S.S. Dixit vs Smt. Saroj Bhargava and Others

Hon''ble Dilip Gupta, J.—This petition seeks the quashing of the order dated 29th November, 2011 passed by the Judge, Court of Small Causes, Agra by which the application filed by the petitioner for summoning the witnesses through the process of the Court was rejected. It transpires from the records of Writ Petition No. 1035 of 2011 earlier filed by Saroj Bhargava-respondent No.1 in which the petitioner was arrayed as respondent No.2 that SCC Suit No. 90 of 2008 was filed by Saroj Bhargava for eviction of the defendant Vijay Upadhyay from the building bearing Kothi No. 35, Nehru Nagar, Agra and for recovery of arrears of rent, which building had been leased by the plaintiff in favour of Vijay Upadhyay by the lease dated 4th December, 2004 on a monthly rent of Rs.5,500/-. The Suit, on contest by Vijay Upadhyay, was decreed on 14th July, 2010 for eviction and damages for use and occupation @ Rs.10,000/-per month. Issue No.1 in the said suit was whether the defendant was the tenant of the entire house or only the part of the house and the Judge, Court of Small Causes held that the defendant was the tenant of the entire building.

Feeling aggrieved, the defendant Vijay Upadhyay filed Revision No. 307 of 2010 in the High Court which was partly allowed by the judgment and order dated 11th August, 2010. The decree for eviction was upheld but the damages were reduced to Rs.7,000/-per month. The judgment and order was further assailed by the defendant Vijay Upadhyay in the Supreme Court by filing SLP which was dismissed on 4th October, 2010. The Review Petition filed by the defendant-Vijay Upadhyay in the High Court for review of the judgement and order dated 11th August, 2010 was also rejected on 8th October, 2010.

The decree holder Saroj Bhargava applied for execution of the decree which was registered as Execution Case No. 2 of 2010. The judgment debtor Vijay Upadhyay, however, filed objections u/s 47 of the CPC which were registered as Miscellaneous Case No. 75 of 2010. The objections were rejected by the Executing Court by the order dated 4th November, 2010. The judgment-debtor Vijay Upadhyay also filed an application for review of the order dated 4th November, 2010 which was registered as Miscellaneous Case No. 76 of 2010. Thereafter an application for amendment of the Review Application was filed which was rejected on 15th November, 2010 and the Review Application itself was rejected by the Executing Court on 24th November, 2010.

It transpires that after the tenant had lost from all the Courts, an application purporting to be under Order XXI Rule 97 read with Section 151 of the CPC was filed by the present petitioner S.S. Dixit on 27th November, 2010 in Execution Case No. 2 of 2010 in which it was alleged that the property in question had been let out to the applicant @ Rs.200/-per month by Anand Swaroop Kapoor w.e.f. 1st July, 1975 and the applicant, subsequently sub-let a portion of the tenanted property to Vijay Upadhyay @ Rs.3,000/-per month and his tenancy commenced w.e.f. 1st January, 2003. It was further alleged that the applicant was the tenant and in actual possession of the property but it had come to his notice that SCC Suit No.90 of 2008 had been filed by Saroj Bhargava against Vijay Upadhyay though Saroj Bhargava had never let out any portion of the said house to Vijay Upadhyay and she had also obtained the decree for eviction of Vijay Upadhyay. It was, therefore, prayed that the Execution Case No.2 of 2010 may be dismissed and the applicant may not be dispossessed from the property. These objections were registered as Miscellaneous Case No.77 of 2010.

Saroj Bhargava filed a reply to the aforesaid objections and as the hearing in the Execution Case was being delayed, Saroj Bhargava, filed Writ Petition No. 1035 of 2011 in which Vijay Upadhyay and S.S. Dixit (present petitioner) were arrayed as the respondents for a direction upon the Executing Court to forthwith execute the decree passed in SCC Suit No. 90 of 2008 and to quash the proceedings of Miscellaneous Case No.77 of 2010.

This petition was disposed of on 3rd May, 2011 with a direction to the Executing Court to dispose of Miscellaneous Case No.77 of 2010 within a period of four weeks from the date of presentation of a certified copy of the order and thereafter decide Execution Case No.2 of 2010 within a period of two months.

The order is quoted below:

Heard learned counsel for the petitioner.

Learned counsel for the petitioner states that the petitioner was plaintiff in the suit. The suit was filed for ejectment and recovery of rent. The suit was decreed on 14.7.2010. Against the said order, the plaintiff filed Civil Revision No. 367 of 2010. In the revision, the decree for eviction was upheld, but the damages was reduced from Rs.10,000/= to Rs.7,000/=. The tenant also filed the SLP before the Hon''ble Supreme Court, which has been dismissed on 4.10.2010. The decree was put to execution vide Execution Case No. 2 of 2010. The respondent no.1 filed the objection u/s 47 of the CPC, which has been rejected on 4.11.2010. The review application filed by the respondent o.1 has also been rejected on 24.11.2010. Thereafter, the respondent no.2, who was not party of the suit, has moved an application with the collusion of respondent no.1 that the respondent no.1 was the sub-tenant and he was the main tenant. That application is pending as a Miscellaneous Case No. 77 of 2010.

By means of the present petition, the petitioner is seeking a direction to the Execution court to decide the Execution Case No. 2 of 2010 for execution of the decree passed in SCC Suit No. 90 of 2008, expeditiously, within the time bound period. He further submitted that the application filed by the respondent no.2 is not at all maintainable.

On the facts and circumstances, the writ petition is disposed of directing the Execution Court to dispose of the Miscellaneous Case No. 77 of 2010 within a period of four weeks from the date of presentation of certified copy of the order in accordance to law and thereafter decide the Execution Case No. 2 of 2010 within a period of two months in accordance to law.

