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HIGH COURT OF DELHI
CM(M) 833/2022 & CM APPL. 36360/2022, CM
SUBHAN KHAN & ORS. ..... Petitioners
Through: Mr. S.I. Israily and Mr. Wais Islam, Advs.
Through: None
JUDGMENT
22.08.2022
1. These proceedings, under Article 227 of the Constitution of India, again bring to mind the anguished words of the Supreme Court in Rahul S. Shah v. Jinendra Kumar Gandhi[1], in which the Supreme Court lamented at the fact that the travails of a litigant, in the present legal system, commence after a decree is obtained by the litigant in his favour.
2. Execution of a decree, once obtained, has become a herculean task in today’s day and age. Every possible method is used to prevent execution, and objectors, who impede the execution of the decree try every trick in the book to ensure that the decree remains unexecuted
3. This malaise, we see on a daily basis, is aggravated where persons are in occupation of property of others and orders of eviction or dispossession are passed. This Court had, in Sohan Lal v. Sohan Lal Passi[2], an occasion to deal with a case in which a suit instituted in 1968, by a person whose lands were encroached by others, for removal of the encroachers, obtained a decree in his favour in 1972 and, for five decades thereafter, till 2022, the petitioner was unable to secure the fruits of the decree. Needless to say, he perished in the interregnum.
4. If the attempts of the petitioners in the present case were to succeed, the litigative trajectory, in this case too, I fear, would follow the Sohan Lal Passi[2] path.
5. This case involves an eviction petition instituted by the respondent under Section 14(1)(e) and decreed in the respondent’s favour on 1st November 2002. Specifically in the context of the effect of delay in execution of decrees passed in proceedings under Section 14(1)(e), the Supreme Court observed thus, in Ishwarlal Mali Rathod v. Gopal[3]:
6. Briefly, now, the facts.
7. E-165/2002 was filed by the respondent against Anwari Begum, stated to be the mother of the petitioners, under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (“the DRC Act”). The respondent, as the eviction petitioner in the said eviction petition, claimed to be coowner-cum-landlord of premises situated at 1782-83-84, Kalan Mahal, Darya Ganj, Delhi.
8. Zumma Khan, the husband of Anwari Begum and the father of the petitioners, was stated to be the tenant in respect of 16 rooms, a kitchen, latrines and bathrooms forming part of the aforesaid property (hereinafter “the tenanted premises”).
9. Consequent on the demise of Zumma Khan, the petition avers, that his widow Anwari Begum had attorned to the present respondent and had started paying rent to them. Various other averments were also contained in the eviction petition, with which the present judgment is not required to be burdened. Suffice it to state that, on 1st November 2002, the learned Additional Rent Controller (“the learned ARC”) allowed the eviction petition in favour of the present respondent (the petitioner in the eviction petition).
10. Anwari Begum, as the respondent in the eviction petition, was, therefore, directed to hand over the vacant and physical possession of the tenanted premises to the respondent within six months.
11. We are now twenty years since that date. The respondent is yet to obtain possession of the tenanted premises, thanks to the concerted efforts of “objectors” such as the petitioners.
12. The objections, in cases such as these, I am constrained to observe, appear to be directed, not so much against execution of the decree passed in the respondents’ favour, as against ensuring dispassionate dispensation of justice.
13. Consequent to the passing of the aforesaid order dated 1st November 2002 by the learned ARC, the respondents moved for execution of the said order, by way of an execution petition which, consequent to renumbering, now stands registered as Ex OM No 96310/2016 (Mohd. Faizal v. Anwari Begum).
14. The petitioners filed objections, objecting to the execution of the aforesaid order dated 1st November 2002 of the learned ARC, on 19th October 2003.
15. The petitioners sought to contend that tenancy rights had been surrendered in favour of the petitioners by their mother Anwari Begum, who was the judgment debtor, and that, the petitioners having not been impleaded in the eviction petition, the order of eviction could not be executed against them.
