Sobhan Sanyal Vs. Tracks Trade Private Ltd. & Ors  INSC 552 (16 April 1996)
K.Ramaswamy, K.Bharucha S.P. (J)
1996 AIR 2102 1996 SCC (4) 144 JT 1996 (5) 74 1996 SCALE (4)266
PETITION NO5.309 OF 1995 & 61 OF 1996
O R D
case is a classic illustration of the travesty of justice and high-handedness
in the dispossession of a person in possession without clue process of law. The
appellant, admittedly, was inducted as a tenant on behalf of M/s. India Foils
Ltd. into the premises bearing No.16 may Fair Road, Calcutta-19. The property belongs to Mrs.
Gertrud Chand [hereinafter referred to as 'landlady'] who had entered into. a
lease with M/s. Indian Foils Ltd. on March 27, 1969 for the demise of the said property
to the said company. In furtherance thereof, possession of the premises was,
admittedly, given to the appellant. The landlady had entered into an agreement
with the 6th respondent, M/s. Habitat Developers on October 17, 1985 for sale of the property for a sum of Rs.40 lakhs. For the
enforcement thereof, the 6th respondent filed title suit No.137 of 1986 for
specific performance in the court of the Second Assistant Judge, Alipur. In the
written statement filed by the landlady, she had admitted thus:
Mr. Sanyal was inducted into the premises by India Foils Ltd.
the defendant was not in a position to offer the suit property free from
encumbrances, but the plaintiff-Company despite full knowledge of such
encumbrances expressed its desire to purchase the property at a consideration
price of Rs.40 lakhs".
would thus be seen that in the suit for specific performance, the 6th
respondent was put on notice that the appellant was in possession and enjoyment
of the demised premises and yet the 6th respondent had entered into the
agreement subject to the encumbrances. Subsequently, the suit came to be
decreed for khas possession also which decreed become final. In spite of the
fact that the 6th respondent was aware of the continuance in possession and
enjoyment of the demised premises by the appellant, no steps have been taken
either to have him impleaded as a party defendant to the suit for specific
performance nor a decree personally against him was obtained in any other
independent proceeding Sings as on date.
question, therefore, is whether the appellant can be dispossessed in execution
of the decree in title sit No.137 of 1986. When the possession of the appellant
was sought to be interdicted, admittedly, he filed a petition under Order 21,
Rules 98 and 99, CPC claiming adjudication of his right to remain in possession
of the said property. It is his case that his employer had agreed to allow him
in possession till alternative accommodation is given to him even after
retirement. It is not necessary to narrate the subsequent events in chronology
which have cropped up in several of the proceedings. Admittedly, on a petition
filed by the appellant, the High Court had directed a Court Officer to be in
possession of the property. In furtherance thereof, the Court Officer did take
possession of the property. Later, attempts have been made by the first
respondent who was said to have entered into a lease with the 3rd respondent,
to come into the possession of the property, but they were rejected by the
executing Court as well as by the High Court on appeal. The 6th respondent
assigned his rights in the decree to the 3rd respondent Pranav Merchandise Pvt.Ltd.
In the application for continuance of the appellant's possession the executing
Court directed the Court Officer appointed by the High Court to remain in
possession of the property till the application filed under Order 21, Rules 98
and 99, CPC was disposed of.
meanwhile, the 1st respondent had taken two others applications before the
trial Court at different times seeking for possession of the property. The
first application was dismissed. Consequently, he filed a revision in the High
Court. The subsequent two applications also case to be dismissed, one day prior
to hearing of the revision under appeal and the same became final. The High
Court in the impugned order dated July 6, 1995 has directed induction of the 1st respondent into
possession of the property. We are informed that even before that order came to
be passed, he had already come into possession of the property. When the matter
had come up before this Court at the time of admission, the 1st respondent had
entered appearance through the counsel and it was brought to our notice that he
had already come in possession of the property in execution of the decree.
Nonetheless, by order dated July 24, 1995
this Court passed the order as under:
Goodwill Indeevar and Ms. Mridula Ray Bharadwaj, Advocates take notice for
Respondent Nos.1 and 2 respectively. Four weeks' time is granted for filing
counter affidavits and two weeks thereafter for rejoinder. Post after six
the counsel for the respondents state that the possession was taken on 12th July, 1995, on the facts and circumstances, we
think that interim suspension of the High Court's order be made" It is
would thus be clear that without any decree or order of eviction of the
appellant from the demised premises, he has been unlawfully dispossessed from the
premises without any due process of law. The question, therefore, is: whether
he should be allowed to remain in possession till his application under Order
21, Rules 98 and 99 is adjudicated upon and an order made. Though the learned
counsel for the 1st respondent and also for the 3rd respondent, who is one of
the transferees from the 6th respondent, sought to contend that the appellant
has no right to remain in possession after the lessee, M/s. India Foils Ltd.
had admitted by a resolution that the appellant has no right to remain in
possession, we are not impressed with the arguments. At this state, we are only
concerned with his admitted possession of the demised premises. What rights
would flow from a contract between him and him employer is a matter to be
adjudicated in his application filed under Order 21, Rules 98 3nd 99, CPC. At
this stage, it is pre- mature to go into and record any finding in that behalf.
The learned counsel for the 1st respondent also repeatedly sought to bring to
our notice that on account of the orders of the Court Officer passed by the
High Court the maintenance cost has been mounting up due to the delay in
disposal of the proceedings in various courts. Even with regard to that, we are
not impressed with the same. Since the letter of the law should strictly be
adhered to, we find that high-handed action taken by the respondent Nos. 1, 3
and 6 in having the appellant dispossessed without due process of Haw, cannot
be overlooked nor condoned. The Court cannot blink at their unlawful conduct to
dispossess the appellant from demised property and would say that the status
quo be maintained. If the Court gives acceptance to such high-handed action,
there will be no respect for rule of law and unlawful elements would take hold
of the due process of law for ransom and it would be a field day for anarchy.
Due process of law should be put to ridicule in the estimate of the law-abiding
citizens and rule of law would remain a mortuary.
these circumstances, we are left with no option but to allow the appeal with
costs quantified at Rs.7,500/- against each of the respondent Nos. 1, 3 and 6
to be payable to the Supreme Court Legal Aid Committee. If the amount is not
paid within one month from to-day, the Supreme Court Legal Aid Committee would
be entitled to recover the same from them by execution of this order as decree.
1st respondent is directed to put the appellant in possession within 24 hours.
The executing Court is directed to dispose of the application filed by
respondent Nos.7, 8 and 9. heirs of the landlady filed under Section 28 of the
Specific Relief Act, 1963 for rescinding the contract along with the
application filed under Order 21, Rules 98 and 99, CPC and dispose it of after
the former is decided.
Petition No.309 of 1996 Notice is issued to the first 1st respondent to show cause
why he should not be convicted for deliberate disobedience of the order dated July 24, 1995 directing that the appellant be put
into possession through Court Officer.
for the 1st respondent takes notice for contempt. He seeks for and is granted
time for filing counter-affidavit.
1st respondent though its Chief Executive/managing Director or by whatever name
is called, shall be present in person in the Court on 15.7.96 to which date the
matter is directed to be posted.
Petition No. 309 of 1995 to be posted on the same day.