Subhadra
Rani Pal Choudhary Vs. Sheirly Weigal Nain & Ors [2005] Insc 223 (6 April 2005)
Ashok
Bhan & A.K. Mathur A.K. Mathur, J.
This
appeal is directed against an order passed by learned Division Bench of
Calcutta High Court dated November 26,1997 in First Appeal No.469 of 1980
whereby the Division Bench of the High Court allowed the application of the
Respondent No.1 and directed the appellant to execute the lease deed with
regard to premises Nos.21/1/C and 21/1/D, Gora Chand Road, Calcutta-700 014 in terms
of the order dated May 5, 1986 within a period of six weeks from the date of
order i.e. November 26,1997 for a period of 21 years commencing from the date
of grant of relevant permission by the Court, in default, it would be open to
the respondent No.1 to apply before the trial court for execution of the lease.
It was further directed that the respondent No.1 was to pay the arrear of
occupation charges after adjustment of the amounts already paid by him with
regard to the concerned properties and excluding the period of non- possession
of the premises No.21/1/C in terms of the letter of offer dated November 12,
1985 within four weeks to the receiver and the trial court may issue necessary
directions to the receiver with regard to disbursement of the said amount.
Aggrieved against this order, the present appeal was filed by the appellant.
This
case involves a very chequered history. There are two properties bearing
No.21/1/C and 21/1/D at Gora
Chand Road, Calcutta. The said properties initially
belonged to one Smt. Hemantabala Roy, the mother of the appellant. She
bequeathed the property in favour of her two daughters, Subhadra Rani Pal Choudhary
(the appellant herein) and Jyotsnamayee Pal Choudhary since deceased. Both were
joint executrix under the will. The will was executed by Smt. Hemantabala Roy
in favour of these two daughters on April 2, 1971. The said will was registered on April 12, 1971. Both the sisters moved an
application for grant of probate but the brothers of the appellant contested
the probate. Therefore, Original Suit No.5 of 1975 was registered. However,
probate was granted in favour of the daughters. Thereafter, the brothers of the
appellant preferred an appeal before the High Court being First Appeal No.469
of 1980. Pending First appeal, the High Court appointed Smt. Jyotsnamoyee Pal Chowdhary
and Smt.Subhadra Rani Pal Chowdhary as administrators cum- joint receivers pendente
lite by order dated 27th
April 1981. During the
pendency of this matter, an application was filed for seeking permission to let
out both these premises i.e. Nos.21/1/C and 21/1/D at Gora Chand Road, Calcutta.
The
Division Bench of the High Court granted permission on April 30, 1985 to proceed and invite offers.
Offers were invited by issuing advertisement on November 20, 1985 and an offer was made by Harvard House, Montessori School on November
12, 1985, respondent
No.1 was In-charge of the said school. The respondent No. 1 being the highest
bidder; her bid was accepted and Court by order dated May 5,1986 permitted joint receivers to lease out premises in favour
of the respondent No.1. The order dated May 5, 1986 reads as under :
"
Heard learned counsel for the parties.
It
appears that the offer made by Harvard House, 17 Camac Street, Calcutta-700
017, is the highest. Learned counsel for the opposite parties, appellants also
agrees to this.
Leave
is accordingly granted to the applicants in terms of prayers (a) and (b) of
this application to let out the premises to Harvard House, 17 Camac Street,
Calcutta-700 017 for a period of twenty one years on terms contained in the
letter of offer dated November 12, 1985 as annexed to the affidavit-in-reply to
this application.
This
application is disposed of as above." As a result of this, the offer of
respondent No.1 who being the highest bidder was accepted and the rent was
fixed at Rs.6500 per month with other conditions. The possession of the
premises No.21/1/D , Gora
Chand Road, Calcutta was given to respondent No.1 on June 16, 1986 in terms of the offer made by
respondent No.1. The respondent No.1 paid a sum of Rs.1,20,000 as security and
rent at the rate of Rs.6,500/- per month and Rs.900/- for the maintenance of
driving ways and lawns. It was alleged that the respondent No.1 also paid a sum
of Rs.10,000/- towards income-tax in respect of premises No.21/1/C. But no
possession of the premises No.21/1/C was given to respondent No.1 nor any lease
deed was executed in respect of premises No.21/1/D. However, a draft lease deed
was sent to the joint receivers but it was not executed on the ground that the
respondent No.1 had made illegal construction in the premises No.21/1/D in
violation of the clause 6 of the letter of offer.
