Court No. - 7
Case :- S.C.C. REVISION DEFECTIVE No. - 11 of 2018 Revisionist :- Chandra Sen Opposite Party :- Suvarna Sahib@Suvaran Das Disciple Of Late Shri Shital Sahib Counsel for Revisionist :- Rishikesh Tripathi
Hon'ble Surya Prakash Kesarwani,J.
1- Heard learned counsel for the revisionist-judgment debtor.
2- This revision under section 25 of the Provincial Small Cause Courts Act, 1887, has been filed praying to set aside the judgment and order dated 06.12.2017 in Misc. Case No.40 of 2016 (Chandra Sen v. Suvarn Sahib Present disciple Ramji Das, Susheel Das and Vichar Das Hanuman Gorki Bagichi, Nagla Ganga Ram, Lohamandi, Agra), whereby the application under Section 47 C.P.C. filed by the judgment debtor/ revisionist has been rejected by the Additional District & Sessions Judge (Court No.17), Agra.
3- Learned counsel for the judgment debtor/revisionist submits as under :
(i) The plaintiff-respondent/decree holder is not the landlord of the disputed accommodation bearing Municipal No.18/78, Mohalla Nagla Gangaram, Sirki Mandi, Lohamandi, Agra. The judgment debtor/revisionist was inducted as a tenant in the year 1985 by Sri Om Prakash to whom he has been paying rent. Therefore, the decree dated 22.10.1990 passed in S.C.C. Suit No.52 of 1988 (Swarn Sahib v. Chandra Sen ) cannot be executed.
(ii) As per plaint version in paragraph nos. 3,4,6 and 7 of the plaint dated 29.8.1988 in S.C.C. Suit No.52 of 1988, the decree holder/respondent stated that one Sri Om Prakash claiming himself to be the manager of Gorki Bagichi, Nagla Ganga Ram, Lohamandi, Agra, (the disputed property) had inducted the judgment debtor/revisionist as a tenant at a monthly rent of Rs.120/- per month we.f. 21.4.1985, who had also filed a Injunction Suit No.911 of 1983 (Hanuman Panchayat Ghorkhi Bagichi v. Vivek Das and others) in the court of Munsif, Agra, which was dismissed on 5.12.1984 by the court of 16th Additional Munsif, Agra. Thus, according to own case of the decree holder-respondent, the judgment debtor/revisionist is the tenant of Om Prakash. Thus, there is complete absence of landlord-tenant relationship between the decree holder and the judgment debtor. Hence, decree cannot be executed.
(iii) Section 107 of the Transfer of Property Act, provides that all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. In the present set of facts, the judgment debtor/revisionist was inducted as tenant by one Sri Om Prakash, who has delivered the possession to him. The decree holder/respondent has neither inducted the judgment-debtor/revisionist in tenancy nor delivered possession of the disputed accommodation to him. There was no pleading in the plaint that the judgment debtor/revisionist ever paid rent to the decree holder/respondent. Thus, there was no relationship of lesser- lessee between the decree holder and the judgment-debtor.
(iv) Vide paragraph-7 of the plaint the decree holder/respondent has unilaterally treated the judgment debtor/revisionist as tenant, which is impermissible.
(v) S.C.C. Suit No.52 of 1988 filed by the decree holder/respondent was barred by provisions of Section 15(1) of the Provincial Small Cause Courts Act, 1987, inasmuch as the suit of this nature was covered by Clause-4 of the Second Schedule, as amended by U.P. Act 13 of 1972. Infact, the aforesaid S.C.C. No.52 of 1988 was filed for possession of the disputed accommodation which is barred by the aforesaid provision. Since, the suit was barred by the provisions of Section 15 of the Provincial Small Cause Court and as such the decree passed in the aforesaid suit is nullity and cannot be executed.
4- In support of his submission, learned counsel for the revisionist-judgment debtor has placed reliance on the following cases as under:
(a) In Cantonment Board and another v. Church of North India, 2011(3) AWC 3161 (SC) (Para 13), Hon'ble Supreme has held that a defect with respect to the lack of inherent jurisdiction is basic and fundamental and validity of such an order can be challenged at any stage, even in execution or in collateral proceedings.
(b) In Sunder Dass v. Ram Prakash, AIR 1977 SC 1201 (paragraph-3), Hon'ble Supreme Court held that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding.
(c) In Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, 2007(2) ARC 104 (paragraph 22), Hon'ble Supreme Court held that an order passed by a person lacking inherent jurisdiction would be a nullity and the same ordinarily should not be given effect to.
(d) In Zarif Ahmad and another v. Satish Kumar and another, 1983 ARC 776 (Paragraph nos. 15 and 16), learned Single Judge of this Court distinguished the Full Bench judgment in the case of Balmukund v. Dalu, ILR 25 Alld. 498 and held that the question of title could not have been gone into as the suit was tried by the court of Small Causes. In the State of Uttar Pradesh a Judge Small Causes Court can decree the suit for possession only where it was between lessor and lessee. Once it is found that such a relationship does not exist, either the plaint will have to be returned for presentation to the proper court or the suit would fail.
