Sirsendu Mukherjee vs Rahul Sircar

Basudev Panigrahi, J.—The decreeholders in Ejectment Suit No. 335 of 1987 of the City Civil Court at Calcutta have preferred the instant revisional application against the order passed by the learned VII Bench, City Civil Court at Calcutta allowing the application filed u/s 151 of the CPC in Misc. Case No. 771 of 1987.

The facts leading to the present revisional application are as follows:

That the Petitioner Nos. 1 and 2 and one Smt. Purnima Brahmachari instituted an ejectment suit being Ejectment Suit No. 335 of 1987 in the City Civil Court at Calcutta against the predecessor-in-interest of the opposite party No. 3 i.e. Prakriti Gupta alias Mrs. A. Gupta since deceased. The Petitioners had contended, inter alia, in the said ejectment suit that they are the owners of the suit premises being No. 7A, Short Street, Calcutta and the predecessor-in-interest of the opposite party No. 3 was a premises-tenant under them in respect of the ground floor portion of the said premises with servant''s quarter and a garage at a rental of Rs. 350.00 only payable according to English calendar. Since the erst-while tenant had illegally sub-let and/or assigned a portion of the suit premises to one Vijay Kumar Madhab Bewoor for wrongful gain without the knowledge of the Petitioners and also was a regular defaulter in payment of rent, they have filed the suit for eviction of the tenant. The said suit was decreed ex parte against the predecessor-in-interest of the opposite party and consequently the court directed recovery of possession of the suit premises. The judgment-debtor, namely, the predecessor-in-interest of the opposite party when did not voluntarily surrender the possession, the Petitioners levied an execution case in Ejectment Execution Case No. 4 of 1989. Following such initiation of the execution proceeding the predecessor-in-interest of the opposite party No. 3 moved an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, inter alia, praying for setting aside the ex parte decree dated October 5, 1988. The said application was registered as Misc. Case No. 1219 of 1989. The Petitioners immediately after service of notice of the above misc. case filed their written objections and thereafter the predecessor-in-interest of the opposite party No. 3 having taken no steps in the case, it was dismissed for default. In the meanwhile the original Defendant having died, her legal heir and representative, the opposite party No. 3 was substituted in the Ejectment Execution Case No. 4 of 1989.

After the opposite party No. 3 was substituted in place of the original judgment debtor the writ of delivery was issued which was returnable by August 18, 1993. The Bailiff could not execute the said writ of delivery since there was stiff resistance not only by the opposite party No. 1 but also by opposite party No. 3 and their supporters and companies. Thereafter the Petitioners were compelled to file an application under Rule 208 of the Civil Rules and Orders read with Section 151 of the Code of Civil Procedure, inter alia, praying for necessary orders for granting police aid at the time of delivery of possession by the Bailiff.

On or about September 29, 1993 one of the sublessees, namely, Vijay Kumar Madhab Bewoor filed an application under Order 21 Rule 101 read with Section 151, CPC in the Ejectment Execution Case No. 4 of 1989, inter alia, praying for an order that the ejectment decree was not valid and binding upon him since he was not a party to the suit as well as to the execution proceeding. The said Vijay Kumar Madhab Bewoor had also filed another suit being Title Suit No. 1160 of 1986 in the City Civil Court against the original Defendant inter alia, claiming declaration of his tenancy right over the suit premises. The Petitioners had raised strong objection to the move of the subtenant Vijay Kumar Madhab Bewoor in the application under Rule 101 of Order 21, Code of Civil Procedure.

On August 6, 1994 one Gurnam Singh filed a similar application under Order 21 Rule 101 read with Section 151 of the CPC claiming tenancy right over a portion of the property. The Petitioners have also ''disputed the right of the so called sub-lessee Gurnam Singh. The executing court by its order dated February 18, 1995 and March 28, 1995 held that those applications could not deserve outright rejection and the Petitioners therein should be provided adequate opportunity to establish their claim. Against the said decision the decreeholders, namely, the present Petitioners moved a revisional application in Civil Order No. 2324 of 1995 which was disposed of by the learned Judge by order dated October 26, 1995 confirming the order passed by the executing court. After disposal of the said Rule when the matter was fixed before the executing court the so-called sub-lessees, namely Vijay Kumar Madhab Bewoor and Gurnam Singh did not proceed with their claim made under Order 21 Rule 101, CPC petition. Similarly Arati Ghosh, the opposite party No. 3 also did not contest, as a result the application which was filed by the Petitioners for police help under Rule 208 of the Civil Rules and Orders was allowed and necessary police help was given while taking delivery of possession by the decreeholders/Petitioners. Pursuant to the said order of the learned Judge, City Civil Court the Petitioners were given delivery of possession of the suit premises on March 4, 1997.

