Dismissed

Akash Agarwal v. the Standard Chemical Co. Pvt. Ltd.

Allahabad HC29 Nov 2022SCCR/97/2022

Case brief

AI extract

What is this about?

The High Court dismissed a revision against the rejection of an objection in execution proceedings. The court held that the revisionist failed to raise jurisdictional objections at the first instance and admitted tenancy in applications seeking restoration and rent deposit, making those contentions estopped. Allegations of fraud were rejected due to lack of evidence.

What did the court decide?

The S.C.C. revision filed by Akash Agarwal against the order rejecting the objection in execution proceedings was dismissed.

Akash Agarwal Vs the Standard Chemical Co. Pvt… — Execution and Attachment | Allahabad HC (2022)

Reserved

In Chamber

Case :- S.C.C. REVISION No. - 97 of 2022 Revisionist :- Akash Agarwal Opposite Party :- The Standard Chemical Co. Pvt. Ltd. Counsel for Revisionist :- Shashank Tripathi Counsel for Opposite Party :- R.K. Mishra

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Shashank Tripathi, learned counsel for revisionist, Sri R.K. Mishra, learned counsel appearing for respondent-plaintiff and perused the record.

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This S.C.C. revision has been filed against the judgment and order dated 12.5.2022 passed by Additional District Judge, Court No.11, Kanpur Nagar in Misc. Civil Case No.350 of 2022, rejecting objection filed by revisionist under Section 47 read with Order 21 Rule 23(2) and Section 151 C.P.C. in Execution Case No.176 of 2019 (The Standard Chemical Company Private Limited Vs. Akash Agrawal) arising out of S.C.C. Suit No.94 of 2018.

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The brief facts of the case is that the respondent-plaintiff had filed a S.C.C. suit for eviction, possession and recovery of arrears of rent against the revisionist which was registered as S.C.C. Suit No.94 of 2018. As per plaint allegations, the respondent-plaintiff was owner and landlord of property bearing no.123/749, Fazal Ganj, Factory Area, Kanpur. The one Office Room within the Office Block, having a total plinth area of 225 square feet in the aforesaid house was let out on rent to the revisionist-defendant on month to month basis. It is pleaded that there was default in payment of monthly rent and notice was sent to the defendant-revisionist on 20.8.2018 which was duly served on 21.8.2018 for payment of arrears of rent and to vacate the premises in question, but in spite of service of notice neither arrears of rent was paid nor vacate the premises in question and as such the suit was filed for recovery of arrears of rent, damages and for eviction.

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The defendant in spite of service did not put in appearance before the court and the case was proceeded ex-parte against the defendant vide order dated 23.1.2019 and the suit was decreed exparte vide judgment and order dated 12.2.2019. The defendant was directed to vacate the tenancy portion within two months and hand over the possession to the plaintiff and also pay the arrears of rent from 1.8.2017 to 20.9.2018 amounting to Rs.54,623/- and also pay the damages at the rate of Rs.4,039/- per month from 21.9.2018 to 20.10.2018 and also pay the damages at the rate of Rs.4,039/- per month from the date of filing suit till delivery of possession.

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The defendant-revisionist had filed an application on 17.4.2019 under Order 9 Rule 13 C.P.C. along with Section 5 of Limitation Act for setting aside the ex-parte order dated 12.2.2019, which was registered as Misc. Case No.621/74 of 2019. The defendant-revisionist had also moved an application under Section 17 of the Provincial Small Causes Courts Act on 17.4.2019 seeking permission to the court to deposit the arrears of rent and prayer was made to allow the tender so that the arrears of rent be deposited. The application under Section 5 of Limitation Act was allowed by the court below vide order dated 5.10.2019 on payment of cost of Rs.1,000/-. The application under Section 17 of Provincial Small Causes Courts Act was also allowed by the court below vide order dated 11.11.2019. In spite of order dated 5.10.2019 by which the application under Section 5 of Limitation Act filed in support of application under Order 9 Rule 13 C.P.C. was allowed, the defendant-revisionist neither deposit the cost nor appeared before the court to press the application filed under Order 9 Rule 13 C.P.C. and as such the application was rejected by the court below vide order dated 12.10.2021. The defendant-revisionist has not challenged the order dated 12.2.2019 as well as the order dated 12.10.2021 to the higher Court and as such the orders attained finality.

