High Court
Case Details
CRP 555/2012 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY By filing this revision petition, the petitioner has challenged the order dated 10.12.2012 passed by the learned Civil Judge, No.3, Kamrup, Guwa hati in Misc. (J) Case No. 114 of 2010 (arising out of Title Exe. Case No.1/2000 ), whereby the application filed by the petitioner under Section 47 of Code of C ivil Procedure (for short, ’CPC’) for dismissal of the execution case, was rejec ted. 2. follows:- Facts leading to filing this revision may be stated in brief as The respondent/plaintiff filed the Title Suit No. 61/94 in the C ourt of Astt. District Judge, No.1, Kamrup, Guwahati for ejectment of the petiti oner from the suit premises and for recovery of arrear rent. The suit was decree d vide judgment and order dated 29.3.2004 passed by the learned Civil Judge(Sr.D ivn.), No.3, Kamrup, Guwahati. The respondent/decree holder, thereafter, through its lawful attorney filed an application for execution of the aforesaid decree in the Court of learned Civil Judge (Sr. Divn.) No.3, Kamrup, Guwahati. In the said execution case, the petitioner/defendant filed an application under Section 47 of the CPC being Misc.(J) Case No.114/10.
Legal Reasoning
The learned court below vide its order dated 21.2.12 passed in t he said misc. case rejected the application filed by the petitioner/defendant/ju dgment debtor. The petitioner/defendant, thereafter, approached this Court by fi ling Civil Revision Petition No.99/12. alleging non submission of the Power of A ttorney signed by the Principal. This Court vide order dated 6.8.12 passed in th e said civil revision, set aside the order dated 21.2.12 passed by the learned C ourt below and remitted the matter to the Court below with a direction to furnis h a copy of the power of attorney executed by the legal representatives of the r espondent/plaintiff and enable the petitioner/defendant to submit objection, if any, within 15 days from the date of appearance. This Court also directed that the learned Court below to dispose of the misc. application filed by the petitio ner/defendant afresh, after giving adequate opportunity of hearing to the partie s. 3. The respondent/plaintiff, thereafter, supplied and filed a photo copy of the Power of Attorney of the legal representatives of the decree holder. However, according to learned counsel for the petitioner/judgment debtor, the copy of the Power of Attorney is not acceptable in law. Further, according to le arned counsel for the petitioner legal heirship certificate was required on beha lf of the legal representatives of the decree holder to initiate execution of th e decree. The petitioner/judgment debtor filed objection petition. However, the learned Court below, after due analysis of the legal aspects of the issues raise d, rejected the petition filed by the petitioner/judgment debtor u/s 47 of the C PC by its impugned order dated 10.12.2012. This revision petition has been pref erred against the said order.
Legal Reasoning
Mr. N. Dhar, learned counsel for the petitioner submitted that i 4. n terms of the provisions of law under Order 3 Rule 6 of CPC and Section 4 of th e Power of Attorney Act, the photocopy of the Power of Attorney, not being certi fied, is not acceptable. Learned counsel also pointed out that in the absence o f succession certificate of the property, for determination of the legal heirshi p of the Decree Holder, the execution case is not maintainable in law. Learned counsel further pointed out that the impugned order was passed in violation of t he provisions of Order 21 Rule 22 of CPC and as such the same is liable to be se t aside. According to learned counsel for the petitioner directing partial exec ution of the Decree, is beyond the scope of law and as such the same is unsustai nable. 5. In reply to the above contentions, Mr. OP Bhati, learned counsel for the Decree Holder/respondents submitted that the impugned order do not suff er from any kind of illegality or irregularity as has been projected by the lear ned counsel for the petitioner and as such the revision petition filed by the pe titioner is liable to be dismissed. Mr. Bhati, learned counsel for the responde nts submitted that in terms of the provision of Order 3 Rule 6 (2) of CPC, the p rayer made by the petitioner cannot be considered since the provisions of law is not at all applicable on the subject in issue. Learned counsel for the respond ent further submitted that once Court is satisfied in terms of the provisions of the Order 6 Rule 14 of CPC, there cannot be any dispute regarding the maintaina bility of the execution petition. 