RSA No.532 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.532 of 2011 (O&M). Decided on: May 16, 2011. M/s Sunil Auto Service. .. Appellant VERSUS Parikshat Suri and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.B.C.Bitta, Advocate, for the appellant. Mr.M.L.Sarin, Sr., Advocate, with Mr.Vikas Suri, Advocate, for respondent Nos.1 to 3. M.M.S. BEDI, J. The appellant is a third party whose objection petition in execution application filed by respondent Nos.1 to 3, against their tenant respondent No.5, Ashok Kohli and respondent No.6, Anil Kohli, has been dismissed by the executing Court vide . . . 1 RSA No.532 of 2011 (O&M) order dated 20.07.2010. The appeal has also been dismissed by the appellate Court vide order dated 09.12.2010. Brief admitted facts, relevant for the adjudication of present case are that Vinod Kumar Suri Landlord (now represented by his LRs respondent Nos.1 to 3), of building constructed on Plot No.120, Industrial Area, Phase-II, Chandigarh, had filed an ejectment petition against Ashok Kohli of M/s Kohli Auto Parts and Anil Kohli, under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Rent Act'), before the Rent Controller, Chandigarh. The ejectment application was allowed by Shri Ashok Kumar, Rent Controller, Chandigarh on 22.01.2001, but in appeal Shri R.S.Baswana, Appellate Authority, Chandigarh, vide order dated 04.05.2006, reversed the order passed by the Rent Controller and dismissed the ejectment application. However, the High Court in Civil Revision No.5222 of 2006, decided on 20.05.2009, reversed the judgment of the appellate Authority in revision petition under Section 15(5) of the Rent Act and allowed the ejectment application, upholding the ground of personal necessity and subletting. In the execution petition filed by respondent Nos.1 to 3, the appellant filed an objection petition claiming that M/s Sunil Auto Service, through its proprietor Sunil Kumar is in possession of portion of plot No.120, Industrial Area, Phase-II, Chandigarh, as a tenant and the objector had taken on rent the said premises from Shri Vinod Kumar Suri deceased at a monthly rent of ` 3500/-, . . . 2 RSA No.532 of 2011 (O&M) excluding water and electricity charges and the objector had been running its business under the name and style of M/s Sunil Auto Service, in the tenanted premises since 2001 being in possession of the premises as tenant. It was claimed that when the Balliff of the Court visited the tenanted premises of the objector on 02.09.2002, the objector came to know about the ejectment order having been passed against Ashok Kohli and Anil Kohli. On enquiry the objector came to know that Vinod Kumar Suri had filed a rent petition against Ashok Kohli and Anil Kohli, for their eviction from the premises in dispute. The litigation was not in his knowledge. The objector claims that he had been making payment of rent to Shri Vinod Kumar Suri. It was averred that the possession of the objector in the premises was legal as tenant and as such, he could not be dispossessed in execution of an ejectment order passed in rent petition in which the objector was not made a party. Ashok Kohli and Anil Kohli had not informed the objector that the decree holder had filed an application for ejectment in respect of the premises in dispute and on the other hand they have not contested the case seriously and their counsel did not argue the revision petition in the High Court. It was argued that the revision petition had been decided without arguments on their behalf as they were not in possession of the premises in dispute and that they connived with landlords and did not take any interest in the case. The objector claims that he has been a tenant in three rooms in plot No.120, Industrial Area, Phase-II, Chandigarh and in the petition addresses of both the JDs are not of the premises . . . 3 RSA No.532 of 2011 (O&M) which indicate that they were not in possession of the premises in dispute. The objector claims that he could not be evicted in execution of an eviction order dated 22.01.2001, affirmed by the High Court in revision petition, on 20.05.2009. Respondent Nos.1 to 3, decree holders contested the objection petition on the ground that the same had been moved in a fraudulent manner with mala fide intention to obstruct the execution of warrants of possession issued by the executing Court. It was averred that provisions of Order 21 Rule 99 CPC, cannot be invoked by a person other than a judgment debtor and that the objector has got no right to obstruct the execution of the warrants of possession and the remedy available to him is only to institute an independent suit and that he cannot restrain the execution of warrants of possession and cannot deprive the decree holders by filing vexatious application. The executing Court observed that the objection petition does not inspire confidence that the objector is in possession of a part of the plot No.120, Industrial Area, Phase-II, Chandigarh; the application had been filed to obstruct the execution of warrants of possession; the objector being a third party has got another remedy to file an independent civil suit claiming the relief of injunction to protect his possession; the provisions of Order 21 Rules 101 CPC, are not applicable; and that a third party has a right to move an application only to complain its dispossession under Order 21 Rule 99 CPC. . . . 