SUPREME COURT OF INDIA
Sumitra Devi Anand (D) By Lrs.
Vs.
Shanti Devi (D) By Lrs
C.A.No.8088 of 2004
(R.C.Lahoti CJI. and G. P. Mathur JJ.)
15.12.2004
G. P. Mathur, J.
1. Leave granted.
2. This appeal, by special leave, has been preferred against the order dated
26.3.2004 of the Delhi Court, by which the appeal filed by the appellants
against the order dated 22.11.2003 of the Additional District Judge, was dismissed
and the order refusing to grant an injunction in their favour under Order XXXIX
Rules 1 and 2 CPC was affirmed.
3. The dispute relates to property bearing No. XVI/442, Sethi Building
(originally known as Hafiz Building), Faiz Road, Karol Bagh, New Delhi. After
partition of the country, Wazir Chand Anand (for short 'Anand') and B.S. Sethi
(for short 'Sethi') were tenants of the custodian in the said building.
“The property was put up for auction on 9.11.1955 and a sale certificate was
finally issued in favour of Sethi on 20.7.1961 certifying that he had given the
highest bid for Rs. 70, 250/- in a public auction and had been declared as
purchaser of the property in full. Thereafter, a letter dated 1.9.1961 was
issued by the custodian asking the tenants including Anand to attorn in favour
of the auction purchaser, namely, Sethi. Sethi filed eviction petition against
Anand on 10.2.1986 on the ground of his bona fide requirement for his
residence, in which notice was issued returnable on 20.3.1986. However, much
before the said date, Anand appeared before the Rent Controller and filed an
application for leave to defend in the eviction petition. He also filed an
application for recording a compromise.
The Rent Controller recorded statement of the parties and passed a consent
order for eviction of Anand and he was given time upto 1.3.1988 to vacate the
premises. An undertaking of Anand was also recorded to the same effect and the
case was disposed of.
3. Sethi and Anand were co-brothers as their wives were real sisters. Sethi was
an advocate of some standing in Delhi and he passed away in April, 1988. Anand
also passed away on 21.12.1999. The appellants are the legal representatives of
Anand, while the respondents are legal representatives of Sethi.
4. On 28.2.2000, when the period of limitation for executing the eviction
decree was about to expire, the respondents filed an execution petition against
the appellants. The appellants filed objections against the same taking various
pleas including the plea that the decree had been obtained by fraud but the
same was dismissed by the Additional Rent Controller on 18.3.2002 and the
appeal against the said order was also dismissed on 3.4.2002.
“The appellants then preferred a writ petition under Article 227 of the
Constitution before Delhi High Court. During the course of hearing, the parties
agreed that the petition be disposed of with liberty to the petitioners
(appellants) to file a suit for challenging the eviction decree on the ground
of fraud.
The writ petition was accordingly disposed of on 9.1.2002 and the operative
portion of the order reads as under:
"I am also of the view that since the petitioner has objected to the
execution of the decree on the ground of fraud, he may have a right to file a
suit to challenge the decree on such ground. Without, therefore, going into the
question as to whether the decree could be challenged on the ground of fraud
before the Executing Court itself, I dispose of this petition with liberty to
the petitioner to challenge the decree on the ground of fraud by filing a
regular civil suit. For a period of six weeks from today, the impugned order
shall not be executed."
5. The appellants then filed Suit No. 1833/02 in Delhi High Court for
declaration that the decree of eviction passed on 19.2.1986 in Eviction Case
No. 36 of 1986 by Shri R.K. Sharma, Additional Rent Controller, Delhi titled as
'Shri B. S. Sethi v. Shri Wazir Chand Anand' is a nullity having been obtained
by playing fraud upon the said Court and is not binding upon the plaintiffs and
further that they are co-owners of the property in dispute.
“They also sought a decree for permanent injunction restraining the defendants
from dispossessing them from the said property. In view of increase in the
pecuniary jurisdiction of the District Court, the suit was transferred and
registered as Suit No.138 of 2003 in the Court of the Additional District
Judge, Delhi. The plaintiffs also moved an application for injunction under
Order XXXIX Rules 1 and 2 CPC for restraining the defendants from dispossessing
them from the property in dispute.
The Additional District Judge dismissed the injunction application by his order
dated 22.11.2003 and the appeal preferred by the plaintiffs against the said
order was also dismissed by the High Court on 26.3.2004.”