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The plaintiff-respondent had filed execution case to execute the judgment and decree dated 12.2.2019 which was registered as Execution Case No.176 of 2019. During the pendency of execution case the revisionist-defendant had filed an objection under Section 47 read with Order 21 Rule 23(2) and Section 151 C.P.C. which was registered as Misc. Civil Case No.350 of 2022 and same was rejected by the court below vide order dated 12.5.2022 which is impugned in the present S.C.C. revision.

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It is submitted by learned counsel for the revisionist that learned court below had erred in rejecting the objection filed by revisionist in execution case, as the decree dated 12.2.2019 is not liable to be executed. It is further submitted that there was no relationship of landlord and tenant and as such the J.S.C.C. suit itself was not maintainable before the court below. It is further submitted that as per agreements dated 1.12.2016 and 12.1.2018 the relation between the parties as licensee and lesser. It is further submitted that since the valuation of suit is above Rs.25,000/-, the S.C.C. Court has got no jurisdiction to try the suit in view of Section 15 read with Article 4 of IInd Schedule of Provincial Small Causes Courts Act. It is further submitted that the suit was filed before the District Judge, Kanpur Nagar and notices were issued to the defendant on 22.10.2018 and subsequently the suit was transferred on 8.1.2019 to the court of Additional District Judge, Court No.11, Kanpur Nagar but no fresh notice was issued by the transferee court to the defendant and it is in violation of provisions of Rule 89A of General Rules Civil. It is further submitted that the dismissal of application filed under Order 9 Rule 13 C.P.C. has no concern with the execution proceedings of the court below and the court below had erred in rejecting the objection filed by the revisionist. It is further submitted that there was overwriting in the order dated 23.1.2019 by which the case was proceeded ex-parte and the decree was obtained by the plaintiff by playing fraud.

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Learned counsel appearing for the plaintiff-respondent has submitted that the defendant-revisionist had full knowledge about the pendency of suit filed by the plaintiff for eviction, as the defendant has put in appearance before the court below on 8.2.2019 and filed his Vakalatnama and had also moved an application for providing the copy of plaint which was rejected by the court below vide order dated 12.2.2019 as the application was not supported with any affidavit and there was no prayer for recalling of order dated 23.1.2019 by which the case was proceeded ex-parte against him. It is further submitted by learned counsel for the respondent that the revisionist being a tenant had avoided the proceedings and only to delay the disposal of suit was not appeared and when the case was heard ex-parte on 6.2.2019 and judgment was reserved, he put in appearance on 8.2.2019. It is further submitted that the revisionist had also moved an application for recalling of ex-parte judgment and order dated 12.2.2019 by filing application under Order 9 Rule 13 C.P.C. along with application for condonation of delay under Section 5 of Limitation Act and the delay was condoned by the court below vide order dated 5.10.2019 on payment of cost of Rs.1,000/-, the revisionist-defendant had not complied the order and cost was not deposited, which also shows that the defendant-tenant is not interested to contest the case on merit and only trying to delay the disposal of suit. It is further submitted that the defendant-revisionist had also moved an application under Section 17 of Provincial Small Causes Courts Act seeking permission to deposit the arrears of rent by admitting the tenancy but in spite of order dated 11.11.2019 by which the application under Section 17 was allowed and tender was passed by the court below, the arrears of rent had not been deposited by the defendant-revisionist. It is further submitted that tenancy was admitted by the revisionist-defendant in his application filed under Section 17 of Provincial Small Causes Courts Act and as such now it is not open to the revisionist to raise this

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objection in execution. It is further submitted that since the revisionist-defendant has put in appearance before the court below on 8.2.2019 by filing his Vakalatnama in transferee court and as such he has full knowledge about the transfer of suit and there is no requirement for fresh notice by the transferee court and this objection cannot be raised in execution proceedings and even otherwise the defendant-revisionist has not taken this plea in his application filed under Order 9 Rule 13 C.P.C. It is further submitted that law has been settled that the execution court cannot go beyond the decree and since the revisionist-defendant had not contested the suit in spite of knowledge before the court below and had also failed to press his application filed under Order 9 Rule 13 C.P.C., which was also dismissed in default in absence of revisionist-defendant. It is further submitted by learned counsel for the respondent that the revisionist has admitted the tenancy in his application under Order 9 Rule 13 C.P.C. and had also moved an application under Section 17 of Provincial Small Causes Courts Act for depositing the arrears of rent and as such in the execution proceedings, he cannot raise the objection in respect of relationship of landlord-tenant. Lastly it is submitted that there was no averments in the restoration application regarding jurisdiction of the Court as well as non-compliance of Rule 89-A of General Clauses Rules and as such it is not open to the defendantrevisionist to raise such type of objection in the execution case.

