Sky Travels and Another vs Hari Shankar Sharma and Another

A.K. Banerjee, J.—The plaintiff No. 1, Sky Travels is a partnership firm of which Sri P.K. Jain, the plaintiff No. 2 abovementioned and Sri

Ajoy Kumar Sharma, the defendant No. 2 are the partners thereof. The defendant No. 1 is the father of the defendant No. 2 and is the owner of

premises No. 11, India Exchange Place, Kolkata. The Partnership Firm, Sky Travels started their business for travelling agency in a portion of

ground floor of the said premises No. 11, India Exchange Place, Calcutta. Since the defendant No. 2 was admitted in partnership firm on August

31, 1992 the partnership firm started carrying on business at the said place. According to the plaintiff the firm was enjoying 600 sq. ft. carpet area

and was paying rent @ Rs. 1400/- per month. The rent was paid mostly by cheque duly signed by the firm as well as by the defendant No. 2 as

partner thereof. The cheques were drawn on the Oriental Bank of Commerce, Kolkata. Dispute and differences arose by and between the

partners as well as with the defendant No. 1 since December 2001.

On March 7, 2002 at about 5 p.m. some unknown persons numbering approximately 50 along with defendant No. 2 forcibly entered the office

and removed all records, fittings, furniture, airconditioners and computers from the said premises on the plea that there had been eviction decree

passed by the Small Causes Court at Calcutta in Ejectment Suit No. 4 of 2002 in favour of the defendant No. 1. The defendant No. 1 took

immediate possession of the said portion of the premises being occupied by the partnership firm.

Being aggrieved by the said wrongful action on the part of the defendants the plaintiffs filed the above suit inter alia praying for the following

reliefs:--

(a) Decree for recovery of vacant possession of the demised portion of the ground floor of premises No. 11, India Exchange Place, Kolkata-700

001, described in the Schedule being annexure ""A"".

(b) Decree dated 20th June, 2001 passed in Ejectment Suit No. 4 of 2001 by the learned Small Causes Court, Calcutta be adjudged void,

delivered up and cancelled.

(c) Declaration that the said decree dated 20th June, 2001 is illegal null and void.

(d) Perpetual injunction restraining the defendants from interfering with the plaintiffs'' right to carry on business and remain in possession of the

demised portion of premises No. 11, India Exchange Place? Calcutta.

(e) Perpetual injunction restraining the defendant No. 2 from interfering with the smooth running of the business of the plaintiff No. 1 from the

demised portion of premises No. 11, India Exchange Place, Calcutta.

(f) Perpetual injunction restraining the defendants from interfering with the rights of the plaintiff No. 2 to carry on the business of the firm as a

partner in the plaintiff No. 1.

(g) Decree for Rs. 73,75,000/- against the defendants jointly and severally and as pleaded in paragraph 27 above and in the alternative an enquiry

into damages and decree for such sum as may be found due and payable upon such enquiry.

(h) Interim interest and interest on judgment @ 24% p.a.

(i) Receiver

(j) Injunction

(k) Costs

(l) Such further and/or other reliefs.

The plaintiff also filed an application for appointment of Receiver to take possession of the said premises in question together with all movables

that might be found outside the said premises in question as well as mandatory injunction for restoring possession to the partnership firm.

When the said application was initially moved this Court passed an interim injunction restraining the defendant No. 1 from parting with

possession of the said premises in question.

The second application was filed by the defendant No. 1 inter alia praying for dismissal of the suit as well as for vacating the interim order

passed on March 21, 2002 in this regard.

Both the applications came up for hearing and was heard by me.

Mr. Abhrajit Mitra, learned counsel appearing for the plaintiff contended that since the partnership firm was the tenant in respect of the premises

in question the eviction decree passed as against the defendant No. 2 in favour of the defendant No. 1 was not binding upon the partnership firm

and the execution thereof was a nullity and the plaintiffs were entitled to restoration of possession.

It was also contended on behalf of the plaintiffs that the decree passed by the Small Causes Court was a collusive decree as neither the

partnership firm nor the other partner being the plaintiff No. 2 was made party to the said suit. Mr. Abhrajit Mitra lastly ''contended that the

plaintiffs were entitled to coninuance of the injunction as well as restoration Of possession.

On the issue of dismissal of suit Mr. Hirak Mitra, learned counsel appearing in support of the application on behalf of the respondent No. 1

contended that the instant suit is barred by law in view of the provisions of Order 21, Rule 97-101 of the Code of Civil Procedure. Mr. Hirak

Mitra in support of his contention relied on two decisions reported in N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and

Others, , Calcutta High Court Notes, page 28.

Opposing the application for dismissal of suit Mr. Abhrajit Mitra contended that since the execution was complete prior to the filing of the suit

and there was no lis pending before the Small Causes Court, this Court is competent enough to grant relief as prayed for by the plaintiffs. In

support of his contention Mr. Mitra relied on the decision of this Court reported in 1995(1), Calcutta Law Journal, page 434.