An
application was moved by Respondent No.1 before the High Court on 12.5.1987 for
direction to the joint receivers to deliver possession of the premises
No.21/1/C, Gora Chand
Road and to execute
the lease deed in respect of both the premises. The said application of the
respondent No.1 was dismissed by the Division Bench of the Calcutta (Justice S.P. Das Gosh &
Justice L.M. Ghosh) by order dated August 11, 1987. It was held that petitioner had
not come with clean hands as applicant had raised illegal construction in
premises No. 21/1/D as alleged by joint receivers. Joint receivers were also
permitted by the Court on 15.1.1987 to take appropriate legal action against
applicant. A suit was also filed against applicant in Sealdah Court . The Division Bench dismissed the
application of applicant and declined to grant any relief, either to execute
lease for both the premises, i.e., 21/1/D and 21/1/C or permit possession of
premises No. 21/1/C. Aggrieved against the said order dated August 11, 1987 respondent No.1. preferred a
Special Leave Petition before this Court. Meanwhile, the First Appeal filed in
a probate proceeding by the brothers of the appellant was disposed off by the
High Court by way of compromise between the parties on October 3, 1988.
Respondent
No.1 filed T.S.No. 41 of 1989 before learned District Judge, Alipore on May 3, 1989 for specific performance of the agreement arrived at
on May 5, 1986 in pursuance of the order passed by
the High Court. Then again another application dated 31.3.1989 was moved before
the High Court to sue the joint receivers for specific performance of the
agreement for granting lease of both the premises. On December 4,1989 permission to sue the joint
receivers in respect of premises No.21/1/D was granted by the High Court. But
no order was passed in respect of premises No.21/1/C. Aggrieved against this
order the respondent No.1 filed S.L.P.(C) No.7489 of 1990 before this Court.
Both the Special Leave Petitions came up before this Court and they were
dismissed by order dated January
2, 1995. This Court
passed the following order which reads as under:
"
Mr.Jaitley, learned counsel for the petitioner- lessee brings to our notice two
circumstances viz.
(i) that
the suit filed by the Joint-Receivers for modification has since been dismissed
for non-prosecution and to the best of the information of his client, there is
no application for restoration; and
(ii)
clause 6 of the offer made by him, which offer has been accepted by the court,
does expressly contemplate internal modifications at the expense of the lessee
which the landlord was supposed to permit. Shri Jaitley says that the second
circumstances was not noticed by the High Court while passing the order
impugned in SLP) No.671/88, though it is noticed in the other order which is
the subject matter of the SLP) No.7489 of 1990. Shri Jaitley also says that so
far as 21/1/C is concerned, possession has not yet been delivered to the
petitioner-lessee notwithstanding the fact that the auction was held as far
back as 1986. He says that the lessee is suffering prejudice on that account.
We are
of the opinion that these are all matters which the High Court, which has
appointed the Joint Receivers, and which is supposed to be in custody of the
property, should look into. It is open to the petitioner to move the
appropriate Division Bench of the High Court for directions bringing to their
notice all the relevant facts. We are sure that on such application being
filed, it will be dealt with according to law. With these observations the
Special Leave Petitions are dismissed." After this order dated January 2, 1995, present application was moved
before the High Court for direction and orders upon the Administrators cum- Receivers,
that is how the matter came up before the High Court. The High Court in view of
the observations made by this Court allowed the application and directed as
aforesaid.
Aggrieved
against this impugned order dated 26th November, 1997 passed by the High Court on
application moved by Respondent No. 1 (herein) in First Appeal No.469 of 1980
(disposed of), the Special Leave Petition had been filed by the appellant.
In the
meanwhile some developments took place which has no material bearing, but it
was brought to our notice that Respondent No. 1 went to America and she divorced her husband who is
managing the School. It was also pointed out that after the death of Smt. Jyostnamoyee
Pal Choudhary the property had further exchanged hands. But that does not
concern us so far as the decision in the present appeal is concerned.