6. We have heard Shri Rajiv Dutta, Senior Advocate for plaintiff- appellants
and Shri Mukul Rohtagi, Senior Advocate for the defendant- respondents. The
learned counsel for the appellants has submitted that when the property was put
up for auction on 9.11.1955, the highest bid made was that of Sethi and Anand,
as his associate, and an amount of Rs.4, 991.44 which was due to Anand as
compensation for assets left by him in Pakistan, was utilized to make up the
sale consideration and thus he was a co-owner of the property. Learned counsel
has further submitted that Anand had never appeared before the Rent Controller
as the notice was not served upon him nor he had filed any application for
recording a compromise. According to the appellants, Anand never appeared
before the Court and he neither filed any application for recording a
compromise nor gave any undertaking to vacate the premises by 1.3.1988. Sethi
had set up an impostor and by playing fraud upon the Court obtained an order of
eviction against Anand.
“Learned counsel has further submitted that Anand being a co-owner of the
property, there was no occasion for him to enter into a compromise whereunder
he became liable to vacate the building. It is also submitted that the fact
that an eviction decree passed in 1986 was sought to be executed in the year
2000; it shows that the whole thing was fraudulent.”
7. Learned counsel for the respondents has submitted that Anand had not paid
any amount as his claim for compensation was rejected by the Settlement Officer
(Judicial) on 24.4.1959 and finally the sale certificate was issued in favour
of Sethi alone on 20.7.1961 and the tenants were asked to attorn in his favour.
“The eviction decree was not executed as the parties were closely related being
co-brothers and they were having very cordial relations. Learned counsel has
further submitted that Shri M.S. Sethi, Advocate, had filed an affidavit dated
18.11.2002 stating that Anand had engaged him as his lawyer and he had filed
his vakalatnamaon on his behalf. Anand had appeared in Court and had made a
statement on oath supporting the compromise petition. Shri M.L. Sharma,
Advocate, has also filed an affidavit dated 18.11.2002 on similar lines stating
that he had been engaged by Anand and on his instructions a compromise petition
was drafted by him which had been signed by Anand. Learned counsel has
submitted that apart from the aforesaid affidavits, there is other voluminous
documentary evidence to show that Anand was always treated as tenant of the
building and not as co-owner.”
8. We have given our anxious consideration to the submissions made by the
learned counsel for the parties. It is not in dispute that in the eviction
petition filed by Sethi against Anand, notice was issued returnable on
20.3.1986, but even before the said date Anand appeared on 19.2.1986 and an
application for leave to defend was filed by him and thereafter a compromise
petition was filed on the basis of which eviction petition was allowed and time
was given to Anand to vacate the premises on or before 1.3.1988.
“The defendant-respondents did not put the decree into execution, but waited
for full 12 years and filed the execution petition only on the last date i.e.
on 28.2.2000. This shows that the eviction petition was filed only for the
purpose of saving limitation and at least till February, 2000, they had no
pressing need of the building in question. It certainly looks little
strange that though Anand filed an application for leave to defend the eviction
petition, but almost simultaneously he filed a compromise petition wherein a
consent order was passed giving him time to vacate the premises on or before
1.3.1988.
The specific case of the plaintiffs is that Anand never appeared before the
Rent Controller and the whole thing was managed by Sethi by setting up an
impostor. Having regard to the facts and circumstances of the case, we consider
it appropriate in the interest of justice that the suit filed by the appellants
itself may be decided at a very early date and their possession may be
protected during the pendency of the suit.”
9. The appeal is accordingly allowed and the orders dated 22.11.2003 passed by
the learned Additional District Judge and also the order dated 26.3.2004 passed
by the High Court are set aside. The learned Additional District Judge shall
take up the suit on priority basis and decide the same as expeditiously as
possible, preferably within one year from the date of communication of this
order to him. The appellants shall not be dispossessed from the premises in
their occupation during the pendency of the suit.
“It is further directed that the parties shall make all endeavours for an early
decision of the suit and shall not take adjournments unless absolutely
necessary. If the plaintiffs cause obstruction in the progress of the suit or
adopt delaying tactics, it will be open to the respondents to apply to this
Court for vacating the injunction order.”
10. It is made clear that any observation made in this order is only for the purpose of deciding the appeal and shall not be construed as an expression of opinion regarding the merits of the claim of the parties.