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SUPREME COURT OF INDIA
M. M. Sundresh, Prashant Kumar Mishra, JJ.
Mumtaz Yarud Dowla Wakf - Appellant
Versus
M/s Badam Balakrishna Hotel Pvt. Ltd. & Ors. - Respondents
Civil Appeal No. 6933 of 2023 [Arising out of SLP (C) No. 997 of 2022]
Decided On : 20-10-2023
(A) Civil Procedure Code, 1908 - Section 47 read with Order XXI - Execution of decree - Executing Court cannot go beyond decree - As a matter of course, Executing Court is enjoined with duty to give effect to decree - Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as a matter of exception - Onus lies heavily on judgment-debtor to convince Court that a decree is inexecutable - When an exercise is likely to involve a factual adjudication, it should better be avoided - Conduct of a party assumes significance - If a party is likely to have an undue advantage, despite availability of an opportunity to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so during execution proceedings - Plaintiff shall not be made to suffer by passive act of defendant in submitting to jurisdiction - When process becomes same for both parties who undertake the route willingly, question of jurisdiction cannot be put against each other after it has attained finality, unless it is demonstrated that rights of party who suffered decree are obliterated. (Paras 14, 15 and 16)
(B) Statute Law - Retrospective application and change of forum - When a statute is amended on an issue pertaining to a forum for adjudication, it being procedural takes effect retrospectively - A party to a lis does not have any vested right of forum as against action - In absence of any substantive right being subsumed by a particular forum, one has to give retrospective application. (Para 17)
(C) Civil Procedure Code, 1908 - Section 9 - Jurisdiction of Civil Court - Court has to prima facie satisfy itself as to existence of jurisdiction - Such an exercise will avoid putting parties to unnecessary risk and difficulty - When a lis is entertained it is paramount duty of Court to check on itself and satisfy existence of jurisdiction, despite being not raised by parties - Such exercise would not only prevent injustice but will also take care of a party taking advantage of its own wrong - It has to apply principle of nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong) in order to prevent any miscarriage of justice - When court is satisfied that one party to dispute is manipulating process to perpetuate illegality and to detriment of other, it should go beyond procedural entrapment by rendering correct justice - In a case where a Court has failed to check its jurisdiction and a plea has been raised subsequently and that too after receiving an adverse verdict, forum shall not be declared as the one having lack of jurisdiction, especially when there is no apparent injury otherwise to rights conferred under a particular statute. (Paras 20, 21 and 25)
(D) Civil Procedure Code, 1908 - Section 9 - Jurisdiction of Civil Court - When a specialized forum is made available under a statute, civil court should normally entertain a dispute which would otherwise not be amenable before said forum - Rights and liabilities of parties arising from an enactment ought to be adjudicated upon in tune with mechanism provided thereunder - Provisions of enactment ought to be given effect to through such forums and therefore to exclusion of a civil court whose jurisdiction is otherwise to be inferred - Powers of civil court, being plenary in nature, onus lies on party who contends that it lacks jurisdiction - However, this does not take duty of civil court to check its own jurisdiction, more so when a specialized forum has come into being as a creature of a statute - There may be certain exceptions when fundamental principles governing common law, including one pertaining to principle of natural justice, stand violated - To deal with said issue one has to take into consideration objective behind enactment, along with provisions contained thereunder. (Paras 26 and 27)
(E) Wakf Act, 1995 - Section 83 read with Section 85[As amended by Act 27 of 2013] - Removal of basis of judgment - On the question of effect of removal of basis of judgment, once again, distinction between a procedural and substantial law has to be kept in mind - An adjudicating forum being a product of a procedural right has to come under retrospective operation when an amendment is introduced to cure a defect which paved way for a decision of Court in holding otherwise - Wakf Tribunal has got sufficient jurisdiction to try every suit pertaining to either a Wakf or a Wakf property, notwithstanding nature of relief concerned, except as mandated under statute - Institution of a suit before a forum where an adjudication process is same as other, insofar as rights and liabilities are concerned, has got no relevancy when subsequently either an act or amendment has been brought forth conferring jurisdiction to some other forum - Act 27 of 2013 is a procedural amendment and has to be applied retrospectively in context of change of forum and jurisdictional provisions. (Paras 28, 30, 31 and 32)
Facts of the case:
A legal journey adopted by the appellant with periodical stoppages orchestrated in the process at behest of respondent no(s). 1 and 2 brought lis back to the place where it started, forcing it to undertake a fresh guard by the impugned order. Appellant being the undisputed owner of suit property executed a registered lease deed in favour of respondent no. 2. Respondent no. 1 concern is being represented by a person who is son of individual (since deceased) who represented respondent no. 2. Period of lease was for 33 years. Suit premises was sublet without permission by respondent no(s). 1 and 2.