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Considered the rival submissions of learned counsel for the parties and perused the record.

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The submissions of learned counsel for the revisionist regarding pecuniary jurisdiction of court is misconceived. Record shows that the suit was filed before the District Judge, which was subsequently transferred to Additional District Judge, Court No.11 having jurisdiction of a court of Small Causes under the Provincial Small Cause Courts Act, 1887. Section 25 of Bengal, Agra and Assam Civil

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Court Act, 1987 (hereinafter referred to as 'Act, 1987') empowered the State Government by notification to confer upon any subordinate Judges and Munsifs with jurisdiction of Small Causes Court for the trial of suits and cognizance of such suits up to the value as fixed in the Act. Section 25 of the Act, 1987 is reproduced herein below:-

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“25. Power to invest Subordinate Judges and Munsifs with Small Cause Court Jurisdiction.—The State Government may, by notification in the Official Gazette, confer, within such local limits as it thinks fit, upon any Subordinate Judge or Munsif the jurisdiction of a Judge of a Court of Small Causes under the Provinicial Small Cause Courts Act, 1887, for the trial of suits, cognizable by such Courts, up to such value not exceeding five hundred rupees in the case of a Subordinate Judge or two hundred and fifty rupees in the case of a Munsif as it thinks fit and may withdraw any jurisdiction so conferred:

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Provided that the State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this section.”

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Section 25 of the Act, 1987 as applicable in Uttar Pradesh has been amended by U.P. Civil Laws Amendment Act, 1972 (hereinafter referred to as 'Act, 1972'). Section 5 of Act, 1972 is reproduced herein below:-

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“5. Amendment of Section 25 of Act XII of 1887.- Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, as amended in its application to Uttar Pradesh shall be re-numbered as sub-section (1) thereof, and-

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(i) in sub-section (1), as so re-numbered for the existing proviso, the following proviso shall be substituted, namely:

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“Provided that in relation to suits of the nature referred to in the proviso to sub-section (3) of Section 15 of the said Act the references in this sub-section to one thousand rupees and five hundred rupees shall be construed respectively as references to five thousand rupees and one thousand rupees.”;

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(ii) after sub-section (1) as so re-numbered, the following sub-section shall be inserted, namely:

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“(2) The State Government may by notification in the official Gazette, confer upon any District Judge or Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (respective of their value), by the lessor for the eviction of a lessee from a building after the determination of his lease, or for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease or of compensation for the

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use and occupation thereof after such determination of lease, and may withdraw any jurisdiction so conferred.

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Explanation.-- For the purposes of this sub-section, the expression 'building' has the same meaning as in Article (4) in the Second Schedule to the said Act.

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(3) The State Government may by notification in the official Gazette delegate to the High Court is powers under this section.”

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Section 25(2) of the Act, 1887 confer upon the District Judge or Additional District Judge, the jurisdiction of Judge of a court of Small Causes under the Provincial Small Cause Courts Act, 1887 for the trial of all suits irrespective of their value.

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Section 15 of Provincial Small Causes Courts Act, 1887 provides jurisdiction of courts of Small Causes. Section 15 of the Act, 1887 is as under:-

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“15. Cognizance of suits by Courts of Small Causes.— (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits expected from the cognizance of a Court of Small Causes.

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(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.

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(3) Subject as aforesaid, the [State Government] may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.^”

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U.P. Civil Laws (Amendment) Act, 2015 increased the limit of pecuniary jurisdiction of Small Causes Court upto Rs.1 Lac.

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In the present case since the valuation of suit is above Rs. Lac, the Additional District Judge, Court no.11 is having jurisdiction to decide the suit and there is no illegality.