16. By order dated 31st August 2007, the learned ARC noted the aforesaid objections of the petitioners and adjourned the matter for recording of the evidence of the petitioners on 21st September 2007. The petitioners were, therefore, directed to file their affidavit in evidence on or before the said date.
17. The affidavit in evidence, in terms of the aforesaid order, came to be filed by the petitioners only on 11th April 2019, i.e. 12 years after the petitioners were directed to do so.
18. In the interregnum, the petitioners filed an application under Order VI Rule 17 of the CPC, whereby the petitioners sought to incorporate the following paragraph in their objections: “That the DH is not the owner of the suit premises as there is no privity of contract of tenancy in between the decree holder and the applicant or his father at any point of time.”
19. Mr. Israily, learned Counsel for the petitioners, fairly acknowledges that the aforesaid amendment application was illadvised, as the precise contention that was sought to be introduced by the amendment already found place in para 3 of the rejoinder filed by the petitioners by way of response to the reply of the respondent to the petitioners’ objections which read thus: “3. That para no. 3 of the preliminary objections is wrong and denied. It is wrong and denied that the objectors have not come to the court with clean hands and have suppressed material facts or have filed false and frivolous objections. It is wrong and denied that the decree-holders are the owners of the properties bearing no. 1782-83-84, Kalan Mahal, Darya Ganj, Delhi. It is wrong and denied that objectors and other sons of J.D. have relinquished their respective tenancy rights in the tenanted premises in favour of the J.D. vide no objection dated 21.10.1993. It is denied that the objectors have no right, title or interest in the tenanted premises. It is matter of record if Subhan Khan had appeared in any proceedings before this Court, the same must have been done in his own capacity as L.R. of Jumma Khan.” Apparently, therefore, the amendment application was yet another attempt, on the petitioners’ part, in protracting the execution proceedings. Sadly, they succeeded in their attempt, as the Order VI Rule 17 application of the petitioners, which was ex facie frivolous in nature, came to be dismissed only on 19th February 2019. In the meanwhile, the petitioners enjoyed possession of the respondent’s property for 12 more years, without budging an inch towards complying with the direction, passed on 31st August 2007, to file their affidavit-in-evidence.
20. While the said application under Order VI Rule 17 was pending, the petitioners moved a second application under Section 151 of the CPC, seeking impleadment, in the execution proceedings, of the Sub- Divisional Magistrate, Daryaganj, or adjournment of the execution petition sine die. This application was predicated on the premise that the original owners of the tenanted premises Sardar Ali and Nazir Ali were declared as Pakistani nationals in 1960 and had expired in Pakistan and that, therefore, the tenanted premises, and the entire property at 1782-83-84, Kalan Mahal, Darya Ganj, Delhi, of which it constituted a part, vested in the Custodian of Evacuee Properties, to be governed by the Evacuee Property Act, 1968.
21. Both the aforesaid applications, i.e. the application under Order VI Rule 17 and the application under Section 151 of the CPC, filed by the petitioners, came to be dismissed by the learned ARC by order dated 19th February 2019.
22. Needless to say, during the aforesaid entire period, the petitioners continued to enjoy the tenanted premises, without complying with the order passed on 31st August 2007 i.e. 11 ½ years prior thereto, to file their affidavit by way of evidence. It is clear that the pendency of the applications filed by the petitioners under Order VI Rule 17 and Section 151 of the CPC did not impede them, in any manner, from complying with the direction to file their affidavit in evidence, issued as far back as as on 31st August 2007.
23. Even after 19th February 2019, the petitioners did not display any greater alacrity. On 19th February 2019, the execution proceedings were adjourned to enable the petitioners to file their affidavit in evidence, for 23rd March 2019, specifically ruling that no further adjournment would be granted to the petitioners on any ground whatsoever.
