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2015 (5) TMI 370 - RAJASTHAN HIGH COURT

2015 (5) TMI 370 - RAJASTHAN HIGH COURT - TMI - Misc. applications under section 446(2)(b) of the Companies Act, 1956 filed by sub-tenants against decree holder Official Liquidator who as landlord let-out the property - Property in issue occupied by several persons claiming to be sub-tenants - Law did not require that a sub-tenant be made a party in an eviction petition by a landlord against his main-tenant - Decree of ejectment against the tenant would be equally binding upon the sub-tenant Hel .....

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dence was filed to show as to which portion of the property "Patni Bhawan" and its appurtenant lands were in fact let-out by the Official Liquidator of the company-in-liquidation to M/s. Mahesh Metal Works. A bare look at the letter/agreement to lease dated 7.4.1960 shows that all of "Patni Bhawan" and its land were not delivered in tenancy on 7.4.1960.

Clause 4 of the said letter (7.4.1960) states that "the Manager of the Mills is being requested to deliver possession to you at once .....

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record at the instance of the objectors before the Executing Court as to what portion of "Patni Bhawan" and appurtenant lands (including garage and tennis court) was indeed handed over by the Official Liquidator to M/s. Mahesh Metal Works and when. Further there was also no evidence to show which portion of "Patni Bhawan" and appurtenant land was allegedly sub-let to the objectors. The whole case of alleged sub-tenancy set up by the objectors was thus vague, wishy-washy and lacking in certainty .....

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out a tenant-landlord relationship between the "main-tenant" and the objectors/resistors, it has not been proved that they were the sub-tenants of the "main-tenant" M/s. Mahesh Metal Works and ever inducted in the suit property in that capacity. The sequitur is that the objectors/resistors had no modicum right to bring their case within the words "just cause" under Order 21 Rule 98(2) CPC and to resist the execution of the judgment and decree lawfully passed by a Company Court in company applica .....

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onsequent to which an ex parte decree was passed. The sub-tenant then filed a suit against the landlord and the tenant seeking a declaration that the decree against the tenant resulting from collusion between him and the landlord was not binding upon him as a sub-tenant. The Hon'ble Apex Court however repelled the argument and held that the law did not require that a sub-tenant be made a party in an eviction petition by a landlord against his main-tenant and a decree of ejectment against the .....

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es the point as in the case at hand, as detailed here in above no sub-tenancy created in favour of the objectors/resistors by M/s. Mahesh Metal Works was proved before the Executing Court. In my considered opinion in the facts of the case the objectors/resistors have no legal right to resist the Judgment & Decree dated 5.2.1987. I also find no force in the contention of the counsel for the objectors/resistors that the Official Liquidator had no authority to move the application bearing No. 21/19 .....

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here is also no force in the submission of counsel for the objection with regard to the Addl. District Judge purportedly lacking in pecuniary jurisdiction for execution of the Judgment & Decree dated 5.2.1987. The Hon'ble Supreme Court has held in Mantoo Sarkar [2008 (12) TMI 719 - SUPREME COURT OF INDIA] has held that where the trial court has subject matter jurisdiction, its lack of pecuniary jurisdiction or even territorial jurisdiction, does not vitiate its judgment until prejudice is sh .....

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re based on an objective consideration and evaluation of the material evidence on record before it. There is no force in these misc. applications filed there against. - All the misc. applications dismissed. - S.B. CO. MISC. APPL. NOS. 25 TO 31 OF 2014, SB CO. PETITION NO. 3 OF 1956 - Dated:- 20-3-2015 - Mr. ALOK SHARMA, J. For The Appellant : Mr. V.L. Mathur For The Official Liquidator : Gaurav Sharma JUDGMENT These seven civil misc. applications have been filed under section 446(2)(b) of the Co .....

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c. application No.116/2011). Thereby the Executing Court dismissed the multiple objections filed by the different objectors/resistors applicants (hereinafter 'the objectors/resistors') in the execution proceeding (7/1997) taken by the landlord decree-holder Maharaja Kishangarh Mills Ltd. (hereinafter 'the company-in-liquidation') through Official Liquidator in respect of the final Judgment & Decree dated 5.2.1987 whereby the Company Court in company application No. 21/1980 un .....

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7.10.1956. The Deputy Registrar of this Court was appointed as the Liquidator of the Company directed to be wound up. He then in his wisdom rented out a leased property of the company in liquidation i.e. Patni Bhawan to M/s. Mahesh Metal Works (hereinafter 'the tenant') under his letter/ agreement to lease dated 17.4.1960. As the premises rented out were not for a fixed period, in law the tenancy was month to month terminable by 15 days notice expiring with the month of the end of the t .....