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Record also shows that the revisionist/tenant had not raised any objection regarding the jurisdiction of court at the first instance at the earliest possible opportunity, as such it is not open to him to raise objection of jurisdiction in view of section 21 of C.P.C., which is quoted herein below:-

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“21. Objections to jurisdiction.--(1)] No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

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(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

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(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”

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The revisionist-tenant had not raised any objection in respect of pecuniary jurisdiction of the court in the application dated 8.2.2019 and in restoration application filed under Order 9 Rule 13 C.P.C. and raised this objection very first time in the present revision, which is not permissible under the law. 12. Record shows that S.C.C. suit was filed before the learned District Judge and notices were issued to the revisionist-tenant on 22.10.2018. The suit was transferred on 8.1.2019 to the Additional District Judge, Court No.11 and vide order dated 23.1.2019 the suit was proceeded ex-parte accepting the service upon the revisionisttenant. The revisionist-tenant has put in appearance before the transferee court on 8.2.2019 and filed his Vakalatnama and also moved an application to provide copy of plaint. The application was not supported with any affidavit and there was no prayer for recalling of order dated 23.1.2019 by which the suit was proceeded ex-parte. The suit was decreed ex-parte vide judgment and order dated 12.2.2019. A restoration application under Order 9 Rule 13 along with delay condonation application has been filed on 17.4.2019. The revisionist-tenant had also moved an application under Section 17 of the Provincial Small Cause Courts Act, seeking permission to deposit the arrears of rent by admitting the tenancy. The delay condonation

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application filed in support of restoration application was allowed vide order dated 5.10.2019 on payment of cost of Rs.1,000/-. The application filed under Section 17 of the Provincial Small Cause Courts Act was also allowed vide order dated 11.11.2019. The revisionist-tenant had not complied the order dated 5.10.2019 and the cost was not deposited and the restoration application was also dismissed in default on 12.10.2021 for non-appearance of revisionisttenant. The revisionist-tenant had not challenged the order dated 12.2.2019, by which the suit was decreed ex-parte as well as the order dated 12.10.2021 by which the restoration application was dismissed in default, to the higher court and as such the orders attained finality. 13. The objection under Section 47 read with Order 21 Rule 23(2) and Section 151 C.P.C. has been filed by the revisionist-tenant in execution case on various grounds, which was rejected on 12.5.2022. Record shows that the revisionist-tenant had full knowledge about the pendency of S.C.C. suit but he deliberately avoided the proceedings only to delay the disposal of suit. It is pleaded by the revisionisttenant that the suit was transferred to Additional District Judge, Court No.11 on 8.1.2019 but no fresh notice was issued to the revisionisttenant which is in violation of Rule 89A of General Rule Civil and there was over-writing in the order dated 23.1.2019 by which the suit was proceeded ex-parte. Record shows that the revisionist-tenant had full knowledge about the transfer of the case as he had put in appearance before the transferre court/Additional District Judge, Court No.11 on 8.2.2019 by filing his Vakalatnama but he had not moved any application for recalling of order dated 23.1.2019. The restoration application has been filed by the revisionist along with delay condonation application but in spite of order dated 5.10.2019 by which the delay was condoned on payment of cost, the cost was not deposited and the restoration application was also not contested and it was dismissed for non-appearance on 12.10.2021.

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From perusal of paras 3 and 4 of affidavit filed in support of restoration application, it is evident that the revisionist had full knowledge about the transfer of case. Paragraph nos.3 and 4 are reproduced herein below:-

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“3- यह किकि कशपथकित ቦቔኋ कने कउपरो्ሹ कमुकिदमे कमे क्ቦ ी ककिे०किे० किम्ቦ ቦ एडवोकिेट क ो कअपन ቦ कअिधिव्ሹ ቦ किनयुि्ሹ किकिय ቦ कथ ቦ किजिन्होंने कशपथकित ቦቔኋ कसे वकि ቦलत कन ቦम ቦ क्ቚ ቦथቔኋन ቦ कप्ቔ कआदिद क ቦगजि ቦतों कमे कहस्त ቦ्ቌर क र ቦ किलये कथे तथ ቦ कउनकिे क्ቛ ቦर ቦ ह ቦ कगय ቦ कथ ቦ कजिब कउपरो्ሹ कमुकिदमे कमे कआदवश्यकित ቦ होगी कआदपकिो कबत ቦ किदय ቦ कजि ቦयेग ቦ।

