Pointing out Rule 97 Order XXI, C.P. Code, it has been contended on behalf of the appellant that, separate application with necessary particulars and pleadings complaining about resistance or obstruction is required to be made before the Court, while in the present case, initially the objections were filed, and subsequently those objections were converted into the application under Rule 97 which is not at all permissible or contemplated in law because the application over and above necessary pleadings, must contain the relief clause which is wanting here. The contention cannot be accepted. Of course there is no specific provision in C.P. Code for the conversion of Appeal into Revision or vice versa; or from objection filed into the application, or from one application into another, and therefore, for imparting justice fully and finally, or the circumstances of the case so demand, it is open to the court vested with inherent discretionary powers u/sec. 151 C.P. Code to convert a particular application as the application under particular provision, or revision application to an appeal or vice versa or objections filed to the particular application if not specifically prohibited by any provision of any law. Once conversion is made, what is converted will assume all characteristics of the converted form, viz., Revision would assume characeristics of appeal or vice versa & likewise in other cases. There is nothing in law prohibiting the court from converting the objections filed in the execution petition into the application under Rule 97 for the purpose of resisting the obstruction to the possession of immovable property. Of course while filing the objections the relief sought may not have been stated specifically which at the time of filing the real application is pleaded in specific words, but once the conversion is permitted, the pleadings are to be liberally construed and not with a view to find fault with the same as justice is the paramount consideration and the same is not to be thwarted or foiled. The necessary relief under the rules of construction/interpretation can well be assumed because in the objections also impliedly if not expressly the relief is pleaded, may be generally, and the duty of the court is to read the same with necessary implication when conversion is allowed. If required, necessary amendment can be permitted. In the objection initially prayer to reject the appellant's application (Exh. 49) is made, stating that obstruction raised by the appellant are not tenable. Such prayer indirectly conveys the real prayer which ordinarily one would expect or is required to be pleaded. On objections being converted into the application under Rule 97, the same assumed the characteristics of the application envisaged by Rule 97. The discretion exercised is quite just and proper. 1
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Gujarat High Court
John Mithalal Desai vs Dineshbhai K. Vora on 29 August, 1997
Equivalent citations: (1997) 3 GLR 279
1. Being aggrieved by the order dated 31st December 1996, passed by the learned Judge of the City Civil Court at Ahmedabad, allowing respondent's (judgment creditor) application (Exh.53) and issuing possession warrant directing the appellant-third party to hand over the peaceful and vacant possession of two rooms and open chowk land on the ground floor and whole of the first floor of the building called "Vijay Villa" situated to the East of Maninagar Railway Crossing and near the Vandana Park Society, in Ahmedabad (hereinafter referred to as `the suit premises') owned by deceased-Dr. Patrick Motilal Kelly-the judgment debtor to the Court Commissioner; and rejecting the obstruction application (Exh.49) preferred by the appellant in Execution Petition No. 495 of 1994, the appellant has preferred this appeal under Rule 103 Order 21 r/w. Sec. 96 of the Civil Procedure Code. The chequered history may be stated so as to appreciate the rival contentions.
2. Dr. Patrick Motilal Kelly was the owner of the building, "Vijay Villa". He, having no issue, was alone after he lost his wife. In 1990, he agreed to sell his building called "Vijay Villa" to the present respondent. An agreement to sell was executed in 1990. The respondent in turn paid Rs. 11,000/- by way of earnest money. Both had to, under the agreement, perform their respective obligations. The respondent was ready and willing to perform his part of the contract, but he found that Dr. Kelly was not willing to perform his contractual obligation and was trying to find out a device so as to renege on the terms he had agreed to under the agreement. The respondent therefore filed a Civil Suit No. 5325 of 1991 for injunctive relief on 23rd September 1991 wherein he prayed the court that Dr. Kelly might permanently be restrained from transferring the building he had agreed to sell. An application Exh.6 was also preferred in the suit on 10-3-93 for interim injunction. Initially, the court was pleased to grant ad-interim injunction ex-parte, but later on hearing the parties the same came to be vacated and the application Exh.6 came to be rejected. The respondent therefore preferred the appeal being Appeal From Order No. 94 of 1993 before this Court. The appeal was placed before Mr. Justice S.D. Shah for hearing and disposal. During the course of the hearing the respondent and Dr. Kelly arrived at amicable settlement. As per the settlement the respondent had to deposit Rs. 9,44,400/- in the Office of the City Civil Court on or before 30th July 1993 and the consent terms were to be placed before the learned City Civil Court Judge before whom the suit was pending so as to have the decree passed in terms of settlement. On 5th April 1993 the consent terms were placed before the court for passing the decree in terms of the compromise. During the pendency of the suit on 1st November 1991 the respondent filed another suit being Civil Suit No. 6302 of 1991 before the City Civil Court at Ahmedabad. It was a suit for specific performance of the contract and necessary injunctive relief. While settling the matter before this court the dispute between the parties in the later suit was also resolved. As per the consent terms the respondent on 29th July 1993 deposited Rs. 9,44,400/- in this Court. Dr. Kelly later on thought, for one or the another reason, not to esteem the consent terms. He therefore filed Misc. Application No. 4772 of 1993 in A.O. No. 94 of 1993 before this Court submitting that he could not understand the consent terms, his advocate had not explained the consent terms & impact thereof; and further he was not mentally well and so a guardian to plead his case might be appointed and the A.O. No. 94/93 might be decided on merits. On 13th December 1993 this Court (Coram: Mr. S.D. Shah, J.) rejected the application and directed the lower court to pass the decree in terms of compromise. Dr.Kelly was not satisfied with the order passed by this court, and therefore through his next friend-the appellant who is his brother-in-law, got filed Letters Patent Appeal No. 522 of 1993. The Letters Patent Appeal came to be dismissed on 27th December 1993. Dr. Kelly then filed S.L.P.No. 1034 of 1994 before the Supreme Court of India but he could not succeed, his S.L.P. came to be dismissed on 31st March 1994. Thereafter Dr. Kelly filed Civil Suit No. 1401/94 on 30th March 1994 before the City Civil Court at Ahmedabad with a prayer not to pass the decree in both the suits. The City Civil Court did not agree with Dr. Kelly and hearing the parties it passed the decree in both the suits on 5th May 1994. Thereafter as per the decree Dr. Kelly did not execute the Sale Deed. The respondent therefore filed Execution Petition No. 495/94 on 6th July 1994. On the next day of the date of execution petition i.e., on 7th July 1994 Civil Suit No. 1041/94 was withdrawn, and on the same day Civil Suit No. 3675/94 was filed for staying the execution of the decree. In that suit the lower court refused to grant interim relief. On 3rd August 1994 Dr. Kelly filed his objections in the execution petition. The