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to the eviction petition but did not lead any evidence on the issues framed on the basis of the pleadings of the parties. In the circumstances, following the evidence led by the Official Liquidator and his witnesses on behalf of the company in liquidation, vide order dated 7.11.1986 the evidence of the tenant was closed. Subsequently vide judgment dated 5.2.1987 the eviction petition laid by the Official Liquidator was allowed by the Company Court on the ground of default and the tenant directe .....

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found that the property in issue was occupied by several persons claiming to be sub-tenants of M/s. Mahesh Metal Works in terms of Clause 2 of the letter/agreement to lease dated 7.4.1960. The Official Liquidator sought police help from the Executing Court to take possession. The occupiers of the tenanted property threatened with dispossession under the Company Court's Judgment dated 5.2.1987, resorted to objection applications under section 47 r/w Order 21 Rule 97 and section 151 CPC to th .....

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older Official Liquidator who as landlord had in the first instance let-out "Patni Bhawan" and appurtenant land to M/s. Mahesh Metal Works. Mr. V.L. Mathur appearing for the applicant submitted that the impugned order dated 21.4.2014 is vitiated for reason of the Executing Court having decided by a common order, multiple objections filed by different objectors/ resistors against the final Judgment and Decree dated 5.2.1987 passed by the Company Court. Further, that the Court of Addl. D .....

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hin the meaning of section 13(i)(e) read with section 13(2) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the Act of 1950') the objectors/resistors were not bound by any decree obtained by the Official Liquidator without impleading them, such decree was not executable as against them. Counsel submitted that even though application bearing No. 21/1980 (eviction petition) filed by the Official Liquidator under sections 446 & 447 of the Act of 1956 b .....

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o submit that the Executing Court was in the circumstances of the case obliged to address the objectors'/resistors' case as to their independent right in the tenanted premises as sub-tenants with reference to Clause 2 of the letter/ agreement to lease dated 7.4.1960. Counsel submitted that even otherwise the judgment and decree dated 5.2.1987 was nonest in the eye of law having been passed against the main tenant M/s. Mahesh Metal Works impleaded through its partner Inder Dutt Bhargava w .....

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on bearing No. 7/1972 filed by Maharaja Kishangarh Somyog Mills Co. Ltd. (old company) against the Official Liquidator of the Maharaja Kishangarh Mills Ltd. (in liquidation), the Company Court by its judgment dated 15.10.1982 had held that "Patni Bhawan" including its appurtenant land (i.e. the tenanted property) was not in the ownership of the company in liquidation but of Maharaja Kishangarh Somyog Mills Co. Ltd. It was submitted that in the circumstances the Official Liquidator coul .....

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s in their application under Order 21 Rule 97 CPC before the Executing Court were without any foundation, wholly frivolous and completely vexatious. It is submitted that albeit Order 21 Rules 97/101, 102 and 103 read with section 47 CPC has been broadly construed by the Courts to require the Executing Court to address all objections to the execution of a decree, yet unless a "just cause" is made out by the objectors/resistors, no indulgence is to be granted lest execution proceedings a .....

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ntil a prima facie right was made out by the objectors/resistors, execution of a decree cannot be stalled. It was submitted that the objectors/resistors failed to produce any writing of probative worth in support of their contention of being lawfully inducted as sub-tenants by M/s. Mahesh Metal Works- the "main tenant" in the exercise its purported authority under Clause 2 of the letter/agreement to lease dated 7.4.1960. Further no receipts of rent allegedly paid by the objectors/resis .....

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uot; informing the lessor-landlord with regard to induction of sub-tenants. No letter on this count was addressed to the company in liquidation at any point of time by the "main tenant". It was further submitted that the letter/agreement to lease dated 7.4.1960 not being for a fixed period, it was, perforce in terms of obtaining law, capable of being construed only as a tenancy month to month and the power to sub-let under clause 2 of the letter/agreement to lease dated 7.4.1960 could .....

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a tenant is maintainable without the impleadment of sub-tenants and a decree in respect thereof executable against them. With regard to the jurisdiction of the Company Court in company application No. 20/1981 filed by the Official Liquidator remaining, subsequent to the order dated 15.10.1982 passed in execution petition No. 7/1972 directing eviction of the "main tenant" M/s. Mahesh Metal Works, it was submitted that no such case was pleaded in the objections before the Executing Cour .....

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der sections 446 and 477 of the Act of 1956 at the instance of the Official Liquidator was therefore very well maintainable before the Company Court and nothing erroneous or wanting in jurisdiction can be attributed to the judgment and decree dated 5.2.1987 passed by the Company Court. Such a decree was hence executable in accordance with law as has been ordered to be in the impugned Judgment dated 21.4.2014 passed by the Executing Court. Counsel finally submitted that the Executing Court no dou .....