6. Mr. N. Dhar, learned counsel for the petitioner submitted that commercial tenancy is heritable and transferable, therefore, the petitioner/jud gment debtor being commercial tenant are not liable to be ejected. In support of his contention, Mr Dhar relied on the decision of the Apex Court in Gian Devi A nand v. Jeevan Kumar, (1985) 2 SCC 683, wherein it was observed as follows: (cid:28)34. It may be noticed that the Legislature itself treats commercial tenancy dif ferently from residential tenancy in the matter of eviction of the tenant in the Delhi Rent Act and also in various other Rent Acts. All the grounds for evictio n of a tenant of residential premises are not made grounds for eviction of a ten ant in respect of commercial premises. Section 14(1)(d) of the Delhi Rent Act pr ovides that non-user of the residential premises by the tenant for a period of s ix months immediately before the filing of the application for the recovery of p ossession of the premises will be a good ground for eviction, though in case of a commercial premises no such provision is made. Similarly, Section 14(1)(e) whi ch makes bona fide requirement of the landlord of the premises let out to the te nant for residential purposes a ground for eviction of the tenant, is not made a pplicable to commercial premises.
Decision
& & & & & & & & &. 36. Accordingly, we hold that if the Rent Act in question defines a tenant in su bstance to mean (cid:28)a tenant who continues to remain in possession even after the t ermination of the contractual tenancy till a decree for eviction against him is passed (cid:29), the tenant even after the determination of the tenancy continues to hav e an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the c ontrary will step into the position of the deceased tenant and all the rights an d obligations of the deceased tenant including the protection afforded to the de ceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act fo r the benefit of the tenants, it is open to the Legislature which provides for s uch protection to make appropriate provisions in the Act with regard to the natu re and extent of the benefit and protection to be enjoyed and the manner in whic h the same is to be enjoyed. (cid:29) 7. The Apex court expanded the above discussion in the context of t he Delhi Rent Act. However, the Apex court observed that if the Legislature make s any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of h eirs of the deceased tenant on any condition laid down being fulfilled, the bene fit of the protection has necessarily to be enjoyed on the fulfillment of the co ndition in the manner and to the extent stipulated in the Act. The Legislature b y which the Rent Act seeks to confer the benefit on the tenants and to afford pr otection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of su ch tenancy rights after the termination of contractual tenancy of the tenant inc luding the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with rega rd to the residential tenancy and commercial tenancy. The Apex Court observed th at it is, however, entirely for the Legislature to decide whether the Legislatur e will make such provision or not. In the absence of any provision regulating th e right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights o n the heirs, on the death of the tenant, the devolution of tenancy rights must n ecessarily be in accordance with the ordinary law of succession. Therefore, at this juncture, when the decree holder is waiting t 8. o reap the fruit of his litigation after exhausting all the stages of the battle fronts, in all forums, the concept of commercial tenancy imported from Delhi Re nt Act cannot encompass and curtail the benefit to the petitioner/judgment deb tor. More so, there is no scope to discuss such issues at this stage. 9. By referring to the Supreme Court decision in Municipal Board, K ishangarh v. Chand Mal and Co., (1999) 9 SCC 198, learned counsel submitted tha t subsequent events can be looked into by the executing court, but the subject m atter of the discussion in the present case before us being different, the case of Municipal Board, Krishnanagarh(supra) cannot be pressed into service. The Apex Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 10. (2005) 2 SCC 217, held that: (cid:28)13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to (cid:28)act (cid:29) on behalf of the principal. In our view the word (cid:28)acts (cid:29) employed in Order 3 Rule s 1 and 2 CPC confines only to in respect of (cid:28)acts (cid:29) done by the power-of-attorne y holder in exercise of power granted by the instrument. The term (cid:28)acts (cid:29) would n ot include deposing in place and instead of the principal. In other words, if th e power-of-attorney holder has rendered some (cid:28)acts (cid:29) in pursuance of power of att orney, he may depose for the principal in respect of such acts, but he cannot de pose for the principal for the acts done by the principal and not by him. Simila rly, he cannot depose for the principal in respect of the matter of which only t he principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. (cid:29) 11. However, the above circumstances apparently are not applicable i n the case in hand. As a matter of fact, unlike what has been submitted by th e learned counsel for the petitioner, Order 3 Rule 6 relates to appointment of a n agent within the Court’s jurisdiction for the purpose of accepting services of process in cases where the party does not have a recognized agent or a pleader. Therefore, the aforesaid provision do not come into play in the instant case. 12. In terms of the provision of Order 6 Rule 14, every pleading sha ll be signed by the party or pleader. However, if the party pleading is absent for any good cause and thus unable to sign, such pleadings may be signed by pers on duly authorized to sign the same or to sue or defend on his behalf. Even a p erson orally authorized may initially sign since the signing of the pleading is a curable defect, its only a matter of procedure which can be regularized later on. A Power of Attorney holder by signing the pleadings on behalf of the decree holder is only acting as an agent of the principal. Therefore, the question ra ised by the learned counsel for the petitioner cannot demolish the decree obtain ed by the decree holder. 13. 2 SCC 662, held that: (cid:28)3. Now, the law is well settled that an executing court cannot go behind the de cree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is The Supreme Court in Sunder Dass v. Ram Prakash, (1977) a nullity for lack of inherent jurisdiction in the court passing it, its invali dity can be set up in an execution proceeding. Where there is lack of inherent j urisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any co urt in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or e ven in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behi nd the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan2 and Seth Hiralal Patni v. Sri Kali Nath3. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain th e suit in which the decree for eviction was passed. If the decree for eviction w as a nullity, the executing court could declare it to be such and decline to exe cute it against the respondent. 14. However, in the present case there is no question of the learned trial court lacking inherent jurisdiction or any other legal issue relating to jurisdiction of the court , which melts down the decree of eviction granted by the trial court to a nullity. The Apex Court in Jaipur Development Authority v. Radhey Shyam, 15. (1994) 4 SCC 370, observed that since the Land Acquisition Officer had no power or jurisdiction to allot land in lieu of compensation, the decree, if any, under Section 18, for the allotment of the land given under Section 11 is a nullity. The Apex Court observed that it is open to the appellant to raise the invalidity , nullity of the decree in execution in that behalf. Accordingly, the Apex Court held that the execution proceedings directing delivery of possession of the lan d as contained in the award is, invalid, void and in executable. 16. However, in the present case the issue raised in the application u/s 47 do not render the decree invalid, void and in executable, since there is no issue relating to the jurisdiction of the Court in passing the decree for ev iction of the judgment debtor. 17. As a matter of fact, ater dismissal of petition u/s 47 CPC, the petitioner/JD no. 3 filed a Civil Revision before High Court being CRP no. 99 /12 . Vide order dated 6.8.2012, the High Court set aside the impugned orde r and remitted the matter with a direction to Decree Holder to furnish a copy of the power of attorney executed by the legal representatives of the decree holde r and to enable the petitioner to submit his objections, if any, within 15 days from the date of appearance and further directed this court to dispose of the ap plication afresh after giving an adequate opportunity of being heard to both the parties in accordance with law. 18. Pursuant to the above order, both the parties entered appearance . The respondent/DH submitted copies of power of attorney dated 30.11.2006 and 1 3.6.2009, as executed by the legal heirs of Decree Hodler Madanlal Sharma, in fa vour of Shri Nareswar Das. In pursuance of the order of Hon’ble High Court, the petitioner/JD no. 3 also submitted his written objection by reiterating the ea rlier averments of the petition u/s 47 CPC . 