court heard both the parties and maintained its order qua ad-interim injunction application. On 24th August 1994 therefore Dr. Kelly agreed to execute the sale deed but prayed for 1 1/2 months' time. On 7th September 1994 Dr. Kelly filed the application and requested the court to pay 50% of the amounts deposited by the respondent with a further prayer to pay remaining 50% of the amount on his executing the sale deed. On 21st September 1994 Dr. Kelly filed the application for producing Clearance Certificate. A notice was published in local daily called "Sandesh" dated 27th September 1994 for issuance of the Clearance Certificate in favour of the respondent. The present appellant remained silent. Jagannath Chanderpati Rai, the proprietor of Niti Builders filed the application on 19th October 1994 in the execution petition objecting against the execution of the decree passed in the above two suits against Dr. Kelly. The respondent filed the application to remove the obstruction on 24th October 1994. Hearing the parties the City Civil Court at Ahmedabad i.e. Executing Court on 7th December 1994 rejected the application of Niti Buildings. On the same day, i.e. on 7th December 1994 the present appellant who is the brother-in-law of Dr. Kelly filed the suit being H.R.P. Suit No. 1770/94 in the Small Causes Court at Ahmedabad for a declaration that he was the tenant of the suit premises, and permanent injunction restraining the respondent from executing the decree against him and taking possession from him. In that suit he obtained ex-parte ad-interim injunction against Dr. Kelly and the present respondent whereby both are restrained not to take possession of the suit premises. It may be mentioned that the said ad-interim injunction issued is still in force. After being served with the notice and ad-interim injunction both Dr. Kelly and the respondent (J.D. and J.C.) appeared before the Small Causes Court. Dr. Kelly filed no reply but the respondent filed his reply. The appellant also obtained the order for the appointment of the Commissioner in that suit. On 24th February 1995 the Commissioner filed his report and map before the Small Causes Court indicating the appellant's occupation of the suit premises without clarifying the appellant's status. However it may be stated that on 14th December 1994 the City Civil Court, had in the execution petition passed the order to execute the sale deed and hand over vacant possession to the present respondent on or before 28th December 1994 failing which it was made clear that the Commissioner will be appointed for needful to be done in the matter. That order was not esteemed by Dr. Kelly. On 16th January 1995 the Commissioner appointed by the Executing court visited the suit premises and prepared his report. On 18th January 1995 the Commissioner appointed by the Executing Court filed the application Exh. 39 before that court against Dr. Kelly and the present appellant for issuance of the warrant for possession so that he could execute the same and take possession. The Executing Court issued the notice. The Commissioner filed his report which came to be exhibited as Exh. 50. Dr. Kelly filed his reply at Exh. 52. On 29th January 1995 the appellant also appeared before the Executing Court and filed his reply at Exh. 49. On 14th February 1995 the respondent also filed his reply at Exh. 53. Thereafter on 1st March 1995 application Exh. 58 was presented before the Executing Court with a request to treat the reply Exh. 53 as the application to remove the objections under Order XXI Rule 97, Civil Procedure Code. The matter was then posted for further hearing. Meanwhile on 7th June 1995 Dr. Kelly died leaving no issue. Hence on 15th June 1995 the respondent filed the application to appoint the appellant as the heir and legal representative of Dr. Kelly as there was no one within his knowledge who can be appointed as such. On 20th June 1995 the appellant filed his reply denying the fact of his being the heir of deceased Dr. Kelly. On 22nd June 1995 the respondent filed his reply. On the same day the Executing Court examined the appellant who made it clear that he was having no right in the bungalow and the suit premises, but was the tenant of the suit premises. On the same day therefore the Executing Court passed the order (Exh.62) directing the appellant to hand over peaceful and vacant possession of the suit premises to the Court Commissioner. The appellant then filed his application Exh. 69 seeking time on the ground that he was to prefer required application for necessary action before the High Court. Time upto 29th June 1995 was given so that the appellant could get stay or appropriate order from this court. On 29th June 1995 Shaishil the son of the appellant filed the application (Exh.85) declaring that he was the heir and legal representative of Dr. Kelly under the Will and produced one registered Will dt. 10-2-95 alleged to have been executed by Dr. Kelly. It was also made clear to the court that necessary stay order from High Court was not sought. Thereafter below application Exh. 85 necessary order was passed by the Executing Court and Shaishil was appointed as heir and legal representative of Dr. Kelly. Having come to know about such developments in the execution petition, few other persons namely Shiril Somchand, Rajnikant Shumsum and Smt. Valentina filed the applications at Exhs. 71, 74 & 77 to which the respondent replied vide Exhs. 79, 81 & 83 respectively and gave consent to join all those as parties to the execution petition. The lower Court, i.e. Executing Court granted the same. Thereafter on the same day Shaishil filed the undertaking (Exh.90) to take the possession of the bungalow from the appellant. On 7th July 1995 a purshis (Exh. 93) by Shaishil was filed and the appellant also filed a purshis (Exh.94). It was disclosed that possession of the bungalow was given to Shaishil, but the possession of the suit premises was not given. On that day application Exh. 95 was filed by the present respondent. He urged the court to amend and add the name of Shaishil in place of Dr. Kelly. The court granted the same. On 25th July 1995 the Executing Court passed the order directing Shaishil to hand over the possession of the bungalow to the Court Commissioner on or before 31st July 1995. On 31st July 1995 Shaishil filed the application (Exh.98) for time before the Executing Court making it clear that he wanted to prefer the appeal before the High Court. The court granted time upto 8th August 1995. Thereafter C.R.A. No. 1611/95 was filed before this High Court, but no stay order was obtained. On 15th September 1995 the respondent requested the Executing Court to accept the process fees as C.R.A. No. 1611/95 pending before the High Court was withdrawn unconditionally. Accordingly process fees was accepted; as a result the Commissioner and the Bailiff of the court went to the spot with the possession warrant to take the possession. On 15th November 1995 the Court Commissioner filed the application (Exh.111) for necessary clarification. The Executing Court then passed the order directing the Commissioner to take the possession of the whole of the bungalow except the suit premises marked as A, B, C, E. On the same day, i.e. on 15th November 1995 the possession of the whole of the bungalow from Shaishil was taken by the Commissioner except the suit premises, and the bungalow was sealed by the Commissioner. On 12th December 1995 the Executing Court, i.e., City Civil Court was moved by an application from the Commissioner to break open the locks of the watchman room and garage on the ground floor which was it seems granted. Thereafter the applications Exhs. 53 & 49 were heard and the impugned order came to be passed. The application Exh.49 raising the obstruction against the execution was rejected, while the application Exh. 53 for removal of the obstruction and issuance of possession-warrant was allowed on 31st December 1996. It is against that order, the present appeal under Rule 103, Order XXI, Civil Procedure Code has been filed.