4 RSA No.532 of 2011 (O&M) Aggrieved by the order passed by the executing Court, an appeal was preferred by the appellant before the appellate Authority, raising a grievance that objector being proprietor of M/s Sunil Auto Service, cannot be ejected in view of the eviction order passed by the High Court against respondent Nos.4 & 5, Ashok Kohli and Anil Kohli, respectively, who had colluded with respondent Nos.1 to 3 and that the executing Court did not frame issues in terms of the pleadings of the objector and no opportunity was given to lead evidence to prove the possession of the objector as a tenant. The appeal was dismissed on the following grounds: - That the objector appellant has not been able establish his claim to be of tenant in possession of the demised premises since 2001, as the landlord Vinod Kumar Suri since deceased had instituted an ejectment petition against Ashok Kohli and Anil Kohli, in the year 1997; That Shri Sunil Kumar has not been able to place on record any rent deed or receipt of payment of rent regarding the tenanted premises; That the appellant-objector has got no right to insist that executing Court must frame issues before execution proceedings are adjudicated upon; That the executing Court is required to expeditiously execute the decree and cannot delay ejectment merely on the the basis of frivolous and . . . 5 RSA No.532 of 2011 (O&M) vexatious objections; and That according to judgment in Rocky Tyres Versus Ajit Jain and another, AIR 1998 (P&H) 202, the purpose of granting an opportunity to an objector while entertaining his objections under Section 47 read with Order 21 Rule 97 to 108 CPC, does not amount to permission for misusing the process of the Court. The objector has opted to file a regular second appeal under Section 100 CPC, on the pretext that adjudication of his objection petition being a decree under Order 21 Rule 103 CPC and being an appealable order, the second appeal would be maintainable. The regular second appeal under Section 100 CPC is not maintainable rather, it should have been a second appeal against the order as per law laid down in Gurram Seetharam Reddy Vs. Gunti Yashoda and another, 2005 AIR (A.P.) 95 (Full Bench). It has been laid down by a Full Bench of Andhra Pradesh High Court that orders passed under Order 21 Rules 58(3), 98 or 100 CPC, are appealable under Section 96 CPC, and a second appeal is maintainable against order passed in such appeals. The appellant should have filed an ESA (Execution Second Appeal) against the dismissal of his appeal by the Additional District Judge. Irrespective of the regular second appeal being not maintainable, in the interest of justice, I have given a fair opportunity to the appellant to satisfy this Court that M/s Sunil Auto Service through its . . . 6 RSA No.532 of 2011 (O&M) proprietor Sunil Kumar had been in actual physical exclusive possession of the part of the property in dispute in the capacity as a tenant of Shri Vinod Kumar Suri, deceased. On the first date of hearing i.e., on 02.02.2011, the case had been adjourned to enable the objector-appellant to satisfy this Court that the appellant had enjoyed the status of a tenant by referring to any rent note, any receipt to show prima facie proof of being in possession as a tenant. An opportunity was given to place on record an affidavit indicating the present status of the building in dispute. Despite having been given number of opportunities, the appellant could not place on record any document to prima facie establish that the status of the appellant was that of a tenant w.e.f., 2001, under Vinod Kumar Suri. The appellant filed a miscellaneous application along with an affidavit of Sunil Kumar, in the capacity as proprietor of M/s Sunil Auto Service, to the effect that he has been in possession of the tenanted premises and that the tenancy was oral and the landlord had never issued any receipt after receiving the rent from the appellant. He placed on record certified bills of M/s Verma Motors, M/s Singla Associates, M/s Harpreet Enterprises and a copy of the call details of HFCL and Infotel Limited. None of these documents establish that M/s Sunil Auto Service is in occupation of the premises in dispute as a tenant. He also placed on record Annexure P-10, a notice issued by the Estate Office, U.T., Chandigarh Administrator dated 13.12.2006, to the owner under . . . 7 RSA No.532 of 2011 (O&M) Rule 20 of Haryana Leasehold of Site and Building Rules, 1973, for having permitted the business and trade of repair of motor vehicles by M/s Sunil Auto Service. The copy of the notice was also sent to proprietor M/s Sunil Auto Service as is apparent from the endorsement. All the occupiers were also given a notice to show cause and appear for hearing. Few photographs Annexure P-11 & P12, have been placed on record showing that a motor repair garrage was being run in the premises in dispute. From all the photographs, it is not apparent whether the motors were being repaired by the tenant M/s Kohli Auto Service or by M/s Sunil Auto Service but in one photograph signboard of M/s Sunil Auto Service, has been shown. It is important to highlight that the font of 'Auto Service' is smaller than the font of 'Sunil' in photograph Annexure P- 11. The space between 'Sunil' and 'Auto Service' is indicative of the fact that word 'Sunil' has been written subsequently in darker colour in different font. All the documents except for Annexure P-10, deserve to be rejected. It is not out of place to observe here that though it was not permissible in regular second appeal to look into any evidence but in an endeavour to see that no injustice should be done to the appellant, each and every document was carefully perused to determine his status as a tenant. Annexure P-10 raised curiosity regarding M/s Sunil Auto Service being in possession, as such, notice of motion was issued to respondent Nos.1 to 3 for the limited aspect to explain the status of M/s Sunil Auto Service, for fair appreciation of the facts. . . . 