19. The Title Suit No. 61/94 was filed by Madanlal Sharma, for evic tion of some of his tenants and said suit was contested by the petitioner/defend ant no. 3 M/s Modern Machinery Spares. After long drawn combat, the suit was d ecreed by holding that the defendants are defaulters in payment of rent and as s uch liable for eviction. The defendants preferred Title Appeal no. 7/2004, befo re the learned District Judge, Kamrup. The learned First Appellate Court conf irmed the judgment of ejectment of the defendants and further reversed the findi ng on issue of bona fide requirement by holding that the plaintiff has bona fide requirement of the suit premises. The defendants preferred Civil Revision vide CRP no. 185 of 2005 in the High Court against the appellate judgment in TA n o. 7/2004 dated 28.9.2005. The High Court by its judgment dated 1.9.2006 affir med the findings of the first appellate court and rejected the plea of protectio n u/s 5(2) of the Assam Urban Areas Rent Control Act. While confirming the iss ue of defaulter, High Court has also affirmed the findings of the learned appel late court regarding the bona fide requirement of the landlord and dismissed th e revision petition. Shri Nareswar Das, lawful attorney , on behalf of the legal heirs of the plaintiff filed the instant petition for execution of the decree which was registered as T.Ex. No.1/07. 20. During hearing on the petition u/s 47 CPC several objections wer e raised against admitting the copy of power of attorneys, by the learned counse l for the petitioner. I find some of the discussions in the impugned order made by the learned court below, while disposing of the application under section 47 of C.P.C., very impressive, reasonable and worth reflecting. I would like to quo te here-in- below the relevant extract of the impugned order, passed by the lear ned Court below, which are as follows:- (cid:28)The main contention of the learned counsel for petitioner are as follows(a) D ate of death cannot be ascertained from the power of attorneys and during penden cy of the suit or revision, the legal heirs did not get them impleaded and as su ch, the suit abated; (b)Executing Court can go beyond the decree by taking int o account the subsequent developments and nature of tenancy i.e. commercial tena ncy;(c) The decree is non-executable in view of the said subsequent developments accrued after filing of the suit; (d)The Power of Attorneys were not proved; (e ) The Power of Attorney holder has no authority to file the petition for executi on on behalf of the legal representatives; (f)The Power of Attorneys as submitted as per the order of the Hon ’ble High Court are not admissible for lack of registration; (g) The decree cannot be executed without obtaining succession certificate by the legal represe ntatives as required under section 214 of Indian Succession Act. Ld. Advocate for the OP/DH has refuted the above points by pointing out various parts of pleadings and documents. It is also argued that so far the date of death is concerned, it is clear from the power of attorney dated 30/11/06. He also submitted a copy of death certificate of Madanlal Sharma to show the date of death and mentioned that Madanlal Sharma expired on 17/09/06 i.e. after dismissal of the Revision by the Hon’ble High Court on 01/09 /06, and as such, there cannot be a question of impleadment of legal heirs befor e any Court during pendency of the suit, appeal or revision. In respect of point (a), from the power of attorney dated 30/11/06, it appears that at clause No. I, it was clearly mentioned that Madanlal Sharma expired on 17/09 /06 at Sujangarh and the legal heirs of Madanlal Sharma have acquiredright on the immov able properties on the death of MadanlalSharma. Against the above fact,• the Ld. Advocate for thepetitioner /ID failed to rebut the date of death by adducing an ybetter evidence either documentary or oral to disprove the claim of the OP/DH. Accordingly, I hold that Madanlal Sharma died on 17/09/06 and as such, there cannot be any question of substitution of the legal heirs at any point of time during pendency of revision. It may also be noted here that during argument Ld. Advocate Mr. N. Dhar by relying upon the reported case of AIR 1985 SC 796 (Smti Clan Devi Anand Vs. jeevan Kumar & Ors) argued that a commercial tenancy is heritable and transferable as in the instant case and as such, there cannot be any decree for eviction