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Gujarat High Court
Judgename :H.R.Shelat
JOHN MITHALAL DESAI - Appellant
Versus
DINESHBHAI K.VORA - Respondent
C.A. 529 of 1997
Decided On : 08/29/1997
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 Civil Procedure 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 has 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 proceedings 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 immovable 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 becuase 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, read with Rule 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.
[Para 3]
(b) Civil Procedure Code, 1908 - Order 21, Rules 97, 98, 101 & 103 - Application alleging resistance or obstruction - Executing Court invested with power to decide under Rule 101 - Order so made there under is decree & appealable.
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, CPC. The order therefore came to be passed under Rule 98, consequently in view of the 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.
[Para 3]
(c) Stamp Act, 1899 - Sec. 35 - Document unstamped or insufficiently stamped - Admission in evidence - Duty of the Court before making any order - Stated.
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.
[Para 10]
(d) Transfer of Property Act, 1882 - Secs. 105 & 107 - Lease - Meaning of & how made - Stated & also pointed out difference between lease deed & rent note.
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 matter of contract asserted by both parties. When the agreement vests in lessee a right of possession for a certain time it operates as a conveyance or transfer and is a lease. Sec. 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 ascertained 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. Sec. 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.
[Para 8]
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.
[Para 9]
(e) Evidence Act, 1872 - Secs. 63 & 65 - Secondary evidence - Admissibility - Permissible only when original lost and all sources to trace the same exhausted - Unstamped document not admissible in secondary evidence - However in appeal conclusion drawn by Trial Court cannot be upset lightly.
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 attested 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 or an unstamped document which is lost or destroyed is under no circumstances admissible.
[Para 12]
(f) Evidence Act, 1872 - Secs. 45, 47, 64 & 67 - Referring the document in cross-examination - Meaning of - Explained.
In view of law, what becomes clear is that referring the document in the cross examination for getting the same admitted in evidence means putting and such questions (1) touching or referring the contentions 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 marked as exhibit. To elucidate the third mode, it way be stated that if by putting the questions that party cross examining touches the trace or the gist or pity 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.
[Para 15]
(g) Words & Phrases - Words `proceedings & `suit - Meaning of - Elucidated with reference to Rule 104 of Order 21 CPC.
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 status itself.
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.
[Para 20]
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 grievance 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 CPC 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 invoking Secs. 35 and 35-A of CPC.
[Para 23]
(h) Civil Procedure Code, 1908 - Sec. 151 - Conversion - Revision into appeal & application under one provision to another - Not forbidden by law - Court has inherent powers for the purpose to impart justice - Effect of such order of conversion stated.
Of course there is no specific provision in CPC 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 under Sec. 151, CPC 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 characteristics of appeal of 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/interpretition 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 appellants 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.
[Para 24]
( 1 ) BEING aggrieved by the order dated 31st December 1996, passed by the learned Judge of the City Civil Court at Ahmedabad, allowing respondents (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 read with s. 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 called "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. 00 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 10-3-1993 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. 00 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 and 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 of 1993 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
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