Mangat Ram v. Hari Krishan (dead)

trial Court on 19.05.1994 declining an application filed by the petitioner for setting aside ex parte judgment and decree dated 1.10.1987 for specific performance of an agreement to sell dated 28.9.1986 and the order in appeal dated 22.02.1996 affirming the order passed by the learned trial Court. The petitioner purchased the property in dispute vide sale deed dated 9.6.1981. He filed a petition for ejectment of the respondent under Section 13 of the East Punjab Urban Rent and Restriction Act, 1949 (for short “the Act”). The learned Rent Controller dismissed the ejectment Civil Revision No. 3920 of 1996 [2] petition on 10.05.1985 but the learned Appellate Authority allowed the appeal on 3.3.1986 and an order for the ejectment of the respondent tenant was passed. In Civil Revision No. 938 of 1986, against the order passed by the learned Appellte Authority, the execution of the ejectment order was stayed. However, the said order was vacated by this Court vide order dated

30.09.1986 which reads as under: - “ Shri Mahajan has stated at the bar that the son of his client has come and has told him that they are not willing to pay the arrears of rent because the parties have entered into an agreement dated 28.9.1986 by virtue of which the respondent has agreed to sell the property in dispute to them for Rs.3500/- out of which Rs.500/- have been given to the respondent as earnest money. But the execution of any such agreement or compromise has been denied by the respondent who is present in Court. The learned counsel for the petitioner was directed to read the agreement to see if there was any clause that the arrears of rent or mesne profits would not be claimable. The learned counsel read the agreement but no such clause was found therein. In these circumstances, the petitioner should have tendered the arrears of rent in Court so that in case the aforesaid agreement of sale is found to be obtained by undue influence, misrepresentation or fraud or that the petitioner was found to be a tenant, he would be liable to pay the rent. In view of the above, the ex parte stay order dated 4.4.1986 is hereby vacated and the respondent would be entitled to execute the ejectment order despite the alleged agreement”. On 28.10.1986, the petitioner sought execution of the ejectment order after stay was vacated by this Court. The tenant, present respondent filed objections under Order 21 Rule 29 of the Code of Civil Procedure, 1908 (for short “the Code”) which were dismissed on 17.11.1986. The respondent thereafter filed another set of objections under Section 47 of the Code on 13.12.1986 which were dismissed by the learned Executing Court on 15.09.1988. The respondent has not challenged the order passed by the Civil Revision No. 3920 of 1996 [3] learned Executing Court on 15.09.1988. The respondent has filed three separate suits as well. Firstly, on

14.10.1986 he filed a suit for permanent injunction which was dismissed as withdrawn on 20.11.1986. Thereafter, the respondent filed a suit for specific performance on 08.11.1986 in which ex parte decree for specific performance of the agreement was granted. In the aforesaid suit, the petitioner moved an application for setting aside of the ex parte judgment and decree on 27.05.1989 with the averment that he came to know about the ex parte judgment and decree on 17.05.1989 when the respondent disclosed such facts in his objections under Order 21 Rule 97 of the Code dated

24.4.1989. The respondent has filed another suit for permanent injunction on 27.01.1989 and the copy of the plaint is Exhibit AX. The said suit was withdrawn on 29.04.1989. The application for setting aside of ex parte judgment and decree was dismissed on the ground that the petitioner was aware of the ex parte judgment and decree granted on 01.10.1987 and the application for setting aside of ex parte decree has been filed after the period prescribed for filing of such application. It is also found that the petitioner was served not only by summons but also through registered post and Munadi. Thus, the Court has found that the application for setting aside of ex parte judgment and decree is not maintainable and consequently dismissed the same. Learned counsel for the petitioner has vehemently argued that the petitioner has filed objections under Section 47 of the Code in December 1986 i.e., after the filing of the suit for specific performance on

08.11.1986. The respondent has not disclosed the factum of filing of a suit for specific performance though the decree in such suit was passed on Civil Revision No. 3920 of 1996 [4]