The opposite party Nos. 1 and 2 of this revisional application have moved an application under Order 21 Rule 99 read with Section 151, CPC in the City Civil Court at Calcutta on March 6, 1997 seeking declaration that the decree passed in Ejectment Suit No. 335 of 1987 does not bind them and consequently, the ex parte decree passed thereunder be recalled, vacated, varied and/or modified. Petitioners be directed forthwith to restore possession of the suit premises, namely, the ground-floor tenanted portion to them. The said application was registered and numbered as Misc. Case No. 771 of 1997. They simultaneously moved an application u/s 151, Code of Civil Procedure, inter alia, praying for an ad interim order of restoration of possession to them. The matter was fixed to March 10, 1997 on which date the Petitioners had applied for an adjournment for filing written objection. But the learned executing court allowed the application filed u/s 151, CPC after hearing the parties without giving any further opportunity of filing written objection and directed the Petitioners to deliver possession of the tenanted premises including the - vacant space to the opposite parties 1 and 2. Therefore, being aggrieved by such order the Petitioners moved the present revisional application.

Mr. Dutta, the learned senior advocate appearing for the decree-holder/Petitioners has critically placed the impugned order and submitted that here it is a glaring instance where the executing court has in utter disregard of judicial norms, by overstepping its power, directed the Petitioners to hand over the vacant possession of the tenanted premises to the opposite party Nos. 1 and 2. Mr. Dutta has strongly urged that while a third party has filed an application under Rule 99 of Order 21, Code of Civil Procedure, the court could not have granted delivery of possession without it being satisfied that the right of the third party has been invaded and, consequently, he was wrongfully dispossessed by the decreeholders.

From the submission of Mr. Dutta it further appears that though the decreeholder/Petitioners filed a caveat before the executing court and prayed for time to file written objection the court either without allowing or rejecting the said prayer should not have directed the decreeholders to re-deliver possession to the opposite parties 1 and 2, and, particularly, when there was no prayer for granting police aid under Rule 208 of the Civil Rules and Order, how could the Court grant such prayer. If the ad interim prayer under which the possession was directed to be delivered to the opposite parties 1 and 2 is allowed, in true sense the main prayer asked in the petition is deemed to have been allowed. There shall be nothing left to be decided in the main application under Order 21 Rule 101 of the Code of Civil Procedure. Mr. Dutta, the learned senior advocate has placed reliance upon the averment made in the application u/s 144 of the Code of Criminal Procedure where it is said by the opposite parties 1 and 2 that one of the Petitioners (in this revision), his men, agents and associates illegally and unlawfully trespassed into one of the ground-floor rooms of premises No. 7A, Short Street, by breaking open the padlock which was kept under lock and key thereby it was meant that even prior to taking delivery of possession through Bailiff i.e. on March 4, 1997 the opposite parties on their own showing had admitted to have been dispossessed. While this Court exercising its revisional jurisdiction should not dilate the controversial fact in issue so as to find out whether the opposite parties were/are the tenants in respect of any of the portions of the Ground floor, 7A, Short Street.

Mr. Saktinath Mukherjee, the learned senior advocate appearing for the opposite parties 1 and 2 has submitted that his clients are not bound by the ex parte decree obtained by the Petitioners. It was, however, stressed that since the Petitioners have admitted previously that the opposite parties 1 and 2 are in occupation in respect of a portion of the ground floor of premises No. 7A, Short Street with servant''s quarter and a garage, there was no occasion for the decree-holders to omit them in the suit as well as in the execution proceeding. It has been further submitted that the Plaintiffs/decree-holders were aware about the tenancy of the opposite parties 1 and 2 since the opposite party No. 1''s father filed an affidavit in the Title Suit No. 866 of 1986 brought by the Plaintiffs'' predecessor-in-interest that he was a tenant of the entire first floor and also the enclosed varandah of the eastern portion in the ground floor of the main building, all out-houses on the southern compound and garage and a godown of the western compound with the appertenances thereto at premises No. 7A, Short Street. Therefore, in the above background the Plaintiffs/decreeholders could not shut their eyes that they were ignorent regarding the claims of opposite parties 1 and 2. Mr. Mukherjee while supporting the impugned order has submitted that when the manifest error or illegality was brought to the notice of the executing court, which realised that such grave injustice had occasioned to the opposite parties 1 and 2; it immediately directed restoration of possession to them without awaiting full adjudication of the application under Order 21 Rule 101, Code of Civil Procedure. The opposite party No. 1 since the time of his father has been in occupation of four rooms on the ground floor, one servant quarter and one garage along with the open space. The Petitioners could not have taken possession ignoring their claim of lawful tenancy. It is further submitted that the present Petitioners filed a suit in T.S. 2848 of 1995 before the learned Judge, City Civil Court, Calcutta for declaration that the Defendants, namely, the opposite parties 1 and 2 are the monthly tenants under the Plaintiffs therein who have no manner of rights whatsoever to convert the vacant space into a workshop, inter alia, moved for ad interim injunction and their prayer was rejected. Thereafter they could not have taken possession by ignoring the tenancy of the Petitioners. The facts pleaded in the aforesaid suit be stated hereunder:

That by taking advantage of the absence of the Plaintiff from the suit building the Defendants, particularly the Defendant No. 1 has started a motor repairing workshop within the open common space of the suit building behind the back of the Plaintiffs and without their written consent thereby encroaching upon the common space outside the ambit of the tenancy of the Defendants and also are trying to further encroachment over the remaining common space for extending the workshop.

That the Defendants by running the workshop within the residential complex created and have been creating continuous annoyance and nuisance to the neighbours and public at large and inspite of repeated requests the Defendant did not pay any heed thereto.

That the Defendants being the monthly tenants under the Plaintiffs are entitled to use the tenanted portion for residential purpose only but having no right in any manner whatsoever to convert the same into a workshop particularly by encroaching upon common space outside the tenancy without the written consent of the Plaintiffs and the Plaintiffs seek declaration to that effect in this suit.

That the Plaintiff are also entitled to a decree for mandatory injunction directing the Defendants to dismantle the temporary structures made for the purpose of workshop within the common space and to restore the common space at their original possession at their own cost.

Therefore, in this background it cannot be argued that the learned executing court has either committed any illegality or irregularity in directing restoration of possession to the opposite parties 1 and 2. The court is not helpless to undo the injustice it has caused in due process of law. Therefore, the executing court relying on the decision in Smt. M. Nirmala and Others Vs. State of Andhra Pradesh and Others, has passed the impugned order.

The facts involved in this case lie within the narrow campus as to whether the executing court is competent to direct redelivery of possession pending adjudication of the claim by a third party under Order 21 Rule 99 read with Rule 100, Code of Civil Procedure. For appropriate appreciation of the facts of the easel Rules 99 and 100 of Order 21 of the CPC be quoted hereunder:

99 - Dispossession by decree-holder or purchaser-

(1) Where any person other than the judgment-debtor is dispossessed on immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.

(2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

100 - Order to be passed upon application complaining of dispossession - Upon the determination of the questions referred to in Rule 101, the court shall, in accordance with such determination.-

(a) Make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) Pass such other order as, in the circumstances of the case, it may deem fit.

Learned Judge may note here certain undisputed facts, such as, the application have been filed by the third party/opposite parties 1 and 2 under Order 21 Rule 99 and application u/s 151 of the CPC on March 6, 1997. The Petitioners had filed caveat before the executing court. The third party/opposite parties served the copy of the application upon the Petitioners on the date of filing i.e. on March 6, 1997. The matter was moved on March 10, 1997. The Petitioners made a prayer for an adjournment to file affidavit-in-opposition. Despite such prayer, the learned executing court had proceeded to hear out the application without giving any opportunity to the Petitioners and passed the impugned order directing them to deliver possession to the third party/Petitioners.

The third party/opposite parties 1 and 2 have prayed, inter alia, against the Petitioner for declaration that the decree passed in Ejectment Suit was not valid and binding on them, to set aside the ex parte decree and/or the order passed in Ejectment Execution Case 4 of 1989 and to restore possession of the ground floor tenanted portion in the premises 7A, Short Street. If there would be no dispute regarding the tenancy of the third party/opposite parties 1 and 2 in respect of the ground floor of the suit premises, then the order passed by the Executing Court on the application u/s 151 of the CPC cannot be characterised as bad in law. On the other hand, in case it is found that some dispute has been raised by the decreeholder/Petitioners regarding the claim of tenancy of the opposite party/third parties 1 and 2 in respect of the ground floor of the suit premises the prayer for possession would not have been granted without determining, first, the extent of tenancy.

