DINA DARA SUKHIA Vs. VIJAY DATTATRAYA KANHERE

JUDGEMENT

(1.) This petition under Article 227 of the Constitution takes exception to an order passed against the petitioner when she tried to execute the decree passed in Regular Civil Suit No. 190 of 1962.

(2.) For an understanding of the questions to be resolved here, the following factual context has to be borne in mind :- The subject-matter of the dispute is a plot of land with a structure standing thereon being used for the exhibition of films under the name and style of "Capital Cinema" at East Street, Pune-1. Originally, the property belonged to Zillubai and Mohmed Esa. Deceased Nilkanth Kanhere as given a lease of the land by the two owners afore-mentioned, and, he put up the structure which came to be a cinema house given the name mentioned above. Kanhere executed a registered lease on 19-2-35 in favour of the owners promising to pay a monthly rental for the duration of the lease, which was placed at 10 years. The lessee had an option to extend the lease for a further period of 10 years. He also had the right to sub-let the premises, and this right he exercised by leasing out the Capital Cinema to the Western India Theatres Ltd., which was a family concern of a group to be hereinafter referred to as the "Modis". The Modis entered into some arrangement, and, this brought on the scene another group to be referred as "Bhagwanis". Zillubai gifted her interest in the land to Mohmed Esa, who sold the same to M.H. Moledina. Moledina expired on 10-11-54, leading to a scramble amongst his heirs. This gave rise to an administration suit and the receiver appointed by the Court sold the property on 10-1-59 to the late husband of the petitioner named Dara Sukhia. Dara Sukhia, on 19-8-59, addressed a notice to Kanhere terminating his tenancy and sent copies of the said notice to the Modis and Bhagwanis. The notice not having yielded results, Dara Sukhia instituted Regular Civil Suit No. 190 of 1962. In that suit, there was a claim for ejectment on the grounds of (i) unlawful sub-letting by Kanhere and/or the Modis, (ii) Kanhere defaulting in the payment of rent and (iii) the property being required reasonably and in good faith by the plaintiff. The suit was defended by Kanhere and the Modis. The Bhagwanis were ex parte and then started the deaths of the original suitors. The first who died was Dara Sukhia, who was substituted by his widow the present petitioner. On 14-12-62, the trial Court decreed the suit holding that Dara Sukhia had proved the ground under section 13(l)(g) of the Bombay Rent Act. Modi preferred an appeal being Civil Appeal No. 422 of 1963 to the District Court at Pune. On 14-4-64, the appeal was allowed and the decree passed by the trial Court set aside. The limited ground on which the appeal was allowed, was that, Modi was entitled to a notice terminating the tenancy in his own right. Significantly, the trial Courts finding in relation to the personal requirement of the plaintiff, was affirmed. Against this adverse verdict, the petitioner and one Kuka, also a legal representative of Dara Sukhia preferred C.R.A. No. 27 of 1965 to this Court. The said revision was referred to a Division Bench which later on allowed the same to be converted into a writ petition failing under Articles 226 and 227 of the Constitution. Professing to be aggrieved by the conversion, one of the Bhagwanis moved the Supreme Court by Civil Appeal No. 2100/N/68. The Supreme Court stayed all proceedings. During the pendency of the civil appeal, Bhagwani died. In 1971, Kanhere expired. In May 1974, Modi who was respondent No. 2 in the civil appeal aforementioned, passed away. The heirs of Bhagwani and Modi were brought on record, but not those of Kanhere. This omission was on the professed ground that it was not necessary to bring Kanhares heirs on record. On January 14, 1977, the heirs of Bhagwani were allowed to withdraw Civil Appeal No. 2100/N/68. In the pending Spl. C.A. No. 1540 of 1977, originally instituted as C.R.A. No. 27 of 1965, heirs of Modi and Bhagwani were either on record or brought on record. In relation to Kanhere, the application moved by petitioner recited that to her knowledge Kanhere had left no heirs. The application for bringing the heirs of Modi and Bhagwani on record vide C.A. No. 1138 of 1978 was allowed. Against this Bhagwanis heirs moved the Supreme Court by a Special Leave Petition bearing No. 957 of 1979. The Supreme Court summarily rejected the Special Leave Petition. In the meantime, Spl. Civil