IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 180 of 2011 For Approval and Signature:
HONOURABLE MS.JUSTICE HARSHA DEVANI ========================================= 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================= CHANDRAKANTBHAI VARDHMANBHAI DESAI - Applicant(s) Versus SHANTILAL CHHOTALAL SHAH (H.U.F) THROUGH KARTA AND MANA & 1 - Opponent(s) ========================================= Appearance :
MR SURESH M SHAH for Applicant MR JIGAR P RAVAL for Respondent ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 15/02/2012
JUDGMENT
1. By this application under section 115 of the Code of Civil Procedure, 1908 (CPC), the revisionist-original obstructer has challenged the judgment and decree dated 28.7.2011 passed by the learned 4th Additional District Judge, Bhavnagar, Camp at Botad in Miscellaneous Civil Appeal No.68 of 2007, whereby he has confirmed the order dated 14.3.2011 passed by the learned Principal Civil Judge, Botad on 14.3.2007 in Regular Civil Execution Petition No.86 of 2005.
2. The revisionist had submitted an application for obstruction and objection vide exhibit-18 in Regular Civil Execution Petition No.86 of 2005 stating that he had come to know about the passing of a decree for vacant possession of four shops with a common sanad bearing ward No.2 No.3225 standing in the name of deceased Shantilal Chotalal (hereinafter referred to as the suit shops”) in Regular Civil Suit No.53 of 1990. The suit shops were initially taken on rent by his father Shri Vardhmanbhai and after the death of his father; the applicant and his brother Mahendrabhai Vardhmanbhai Desai (the respondent No.2 herein), were in joint possession of the suit shops and were jointly carrying on business therein. The revisionist, therefore, was a co- tenant of the suit shops. It was the case of the revisionist that the plaintiff-landlord was very well aware of the fact that his brother Mahendrabhai Desai was not the sole tenant despite which, in collusion with his brother, the landlord without joining the applicant as a defendant in the suit, obtained a decree of eviction in respect of the suit shops. The revisionist, therefore, prayed that keeping in view his obstruction- application-objection-application, the execution petition be ordered to be dismissed. The learned Principal Civil Judge, Botad, after hearing the learned advocates for the respective parties, rejected the obstruction application Exhibit-18 and passed an order for issuing a possession warrant for execution of the decree passed in Regular Civil Suit No.53 of 1990 below Exhibit-1 in Regular Civil Execution Petition No.86 of 2005. Being aggrieved, the revisionist went in appeal to the learned 4th Additional District Judge, Bhavnagar, camp at Botad, who vide the impugned judgement and order, dismissed the appeal preferred by the revisionist, which has given rise to the present revision.
3. Mr. S. M. Shah, learned advocate for the revisionist vehemently assailed the impugned judgement and order passed by the lower appellate court as well as the order passed by the executing court, pointing out that the courts below have not considered the obstruction application made by the revisionist in accordance with the provisions of the Code. Referring to the provisions of rule 97 of Order XXI of the Code, which makes provision for making an obstruction application, it was submitted that sub-rule (2) of rule 97 provides that where an application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions contained therein. It was submitted that under rule 101 of Order XXI, the executing court is required to determine all questions (including the questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives and relevant to the adjudication of the application, and not by a separate suit, and for this purpose, the court is deemed to have the jurisdiction to decide such questions. It was submitted that once the revisionist had moved an application under sub-rule (1) of rule 97, the executing court was required to determine all questions including the questions relating to right, title or interest in the property arising between the parties as contemplated under rule 101 of Order XXI of the Code. It is only after determination of the questions referred to in rule 101, that the court can make an order under rule 98 allowing the application and directing the applicant to be put into possession of the property or dismissing the application, or pass such order as in the circumstances of the case it may deem fit in accordance with law, with such determination and subject to the provisions of sub-rule (2) of rule 98. Referring to the order passed by the executing court, it was pointed out that the executing court has not made any inquiry as contemplated under rule 101 and has merely observed that it is not permissible for the court to go behind the decree and has dismissed the application filed by the revisionist. It was submitted that the course of action adopted by the executing court is contrary to the provisions of rules 97 to 101 of Order XXI of the Code.