8 RSA No.532 of 2011 (O&M) Notice was accepted by counsel for respondent Nos.1 to 3 in the Court. Respondent Nos.1 to 3, placed on record affidavit dated 09.05.2011 along with photographs and Annexures. It was averred in the affidavit that the appellant has made an attempt to mislead the Court by not placing on record correct and material documents. It has been clarified that show cause notice dated 13.12.2005, had been issued by the Estate Office, to the owner as well as to M/s Sunil Auto Service, but there was no material or document on the record of Estate Office to substantiate the same. The name had been introduced in connivance with an Inspector of the Estate Office without any material or legal foundation. On being confronted with the correct situation, the Estate Office modified and corrected the said show cause notice by issuing another show cause notice dated 08.03.2010, in continuation of earlier one. A copy of said show cause notice dated 08.03.2010, has been placed on record as Annexure R-9. The show cause notice culminated in passing of an order dated 04.01.2011, Annexure P-1, which reveals that copy of the order was also endorsed to the occupier i.e., Ashok Kohli. A copy of show cause notice dated 08.03.1010, was also served upon all occupiers of the premises in question by way of pasting at the site. The said pasting was done by the Process Server on 16.03.2010, as recorded in his report. Notice dated 13.12.2006, was returned by the Process Server of the Estate Office with an endorsement dated 25.12.2006, to the effect that the tenant on the spot had refused to accept the notice saying that it was meant for the . . . 9 RSA No.532 of 2011 (O&M) owner and he could not receive the same. I have considered the averments in the affidavit and I am of the opinion that the landlord had filed the eviction petition on 04.08.1992. The landlord had been able to obtain ejectment order on 22.01.2001. The appeal had been decided on 04.05.2006. The revision appears to have been filed in the High Court in September 2006. The notice which was allegedly issued to the owner as well as to the occupants, was received during pendency of the revision petition in the High Court. A perusal of the judgment passed in Civil Revision No.5222 of 2006, dated 20.05.2009, indicates that notice Annexure P-10, dated 13.12.2006, was brought to the notice of the High Court by placing the same with CM No.5830 of 2007, as Annexure P-1 which shows that a specific reference has been made to the said Annexure P-1, in the judgment in Civil Revision No.5222 of 2006. In view of above circumstances, I am of the considered opinion that the notice Annexure P-10, dated 13.12.2006, is not sufficient enough to establish the status of objector as a tenant. In order to establish tenancy, the appellant was required to establish the relationship of landlord and tenant with Vinod Kumar Suri, as mentioned hereinbefore. Despite having been given opportunity neither any rent note nor any rent reciept or any document establishing that rent paid by the appellant was ever received by landlord, has been placed on record. In the absence of any such document, the status of appellant cannot be held to be that of a tenant. I am satisfied with the explanation of respondent Nos.1 to 3, . . . 10 RSA No.532 of 2011 (O&M) that notice dated 13.12.2006, had either been wrongly issued or had been procured with an oblique motive to establish the possession of the objector after ejectment order having been passed by the Rent Controller. In order to prevent any prejudice to the objector and to satisfy the judicial conscious, as to how the name of M/s Sunil Auto Service, came into existence, I have considered the reply of the decree holder submitted by them to the objection petition. It has been specifically pleaded in the reply to the objection petition that the objector has been fielded as a front man by the judgment debtor to frustrate the fruits of ejectment order. A copy of the reply to the objection petition has been placed on record as Annexure R-2. A copy of the report of the Balliff has been placed on record as Annexure R-5, which indicates that when the Balliff of the Court had gone to the premises in question on 02.09.2002, to execute the warrants of possession, the same was resisted by Sunil Kumar and his brother Parkash, claiming to be the Incharge on behalf of the judgment debtors. The said fact was duly reported by the Balliff to the executing Court to seek police help for executing the warrants of possession. Connection of Sunil Kumar with the tenants is depicted from photograph Annexure R-18, in which the name of the tenant- occupant is mentioned as M/s Kohli Auto Service whereas the name of Sunil Kumar is mentioned to be the person who might be managing the affairs of M/s Kohli Auto Service. A specific question was asked from counsel for the appellant as to what is the . . . 