Learned
counsel for the appellant submitted that after October 3, 1988 when the appeal was dismissed by way of compromise between
the appellant and her brothers who challenged the probate, the appellant became
the absolute owner and no direction could be given by the Court as property was
no more custodia legis. It was also submitted by the learned counsel that by
order dated May 5, 1986, the High Court permitted the
appellant to lease out the property, it was only permission sought by joint
receiver. The lease deed was not executed under the orders of Court. Therefore,
the order dated May 5,
1986 is not capable of
being enforced as the order of the High Court. It was also submitted that by
order dated August 11,
1987 the High Court
had overruled the contention of the respondent No.1 for enforcement of the
order dated May 5, 1986 of the High Court to execute the
lease deed for both premises. This order was reaffirmed by subsequent order
dated 4th December,
1989 by Division Bench
and no direction was given for executing the lease deed in favour of respondent
No.1 for premises No. 21/1/C because of conduct of Respondent No. 1 for raising
illegal construction contrary to the terms and conditions of the letter of
offer. It was also submitted that S.L.Ps. were filed against both these orders,
both orders have been maintained by Apex Court and S.L.Ps. were dismissed.
It was
also pointed out that it was not brought to notice of this Court while SLPs
were argued that meanwhile appeal pending before the High Court had been
disposed of. SLPs were rejected ex parte and no notice was given to appellants.
As
against this learned counsel for the respondent No.1 pointed out that as per
order dated May 5, 1986 the appellant was under obligation
to execute the lease deed for both the premises. It was also pointed out that
the property remained custodia legis till the Court released both the executrix
as joint receivers, they continue to hold the property in trust on behalf of
Court. It was also contended that the High Court directed by order dated August 11, 1987 to joint receiver to file a suit
for illegal construction against Respondent No. 1 but that suit was not
prosecuted and it was dismissed in default.
Therefore,
the ground of illegal construction does not survive. It was further contended
that by not executing the lease deed for the premises No. 21/1/C, the respondent
suffered as she could not acquire premises for accommodating more students,
therefore, the respondent is entitled to damages. It was also contended that as
per the direction of this Court an application was moved by the respondent
herein and the Division Bench had rightly approached the matter and directed
appellant to grant lease for both the premises in terms of the order dated May 5, 1986.
So far
as the first question raised by the learned counsel for appellant that once
appeal preferred by the brothers of the appellant challenging the grant of
probate is dismissed on October 3, 1988, all the applications or pending
matters come to an end, appears to be justified. Once the appeal stood
dismissed then the property stood vested with the sisters. In this connection,
our attention was invited to Sections 211, 227 and 247 of the Indian Succession
Act, 1925. The said sections are reproduced below:
"
211. Character and property of executor or administrator as such.-
(1)
The executor or administrator, as the case may be, of a deceased person is his
legal representative for all purposes, and all the property of the deceased
person vests in him as such.
(2)
When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an
exempted person, nothing herein contained shall vest in an executor or
administrator any property of the deceased person which would otherwise have
passed by survivorship to some other person.
227.
Effect of probate- Probate of a will when granted establishes the will from the
death of the testator, and renders valid all intermediate acts of the executor
as such.
247.
Administration, pendente lite, - Pending any suit touching the validity of the
will of a deceased person or for obtaining or revoking any probate or any grant
of letters of administration the Court may appoint an administrator of the
estate of such deceased person, who shall have all the rights and powers of a
general administrator, other than the right of distributing such estate, and
every such administrator shall be subject to the immediate control of the Court
and shall act under its direction." According to Section 211, an executor
or administrator of a deceased person is legal representative for all purposes
and all the property of the deceased person vests in him. This Section lays
down that when there is an executor or administrator of the deceased, he is the
legal representative of the deceased for all purposes and all the property
vests in him. Section 227 says that after the probate of the will is granted
then it becomes effective from the death of the testator and shall render valid
all intermediate acts of the executor as such. Therefore, according to Section
227, the moment the probate is granted it will relate back from the date of
death of the testator and all property will be vested in the person in whose favour
the probate was granted. Section 247 only lays down that administrator can be
appointed pendente lite i.e. the Court can appoint administrator who shall have
all the rights and powers of a general administrator other than the right of
distributing such estate and every such administrator shall be subject to the
immediate control of the Court and shall act under its direction.