Two other tenants, namely, Vijoy Kumar Madhab Bewa and Gurnam Singh had filed application in the executing court for determination of their tenancy right and in one occasion the matter had come up to this Court which was again remitted to the executing court for determination of their tenancy by an order dated October 26, 1995 in Civil Order No. 2324 of 1995. Immediately following the order those tenants filed an application wherein they admitted to have delivered possession to the decreeholder.

The judgment debtor Smt. Prakrity Gupta filed an application for setting aside the ex parte decree claiming to be the tenant in respect of the entire ground floor together with servant''s quarter, one garage and a lawn or open space on the ground floor. The entire ground floor was the subject matter of the suit and admittedly the Bailiff had granted delivery of possession of the ground flooor.

The Petitioners'' father filed an affidavit in Title Suit No. 866 of 1986 filed by Smt. Gopi Rani Brahmachari that she is the tenant in respect of the entire first floor, four rooms and bath and enclosed varandah on the eastern portion in the ground floor of the main building, all out-houses on the northern compound and the garage and a godown on the western compound with the appertenance thereto at premises No. 7A, Short Street, Calcutta.

Mr. Saktinath Mukherjee, the learned advocate appearing for the third party/Respondents 1 and 2 has argued with strong intensity of conviction that in a suit filed by the decreeholders in Title Suit No. 2348 of 1995 they have admitted that the third party/opposite parties are in possession of the open space where they started a motor repairing workshop within the open common space of the suit building. Mr. Dutta refuted the said submission and had taken me through the pleading of that suit. On a careful reading of the plaint it is revealed that in the aforementioned suit the revision-Petitioners have only pleaded that the third party/Petitioners had constructed temporary structure on the open space for the purpose of motor garage. Whether mandatory injunction for dismandling the said temporary structure could be passed or not, cannot be the subject matter of the revisional application. But suffice it to say that on plain reading of the averment it does not spell out that the decree-holders had admitted unequivocally the possession of the third party/opposite parties on the vacant space.

The opposite party/third parties, in their application under Order 21 Rule 99 have, however, claimed to be a monthly tenant in respect of the entirety of the premises excepting four rooms and servant''s quarter on the ground floor which was under the possession of A. Gupta. Therefore, in this background before directing delivery of possession to the third party/Petitioners, first of all it has to be determined the extent of tenancy claimed by the third parties and their father. In the affidavit filed by the father of the opposite party No. 1 in the title suit No. 866 of 1996 it has been claimed that he was a tenant in respect of four rooms and bath and enclosed varandah as per the narration given therein. But in the application under Order 21 Rule 99 the third parties have claimed the entire ground floor except four rooms and one servant quarter. Besides, the other tenants, who were in the premises abdicated their right in favour of the decreeholders. In such situation it is necessary to adjudicate the nature and extent of tenancy claimed by the third party/opposite parties 1 and 2. Mr. Dutta has stated that although the third parties were aware of fhe ex parte decree, why they did not prefer any application prior to delivery of possession granted by the Bailiff to his clients. All these questions now appears to be academic in view of the fact that the third party/opposite parties had filed the application for setting aside the ex parte decree and for delivery of possession. I do not express further opinion since the matter is not disposed of at this stage and it requires determination after taking evidence from the parties. It is no longer res Integra that a third party, without being driven to a separate suit, can file an application in the executing proceeding for getting his right, title and interest declared and, after amendment of the CPC separate suit is barred. Therefore, the third parties have rightly filed the application for determination of their right.

The subject matter of the suit was in respect of the entire ground floor. Accordingly ex parte decree was passed. The Bailiff also delivered the entire property to the decreeholder. In such background I did not find any illegality that was committed either by the Bailiff or by the decreeholder to take such possession. As per Rule 101 of Order 21 the executing court would be called upon to adjudicate the right, title and interest arising between the parties to a proceeding on an application under Rule 99. Rule 101 is quoted hereunder:

101 - Bona fide claimant to be restored to possession - Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of the property.

Mr. Dutta, the learned advocate appearing for the decreeholder has placed reliance on a decision in the case of Kanagasabhai Pathar Vs. Poornathammal, where it has been held as follows:

Mr. Ramchandra Aiyar points out that the Respondent was entitled under the decree only to possession of the portion of the house occupied by the judgment - debtor but the Petitioner has been evicted from the entire house. If this be true, the Petitioner is not without remedy but certainly the remedy under Order 21 Rule 100, Code of Civil Procedure, will not be open to him in respect of the portion not covered by the decree. It would be a case of excessive execution, i.e. delivery to the decree-holder of property in excess of that to which he was entitled under the decree. In such cases it has been held that the judgment-debtor can get relief u/s 47, Code of Civil Procedure. But I doubt if a stranger to the suit like the Petitioner could invoke the provisions of Section 47, Code of Civil Procedure, in his aid. His remedy might only be a suit based on a cause of action of trespass under colour of a decree. In no event can his remedy be under Order 21 Rule 100, Code of Civil Procedure, because that rule applies only to redelivery of possession of property delivered to the decree-holder in execution of the decree.

