JAGDISH LAL Vs. M E PERIERA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India raises an interesting question as to the extent of the power of a Court to restore possession of immoveable property to the judgment-debtor on the ex-parte decree pursuant to which the possession was delivered, being set aside.

(2.) This is how the question has arisen. Property No. 3509, Rashid Manzil, Nicholson Road, Kashmere Gate, Delhi belongs to one Jagdish Rani Sethi. N.P. Corea, respondent No. 2. herein, was a tenant in respect of a part of the second floor of the aforesaid property. M.E. Periera, respondent No. 1 herein was in occupation of a part of the said demised premises, either as a sub-tenant under N.P. Corea or as a licensee, a matter which is in controversy between the parties. N.P. Corea obtained an exparte decree against M.E. Periera from a Civil Court on the allegation that Periera was a licensee and pursuant to the decree, N.P. Corea obtained possession of the said portion and allegedly surrendered the demised premises in favour of the landlady, who in turn is alleged to have let out a portion of the premises, including the portion in the occupation of M.E. Periera, to Jagdish Lal Arora, petitioner herein. Meanwhile on a motion of Periera, the exparte decree was set aside and Corea was directed to restore the portion previously in the occupation of Periera to him. The process of the Court for the restoration of the property was, however, resisted, inter alia, by the petitioner on the ground that he was a bona fide tenant in respect of the premises including the said portion and was not liable to be disturbed in the proceedings pursuant to the order of restoration. Periera thereupon sought police aid. The Petitioner made an application to the trial Court for stay of further proceedings till such time as the application under order 21 Rule 97 of the Code of Civil Procedure had been made. It was further prayed that if the application for police aid be treated as an application under order 21 Rule 97 of the Code of Civil Procedure, notice of the same be given to the petitioner and further proceedings be stayed till the claim of the petitioner had Been determined. It was stated in the application that the petitioner was in bona fide possession of the premises as a tenant in his own right and "in good faith". By an order made by the trial Court on October 24, 1975, the plea for stay of proceedings was turned down. It was, however, observed that the order shall not prejudice to the title or interest of the applicant in any way". In the course of the order, the contentions raised on behalf of the petitioner, that no police aid could be given without a motion under Order XXI Rule 97 of the Code of Civil Procedure for removal of obstruction, and without giving notice to the petitioner, were repelled on the ground that the aforesaid provision had no application to proceedings in the execution of a restoration order. It was further held that the petitioner, having come into possession of the premises during the pendency of the suit, "his rights are prima facie barred by Section 47 ''CPC". It was further observed that in proceedings under Section 144 of the Code of Civil Procedure, it was the duty of the Court to restore the benefit taken by a party under a decree which has since been set aside. This order was confirmed by this Court (Rohtagi J.) in a revision petition filed against it. Subsequently, the application of the petitioner was dismissed by an order made by the trial Court on November 11, 1975. The trial Court reiterated its earlier conclusion that the provisions of Order XXI Rules 97 and 99 were not applicable to the present proceedings because the proceedings were not in execution but for restoration of property. The plea of the petitioner for investigation into the right in which he claimed the possession of the property was turned down on the ground that by virtue of Rule 102 of the Code of Civil Procedure the provisions of Rules 99 and 101 of the said Order were not applicable to any resistance or obstruction in execution of a decree for possession by a person to whom ''the judgment debtor has transferred the property after the institution of the suit" in which the decree was passed. While dismissing the application it was directed "that if the applicant still resists or obstructs in obtaining the possession by the respondent Mr. M.E. Pereira, he will be liable to be detained in Civil Prison for a period of 30 days as provided u/o 21 Rule 98 CPC". It is this order that the petitioner seeks to challenge.

(3.) There was considerable controversy before me as to whether the petitioner was a bona fide tenant in respect of the premises in dispute or was acting in collusion with the landlady and Corea with a view to frustrate the object of the restoration proceedings. A contention was also raised on behalf of the petitioner that, in any event, the petitioner having resisted the process, he was entitled to a notice before the police could be drafted to carry out the restoration order, and that he was entitled to an opportunity to establish by appropriate material that he had taken the premises from the landlady as a tenant without any knowledge of the previous litigation between the parties in respect of the premises and was, therefore, a person whose bona fide interest in the property could not be affected by the restitution proceedings or otherwise in the suit in which they were taken. It was, however, not disputed by Shri Manmohan Singh Sahni, learned counsel for the petitioner that even if the petitioner was entitled to a notice after the process was resisted and before the police aid could be sought, the petitioner waived such a requirement when the petitioner made an application on October 9, 1975 seeking stay of further proceedings and an investigation into his independent claim to the possession of the premises uneffected by the restoration proceedings. Likewise, it was not disputed by Shri B.K. Aggarwal, learned counsel for Pereira that if the power of the Court in restoration proceedings extended to the eviction of strangers to the proceedings only if they were not in bona fide possession without notice of the earlier proceedings, it would be necessary to set aside the order and to remand the proceeding to the trial Court for a determination of the question if the petitioner was a bona fide tenant or was acting in collusion with and had been set up by the landlady and Coreato defeat the object of the restoration proceedings. The determination of this question is essentially a question of fact which would involve investigation, and although some material is available on the record, which has relevance to the question, there has obviously been no investigation. It was, however, contended on behalf of Periera that even if the petitioner was a bona fide tenant, he was still liable to be evicted pursuant to the restoration proceedings because his claim to possession was relateable and would be traced to Corea, who was not only a party to the proceedings but was the person who had taken benefit under the exparte decree, and that no investigation into his claim was, therefore, necessary.