24. On 23rd March 2019, at the petitioners’ request, the matter was again adjourned to 12th April 2019 for filing of the petitioners’ affidavit with the specific direction that the affidavit in evidence be filed at least three days prior to the next date of hearing.
25. The petitioners supplied a copy of the affidavit in evidence to the respondents only one day prior to the next date of hearing i.e. on 11th April 2019, so that the respondents, on 12th April 2011, had necessarily to take time to enable them to peruse the affidavit and cross examine the petitioners’ witness. The matter was, therefore, renotified for 6th May 2019, subject to payment of costs of ₹ 5,000/-.
26. Mr. Israily submits that, in fact, the affidavit in evidence was filed by the petitioners on 11th April 2019.
27. Thereafter came to be passed the following order, on 1st August 2019: “Objector Mr. Subhan Khah submits that he is also appearing on behalf of other objectors, namely, Mr. Usman Khan and Mr. Ahsan Khan. The objector files an application for waiver of cost imposed by the Court. He also files another application under section 151 Code of Civil Procedure for adjourning the case. Copy of the applications are supplied. The application under Section 151 Code of Civil Procedure for adjourning the case is taken up for consideration. It is stated in the application that the Ld. Main Counsel for the objectors had his eyes operated and some complications have arisen since he is suffering from diabetes. It is pleaded that the Ld. Counsel is unable to attend the Court. It is prayed that the case be adjourned. The objector Mr. Subhan Khan submits that he is in the process of engaging another counsel. Ld. Counsel for the decree holders opposes the application. He submits that because of the pendency of the present case, the decree holders are unable to seek execution Of an eviction order passed wav pack in the year 2002. Arguments are heard and the record is perused. Record reveals that the case has already been adjourned at the request of the objectors several times. Even costs were repeatedly imposed upon them. Vide order dated 19.02.2019, it was directed that the case shall not be adjourned at the behest of the objectors on any date and on any ground whatsoever. The present case has been pending since a long time. The medical documents filed along with the application disclosed that the Ld. Counsel for the objectors has been unwell during June, 2019. No medical documents have been filed to substantiate that the Ld. Counsel is still unwell. Even otherwise, from June, 2019 till now, the objectors had sufficient time to engage another counsel. In view of the aforementioned facts and circumstances, the application for adjourning the case is dismissed. The application for waiver of cost is also dismissed. The objector Mr. Subhan Khan submits that he cannot tender his evidence by way of affidavit which is already on record. In these circumstances, the right of the objectors to lead evidence is hereby closed. To come up for final arguments on 19.09.2019.”
28. The petitioners, thereafter, on 11th October 2019, moved an application under Section 151 of the CPC, praying that the aforeextracted order dated 1st August 2019 be recalled. Three more years’ amnesty, towards restoring, to the respondent, possession of his property were, thereby, gained by the petitioners.
29. The said application was dismissed by the learned ARC by order dated 19th July 2022, which is one of the two orders impugned in the present proceedings. The learned ARC has, after noting the trajectory of legal proceedings commencing 31st August 2007, observed thus: “5. The objectors are seeking review of the order dated 01.08.2018 whereby objector’s evidence was closed, on the ground that the main counsel was not available since he had undergone eye operation. It is observed that the same ground was taken on behalf of objectors on 01.08.2019 also and considering the said ground, a reasoned order was passed by the court closing the right of objectors to lead evidence. Objectors have not brought out any error apparent on face of the record in the order dated 01.08.2019. The request for adjournment made on behalf of the objectors on medical grounds of main counsel was considered and declined by the court considering that no medical documents were filed in support of the adjournment application.