4. On the merits of the case, the learned advocate submitted that according to the provisions of section 5(11) (c) of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Rent Act”), when the original tenant dies, the landlord has to get adjudicated as to who are the tenants of the rented premises. In the present case, the landlord has not got the issue as regards who are the statutory tenants of the rented premises decided by the competent authority, and as such, the decree is not binding upon the revisionist. It was submitted that the revisionist had, accordingly, made the application Exhibit-18 under rule
97 of Order XXI the Code. Referring to the provisions of rule
98 it was submitted that upon determination of the questions referred to in rule 101, the court, in accordance with such determination, may make an order either allowing or dismissing the application under rule 97. It was argued that under rule 101 all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under section 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose the court is deemed to have jurisdiction to decide such questions. It was submitted that in view of the aforesaid provisions, it was incumbent upon the executing court to decide the questions relating to the right and interest of the revisionist in the suit property, whereas no such investigation as required under rule 101 of Order XXI has been made by the executing court, nor has it decided the points canvassed by the revisionist. It was submitted that once the statutory tenant died leaving behind him various heirs, the court was required to consider the question under section 5(1) (c) of the Rent Act and to decide as to who were the transmitted tenants. It was submitted that the revisionist has a right in the property as tenant in common and by virtue of the full bench decision in the case of Babubhai v. Bharatbhai, 1980 GLR 103, wherein it has been held that the obligation of determination of the question of successor tenant is not only on the landlord. It may be, in a given case, on a person claiming tenancy rights as successor under section 5(11)(c). If the question of successor tenant arises and is determined before the initiation of the eviction suit or any other proceedings, it would be, in the interest of a landlord or tenant, as the case may be, since this decision at a later stage of the proceeding or suit under the Rent Act, may require, in a given case, to support the proceedings afresh if the plaintiff or the applicant is ultimately held to be not a successor tenant. It was, accordingly, urged that the executing court was not justified in rejecting the application exhibit-18 made by the revisionist and that the lower appellate court was not justified in confirming the same.
5. It was further pointed out that the lower appellate court has held that the order passed by the executing court has been passed under the provisions of rule 97 of Order XXI of the Code and thus, such order is not under the provisions of the Bombay Rent Act. Hence, under rule 1 of Order XLIII of the Code, such an order is not appealable and the appeal is, therefore, not maintainable at law. Referring to the provisions of rule 103 of Order XXI, it was pointed out that where an application has been adjudicated under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. It was submitted that in the circumstances, the appeal was maintainable before the lower appellate court and as such, the lower appellate court had erred in holding that the appeal was not maintainable. It was, accordingly, urged that the judgment and decree passed by the lower appellate court being illegal and erroneous is unsustainable.
6. Mr. Jigar Raval, learned advocate for the respondents, vehemently opposed the application submitting that the case of the revisionist that he was not aware of the judgment and decree passed by the trial court is bogus and false. According to the learned advocate, the revisionist was well aware of the passing of the judgment and decree in favour of the respondent No.1 who is his brother and that the present obstruction application had been filed only with a view to delay the execution proceedings. It was submitted that the respondent No.2 - original defendant had challenged the judgment and decree passed by the trial court and the matter had reached the Supreme Court. It was pointed out that pursuant to a request made on behalf of the respondent No.2, the Supreme Court while dismissing the Special Leave Petition, had granted six months time to vacate the suit premises, subject to his filing an undertaking in that regard before the Supreme Court within four weeks. It was argued that instead of filing an undertaking and vacating the suit premises, the respondent No.2, after the present execution proceedings came to be instituted, filed a review petition, which also came to be rejected by the Supreme Court. After the dismissal of the special leave petition by the Supreme Court, the present obstruction application Exhibit-18 came to be filed by the revisionist. Inviting attention to the order dated 21.3.2007 passed by this court in Special Civil Application No.7437 of 2007, it was pointed out that by the said order, the present revisionist had been directed to file an affidavit so as to show that he was in possession of the suit premises as tenant from 1968 till the date of the said order. It was urged that since the revisionist was not in a position to file such an affidavit, he chose to withdraw the petition with the view to avail of the alternative remedy.