Findings of Court:
Issue for consideration is the forum to adjudicate. This principle is subject to rider that it may not have an application when there is already a decree where a party has not raised the issue of jurisdiction at any point before.
Result : Appeal allowed.
JUDGMENT :
M. M. Sundresh, J.
1. Leave granted.
2. A legal journey adopted by the appellant with periodical stoppages orchestrated in the process at behest of respondent no(s). 1 and 2 brought the lis back to the place where it started, forcing it to undertake a fresh guard by the impugned order.
3. This case is a classic example of the unfortunate situation taken note of and lamented by Right Honorable Sir James Colvilbe in General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16,
The situation not only continues but has become more prevalent.
FACTUAL BACKGROUND
4. The appellant being the undisputed owner of the suit property executed a registered lease deed in favour of respondent no. 2. Respondent no. 1 concern is being represented by a person who is the son of the individual (since deceased) who represented respondent no. 2. The period of lease was for 33 years. The suit premises was sublet without permission by respondent no(s). 1 and 2.
5. After the expiry of the lease by efflux of time, the appellant issued a legal notice requiring respondent no. 2 to hand over the vacant possession. A reply was given stating that the possession having been handed over only on 25.11.1966, the lease subsists till 24.11.1999. On receipt of the said reply-notice by respondent no. 2 dated 05.06.1999, a second notice was issued by the appellant to which a different response came; that the said registered lease was extended orally for another 33 years. A reference was also made to the arbitration clause available under the original lease deed.
6. The appellant promptly filed a suit in O.S. No. 132 of 1999 before the Wakf Tribunal seeking a decree for ejectment and recovery of possession, along with arrears of rent and damages. After a prolonged litigation and delaying tactics employed at the hands of respondent no(s). 1 and 2, a decree was passed at last on 13.11.2002. The suit was dismissed against defendant no(s). 3, 4, 5, and 7, while defendant no. 6 was set exparte. No plea with respect to the jurisdiction of the Wakf Tribunal was raised, while the aborted attempt to raise a defense of oral lease was rightly repelled.
7. Not being satisfied with the decree passed, respondents no(s). 1 and 2 filed a revision petition before the High Court being C.R.P. No. 5863 of 2002. It was dismissed inter alia holding that there is no legal basis to continue in occupation after the expiry of the lease.
8. The dilatory tactics adopted by respondent no(s). 1 and 2 continued even thereafter, to the extent that the appellant had to file an execution petition in E.P. No. 29 of 2014 on 18.10.2014. Even during the execution proceedings, respondent no. 2 did not raise the plea of maintainability of the suit. However, after four years during which time also the Court was successfully prevented through a series of applications/objections, obviously at the instance of the respondents, an additional counter was filed raising the plea that the suit as laid and decreed ought not to have been entertained in view of the dictum rendered by this Court in Faseela M. v. Munnerul Islam Madrasa Committee and Another, (2014) 16 SCC 38 which in turn relied upon the decision rendered in Ramesh Gobindram (Dead) through LRs. v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726. The objection raised was not found to be tenable by the Executing Court by dismissing the application filed under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). On a revision, the High Court of Telangana reversed the decision of the Executing Court by placing reliance upon the decision of this Court in Ramesh Gobindram (Supra). The said order passed is under challenge in this appeal.
SUBMISSIONS
9. Dr. Abhishek Manu Singhvi and Shri Huzefa Ahmadi, learned senior c
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