Paltoo Prasad vs State of U.P. and Others

Hon''ble Dilip Gupta, J.—This petition seeks the quashing of the order dated 14th March, 2007 passed by the Executing Court in Execution Case No.117 of 2005 by which the application filed by the petitioner-judgment debtor under Order 47 of the CPC for permission to lead oral evidence was rejected. The petitioner has also sought the quashing of the judgment dated 21st September, 2011 by which the Revision filed by the petitioner for setting aside the aforesaid order has been dismissed.

It is stated that SCC Suit No.62 of 1972 was filed by the respondents-decree holder for eviction of the petitioner from the shop in dispute situated in District Azamgarh. The suit was decreed by the judgment and order dated 7th August, 2003. It is further stated that the decree holder filed Execution Case No.117 of 2005 in which the petitioner filed an application under Order 47 of the CPC for permission to lead oral evidence. This application was rejected by the Executing Court for the reason that the Executing Court could not go behind the decree and the application was filed merely to delay the disposal of the Execution Case. The Revision filed by the petitioner against the said order has also been dismissed holding that all possible efforts were being made to delay the disposal of the Execution Case so much so that even an application had been filed for amending the Memo of Revision which application had been allowed.

The petitioner has not placed before the Court the order by which the Revision filed by the petitioner for setting aside the judgment passed by the Court of Small Cause was dismissed. The petitioner has also not made any reference to Writ Petition No.9748 of 2004 which had been filed by the petitioner against the judgments of the Court of Small Causes and the Revisional Court. This petition was ultimately dismissed as withdrawn by the judgment and order dated 24th November, 2004.

It is, therefore, clear that though the decree was passed in JSCC Suit No.62 of 1972 by the Court in 2003 but it has not been executed as yet and even the Execution Case is pending for about six years. It also transpires from the records that the application under Order 47, CPC was rejected in 2007 and the Revision to set aside the order was dismissed after four years in 2011.

The Courts below have rejected the application filed by the petitioner for good and cogent reasons as the application was filed by the petitioner merely to delay the disposal of the execution case. What needs to be noticed is that there is no averment in the writ petition as to why it was necessary to lead oral evidence in the Execution Case and even a copy of the application has not been filed in this petition.

The Court is reminded of the note of caution sounded by the Supreme Court in Ravinder Kaur v. Ashok Kumar & Anr. AIR 2003 SCW 7158:-

Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law''s delay and bringing bad name to the judicial system.

The Court is also reminded of what was observed by the Supreme Court in T. Arivandandam Vs. T.V. Satyapal and Another, :-

The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and makes decrees with judicial seals brutum fulmen. The long arm of the law must throttle such litigative caricatures if the confidence and credibility of the community in the judicature is to survive.

The conduct of such unscrupulous tenants in attempting to circumvent the orders of the Courts by adopting dubious ways has been strongly deprecated by the Supreme Court time and again and exemplary costs have also been imposed.

In Gayatri Devi & Ors., Vs. Shashi Pal Singh AIR 2005 SCW 2070 the Supreme Court, in one such case, made the following observations:

This appeal demonstrates how a determined and dishonest litigant can interminably drag on litigation to frustrate the results of a judicial determination in favour of the other side......................

On 1.11.1987 the appellant committed perhaps the gravest blunder of her life of letting out the suit property to the respondent-tenant at a monthly rent of Rs. 13,00/-, which subsequently came to be increased to Rs. 1500/w.e.f. 1.1.1990.

The history of this litigation shows nothing but cussedness and lack of bona fides on the part of the respondent. Apart from his tenacity and determination to prevent the appellants from enjoying the fruits of the decree, there appears to be nothing commendable in the case. Even before us the same arguments of fraud, and that the appellants were not legally owners of the suit property, were pleaded.

In our view, the conduct of the respondent deserves condemnation which we indicate by imposition of exemplary costs of Rs. 20,000/- on the respondent."

In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa & Ors., 2000 SCFBRC 321, the Supreme Court made strong observations against such a tenant when it found that the tenant had adopted dubious methods to defeat the orders of the Court:

It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing or exemplary costs. As noticed, despite eviction order having become final nearly a quarter century ago, respondent No.1 still could not enjoy the benefit of the said order and get possession because of the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs payable by the appellant to respondent No. 1 at Rs.25,000/-.

(emphasis supplied)

In Suresh Chandra Jain Vs. Jai Krishna Swami & Ors., 1993 (2) ARC 484, the Supreme Court also had an occasion to examine a case where the tenant made repeated attempts to hold on to the tenanted premises in spite of the directions given by the Court to vacate the premises and in this connection observed :

This case is of sheer abuse of the process of the Court. The respondents suffered an ex-parte decree which this Court ultimately confirmed and dismissed the SLP No.8382 of 1992 on July 9, 1992. The respondents also had given an undertaking that they will vacate the premises within three months from the date of the High Court order. The High Court order was on July 1, 1992, reported in 1992 (2) ARC 246. They did not vacate. Again they launched upon the second front of litigation and filed a Writ Petition No.3466606/92 which was dismissed by the High Court on August 18, 1992, reported in 1992 (2) ARC 645. Thereafter, a Regular Suit No.400 of 1992 was got filed in the Court of the Civil Judge, Mahura through proxy for declaration and injunction. Civil Suit was dismissed on September 1, 1992 which was confirmed by the Division Bench of the High Court on September 30, 1992. Again in the third round of litigation in execution objecting as to jurisdiction was raised but disallowed by the Executing Court. Two proceedings were initiated against that order one before the Second Additional Civil Judge, Mathura and another by the writ petition in which the impugned orders came to be made. It is stated that the High Court has heard the matter and the orders were reserved. That order does not detain us from disposing of the matter on merits. As stated earlier, this process adopted by the respondents is in sheer abuse of the process of the Court and cannot be permitted to agitate the matter even on points of jurisdiction. The appeals are allowed with exemplary costs fixed at Rs.15,000/-. The orders of the High Court as well as of the District Court are set aside. The Execution Court is directed to give police assistance and to deliver the possession of the property within a period of two weeks from the date of the receipt of this order.

(emphasis supplied).

It is, therefore, a fit case where not only costs should be imposed upon the petitioner for filing a frivolous petition, but a direction should also be issued to the Executing Court to decide the Execution Case very expeditiously since it is pending since 2005.

The writ petition is, accordingly, dismissed with costs of Rs.5000/-which the petitioner shall deposit before the Executing Court within a period of one month from today. The Executing Court shall also decide Execution Case No.117 of 2005 within a period of two months from the date a certified copy of this order is filed by the either of the parties before the Executing Court.