In
this connection, learned counsel for the appellant invited our attention to a
decision of the Calcutta High Court in the case of Gopal Lal Chandra vs. Amulyakumar
Sur reported in AIR 1933 Calcutta 234. It was held by the Calcutta
High Court as under :
"The
view adopted by the Calcutta High Court in respect of wills after 1870 is that,
on the executors obtaining probate, they immediately become vested by force of
statute with the whole of the estate, which belong to the testator at the time
of his death." Learned counsel for the appellant also invited our
attention to another decision of the Calcutta High Court in the case of Bajranglal
Khemka & ors. vs. Sm.Sheila Devi & Ors reported in Vol.74 Calcutta
Weekly Notes 444. In this case, the question was that what is the powers of the
administrators pendente lite and it was observed that the property of the
deceased vests with the administrator and any application moved by the
petitioner pro interesse suo and stranger to the action, if aggrieved by the
conduct of the general administrator whether he has a right to obtain redress
in an action at law, it was observed that such application is maintainable
against the administrator pendente lite on the original side. But the question
with regard to the title of the property cannot be decided. It was observed
that as per the Original Side Rules specified class of persons can apply and
the relief can be asked for by such applicant. But it was observed that these
Rules or the principles underlying them cannot be invoked by the petitioner
whose application is directed against joint administrators pendente lite.
As
against this, learned counsel for the respondent placed reliance on a decision
of this Court in the case of Hiralal Patni vs. Loonkaran Sethiya reported in
AIR 1962 SC 21 wherein it was held that receivers can be continued under orders
of court even after disposal of the matter.
Learned
counsel for the respondent has also invited our attention to another decision
of this Court in the case of Kunhayammed & Ors. vs. State of Kerala & Anr.
reported in (2000) 6 SCC 359 and contended that by virtue of doctrine of merger
the order of the High Court stood merged with the order of the Apex Court.
Learned
counsel for the respondent also invited our attention to another decision of
this Court in the case of Late Nawab Sir Mir Osman Ali Khan vs. Commissionerof
Wealth Tax, Hyderabad reported in 1986 (Supp.) SCC 700 wherein their Lordships
have held that dismissal of Special Leave Petition cannot be constructed as
affirmation by Supreme Court of the decision from which special leave was sought
for. Learned counsel for the respondent further invited our attention to the
observation from the Law Relating to Receivers by Sir John Woodroffe at pg.83
which reads as under :
"When
the Court orders a receiver to enter into a contract the contract is made with
the Court, the approval by the Judge of the offer made by the third party
constituting the contract. Such party may apply on summons that the contract
may be given effect to. It is not necessary that in order to enforce his right,
he should institute a suit. A Court has
complete power to enforce summarily a contract made by it when managing or
administering an estate, whatever that contract may be. Such power of enforcing
subsisting contracts made by it is not affected by the fact that the Court has
ceased to manage the estate before such contract is carried out by reason of
the dismissal of the suit." In order to answer this question, we have to
first decide whether the order dated 5th May, 1986 passed by the High Court amounts to
grant of lease in favour of Respondent No. 1 or not? A perusal of the order
dated 5th May, 1986 makes it clear that the Court
permitted the appellant to enter into lease agreement with the respondent.
Since both Subhadra Rani Pal Choudhary and Jyotsnamoyee Pal Choudhary were
appointed as Joint Receivers, an application was filed by them seeking
permission from the Court to lease out premises because the property had
liabilities to discharge. The Court only permitted the parties to enter into
the lease agreement and, the lease agreement was entered between the parties.
The
Court only granted leave to the applicants in terms of prayer "a"
& "b" to let out the premises to Harvard House, for a period of
21 years as per the terms and conditions in the letter of offer dated November
12,1985. Therefore, it was not an order of the Court to lease out the property
but only permission was granted to the Joint Receivers to proceed with the
lease agreement of the scheduled property.
It was
not the direction of the Court that the appellant shall enter into lease
agreement. It was only a permission and that cannot be treated as an order of
the Court, as if, that Cour had leased out the premises. Therefore, this should
be made clear that the lease agreement was entered into by the Joint Receivers
with the permission of the Court because the scheduled property was subject
matter of the first appeal.
Once
the first appeal is dismissed then property no more remain custodia legis and
joint receivers stand discharged. In this connection reference may be made to a
decision of this Court reported in AIR 1962 Supreme Court 21 (V 49 C4) [
observed as under:
"Civil
P.C. (1908), S.51 (d), O.40, R.1 Appointment of receiver in suit Duration of
appointment Rules as to.
Neither
S.51(d) nor Order 40 of the Code of Civil Procedure prescribes for the
termination of the office of receivership. The law on the point may briefly be
stated thus:
(1) If
a receiver is appointed in a suit until judgment, the appointment is brought to
an end by the judgment in the action.