7. Referring to the merits of the case, the attention of the court was drawn to the provisions of section 5(1)(c) of the Bombay Rent Act, to point out that not every heir of the deceased tenant would become an heir insofar as the business premises are concerned. It is only a person who was carrying on business in the premises who would be a tenant. It was submitted that there is nothing on record to indicate that the revisionist was carrying on business in the suit premises along with the deceased tenant.
8. Next it was contended that an application under rule 97 of Order XXI of the Code can be made only by a decree holder and that a third party has no right to make an application under rule 97. Reliance was placed upon an unreported decision of this court in the case of Bhavnagar Transport Company v. Valmikbhai Himatlal Patel, rendered on 5.7.1999 in Second Appeal No.75 of 1999, wherein the Court has held that in the absence of an application from a decree holder, the executing court, would not have jurisdiction to act under sub-rule (2) of rule 97 of Order XXI of the Code. On request of third party, while an application for removal is filed by a decree holder, the executing court would be obliged to act under sub-rule (2) of rule 97 of Order XXI of the Code. Reliance was also placed upon the decision of this Court in the case of Gautam Trading Company, through Proprietor v. Uma Transport Trading Co. & another, 2006 (3) GLH 447, wherein the court has held that merely because a third party raises an obstruction to the decree in execution proceedings, the third party cannot insist that the claim raised by such party must be adjudicated. A decree holder may or may not opt to file an application complaining of obstruction. It is always open for the third party to have his rights established by a separate suit. The learned advocate further pointed out that in fact, the revisionist had instituted a suit in the Court of the learned Principal Civil Judge (S.D.), at Bhavnagar wherein he had impleaded the respondents herein as well as the Botad Nagar Palika, the Collector, Bhavnagar, as well as the State of Gujarat as parties and has sought a declaration that he had a right in the suit property as an heir of deceased Vardhmanbhai Gokaldas and had prayed for an injunction against the respondents from obstructing his enjoyment in the suit property. It was, accordingly, submitted that the revisionist already having availed of the remedy of filing a civil suit in respect of his rights in the suit property, there was no warrant for filing the application under rule 97 of Order XXI of the Code.
9. Inviting attention to the averments made in the application Exhibit-18, it was pointed out that no proper particulars had been disclosed by the revisionist as regards his being a tenant as an heir of the deceased – original tenant. Reliance was placed upon a decision of this court in the case of Heirs of deceased Trikamlal Maganlal and others v. Heirs of deceased Ramlal Yadram and others, 1986 GLH (UJ) 14, wherein the court has observed that the trial court may examine whenever such obstruction applications are preferred as to whether said applications disclose full particulars regarding the actual date of entry in the premises, the exact location of the portion of the premises which he states to be in his actual occupation, before any further action is taken regarding such application. The trial court may consider at the time when it disposes of such applications finally whether the applications are false, frivolous or vexatious and if it reaches a conclusion that the same are false, frivolous and vexatious, then special and exemplary costs may be awarded, if thought fit. It was submitted that the present application filed by the revisionist is merely with a view to delay the execution proceedings and is false, frivolous and vexatious and as such, the revision is required to be rejected with special and exemplary costs. Reliance was also placed on the decision of this court in the case of Kesarben Dhulaji Prajapati v. Amarsingh Baldevsingh Chauhan and others, 1996 (1) GLR 71, for the proposition that an obstruction application under rule 97 to 101 of Order XXI of the Code would be confined to protecting the possession of such person. Right of such person would not extend to challenging the decree on merits or on grounds going beyond the decree.
10. Strong reliance was placed upon the decision of the Supreme Court in the case of Atma Ram Builders Pvt. Ltd. v. A. K. Tuli and others, (2011) 6 SCC 385, wherein the Supreme Court has observed thus :
“[4] It is deeply regrettable that in our country often litigations between the landlord and the 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.”