Mr. Abhrajit Mitra as and by way of alternative submission contended that assuming the suit was not maintainable before this Court because of

the bar provided in Order 21 of the CPC the other prayers wherein plaintiffs prayed for damages can effectively be gone into in the instant case.

Since the other prayer can be effectively gone into part dismissal of the suit is not permissible in law. In support of his contention he relied on two

decisions reported in 1982 Vol-III, Supreme Court Cases, page 487 and 52, Calcutta Weekly Notes, page 389.

Lastly, he contended that since it was a collusive decree the same was not binding upon the plaintiffs as it was a nullity in the eye of law and the

plaintiffs were entitled to restoration of possession. In this regard, he relied on two Apex Court decisions reported in 2001, Vol-VIII, Supreme

Court Cases, page 543 and 95 Vol-V, Judgment Today, page 496.

I have perused the rival pleadings of the parties. It appears, to me that when all the belongings of the partnership firm were removed from the

office which fact would be borne out from the pleadings it was not possible for the plaintiffs to produce rent receipts or other documents in support

of their claim with regard to tenancy. However, plaintiffs disclosed bank statements to show that the concerned cheques were encashed by the

defendant No. 1. On a specific query made by me learned counsel appearing for the defendant No. 1 admitted encashment of cheques. He,

however, was unable to give any satisfactory explanation in this regard. If the plaintiff No. 1 and the defendant No. 2 were partners of the

partnership firm carrying on business from the said premises of which defendant No. 1 is the owner, in absence of specific proof it can be well be

assumed that those payments were made on account of rent and/or occupation charges and nothing else. If that is so, then there was no occasion

for the defendant No. 1 to obtain an eviction decree as against the defendant No. 2 who is the son of the defendant No. 1 keeping the partnership

firm and the other partner in dark.

I am therefore of the prima facie view that the decree obtained by the defendant No. 1 as against defendant No. 2 was a collusive one. Those

fact is further proved from the bailiffs report wherein it appears that the defendant No. 2 voluntarily gave possession to the defendant No. 1 in

satisfaction of the decree.

However, the present suit, in my view, is squarely barred by the provisions of Order 21 Rule 97-101 of the Code of Civil Procedure. If the

suit is barred in law then no relief can be granted to the plaintiff.

Let me now discuss the cases cited by the parties:--

(i) Manick Lal Memani Vs. Shiva Jute Bailing Ltd. The single Bench decision of this Court was relied upon by Mr. Abhrajit Mitra for the

proposition that part dismissal of the suit is not permissible in law. Here the learned Judge held that under Order 7 Rule 11 the Court has no

authority to reject parts of the plaint. Therefore, even if the prayers for declaration and for injunction may not be maintainable the plaint cannot be

rejected or taken off the file for it discloses cause of action for cancellation u/s 39 of the Specific Relief Act.

(ii) 1982, Vol-III, Supreme Court Cases, page 487 (Rooplal Sathi v. Nachhattar Singh Gill): This case was also relied upon by Mr. Abhrajit Mitra

for the similar proposition as stated hereinbefore to the extent that a part dismissal is not permissible in law. In paragraph 20 and 21 of this

judgment the Apex Court held that striking of paragraph 4 to 18 of the election petition could hardly be supported as part rejection was not

permissible in law.

(iii) 1995(1) Calcutta Law Journal, page 434 (Suvendu Gupta and Anr. v. Calcutta Vyaper Pratisthan Ltd. and Ors.): This Division Bench decision

of this Court was relied on by Mr. Abhrajit Mitra for the proposition that only when lis was pending before the Executive Court the suit was a bar.

In paragraph 5 of this judgment the Division Bench held that by Rule 104 an order has been made appealable subject, only to a pending suit, in

other words once recourse has been taken or allowed to be taken to the process of adjudication, as provided in the amended provision of Order

21 a regular suit cannot be filed for a remedy. In my view, this proposition of law, in view of clear provision of the CPC as amended cannot have

application in the instant case.

(iv) JT 1995 5 496 [Asharqfi Led v. Smt. Koili (dead)]: This judgment was cited by Mr. Abhrajit Mitra for the proposition that when there had

been a collusive decree the same was not binding upon the plaintiff. In this case, the Apex Court held that apart from filing a separate suit for

setting aside a decree on the ground of gross negligence on the part of next friend it is permissible for the minor to avoid a decree if relied on in a

subsequent proceeding, on the ground that the said decree was obtained on account of gross negligence on the part of next friend in the previous

suit.

