IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9575 of 2011 Pappu Kumar . Versus Md.Ghulam Rabbani & Ors . ----------- ORDER 11. 07.09.2011 I have heard Mr. Aditya Narayan Singh No.1, learned counsel on behalf of the petitioner and Mr. Shailendra Kumar Sinha, learned counsel on behalf of the respondents. (2) This application under Article 227 of the Constitution of India has been filed by the defendant- appellant-petitioner against the order dated 24.09.2008 passed by the learned Additional District Judge VI, Patna in title appeal no.277 of 2007 whereby the learned Lower Appellate Court refused to grant stay of further proceeding of execution case no.1 of 2008 pending in the Court of Sub Judge XII, Patna. (3) It appears that the plaintiffs-respondents filed title eviction suit no.33 of 2002 against the petitioner and respondent no.4 on the ground of personal necessity and default. The monthly rent was Rs.525. Originally the suit property belonged to respondent no.3 who had sold the same to the plaintiffs by registered sale deed dated 01.06.1993 and thereafter the purchasers, plaintiffs started collecting rent from the defendant and gave written request to the defendant on 01.12.1996 for payment of the rent but no rent was paid to the plaintiffs. Legal notice was sent and then eviction suit 2 no.33 of 2002 was filed. The defendants-petitioner’s case is that they have filed suit for specific performance of contract being title suit no.451 of 2001 against the original landlord, respondent no.3 from whom the present plaintiffs have obtained the sale deed. It was alleged that in the year 1989, the original landlord agreed to sell the property in favour of the defendants and agreement was entered into on 04.09.1989 and, therefore, since then they are the real owner. (4) It appears that the learned trial court found that there is relationship of landlord and tenant between the parties. On 20.01.2005, the defendants were directed to pay the arrears of rent from 03.08.1999 at the rate of Rs.525 within 15 days and also directed to go on paying the current rent within 15th of next following month. The said order was not complied with by the petitioner and, therefore, defence against the defendants was struck off. Admittedly, the said order whereby the defence of the petitioner was struck off was never challenged by them. The trial court found that the suit for specific performance of contract filed by the defendant has also been dismissed. On the above findings, the trial court decreed the eviction suit. (5) To execute the decree, the plaintiff- respondent filed execution case no.1 of 2008. Against the trial court judgment, the petitioner filed title appeal no.277 of 2007 and in that case, they filed application under Order 41 3 Rule 5 of the Code of Civil Procedure. The Lower Appellate Court by the impugned order rejected the stay application on the ground that the petitioners did not obey the order of the trial court and did not deposit arrear of rent. (6) Admittedly, still today, the petitioner and respondent no.4 are staying in the suit property without payment of single farthing to the plaintiff-respondent. It is also admitted fact that the suit for specific performance of contract has also been dismissed. However, it is submitted at the time of hearing of this application that appeal is pending. In view of the above facts, prima facie, it appears that in spite of the direction of the trial court, the petitioners never deposited the arrears of rent and current rent and thereby they are flouting the orders of the Court. (7) The learned counsel for the petitioner submitted that when the title of the plaintiff was disputed, the Court below should have converted the eviction suit to a regular suit and should have investigated the title of the parties. The learned counsel relied upon a decision reported in 1998(1) P.L.J.R. 114(Tripurendra Pandey vs. Subhash Chandra Verma) in support of his contention. From perusal of the decision, it appears that this Court has held in that case that for passing an order under Section 15 of the B.B.C. Act, the Court is required to see as to whether plea is bonafide and not a mere pretence. Therefore, in view of the decision while passing an order, prima facie, the Court was 4 required to find out the relationship of landlord and tenant. There is no dispute regarding this proposition. (8) The learned counsel next relied upon A.I.R. 1989 Patna 13(Division Bench Ramtahal Modi vs. K. Divakaran). In the said decision, it has been held that transferee landlord is not entitled to receive the arrears of rent prior to purchase as such arrear was not specifically assigned by the transferor landlord. The learned counsel next relied upon A.I.R. 1994 Supreme Court 853(S.P.Changal Varaya Naidu vs. Jagarnath) and submitted that the plaintiff obtained the decree by playing fraud. All these decisions have been cited on behalf of the petitioner to show that the appellant has got good prima facie case and it is likely that he will succeed in the title appeal and, therefore, the prayer has been made to stay further proceeding in execution case till disposal of the title appeal. (9) I am not expressing any opinion with regard to these decisions cited by the learned counsel for the petitioner as any opinion that may be expressed will prejudice either of the parties in the title appeal which is yet to be heard by the Lower Appellate Court. Prima facie, at present the facts are admitted that the claim of title of the petitioner and his father, respondent no.4 is based on the alleged deed of agreement but the suit for specific performance of the said contract has already been dismissed. The petitioner and his father are residing in the suit premises without paying 5 anything to the plaintiff-respondent. Admittedly their defence qua-a-tenant has already been struck off for non-compliance of the order passed by the trial court under Section 15 of the Bihar Building(Lease, Rent and Eviction) Control Act, 1982. The trial court in the judgment also directed the petitioner to pay the arrears of rent but nothing has been paid. Now, therefore, admittedly the petitioner and his father are flouting the orders of the Court. (10) In (2010) 9 S.C.C. 385(Jai Singh and others vs. Municipal Corporation of Delhi), the Apex Court has held at paragraph 15 as follows: “15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well- recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a “bull in a china shop”, to correct all errors of 6 judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.” (11) It is contended on behalf of the petitioner that if stay is not granted, the petitioner shall suffer serious loss and irreparable injury and the appeal will become infructuous. It is well settled that on the ground of sympathy, supervisory jurisdiction cannot be invoked by a person whose conduct itself is not bonafide. (12) It is also well settled principles of law that the power exercised under Article 227 of the Constitution of India is discretionary and has to be exercised very sparingly on equitable principle and the power should not be exercised in favour of a person who is flouting the orders of the Court. It has been held by the Apex Court in the case of Salini Shyam Setty vs. Rajendra Shankar Patil (2010) 8 S.C.C. 329 that in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. (13) In the present case, so far case of the petitioner is concerned, his defence qua-a-tenant has been struck of. Therefore, he will succeed on the ground of title only which he is not claiming. His claim is based on contract but his suit for specific performance of contract has been dismissed. Therefore, at present he has got no right to 7 continue in possession of suit property without paying rent that too since more than 10 years. Therefore, in my opinion, the Lower Appellate Court has rightly refused to stay execution case. (14) In view of the above facts and circumstances of the case, in my opinion, it is not desirable in the present case to exercise supervisory jurisdiction in favour of the petitioner who is flouting the orders of the Court in one hand and praying for exercise of supervisory jurisdiction for setting aside the order of the Courts below which have been passed within the bounds of their jurisdiction. In my opinion, it will not be proper to grant equitable discretionary jurisdiction in favour of such person. (15) I, therefore, find no merit in this writ application and accordingly, it is dismissed. The interim order of stay is vacated. Saurabh/A.F.R. ( Mungeshwar Sahoo, J.)