11. Reliance was also placed upon the decision of the Supreme Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, AIR 1998 SC 1754, for the proposition that while considering an application under rule 97 of Order XXI, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order XXI rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. It was submitted that in the facts of the present case, the courts below have come to the conclusion that the revisionist was a joint tenant and not a tenant in common and as such, in view of the decision of the Supreme Court in the case of H. L. Pandey v. G. C. Paul, (1989) 3 SCC 77, since the respondent No.2 acted on behalf of all the tenants, he paid the rent on behalf of all and accepted the notices on behalf of all, the notice served on the respondent No.2 was sufficient. It was submitted that in the circumstances, the decree passed by the trial court was equally binding upon the revisionist as he was duly represented by his brother who was a joint tenant in the suit proceedings. It was, accordingly, submitted that no case is made out so as to warrant any interference and that in the facts and circumstances of the present case, the respondent No.1 – decree holder having been dragged from court to court, should now be permitted to enjoy the fruits of the decree in his favour.
12. In rejoinder, Mr. S. M. Shah, learned advocate appearing on behalf of the revisionist drew the attention of the court to the decision of the Supreme Court in the case of Shreenath and another v. Rajesh and others, (1998) 4 SCC 543, wherein it has been held that the expression “any person” under sub-rule (1) of rule 97 is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order XXI rule 97. Thus, by the use of the words “any person”, it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. Order XXI rule 97 conceives of cases where delivery of possession to the decree holder or purchaser is resisted by any person. After the 1976 amendment, all disputes relating to the property made under rules 97 and 99 are to be adjudicated under rule 101, while under unamended provision under sub-clause (2) of rule 97, the executing court issues summons to any such person obstructing possession over the decretal property. After investigation under rule 98, the court puts back a decree holder in possession where the court finds obstruction was occasioned without any just cause, while under rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the court has to dismiss the decree holder's application. So, a tenant or any person claiming a right in the property on his own, if resists delivery of possession to the decree holder, the dispute and his claim has to be decided after the 1996 amendment under rule 97 with rule 101 and prior to the amendment, under rule 97 read with rule 99. The court found that both under the old law or the present law, the right of a tenant or any person claiming right on his own in case he resists, his objection under Order XXI rule 97 has to be decided by the executing court itself. The court held that when a person is in possession, the adjudication is to be made under rule 97 and in case dispossessed, the adjudication is to be made under rule 100 (old law) and rule 99 under new law. Thus, a person holding possession of an immovable property on his own right can object in the execution proceedings under Order XXI rule 97. One has not to wait for his dispossession to enable his participation in the execution proceedings. It was submitted that the decisions rendered by this court in the case of Bhavnagar Transport Company v. Valmikbhai Himatlal Patel (supra) and in the case of Gautam Trading Company, through Proprietor v. Uma Transport Trading Co. & another (supra), being contrary to the law laid down by the Supreme Court in the aforesaid decision are per incuriam. It was submitted that in the circumstances, the application exhibit-18 under rule 97 of Order XXI of the Code was maintainable and the executing court was bound to decide the same. It was submitted that the Court having not decided the points canvassed in the application, the impugned judgment and order passed by the lower appellate court as well as the order passed by the executing court are required to be quashed and set aside, and the application exhibit-18 deserves to be allowed.
13. Before adverting to the rival contentions and the merits of the case, it may be necessary to briefly refer to the chequered history of the case. The respondent No.1 Shantilal Chotalal Shah as manager of HUF instituted a suit being Regular Civil Suit No.53 of 1990 in the court of the learned Civil Judge (J.D.) Botad for vacant possession of four shops of the ownership of the HUF as well as for mesne profit against the respondent No.2-Mahendra Vardhaman Shah. By a judgment and decree dated 31.3.1994, the trial court decreed the suit and directed the defendant to hand over vacant possession of the four suit shops within a period of three months. Being aggrieved, the respondent No.2 preferred an appeal being Regular Civil Appeal No.37 of 1994 before learned Assistant Judge, Bhavnagar, which came to be allowed by a judgment and decree dated 16.11.1994. The respondent No.1-original plaintiff challenged the said judgment and decree passed by the lower appellate court in revision before this court being Civil Revision Application No.1362 of 1995 which came to be allowed by judgment and order dated 28.7.2005. The respondent No.2-original defendant carried the matter before the Supreme Court by way of SLP (Civil) No.20917 of 2005, which came to be dismissed by an order dated 24.10.2005. However, at the request of the learned counsel for the respondent No.2 the court granted six months time for vacating the suit premises subject to the respondent No.2 furnishing undertaking in the court within a period of four weeks. Thereafter, it appears that since the respondent No.2 did not furnish any undertaking before the Supreme Court within a period of four weeks, on 5.12.2005, the respondent No.1 original plaintiff (the decree holder) filed an execution petition in the court of the learned Principal Civil Judge, Botad being Regular Civil Darkhast No.86 of 2005.