01.10.1987. The objections were dismissed on 15.9.1988. Even in a subsequent suit for injunction, plaint of which is Exhibit AX, the respondent has not disclosed the filing of suit for specific performance though the respondent has obtained a decree for specific performance much prior to the filing of suit for injunction. It is further contended that the petitioner came to know of the suit for specific performance and the decree passed therein when the petitioner filed another set of objections dated 24.4.1989 under Order 21 Rule 97 of the Code. Therefore, the application for setting aside of judgment and decree cannot be said to be beyond the period of limitation. The respondent has kept the decree obtained close to his chest and in secrecy so as to harm the interest of the petitioner, who is prosecuting an order of ejectment. It is also contended that the petitioner was contesting the rent proceedings and the objections filed by the respondents. The petitioner denied the execution of the agreement at the very first instance when this Court vacated the stay of execution of ejectment order on 30.09.1986. There was no reason for the petitioner not to contest the proceedings in a suit for specific performance. The respondent has filed such a suit in a clandestine manner, proceeded to obtain a decree on the basis of forged report of refusal from the postman and process server and did not disclose either the filing of the suit or decree obtained in other proceedings pending at that time. It is, thus, contended that the action of the respondent in obtaining the decree for specific performance was an act of fraud based upon concealment of material facts and, thus, decree for specific performance is liable to be set aside obtained as a result of fraud. It will not confer any legality only by producing witnesses in respect of proof of service of summons upon the petitioner. Civil Revision No. 3920 of 1996 [5] A perusal of order dated 15.9.1988- Exhibit A-3, while deciding the objections filed by the respondents under Section 47 of the Code, does not show that the respondent has disclosed the filing of the suit or a decree obtained by him. In fact, the Executing Court has recorded a finding that if there was any settlement, then the parties would have made the same in the Court or at least would have immediately appeared in Court to make statements in that respect. The Court has recorded a finding that the agreement propounded by the respondent is not a genuine. The said finding reads as under: - “8. Earlier to the filing of the objection application, the J.D. had preferred an application under Order 21 Rule 29 C.P.C. for the stay of the proceedings taking the plea that he had entered into an agreement with the DH on 28.9.1986 to purchase the shop for a consideration of Rs.3500/- and he had already paid a sum of Rs.500/-. At that time, a revision application against the order of the Appellate Authority was pending before the Hon'ble High Court. This agreement was set up in those proceedings. The stay had been granted by the Hon'ble High Court subject to making payment of the arrears of rent or mesne profit. As the JD had not tendered the arrears of rent, the stay was vacated. The same view was taken by this Court as per orders dated 17.11.1986, by my learned predecessor. The fact remains that at the time of alleged settlement, the execution application was pending in the Court. In case, there was to be any such like settlement, then definitely, the parties would have made the same in the Court or at least would have immediately appeared in court to make statements in that respect. This is another circumstance which militates against the genuineness of the agreement. Rather, it shows as to how in the first instance a false agreement to sell was set up and when the JD/ objector did not succeed in that, then he was advised to take up a false plea of mutual settlement of handing over the possession of the shop to the D.H.” Admittedly, the said order passed by the learned Executing Court has not been challenged by the respondent. The respondent has subsequently filed a suit for permanent injunction on 27.01.1989, the plaint Civil Revision No. 3920 of 1996 [6] of which is Annexure AX. In the said suit, there is no averment in respect of filing of the suit for specific performance or decree granted in his favour on

1.10.1987. The defendant has appeared in the suit on 29.04.1989 when the suit was withdrawn. The order of withdrawal of suit reads as under:- “ Present:- Counsel for the parties. Heard. In view of the statement of ld. counsel for the plaintiff, the suit stands dismissed as withdrawn with no order as to costs. Documents be returned and file be consigned”. It was only on application dated 24.4.1989 under Order 21 Rule 97 of the Code, the respondent disclosed about the suit and decree for the first time in his favour. Soon thereafter, the petitioner moved an application on 27.05.1989 for setting aside ex parte judgment and decree. The respondent has relied upon agreement dated 28.09.1986 before this court during the hearing of an application for stay. Said agreement was denied to be executed by the petitioner. This Court vacated the stay order on 30.09.1986. Numerous proceedings have taken in execution proceedings but the respondent has not disclosed the filing of civil suit for specific performance. If there was a bona fide and genuine settlement, the respondent would have disclosed to the Executing Court and to seek resistance to the execution of the decree on the basis of agreement. But the respondent kept the decree close to his chest so as to continue with his possession on false pretext after the ejectment order was passed by the Court. The legitimate claim of the petitioner to seek execution of the ejectment order cannot be set at naught on the basis of fraudulent decree passed on 01.10.1987. The findings recorded in objections under Section 47 of the Code having attained finality shows that the act of the respondent is that of a dishonest and fraudulent person. Even if the respondent has been Civil Revision No. 3920 of 1996 [7] able to produce certain witnesses in respect of receipt of summon but the statements of such witnesses cannot be relied upon. It is well known that the witnesses may lie but the circumstances do not. In the present case, the witnesses have said nothing but lie, whereas the circumstances show that the decree obtained is nothing but a fraudulent act. In view of the said fact, present revision petition is allowed and the orders passed by the learned trial Court on 19.05.1994 and the learned First Appellate Court on 22.02.1996 are set aside. The decree for specific performance granted on 01.10.1987 and consequently sale deed executed in the favour of the respondent is also set aside. Since there is an ejectment order against the respondent and in favour of the petitioner, the Executing Court is directed to execute the ejectment order expeditiously in accordance with law. August 10, 2010 ( HEMANT GUPTA ) JUDGE