Chandan Devi v. Iind Additional District Judge, Nainital

M. C. Agarwal, J.-

The facts of this case as narrated hereinafter bring into lime light a very depressing feature of our judicial system and show how an unscrupulous citizen aided and abetted by a mercenary lawyer can obstruct the course of justice when the Judicial officers are not conscien­tious enough and have no resolution to ex­ecute judicial orders.

2. The petitioner is a landlady and respondent No. 6 is her erstwhile tenant who in spite of an order of eviction passed under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') is putting all sorts of obstacles in the execution of the order of eviction. The respondent No. 6 is occupying a shop situate at lahsil Line, Ram Nagar, district Nainital, on behalf of the petitioner. The monthly rent agreed was Rs. 150/-. The landlady re­quired the shop for her personal need to set up her son in business. She, therefore moved an application under Section 21(1) (a) of the Act for the eviction of the respon­dent No. 6. The said application was moved on 3rd September, 1985, and, after due con­test by the respondent No. 6, was allowed by the prescribed authority by order dated 12th August, 1988. The respondent No. 6 preferred an appeal to the District Judge that was dismissed on 30th June, 1990. The respondent No. 6 then came to this Court in Civil Misc. Writ No. 18073 of 1990 challeng­ing the order of eviction and the writ peti­tion was dismissed on 14th May, 1991.

3. The landlady petitioner then moved an application for enforcement of the order of eviction. This was done vide application dated 30th May, 1991, registered as execu­tion case No. 3 of 1991, and since then be­cause of repeated judicial hindrances created by the tenant respondent No. 6, she has not been able to evict the respondent No. 6 to satisfy her need of establishing her son in business.

4. As stated in the petition, the tenant filed an objection in the executing court that was numbered as 6-Ga. He also filed another objection purporting to be under Section 47 read with Section 151 of the Code of Civil Procedure. That was registered as Miscellaneous Case No. 4 of 1991. Both these objections were rejected by the prescribed authority vide separate order dated 28th August, 1991, copies of which are Annexures '4' and '5' to the writ petition. The judgments copies of which are Annexures '4' and '5', show that both the objections were identical in nature and one of the objections was that the son whose need was set up in the application under Section 21(1) (a) of the Act was not the legally adopted son of the landlady.

5. Even before the aforesaid objections were finally disposed of, the tenant moved another application on 19th August, 1991, before the prescribed authority that there had been a compromise between him and the landlady whereby the landlady agreed to continue him as a tenant on enhanced rent. That application too was rejected vide the aforesaid orders dated 28th August, 1991.

6. The respondent No. 6 filed Civil Revision No. 59 of 1991 before the District Judge, Nainital, against the order passed in Misc. Case No. 4 of 1991 by which the objec­tions purporting to be under Section 47, CPC were dismissed. A copy of the memorandum of revision petition is Annexure '7' to the writ petition. The District Judge granted an ex pane stay order on 5th September, 1991. The landlady then came to this Court challenging the stay order, but the writ petition was dismissed in limine on 24th October, 1991. This Court, however, directed that the revision petition be dis­posed of within a period of three months.

7. The tenant respondent No. 6 in an­ticipation of the rejection of his objections, filed a suit No. 161 of 1991 on 27th August, 1991 before the Civil Judge, Nainital, for declaration and permanent injunction pray­ing that he be not dispossessed in execution of the aforesaid order of eviction. A copy of the plaint is Annexure '9' to the writ petition which shows that the contention raised was that Deepak Kumar, the person whom the landlady claimed to be her son, was not her son and was the son of natural father Dina Nath. The adoption was alleged to be illegal and non-existent. It was also claimed that the present petitioner was not the exclusive owner of the shop. In the said suit, an ap­plication for interim injunction was also made, but was rejected by the Civil Judge vide order dated 4th September, 1991. An appeal preferred by the respondent No. 6 against the said order dated 4th September, 1991, was dismissed.

8. The tenant also filed another suit No. 202 of 1991 in the court of Munsif, Kashipur. A copy of the plaint is Annexure '10' to the writ petition. In this suit, the agreement dated 15th July, 1991, alleged to have been arrived at between him and the landlady was set up. It was claimed that the landlady had agreed to enhance the rent to Rs. 250 and he had paid a sum of Rs. 2, 100 towards rent by a cheque and an agreement was also executed between the parties. It was, therefore, prayed that she be restrained from evicting him in pursuance of the order of eviction passed in case No. 71 of 1985 and execution case No. 3 of 1991. In this suit, an application for ad interim in­junction was moved which was dismissed by the trial court on 23rd September 1991.