The respondent No.2, thereafter presented a review petition being Review Petition (C) No.228 of 2006 before the Supreme Court, which came to be dismissed vide order dated 8.3.2006.
14. In the meanwhile the revisionist instituted a Regular Civil Suit in the court of the learned Civil Judge (S.D.) at Bhavnagar, wherein the respondent No.1-decree-holder, the respondent No.2-Mahendrabhai Vardhamanbhai Shah (the revisionist’s brother), the Botad Municipality, Collector Bhavnagar and the State of Gujarat were impleaded as defendants, contending that he was in possession of the suit shops as an heir of Vardhman Gokaldas and had all the rights and interest of a tenant and prayed for: (a) a permanent injunction against the respondents No.1 and 2 herein from disturbing his possession of the suit shops or in any manner obstructing him from using the same; (b) a declaration that the Botad Municipality had no authority to take any steps interfering with his possession, tenancy rights and enjoyment of the suit property or from making any changes in the record; and (c) that the defendant No.4- Collector, Bhavnagar be directed to order the defendant No.3 municipality not to take any steps in respect of his rights in the suit property. In the said suit the revisionist filed an application seeking permission to waive the requirement of notice under section 80 of the Code, which came to be rejected by the trial court. Being aggrieved the revisionist preferred an appeal in the court of the learned Presiding Officer (F.T.C. No.5), Bhavnagar being Miscellaneous Civil Appeal No.67 of 2005, which came to be dismissed vide judgment and order dated 28.9.2006.
15. On 28.03.2006 the revisionist made the present objection and obstruction application-Exhibit 18, stating the plaintiff had filed execution proceedings against the defendant in respect of Civil Suit No.53/90. The suit property is situated at Bapati area of Botad. The plaintiff is well aware that the said premises are of the joint possession and tenancy of the objector. The suit shops had originally been taken on rent by their father Vardhamandasbhai and that they are in all three brothers, that is, the objector, the opponent Mahendrabhai and one Shantilal who had given up his rights since years and was residing at Ahmedabad. That he along with the opponent used to jointly carry on business in the suit premises along with their father. Since some time he has gone to Mumbai, but was often coming to Botad and was paying 50% of the rent, taxes, light bill, repairing cost and other business related expenses and he was also being given the profits coming to his share. Mahendrabhai is not the only person in possession as tenant, which fact the plaintiff is very well aware of. However, in collusion with his brother Mahendrabhai, with a view to deprive the objector of his tenancy rights, the plaintiff and defendant-Mahendrabhai with malafide intention have instituted the suit proceedings and despite the fact that he was a necessary party, the decree was obtained without joining him as a party and as such the objector was directly affected by the same. The suit property is a rented premise which had been taken on rent by Vardhman Gokaldas from the plaintiff’s father which has been admitted before the trial court by the power of attorney of the plaintiff during the course of trial. However, the trial court has not decided as to whether upon the demise of the original tenant, the defendant Mahendrabhai became the sole tenant of the suit premises or whether the heirs become tenants. It is, according, stated in the application that he has objection to the execution of the decree and that considering his objection application the execution proceedings be quashed.
16. It may also be noted that in the execution proceedings, pursuant to the notice dated 5.12.2005 issued by the executing court, the respondent No.2 had appeared and vide application Exh.24 on 19.6.2006 prayed for time to submit his objections. It appears that the executing court granted him time till 21.6.2006. On 21.6.2006 the respondent No.2 made another application which came to be rejected. The respondent No.2 challenged the same by way of revision before the Presiding Officer (F.T.C.No.5) Bhavnagar in Rent Revision No.6/2006 and further prayed that his brother (the revisionist) had filed Miscellaneous Civil Appeal No.67 of 2006 before the said court, and that the executing court be directed to permit the respondent No.2 to submit objections after the said appeal is decided by the appellate court. The said revision came to be rejected vide order dated 28.9.2006.
