Omkar vs Nagpur Shahar Vinkar Koshti Samaj and Others

Z.A. Haq, J.—The writ petition is filed by the objector (claiming to be sub-tenant) challenging the order passed by the executing Court, rejecting the application (Exhibit No. 50) filed by the petitioner under Order XXIII Rule 3, 3-B r/w Section 151 of the Code of Civil Procedure.

The respondent No. 1 (landlord) had filed the Regular Civil Suit No. 309/2009 under Section 15 of the Maharashtra Rent Control Act, 1999 against the respondent No. 2 praying for decree for recovery of arrears of rent and notice charges. In the said civil suit, a compromise decree came to be passed on 15-3-2010. The respondent No. 2 agreed to handover the vacant possession of the premises given on rent by the respondent No. 1 to the respondent No. 2.

According to the petitioner, he is occupying part of the premises having been inducted as sub-tenant by the respondent No. 2. The petitioner claims that the agreement/compromise entered into between the respondent No. 1 and the respondent No. 2 was illegal and null and void and the compromise decree was obtained by the respondent No. 1 and the respondent No. 2 by suppressing the fact that part of the premises are occupied by the petitioner. The petitioner contends that the compromise decree was obtained by the respondent No. 1 and the respondent No. 2 by playing fraud. The petitioner contends that the respondent No. 1 is seeking to dispossess the petitioner illegally on the basis of the compromise decree obtained by fraud.

Earlier the petitioner had filed an objection under Section 47 of the Code of Civil Procedure, which came to be rejected by the executing Court and the order passed by the executing Court has been maintained by the judgment passed in Writ Petition No. 2630/2012 on 13-1-2014.

After the objection filed by the petitioner under Section 47 of the Code of Civil Procedure has been rejected, the petitioner filed Regular Civil Suit No. 324/2010 praying for the decree for permanent injunction restraining the respondents, their agents, executive members, son and any other person from taking forceful and illegal possession of the premises occupied and possessed by the petitioner, without following due process of law. The petitioner also prayed for decree for declaration that the respondents have no right or authority to evict/dispossess the petitioner without following due process of law. The petitioner prayed for other ancillary reliefs.

The petitioner also filed an application (Exhibit 50) under Order XXIII Rule 3, 3-B r/w Section 151 of the Code of Civil Procedure praying that the compromise decree passed in Regular Civil Suit No. 309/2009 on 23-2-2010 be set aside as it is nullity in the eye of law and it is in executable. This objection has been rejected by the executing Court by the impugned order. The petitioner being aggrieved in the matter has filed this writ petition.

Shri S.G. Malode, the learned Advocate for the petitioner has submitted that the Regular Civil Suit No. 309/2009 was filed by the respondent No. 1 under Section 15 of the Maharashtra Rent Control Act, 1999, praying for decree for recovery of the arrears of rent and notice charges and the respondent No. 1 had not prayed for decree for possession and therefore, the compromise decree passed by the trial Court, for possession of the premises in favour of the respondent No. 1, is without jurisdiction and nullity in the eye of law. In support of this submission, the learned Advocate for the petitioner has relied on the judgment given in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, AIR 1974 SC 471 : (1974) 1 SCC 242 : (1974) 2 SCR 544 . It is further submitted that the respondent No. 1 and the respondent No. 2 had suppressed from the Court the fact that part of the premises in respect of which the compromise decree for possession was passed, were in possession of the petitioner and as the compromise decree was obtained by the respondent No. 1 and the respondent No. 2 by misrepresentation, it amounts to playing fraud on the Court and therefore, the decree was nullity in the eye of law and cannot be executed. The learned Advocate for the petitioner, relying on the provisions of Section 15(3) of the Maharashtra Rent Control Act, 1999 has submitted that the Court could not have passed the decree for possession in favour of the respondent No. 1 as the Regular Civil Suit No. 309/2009 was not for possession but was only for recovery of the arrears of rent.

