance with the provisions of Order-21, Rule 98 Code of Civil Procedure. Therefore, the revision Petitioner has challenged the order of the Executing Court in this revision petition.

I have heard the Counsel for revision Petitioner as well as R-2. It is contended by the Counsel for the Petitioner that Small Causes Court allowed the application of R-2 solely on the ground that R-2 has produced in all 66 documents along with his application and just because R-2 has produced 66 documents, cannot be a ground to allow the application that too when D. Hr. has brought to the notice of the Executing Court about the previous proceedings initiated by the maternal uncle of R-2. When R-2 herein is claiming or tracing the title to the property in question through the earlier obstructor Mirza Mohd. Yousuf Baig, there is no provision under the CPC to entertain an application under Order 21, Rule 97 CPC from any other person who has no independent right, title or interest in the property. It is also canvassed by the learned Counsel for the Petitioner that prima facie the application filed by R-2 establishes that he is claiming right in respect of the portion of the property through his maternal uncle Mirza Mohd. Yousuf Baig. Therefore, R-2 Sheik Shoukat Baig will not get any right to file an application under the same provisions of law as his predecessor in title has lost his case up to the Supreme Court. In other words, it was contended by the D. Hr. that the application of R-2 was clearly hit by principles of res-judicata and that the application filed by him was mis-conceived and that the Executing Court committed an error in allowing the application of R-2. He also contended that Sri Jose Sabastian, learned Counsel, who is representing R-2 before this Court is also an Advocate for Mirza Mohd. Yousuf Baig in all the previous proceedings. In the previous proceedings, very same Advocate has drafted the plaint wherein it is contended by Mirza Mohd. Yousuf Baig that he is in possession of the entire extent of the shop No. 52 running the business under the name and style ''Cottage Emporium'' and also a sister concern by name ''Kashmir Home Industries''. When an Advocate has filed several suits and applications, revision petitions, Regular First Appeals and Miscellaneous First Appeals in respect of the very same property on behalf of Mirza Mohd. Yousuf Baig has also filed an application before the Executing Court on behalf of R-2 by producing the very same document knowing fully well that the claim of Mirza Mohd. Yousuf Baig which has been determined by the Executing Court and also by the appellate Court. In other words, it was contended by the learned Counsel for D. Hr. that R-2 has filed an application only to protract the execution of the decree legally obtained by the revision Petitioner and therefore he requests the Court to allow the revision petition. Learned Counsel for the Respondents Sri Jose Sabastian tried to support the order of the Executing Court. He admits that Mirza Mohd. Yousuf Baig as the maternal uncle of R-2 Sheik Shoukat Baig, he also admits the inclusion of M/s. Kashmir Home Industries in the plaint filed by Mirza Mohd. Yousuf Baig in O.S. No. 4256 of 1994 and he also admits that in the boundaries given in the plaint of O.S. No. 4256 of 1994 and the other suit filed on behalf of Mirza Mohd. Yousuf Baig is inclusive of the shop which is now being claimed by Sheik Shoukat Baig. He also admitted that Mirza Mohd. Yousuf Baig has claimed right to the shops in question through his late father. Even the present R-2 Sheik Shoukat Baig has stated that pursuant to a family arrangement between him and Mirza Mohd. Yousuf Baig he is in possession of business Kashmir Home Industries.

After hearing the learned Advocates for the parties, the questions arise for determination of this Court are:

* Whether R-2 is claiming right in respect of the property in question through Mirza Mohd. Yousuf Baig or his claim has to be considered as an independent one?

** If his claim is through Mirza Mohd. Yousuf Baig, whether an application filed by a person claiming through an earlier obstructor can maintain an application under Order-21, Rule 97 Code of Civil Procedure?

