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R. Vasudevan v. Ibrahim & 3 Others

Madras High Court

Dec 8, 1997

Judgment

Subsequent
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Factual and Procedural Background

The petitioner initiated R.C.O.P. 8 of 1979 before the Rent Controller-cum-District Munsif, Thanjavur. An eviction order became final: although the Rent Controller initially dismissed the eviction petition, an appellate court ordered eviction which was confirmed in C.R.P. 2811 of 1984. Six months were granted to surrender vacant possession; that period expired on 26.11.1991. After expiry, the decree-holder filed an Execution Petition (filed 21.4.1992) seeking possession. The executing court, however, repeatedly adjourned the matter (for over five and a half years according to the petitioner) and took no effective step to hand over possession.

The petitioner invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India by filing the present revision(s) to challenge the executing court's inaction and alleged illegality. A related revision (C.R.P. 2690 of 1997) was filed because the same counter-petitioner (4th respondent) had filed a suit in 1992 (referred to variously as O.S. 60/1992; later renumbered O.S. No. 519/1992; and also referenced as O.S. 318/1992) and obtained an injunction; he also filed an application under Section 47, C.P.C. before the executing court asserting that the decree could not be executed due to that injunction. According to the petitioner, neither the injunction application, nor the Section 47 petition, nor the Execution Petition were disposed of and the execution proceedings remained stalled.

Legal Issues Presented

Whether this Court should exercise its supervisory jurisdiction under Article 227 of the Constitution to correct the alleged illegality and refusal to discharge duties by the executing court which repeatedly adjourned execution proceedings without taking necessary steps to enforce a valid decree.
Whether the pendency of a suit and the grant of an injunction (and applications under Order 21 Rule 29, C.P.C. and Section 47, C.P.C.) by the counter-petitioner justified indefinite postponement of execution proceedings.
Whether a suit (O.S. 318 of 1992) obtained by allegedly suppressing material facts and by making false allegations should be struck off the file and the injunctive order obtained therein vacated.

Arguments of the Parties

Petitioner's Arguments

The petitioner complained that despite obtaining a valid decree and filing an Execution Petition on 21.4.1992, the Executing Court had taken no effective steps to hand over possession; the executing court merely adjourned the matter repeatedly ("on the ground of 'call on'") for years, causing hardship.
The petitioner asserted that the injunction and Section 47 applications filed by the 4th respondent had been allowed to stall execution indefinitely without proper consideration, thereby perpetuating injustice.

4th Respondent's (Counter-Petitioner's) Arguments

The 4th respondent contended that the building involved was originally taken over by the Accommodation Controller and thereafter allotted to him; this fact, he said, was suppressed by the decree-holder before the Rent Controller.
He claimed that the door number central to the eviction (Door No. 69-A) was fictitious and that he was actually in possession of Door No. 87-B, which had been allotted to him by the Accommodation Controller.
He asserted that the building was damaged in the 1977 cyclone and that, with the landlord's permission, he reconstructed it at his own expense and subsequently filed O.S. 318 of 1992 and obtained an injunction.
He filed applications: (a) an application under Order 21, Rule 29, C.P.C. (seeking stay of execution) with an affidavit stating that suit O.S. 318/92 and the execution proceedings involved the same property and were pending in the same court; and (b) an application under Section 47, C.P.C. claiming the decree could not be executed because of the injunction.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court summarized the chronology and procedural posture, then analyzed the conduct of the executing court and the parties. The key reasoning steps the Court recorded were:

The executing court had repeatedly adjourned the Execution Petition (filed 21.4.1992) for years without taking effective steps to enforce the decree; such prolonged adjournments amounted to a refusal by the court below to discharge its judicial duties and caused hardship to the decree-holder.
The Court noted specific procedural history: the 4th respondent filed a counter on 29.10.1992; later filed a suit in 1992 (variously numbered in the record); filed an application on 6.4.1994 seeking a stay of execution under Order 21, Rule 29, C.P.C.; and filed an application on 9.8.1995 under Section 47, C.P.C. For these petitions, counters were filed by the decree-holder, but the lower court nonetheless postponed proceedings indefinitely.
The Court examined the 4th respondent's contentions and found them inconsistent and patent. On the one hand the 4th respondent alleged that there was no Door No. 69-A (the subject of execution); on the other hand, in his affidavit supporting the Order 21 application he expressly stated that the suit O.S. 318/92 and the execution petition related to the same property and were pending in the same court. The Court highlighted these inconsistent positions as undermining any bona fide basis for staying execution.
The Court observed that learned counsel for the respondent could not adequately support the order of the court below when asked to do so. The Court also noted that the same counsel had instituted both the suit and the applications, suggesting an absence of coherent or defensible grounds for indefinite adjournments.
Given these inconsistencies and the failure of the lower courts to decide the matters, the Court concluded that no sufficient ground had been made out to stay execution, declare the decree non-executable, or to sustain the injunction. The Court characterized the lower court's repeated adjournments as abdication of duty rather than judicial decision-making.
Because the suit O.S. 318 of 1992 contained false allegations and omitted material facts (including a prior accommodation order and its subsequent cancellation brought to the Court's notice), and because an injunction had been obtained by such suppression of facts, the Court held that the plaintiff in that suit had played fraud on the court and should not be permitted to continue prosecuting the suit.

Holding and Implications

Holding: The Court concluded both revision petitions in favor of the petitioner. Specifically:

Both Revision Petitions are allowed with costs as indicated in the order.
The Court directed the Executing Court in R.C.O.P. 8 of 1979 (E.P. 89 of 1992 on the file of the District Munsif's Court, Thanjavur) to order delivery of the property within 48 hours of production of a copy of this Order. The Executing Court was instructed to ensure the decree-holder is handed possession without awaiting any further application, and to provide police assistance to the bailiff or Amin if required. If doors are locked, the Amin is authorized to break open locks and hand over possession. The Executing Court was directed to report compliance to this Court on 12.12.1997.
C.R.P. 2413 of 1997 was allowed with costs: counsel's fee fixed at Rs. 2,000/-.
The Court struck O.S. 318 of 1992 off the file of the District Munsif's Court, Thanjavur, on the ground that it had been instituted with false allegations and suppression of material facts; the injunction granted in that suit was vacated. The revision petitioner was granted costs in respect of this relief; counsel's fee fixed at Rs. 1,500/-.
In the result, both Revisions were allowed with costs as specified in the order.

Implications: The immediate legal consequences are the mandatory prosecution of execution proceedings and the handover of possession to the decree-holder (with police assistance and powers to break locks if necessary), the striking off and vacation of the injunctive order in O.S. 318 of 1992, and the award of costs to the revision petitioner. The opinion does not purport to establish or announce any new legal precedent beyond the direct relief granted to the parties.

Show all summary ...

Petitioner herein filed R.C.O.P 8 of 1979, on the file of Rent Controller-cum-District Munsif, Thanajavur. The order of eviction has become final. Even though the Rent Controller dismissed the eviction petition, on appeal, eviction was ordered and the same was confirmed in C.R.P 2811 of 1984. Six months' time was granted to surrender vacant possession. The time so granted expired on 26.11.1991 On the expiry of the time granted, revision petitioner filed Execution Petition for getting possession.

2. Even though the Execution Petition was filed on 21.4.1992, the grievance of the petitioner is that till date the Executing Court has not taken any action for handing over possession. It is now more than 5 1/2 years since the Execution Petition was filed. But, except for adjourning the case on the ground of ‘call on’, no effective step has been taken by the Executing Court.

3. This Revision is filed under Article 227 of the Constitution of India, to bring to the notice of this Court how an illegality has been committed by the Executing Court in spite of the petitioner obtaining a valid decree. Learned counsel for petitioner wanted the judicial supervisory jurisdiction of this Court enjoined under Art. 227 of the Constitution to be invoked, so that injustice that is perpetuated may come to an end.

