Devi & Ors Vs. Shashi Pal Singh  Insc 159 (9 March 2005)
Dharmadhikari & B.N. Srikrishna
out of S.L.P.(C) No. 8962 of 2004) Srikrishna,J.
appeal demonstrates how a determined and dishonest litigant can interminably
drag on litigation to frustrate the results of a judicial determination in favour
of the other side.
property bearing No. 202 B Arjun Nagar, Safdarjung Enclave in New Delhi was
purchased by the first appellant and her husband late R.S. Gupta under two sale
deeds dated 1.5.1970 and 2.5.1974.
1.11.1987 the appellant committed perhaps the gravest blunder of her life of
letting out the suit property to the respondent-tenant at a monthly rent of
Rs.1300/-, which subsequently came to be increased to Rs.1500/- w.e.f.
1.1.1990. The tenancy was for residential purpose.
appellant filed a petition for eviction of the respondent by invoking section
14(1)(e) of the Delhi Rent Control Act (hereinafter referred to as 'DRC Act').
This petition was filed by late R.S. Gupta, husband of the appellant No.1
before us, who was also a co-petitioner in the said eviction petition. The
ground put forward in the eviction petition was that the family of the
appellant had expanded and there was bona fide requirement for personal use.
This eviction petition was contested by the respondent who raised several
grounds. To start with, the respondent raised a preliminary objection that
there existed no relationship of landlord and tenant between the appellant no.1
and himself. He also denied that the appellant no.1 was the owner of the suit
property. Curiously, however, he did not deny the payment of rent to the 1st
appellant through her husband. The eviction petition no. E- 223/94 was tried
and allowed by the court of Additional Rent Controller. On the basis of the
evidence recorded before him the Additional Rent Controller specifically found
that it was established that the appellants who were the owners/landlord in
respect of the suit premises. He also examined the case put forward on behalf
of the appellants on merits and held that all the essential ingredients for
eviction under section 14(1)(e) of the DRC Act had been proved. By his judgment
dated 1.8.1998, a decree for eviction was made.
respondent challenged the decree for possession by his revision petition under
section 25 of the DRC Act before the High Court vide CR No.1017/98. The learned
single judge by his judgment dated 4.5.1999 dismissed the revision petition
specifically upholding the findings of the court below that the present
appellant no.1 was the owner in respect of suit property and that there was no
force in the arguments that there was no relationship of landlord and tenant as
between the present appellant no.1 and the present respondent. The High Court
also accepted the finding on the merits that the grounds for eviction had been
made out. The respondent moved a special leave petition before this Court,
S.L.P.(C) No.7234/99, challenging the judgment of the High Court. This special
leave petition was summarily dismissed by this Court on 21.6.1999.
his failure in all courts, the respondent did not hand over possession. The
appellant filed an execution petition on 11.8.1999 for execution of the decree
for possession. The respondent raised all kinds of frivolous objections
including the objection that DRC Act was not applicable to the area in
question; that the sale deed under which the first appellant claimed the
ownership was a fraudulent document and could not be made the basis of eviction
order; that the identity of the suit premises was different and that there was
no relationship of landlord and tenant between them. All these objections were
carefully evaluated by the executing court which took the view that all of them
had been the subject matters of the trial before the decree was made that it
was not open to the executing court to re-open questions settled before the
decree was granted. The court also rejected the plea of fraud as no such plea
had been raised during the trial. In this view of the matter the executing
court overruled the objections raised in the execution proceedings.
respondent moved an appeal before the appellate court vide RCA No. 658 of 1999.
The Rent Control Tribunal which heard the appeal dismissed the appeal in limine
revision petition moved before the High Court of Delhi, against the judgment of
the Rent Controller was dismissed as withdrawn on 9.5.2000.
respondent then filed a civil suit No. 167 of 1999 before the Civil Judge Delhi
alleging that the decree for eviction had been obtained by playing fraud on the
court. An application under Order XXXIX Rule 1 & 2 of the Code of Civil
Procedure for interim relief was also moved in the said suit. The Civil Judge
came to the conclusion that the plaintiff-present respondent had failed to make
out a prima facie case and also failed to satisfy any of the requirements for
grant of an injunction. Thus, he dismissed the application moved for interim
injunction under Order XXXIX Rule 1 and 2 of the C.P.C.
appeal by the respondent, MCA No.5/2000, against this order was dismissed by
the Senior Civil Judge, on 12.1.2000. The order of the appellate court was
challenged by Revision No.CR 73 of 2000 before the High Court of Delhi. The
said Revision application was also dismissed in limine on January 20, 2000.
respondent then moved an application for review of the order dated 20.12.1999
before the Civil Judge at Delhi. The
court finding no substance in the application rejected the same.
found no leg to stand upon in any court of law, the respondent filed a second
objection petition in the execution proceedings reiterating the very same
objections as raised before, with the additional ground that there was fraud.
This application was also dismissed as being frivolous with imposition of cost
of Rs.1000/- on the respondent.
respondent then moved a revision petition CRP 1193/2000 before the High Court
in which the impugned order dated February 23, 2004 was made by the High Court
taking the view that, if execution of the eviction decree was allowed, it would
render the suit filed by the respondent infructuous, particularly when the
respondent had acted on the "direction and advice of the executing
court" to file a civil suit. It is this order which is impugned in the
history of this litigation shows nothing but cussedness and lack of bona fides
on the part of the respondent. Apart from his tenacity and determination to
prevent the appellants from enjoying the fruits of the decree, there appears to
be nothing commendable in the case. Even before us the same arguments of fraud,
and that the appellants were not legally owners of the suit property, were
first place, it appears to us that the revision petition before the High Court
was wholly incompetent in view of the amended provision of section 115 of the
CPC. The Revision Petition was entertained at a stage of an interlocutory
proceedings. As laid down by this Court in Shiv Shakti Coop. Housing Society v.
Swaraj Developers , an order interim in nature or which does not finally decide
the lis, cannot be challenged by way of a revision under section 115 of the
Kaur v. Ashok Kumar and another a two Judge Bench of this Court observed:
of law should be careful enough to see through such diabolical plans of the
judgment-debtors to deny the decree-holders the fruits of the decree obtained
by them. These type of errors on the part of the judicial forums only encourage
frivolous and cantankerous litigations causing law's delay and bringing bad
name to the judicial system." In our view these observations aptly apply
to the case before us.
learned counsel for the respondent relied upon the judgment of this Court in
S.P. Chengalvaraya Naidu v Jagannath and United India Insurance Co. Ltd. V. Rajendra
Singh and others to contend that there was a fraud played upon the court and
the fraud unravels everything. As a general proposition, the proposition is
right. But fraud must necessarily be pleaded and proved. In the entire history
of litigation nothing was pleaded, much less proved, as fraud.
cannot countenance the plea of fraud without any basis.
result, we are of the view that the High Court grossly erred in entertaining
the revision petition and granting relief which was unjustified both in law and
on facts. The impugned judgment of the High Court is quashed and set aside.
that the respondent has deliberately delayed the execution, the executing court
shall dispose of the execution proceedings with utmost dispatch.
view, the conduct of the respondent deserves condemnation which we indicate by
imposition of exemplary costs of Rs.20,000/- on the respondent.