The Learned Counsel for R-2 strenuously contends that R-2 is claiming independent right and that his client is not claiming any right through Mirza Mohd. Yousuf Baig and he contends that the trial Court by considering his application has rightly directed the parties to go for a full dressed trial as the claim of R-2 is an independent and that the same cannot be considered as a case claiming through Mirza Mohd. Yousuf Baig and he further contends that considering the documents produced along with the application the trial Court has allowed the application on merits. Per contra, learned Counsel for the Petitioner contends that R-2 is claiming through Mirza Mohd. Yousuf Baig and that he has not placed any material to show that he has got an independent right over the property and according to the learned Counsel for the Petitioner the Executing Court has committed an error in allowing the application solely on the basis that R-2 has produced the documents along with his application. He further submits that the trial Court should have looked into the documents to verify whether R-2 has made out any prima facie case to consider his case on merits. Learned Counsel for the Petitioner has relied upon the judgment reported in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, . Relying upon this decision, learned Counsel for the Petitioner submits that it was the duty of the Executing Court to look into the application as well as the statement of objections and considering the statement of objections and documents produced by the parties, should have disposed of the application. He has also relied upon another judgment reported in Kazi Akeel Ahmed Vs. Ibrahim and Another, , wherein Hon''ble Supreme Court has held that when a fictitious claim is made by a party, enquiry under Rule-97 is not necessary. Relying upon these two decisions, learned Counsel for the Petitioner requested the Court to allow the petition. Learned Counsel for R-2 has relied upon the following judgments: (1) Paramound Industries Vs. C.M. Malliga, , (2) Noorduddin Vs. Dr K.L. Anand, and he also relied upon the judgment which has been relied upon by the Counsel for the Petitioner viz., Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, . In the back-drop of these decisions and the contentions urged by the parties, let me consider whether the trial Court has committed an error in allowing the application of R-2 filed under Order-21, Rule 97 Code of Civil Procedure. The Hon''ble Supreme Court in Silverline Forum''s case has held as hereunder:

The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which the Executing Court is obliged to determine under R-101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the questions regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, Execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties.

In Kazi Akeel Ahmed''s case, Hon''ble Supreme Court has held as hereunder:

Order 21, Rules 97 and 98 - Objection to the execution of the decree - An application under Order 21, Rule 97 contemplates investigation into the claim made in the application - However in the special facts and circumstances of the case wherein the Respondent No. 2 made fictitious claim as a tenant, it was held that the enquiry under Rule 97 not necessary.

In this case, R-2 has filed an application under Order 21, Rule 97 CPC on 17.6.1995 in Exc. 10073 of 1994 requesting the Court to note down his obstruction and to hold an enquiry in regard to his possession. In para-1 of his affidavit, he states as hereunder:

I am the sole proprietor of M/s. Kashmir Home Industries and STD Booth in the premises bearing No. 52, M.G. Road, Bangalore for number of years. In fact originally the firm was established by late Hajee Mirza Kasim Beig who took the premises from Yusuf Sait Saheb after the death of Hajee Mirza Khasim Beig, obstructor as well as other members continue to be in occupation of the property in question and thereafter a division was effected, obstructor as well as Mirza Mohd. Yousuf Baig, in the family arrangement one of the portion fallen to the obstructor and the other portion fallen to Yusuf Beig, who started a concern under the name and style of M/s. Cottage Arts and the obstructor started the concern under the name and style of M/s. Kashmir Home Industry.

Except stating as above, R-2 has not stated when the portion in his occupation viz., the business of M/s. Kashmir Home Industries, had fallen to his share in the family arrangement. He has also not produced a copy of the family arrangement said to have taken place between Mirza Mohd. Yousuf Baig and him. He clearly admits that the division is taken place between Mirza Mohd. Yousuf Baig and him and he also claims that the father Mirza Mohd. Yousuf Baig had established this firm. Admittedly, Mirza Mohd. Yousuf Baig had filed an application under Order 21, Rule 97 CPC and he has also filed number of suits/other proceedings in respect of the very same property which is inclusive of the portions of M/s. Kashmir Home Industries as well as M/s. Cottage Arts. When the application of Mirza Mohd. Yousuf Baig has been turned down by the various Courts right from Small Causes Court, City Civil Court, High Court as well as Supreme Court, R-2 is once again claiming through Mirza Mohd. Yousuf Baig. In the affidavit, it is not stated by him, whether the division took place prior to Mirza Mohd. Yousuf Baig initiating various legal proceedings before various Courts or subsequent to filing of the cases by Mirza Mohd. Yousuf Baig. R-2 has also filed O.S. No. 1533 of 1996 subsequent to his filing an application under Order 21, Rule 97 Code of Civil Procedure. In the said plaint R-2 has claimed title through Mirza Mohd. Yousuf Baig. In the plaint it is stated that in the division one of the portion of the suit schedule property has fallen to the share of the Plaintiff and the remaining portion in favour of Mirza Mohd. Yousuf Baig. Even in the plaint, he has not given the date of division. In other words, R-2 is claiming through Mirza Mohd Yousuf Baig. It is relevant to note that the very Advocate represented in the Execution Proceedings as well as in all other suits for Mirza Mohd. Yousuf Baig has represented R-2. In O.S. No. 4256 of 1994, schedule given in the plaint reads as hereunder:

The Cottage Arts as well as sister concern M/s. Kashmir Home Industries situated in the portion of premises bearing old No. 22, New No. 52 subsequently clubbed as 52 measuring east-west 11-50 meters and north-south 21-10 meters.

