IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8936 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= BHARATKUMAR GIGABHAI DETHARIA & 1 - Petitioner(s) Versus MANIBEN JERAMBHAI MOTIVARAS WD/O MALAM JERAMBHAI VIRJI -
Respondent(s) ========================================================= Appearance :
MR PRADEEP PATEL for Petitioner(s) : 1 - 2. RULE NOT RECD BACK for Respondent(s) : 1, MR ANSHIN H DESAI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/09/2012
ORAL JUDGMENT
1. The petitioner, Darkhastdar in Darkhast Application No.580 of 2008, from the Court of Principal Senior Civil Judge, Rajkot, has approached this Court under Article 226 and 227 of the Constitution of India, interalia, challenging the order passed by the Executing Court on 20.08.2009, below Exh.13 application, preferred by the objector original defendant in the suit being Regular Civil Suit No.139/2003 and the decree dated 18.11.2008 was sought to be executed at the request and prayer of the Darkhastdar, the original plaintiff and the petitioner herein above.
2. The facts in brief, leading to filing this petition, needs to be set out in order to appreciate the controversy involved between the parties.
3. The petitioners, happened to be the original plaintiffs, who were constrained to file Regular Civil Suit No.239 of 2003, before the Court of learned Civil Judge, (Senior Division), Rajkot, against the present respondent for recovery of the possession of the property from the respondent. The ground for filing the suit was that the defendant was not, in any way, entitled to be in the property and without any right or reason the defendant had refused to vacate the premises. The parties to the suit arrived at a compromise and accordingly, compromise purshis came to be passed on 18.11.2008 and the Court was requested to pass and draw decree in terms thereof. The Court further recorded the compromise and the present parties in presence of their advocates and after recording its satisfaction qua the justness and proprietary of the compromise, passed decree in terms thereof on 18.11.2008 itself. The compromise decree was not complied with and the defendant filed in Civil Misc. application No.1521/2008 on 16.12.2008, invoking provisions of Section 151 of the Civil Procedure Code, with a prayer to recall the order passed below Exh.46 and to try the suit on merits. Thus, essentially, the application being Civil Misc. Application No.1521 of 2008, preferred by the present respondent on 16.12.2008, was an attempt to rescind from the decree that was a compromise decree. The said application was contested by the present petitioners by lodging appropriate objections. Exh.5 application made in CMA No.1521 of 2008 came to be rejected by the Court on 28.06.2009, the said order was challenged by the present respondent by preferring writ petition being Special Civil Application No. 7060/2009, as the present petitioner was on a caveat, the notice for final disposal was issued, however, no stay was granted in favour of the present respondentthe then petitioner. The petitioner, as the decree had remained to be complied with, filed Civil Darkhast being Civil Darkhast No.580/2008, in the Court of learned Principal Senior Civil Judge, Rajkot. The present respondent filed an application below Exh.13 in Civil Darkhast No.580 of 2008 in exercise of the right conferred upon it under Section 47 of CPC for deciding the amount to be received by the respondent for vacating the premises, though, the compromise decree did not contain mention of any such condition for vacating the premises. The Executing Court passed an order on 20.08.2009, interalia, holding that the parties were to lead evidence, qua, the amount which was silent in the decree within a period of 3 months. This liberty so reserved by the Executing Court by terming decree to be silent qua the amount was perceived to be an exercise without jurisdiction by the Executing Court and hence, the petitioner preferred present petition as stated herein above under Article 226 and 227 of the Constitution of India.
4. Learned Sr. Counsel Mr. Nanavati, appearing for the petitioners and the learned Sr. Counsel Mr. Yatin Oza, learned counsel appearing for the respondent, invited this Court's attention to the compromise purshis and the translation thereof into decree and the application filed by the respondent under Section 151 and the application Exh.13 filed in the Execution proceedings and the reply filed by the present petitioner in reply to their earlier application, whereunder, the petitioner explained that how and in what manner, there was a talk with regard to payment of Rs.5,25,000/ to the original defendant, this was not to be construed as a condition precedent for arriving at a compromise as it is sought to be projected on behalf of the defendant and which is unfortunately accepted by the Trial Court. The order, therefore, impugned in this petition, is exfacie without jurisdiction and rather a example of imaginary/erroneous jurisdiction, which is never vested in the Trial Court, which in terms, amount to opening up the avenues, where under the original application of the defendant filed under Section 151 was not even accepted by that Court, and the challenge that too had been failed as could be seen from the order passed in Special Civil Application No.7060/2009 dated 17.02.2011. Thus, the original challenge, which was challenged to non granting of any relief under Section 151 application, taken out by original defendant and wherein the decree debtor failed till this Court is sought to be reopened by order ostensibly made an extraordinary powers under Section 47 of the CPC, which is wholly beyond the jurisdiction and therefore, the same is assailed to be illegal and prayed to be quashed and set aside. The learned counsel for the petitioner contended that when the decree is explicitly silent qua any such condition and when the execution proceedings are taken out, the original defendant, the person under obligation to comply with the decree cannot be permitted to take out a ground under which attempt to rescind from the original compromise is getting indirect support. Therefore, on this ground also, the order passed below Exh.13 on 20.08.2009 is required to be quashed and set aside.
