C.R.No.5560 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on February 05,2010. Jagdish Chand -- Petitioner vs. Khem Chand and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. P.S.Rana,,Advocate, for the petitioner Mr.C.B.Goel,Advocate, for the respondents. Rakesh Kumar Jain, J: This revision has been preferred by the judgment debtor against order dated 15.9.2009 passed by Addl.Civil Judge (Senior Division), Karnal, being aggrieved only against part of the order whereby executing Court made the following observations:- “However, in the interest of justice, the decree holder is allowed to put a temporary shed at his own cost to cover the area of the roof that has fallen down” A brief background of the case is that respondent No.1 is a tenant in a shop situated at Purani Anaj Mandi Gharaunda, and is dealing in the business of cycles under the name and style of 'M/S.Sharma Cycle Works'. The landlord/petitioner has been filing one petition after the other C.R.No.5560 of 2009 2 for his eviction and in that process threatened to open a hole in the roof of the shop leading to the filing of a Civil Suit No.1003 of 1996 (Khem Chand Vs.Smt.Mishri Devi and others) for permanent injunction, decreed on 08.1.1998, in which it was recorded that “it is ordered that the suit succeeds and the same is decreed as prayed for. Hence, a decree for permanent injunction is passed in favour of the plaintiff and against the defendants and the defendants are restrained from interfering into, making any holes, pulling down thereof the roof of the shop in question or throwing dirty water through the hole of the roof or dispossessing the plaintiff from the shop in question except in due course of law”. Respondent No.1/decree holder filed an execution application under Order 21 Rule 32 read with Section 151 of Code of Civil Procedure,1908 (for short,'CPC') on the ground that despite a decree for permanent injunction , they are falling, making holes in his roof and are throwing dirty water from said holes. The application is contested by the judgment debtor on the ground that the shop in question has become very old and has outlived its life. It is in dilapidated condition and is irreparable. The learned Court below found that the decree holder/respondent No.1. has also filed an application under Section 12 of the Haryana Urban (Control of Rent & Eviction )Act, 1973 (hereinafter referred to as 'the Act') and in view of photographs placed on record, the executing Court found that roof of the shop in question has already fallen down, therefore, there cannot be any further compliance of the decree by way of attachment of the property of the judgment debtor or others with regard to violation of the decree in question is concerned. However, the C.R.No.5560 of 2009 3 decree holder was allowed to put a temporary shed at his own costs to cover the area of the roof that had fallen down. Learned counsel for the petitioner has vehemently argued that the learned executing Court had no jurisdiction to allow the decree holder to put a temporary shed at his own costs to cover of the area of the roof which has already fallen because the impugned concession given by the executing Court in favour of the decree holder would fall within the meaning of Section 12 of the Act for which only Rent Controller has got jurisdiction. In this regard, he has relied upon a decision of this Court in the case of Smt. Bal Kaur and others Vs. Shri Chander Parkash 1979 P.L.R, 549. On the other hand, learned counsel appearing for respondent No.1. submitted that roof of the shop in question had not fallen due to the Act of the God, but in fact, it has been pulled down deliberately by the landlord who was earlier occupying first floor of the shop. In this regard, he has placed on record two photographs which are taken as Mark A and Mark B and has also referred to various litigation between the decree holder and judgment debtor in respect of the premises in dispute, to contend that the judgment debtor has deliberately pulled down the roof of the shop to make it un-inhabitable so as to take a ground in his application for ejectment under the Act. It is further submitted that under Order 21 Rule 32 of the CPC the executing Court can pass the order impugned herein. I have heard learned counsel for the parties and have perused the record. Submission made by learned counsel for the petitioner that C.R.No.5560 of 2009 4 the impugned part of the order falls within the definition of repair as envisaged under Section 12 of the Act and could only be ordered by the Rent Controller, may appear to be attractive, but in fact, it is misconceived. In the case of Smt. Bal Kaur (Supra), which has been relied upon by learned counsel for the petitioner, learned Civil Judge, allowed the plaintiff/tenant in that case to carry out necessary repairs of the shop in dispute in terms of provisions of Section 108 (f) of the Transfer of Property Act, 1882. In the said case, it was held that question of repair has to be dealt with in accordance with the provisions of Section 12 of the East Punjab Urban Rent Restriction Act, 1949 and Civil Court has no jurisdiction to invoke the provisions of Transfer of Property Act, 1882 because when a specific statute has been enacted which provides for repair by the tenant then Civil Court cannot pass an order for repair under the Transfer of Property Act, 1882. In my view, the decision in the aforesaid case is hardly of any help to the petitioner because in that case, the Civil Court had ordered repair of the shop under possession of the tenant by resorting to Section 108 (f) of the Transfer of Property Act which provides that if the lessor neglects to make, within a reasonable time, after notice any repairs, which he is bound to carry out, the lessee may carry out the same himself and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor. On the other hand, provisions of Order 21 Rule 32 of the CPC are squarely applicable to facts of present case. Before adverting to the discussion, it would be necessary to refer to the provisions of Order 21 Rule 32 of the CPC. C.R.No.5560 of 2009 5 32. Decree for specific performance for restitution of conjugal rights, or for an injunction: - (1) where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for (six months) if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any to the judgment-debtor on his application) (4) Where the judgment -debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of (six months) from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court any, in lieu of or in addition to all C.R.No.5560 of 2009 6 or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. (Explanation: - For the removal of doubts, it is hereby declared that the expression “ the act required to be done” covers prohibitory as well as mandatory injunctions”.) Undisputedly, as per decree under execution, the defendant/petitioner was restrained from interfering into making any holes, pulling down the roof of the shop in dispute or throwing dirty water through the holes of the roof or dispossessing the plaintiff from the shop in dispute except in due course of law, whereas in an open defiance of the injunction decree, the petitioner has pulled down the roof of the shop in dispute as is apparent from photographs marked A and B and has caused damage to the shop to such an extent that unless and until temporary arrangement is allowed to be made, as has been provided by the executing Court, the shop would become uninhabitable. Order 21 Rule 32 (5) of the CPC categorically provides that where a decree for injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court, at the cost of the judgment debtor. For the purpose of removal of doubts, it was also explained that act required to be done covers prohibitory as well as C.R.No.5560 of 2009 7 mandatory injunction. In order to further explain the right of a decree holder confined in Order 21 Rule 32 (5) of the CPC, an illustration has also been been provided which reads as under:- “A, a person of little substance, erects a building which renders unhabitable a family mansion belonging to B. A, inspite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may, apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings” Thus, in a decree for permanent injunction which has been disobeyed by the judgment debtor, the Court can not only order for attachment of the property of the judgment debtor or detain him in civil imprisonment or resort to the provisions of coercive methods, but also issue a prohibitory or mandatory injunction for an act required to be done by the judgment debtor at his own cost. Thus, in my view, the order impugned by the petitioner in not only in consonance with the principle of natural justice, equity and fair play, but also in terms of the provisions of Order 21 Rule 32 (5) of the CPC. Hence, the present revision petition is found to be devoid of any merit and the same is hereby dismissed with cost of Rs.5000/-. February 05 ,2010 (Rakesh Kumar Jain) RR Judge