3. After the decree for specific performance of the contract came to be passed in terms of the compromise arrived at between Dr. Kelly and the respondent, under one or the another pretext Dr. Kelly eschewed to esteem the decree and execute the Sale Deed. With no option therefore the respondent was constrained to prefer the execution petition wherein also Dr. Kelly and the appellant, his brother-in-law resisted or obstructed to the process of possession of immovable property namely the suit premises, and therefore hearing the parties, below the application Exh. 53 which was treated to be the application under Order XXI Rule 97, C.P. Code the order in question came to be passed in favour of the present respondent and against Dr. Kelly as well as the the present appellant, consequent upon which the present appeal has been preferred. It may be noted that Civil Procedure Code came to be amended in 1976 and the amended provisions came in force from 1st February 1977. Certain amendments in Rule 97 to Rule 105 (Old) Order XXI C.P. Code are made. A careful study of the old as well as the new rules of Order XXI reveals that the amendment has altered the scheme and new provisions are also added. No change in Rule 97(1) has been made, but Rule 97(2) has been modified to some extent by a new rule. A detailed procedure has been prescribed under new Rules 105 and 106. The old Rule 98 is made Rule 98(2) with some alterations. New Rule 98(1) has been added in lieu of old Rule 99. Old Rule 100 (1) has now been incorporated as new Rule 99(1) without any change. Old Rule 100(2) has been modified and incorporated as new Rule 99(2) and a detailed procedure has been prescribed under new Rules 105 & 106. In the place of old Rule 101, new Rule 100 has been added. Old Rule 102 is maintained with the addition of an explanatory clause. The old Rule 103 has been brought into being. Rule 104 has been added. The effect of such changes cannot be overlooked. The changes are not minor but can be said to be drastic. Under the old Code a summary proceeding was contemplated. After the amendment a full fledged trial is envisaged. Under the old Code if the court was satisfied with the resistance or obstruction was made by any person other than the Judgment Debtor claiming to be in possession in good faith the application by the decree holder or the auction purchaser was bound to be dismissed. Similarly, if the court found that if the person in bonafide possession other than the Judgment Debtor had been dispossessed the court had the power to restore the possession to such person. In that case the remedy of the aggrieved party was to file a suit in accordance with old Rule 103, but under the amended Code in view of Rule 101 all the questions arising between the parties including the questions relating to right, title and interest in the property are to be decided after full-fledged trial and the ultimate decision of the court executing the decree is made appealable as if it were a decree, and a separate suit is now barred. However, under Rule 104 the order made under Rule 101 or Rule 103 is subject to the result of the suit already pending on the date of the commencement of the proceeding in which such order is passed. What therefore can be deduced is that whenever the application under Rule 97 is made relating to the resistance or obstruction to possession of immoveable property, and the question about right, title and interest in the property are required to be decided, that application is given a status of a suit because under Rule 101 all these questions are, after the amendment, to be determined by the Executing Court and not by a separate suit, as Special Jurisdiction is vested in Executing Court notwithstanding anything to the contrary contained in any other law for the time being in force. A separate suit which was permitted under Rule 103 prior to amendment is now barred, but the decision of the Executing Court in the application under Rule 97 is made subject to the final result of the suit provided of course the suit is pending on the commencement of the proceeding, otherwise not. To this extent, the supremacy qua jurisdiction of other courts is maintained and is not curtailed by Rule 10, r.w. 104. The remedy of the aggrieved party after the Executing Court passes the order is to prefer the appeal because under Rule 103 the order that is passed by the Executing Court in the application under Rule 97 is to be treated a decree. In this case, the objections resisting the possession of the suit premises were filed, and therefore, for the removal of the obstruction the application (Exh. 53) was filed by the present respondent (decree holder) under Rule 97. The appellant had raised the question of tenancy and thereby claimed interest in the suit property and also asserted his right to continue in the possession of the suit premises. The question about the tenancy and his right as well as interest in the suit premises are therefore adjudicated by the executing court vested with the power under Rule 101, Order XXI, C.P.C. The order therefore came to be passed under Rule 98, consequently in view of Rule 103 the order taking shape of a decree is appealable. When that is the case, the impugned order is appealable. Accordingly when the appeal is preferred, it cannot be said that the same is not at all permissible in law as canvassed before me.
4. The learned Judge of the Executing Court below framing necessary issues recorded the evidence led by both the parties and appreciating the evidence before him reached a conclusion that the appellant who obstructed the delivery of a possession failed to establish the case of the tenancy. He was therefore not at all entitled to be in possession but was liable to vacate and hand over the possession of the suit premises to the respondent. Needless to say that in this appeal the findings and order of the learned Judge are challenged submitting that the appreciation of evidence made was erroneous, and so on all points that arose for consideration, the learned Judge fell into error.
5. With meticulous care and finicky details, I have perused the order passed by the learned Judge of the Executing Court and I am in general agreement with him. When that is so, in view of the decision of the Apex Court in the case of Girijanandini Devi and others vs. Bijendra Narain Choudhary - AIR 1967 S.C. 1124, it is not necessary to restate the same. However, in short I may deal with the point raised. It is alleged that in 1986 the suit premises were let to the present appellant by Dr. Kelly but no evidence in support of the case of the lease alleged has been led except the bare testimony which is not acceptable being interested one, and also because documentary evidence though available is withheld. I would not repeat the facts hereinabove in details stated, but it must be stated that those facts clearly reveal that with a view to defeat the decree passed in favour of the respondent and gloat at last, resorting to several devices and evil design, Dr. Kelly and the appellant have left no stone unturned, and their such attempts to frustrate the decree speak volumes against them. When before the High Court settlement was arrived at and reduced into writing, it was not at all made clear that the suit premises were let to the present appellant. What is stated is that Belaben the daughter of the appellant was living with Dr. Kelly for prosecuting her study, as the appellant and his wife were serving at Mithapur in Jamnagar District. It may be stated that the wife of appellant is still serving as the teacher in the school while the appellant retired in 1990. At the time of settlement Dr. Kelly also assured that he would not transfer the bungalow or any portion thereof to any one either by sale, gift, mortgage or by lease. He was asked to file the affidavit making it clear that he would be handing over the possession without raising any issue. Thereafter, the decree Exh. 79 came to be passed, of course after certain battles before different courts. During the pendency of the execution petition, on 24th August 1994 vide Exh. 21 Dr. Kelly prayed for time so as to give possession to the respondent. On 7th September 1994 vide Exh. 22 he declared before the court that he would be executing the sale deed parting with the possession and prayed for 50% of the amounts deposited by the respondent. While presenting Exh. 21 & 22, Dr. Kelly did not disclose about the fact of lease in favour of the present appellant. For the purpose of Income Tax Clearance and Title Clearance Certificate required to be obtained under the consent terms, time was sought for on 21st September 1994 vide Exh. 23 and thereafter advertisement was got published in local daily called "Sandesh" dated 27th September 1994, whereby objections from the public and interested persons were invited but no objection was received. The applicant also did not file any objection. He also did not come forward with the case of his tenancy. The Niti Builders filed the objections and also filed the suit being Civil Suit No. 5233 of 1994 before the City Civil Court so as to resist the delivery of possession in execution, but Niti Builders failed in obtaining ad-interim injunction. At that time also neither Dr. Kelly nor the appellant came forward with the case of the tenancy. Dr. Kelly wanted to get out from the consent terms he had agreed upon and therefore he had filed the application before this Court in A.O. No.94/93 submitting that the terms were not read over and explained to him, and further as he was not mentally well he could not know what was being done. His such application came to be rejected, but in that application also the case of the tenancy asserted by the present appellant is not at all put forth and not even a whisper thereof is made. While preferring the Letters Patent Appeal the appellant was appointed as the guardian and next friend of Dr. Kelly. At that time also while pursuing L.P.A. the appellant and Dr. Kelly remained silent about the alleged tenancy. Thereafter, S.L.P. was filed before the Supreme Court which came to be dismissed on 31st March 1994. While disposing of the S.L.P. the Supreme Court has observed in its order that whatever observations were made in C.A. No. 4772/93 and A.O. No.94/93 would not be treated as conclusive if Dr. Kelly would challenge the decree. One day prior to the decision of the Supreme Court, i.e., on 30th March 1994 the Civil Suit No. 1401/94 was filed by Dr. Kelly against the present respondent wherein he categorically asserted and pleaded that he was the owner and in exclusive possession of his bungalow, and the compromise arrived at was behind his back and not binding to him etc. What is pertinent to note is that he never made it clear in the suit that the suit premises were in possession of the appellant as the tenant, on the contrary he pleaded that he was the owner of the bungalow and in exclusive possession thereof. For declaration and injunction on 7th July 1994 Dr. Kelly also filed a suit against respondent before the City Civil Court at Ahmedabad wherein also he pleaded that he was in exclusive possession of the bungalow right from 1965. He did not even whisper about the alleged tenancy asserted by the present appellant. A Will dated 10th February 1995 alleged to have been executed by Dr. Kelly is also filed in the execution proceeding. In that Will also, Dr. Kelly has stated nothing indicating letting of the suit premises to the present appellant. Such facts on record show that though several occasions arose, at no time either the appellant or Dr. Kelly came forward with the case of alleged tenancy. Their silence coupled with the several devices they have adopted for defeating the decree passed, shows that the case of tenancy is camouflageous and bogus. The learned Judge of the Executing Court is therefore perfectly right in reaching the conclusion that the case of tenancy is not established.