9. The respondent No. 6 then filed an appeal, being Misc. Civil Appeal No. 92 of 1993, with an application for condonation of delay. The said appeal was allowed vide order dated 8th March, 1994, and setting aside the order dated 23rd September, 1991, the case has been remanded to the trial court for reconsidering the application for interim injunction.

10. After the order of remand, the respondent No. 6, again moved an applica­tion dated 19th April, 1993, for an interim injunction which has been allowed by the trial court vide its order dated llth May, 1994. A copy of the order passed is Annexure 12' to the writ petition. The order states that till the disposal of the original application for interim injunction, the par­ties will maintain status quo.

Not only this, the tenant had also moved an application dated 3rd September, 1991, before the District Judge seeking transfer of execution case No. 3 of 1991 to some other court. The transfer application was rejected vide order dated 20th August, 1993. The tenant came to this Court in a writ petition and this Court set aside the order dated 20th August, 1993, and directed that the transfer application be disposed of along with the revision petition No. 51 of 1991. Neither the transfer application nor the revision petition seems to have been disposed of by the District Judge Nainital, in spite of a direction by this Court that the revision petition be disposed of within three months.

11. The petitioner's grievance is that the respondent No. 6 has been obstructing the execution of the order of eviction by incessant litigation launched before various courts. It is contended that the suits were not maintainable after the application under Section 21(1) (a) of the Act was final-y decided and the order passed by the Ilnd Additional District Judge remanding the inunctions application to the trial court was llegal. It is also claimed that the conduct of the respondent No. 6 amounts to dis­obedience of the judicial orders and is con­temptuous. The petitioner, therefore, has prayed(1) a writ of mandamus directing the prescribed authority to enforce the order of eviction (2) a direction for quashing the proceedings of suit Nos. 164 of 1991 and 202 of 1991, Transfer Application No. 93 of 1991 and Civil Revision No. 59 of 1991 and (3) a further writ for quashing the order dated 8th March, 1994, passed by the Ilnd Additional District Judge in Misc Civil Appeal No. 92 of 1993 and the order dated 11th May, 1994 passed by the Munsif, Kashipur, in suit No.02 of 1991. It is further prayed that any other suitable writ, order or direction as may be deemed fit in the circumstances of the case be also made.

12. The respondent No. 6 has filed a counter-affidavit which is sworn by his son Rakesh Kumar Gupta. It is claimed that the writ petition is not maintainable, as the petitioner has the alternative remedy of filing an appeal. It is claimed that the suit No. 164 of1994 (the correct number is suit No. 164 of 1991) has been filed to claim a declaration that the respondent No. 6 is a tenant of the property and the petitioner can file an appeal before the District Judge and the writ petition is not maintainable. It is claimed that the petition under Section 21(1) of the Act was filed on false grounds inasmuch as Deepak Kumar was not 18 years old, as alleged in that application, and his correct date of birth was 30th November, 1968, as against 30th September, 1968, stated in the said application, and this showed that he was not the adopted son. It is claimed that the fraud regarding adoption came to the knowledge of the respondent No. 6 after the decision of the application under Section 21(1) (a) of the Act. It is claimed that the adoption was the sine qua non of the application under Section 21(1) (a) of the Act and was, therefore, challenged in the said suit, it is claimed that in both the suits, the question of adoption and fresh tenancy has been raised. It is claimed that the order passed by the revisional court on 5th September, 1991, has been confirmed by this Court and, as such, there is no occasion to file the present writ petition. It is claimed that the respondent No. 6 is safe- guarding his rights by taking recourse to judicial proceedings and he cannot be debarred from seeking reliefs in the civil court.

13. I have heard Sri S. K. Mehrotra, learned counsel for the petitioner, and Sri Rajesh Tendon, learned counsel for the respondent No. 6.

14. As regards the preliminary objec­tion, that the petitioner has an alternative remedy of filing an appeal against the order dated llth May, 1994, it is true that an appeal against the said order is main­tainable, but it is settled law that existence of an alternative remedy is not an absolute bar to the jurisdiction of the High Court under Article 226 of the Constitution of India. Further, the remedy has to be effica­cious in the circumstances of the case. The facts, as narrated above, indicate that the respondent No. 6 is indulging in repetitive litigation raising the same points which he raised in the proceedings under Section 21(1) (a) of the Act or should have raised there and the Courts have not acted with due promptitude in curbing his attempts to thwart the course of justice and obstruct the execution of an order of eviction that has been upheld even by this Court. As already stated, a highly belated miscellaneous ap­peal was entertained and was allowed and the trial court instead of deciding the in­junction application that was already pend­ing made an interim order obstructing the execution till the disposal of the earlier in­junction application. And in the court of the District Judge, a Civil Revision filed, in the year 1991 and a transfer application, that must have become in fructuous by lapse of time, has not yet been disposed of. The tenant filed repetitive objections; one pur­porting to be under Section 23 of the Act and the other under Section 47, CPC. This was a deliberate attempt to multiply and confuse the proceedings.