It is true, in some cases the court may be called upon to grant relief on an interlocutory application where there is an allegation of abuse of process. It is only in extreme case when the third party is dispossessed without due process of law, then, before determination of the application filed under Order 21 Rule 99, the Petitioners therein would be required to be restored to possession. But the court should be wary and circumspect while granting such delivery because by allowing such relief if would amount to granting substantial relief claimed in the original application before real determination of controversy.

Mr. Mukherjee, the learned senior advocate appearing for the opposite parties has laid great stress upon a judgment of the Apex Court reported in the case of Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. and others, On a careful reading of the aforesaid decision it appeared that the Apex Court propounded the law on some admitted fact of tenancy. But the facts of this case are slightly distinguishable. In the aforesaid case there was no dispute regarding the extent and claim of tenancy of the Petitioners therein. But in the instant case the decreeholder disputes regarding the tenancy right of the opposite parties. Therefore, it necessitated the court for adjudicating the right of the third parties as to the nature and extent of tenancy claimed by them before granting such delivery of possession. Since the decreeholders were granted delivery of possession in terms of the ex parte decree, it could not be said that the Bailiff has exceeded his power by deliverying such property to decreeholders. But at the same time when the decreeholders were aware that the father of the opposite party No. 1 claimed over a portion from the ground floor, it was their bounden duty at least to implead them at the time of execution application. At any rate, after filing of application by the opposite party such position became academic.

It has been argued by Mr. Dutt, placing reliance upon a decision in the case of Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, that-

it is only in very rare cases that a mandatory injunction granted on an interlocutory application and instances where such an injunction is granted by means of an ''ad interim'' order pending the decision of the application itself are almost unknown.

Injunction is a form of equitable relief and it has to be granted in aid of equity and justice to the facts of each particular case.

If a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the ''status quo'' and not granted to establish new state of things, differing from the state which existed at the date when the suit was instituted. The case in which a mandatory injunction is issued on an interlocutory application is where, with notice of the institution of the Plaintiff''s suit and the prayer made therein for an injunction to restrain from doing certain act, the Defendant does that act and thereby alters the factual basis upon which the Plaintiff claimed his relief. An injunction issued in such case in order that the Defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants mandatory injunction even on an interlocutory application, directing the Defendant to undo what he has done with notice of the Plaintiff''s suit and thereby compels him to restore the position which existed on the date of the suit. Even such an order has been made only when the application for an ''ad interim'' injunction pending disposal of the suit which has not been finally disposed of and not during the pendency of the application itself.

Hence where an ''ad interim'' injunction of a restrictive character was granted on 7th of March pending the disposal of the application and on 12th March another order of thenature of mandatory injunction was made by way of implementing what was thought to have been granted by the ''ad interim'' order of the earlier date and the order was not made on the basis of anything done by the non-applicants-Defendants since the institution of the suit and with notice of the Plaintiff''s claim.

Therefore the basis on which ''ad interim'' injunctions of a mandatory character are usually granted under the approved practice were lacking and hence the said order granting a mandatory injunction was not maintainable.

A mandatory injunction scareely be granted on an interlocutory application except on special and exceptional circumstances. If a case is clearly made out and on which basis the court thinks it has to be decided at once or if the act done is a simple and which could be easily remedied or if the adversary attempts to steal a march over the Petitioners, such injunction could be applied and granted. From the narration of the above fact I feel that it could not at once be decided without making an enquiry regarding the rights of the opposite parties 1 and 2.

In the above backdrop of the case I feel it apposite to direct the executing court for determination and adjudication of the tenancy in respect of the suit premises as claimed by the third party/opposite parties 1 and 2. Till any such adjudication is made, it is open to both the parties to make a suitable prayer before the executing court for any interlocutory relief if they so desire. The executing Court shall dispose of the application filed by the third parties within 30 days from the date of communication of the order. Learned Judge further authorise the executing court that he should take up the case on day to day basis till the hearing is concluded and shall decline to adjourn the case on prayer being made by either party without adequate grounds.

Accordingly the revisional application is disposed of in the light of the above discussion.