The learned Advocate for the petitioner, relying on the judgment given in the case of Tara Bai Vs. V.S. Krishnaswamy Rao, AIR 1985 Kar 270 : (1985) ILR (Kar) 2930 has submitted that the Court cannot shut its eyes to the challenge based on the allegations of fraud or misrepresentation and as the executing Court has overlooked this aspect, the impugned order passed by it, is unsustainable.

Shri S.P. Bhandarkar, the learned Advocate for the respondents has submitted that the petitioner has no locus to raise the objection as raised by him. It is submitted that the petitioner claims to be sub-tenant in the suit premises having been inducted by the respondent No. 2, however, the petitioner has not been able to show that he was inducted in the premises as sub-tenant lawfully after obtaining the consent of the respondent No. 1 (landlord). The learned Advocate has relied on the judgment given in the case of Suresh Chand Jain Vs. IIIrd Addl. District Judge and Others, (2001) 10 SCC 508 and has submitted that the petitioner has no independent right to raise the objection to the executability of the decree and the decree is binding on the petitioner. It is submitted that the filing of the objection by the petitioner is an abuse of the process of law and the executing Court has rightly rejected the objection. The learned Advocate for the respondent No. 1 has submitted that the petitioner is occupying the premises without paying any occupation charges since 2004. It is prayed that the petition be dismissed with exemplary costs.

After hearing the learned Advocates for the respective parties and examining the record of the writ petition, I find that the impugned order does not require any interference. It is undisputed that the respondent No. 1 is the landlord of the premises and that the respondent No. 2 was a tenant in the premises. The petitioner has not been able to show that he was inducted as sub-tenant lawfully, with the consent of the respondent No. 1. The objection filed by the petitioner under Section 47 of the Code of Civil Procedure came to be rejected by the executing Court and the order passed by the executing Court was maintained by this Court. Apart from this, the petitioner has no independent right to raise the objection in the execution proceedings as held by the Hon''ble Supreme Court in the case of Suresh Chand Jain Vs. IIIrd Addl. District Judge and Others, (2001) 10 SCC 508 .

The submission made on behalf of the petitioner that the compromise decree passed in Regular Civil Suit No. 309/2009 is nullity as the petitioner was not granted hearing before the compromise decree was passed as required by Order XXIII Rule 3-B of the Code of Civil Procedure, is misconceived.

Order XXIII Rule 3-B of the Code of Civil Procedure reads as follows:

"3-B. No agreement or compromise to be entered in a representative suit without leave of Court- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void."

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation.- In this rule, "representative suit" means,-

(a) a suit under section 91 or section 92,

(b) a suit under rule 8 of Order I,

(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,

(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit."

The requirement of Clause (2) of Rule 3-B of Order XXIII of the Code of Civil Procedure that the Court shall give notice to such persons as it may think fit and as may appear to it to be interested in the suit before granting leave to enter into compromise, is in a representative suit and not in all types of suits. It is not the case of the petitioner that the Regular Civil Suit No. 309/2009 in which the compromise decree came to be passed, was the representative suit. The Regular Civil Suit No. 309/2009 was not the representative suit but was a suit between the landlord and tenant. The explanation below Rule 3-B of Order XXIII of the Code of Civil Procedure explains as to what is meant by "representative suit" for the purposes of Order XXIII Rule 3-B of the Code of Civil Procedure. The Regular Civil Suit No. 309/2009 in which the compromise decree came to be passed does not fall in any of the categories given in the explanation to Rule 3-B of Order XXIII of the Code of Civil Procedure. The submission made on behalf of the petitioner relying on the provisions of Order XXIII Rule 3-B of the Code of Civil Procedure is not only misconceived but the filing of the objection by the petitioner basing the challenge on the provisions of Order XXIII Rule 3-B of the Code of Civil Procedure Code, is an abuse of the process of law. The petitioner has successfully delayed the execution of the decree for more than five years by raising untenable objections. In my view, the prayer made on behalf of the respondent No. 1 for grant of exemplary costs is required to be considered.

In view of the above, I see no reason to interfere with the impugned order. The writ petition is dismissed with costs quantified at Rs. 20,000/- to be paid by the petitioner to the respondent No. 1 within one month.