6. It is pertinent to note that the appellant was serving at Mithapur and retired in 1990. Upto 1990 therefore he must not have used and occupied the suit premises. After retirement if at all he used the same, he could have well examined any of the neighbours knowing the fact, but he has conveniently dropped to examine, and that circumstance gives a fatal blow to his case. Of course an attempt to convince me was made submitting that Belaben his daughter was using and occupying the suit premises, but that explanation is not at all consistent with the evidence on record. Before this court when settlement was arrived at it was made clear that Belaben was residing with Dr. Kelly as she was studying. It may be remembered that Dr. Kelly was the husband of the appellant's sister and therefore he would not like to let the premises for the study of Belaben, on the contrary he would permit his niece to stay with him under his custody and supervision free of charge. Nothing about the so called tenancy was alleged or put on paper. It is to be noted that Belaben is not examined and that makes the case incredible. Of course when Court Commissioner went to the site he found that the appellant was occupying the suit premises but that would not establish the fact that he has been occupying since 1986 as tenant, or at least from 1990 when he retired from the services because he would not like to leave his wife alone at Mithapur, and there was also no need to rush to Ahmedabad after retirement because Dr. Kelly without any recession but with the same love & affection as before was looking after Belaben. On 10-2-95 when the Will was made, Dr. Kelly has stated nothing about tenancy although execution petition was pending. What can, therefore, be deduced is that because of this litigation when the idea sparked to defeat the decree passed, and have a wrongful gain the appellant might have after the death of Dr. Kelly started to reside in the suit premises occasionally pretending to be the tenant. Hence appellant's or Belabenben's occupation of the suit premises found by the Court's Commisioner is not the circumstance supporting the case of alleged tenancy.
7. Faced with such situation, Mr. Sanjanwala, the learned counsel representing the appellant has submitted that in this case rent note at Exh. 129/1 is produced but for want of stamp-duty the same is not admitted in evidence. Certain receipts of rent paid are produced at Exh. 102/1 to 102/4 but not admitted in evidence. The lower court ought to have admitted the same in evidence, but when that is not done, the same can now be done even by this court, and if that is done it would certainly establish the case of tenancy the appellant is asserting. He in support of his submission relied upon certain decisions. In the case of Bahagat Ram and others v. Rattan Chand and another A.I.R. 1930 Lahore 854,it is held that if the document is not properly stamped before holding it to be inadmissible in evidence, the court is required to give an opportunity to the party producing it for payment of stamp duty and penalty under Section 35. In another caseNarain Datt vs. Kirpa Kishen - A.I.R. 1932 Lahore 616, it is made clear that if the document is found to be insufficiently stamped before passing any order of dismissal of suit or otherwise, the court has first to decide the nature of the document and necessary penalty if required to be levied. In another case of Thakar Das Rup Chand vs. Sher Ahmed Iqbal Ahmad - A.I.R. 1934 Lahore 730, what is held is that if the trial Court decides that stamp duty is necessary on the document, such duty with penalty if tendered in appeal can be accepted. The last decision which is cited is rendered in the case of Kedarmal Raghunath vs. Ratiram and another - A.I.R. 1935 Nagpur 54,wherein it is laid down that the document if found insufficiently stamped can be admitted in evidence on payment of the stamp duty and penalty. On behalf of the respondent it is submitted that the lower court was perfectly right in not admitting these documents in evidence and even at this stage also the same cannot be admitted levying penalty and stamp duty. The document (Exh.129/1) concocted subsequently is neither the rent note nor the lease-deed in the eye of law. The zerox copies of the so called rent receipts are got up and no case is made out to admit the same in evidence as secondary evidence. I agree with the law made clear by the above stated authorities, but in this case I see no justification to admit the same recovering the amount of stamp duty and penalty. The writing Exh. 129/1 is signed by Dr. Kelly but it is not signed by the appellant. Before the same is dissected, though to an extent it may appear unnecessary but having academic significance better it would be to turn the eyes on the law, as both have in details from different angles submitted about lease & rent note, and levy of stamp duty.
8. Learned advocates representing the parties have referred to Secs. 105 & 107, T.P. Act. A lease is a contract between the lessor and the lessee for the possession and use and occupation of the property or the premises on one side and compensated by rent or other consideration on the other. A mere demand of rent is not enough to create the relationship of landlord and tenant which is a matter of contract asserted by both parties. When the agreement vests in the lessee a right of possession for a certain time it operates as a conveyance or transfer and is a lease. Section 105 T.P. Act defines a lease as a partial transfer namely a transfer of a right of enjoyment for a certain time. An agreement to lease is not a lease because the lease is not merely the contract but is a transfer of an interest in the property and creates a right in rem. The commencement of a lease must be certain in the first instance or capable of being ascertain with certainty afterwards so that both the time when it begins and the time when it ends is fixed. As per Sec. 110, T.P. Act if commencement is not made certain the lease begins from the day of execution. A mere general letting i.e., a lease which is silent as to duration of term, would be void as a lease, though it would create a tenancy at will convertible by payment of rent into a tenancy from year to year or month to month. A lease from month to month is a lease for uncertain duration which does not purport to be for a definite period or the interest of the tenant does not terminate at the end of the period because a tenant has an interest for one month certain with growing interest during every month thereafter springing out of the original contract and as parcel of it, so long as both the parties prefer. Section 107 provides the mode in which lease may be made. If the lease from year to year, or the lease for a term exceeding one year or the lease reserving yearly rent or the permanent lease can be made only by a registered instrument, while other leases i.e. generally from month to month or for a term of a year or less than a year may be made either by registered instrument or by oral agreement accompanied by delivery of possession. Sec. 107 does not apply to an agreement to lease.
9. The rent note is an agreement to lease which falls under wider definition of lease under the Registration Act. The rent note or agreement to lease may be in counter-part signed by both the parties or it may be in correspondence or in acts or conduct. If there is no present demise the agreement may be effected by an unregistered instrument or even orally. If there is present demise, the rent note operates as a transfer by way of lease and if the term does not exceed one year, registration is not necessary, but if the term exceeds one year, registration is necessary not under Sec. 107 T.P. Act but under the Registration Act. For some time, there were conflicting decisions on the point whether a writing is a rent note or a lease, but the conflicting situation is now set at rest by the amendment of Sec. 107 which requires a lease to be signed by both the lessor and lessee for it contains covenants by both, but the rent note can be signed by either of the two. An instrument signed by either the lessor or lessee alone would therefore operate as an agreement to lease or a rent note. A rent note signed by the lessee alone is not a lease but would be a lease under Registration Act and the question of its registration has to be decided under that Act.