15. Then one suit, being suit No. 164 of 1991, was filed in the court of the Civil Judge a day before the rejection of the aforesaid objections and another suit No. 202 of 1991 was filed in the court of the Munsif a day after. In such circumstances, the landlord cannot be relegated to the superficial alter­native remedy because here is a tenant who can institute any type of proceedings and there could be no end to his litigious tactics.

16. As already stated, the tenant chal­lenged the order of eviction by filing an appeal under Section 22 of the Act before the District Judge. Having failed there, he filed a writ petition in this Court, being Civil Misc. Writ No. 18073 of 1993, which too was dismissed. A copy of this order has been annexed with the writ petition. The order shows that the contention that Deepak Kumar is not the adopted son of the landlady, was raised before this Court and this Court did not find any infirmity in the finding of the courts below on this point. The tenant then filed a double set of objec­tions, as stated above, which were rejected and the prescribed authority vide order dated 28th August, 1991, rejected the tenant's objection in exercise of powers under Section 23 of the Act. Sub-section (2) of Section 23 of the Act says that an order passed by the prescribed authority in proceedings under Section 23 of the Act shall be final meaning thereby that no ap­peal or revision lay against that order and even a suit would not be maintainable to frustrate an order passed under Section 21(1) (a) and Section 32 of the Act. By another order of the same date, the objec­tions under Section 47 read with Section 151, CPC and Section 23 of the Act were also dismissed and that order too could not be challenged by filing a revision, appeal or suit.

17. It is also important to bear in mind that in suit No. 164 of 1991, the tenant's application for interim injunction was dis­missed and an appeal, being Misc. Appeal No. 72 of 1991, was also dismissed. Yet the learned Munsif by the impugned order dated llth May, 1994, frustrated those or­ders by passing an order directing the par­ties to maintain status quo. It is important to remember that by way of legal trickery, the respondent No. 6 filed two suits for the same relief by splitting the cause of action. In suit No. 164 of 1991 filed in the court of the Civil Judge, he set up the pleas that the adoption was invalid and the landlady was not the exclusive owner of the property as the grounds for obstructing eviction while in suit No. 202 of 1991 filed in the Court of the Munsif, Kashipur, be set up the plea that there was a subsequent compromise.

18. Both these suits were not main­tainable in face of the order under Sections 21(1) (a) and 23 of the Act. The pleas raised therein were barred by resjudicata and the alleged compromise by which the landlady is alleged to have agreed to let out the premises at a higher rent was illegal, as the landlady could not let out the accommoda­tion without an order at allotment (See Nutan Kumar v. Additional District Judge, (1993(2) ARC 1089 (FB)].

19. In the facts and circumstances of the present case, it did not require any legal ingenuity to assume that the alleged com­promise dated 15th July, 1991 was an at­tempt resulting from frustration. The landlady having contested the case for six years up to the High Court, there was no sense in her agreeing to a small rise in the rent from Rs. 115 to Rs. 250/- per month and promptly Denying the agreement. The observation of the learned Additional Dis­trict Judge, that an Account Payee cheque could not be deposited in the bank account of the landlady Chandan Devi by another person without her consent is without any basis and reflects lack of knowledge of the practice in the banks. When money is deposited in a bank account, either by cash or by a cheque, the odemtotu of the person depositing the money is of no consequence and for depositing a cheque in a bank ac­count, only a Pay-in-slip form is to be filled in. These forms are available freely on the counters of the banks and anyone can pick up one and deposit money or cheque in any bank account. Therefore, it was not the least difficult for the tenant to deposit an Ac­count Payee cheque in the account of the landlady. Looking to the entire facts and circumstances of this case in the light of the tenant's conduct, it is impossible to believe that there could be any compromise, as al­leged by the tenant.

20. In the face of the facts and cir­cumstances, as discussed above, a question arises as to what can be done by this Court. In Malik v. Munsif Magistrate, 1996(1) ARC 344, a learned Single Judge of this Court quashed the proceedings of a suit instituted by the sons of the tenant against whom an order of eviction had become final having been contested up to the High Court. This Court had found that the suit was an abuse of the process of the Court and quashing the proceedings in the suit, awarded Rs. 2, 000/-as costs.