(e) In Basant Kumar Khanna and another v. Smt. Subodh Rani and others, 1997 (1) ARC 593 (paragraph- 2), the facts were that the defendant no.1 was described as a tenant under the plaintiff, while the defendant nos. 2 and 3 were described as unauthorized occupants. Against these defendant nos. 2 and 3 a suit was filed by the plaintiff. The aforesaid defendants raised the plea that they were tenants under another person and the plaintiff was not the owner of the suit property. The two courts found that the plaintiff is the owner of the property and the aforesaid defendant nos. 2 and 3 were unauthorized occupants of the suit premises. On these facts it was held that the relationship of landlord and tenant had ever existed between the plaintiff and the defendant nos. 2 and 3 and, therefore, the suit was not triable by the Small Cause Court in view of Article 4 of Schedule 2 of the Provincial Small Causes Court Act.
5- Learned counsel for the judgment debtor/revisionist further submits that on the facts of the present case, the judgment in Basant Kumar Khanna and another (supra), is fully applicable. Therefore, the suit under the Small Causes Court Act, was not maintainable.
6- I have carefully considered the submissions of learned counsel for the judgment debtor/revisionist.
7- In the impugned order the court below has specifically noted that a declaration Suit No.553 of 1991 was filed by the decree holder against Sri Om Prakash, which was decreed on merit by judgment dated 24.4.1999. This Court repeatedly asked the learned counsel for the judgment debtor/revisionist about the aforesaid judgment dated 24.4.1999, but he avoided to answer by saying that he has no knowledge of the said judgment. It would be relevant to mention here that Section 165 of the Indian Evidence Act, clearly provides that the Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. One of the grounds for dismissing the application of the judgment debtor/revisionist by the impugned order is the aforesaid judgment passed in the declaration suit No.553 of 1991, which concludes the question of ownership of the disputed house.
8- In the case of Dnyandeo Sabaji Naik and another v. Pradnya Prakash Khadekar and others (2017) 5 SCC 496 (Paragraph nos. 14 and 15), Hon'ble Supreme Court issued a general mandamus to deal with frivolous petitions, observing as under :
“14. Courts across the legal system - this Court not being an exception – are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.
15. We accordingly dismiss the Special Leave Petitions but while doing so, direct that:
(i) the petitioners shall vacate the premises on or before 7 March 2017;
(ii) In case the petitioners fail to vacate the premises by the date indicated in (i) above, they shall expose themselves to civil and criminal consequences under the law;
(iii) the petitioners shall pay all arrears for use of the premises computed at the rate fixed in the order of this Court dated 28 August 2015 within four weeks; and
(iv) the petitioners shall pay costs quantified at Rs 5 lakhs (Rupees five lakhs) to the respondents within two months”.
9- I find that S.C.C. No.52 of 1988 was filed by the decree holder as owner and landlord against the tenant- judgment debtor/revisionist for recovery of rent and possession of the disputed property in which the judgment debtor filed written statement. The aforesaid suit was decreed by judgment dated 22.10.1990. An application under Order IX Rule 13 C.P.C. was filed by the tenant- judgment debtor/revisionist for recall of the aforesaid judgment dated 22.10.1990, which was allowed subject to payment of cost of Rs.100/-. Since cost was not paid, therefore, the court below by order dated 27.9.1995 restored its aforesaid judgment dated 22.10.1990. The tenant- judgment debtor/revisionist filed a writ petition No.28871 of 1995 in which execution proceeding was stayed but ultimately by order dated 21.07.2010 the writ petition was dismissed. Thus, the judgment dated 22.10.1990 and the decree has attained finality. That apart, the declaratory suit No.553 of 1991 filed by the decree holder against the alleged landlord Sri Om Prakash was also decreed by the competent court by a judgment dated 24.04.1999. The judgments relied by learned counsel for the tenant-judgment- debtor/revisionist are clearly distinguishable on facts.
10- Thus, the present revision is a frivolous revision and is abuse of the process of law by judgment debtor/revisionist. Cogent reasons have been recorded in the impugned order to reject the application of the revisionist.
11- I do not find any manifest error of law in the impugned order. Consequently, the revision fails and is hereby dismissed with costs of Rs. 1,00,000/-.
12- After this order was dictated in open Court, learned counsel for the applicant-petitioner has stated that the financial condition of the applicant is not such that he may deposit cost of Rs.1,00,000/- and, therefore, the cost may be reduced to Rs.10,000/- so that he may pay it.
13- Considering the request of learned counsel for the applicant-petitioner, the cost is reduced to Rs. 10,000/- which shall be deposited by the judgment debtor with the court below within six weeks.
Order Date :- 22.2.2018 Ak/