10. As per the law made clear in above referred case-laws, pertaining to Sec. 35 of the Indian Stamp Act, the document if found not stamped or insufficiently stamped can be admitted in evidence on payment of the stamp duty and penalty and so the court has to grant an opportunity to the party producing it for payment of stamp duty and penalty before necessary decision about its admission or impoundment is taken. Such opportunity, if not granted by the lower court or for some good & sufficient cause the opportunity could not be availed of can even be granted in appeal also so as to impart justice. Whether appellant gains a ground to take advantage of such law, the questions whether the document (Ex.129/1) is in law admissible in evidence levying stamp duty and penalty; if yes what should be the stamp duty are required to be dealt with. To enable the questions to be considered it is first necessary to ascertain whether the document is the lease-deed or the rent-note or other than lease-deed and rent note in view of the law stated above. It should be noted that the document is admitted in evidence marking as Ex. 132 for limited purpose viz., to read the signature of Dr. Kelly only as the factum of contents and truth of the contents are not proved. The cardinal principle of law is that the judgment or determination of the issue must be based upon the facts and documents duly proved and brought on record legally. So far as document is concerned, its execution and contents must be proved. If the truth of the contents is in dispute, the same is also required to be proved. If the execution is proved and the contents are not proved,the document cannot be made the foundation of judgment or decision. The document (Ex.129/1) is no doubt brought on record at Ex.132 but the contents thereof are not proved. Consequently the contents being not the evidence on record cannot be taken into account. When that is so it is not possible to ascertain whether contract for possession, use and occupation and enjoyment for certain time for consideration qua the suit premises was entered into, whether duration was certain, whether tenancy was monthly, yearly or otherwise, and whether registration is necessary ! To put it differently for want of contents being there on record as evidence, it cannot be ascertained whether the document contains all the above stated ingredients and requirements of lease & lease-deed and is in conformity with Secs. 105 & 107 of Transfer of Property Act; or of the rent note or neither of the two. But apart from such facts with certainty it can be said that the document is not the lease-deed, because it is signed by Dr. Kelly alone and not by both, the appellant and Dr. Kelly. However it cannot with necessary corollary be said that it is a rent note. It may be other wise also. In view of such circumstance the nature of the document cannot be decided and consequently the stamp duty & penalty. Further above discussed facts vide paras 2 & 5 show that Dr. Kelly and the appellant have been unjustly & subtely battling raising one or the another issue or initiating different proceedings/actions. Those facts certainly discredit the genuineness of the writing, and their bonafides too. There is therefore a reason to agree with the submission advanced on behalf of respondent that the writing is bogus. In view of the matter, it has been urged on behalf of the appellant to remand the matter so that necessary evidence can be led, the document can be brought on record and necessary stamp duty and penalty can be determined and paid before lower court. It may be stated that before the lower court the appellant did not for no good and sufficient cause, avail of the opportunity to prove it. It is now not open to him to urge for condonation of his unjust omission. To do so would amount to my not acting as the Judge, but as the supporting agent of the party namely appellant who is out to frustrate the action any how, and grant undue chance to fill up the lacuna. Further, it may be remembered that no useful purpose will be served because for the reasons stated hereinabove the writing is found bogus and unreliable. It would hence be unjust to remand the matter.
11. Four zerox copies of the rent receipts (Ex. 102/1 to 102/4) are not admitted in evidence as secondary evidence. It is hence contended that the original receipts were lost and so the lower court ought to have admitted the same in evidence as secondary evidence and submitted to admit the same at this stage in appeal. It seems the lower court found that the case about the loss was not made out, and otherwise also the case about the loss of original receipts was incredible. To deal with the contention, relevant provisions of the Evidence Act must be borne in mind.
12. As per Sec. 61 of the Indian Evidence Act, the contents of the document may be proved either by primary evidence or by secondary evidence. The rule is understood to mean that there is no other method allowed by law for proving the contents of the document. One can know perusing Sec. 62 of the Evidence Act what the primary evidence is ? Sec. 63 of the Evidence Act signifies the meaning of secondary evidence. Sec. 65 provides in which cases secondary evidence relating to document may be given. As the case of loss of original rent receipt is alleged so as to adduce secondary evidence out of several cases enumerated in Sec. 65, I will confine to Clause (c) thereof being relevant which provides that when the original document has been destroyed or lost, or when the party cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, secondary evidence may be given. What can be spelt out perusing the aforesaid provision is that secondary evidence is not to be admitted mechanically or as a matter of course, but only when the court comes to the conclusion after being satisfied that the document has been lost or destroyed, it has to allow the party concerned to lead secondary evidence. But the existence and execution of the document must of course be proved first. However it should be noted that secondary evidence cannot be permitted or accepted without sufficient reason being shown for non-production of the original document. In order to show sufficient reason,the concerned party has to lead necessary evidence and testify that he made a diligent search for the original and exhausted all the sources and means available for its production. Whether or not, evidence to establish sufficient proof of search for or loss of an original document to lay a ground for the admission of secondary evidence has been given is a point more properly to be decided by the trial court as the same is depending very much on its discretion. The conclusion reached by the trial court should not be overruled except in a clear case of miscarriage. Where the execution, loss or destruction has been satisfactorily proved, it is not necessary that the witness called to prove its contents should be the attesting witness, those who have seen and know the contents, can prove its contents, provided of course the court believes them. It may be stated that secondary evidence of an unstamped document which is lost or destroyed is under no circumstances admissible.
13. It is submitted that appellant in his evidence made it clear that the original receipts were lost after he got the file back from his advocates. He has however clarified that he did not see the file soon after he received the same from his advocates wherein the writing alleged to be the lease deed (Ex. 129/1)was certainly there. He could notice long after he received the file back from his advocates that the original receipts were not there in the file. His such explanation is not appealing. It appears that to get the xerox copy of rent receipt admitted in evidence, the case of the loss of the receipts is engineered. It may be noted that those four receipts are dated 4-1-1991, 4-11-1994, 4-40-1994 and 4-1-1990. About other receipts prior to 1990, it is made clear in the evidence that they were lying at Mithapur. If those original receipts were at Mithapur certainly the appellant could have produced the same later on before the court when aforesaid four receipts were not possible to be tendered in evidence as secondary evidence. When original other receipts right from 1986 are not produced the existence and issuance of the originals of these four receipts are far from truth, and the court is entitled to infer everything against the appellant. Regarding the loss of the four original receipts, the appellant wanted to examine his advocates, but later on he without any reason changed his mind and dropped to examine either of the two advocates. Shailaben one of the daughters of the appellant is examined at Ex. 151. Her evidence discredits the truth of the case about receipts advanced. According to her, rent was not paid every month but at a time as and when Dr. Kelly was in need. Once she paid Rs. 400/- but took the receipt for Rs. 90/- only. It is not explained why receipt for lesser amount was taken and not of Rs. 400/-. The lower court in view of such evidence rightly refused to admit, the copies of the receipts as the secondary evidence, in evidence and exhibit the same. No other evidence is led to show that appellant made a diligent search for the original and exhausted all the sources and means available to find out the same for production but failed and convince the court that the case of the loss of four receipts (Ex. 102/1 to 102/4) is a hard reality. In the absence of any evidence, except the aforesaid bare statement not appealing to reason in view of the above stated facts revealing evil design, the conclusion reached by the Executing Court cannot be upset. Further the contents thereof are not proved.The appellant in his deposition (Ex.131) has made it clear that in his presence and at his instance the receipts were written by his daughter Beenaben, but he has not shrewedly testified about the truthfulness of the contents thereof though other side has disputed the same. Beenaben for the reasons best known to him is not examined to prove the contents. Shailaben, another daughter of the appellant examined at Ex. 151 refers the receipts produced at Ex. 146/2 and admitted in evidence as Ex. 153 & 154. She has not referred aforesaid four receipts in question. The contents of the receipts and truth of the same are therefore not proved. Simply to prove execution namely signature of the executant is not sufficient. In order to bring the contents of the documents on record, evidence to prove the contents has to be led which is absent here. The lower court therefore rightly concluded that the contents were not proved. Each of the four receipt is issued against the payment of Rs. 90/- the sum of the so-called rent. Let me again say that the receipts are dt. 4-1-91, 4-11-94, 4-10-94 & 4-1-90. In those days stamp of 20 paise was required to be affixed on the receipt of Rs. 20/- and more. Neither of the zerox copies of the receipts shows that the original receipts were stamped because revenue stamp's impression or image is not unfolded, evolved or projected on the zerox copies, the square space for the stamp in zerox copies and other portions are clearly appearing blank. In view of such facts, the lower court, not convinced about the genuineness and loss of the original receipts as well as truth of the tenancy was absolutely right in not permitting to lead secondary evidence. I also see no reason to interfere with the discretion exercised because the case of the issuance of receipt, receipt being duly stamped and loss of the original receipts seems to be tricky, and further the case to lead secondary evidence is not made out. In view of the discussion in this regard there is also no need to remand the matter and give the chance to the party to bring these documents on record because in that case also it would be a futile exercise.