The said suit was instituted by Mirza Mohd. Yousuf Baig before the City Civil Court, Bangalore on 22.7.1994. The plaint has been drafted by the present Advocate who is representing R-2 and even in other proceedings Mirza Mohd. Yousuf Baig is shown as the proprietor of M/s. Kashmir Home Industries as well as Cottage Arts. In the year 1994-95 also Mirza Mohd. Yousuf Baig has claimed ownership of the business which is now being claimed by R-2. Therefore, it is clear that R-2 has not produced any document to show that when actually the division between him and Mirza Mohd. Yousuf Baig took place and from when he has been carrying on the business in his own right, therefore this Court has to hold that R-2 herein is claiming right through Mirza Mohd. Yousuf Baig whose application had been rejected by the Executing Court on an earlier occasion and that the said order of the Executing Court has been affirmed not only by this Court but also by the Hon''ble Supreme Court. So, in the circumstances, relying on the judgment of the Supreme Court in Silverline Forum Private Limited. I have to hold that there was no necessity for the Executing Court to direct R-2 to adduce evidence for such determination. The Executing Court by looking into the affidavit filed by R-2 and the documents produced by D. Hr./revision Petitioner should have held that the case in hand does not involve a detailed enquiry or collection of evidence, based on the admitted facts and on the averments made by the resistor. The very fact that R-2 has not produced any documents to show when actually he became the proprietor of M/s. Kashmir Home Industries, the Executing Court should have held that the claim of R-2 as fictitious and that he has been claiming through Mirza Mohd. Yousuf Baig. Judgments relied upon by R-2 viz., Paramound Industries Vs. C.M. Malliga, is not applicable to the facts and circumstances of this case. The facts involved in this case is whether a person claiming through an earlier obstructor can maintain a petition. Therefore, the said judgment is of no assistance. He has also relied upon the judgment of the Supreme Court in Noorduddin Vs. Dr K.L. Anand, . The said judgment is also of no assistance for him since R-2 has no independent right, as he is claiming through Mirza Mohd. Yousuf Baig. So far as the other judgment of the Supreme Court in Silverline Forum''s case is concerned, I have already followed the said judgment while discussing the case of the Petitioner and therefore the said judgment is also of no assistance for R-2.

Under Order 21, Rule 7 CPC a person who is not claiming through J. Dr. and having an independent right can file an application before he could be dispossessed under process of law. In other words, he can bring to the notice of the Court about his obstruction, and based on such application the Executing Court can also direct the parties to go for a full dressed trial to verify whether the claim of such person is an independent claim. A person who is claiming through J. Dr. has no right to maintain an application under Order-21, Rule 97 Code of Civil Procedure. Similarly, when an application is filed by person claiming through an earlier obstructor whose application under Order 21, Rule 97 CPC has been adjudicated and rejected; cannot maintain an application for adjudication of his claim since he is claiming through an earlier obstructor. Therefore, the second obstructor who is claiming through an earlier obstructor cannot maintain a petition and therefore it has to be held that the application of R-2 is also hit by Section 11 CPC as the same amounts to res judicata.

In the result, revision petition is allowed. The order of the Executing Court in allowing the application of R-2 under Order 21, Rules-97, 98, 100 and 103 CPC is hereby rejected.

An Advocate is also an officer of the Court. He owes a duty not only to his client but also to the Court. Supreme Court in T. Arivandandam Vs. T.V. Satyapal and Another, has held as hereunder:

It may be a valuable contribution to the cause of justice if Counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an Advocate is an office of justice he owes it to society not to collaborate in shady actions. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposed of.

From the above, it is clear that the duty is cast upon the Advocates in avoiding this unrighteous litigation. In the present case, unfortunately, a Counsel who has put in practice of sufficient number of years in the Bar has represented the first obstructor in all the proceedings and has also represented the 2nd Respondent herein who has filed an application claiming his right through the earlier obstructor. Considering the stand of the Counsel in protracting the proceedings of the Court by filing an application through 2nd Respondent which has to be called as a shady litigation of Mirza Mohd. Yousuf Baig. Considering the overall conduct of R-2, petition is allowed with an exemplary costs of Rs. 10,000/-.