11 RSA No.532 of 2011 (O&M) relationship of Sunil Kumar with M/s Kohli Auto Service. Mr.B.C. Bitta, learned counsel for the appellant had submitted that he has got instructions to say that Sunil Kumar has got no concern with M/s Kohli Auto Service or its proprietor Ashok Kohli or sub-tenant Anil Kohli. The said contention seems to be falsified from the report of the Balliff Kala Ram who had gone to execute the warrants of possession, passed against Ashok Kohli, but was obstructed by Sunil Kumar claiming himself to be Incharge. The above situation clearly establishes that Sunil Kumar has either been working as a Manager/employee or as authorized agent of the original tenant M/s Kohli Auto Service and he himself has failed to establish his status as a tenant in any portion of the premises in dispute having miserably failed to produce any rent receipt, rent note or any other document to establish the relationship of tenant with the landlord. The present case is a typical instance of flagrant abuse of process of the Court to hamper the execution of ejectment order against the tenant Ashok Kohli who had been running the business of M/s Kohli Auto Service. A business card, Annexure R-7, has been placed on record which indicates that name of Sunil along with Parkash is mentioned to be the persons running M/s Kohli Auto Service. It will be unfair to the counsel for the appellant in case his main argument that Courts below have acted illegally in not adjudicating the matter by framing issues, is not considered. It has been vehemently contended by Mr.Bitta, learned counsel for the appellant, that it is incumbent upon an executing Court to frame . . . 12 RSA No.532 of 2011 (O&M) issues because language of order 21 Rule 101 CPC, that all questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Order 21 Rule 99 CPC, have to be decided by the executing Court and not by a separate suit. Any order passed by a Court under Order 21 Rule 100 CPC, is subject to appeal and has the same force as a decree. No doubt, the objection is maintainable by a third party even under Order 21 Rule 99 CPC. An application complaining of dispossession has to be decided under Order 21 Rule 100 CPC. Order 21 Rule 100 CPC, entitles an executing Court to pass an order on the application, in the circumstances of the case, as it may deem fit but so far as framing of issues is concerned, it is well settled principle of law that it is not incumbent upon the executing Court that it must put to trial every objection even if, prima facie, it appears to be frivolous and vexatious and is intended to delay the execution proceedings to frustrate the decree amounting to abuse of process of the Court. The provisions of Section 47 and Order 21 Rules 97 to 108 CPC, no doubt require the executing Court to adjudicate upon all the questions relating to the execution, discharge or satisfaction of the decree or the questions relating to right, title or interest in the property but in case, prima facie, the averments in the objection petition appear to be frivolous, mala fide and vexatious with an objective to defeat the fruits of the decree amounting to abuse of process of the Court, the executing Court has got a discretion to dismiss the objection petition by passing a speaking order recording . . . 13 RSA No.532 of 2011 (O&M) the reasons for dismissal of the objection petition. This matter is not res integra and has been settled in Rocky Tyres Versus Ajit Jain and another, AIR 1998 (P&H) 202, and Bikram Singh Vs. Surjit Singh and others, 2004 (4) RCR (Civil) 422. In case Rocky Tyres (supra), it was held as follows: - “It is settled principal of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceeding, even if prima facie they appear to be frivolous, vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court. In this court in Execution Second Appeal No.2333 of 1996, Bhagwan Singh and others vs. Parkash Chand, decided on 7.11.1996. The Court after detailed discussion and following the principles enunciated by the Hon'ble Supreme Court of India in the cases of Babu Lal v. Raj Kumar, J.T. (1996) 2 716, Munshi Ram and others v. Delhi Administration, A.I.R. 1968 Supreme Court 702, B. Gangadhar v. B.G. Rajalingam, A.I.R. 1996 S.C. 790, and noticing judgments of various High Court, held as under:- “Now, for considerable period it is not only the judicial trend which has declined to interfere to protect unlawful possession or possession of ranked trespasser etc. but, on the other hand, judicial anxiety has been to give effective relief to . . . 14 RSA No.532 of 2011 (O&M) the successful parties by expeditious execution of decrees in favour of the parties. Unnecessary prolongation of litigation sometimes results even in frustrating the decree itself. Such attempt on the part of the objector to frustrate a decree is a mischief which has to be prevented by due process of law and expeditious decision of such ill-founded and frivolous objections would also be in the interest of justice and within the permissible field of jurisdiction of the execution”. “If frivolous objections of the present kind are permitted to unreasonably and un-necessarily prolong the delivery of possession to a decree- holder in accordance with law, it would certainly amount to putting a premium on abuse of process of law”. Thus the carnal principle of law that follows is that the purpose of granting an opportunity to prove his case to an objector while entertaining objections under Section 47 read with Order 21 Rules 97 to 108 of the Civil Procedure Code does not amount to permission for abusing the process of law or Court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law, but such a discretion cannot be termed as a mere routine exercise of judicial discretion. Either way it should be for well founded and settled principles governing the subject.” It is established in the present case that the . . . 15 RSA No.532 of 2011 (O&M) appellant is a front man of judgment debtor and his objections are nothing but a device to hamper the execution and delay the same by raising a plea that it is not M/s