1. Eviction suit under Maharashtra Rent Control Act, 1999 — Compromise decree for possession — Execution proceedings — Objections raised against maintainability of execution application. (Para 5 , 6 , 8 , 9 , 10 )
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2018 Supreme(SC) 937
SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, MOHAN M. SHANTANAGOUDAR, JJ.
Hiya Associates & Ors. – Appellant(s)
Versus
Nakshatra Properties Pvt. Ltd. – Respondent(s)
CIVIL APPEAL Nos. 10010-10011 OF 2018 [Arising out of SLP (C) Nos.23260-23261 of 2017]
Decided On : 26-09-2018
IMPORTANT POINT
Revisional court legally obliged to examine legality and correctness of findings of the Executing court on merits.
Headnote:Administration of justice – Revisional jurisdiction – Executing court already deciding all objection on merits – Revisional court legally obliged to examine legality and correctness of findings of the Executing court on merits – Instead revisionary court remanding matter to executing court – No justification – Order 41 Rules 23, 23A, 24 and 25, Code of Civil Procedure, 1908 – Order XXI Rule 97, Code of Civil Procedure, 1908 not applicable. (Para 17, 18, 21)
AIR 1975 SC 2130 – Relied upon
Facts of the case:
The Respondent(plaintiff) filed a suit against the appellants(defendants) for their eviction from the suit premises.
During the pendency of the suit the appellants and respondent compromised the matter and accordingly the Court pronounced the judgment and disposed of the suit in accordance with the consent terms.
Since the defendants (appellants) failed to handover the vacant possession of the suit premises to the plaintiff (respondent) in terms of the compromise, the plaintiff (respondent) filed an execution application for execution of the consent decree and prayed therein for issuance of possession warrant in respect of the suit premises against the defendants (appellants).
The Executing Court overruled all the objections on merits and, in consequence, held that the execution application filed by the plaintiff (respondent) is maintainable in law and the consent decree is, therefore, executable against the defendants (appellants). The Executing Court, therefore, directed issuance of warrant of possession against the defendants (appellants) in relation to the suit premises.
The defendants (appellants) filed revision before the Small Causes Court at Mumbai. The Revisionary Court allowed the revision, set aside the order passed by the Executing Court and remanded the case to the Executing Court for deciding the objection raised by the defendants (appellants) against the execution application afresh on merits..
The plaintiff (respondent) filed writ petition which has been allowed.
Finding of the Court:
High Court ought to remand the matter to the Revisionary cuurt.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Maintainability of execution application for compromise decree — Legality of remanding the matter to the Executing Court — Admissibility of additional documents in revision. (Para 10 , 11 )
3. Revisionary Court erred by remanding a case already decided on merits and allowing irrelevant documents; High Court erred by deciding merits instead of remanding. (Para 16 , 17 , 19 , 20 , 23 , 24 )
4. Remand to subordinate court is necessary only for undecided material issues, procedural lacunae, or essential additional evidence; otherwise, revisionary courts must decide on merits. (Para 18 )
5. Impugned order and Revisionary Court order set aside — Case remanded to Revisionary Court for fresh decision on merits within six months. (Para 14 , 25 , 28 , 29 )
6. When is remanding a case to a subordinate court appropriate during revisionary or appellate proceedings?
Remand is necessary when the subordinate court failed to decide material issues, there is a procedural lacuna adversely affecting party rights, or additional evidence is required to decide the rights of the parties. (Para 18 )
7. Can a Revisionary Court allow additional documents to be filed during a revision petition?
Additional documents should not be allowed if they are neither relevant nor material for deciding the legality and correctness of the order passed by the lower court. (Para 19 , 20 )
8. What is the duty of a Revisionary Court when the Executing Court has already decided objections on merits?
The Revisionary Court is under a legal obligation to decide the legality and correctness of the findings recorded by the Executing Court on its merits rather than remanding the case. (Para 16 , 17 )
JUDGMENT
Abhay Manohar Sapre, J.
1) Leave granted.
2) These appeals arise from the final judgment and order dated 21.07.2017 & 26.07.2017 passed by the High Court of Judicature at Bombay in Writ Petition No.6733 of 2017 whereby the High Court allowed the writ petition filed by the respondent herein, set aside the order dated 26.09.2016 passed by the Small Causes Court, Appellate Bench, Mumbai in R.A. No.333/2015 and restored the order dated 28.10.2015 of the Executing Court in Execution Application No.31/2013 in R.A.E. Suit No.872/2007.
3) The issue involved in these appeals is short. Few facts, however, need mention to appreciate the issue, which is the subject matter of these appeals.
4) The appellants are the defendants and the respondent is the plaintiff in the civil suit out of which these appeals arise.
5) The issue arises out of eviction suit, which resulted in passing of a compromise decree followed by its execution. So far as the present appeals are concerned, they arise out of an order passed in the execution proceedings.
6) The Respondent(plaintiff) filed a suit (No.872/2007) in the Court of Small Causes at Mumbai against the appellants(defendants) for their eviction from the suit premises. The eviction was claimed inter alia on the ground of unauthorized user of the suit premises by the appellants (defendants) which, according to the respondent (plaintiff), amounted to the change of user under the provision of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Act”). It is not necessary to set out the facts in the pleadings of the parties.
7) During the pendency of the suit, the parties, i.e., the appellants and respondent, compromised the matter and accordingly filed their consent terms on which the compromise was arrived at between them.
8) The Court accordingly, by order dated 05.09.2007, pronounced the judgment and disposed of the suit in accordance with the consent terms. In terms of the compromise, the defendants (appellants) were to handover the vacant possession of the suit premises to the plaintiff (respondent) on or before 31.01.2009 and the defendants (appellants) were also liable to pay Rs.5000/per day by way of mesne profits if they fail to handover possession of the suit premises after 31.01.2009.
9) Since the defendants (appellants) failed to handover the vacant possession of the suit premises to the plaintiff (respondent) in terms of the compromise, the plaintiff (respondent) filed an execution application (No.31/2013) for execution of the consent decree dated 05.09.2007 and prayed therein for issuance of possession warrant in respect of the suit premises against the defendants (appellants).
10) The defendants (appellants) filed their reply and raised several objections on facts and law including maintainability of the execution application. By order dated 28.10.2015, the Executing Court overruled all the objections on merits and, in consequence, held that the execution application filed by the plaintiff (respondent) is maintainable in law and the consent decree is, therefore, executable against the defendants (appellants). The Executing Court, therefore, directed issuance of warrant of possession against the defendants (appellants) in relation to the suit premises.
11) The defendants (appellants) felt aggrieved and filed revision before the Small Causes Court at Mumbai. The Revisionary Court, by order dated 26.09.2016, allowed the revision, set aside the order dated 28.10.2015 passed by the Executing Court and remanded the case to the Executing Court for deciding the objection raised by the defendants(appellants) against the execution application afresh on merits. One of the reasons to remand the case to the Executing Court was that the Revisionary Court allowed the defendants (appellants) to file additional documents (Ex.22), which they had filed for the first time in the revision petition.
12) The plaintiff (respondent) felt aggrieved by the order of the Revisionary