(2) If
a receiver is appointed in a suit, without his tenure being expressly defined,
he will continue to be receiver till he is discharged.
(3)
But, after the final disposal of the suit as between the parties to the
litigation, the receiver's functions are terminated, he would still be
answerable to the court as its officer till he is finally discharged.
(4)
The court has ample power to continue the receiver even after the final decree.
If the exigencies of the case so require.
Held on
facts, that the Receivers continued by the preliminary decree are entitled to
function in that capacity till they are discharged, even though a final decree
for the sale of the properties of the defendants was passed." This Court
has summarized the legal position. So far as the appointment of receiver is
concerned, it was clearly laid down that the receiver's appointment is
co-terminus with suit/appeal and if suit or appeal is disposed of then the
appointment is brought to an end. But at the same time the court has a power to
continue the receiver after the final decree, if the exigencies of the case so
require. But in the present case, as mentioned above, the appeal was dismissed
on October 3, 1988 and Court did not reserve any power
to continue the receivers. The Court categorically mentioned that this disposes
of all the pending applications. The Division Bench while dismissing the main
appeal made following observation:
"On
the disposal of this appeal, all pending applications, if any shall also be deemed
to have been disposed of." Therefore, so far as the High Court is
concerned, High Court completely disposed of the matter and had no jurisdiction
to pass any order on the subsequent application filed by the parties. Thus, in
this view of the matter, we are of the opinion that the order passed by the
High Court in purported observation by this Court which was made in ignorance
of the fact that the appeal had been disposed of, the High Court would not
acquire any jurisdiction to pass any order. The High Court at the relevant time
had no jurisdiction to pass the order when the matter had already been disposed
of by it. Therefore, the order passed by the High Court cannot be sustained.
The
next question is what is the effect of two orders passed by the High Court. One
of the scheduled properties i.e.
Premises
No. 21/1/D was given by the Joint Receivers to the respondent and possession
thereof was handed over to them on 16th June, 1986. The respondent no. 1 made certain
construction therein and, therefore, joint receivers moved the High Court for
appropriate action in the matter, the respondent No. 1 also moved the High
Court for direction, for possession of premises 21/1/C and to execute lease
deed for premises 21/1/D and 21/1/C. That matter was disposed of by the
Division Bench of the High Court on 11th August, 1987 and in that the Division
Bench passed a detailed order not to offer the possession of the premises
bearing No. 21/1/C or execution of lease for both premises looking to her
conduct as the joint receivers moved the Division Bench that the respondent No.
1 was guilty of illegal construction. Though Court earlier directed joint
receiver to file suit against respondent No. 1 for illegal construction by
Order dated 15.1.1987. Suit No. 63 of 1987 was filed for declaration and
injunction against the Respondent No. 1 in the Court of 3rd Munsif, Sealdah.
However,
this was not pursued further by the appellant and it came to be dismissed for
default. Thereafter another application was moved by the respondent No. 1
before the Division Bench on 31ST March, 1989
seeking leave to sue joint receivers and reiterating all facts as mentioned in
their application dated May
12, 1987 which was
disposed of on 11th
August, 1987.
The
Division Bench after hearing both the parties at length observed that there is
an allegation by the Joint Receivers for illegal construction in premises No.
21/1/D of which possession was delivered to Respondent No.1 on 16th June, 1986
for which the Court has already passed the order on 15th January, 1987 to take
legal action against the Harvard House, Respondent No. 1 herein for violation
of terms of lease with regard to illegal construction on the premises No.
21/1/D and a suit was filed. The Division Bench held that in order to get a
specific relief, the applicant had to come with clean hands and since the
applicant had not sought permission for undertaking internal modification,
therefore, they have lost the equity in their favour. It was also observed that
meanwhile, an application was already moved on 22nd July, 1989 for variation
and modification of Court's order dated May 5, 1986 and that was pending and it
would be open for the Division Bench to pass an appropriate order either to
vary the order dated 5th May, 1986 or not . But it was observed that looking to
the conduct of the respondent it would not be appropriate to give a direction
to execute the lease deed for Premises No. 21/1/C or to deliver possession to
the applicant. Therefore, that prayer was rejected. So far as the recovery of
sum of Rs. 1,20,000/- as security for execution of the lease deed in respect of
premises No. 21/1/D and also a cheque for a sum of Rs. 10,000/- sent to the
Estate Duty Department for execution of lease deed in respect of premises No.