14. One receipt (marked 146/2) is admitted in evidence at Exh. 153 & 154 because Shailaben the another daughter of the appellant while deposing before the court at Exh. 151 has stated that Dr. Kelly issued the receipt under his signature, but who wrote the same was not known to her as the receipt was not written in her presence, and therefore initially it seems the signature portion alone was admitted in evidence as Ex. 153, but when in the cross-examination the learned advocate representing the respondent took that carbon copy of the receipt (Ex.153) in his hand, and it seems he asked the question; was it not the copy and not the original receipt to which the witness replied that it was not the original but carbon copy. The learned Judge was therefore of the view that when taking the receipt in the hand the learned advocate put up the question and used the receipt while cross-examining the witness, it amounted to "referring the document". He therefore admitted the contents of the receipts in evidence as Ex.
154. Before I proceed,I think it necessary to have a little divagation and state what is the correct way to mark the document as exhibit when the execution and contents are proved in parts. When document is again exhibitted as a whole after being initially admitted and exhibitted for limited purpose namely execution, the same is not again required to be marked as exhibit, instead that a note in deposition and document itself be made to the effect that the document marked as exhibit so & so will now be read as a whole. The lower Court ought not to have again marked the receipt as Ex. 154. I will now come back to the point,namely referring the document. Mr. Sanjanwala, learned counsel has therefore contended that on the same reasoning, those four receipts (mark 102/1 to 102/4)when referred to in the cross-examination of the appellant, ought to have been admitted. The omission of the lower court may be made good by this court admitting the same in evidence. The court would then be able to consider the same clearly establishing the case of tenancy. When the document can be said to have been "referred to and used while cross examining the other side or his witnesses for the purpose of admitting the same in evidence and exhibiting" is the crucial and important question often arising before the trial courts, has thus been raised, on which both have with vehemence submitted.
15. The documents are to be admitted in evidence and marked as exhibit when proved in accordance with law. In other words, documents upon which reliance is placed by the party must be brought on record legally. Mere making the document as exhibit is not enough. Necessary provisions pertaining to documentary evidence are made vide Secs. 61 to 73 in Chapter V of the Indian Evidence Act 1872. About the proof of the documents Sec. 61 r.w. Sec. 45, 47 & 73; 64, 67 cannot be lost the sight of the Court. What can be decuded from conjoint perusal of such provisions is that the document can be proved in the manner provided by aforesaid sections or by internal proof afforded by its own contents. It must well be remembered that not only the execution of the document but also the contents thereof are required to be proved for execution even if proved is not the proof of the contents of the document. When the truth of the facts or contents stated in the document is in issue, the same are required to be proved by admissible evidence i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue for mere proof of execution and hand writing would show that particular contents are there but not the truth thereof. It may however be noted that mode of formal proof being a question of procedure may be waived by the party against whom the document is sought to be proved by giving consent as the `consent' means opposite party waives his right to have the document proved by formal proof, but in that case also it should be remembered that by consent although the contents are proved, the truth thereof cannot be said to have been proved or admitted if the truth of the facts stated in the document is in issue. One cannot miss to note that even if document is accordingly proved, the same cannot be admitted if the same is otherwise inadmissible owing to or forbidden by applicable provisions of other Acts or Laws. There is no provision in the Evidence Act which permits to admit the document if cursorily referred to by the other side while cross examining the witness or his opponent. In view of abovestated law, what becomes clear is that "referring the document in the cross examination" for getting the same admitted in evidence means putting such questions (1) touching or referring the contents and execution of the document amounting to providing the proof of the document, or (2) giving consent to admit the document in evidence; or (3) causing the court to reasonably assume that the party while cross examining places reliance on the document and/or suggests or proposes that the document at his instance be admitted in evidence and marked as exhibit. To elucidate the third mode, it may be stated that if by putting the questions the party cross examining touches the trace or the gist or pith and substance of the document so as to go to the root of the issue and interpret the contents or necessitate the court to look into the same for meritorious consideration of the rival cases would indicate that the party relies and/or at his instance suggests or seeks or proposes to admit the document in evidence, which tantamounts to tacitly waiving the proof and giving consent to admit and exhibit. The contention cannot legally as well as logically be accepted. Every document has to be admitted in evidence when proved in accordance with law. Before I proceed, let me say how the learned Judge below has erred in admitting the receipt at Ex. 154. It seems about two or three questions (which can be spelt out on the basis of aforesaid answers recorded) are asked to Shailaben so as to know whether she was having original receipts, and suggest concoction, which are not in conformity with the requirements of law. Nothing further has been asked touching the root of the issue or pith and substance thereof or the contents necessitating the court to look into the receipts for just adjudication i.e. meritorious consideration, tantamounting to giving the consent to admission thereof in evidence. It also cannot be spelt out that the other side placed reliance and suggested to exhibit at his instance. The questions supplying the proof and execution of the receipts are also not asked. When that is so, it must be held that the receipts are not referred to as required by law. Further, the receipt (Ex.153 i.e. 154) is unstamped. In view of the matter it is clear that the learned Judge below did not admit the receipt in evidence legally and he on the point erred. In short it should be stated that the admission of the receipt as Ex. 154 is not in conformity with above stated law. On the basis of the act done contrary to law, likewise act contrary to law being impermissible in law cannot even on the ground of equal treatment be done. The contention that when the receipt at Ex. 154 is admitted by the lower court, the receipts (Ex.102/1 to 102/4) may also be admitted in evidence cannot in any case be therefore accepted. The submission to admit the four receipts (zerox copies) can find favour only when the same are proved and found admissible in the eye of law. What is the evidence on record qua the receipts (Ex. 102/1 to 102/4) should be examined. As stated in para 13 hereinabove the appellant has in his deposition (Ex.131) simply stated that in his presence Beenaben his daughter wrote the receipts. He has then shredly remained silent about the contents & truth thereof. No question necessary to prove execution & contents are then asked to him. Beenaben alleged to have written the receipts is not examined to prove the receipts. The receipts are thus not proved and in the cross examination of the appellant, other side has not referred the receipts as per the law made clear hereinabove. Reading the cross examination of the appellant it cannot be said that questions providing proof of the receipts or giving consent to admit & exhibit or causing the court to reasonably assume that the other side was placing reliance and suggesting to admit at his instance are asked. Shailaben has not referred these receipts. The receipts are therefore not referred and proved as per the law stated hereinabove. Further, in view of the above discussed facts by way of secondary evidence also the receipts cannot be admitted in evidence. With the result, the receipts cannot be admitted in evidence as urged before me.