The order dated 16th May, 2011 contained in the order sheet of Miscellaneous Case No.77 of 2010 mentions that the aforesaid judgment and order dated 3rd May, 2011 of the High Court was filed on the said date in Misc. Case No. 77 of 2010. The Executing Court was, therefore, required to decide the objections within four weeks from 16th May, 2011 i.e. by 14th June, 2011 but what transpires from the records is that the petitioner-S.S. Dixit kept on moving applications after applications as a result of which Miscellaneous Case No. 77 of 2010 has not been decided till date.

In this connection it needs to be noticed that the petitioner wanted evidence to be led in this Misc. Case and for this purpose examined himself. An application was filed by the petitioner on 13th July, 2011 containing a list of witnesses to be examined. The Court ordered that the witnesses may be served by Dasti summons. Soon thereafter on 15th July, 2011 the petitioner moved an application that the Court may issue the summons to the witnesses as they were not accepting the Dasti Summons. The Court ordered for issue of summons. On 28th July, 2011 the Court again ordered for issuance of Dasti Summons for 8th August, 2011. The petitioner, however, moved an application for setting aside the aforesaid order dated 28th July, 2011.

On 30th July, 2011 the petitioner again moved an application that the Court may issue the summons to the witnesses. The Executing Court after noticing that the High Court by its order dated 3rd May, 2011 had directed for disposal of the Misc. Case No. 77 of 2010 in four weeks and that the applicant was trying to delay the proceedings granted one more opportunity to the applicants to again serve Dasti Summons on the witnesses and produce them on 19th August, 2011.

On 8th August, 2011 the Court again directed for issuance of the Dasti Summons. The petitioner, however, again moved an application on 17th August, 2011 which was numbered as 57-Ga for setting aside the order dated 8th August, 2011 and for issuing summons through the Court. The petitioner thereafter moved another application dated 28th November, 2011 (89-C) that the Court may issue summons under Order XVI Rule 1 of the Code of Civil Procedure. This application has been rejected by the Executing Court by the order dated 29th November, 2011. It is this order dated 29th November, 2011 that has been assailed in this petition.

The order dated 29th November, 2011 mentions that on the earlier occasions the petitioner had moved such applications on which orders had been issued that the petitioner may take Dasti Summons and ensure the presence of the witnesses with a specific stipulation that application for adjournment in future shall not be entertained. Such order was also passed on 28th July, 2011 but instead of producing the witnesses, the applicant was repeatedly moving applications. The Court, accordingly, rejected the application and ordered that the petitioner may produce his evidence on 2nd December, 2011 failing which it will be presumed that he does not have any intention of producing evidence and the application will be listed for hearing.

It is submitted by Sri S.K. Varma, learned Senior Counsel appearing for the petitioner that when the witnesses had refused to accept the Dasti Summons, the Court should have, under Order XVI Rule7-A(4) of the Code of Civil Procedure, reissued such summons.

Sri M.K. Gupta, learned counsel appearing for the respondent-Saroj Bhargava has, however, submitted that the petitioner has only been set up by the earlier defendant Vijay Upadhyay after he had lost from the Court of Small Causes, High Court and the Supreme Court so as to stall the execution proceedings and despite the judgment and order dated 3rd May, 2011passed in Writ Petition No. 1035 of 2011 that Miscellaneous Case No.77 of 2010 should be decided within a period of four weeks, the petitioner is only interested in delaying the disposal of the case as a result of which the Execution Case has also been delayed.

It is seen from the records SCC Suit No.90 of 2008 filed by Saroj Bhargava (respondent No.1) was decreed on 14th July, 2010 against which the defendant had filed a Revision in the High Court and as the decree for eviction was maintained, he had also filed SLP before the Supreme Court, which was dismissed on 4th October, 2010. When the decree was put to execution, the defendant Vijay Upadhyay resisted it and filed objections which were rejected by the Executing Court on 4th November, 2010 and the Review Petition was also dismissed by the order dated 24th November, 2010. It is thereafter that S.S. Dixit has filed Miscellaneous Case No.77 of 2010 on 27th November, 2010 by filing objections purporting to be under Order XXI Rule 97 of the CPC with the allegations that in fact he was the tenant and he had sub-let one portion of the tenanted house to Vijay Upadhyay.

It is the applicant who desired to produce the witnesses by giving the list. The Executing Court has repeatedly issued Dasti Summons to him for attendance of his witnesses, yet instead of producing the witnesses he has been filing applications after application with a prayer that the Court may issue the summons. It is more than apparent that the petitioner is delaying the disposal of the case. The Court, in the facts and circumstances of the case, was justified in rejecting the application.

What needs to be noticed is that though Vijay Upadhyay was a defendant in Writ Petition No.1035 of 2011 in which the Court had issued directions on 3rd May, 2011 for disposal of Miscellaneous Case No. 77 of 2010 within a period of four weeks and such order was filed in the said Misc. Case before the Court on 16th May, 2011 as is recorded in the order-sheet, yet the said case has not been disposed of till date even though more than eight months have lapsed. In fact, the Execution Case No. 2 of 2010 was also required to be decided within two months.

In this connection, learned counsel for the respondents has placed reliance on the observations made by the Supreme Court in Atma Ram Builders P. Ltd. Vs. A.K. Tuli and Others, which are as follows:-

It is deeply regrettable that in our country often litigations between the landlord and tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court. The time has come that this malpractice must now be stopped effectively.

This petition is, accordingly, dismissed with the direction to the Executing Court to decide Miscellaneous Case No.77 of 2010 within three weeks from today, in case it has not already been decided, without giving any adjournment to the petitioner and thereafter proceed to decide Execution judgment and order dated 3rd May, 2011.