on b onafide requirement of plaintiff. I have gone through the above judgment. This judgment relates to a tenancy governed by Delhi Rent Control Act and in the said Act, there is’ a provision of non-application of the bonafide requirement in commercial tenancy. No such distinction has been made regarding non-applicability of the ground of bonafide requirement against commercial tenancy as a ground of eviction in Assam Urban Areas Rent Control Act. In respect of Point No. (d), (e) and (f) i.e. validity of power of attor ney, necessity of registration and power of attorney to move a court of law, on going through the record, it appeared that the instant execution petition has be en filed by one N areswar Das claiming himself to be the attorney holder of the legal heirs of the decree holder as apparent from the execution petition filed o n 25/01/07. During argument, Ld. Advocate Mr.N. Dhar by relying upon the reporte d case of AIR 2005 SC 439 (Janki Vashdeo Bhojwani & Anr. Vs. Indus Ind Bank) has submitted that a power of attorney holder cannot depose for the principal of th e facts which he did not have personal knowledge. Ld. Advocate for the OP /DH ha s submitted that in this case, power of attorney has never entered into witness box to depose any fact or submitted any affidavit, rather he has simply filed th e execution case based on the decree passed by this Court and affirmed by Appell ate Court and Hon’ble Gauhati High Court. Attorney Nareswar Das has not stated a nything of his own but he simply prayed for execution of the decree which is a m atter of record. Ld. Advocate Mr. O.P. Bhati in support of his contention submit ted that the case of Janki Vashdeo Bhojwani is not applicable in the present cas e and rather it was mis-quoted by the Ld. Advocate for the petitioner side. He a lso placed his reliance on the reported case of 2012 (4) GLT 1036 (Sona Mian vs. Kebal Kanti Nandi & Anr). I have gone through the record. It is a fact that the attorney of the LR of the decree holder Sri Nareswar Das has never entered into the witness box to depose any fact of this case. He has simp ly made a prayer on behalf of the legal heirs of the decree-holder to execute th e decree by annexing certain copies of the judgment and decree to be executed. The execution of the decree wa s prayed on the basis of documents. Hon’ble Gauhati High Court in the reported c ase of Sana Mian (Supra) at paragraph 19 held that lithe law what has been preci sely decided in Janki Vashdeo Bhojwani (Supra) is that the attorney may deposed for the principal in respect of such act or fact emanating from documentary evid ence or from universally known act or fact or from the act Dr fact within his pe rsonal knowledge, but he cannot depose for the principal for the acts done by th e principal not reflected in the records or not universally or personally known to the attorney. II From the above ratio, it is clear that ratio of Janki Devi i s not applicable in the present matter in hand. The power of attorney has filed this execution petition by basing his information on the decree passed by this C ourt and annexed certified copies of the decrees. So, his knowledge apparently i s covered regarding passing of the decree and the judgment of the Court and the certified copies thereof. There is nothing on record that the attorney has praye d for execution of a decree which is not known to him or which are not matters o f record. Hon’ble Bombay High Court in the reported case of Motilal Shivnarayan ( Supra) has held that \therefore in our opinion, there can be no doubt that the t wo reliefs are distinct and different and that the decree-holder could have exec uted this decree piecemeal as indeed he was bound to do.\ While passing the judg ment, as referred above, the Hon’ble Bombay High Court has also observed that th e decree for payment of money alone is one and indivisible and it cannot be exec uted in piecemeal manner. It is also observed that there is no justification for applyin g the same principle to the case of a decree which awards to the decree holder t wo distinct and different reliefs. Chapter 10 of Indian Succession Act provides for grant of succession certificate and it clearly mandates that succession certificate can only be granted with respect to any debt or securities. A Succession Certificate cannot be granted in relation to immovable properties. As recovery of possession relates to immovable property, there is no provision of granting of any succession certificate except the part of realisat ion of the arrear rents. As such, I found force in the submission of the Ld. Adv ocate for the OP /DH that the