17. By an order dated 14.03.2007, the executing court rejected the objection application Exhibit-18 and allowed the execution petition and ordered issuance of warrant for implementation of the decree in accordance with the rules. The revisionist, challenged the said order before this court in Special Civil Application No.7437 of 2007. By an order dated 21.3.2007, notice came to be issued and interim relief came to be granted. The court further directed the revisionist to file affidavit to show that he was in possession as the tenant in premises from 1968 till the date of passing of the said order.
18. It appears that no such affidavit was filed by the revisionist. Instead, vide order dated 24.04.2007 this court granted permission to the petitioner-revisionist to withdraw the petition with a view to avail alternative remedy available to him. The revisionist, thereafter, preferred an appeal against the said order dated 14.3.2007 before the District Judge, Bhavnagar being Miscellaneous Civil Appeal No.68 of 2007 and further prayed that the matter be remanded to the executing court to decide Obstruction Application Exh.18 in accordance with law. By a judgment and order dated 3.3.2011, the said appeal came to be dismissed as time barred. The revisionist challenged the said judgment and order before this court by way of a writ petition being Special Civil Application No.4835 of 2011. Vide judgment and order dated 22.4.2011 the petition came to be allowed by condoning the delay caused in preferring the miscellaneous civil appeal with a further direction to the appellate court to decide the appeal within a period of three months from the date of receipt of writ of the said order. By the impugned judgment and order dated 28.07.2011, the learned 4th Additional District Judge, Bhavnagar, Camp at Botad, dismissed the appeal and confirmed the order dated 14.3.2007 passed by the learned Principal Civil Judge.
19. In the backdrop of the aforesaid facts, the merits of the case may now be examined.
20. At the outset, it would be necessary to deal with the contention raised by the learned advocate for the respondent No.1 that the application Exhibit-18 under rule 97 of Order XXI of the Code would not be maintainable at the instance of the revisionist. In support of his submissions, the learned advocate placed reliance upon two decisions of this Court in the case of Bhavnagar Transport Company v. Valmikbhai Himatlal Patel (supra) and in the case of Gautam Trading Company, through Proprietor v. Uma Transport Trading Co. & another (supra). However, in view of the decision of the Supreme Court in the case of Shreenath and another v. Rajesh and others (supra), on which reliance has been placed by the learned advocate for the revisionist, it is apparent that a person holding possession of an immovable property of his own right can object in execution proceedings under Order XXI rule 97 and does not have to wait for his dispossession to enable him to participate in the execution proceedings. Such person can object and get adjudication when he is sought to be dispossessed by the decree holder. In the circumstances, the submission of the learned advocate for the respondent No.1 that the obstruction application was not maintainable at the instance of the revisionist herein does not merit acceptance. The lower appellate court, in the impugned judgement and order, placing reliance upon the above referred decisions of this Court, has held that a third party objector has no locus standi to file an application of obstruction under Order XXI rule 97 of the Code and that the appeal is required to be dismissed on the ground of non-maintainability of such objections under Order XXI rule 97 of the Code. The decision of the lower appellate, to the extent it holds that the application under Order XXI rule 97 of the Code was not maintainable, therefore, is clearly erroneous being contrary to the law laid down by the Supreme Court in the case of Shreenath and another v. Rajesh and others (supra).