5. Ld. Counsel for the petitioner invited this Court's attention to the reply filed by the petitioners, in response to 151 application, wherever the proceedings were take up till the High Court, which ultimately converted into negation of any challenge taken out by the present defendant in form of order dated 17.02.2011, cannot be termed to be any admission and/or acceptance of factum of any condition in the decree as this attempt of filing Exh.13 application is nothing but an afterthought to extort undue advantage from the plaintiff in whose favour the valid compromise decree is existing. Ld. Counsel for the petitioner has passed on the affidavit filed by the advocate, who represented the defendant and the present respondent in the suit when the compromise decree was being passed. The said affidavit was affirmed on 19.02.2009 and in this affidavit, it was unequivocally stated by the advocate, who represented the present respondent in the suit and who was signatory to the compromise that what the present petitioner has stated is correct and there was never any talk of payment of Rs.25 lacs and/or which is sought to be made is an afterthought by the defendant.
6. Ld. Counsel for the respondent, after reading the reply to the application taken out by the respondent under Section 151 has submitted that in this reply not been there any counter reply on the record, there could have been no ground to stand or to agitate anything on the part of the present respondent, but once such purshis or reply has come on verification, then it becomes an admission and such a pleading cannot be ignored by anyone. Had there been no such admission in form of filing affidavit by the present respondent there would have no ground to even by Exh.13 application, but as it is transpired clearly from the reply by the present petitioner in response to the application under Section 151, the Executing Court has rightly construed that the talk of compromise contained payment of an amount, which is unfortunately not reflected in the compromise decree. Therefore, the Court has erred it to be 'silent amount' in the decree and permitted the parties to lead their evidences, which is at the best can be said to be an interlocutory order, which would not call for any interference under Article 226 and 227 of the Constitution of India and therefore, the petition may be dismissed.
7. Ld. Counsel for the respondent thereafter invited this Court's attention to the Exh.13 application and contended that the Execution Proceedings, wherein, the Exh.13 application is filed, is admittedly filed under Section 407 only and therefore a plain reading of Section 47 would also go to show and suggest that the respondent has taken out appropriate remedy and when such an order is passed in terms of order dated 20.08.2009, the same need not be interfered with.
8. The learned counsel for the respondent invited the Court's attention to the decision of the Apex Court in case of Latim Lifestyle and Resorts Ltd. and Another Vs. Saj Hotels (P) Ltd. And Others (2003) 10 (SCC) 189 and made specific emphasis upon the observations of the Apex Court made in paragraph No.9, 13 and sub paragraph Nos.1, 9 and 10 of paragraph No.13 to support his contention that the question arising out of execution of decree are better left to the Executing Court for its decision and even if there is some lack of clear mentioning in the decree, those questions are also left to be decided by the Executing Court. The facts narrated in that case are akin to the facts of the case on hand in as much as there were gabbing questions which was sought to be not found their place in the compromise decree, yet those questions were left to be decided by the Executing Court, whereas, in the instant case, though unfortunately, the decree is absolutely silent qua any payment condition, the admission in the form of the reply dated 02.01.2009 filed in 151 Application is fortunately coming to the rescue of defendant as no defendant would walk out of there proceedings without their being any reciprocal application as rightly held by the Apex Court.
9. Ld. Counsel for the defendant heavily relied upon the aforesaid observations in support of his submissions and say that the analogy would persuade this Court to dismiss this petition with cost.
10. Ld. Counsel for the petitioner thereafter relied upon decision in case of Rangammal Vs. Kappuswami AIR 2011 SC 2344 and contended that the pleadings made by the parties are evidence as such evidences have to be accepted, any attempt to go away from of those pleadings is to be depreciated. In the instant case, the pleadings in the form of reply dated 02.01.2009, is a piece of pleading, which is to be treated as a valid admission or piece of evidence of admission, on the part of the person making such pleadings and therefore, the Court i.e. Executing Court has rightly opined and gave liberty to all the parties to lead evidence qua existence or otherwise of the amount, which was unfortunately silent in the decree in question. Therefore, the Court may not interfered with the same and dismissed the petition.
11. The Court has heard the ld. Counsel for the parties and perused the petition and annexures thereon. Before adverting to the rival submissions of the counsels, it would be most expedient herein below to set out few undisputable aspects emerging therefrom.