16. Thinking that he was losing the game, by way of desperate effort in the legal battle, it has been contended on behalf of the appellant that the receipt (Ex. 153 i.e. 154) was sufficient proof on record establishing the case of tenancy alleged. The contention is not worthy of being accepted. Neither of its contents is legible. The date, name of the tenant, amount of rent, period, description of the premises etc., are not readable at all, virtually it can be said to be a blank receipt. The signature of Dr. Kelly does not appear to be unimpeachable when compared with his other admitted signatures on record. It is, therefore, difficult to discern what the said receipt is for ? But apart from such discrediting aspect thereof, the same is otherwise also not helpful to the appellant. It may be mentioned that the Supreme Court has in the case of Saif Tarajee Khimchand vs. Yelamarti Satyam - AIR 1971 S.C. 1865 has made it clear that mere marking of the document as an exhibit does not dispense with its proof. The contents in that case cannot be said to have been proved. A conjoint reading of Sec. 61 & 64 of the Evidence Act makes it clear that unless otherwise provided the contents of the document over and above execution thereof are required to be proved. Unless the document is proved as per law, it loses its evidentiary value and when contents are not proved the same cannot be read in evidence. Shailaben is examined to prove the receipt, but except the signature she could prove nothing further. She does not know who is the scribe of the receipt because the same was not written in her presence. In her presence Dr. Kelly signed the receipt. She does not say anything about the contents. In her cross-examination when learned advocate for the respondent, as observed above referred the receipt, the learned Judge below as discussed above erroneously admitted the receipts i.e. contents as Ex. 154. In the cross examination also nothing has been asked or stated to prove the contents, and further as stated in para 14 hereinabove, no question necessary to exhibit the receipt while referring the same in the cross-examination is asked. No one has also testified about the contents. The contents of the receipt are, therefore, not proved at all. The receipt is simply marked as Ex. 154, but thereby proof of the contents cannot be said to have been dispensed with. Merely execution is proved, but when contents are not proved, the receipt (Ex. 154) loses its evidentiary value. The same has to be ignored. When that is so, the contention gains no ground to stand upon.
17. Faced with such situation, on behalf of the appellant assailing the impugned order it has been contended that the order in question is bad and illegal being not in consonance with Rule 104, Order XXI, C.P. Code. The suit filed by the appellant is pending before the Small Causes Court wherein interim injunction has been granted. In view of Rule 104, the lower Court i.e. Executing Court therefore ought not to have passed the impugned order removing the obstruction and issuing possession warrant. The Executing Court ought to have waited till the Small Causes Court-Ahmedabad having exclusive jurisdiction under Sec. 28 of the Bombay Rents, Hotel & Lodging Houses Rates (Control) Act, 1947, disposed of the suit hearing the parties on merits. Against such submission, Mr. Shah the learned advocate representing the respondent has contended that the suit which is at present pending before the Small Causes Court was not pending when the execution petition was filed before the lower court. The execution petition before the lower court was filed on 6th July 1994, while the suit was filed on 17th December 1994. On the day when the execution petition was filed the suit before the Small Cause Court was not pending, it was not incumbent upon the Executing Court to wait till the disposal of the suit. The Executing Court rightly determined the questions relating to the right or interest in the suit premises arising between the parties. Further, in view of the decision of this Court rendered in the case of Chandravati Co-Op. Housing Society Ltd., Maninagar v. Bhairavnath Education & Cultural Society Trust & Ors. 34(1) [1993 (1)] G.L.R.116, the Executing Court has no jurisdiction whatsoever to stay the execution even invoking Section 10 of Civil Procedure Code because doing so would tentamount to frustrating the Legislative intent and rendering the provisions of Rule 101 meaningless and ineffective.
18. It may be noted that Civil Procedure Code came to be amended in 1976 and amended Code came into force from 1-2-1977. With a view to have finality in the matter, check several innings of the litigation, and to see that the decree holder gets the fruits of the decree at the earliest, necessary amendments in Order XXI Civil Procedure Code are also made; the relevant provisions are shortly stated hereinabove in para 3. On perusal of Rules 97 to 103 of Order XXI the main features that can be deduced is that the question relating to right, title or interest in the property arising between the parties to a proceeding under Rule 97 or 99 is to be determined in execution proceedings itself and is now not left to be decided by way of a separate suit. The Rule 98 has been amplified to cover cases of resistance by a person acting under any instigation from the judgment-debtor. The jurisdiction is now vested in the Executing Court to adjudicate all the questions relating to right, title or interest in the property vide Rule 101 notwithstanding anything to the contrary in any other law for the time being in force so that delay in disposal of the matter can be curbed. Thus the Executing Court is clothed with jurisdiction to decide all such questions finally and a separate suit is now barred provided the suit is filed after the commencement of the proceeding thereof which can clearly be spelt out from Rule 104. If the suit is filed prior to the commencement of the proceeding in which the order is made, it will always be subject to the result of that suit. If the suit is filed earlier to the proceeding in which the order is passed by the Executing Court, the same in view of the jurisdiction vested under Rule 104 would not be final, but would be subject to the result of the suit filed before the competent court.
19. It was in view of both the Rules namely 101 and 104, it has been submitted on behalf of the applicant that the suit now pending before the Small Cause Court came to be filed before the commencement of the proceeding in which the impugned order has been made and therefore whatever order is passed is subject to the decision of the suit. The learned advocates representing the parties were running counter qua the meaning of the word "proceeding" used in Rule 104 Order XXI Civil Procedure Code. According to the appellant, the word "proceeding" connotes different steps or stages in the petition or application and not the petition or application itself, while according to the respondent the word "proceeding" means the execution petition itself and not different stages in the execution petition.
20. The word "proceeding" is not defined in the Code of Civil Procedure. It may be stated that the word "proceeding" is not a technical expression with a definite meaning but comprehensive term and in short it generally denotes wider meaning than the "case", i.e. petition. It means doing a legal action or process or any act or forward step taken in an action by the authority of a court of law for concluding judicial business or litigation in connection with the further progress of the case. It can be given narrow or wider import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language of the enactment in which it appears. So the meaning of the word `proceeding' is generally governed by the Statute itself. It would, therefore, be better to peruse Rule 104 with meticulous care and finicky details. Rule 104 runs as under;
"104. Order under rule 101 or rule 103 to be subject to the result of pending suit.__Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of property."
It may be mentioned that after the Execution Petition is filed,different applications at different stages, in view of several provisions in O. XXI, C.P. Code, may be filed by either of the parties or a third party for seeking the order qua different issues or claims i.e. right, title or interest, and the Executing Court will have to pass appropriate order for further progress in the Execution Petition. Rule 104 contemplates the order under Rule 101 or Rule 103. Rule 101 provides that the Executing Court shall determine all questions including the question relating to right, title and interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 and such questions are not to be determined by a separate suit, while Rule 103 contemplates the application under Rule 98 or Rule 100 and order made thereon. Hence application regarding resistance or obstruction to possession of immovable property when filed has to be disposed of passing necessary order under Rule 98 keeping the jurisdiction vested with under Rule 101 in mind. Likewise the application under Rule 99 complaining of dispossession is filed has to be disposed of passing necessary order under Rule 100 keeping the jurisdiction vested with under Rule 101. Rule 104 therefore envisages applications under Rules 97 & 99 and orders thereof passed under Rules 98 & 100 respectively, i.e., different stages in the petition and not the main Execution Petition. The words "on the date of commencement of the proceedings in which such order is made" appearing in Rule 104 also without any ambiguity connote the applications under Rules 97 & 99 and orders passed under Rules 101 & 103. When Rules 97, 99, 101 & 103 are particularly referred to, what can be spelt out without any doubt is that Rule 104 clearly indicates that the meaning of the word "proceeding" used therein is not the Execution Petition but any act done or forward step taken in an action by the court for further progress in the matter for concluding judicial business. In the case on hand the application (Ex. 53) was filed under Rule 97 and impugned order thereon came to be passed under Rule 98 envisaged by Rule 103. In view of such meaning that can be gathered from the provision itself, the date of the application under Rule 97 would be the date of the commencement of the proceeding, and not the date on which the execution petition came to be filed. In the case on hand, the application (Ex. 53) under Rule 97 was filed on 14th February 1995 while the suit before Small Causes Court has been filed on 17th December 1994. It therefore follows that the suit has been filed prior to the application under Rule 97 came to be filed, making it crystal clear that on the commencement of the application under Rule 97 the suit before the Small Causes Court having jurisdiction under the Bombay Rent Act was pending, and therefore whatever order has been passed by the Executing Court and challenged in appeal is subject to the decision in the suit, at present pending before the Small Causes Court.