6. The main plank of objectors seeking re-opening of their evidence is that they were not assisted by their counsel due to his medical condition on 01.08.2019. However, this plea of objectors also appears to be frivolous since the objector Subhan Khan had stated before the court on 01.08.2019 that he is in the process of engaging another counsel. Even by way of the present application, objectors have not disclosed as to what prevented them from engaging a new counsel before the date of hearing fixed for recording of evidence, i.e., 01.08.2019. It has been observed by the Hon’ble Supreme Court in the case titled as Bashir Ahmed v. Mehmood Hussain Shah[4] that when sufficient time intervenes between the last date of adjournment and the next date of trial, in such a case, adjournment on the ground of counsel’s ill health could be refused and the party would bear the responsibility for his failure to make alternative arrangements. In the present matter, it was observed in order dated 01.08.2019 that objectors had sufficient time to engage another counsel. It is the duty of every litigant to remain vigilant while participating in court proceedings and the objectors did not engage a new counsel within time. Further, the record of the case reflects that the objectors have not been. diligent in pursuing the present case. It emerges from the record that the case was fixed for objectors evidence vide order dated 31.08.2007, whereas evidence affidavit of objector was filed only on 11.04.2019. It can be seen from the previous ordersheets reproduced above that the objectors did not lead evidence despite grant of multiple opportunities and imposition of costs.
7. There is no legal infirmity found i the order dated 01.08.2019. I do not find the reasons provided in the present application to be sufficient to exercise powers u/s 151 CPC. Accordingly, the application of objectors u/s 151 CPC is dismissed.”
30. Following the above, the objections of the petitioners were separately considered by the learned ARC and rejected by a subsequent order dated 27th July 2022, which also stands impugned in the present proceedings.
31. It has been observed, by the learned ARC, in the said order, that
(i) the petitioners did not question the title of the respondent as owner of the tenanted premises, (ii) the petitioners were claiming to be residing in the tenanted premises as legal heirs of Jumma Khan, who _(1995) 3 SCC 529______________________________ was a tenant under the respondent, (iii) the petitioners did not, therefore, have any independent right, title or interest in the tenanted premises, (iv) Anwari Begum had succeeded to the tenancy of Jumma Khan as a statutory tenant, (v) the two questions which arose for consideration were, therefore, (a) the status of the petitioners, as legal representatives of Jumma Khan, after her death, and (b) whether such legal heirs, who were not parties to the eviction proceedings filed by the landlord, could come forward and agitate her or his right to tenancy, both of which stood answered by the judgment of the Supreme Court in Suresh Kumar Kohli v. Rajesh Jain[5], applying which it was clear that, on the expiry of Jumma Khan, Anwari Begum and the petitioners inherited the tenancy of Jumma Khan as joint tenants and (vi) an eviction petition, for eviction of all the joint tenants, could be maintained against one of the joint tenants, and all joint tenants could be bound by the order passed in the said eviction petition.
32. As such, the learned ARC held that the petitioners had been unable to make out any case for obstructing the execution proceedings, and were bound by the order dated 1st November 2007 passed by the learned ARC in the eviction petition instituted by the respondents.
33. Mr. Israily submits that, as his right to lead evidence had been closed by the learned ARC, he was not in a position to establish that his clients had inherited the tenancy of Jumma Khan not as joint tenants but as tenants in common.
34. To my mind, the petitioners, with clear mala fides, impeded and obstructed the execution of the order passed in favour of the respondents as far back as on 1st November 2007 by the learned ARC.
35. By delaying filing of their affidavits in evidence and employing other methods to protract the execution proceedings, they have managed to enjoy possession of the tenanted premises for nearly 20 years as on date, after the hapless respondents obtained an order from the learned ARC in their favour.
36. There is clearly no error in either of the orders impugned in the present petition, passed by the learned ARC, on 19th July 2022 and 27th July 2022. They stand upheld, in their entirety.
37. The present petition is dismissed in limine.
38. Warrants of possession already stand issued by the learned ARC with a direction for the Bailiff to take possession vide order dated 5th August 2022.
39. The learned ARC is directed to ensure that, before the next date of hearing fixed before the learned ARC, the order dated 5th August 2022 is implemented.
C. HARI SHANKAR, J