21/1/C, the Division Bench directed that in the absence of any specific prayer
by the applicant for the refund of those amounts it would not proper for the
Court to pass any order. However, the Court observed that since the parties
already moved the court for modification of order dated 5th May, 1986 on 22nd
July, 1987 the applicant would not be left without any remedy regarding these
amounts on the analogy of the principles in Section 22(2) of the Specific
Relief Act, 1963 and accordingly, the Division Bench declined to grant any
relief in this application. However, the Division Bench took into consideration
that the respondent herein has already filed a suit in the Civil Court on May
3, 1989 praying for specific performance of the agreement for lease, the leave
to sue the Joint Receivers was necessary, therefore, after hearing the parties
observed that the dismissal of the application of the Respondent No. 1 herein
on 11th August, 1987 would not pose any impediment to grant leave to sue the
Joint Receiver-cum- Administrators in respect of Premises No. 21/1/D for a suit
pending between the parties.
But it
was made clear that the Court had not gone into the merits of the respective
contention that whether despite the violation of the term No.6 in the letter of
offer dated November 12, 1985 the applicant could maintain a suit for specific
performance of the contract. The relevant portion reads as under:- "Regard
being had to the facts and circumstances of the present case, even though the
Courts rejected the application for proper direction upon the Administrator Pendente
lite - cum-Receivers dated 12.5.1997 by its order dated 11.8.1987 we do not
find any legal impediment to our granting to the applicant leave to sue the
Joint Receivers-cum- Administrator Pendente lite in respect of premises No.
21/1/D Gorachand Road, Calcutta for which already a suit is pending in between
the parties, even though we make it clear that we have not really gone into the
merits of the respective contentions as made by the applicant on the one hand
and the contending parties on the other as to whether despite the violation of
the term no. 6 in the letter of offer dated 12.11.1985 the applicant can still
maintain a suit for specific performance of the contract." So far as the
Premises No. 21/1/C is concerned, the Court found that since the request of the
applicant (respondent therein) was rejected by the Division Bench on 11th
August, 1987 and against that Order the applicant had already approached the
Apex Court and the same has not been disposed of, the Court declined to
interfere and rejected the application . Aggrieved against this order, another
Special Leave Petition was also filed.
Now,
in the light of these two orders passed by the Division Bench, it clearly shows
that so far as the request of the applicant to execute the lease deed with
regard to Premises No. 21/1/D is concerned, the Court has already granted
permission to the applicant (respondent No. 1 herein) to prosecute its suit
filed before the Court for execution of the lease deed of the aforesaid
premises, but declined to grant any relief for the premises No. 21/1/C.
Therefore, the prayer of Respondent No. 1 for Specific performance of order to
execute the lease for premises No. 21/1/C failed and subsequently Division
Bench cannot sit over the matter and review it. The SLPs filed against both the
orders dated 11th August, 1987 and 4th December, 1987 were also dismissed on
2nd January, 1995, the result was that both the orders stood affirmed, though
some observations were made by this Court while dismissing S.L.Ps. without any
notice to appellant (herein). More so, all the material facts were not brought
to the notice of this Court, that meanwhile the first appeal out of which all
the litigations arose had already stood disposed of by way of compromise on 3rd
October, 1988. However, this Court made observation under the impression that
the first appeal was still pending. Had this fact been brought to the notice of
the Court perhaps these observations would not have been made.
However,
after the disposal of both the special leave petitions by the Order dated
2.1.1995, an application by the respondent No.1 herein before the Division
Bench of Calcutta High Court inspired by the observation of this Court was not
warranted. The important fact was suppressed from this court that meanwhile
appeal had been dismissed and property was no more custodia legis. Yet it was
contended before this Court that since the suit filed for illegal construction
had been dismissed for non-prosecution and no application for restoration of
the suit has been moved, as per Clause 6 (ii) of the Offer letter which was
accepted by the Court expressly contemplated the internal modification at the
expense of lessee which landlord was supposed to permit, these contentions were
noted by this Court while dismissing the S.L.Ps.
After
this, present application was filed by respondent No.1 before the High Court as
aforesaid.