21. From the facts noted hereinabove, it has come on record that the revisionist had instituted a suit in the Court of the learned Principal Civil Judge, Bhavnagar. A perusal of the plaint filed in the said suit indicates that the revisionist had stated therein that his father Vardhman Gokuldas has expired in 1968. He has tenancy rights in the suit property as an heir of deceased Vardhman Gokuldas. That, he, jointly in the capacity as a heir, was carrying on business in the suit premises. Since the last some time, he has gone to Mumbai and off and on, comes to Botad and pays 50% of the rent, taxes, light bill and repairing and other ancillary business expenses and gets his share in the profit. Thus, vague and general averments have been made in the plaint. On the basis of the averments made in the plaint, it is apparent that the revisionist claims joint tenancy with the respondent No.2 – his brother. It is not the case of the revisionist that there was any division of the suit premises between him and the respondent No.2 or that rent was being paid to the landlord separately by him. The case of the revisionist is that since the last some time (the exact period is not specified), he has gone to Mumbai and off and on, he comes to Botad and that he is jointly carrying on business in the suit premises with his brother, the respondent No.2 herein and pays 50% of the rent and all other expenses and gets his share in the profit. It may be pertinent to note that despite a specific direction having been issued by this court in Special Civil Application No.7437 of 2007 directing the revisionist-petitioner to file affidavit to show that he was in possession as tenant of the premises from 1968 till the date of the said order, no such affidavit was filed by him. On the contrary, probably since he was not in a position to file such affidavit, the revisionist chose to withdraw the petition with a view to avail of the alternative remedy available to him.
22. At this juncture, it may be germane to refer to the decision of the Supreme Court in the case of H. L. Pandey v. G. C. Paul (supra), wherein it has been held thus:
“4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.”
23. In Ashok Chintaman Juker v. Kishor Pandurang Mantri, (2001) 5 SCC 1, it has been held that in case of joint tenancy, notice on any one of the tenants is valid and a suit impleading one of them as defendant is maintainable. A decree passed in such a suit is binding on all the tenants. The above referred decisions of the Supreme Court would be squarely applicable to the facts of the present case inasmuch as, in the light of the facts noted hereinabove, it is apparent that this is a case of joint tenancy and as such, the notice on the respondent No.2 and the suit impleading him as a defendant was maintainable and the decree passed in the suit would be binding on the revisionist as well as the respondent No.2. The position that follows is that the revisionist has no right to resist on the ground that the decree is not binding on him. The revisionist has no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord.
24. In the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and another (supra), on which reliance has been placed by the learned advocate for the respondent No.1, the Supreme Court has held thus :
“12. The words “all questions arising between the parties to a proceeding on an application under Rule 97” would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-
holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub- section.
13. In the above context we may refer to Order 21 Rule 35(1) which reads thus:
“35. (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.”
14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary.”
25. In the facts of the present case, the question raised by the revisionist has been decided on admitted facts and on the submissions made by the revisionist – resistor. As noticed earlier, on the averments made in the obstruction application, it is the case of the revisionist that he is a joint tenant of the suit property and is carrying on business jointly with the respondent No.2 – his brother. Thus, in the light of the decision of the Supreme Court in the case of Ashok Chintaman Juker v. Kishor Pandurang Mantri (supra), wherein it has been held that in case of joint tenancy, notice on one of the tenants is valid and a suit impleading one of them as defendant is maintainable and that a decree passed in such a suit is binding on all the tenants, the executing court was justified in rejecting the obstruction application.
26. At this juncture it may be apposite to refer to the following observations made by the Supreme Court in Atma Ram Builders Pvt. Ltd. v. A. K. Tuli and others (supra):
“[4] It is deeply regrettable that in our country often litigations between the landlord and the 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.”
27. Similarly, at the cost of repetition it may be stated that in the present case, the plaintiff after having succeeded till the Supreme Court and despite the Supreme Court at the request of the learned counsel for the respondent No.2- defendant, having granted six months time for vacation of the premises subject to furnishing undertaking before the Supreme Court within one month, the respondent No.2 did not file any such undertaking. The respondent No.1 - plaintiff was, therefore, constrained to initiate execution proceedings, where after the respondent No.2-defendant presented a review petition before the Supreme Court, which also came to be dismissed. In the meanwhile, the revisionist instituted a suit in the court of the learned Civil Judge (S.D.), Bhavnagar praying for: (a) a permanent injunction against the respondents No.1 and 2 herein from disturbing his possession of the suit shops or in any manner obstructing him from using the same; (b) a declaration that the Botad Municipality had no authority to take any steps interfering with his possession, tenancy rights and enjoyment of the suit property or from making any changes in the record; and (c) that the defendant No.4 Collector, Bhavnagar be directed to order the defendant No.3 municipality not to take any steps in respect of his rights in the suit property. Since the said suit was not competent as no notice under section 80 of the Code had been issued to the Government authorities, the revisionist moved an application for waiver of issuance of notice under section 80 of the Code which came to be rejected by the trial court, more particularly because no relief had been claimed against the Collector and the State Government. The revisionist carried the matter in appeal before appellate court and lost. It appears that during the pendency of the appeal, the revisionist made the present obstruction application. Thus, the respondent No.1-plaintiff despite holding a decree in his favour, has been dragged from court to court and has still not been able to reap the fruits of justice.