21. In Smt Raj Kumari v. Civil Judge, 1986 (2) ARC 469 also, the tenant of a shop adopted a litigious attitude to thwart the order of eviction that had become final. The tenant filed several suits and obtained an injunction against the order of eviction. The landlady came to this Court in a writ peti­tion under Article 226 of the Constitution of India seeking, inter alia, quashing of the proceedings of the suit. On behalf of the tenant, it was contended that against an order of injunction, an appeal lies under Order XLIII, Rule 1, CPC. This Court held that in a case of abuse of the process of the Court by repetitive litigation, an appeal was not an efficacious alternative remedy.

22. Smt. Mahadevi v. Civil Judge, 1987 (1) ARC 407 is another case on the point in which this Court held that existence of al­ternative remedy is not an absolute bar against entertaining a writ petition in cases of abuse of the process of the Court. In that case, the order of eviction having become final, the tenant's father entered the arena and filed objections as well as a suit and obtained an injunction. This Court quashed the injunction order and issued a mandamus to the prescribed authority to enforce the release order. Similar was the situation in Ram Sewak Gupta v. 1st Additional Civil Judge, 1988(2) ARC 582.

23. In Syed Asadullah Kazmi v. Addi­tional District Judge, 1981 ARC 543, the Hon'ble Supreme Court held that an order of release acquires finality when proceed­ings taken against it by tenant fails and the prescribed authority is bound to give effect to that final order. The Kon'ble Supreme Court further held that to take into account any subsequent event would by beyond the jurisdiction of the prescribed authority be­cause it amounts to reopening of the con­troversy finally set at rest.

24. Cases of tenants leaving no stone unturned to keep eviction at bay and resort­ing to repetitive litigation are not rare. Rather they are becoming quite common. One such case, again from Uttar Pradesh reached the apex court in Suresh ChandJain v. Jai Kishan Goswami 1993(2) ARC 484, . The Supreme Court observed that the course adopted by the tenant was sheer abuse of the process of Court. Quashing the orders passed by the District Judge as well as by the High Court, the Superme Court awarded exemplary costs of Rs. 15, 000/- and directed police assistance to be provided for delivery of possession to the landlord.

25. Tenants are not the only persons to indulge in judicial trickery. At times, a landlord may also resort to the same. One such case came before the Hon'ble Supreme Court in a writ petition under Article 32 of the Constitution of India. The Judgment of the Hon'ble Supreme Court is reported in Jhumman Singh v. CBI, AIR 1995 SC 2083. In that case, the tenants were occupying commercial property in Delhi. The third respondent manipulated decrees in favour of two persons from Gaya and Gauhati Courts and then claiming to have purchased those decrees got them transferred to Delhi Court for execution. The eviction was resisted and the clandestine process could not succeed. The tenants directly ap­proached the Hon'ble Supreme Court under Article 32 of the Constitution of India claiming that they had never been to Gaya or Gauhati and the decrees were a fraud. They even sought a direction to the Central Bureau of Investigation to investigate the matter. The Hon'ble Supreme Court quashed the decrees finding that it was a case of blatant abuse of the process of the Courts and judicial system and the Supreme Court has power, indeed a duty, to rectify it. The Hon'ble Supreme Court also directed the landlord to pay exemplary costs in the sum of Rs. 1, 00, 000.

26. In Grindleys Bank v. ITO AIR 1980 SC 656, Hon'ble supreme Court, held that while exercising jurisdiction under Article 226 of the Constitution of India, the interest of justice requires that any underserved or unfair, advantage gained by a party invoking the jurisdiction of the Court must be neutralised. Institution of litigation by a party should not be permitted to confer an unfair advantage on the party responsible for it.

27. One of the reasons why tenants are encouraged to indulge in frivolous litigation to avoid eviction is that they occupy the disputed premises at rents that are a pit­tance and disproportionately lower than what a similar accommodation would be available for in open market. They take undue advantage of a lacunae in the Act. Under Section 21 of the Act, the prescribed authority can order eviction, but the Act is silent about arrears of rent and damages for continued use and occupation after the evic­tion is ordered. By virtue of Section 21(6) of the Act, the tenancy stands determined on the expiration of a period of thirty days from an order under sub-section (1), (1-A) or sub-section (2). There is no provision akin to Order XV, Rule 5 of the Code of Civil Procedure to protect the interest of the landlord in respect of arrears of rent and no specific power has been granted to compen­sate the landlord where the tenant does not comply with the order of eviction, and puts the landlord to loss by denying him the use of his property and continues to gain unfair advantage by occupying the property. The power to order recovery of arrears of rent and damages/mesne profits for further oc­cupation at the market rate, uncontrolled by the act (13 of 1972), requires to be specifi­cally conferred on the prescribed authority not only to protect the interest of the landlord, but also to save the Courts from unscrupulous litigants like the respondent No. 6 so far as the High Court is concerned, on the basis of the authority of Grindley's Bank (supra) it is permissible to this Court to make a suitable order to neutralise the effect of the respondent No. 6's illegal ways of obstructing the course of justice and avoiding eviction for such a long time.