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4- यह किकि कशपथकित ቦቔኋ कने कअपने कउपरो्ሹ कअिधिव्ሹ ቦ कसे क ई कब ቦर कसम्पकिቔኋ िकिय ቦ किजिन्होंने क ह ቦ कपरेश ቦन कमत कहो कजिब कभी कआदपकिी क ोई कआदवश्यकित ቦ होगी कआदपकिो कन्य ቦय ቦलय कमे कबुल ቦ कलूँग ቦ किजिससे कशपथकित ቦቔኋ किननኌश्चिन्त कहो गय ቦ।"

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The submission of learned counsel for the revisionist is that by playing fraud upon the Court the case was proceeded ex-parte and there was over-writing in the order dated 23.1.2019 but there was no evidence or material that any fraud was committed. The Hon'ble Apex Court in the case of H.S. Goutham Vs. Ramamurthy and another reported in 2021 0 Supreme (SC) 79, has held that when the fraud is alleged the same is required to be pleaded and established by leading evidence and mere allegation that there was a fraud is not sufficient. Relevant para 10 is quoted herein below:-

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“10. Now, so far as the procedure adopted by the High Court calling for the report from the learned Principal City Civil Judge on whether the decree was obtained by fraud or not is concerned, at the outset, it is required to be noted that at the time when the High Court passed such an order, there was already an order passed by the learned Executing Court dated 03.03.1998 overruling the objections raised by the judgment debtors that the decree was obtained by fraud and misrepresentation. As observed by the learned Executing Court in the order dated 03.03.1998, the judgment debtors except the averments that the decree was obtained by fraud, mis-representation, neither any further submissions were made on that nor even the judgment debtors led any evidence in support of the same. Therefore, as such, learned Executing Court was justified in overruling the objection that the decree was obtained by fraud, mis-representation etc. As per the settled

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principle of law, when the fraud is alleged the same is required to be pleaded and established by leading evidence. Mere allegation that there was a fraud is not sufficient. Therefore, subsequent order passed by the High Court calling for the report from the learned Principal City Civil Judge on the question whether the decree was obtained by fraud or not, can be said to be giving an opportunity to the judgment debtors to fill in the lacuna. Therefore, the course adopted by the High Court calling for the report from the learned Principal City Civil Judge cannot be approved.”

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In the present case the revisionist-tenant had not led any evidence in respect of fraud alleged to be committed and there was no material in this regard.

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So far as the factum of tenancy is concerned, the revisionisttenant had filed application under Order 9 Rule 13 C.P.C. as a tenant, which is evident from the restoration application (Annexure C.A.-1 to the counter affidavit) and had also moved an application under Section 17 of the Provincial Small Cause Courts Act for depositing the arrears of rent, which is admission on the part of the revisionisttenant in respect of tenancy, as such it is not open to the tenant to raise this objection in the execution.

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The revisionist-tenant had not challenged the ex-parte decree dated 12.2.2019 as well as the order dated 12.10.2021 by which application under Order 9 Rule 13 C.P.C. was dismissed and as such the orders attained finality and it is not open to the revisionist-tenant to dispute the tenancy in the execution proceedings. It is well settled law that executing court cannot go beyond the decree. The Hon'ble Apex Court in the case of Topanmal Chhotamal Vs. M/s Kundomal Gangaram and others reported in 1959 0 Supreme (SC) 153, has held that the court executing a decree cannot go behind the decree, it must take the decree as it stands, for the decree is binding a conclusive between the parties to the suit. The relevant para 5 is quoted herein below:-

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“5. The question is whether in such circumstances an executing Court can go behind the decree & give the relief to the appellant which was expressly denied to him in the suit. The question so posed can only

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have one answer. It is a well-settled principle that a Court executing a decree cannot go behind the decree: it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit. If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded persona] liability, the executing Court would be imposing the same. This cannot obviously be done.”

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The Court below after considering the entire evidence and materials which are available on record had passed a detailed order rejecting the objection filed by revisionist-tenant under Section 47 read with Order 21 Rule 23(2) and Section 151 C.P.C. and there is no illegality in any manner. No ground for interference is made out. The S.C.C. revision is devoid of merits and is accordingly dismissed.

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No order as to cost.

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Order Date :- 29.11.2022

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Kpy

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Digitally signed by KAVLESHWAR PRASAD YADAV Date: 2022.12.06 18:45:23 IST Reason: Location: High Court of Judicature at Allahabad

Akash Agarwal v. the Standard Chemical Co. Pvt. Ltd.

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Akash Agarwal v. the Standard Chemical Co. Pvt. Ltd.

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