I. The suit being Regular Civil Suit No.239/2003 was filed by the present petitioner for recovering the possession from the respondent, whom he dubbed to be a trespasser and the suit was, therefore, based upon the specific pleadings on the part of the present petitioner that the defendant was in occupation as he was permitted to use the premises as he was a watchman and on asking to vacant the possession, he refused to vacate the premises without any right, rhyme or reason on his part. Thus, it is undisputed fact that in the suit the clear pleading was made on behalf of the plaintiff that the defendant i.e. present respondent did not have any right, title, rhyme or reason to be in possession of the property in question. Against the aforesaid backdrop of the pleadings, the Court has to note that the terms of compromise have been agreed upon.
II. The fact remains to be noted that in this proceedings of the suit of Regular Civil Suit No.239/2003, both the parties i.e. plaintiff as well as the defendants were represented by the advocate of their choice and the agreement purshis, which came to be filed in the Court was duly signed by the plaintiff defendant i.e. parties to the suit as well as their representative advocates in the suit.
III. The Trial Court accepted the pursis and recorded its satisfaction qua its genuineness and the fact that it is understood by all the parties. In other words, it is no one's case that any misrepresentation was made or any party was induced into to sign the compromise qua as had been the case on the part of the present respondent before any Court including this Court that the defendant, was ever persuaded or held out or induced into signing compromise, except the application below Exh.13 or the application under Section 151 preferred by defendant only after much time has elapsed.
IV. The Court recorded the compromise and passed the decree. The attempt to rescind from the compromise term in form of application filed under Section 151 on 02.01.2009 has failed and the rejection order of the Court challenged in this Court by way of writ petition has also failed, meaning thereby, the Court, that is the Court before which Section 151 application was preferred, did not find any substance to be accepted. In other words, the findings recorded by the Court, while rejecting Section 151 Application for reopening of the case and rejecting attempt to rescind is an order passed by the Competent Court after applying its mind thoroughly to the question. The challenge of this order was under the application filed under Section 151 which was rejected by a competent Court was challenged before this Court by way of Writ Petition No.7060/2009 which also has not yielded any reason. In other words, the High Court has approved the reasoning and order where under the present respondents attempt to rescind from the compromise was rejected.
V. In light of the aforesaid development and instances, the Exh.13 application, Execution proceedings is required to be viewed. The Exh.13 application, therefore, did have inherent defects, which ought to have been appreciated by the Court in its true perspective.
VI. Exh.13 application is said to have been filed on account of the reply filed by the present petitioner in the proceedings arising under Section 151 application. Thus, the reply filed by the present petitioner under those proceedings are sought to be made basis for justifying the resistance to decree and its execution. The Court, therefore, was required to advert itself to the entire documents and appreciate its purpose. The Court has passed an order, where under, Court has, as can be seen from the order, accepted the say of the present respondent and permitted the present respondent to indirectly open up the avenue which was foreclosed by two judicial proceedings viz. the application under Section 151 and its rejection and its further approval and further approval of rejection by this Court in a writ petition which was filed by the respondentoriginal defendant.
12. Against the backdrop of the aforesaid indisputable factual scenario, question arises as to whether the order impugned could be said to be an order in consonance with the provisions of Section 47. The answer would be empathetic 'No' and therefore, in my view, that order is required to be quashed and set aside for the following reasons:
(a) Learned counsel for the respondent has contended that in absence of the pleadings in form of reply to the application under Section 151, it would have really been difficult for the defendant to make out in case of objection under Section 147. But, unfortunately pleadings and admission therein will come to the rescue and the Trial Court i.e. Executing Court has rightly observed that the parties are at liberty to lead evidence qua the silent amount in the decree. The Court is unable to agree with these submissions, as its proceedings on the basis as if the pleading are pertaining to the characteristics of the evidences. In fact, close perusal of the so called admission and the reply is undertaken, then it would be clear that the reply contains the entire narration as to in what way the agreed amount of Rs.5,25,000/ is to be paid and nowhere, in my primafacie view, it can be said to be an admission of a condition contemplated under the compromise in question. Executing Court, has, in my view, unfortunately permitted itself to be swayed by this aspect without perusing the entire reply. The truncated reading of the reply and acceptance of only few lines in ignorance of other averments in the reply would result into patent miscarriage of justice, which has resulted into passing of the order dated 20.08.2009.