In
this background the argument of learned counsel for appellant deserves to be
accepted. After the dismissal of first appeal by the High Court, property stood
vested with both sisters and they became absolute owner and property no more
remain custodia legis. The appointment of Joint Receiver came to an end and
they stood discharged. As such, there was no need for the Division Bench to
consider the application filed by the applicant (respondent herein). In fact,
while the order was passed by this Court on 2nd January, 1995 it was not
brought to the notice of this Court that the property was no more custodia legis
as on that date the appeal filed by the brothers of the appellant had already
been dismissed by way of compromise. It was clearly mentioned in the order
dated October 3,1988, as quoted above, "while disposing the first appeal
that all the applications stand disposed of" meaning thereby, that at that
time no matter was pending in the High Court and the order passed by the
Division Bench was without jurisdiction. It is true that this Court on January
2, 1995 under the bona fide impression gave liberty to the applicant to move
the Calcutta High Court for appropriate relief.
But
the net result is that both these Special Leave Petitions were dismissed by
this Court and no positive direction was passed by this Court. It was only the
observation leaving the respondent No.1 to seek an appropriate remedy before
the Division Bench of the High Court if permissible under the law.
But at
the time when this application was moved for appropriate direction before the
Calcutta High Court, the Calcutta High Court was no more seized with the
matter, as the first appeal filed before the Calcutta High Court had already
stood disposed of on 3rd October, 1988. Therefore, the property was neither custodia
legis nor was the High Court competent to pass the impugned order. In fact by
taking recourse to the observation made by this Court while dismissing the
Special Leave Petitions, the respondent No.1 felt encouraged to move the High
Court and obtained a direction which the High Court was not competent to issue
as the property in question was no more custodia legis.
However,
we cannot be oblivious of equity created in favour of Respondent No. 1. The
equity requires in the matter that the Court permitted Joint Receivers to enter
into a lease with the respondent No.1, it would be unfair to leave the
respondent No.1 high and dry at this distance of time. The Division Bench by
its order dated 4th December, 1988 did not grant any relief except to sue the
joint receiver for execution of the lease deed with regard to the premises No.
21/1/D but denied the possession of the premises No. 21/1/C or execution of
lease deed for this property. Therefore, we are not inclined to pass any order
with regard to the possession or execution of lease for Premises No. 21/1/C and
set aside the order of High Court. But so far as Premises No. 21/1/D is
concerned, though no lease was executed but possession was handed over to the
respondent No. 1 herein on 16th June, 1986 and they are in possession since
then. Therefore, we direct that the appellant shall execute the lease deed for
remaining period of the 21 years of lease from 16th June, 1986 on same terms
and conditions as contained in offer letter dated 12th November, 1985 and the
respondent shall pay arrears of rent, if not paid so far and all other money in
terms of the Offer dated 12th November, 1985 within one month of the receipt of
this Order. In case, the respondent fails to pay, it will be open for the
appellant to proceed against the respondent No. 1 in accordance with law. The
appellant shall refund sum of Rs. 10,000/- paid by respondent No. 1 towards
duty for premises No. 21/1/C or adjust against dues, if any.
The
learned counsel submitted that the order of High Court stood merged with that
of the order of this Court, In this connection reference may be made to
decisions of this Court in (2000) 6 SCC 359, Indian Oil Corporation Ltd. vs.
State of India Services Pensioners' Association and Another reported in (1988)
2 SCC 580, Supreme Court Employees' Welfare Shree Majunatheaware Packing
Products & Camphor Works , State Represented by Inspector of Police
reported in (1999) 6, SCC 559. The principle of merger is not applicable to the
present case as both the Special Leave Petitions filed by the respondent No.1
were dismissed by this Court and, therefore, the orders passed by the Division
Bench of Calcutta dated 11th August, 1987 and 4th December, 1988 did not stand
merge with the order of the Apex Court dated 2.1.1995. The dismissal in limine
does not amount to upholding of the law propounded in the decision sought to be
appealed against.
It was
also contended that the respondent No.1 has suffered damages because the
premises No. 21/1/C was not given to Respondent No. 1 and Respondent No. 1
could not provide more accommodation to admit number of students and suffered
loss. She invited our attention to Section 21 of Specific Relief Act, and
contended that damages should be granted. This argument is devoid of any merit
as we have already held above that Respondent No. 1 has no case to seek
specific relief for premises no. 21/1/C, therefore, there is no case made out
for damages. Hence, this appeal is accordingly disposed of with no order as to
costs.
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