4. The other Revision, namely, C.R.P 2690 of 1997 is also one under Art. 227 of the Constitution. The reason for filing that Revision is that the very same counter petitioner in this Revision Petition has filed a suit in the year 1992 and got an injunction. Simultaneously he also filed an application under Sec. 47, C.P.C before the Executing Court stating that the decree cannot be executed on the ground of injunction. The grievance of the petitioner is that neither the injunction application is disposed of, nor is the petition under Sec. 47, C.P.C disposed of, nor the Execution Petition is proceeded with. Ultimately, he is put to great hardship.

5. When the matter came for admission, I ordered notice of motion, and wanted the matter to be posted immediately after service. After the respondent entered appearance, I heard the entire matter in both the Revisions.

6. After having heard learned counsel for the parties, I feel that this is a fit case where I have to hold that the Court below has refused to discharge its duties. Parties come to Court for relief. Even if they are refused relief, they can move the appellate or revisional forum for remedy. By refusing to take a decision, and by adjourning the case for years together, the Court below has only put the petitioner to hardship. In my opinion, the attitude of the Court below is nothing but a refusal to discharge its duty. I can say that the Presiding Officer of the Executing Court and also the Judicial Office of the Court who granted the injunction, have only abdicated their duties, and they have not understood the difficulties of a client, who comes to Court for getting his grievance redressed. For these two Officers, granting adjournment has become a matter of course.

7. I have already said that the Execution Petition was filed on 21.4.1992 On 29.10.1992, 4th respondent filed his counter. In the meanwhile, and during the Summer Holidays, he filed a suit as O.S 60 of 1992, (later renumbered as O.S No. 519 of 1992). After filing a counter to the Execution Petition, he also filed an application on 6.4.1994 seeking stay of all the entire execution proceedings. For the said petition, the decree-holder was asked to file a counter, and he filed it. Another application was also filed on 9.8.1995 under Sec. 47, C.P.C For that also, a counter was filed. Because Sec. 47 Petition was filed by 4th respondent, the Court is postponing the proceedings in the Execution Petition indefinitely. I can understand the adjournment granted in the Execution Petition, if only some progress is made in Sec. 47 Petition filed by 4th respondent. That is also being adjourned for years together. I do not think there is any necessity for a Presiding Officer for doing that. Adjournment can be granted even by Bench Clerk.

8. In his objection to the Execution Petition, the case of the 4th respondent is that the building which is the subject matter of the litigation was originally taken over by the Accommodation Controller and thereafter it has been given to him. It is his case that this fact was suppressed by the decree-holder before moving the Rent Controller. It is also his case that the subject matter of the litigation, viz., Door No. 69-A is a fictitious number, and there is no such door number at all. It is his further case that the property in his possession is Door No. 87-B, and the same was allotted by the Accommodation Controller-cum-District Munsif. It is his case, that this has been suppressed by the decree-holder. It is also his case that the building was completely damaged in the cyclone in 1977, and, with the permission of the landlord, he reconstructed the same spending Rs. 9,000/- and, therefore, to get justice, he has filed O.S 318 of 1992, and has obtained an order of injunction. I may say that the sum and substance of his case that there is no such building as Door No. 69-A, to be executed, and he is in possession of Door No. 67-B, and he has repaired the building in 1977 and came into possession, and in respect of that building, he has filed O.S 318 of 1992. I have already said while narrating the facts that the very same 4th respondent filed an Application for stay under Order 21, Rule 29, C.P.C In support of that petition, an affidavit was also filed. He has said in para 6 therein thus: —

“I filed suit O.S 318/92 for injunction against the 1st respondent in this Hon'ble Court. The suit is pending. The 1st respondent filed written statement and contesting it. The suit O.S 318/92 and the E.P mentioned properties are for the same property. Both execution proceedings and the suit O.S 318/92 are pending in the same Court.”

(Emphasis)

Lower down, in para 7, he has further said thus: —

“Since a suit O.S 18/92 is pending against the decree holder instituted by me against when the 1st respondent filed Execution petition, the Execution Petition may be stayed till the disposal of the suit O.S 318 of 1992.”