(v) 2000 3 SCC 543 (Gram Panchayat of Village Nanlakha v. Ujagar Singh and Ors.): This Apex Court judgment was also cited by Mr. Abhrajit

Mitra for the identical proposition as referred to in the preceding paragraph. Here also the Apex Court held that it was open for the statutory

authorities to go into the collusive nature of the suit in the proceeding u/s 7 of the Punjab Village Common Land (Regulation) Act, 1961.

(vi) N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and Others, This case was relied on by Mr. Hirak Mitra for the

proposition that the present suit is a complete bar under the provision of Order 21 Rule 97-101 of the Code of Civil Procedure. Here the Apex

Court held that Rule 97-101 of the Order 21 contained provisions enabling the executing Court to deal with a situation when a decree holder

entitled to possession of the property encounters obstruction from any person. The Apex Court also held that the Court shall determine such issue

dealing with the. application and not by a separate suit.

(vii) 2003, Vol-III, Calcutta High Court Notes, page 28 (New India Assurance Co. Ltd. v. Ashrani and Ors.): For the proposition indicated in the

preceding paragraph Mr. Hirak Mitra referred to this recent decision.

Let me now discuss the relevant law on the subject. Order 21 of the CPC as amended suggested a complete procedure for execution of a

decree passed by a competent Court of law. In case a decree is passed affecting someone''s right without hearing him or without making him a

party such aggrieved person is entitled to ventilate his grievance under this provision at the appropriate stage. In a suit for possession when an

application for execution is made before the execution Court the Court passes order directing bailiff to deliver possession of the immovable

property for which a decree was passed. Rule 97 provides that in case the decree holder is obstructed by any person from obtaining possession of

the property the decree-holder would be entitled to make an application complaining of such resistance or obstruction. Rule 101 provides for

decision on all question including questions relating to right title and interest In the property arising between the parties to a proceeding of an

application under Rule 97 or Rule 99 and the executing Court is competent to decide those questions. Rule 99 provides for an eventuality where

any person other than the judgment debtor is dispossessed of immovable property by the decree holder he can make an application to the Court

complaining of such dispossession. On such application being made the Court under Rule 100 upon determination would make an order allowing

the application and directing the applicant to be put into possession or dismissing the application or passing such other order as the Court may

think fit and proper.

Under Rule 98 upon determination of such question as discussed above in terms of Rule 101 the Court would make an order directing

applicant to be put into possession or to pass such other order as may be deem fit and proper. Under Rule 98(2) when the Court is satisfied that

the obstruction was not lawful the Court would direct possession to be given to the decree holder and the person who were obstructing may be

detained in civil person. Under Rule 103 the adjudication made by the executing Court under Rule 98 or Rule 100 would be treated as decree and

an appeal would lie against the said order treating the same as decree.

Under Rule 104 any order Rule 101 or 103 would be subject to the result of any suit pending on the date of commencement of the proceeding

in which such order is made.

From the aforesaid provisions it appears to me that a complete procedure has been enunciated by which an aggrieved person who is

dispossessed by an executing Court by virtue of a decree can ventilate his grievance under Rule 99 and if the Court is satisfied the said Court can

direct restoration of possession and such order would become final and binding upon the parties Involved in the said proceeding. I also find that

under Rule 101 as separate suit is completely barred. Hence, the present suit asking for setting aside of the decree and for restoration of

possession in my view is not at all maintainable.

The decision of this Court in the case of Suvendu Gupta (supra) in my view cannot have any application in the instant case in view of the

unambiguous provisions of the CPC as discussed hereinbefore.

On the issue of collusive decree I feel that this question can well be gone into by the executing Court if approached by the plaintiff and since the

present suit is not maintainable before this Court such issue cannot be gone into herein.

On the issue of part dismissal I have carefully examined the prayers of the plaint as set out hereinbefore. It would appear that the principal

claim was for recovery of vacant possession of the premises in question by setting aside the decree passed by the Small Causes Court. If that

prayer is not maintainable before this Court decree for damage being a consequential relief cannot be effectively gone into by this Court unless and

until the decree is set aside by the appropriate Court. Hence, in my view, the present suit before this Court is not maintainable in view of Order 21

Rule 101 of the CPC and such application of the defendant No. 1 for dismissal of the suit succeeds.

Since the suit is not maintainable before this Court no interlocutory relief can be granted to the plaintiff and as such the application for interim

relief made by the plaintiff fails.

The Civil Suit No. 133 of 2002 is thus dismissed as being not maintainable in law. The plaintiffs are at liberty to take appropriate steps for

setting aside the decree by applying the same before the appropriate forum.

At the interim stage an order of injunction has been passed restraining the defendant No. 1 from parting with possession. Such injunction would

however continue for a period of six months in the peculiar facts and circumstances so that the plaintiffs can ventilate their grievance before the

appropriate forum.

G.A. No. 1137 of 2002 and G.A. No. 1263 of 2002 are disposed of accordingly. Each party would bear and pay their own cost.

Urgent xerox certified copy would be given to the parties, if applied for.