Gainda Raikwal v. Kundan Lal Menghani

1. This petition under Article 227 of the Constitution of India impugns the order of the executing court dated 22.7.2014 by which the executing court has issued warrants of possession with respect to the suit property bearing no. 10/18, Old Rajender Nagar, New Delhi-110060, possession of which has been decreed in favour of the respondent/plaintiff. The judgment and decree decreeing the suit for possession is dated 20.9.2013. 2014:DHC:4889 2(i) Respondent/plaintiff had filed a suit no. 402/2013 titled as Kundan Lal Menghani Vs. Gainda Raikwal for possession etc of the suit property bearing no. 10/18, 4th Floor, Old Rajender Nagar, New Delhi. In the plaint, respondent/plaintiff stated that he had purchased the property from one Ms. Jai Lakshmi Kashyap wife of late Sh. Vijay Kumar Kashyap vide title documents dated 6.4.2008. Petitioner/ defendant was known to one Mr. Kriplani (probably the Advocate who is appearing and arguing for petitioner/JD/defendant) and Mr. Kriplani stated that petitioner/JD/defendant was a poor lady and earning livelihood as a maid servant and she can be permitted to reside in a temporary/katcha constructed room in the suit property for a month till she makes an alternative accommodation and that the petitioner/JD/defendant would vacate the suit premises immediately on the asking of the respondent/DH/plaintiff. Respondent/DH/plaintiff allowed the petitioner/JD/defendant to reside in the property but she alongwith Mr. Kriplani unauthorisedly took electricity from the house of Mr. Kriplani and unauthorisedly extracted water from the municipal tap and also filed a false suit for injunction alleging tenancy. In this suit for injunction filed by the petitioner/JD/defendant, she was not successful in obtaining any interim injunction and her injunction application was dismissed. In the subject suit possession, mesne profits etc were prayed stating that petitioner/JD/defendant is only a gratuitous licencee and who should be asked to vacate the property.

(ii) In the written statement filed by the petitioner/defendant/JD, petitioner/defendant/JD took up a case of being a tenant, and with respect to which claim a suit was already filed and the injunction application of the JD/petitioner/defendant was dismissed. In the written statement filed in the present suit there was no plea of protection of the tenancy under the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the DRC Act’).

(iii) This suit for possession was decreed by the civil court under

Order XII Rule 6 CPC by its judgment dated 20.9.2013. In para 8 of this judgment it is specifically noted that the petitioner/defendant/JD does not claim that the suit is barred by the provisions of the Delhi Rent Control Act.

(iv) Against this judgment dated 20.9.2013 an appeal was filed but that appeal has been dismissed for non-compliance of an interim order dated 19.5.2014 whereby the petitioner/JD/defendant/appellant in the appeal was directed to deposit admitted rent because the best case of the petitioner/JD/defendant/appellant in the appeal was that she was a tenant at Rs.2500/- per month. Accordingly, the appeal was dismissed for nonprosecution and non-compliance on 4.8.2014.

3. A resume of the above facts make it clear that the petitioner was the defendant in the suit whose decree is being executed. In the writtenstatement no objection was raised that the civil court had no jurisdiction. The suit for possession was decreed. An appeal was filed by the petitioner/defendant against the judgment and decree dated 20.9.2013, but that appeal admittedly, has been dismissed vide order dated 4.8.2014 on account of non-compliance in payment of rent by the petitioner/defendant of an interim order passed in the appeal on 19.5.2014 directing payment of the admitted rent amount of Rs.2500/-. Since the interim order dated 19.5.2014 was not complied with, the appeal was dismissed for non-compliance and non-prosecution on 4.8.2014. There is no further challenge to the order dated 4.8.2014. Therefore, there is finality to the judgment and decree dated 20.9.2013 for possession against the present petitioner.

4. Once there is finality to a judgment and decree for possession, it is not understood as to how in execution petition objection as to jurisdiction, which had to be raised but was not raised in the written statement filed in the suit, can be raised for the first time in execution, because, such an objection stood waived as it had not been raised in the written statement in the suit. If the judgment and decree dated 20.9.2013 was incorrect in law, then that judgment and decree had to be challenged and pursued in the appeal, and which appeal though was filed, however that appeal has been admittedly dismissed for non-prosecution and noncompliance. If the orders dated 4.8.2014 and 19.5.2014 passed by the appellate court as per the defendant/petitioner/JD were illegal, then petitioner/defendant had to challenge those orders further but such a challenge is not laid to any higher court. Once the petitioner/defendant does not challenge the orders of the first appellate court, and the judgment and decree for possession passed by the trial court becomes final, the petitioner/defendant against whom the judgment and decree has been passed is bound by the decree, and defendant/JD/petitioner cannot challenge the same by filing objections in execution proceedings. All of Delhi is not covered by the DRC Act and an area is covered only if a notification is issued under Section 1 of the DRC Act extending the operation of the DRC Act to the urbanized area in question. Thus objection as to the alleged lack of jurisdiction is deemed to be waived in the facts of the case especially in view of the ratio of the judgment in the case of Martin & Harris Ltd. Vs. VII Addl. District Judge, AIR (1998) 1 SCC 732 and the petitioner as per the ratio of this case of the Supreme Court is estopped from raising the objection as observed in para 14 which reads as under:- “14. Apart from waiver the appellant was estopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost and opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit, as seen earlier. The second point for consideration is therefore, answered in the negative, in favour of the respondent-landlord and against the appellant.”

5. Counsel for the petitioner/defendant wanted to cite various judgments that if the decree is passed by a court without jurisdiction, then the decree is not executable, and to which proposition of law there is no dispute, however, once the petitioner who is the defendant in the suit, had ample opportunity to raise such objection in the suit but did not raised such objection, and the suit now stands directly decided against the petitioner/defendant, as even the appeal against the judgment and decree stands dismissed, then now in execution proceedings no objection as to the alleged lack of jurisdiction of the civil court can be taken especially because the objection is a factual objection which had to be raised and decided in the suit and only if the factual objection had been raised then as per evidence to be led in the suit it would have been decided.

6. It is therefore clear that the petitioner/JD/defendant is most illegally and malafidely holding on to the suit premises although petitioner/JD/defendant has no rights whatsoever in the suit premises. Obviously, there is collusion of the petitioner/JD/defendant with Mr. Kriplani and there is clear cut lack of bonafides and honesty on the part of the petitioner/JD/defendant. This petition is therefore dismissed with costs of Rs.25,000/- and which shall be deposited by the petitioner with the Delhi High Court Legal Aid Services Committee within a period of four weeks. If costs are not deposited, then this matter be listed before the Registrar General who can on the failure of the petitioner/JD/defendant to deposit the costs recover the same as arrears of land revenue. List before the Registrar General for compliance of the order of deposit of costs on 5th November,

2014.

SEPTEMBER 22, 2014 VALMIKI J. MEHTA, J. ib