instant decree is divisible and can be executed in piecemeal manner by bifurcating the reliefs of ejectment from the suit premises and the recovery of arrear rent. Accordingly, I hold that for execution of decr ee for eviction by LR of decree holder, there is no necessity of any succession certificate. However, for the part of realisation of the arrear rent is concerne d, in view of the provision of Section 214 of the Indian Succession Act, the leg al heirs of the decree-holder cannot get the decree executed unless and until th ey produce the succession certificate from the competent Court of law. In the course of argument, Ld. Advocate for the petitioner /JD has raise d\ the question of legality and admissibility of the copies of power of attorney as produced by the petitioner Nareswar Das allegedly executed by the legal heir s of Madanlal Sharma. Ld. Advocate by referring Section 4 and 5 of Power of Atto rney Act has submitted that as the recovery of possession on the basis of a non- testamentory document i.e. power of attorney, u/s 17(1)(e) of the Registration A ct, a power of attorney must be registered. I have considered the provisions of section 4 and 5 of Power of Attorney Act and Section 17(1)(e) of Registration Ac t. From the facts of this case as narrated earlier, it is clear that the Nareswa r Das, the power of attorney holder of the legal heirs of Madanlal Sharma has on ly prayed for execution of the decree passed by competent Court of law. He has n ot claimed any right, title and interest over the suit property of his own on th e strength of said power of attorney. By operation of law, on the death of Madan lal Sharma, his legal heirs became the landlords of the suit premises and no new right has been created in their favour except the existing right of Madanlal Sh arma in the suit premises as well as in the decree as passed by this Court in T. S. No. 61/94. Section 4 and 5 of Power of Attorney Act operates only in respect of creation of new rights or transferring of some rights in married women out of the property received by them through non-testamentary process. In this case, t he said legal heirs though married women did not want to pass over any title in favour of Nareswar Das and by the power of attorney, though several powers were given to Nareswar Das but so far our case is concerned, it is only for execution of the decree and not for creating any rights in favour of Nareswar Das or in f avour of any other person. Said Nareswar Das being the attorney holder simply ca me up before this Court for execution of the decree without claiming any right o f his own. As required uls 17(1)(e) of Registration Act, the power of attorney m ight require registration in the event of claiming independent right by Nareswar Das on the strength of power of attorney. As such, I am unable to accept the a rgument of Ld. Advocate Mr. Dhar. To sum up, considering all above, I found no force in the petition u/s 4 7 so far it relates to execution of the decree for ejectment of the tenants/JD f rom the suit premises is concerned. However, due to non-obtaining the succession certificate for realization of arrear rent, the decree is divisible and the rel ief of realization of arrear rent may be kept in abeyance till furnishing succes sion certificate as prayed by the Ld. Advocate for the Decree-holder , but it ca nnot be said that the decree is not executable. Hon’ble Supreme Court of India in the reported case of Rameshwari Devi a nd Ors. Vs. Nirmala Devi and Ors. [MANu/sc/0714/2011/(2011) 8 see 249,] has deal t with the matter of awarding cost on realistic basis in following words: \54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur i n contesting the litigation before different courts. We have to also broadly tak e into consideration the prevalent fee structure of the lawyers and other miscel laneous expenses which have to be incurred towards drafting and filing of the co unter affidavit, miscellaneous charges towards typing, photocopying, court fee e tc. The other factor which should not be forgotten while imposing cost s is for how long the Defendants or Respondents were compelled to contest and de fend the litigation in various courts. The Appellants in the instant case have h arassed the Respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years.\ After a thread bare discussions of all issues raised by the lear 21. ned counsel for the petitioner as well as the respondents, I do not find merit i n the revision petition filed on behalf of the petitioner/judgment debtor, warra nting interference of the impugned order. 22. Consequently, the revision petition stands dismissed.