Application No. 1540 of 1977 came up for hearing, and, on 9-1-80 a Division Bench of this Court allowed the same. The decree passed by the trial Court was restored and the verdict of the District Court at Pune was set aside. Bhagwani filed S.L.P. No. 1858 of 1980 challenging the verdict in Spl. C.A. No. 1540 of 1977. The Modis also moved the Supreme Court by an S.L.P. taking exception to the order passed in Spl. C.A. No. 1540 of 1977. Bhagwanis S.L.P. was allowed to be withdrawn, while that preferred by Modis, was dismissed. The battle was then carried to the home front. Petitioner levied execution vide Darkhast No. 107 of 1980. Bhagwani filed Regular Civil Suit No. 3511 of 1965 for a declaration that he was a lawful sub-tenant. An application was moved for transfer and the same was rejected. It was in Spl. C.A. No. 795 of 1980 that Bhagwani impleaded Vijay and Vasant (present respondents Nos. 1 and 5) describing them as heirs of deceased Kanhere. In that suit, a declaration was claimed about the verdict of the High Court which was the foundation of the execution levied by the petitioner, being null and void. This result followed, it was alleged, pursuant to the failure of petitioner to join Kanheres heirs after the demise of that person during the pendency of the Spl. C.A. No. 1540 of 1977. An application was moved by Bhagwani for a temporary injunction to restrain the petitioner from executing the decree. An ad interim injunction was granted, but the same was vacated after hearing petitioner. Bhagwani moved the District Court in appeal against the said order, but in vain. Thereafter he moved this Court vide C.R.A. No. 779 of 1981. Again, the move was not successful. In this C.R.A., Vijay and Vasant applied for transposing themselves as revision petitioners. C.R.A. No. 779 of 1981 was rejected and the application moved by Vijay/Vasant allowed to be withdrawn. Bhagwani preferred S.L.P. No. 7289 of 1981 against the rejection of the C.R.A. but to no avail. It was during the pendency of the above, that Bhagwani moved the executing Court contending, that the decree sought to be executed by the petitioner was void and incapable of execution. This was pursuant to the omission to impleaded the legal representatives of Kanhere to the pending Spl. C.A. No. 1540 of 1977. This application was rejected. Against the rejection, Bhagwani preferred W.P. No. 3488 of 1981. On November 10, 1981, the writ petition was rejected. Bhagwani preferred Letters Patent Appeal bearing No. 187 of 1981. The same was rejected, whereupon S.L.P. No. 10121 of 1981 was moved by Bhagwani, Vijay and Vacant. The said S.L.P. was dismissed. In the meantime, an heir of Bhagwani moved the Supreme Court by another S.L.P. to assail the adverse order. That S.L.P. was rejected. Vijay filed a suit in the Small Causes Court bearing No. 2405 of 1981 assailing the decree put in execution. He moved an interim application and obtained an ad interim injunction. Petitioner objected to the grant of injunction, and, upon the same being confirmed, preferred an appeal. The said appeal was allowed and the injunction vacated. Against the order discharging the interim injunction, Vijay preferred W.P. No. 479 of 1933. The said petition was rejected. On April 7, 1983, Vijay came forth with an objection under section 47 of the Civil Procedure Code contending that the decree sought to be executed was a nullity and hence incapable of execution. A reply disputing this was tendered by the petitioner. On 30-4-83, the objection of Vijay was sustained and petitioners execution dismissed.

(3.) The order passed by the Executing Court is assailed in this petition. It is contended that the Executing Court had no jurisdiction to go behind the decree and refuse to execute it. At any rate, it could not be said that Kanhere was not properly represented in Spl. C.A. No. 1540 of 1977. Moreover, the objection taken in execution and sustained by the Executing Court had been over-ruled by a competent Court number of times. Therefore, the plea was barred by res judicata. Vijay and Vasant had been set up by the Bhagwanis and Modis to create obstcales in the path of the petitioner. They had no interest either in the property or in the litigation. The executing Court was in error in sustaining the objection and dismissing her Execution petition. A writ was sought to quash the order passed by the Executing Court and to give it a direction to proceed further with the execution and place the petitioner in possession of the premises.