(b) Ld. Counsel for the respondent is, in my view, not correct in submitting that, pleadings partake characteristics of proof of evidence. Had this been so, the same would not have been required to be proved by way of leading evidences. Therefore, the folly of submission becomes obvious, which need not accept by this Court. The reliance placed on decision of the Apex Court in case of Latim Lifestyle and Resorts Ltd. and Another Vs. Saj Hotels (P) Ltd. And Others (supra) is wholly, irrelevant as the plain reading of the decision cited above, does not indicate what is appeared to be canvassed by the learned counsel for the respondent. The plain reading of the entire judgment did not anywhere lay down that the pleadings are evidence or pleadings can be treated as an evidence. Therefore, while citing of this, judgment, Ld. Counsel failed in pointing out any proposition of law, as sought to be orally canvassed from the judgment that, pleadings would partake the characteristics of the evidence. Now ld. Counsel has attempted to explain the submission by saying that the admission in pleading is joining, but the facts and the law point in the case cited is also not on the point. There cannot be a dispute with regard to admission and its admissibility as evidence, but the truncated acceptance of the so called admission in ignorance of the explanation put forward in some documents leads to miscarriage of justice and it does not require any further reiteration in this order.
(C) The Court, is of the considered view that, when the advocate, who represented the present respondentoriginal defendant and who is also a signatory to the compromise deed, and who has remained present through the proceedings has filed an affidavit in the proceedings, wherein, he has unequivocally supported the version of the present petitioner, which cannot be brushed aside or overlooked by any Court of law as a provisional one when constrained to file affidavit, is filing an affidavit for the sake of truth and justice. Such an affidavit can never be lightly brushed aside by any Court and it is required to be viewed in its proper perspective.
13. The admitted position is that the decree is absolutely silent qua any condition. In other words, their existence, no condition at all for arriving at a compromise. Now in any attempt to lead something in the decree on the basis of the plea, which is made subsequently and when such one attempt of rescinding therefrom in form of Application 151, and the rejection thereof is approved by this Court, it is absolutely incorrect to make out a new avenue in form of the liberty for leading evidence to read or to justify reading into the decree as if there was some amount agreed. In my view, such an order is perse an order without jurisdiction or rather an attempt on the part of the Executing Court to arrogate jurisdiction to itself which is never there if one reads provisions of Section 47 of CPC as it stands. The decision cited at the Bar in case of Latim Life Styles and Resorts (Supra) is also, in my view, of no avail to the present respondent as the fact as could be seen from narration in the para read upon by the counsels would speaks for themselves. There, it was question of interpretation of the terms of the compromise and its implementation. In the instant case, one need not forget that the decree in question does not contain any condition, whatsoever, which is sought to be imputed to be there in compromise terms which is a subsequent attempt, which he has filed in form of application under Section 151 of the Civil Procedure Code.
14. The respondent can file objection to decree on ground available to it under Section 47 only and the same, therefore, required to be decided strictly in accordance with law under Section 47 and on the principles that the Executing Court would not go beyond the terms of the decree and in case if the execution proceedings or vacating of the premises was conditional, then, the same has to be viewed only from the angle from the provisions under Section 47 of the Civil Procedure Code and nothing more could be of enlarge of scope of Section 47 inquiry. In other words, respondent chose to file an application under Section 47 of the Civil Procedure Code and permission was granted by Court to leading evidence, enlarging the scope of Section 47, whereby, an avenue is open, which is otherwise foreclosed by the attempt earlier made in form of application.
15. Hence, the petition is required to be allowed and is accordingly allowed. Rule made absolute. The order dated 20.08.2009 passed by the Executing Court in Execution Proceedings is hereby quashed and set aside being illegal, and contrary to the provisions of Section 47. No order as to costs.
16. Shri Oza, ld. Advocate for the respondent submits that the petition is filed, though under Sections 226 and 227 of the Constitution of India, the fact remains that it requires to be filed under Section 227 only and accordingly. If the clients are desirous of challenging this Court's order allowing this petition, then they will have to move the Supreme Court only and the Supreme Court is required to be moved by way of filing Special Leave Petition, which will involve production of documents which are in Gujarati and therefore, the Execution proceedings, which have been stayed by this Court may further be stayed for a period of 3 weeks.
17. Learned advocate for the petitioner contended that the order of staying of the execution proceedings, which is sought to be relied upon by Shri Oza is dated 09.09.2009, but plain reading of that order would indicate that the Court stayed Execution proceedings only till further orders and thereafter, hearing the parties at length when Court adjourned the matter, passed order on 17.02.2011, wherein, the Court passed order of issuance of Rule, making it returnable on 25.03.2011 and stayed the order passed below Exh.13. This would amount to a further order, which is envisaged by this Court in order dated 09.09.2009 and when the further order is passed, no request for extension of that order staying the execution proceedings is requested to the Court and Court has not granted. In other words, the Court has not expressly extended the staying of the Execution proceedings, knowing that the further order which was passed on 17.02.2011 will govern the field.
18. Be that as it may, the Court does not inclined to go into this controversy. In the interest of justice, when the Execution Proceedings are stayed, 3 weeks further would amount to giving an opportunity to the respondent to move the Apex Court and hence, only for that purpose the Execution proceedings shall not be proceeded with till 3 weeks from today i.e. till 12.10.2012.
Ankit* [S.R.BRAHMBHATT, J.]