In para 10 of that affidavit, it is said thus: —

“Therefore, it is just and necessary that this Hon'ble Court may be pleased to stay the Execution Petition 89/92 till the disposal of the suit O.S 318/92 pending before this Hon'ble Court.…”

Similar are the averments in the application under Section 47, C.P.C also.

9. The inconsistent stand taken by the 4th respondent is very patent. In one case, he says that there is no door number as 69-A. But at the same time, in the other two Applications, he says that the subject matter in the eviction proceedings as well as the original suit are the same. That means, in the case in which there is a decree against him, he has obtained an order of injunction, in respect of the very same subject matter. This proceeding, the Court below has stayed for years together.

10. When I asked the learned counsel for respondent as to how he supports the order of the court below, learned counsel was not in a position to explain. In this connection, it must also be noted that both in the Execution Petition as well as the suit, they were filed by the very same counsel, for the 4th respondent. I do not want to comment on the conduct of the 4th respondent's counsel, who has prepared both the Applications. The facts narrated above are sufficient to hold that no ground has been made out to either grant stay the execution or to declare that the decree cannot be executed, nor has a ground been made out to grant injunction. The lower court without understanding any of these facts, has been adjourning the matter for one reason or other. I direct the Executing Court in R.C.O.P 8 of 1979 (i.e, E.P 89 of 1992) on the file of District Munsifs Court, Thanjavur) to order delivery of the property within 48 hours of the production of a copy of this Order. The Executing Court is bound to see that possession of the building is handed over to the decree-holder without waiting for any further application from him. Police assistance, if any required to the bailiff or amin should also be ordered. If the doors are locked, necessary powers must be given to the Amin to break open the locks and hand over possession of the building to the decree-holder. I direct the Executing Court to comply with these directions and report the matter to this Court on 12.12.1997 C.R.P 2413 of 1997 is allowed with costs. Counsel's fee Rs. 2,000/-.

11. While extracting the facts in the earlier C.R.P, I have also stated the circumstances under which O.S 318 of 1992 came to be filed by 4th respondent. He has obtained an injunction in that suit. It is his case that the decree-holder, defendant therein, has filed a suit without disclosing the order of the Accommodation Controller. It has been brought to the notice of this Court as well as in the counter filed before lower Court that the Accommodation Controller himself was misled by 4th respondent and he obtained an order of accommodation without notice to the decree-holder. When the real facts were brought to his notice, he himself cancelled it with notice to 4th respondent. Neither in the injunction application nor in the suit, this fact was mentioned.

12. In the suit, he has also not stated anything about the decree which he has suffered. In the plaint, he has only stated that he is a tenant under the decree-holder, and he is interfering with his possession. In respect of Door No. 87-B, which is situated opposite to the premises in question which is the subject matter of eviction proceedings, at no point of time, there was any rental arrangement with the 4th respondent. That was in the hands of the Government for sometime and due to its dilapidated condition, in 1976 the Government passed necessary orders and thereafter it is lying vacant. Fourth respondent was never a tenant in respect of that building. The tenancy was only in respect of the building, which is the subject matter of the Rent Control proceedings. A detailed counter has been filed. But in spite of the same, the District Munsif was generous enough in granting adjournments, without making any attempt to dispose of the same. It is unfortunate that a Judicial Officer acts in such a way.

13. Since the plaintiff therein has filed that suit with false allegations, and also by suppressing material facts, and has thereby played fraud on Court, and taking advantage of his own fraud, has obtained an order of injunction, I do not think he must be allowed to prosecute the suit hereafter. By invoking powers under Art. 227 of the Constitution, I direct the striking off the suit in O.S 318 of 1992, on the file of District Munsif's Court, Thanjavur, from its file. Injunction already granted stands vacated. Revision petitioner herein is entitled to his costs in this Revision. Counsel's fee Rs. 1,500/-.

14. In the result, both the Revision Petitions are allowed with costs as indicated above. Post CRP 2413 of 1997 for further orders, if any, on 12.12.1997

RR/VCS