28. The tenant respondent No. 6 had pleaded that newly constructed shops were available at Rs. 600/- p.m. It is so mentioned in the judgment of this Court dated 14th May, 1991 in Civil Misc. Writ No. 18073 of 1990. This is the advantage the tenant has been gaining by keeping eviction at bay and this must be neutralised by this Court in exercise of powers under Article 226 of the Constitution of India.

29. It was contended by the learned counsel for the respondent No. 6 that in this petition, quashing of proceedings of suits is sought and, therefore, the writ petition is cognisable by a Division Bench of this Court because a single Judge can entertain a writ petition directed against revisional or ap­pellate orders This contention is not cor­rect. Under the orders of Hon'ble the Chief Justice, all rent control matters are cog­nizable by a single Judge irrespective of whether the impugned order is passed by the trial court or the appellate court or revisional court. Though the petitioner challenges suits filed under the Code of Civil Procedure, yet the matter remains a rent control matter because the attack is on the eviction order under Section 21 of the Act. Therefore, this writ petition relates to a rent control matter and is cognizable by a single Judge.

30. Under Article 226 of the Constitu­tion of India, the High Court has the power of superintendence over the subordinate courts and in view of the peculiar facts of this case, it is necessary to invoke the juris­diction under Article 227 along with the ex­traordinary jurisdiction under Article 226 of the Constitution of India.

31. For the reasons aforesaid, this writ petition is allowed and it is directed as under:

1. Proceedings of suit No. 164 of 1991, Beni Ram Gupta v, Smt. Chandan Devi, in­stituted in the Court of Civil Judge, now Civil Judge (Senior Division), Nainital and of any proceedings arising from the said suit byway of appeal, revision etc. are quashed.

2. Proceedings of suit No. 202 of 1991, Beni Ram Gupta v. Smt. Chandan Devi, in­stituted in the Court of Munsif, now Civil Judge (Junior Division), Kashipur, District Nainital, and of any proceedings arising from the said suit by way of appeal, revision etc. are quashed.

3. Proceedings of Transfer Application No. 93 of 1991 and Revision Petition No. 59 of 1991 instituted in the Court of District Judge, Nainital are also quashed.

4. (i) The Prescribed Authority under the U.P. Act No. 13 of 1972, Kashipur, is directed to execute and enforce the order of eviction passed under Section 21(1) (a) of the Act (Case No. 171 of 1985) by evicting the respondent No. 6 and putting the landlady petitioner in possession of the dis­puted shop within two weeks of the day a certified copy of this order is presented before it.

(ii) In executing the said order of evic­tion, the Prescribed Authority shall not entertain any objection by the respondent No. 6 or by any other person and shall not take cognizance of any order passed by any court subordinate to this Court. All Courts and Authorities within the territorial juris­diction of this Court are restrained from making any order that may directly or in­directly obstruct the execution of the order of eviction of the respondent No. 6 from the shop hereinbefore mentioned.

(iii) Further, the Deputy Superinten­dent of Police/Circle Officer, Kashipur is directed to provide requisite Police assis­tance for the execution of the order of evic­tion on a request to that effect made by the Prescribed Authority at least two days in advance. ;

5. The respondent No. 6 is directed to pay to the landlady petitioner damages for use and occupation of the shop in question at the rate of Rs. 600/- (Rupees Six hundred) per month from 12th September, 1988, till the date of eviction. The amount due to be paid on this account, after adjustment of any amount already paid or deposited in Court, will carry interest at the rate of eighteen per cent per annum compounded yearly from the date of eviction till payment.

6. The respondent No. 6 shall pay costs of this writ petition and of the two suits etc. to the petitioner that I assess at Rs. 15, 000/-(Rupees Fifteen Thousand) only.

A certified copy of this judgment be furnished to the learned counsel for the parties on payment of usual charges within two days. Petition allowed.