21. So far as second part of the contention is concerned, namely the Executing Court ought to have stayed the execution and waited till the Small Causes Court disposed of the suit, there is no justification to agree with the same. A similar question arose before this Court in Chandravati Co-op Housing Society's case (Supra) wherein it is laid down that the proceedings under Order 21 Rule 97 cannot be stayed even invoking Section 10 of Civil Procedure Code. In view of this decision, the Executing Court has rightly proceeded with the adjudication of the application (Exh.53) which was filed under Rule 97 of Order 21, Civil Procedure Code and passed the order. However it may be stated that in view of such law and facts discussed above, the suit at present pending before the Small Causes Court being earlier in time and pending on the date of commencement of the application (Ex. 53) under Order XXI Rule 97, C.P. Code, the lower Court ought to have while passing the impugned order of issuing the possession warrant made it clear that while executing the possession warrant symbolical possession of the suit premises be taken and given to the respondent subject to the final decision in the suit. Such order was also necessary beause the suit filed was pending on the day when the application under Order XXI Rule 97 came to be filed and in the suit interim relief granted was/is also in force, and the supremacy of the Small Causes Court qua jurisdiction in such cases not curtailed is required to be countenanced, esteemed and maintained.
22. In short, narrating the facts which I have stated hereinabove in para 2, the learned advocate representing the respondent has contended that Dr. Kelly insidiously got the suit filed with the evil design namely to elude, thwart, and frustrate the decree for specific performance passed, so as to retain the possession any how, and thereby pip and harry the respondent and gloat. When that suit with the evil design is passed, it may be treated to be "no suit" in the eye of law because the word "suit" appearing in Rule 104 contemplates a suit without evil design.
23. The meaning of word "suit" appearing in Rule 104 as canvassed cannot be accepted. The party, when permitted in law, has a right to institute the suit for redressal of his grievances even though it is not palatable, or is shocking to others, or actuated with spite or ill-will, unless expressly or by necessary implication the suit of particular nature is forbidden. There is nothing in the Rule 104 which qualifies the nature and type of the suit or expressly or impliedly,bars the suit actuated with certain design. The suit is certainly of civil nature and not barred by any provision of C.P. Code or other applicable laws. At the conclusion of hearing considering the materials on record,one can know whether the suit is false, frivolous and vexatious. If at last the suit is found false, or vexatious or actuated with oblique motive, the court will dismiss the same with costs and compensatory costs invoking Secs. 35 and 35-A of C.P. Code. In short in the absence of anything indicating and qualifying the meaning of the word "suit" in Rule 104, the contention cannot be sustained.
24. Pointing out Rule 97 Order XXI, C.P. Code, it has been contended on behalf of the appellant that, separate application with necessary particulars and pleadings complaining about resistance or obstruction is required to be made before the Court, while in the present case, initially the objections were filed, and subsequently those objections were converted into the application under Rule 97 which is not at all permissible or contemplated in law because the application over and above necessary pleadings, must contain the relief clause which is wanting here. The contention cannot be accepted. Of course there is no specific provision in C.P. Code for the conversion of Appeal into Revision or vice versa; or from objection filed into the application, or from one application into another, and therefore, for imparting justice fully and finally, or the circumstances of the case so demand, it is open to the court vested with inherent discretionary powers u/sec. 151 C.P. Code to convert a particular application as the application under particular provision, or revision application to an appeal or vice versa or objections filed to the particular application if not specifically prohibited by any provision of any law. Once conversion is made, what is converted will assume all characteristics of the converted form, viz., Revision would assume characeristics of appeal or vice versa & likewise in other cases. There is nothing in law prohibiting the court from converting the objections filed in the execution petition into the application under Rule 97 for the purpose of resisting the obstruction to the possession of immovable property. Of course while filing the objections the relief sought may not have been stated specifically which at the time of filing the real application is pleaded in specific words, but once the conversion is permitted, the pleadings are to be liberally construed and not with a view to find fault with the same as justice is the paramount consideration and the same is not to be thwarted or foiled. The necessary relief under the rules of construction/interpretation can well be assumed because in the objections also impliedly if not expressly the relief is pleaded, may be generally, and the duty of the court is to read the same with necessary implication when conversion is allowed. If required, necessary amendment can be permitted. In the objection initially prayer to reject the appellant's application (Exh. 49) is made, stating that obstruction raised by the appellant are not tenable. Such prayer indirectly conveys the real prayer which ordinarily one would expect or is required to be pleaded. On objections being converted into the application under Rule 97, the same assumed the characteristics of the application envisaged by Rule 97. The discretion exercised is quite just and proper. There is, therefore,no substance in the contention that the application (Ex.53) is not the application under Rule 97, or not consistent with rules of pleadings, and when relief clause being not in specific words, whatever order has been passed is contrary to law and not tenable at law. No other submission is advanced by either of the parties.
25. In view of the foregoing reasons, the learned Judge while issuing possessory warrant ought to have made it clear that when his order was subject to the result of the suit pending before the Small Causes Court and interim injunction granted was in force, symbolical possession while executing the possessory warrant should be taken and not vacant and physical,but when that is not done,it can now be done by this court; with the clarification that if the appellant succeeds in the suit at last, he will retain the possession so long as he is not evicted by due process of law, and the respondent will have to be satisfied with symbolical possession; but in case the respondent succeeds in the suit and the appellant fails, it would be open to the respondent to move the City Civil Court again either by preferring separate application, or if necessary reviving the present execution petition, for issuance of possession warrant so as to have vacant and physical possession of the suit premises.
26. At present the suit being H.R.P. No. 1770 of 1994 is pending before the Small Causes Court and till that suit is finally disposed of, the respondent will not be able to know whether he would be able to get the physical possession or will have to be satisfied with symbolical possession. The disposal of the suit because of the other old matters may take time and finality in the matter would be delayed for a period may be beyond imagination and patience of the parties. Early decision in the suit is therefore absolutely necessary and for that the court before which the suit is pending will have to be directed to hear the suit day after day giving top priority and dispose the same of within specified time. As per Rule 104, the decision of the Executing Court is in the present case being subject to the decision in the suit, the Small Causes Court shall decide the suit without being influenced by whatever has been discussed or observed hereinabove.
27. In the result, the appeal being devoid of merits is hereby rejected with costs, but with the modification in the order that for the present while executing the possessory warrant, the respondent shall be put into the symbolical possession of the suit premises and not physical possession thereof, but if the respondent succeeds in the suit, it will be open to him to move the Executing Court, i.e. City Civil Court for necessary order so as to have physical and vacant possession of the suit premises. The Small Causes Court at Ahmedabad is hereby directed to dispose of H.R.P. Suit No. 1770 of 1994 latest by 31st December 1997 giving top priority and hearing the same day after day, and report about the disposal having been made to this Court latest by 5th January, 1998.
28. The parties to appear before the Small Causes Court at Ahmedabad in the abovestated suit on 5th September 1997 so as to proceed with the same. Necessary writ be immediately sent to the Small Causes Court, Ahmedabad.
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