28. As can be seen from the order dated 14.03.2007 made by the executing court, after considering the submissions advanced the learned advocates for the respective parties and the decisions cited at the bar, the executing court has held that the contentions raised by the revisionist as regards statutory tenant and tenants in common are not proper at this stage, and has rejected the obstruction application and allowed the execution petition. The lower appellate court, in the impugned judgment and order, has placed reliance upon the decision of the Supreme Court in the case of H. L. Pandey v. G. C. Paul (supra) and held that in the present case, the respondent No.2 acted on behalf of the tenants, he paid rent on behalf of all and accepted notice also on behalf of all. In the circumstances, the notice served on the respondent No.2 was sufficient. After taking into consideration various decisions of the Supreme Court as well as the jurisdictional High Court, the lower appellate court has held that the contentions raised by the revisionist that the decree is not binding on him because he was a tenant- in-common and thus, was claiming protection as a tenant under section 5(11) (c) of the Rent Act, is not sustainable.
29. The lower appellate court, in paragraph 20 of the impugned judgment, observed that the Supreme Court in the case of Shreenath v. Rajesh, AIR 1998 SC 1827, has held that a third party who is in possession of a property when claiming an independent right as a tenant can move an application of objections under Order 21, rule 97 of the Code, but here in this matter, the revisionist has submitted written objections at Exhibit-18 to the effect that he is not a third party who got independent possession of suit shops barring tenant – Mahendra Vardhamanbhai Shah. The claim of the revisionist is that he is the brother of the Mahendra Vardhmanbhai-the judgment-debtor and after the death of his father, both the revisionist and Mahendra Vardhmanbhai being heirs of their deceased father are carrying on business in the suit shops jointly and he is a tenant-in-common. In the light of the findings recorded earlier, namely that the revisionist is a joint tenant and not a tenant-in-common, the lower appellate court has found that the revisionist was not entitled to maintain an application under rule 97 of Order XXI of the Code.
30. A perusal of the impugned judgment and order further indicates that the lower appellate court, placing reliance upon the decision of this Court in the case of Gautam Trading Company (supra), has also held that an obstruction application at the instance of a third party is not maintainable under rule 97 of Order XXI. The said finding of the lower appellate court is not in consonance with the settled legal position as held by the Supreme Court in the case of Shreenath v. Rajesh (supra) wherein it has been held that the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order XXI rule 97 has to be decided by the executing court itself. The Supreme Court has held that a person holding possession of an immovable property on his own right can object in the execution proceedings under Order XXI rule 97.
31. However, despite the aforesaid finding recorded by it, a perusal of the impugned judgment and order passed by the lower appellate court shows that the lower appellate court has considered the application under rule 97 of Order XXI of the Code on merits and has found that the revisionist being a joint tenant, notice to the respondent No.2 and impleadment of the respondent No.2 as defendant was sufficient. In the circumstances, though this court does not agree with the aforesaid finding recorded by the lower appellate court as well as the finding that the appeal is not maintainable, considering the fact that the lower appellate court has considered the application on merits and has recorded findings which are in accordance with law, merely because part of the impugned judgement is erroneous, is no ground to entertain the present revision, more so considering the nature of the proceedings, where the intention of the revisionist is only to further delay the proceedings and deprive the respondent No.1-decree holder of the fruits of the decree.
32. In the light of the aforesaid discussion, this court does not find any reason to interfere with the impugned judgement and decree passed by the lower appellate court. The revision, therefore, fails and is accordingly, rejected with no order as to costs.
[HARSHA DEVANI, J.] parmar*