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PC provides that where a decree is for the delivery of any immovable property and the person in possession apparently bound by the decree does not allow free access, the Court may through its Officers require removal, opening of any lock and even breaking of any door or otherwise to do any act necessary for putting the decree-holder in possession. Under Order 21 Rule 97 CPC where a third party in possession of immovable property covered under a Court's decree seeks to agitate its right to po .....

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elf and not by other Court. Rule 98 of Order 21 CPC provides that upon the determination of the questions referred to in Rule 101 CPC, the Court shall make an order, where warranted, allowing the application and directing that the applicant be put in possession of the property or otherwise not so directing for reasons stated. However, where the Executing Court is satisfied that the resistance/obstruction is occasioned without any just cause by any person, it may even order for the imprisonment o .....

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legal right to continue in possession of the immovable property in dispute either claiming through the Judgment-debtor or asserting an independent right to the property. Reverting to the facts of the pleas of resistors/objectors in the case at hand, it is apparent that the objectors set up their right to possession of the tenanted premises, directed to be otherwise vacated under the Judgment & Decree dated 5.2.1987 on the basis of their purported induction as sub-tenants by the "main-t .....

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orted writing by one Ashok Kumar Sharma recording his alleged status as a licencee of the lessee M/s. Mahesh Metal Works. The said writing is only a typed copy, undated and unsigned. The licencee therein states to have drawn it himself and it is on the face of it not drawn or signed by the lessee M/s. Mahesh Metal Works. What the applicant Laxmi Narain Gupta seeks to contend from Annex. 2 is incomprehensible. What is apparent, however, is a reckless, desperate attempt to throw at the Court whate .....

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of Clause 2 of the letter/agreement to lease dated 7.4.1960 was also adverted to or otherwise brought on record. No evidence was filed to show as to which portion of the property "Patni Bhawan" and its appurtenant lands were in fact let-out by the Official Liquidator of the company-in-liquidation to M/s. Mahesh Metal Works. A bare look at the letter/agreement to lease dated 7.4.1960 shows that all of "Patni Bhawan" and its land were not delivered in tenancy on 7.4.1960. Claus .....

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iod those rooms remain locked nor shall we claim any extra rent upon the same being vacated and placed at your disposal." There was nothing on record at the instance of the objectors before the Executing Court as to what portion of "Patni Bhawan" and appurtenant lands (including garage and tennis court) was indeed handed over by the Official Liquidator to M/s. Mahesh Metal Works and when. Further there was also no evidence to show which portion of "Patni Bhawan" and appu .....

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parties is dependent upon the facts and circumstances gathered in a case. On that test, in the case at hand, in the absence of any iota of evidence to make out a tenant-landlord relationship between the "main-tenant" and the objectors/resistors, it has not been proved that they were the sub-tenants of the "main-tenant" M/s. Mahesh Metal Works and ever inducted in the suit property in that capacity. The sequitur is that the objectors/resistors had no modicum right to bring th .....

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at adjudication of an application under Order 21 Rule 97 read with Rules 101 and 102 as also section 35(1) CPC, 1908 need not be based on detailed enquiry or evidence and it is in the discretion of the Executing Court to even decide the objection application on the basis of the pleadings of the parties, without any detailed enquiry where it finds that no prima facie case by the objector/resistor was made out. Further, the Hon'ble Apex Court in Suresh Chand Jain v. IIIrd Addl. District Judge, .....

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suit against his tenant for ejectment without impleading the sub-tenant as a co-defendant. The tenant did not contest the suit, consequent to which an ex parte decree was passed. The sub-tenant then filed a suit against the landlord and the tenant seeking a declaration that the decree against the tenant resulting from collusion between him and the landlord was not binding upon him as a sub-tenant. The Hon'ble Apex Court however repelled the argument and held that the law did not require tha .....

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pondents, hence, would not make a decree passed by the Court of Small Causes, Bombay nullity or inexecutable. The High Court erroneously proceeded against the well settled principle of law by observing in the impugned judgment that since the respondents (petitioners before the High Court) were claiming through Papamiya and as they were not joined as party in the suit, the orders passed by the Court "would in no way affect or bind them." The above observations, in our opinion, did not l .....

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d, as detailed here in above no sub-tenancy created in favour of the objectors/resistors by M/s. Mahesh Metal Works was proved before the Executing Court. In my considered opinion in the facts of the case the objectors/resistors have no legal right to resist the Judgment & Decree dated 5.2.1987. I also find no force in the contention of the counsel for the objectors/resistors that the Official Liquidator had no authority to move the application bearing No. 21/1980 under sections 446 and 477 .....

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an" and appurtenant land thus not being in the ownership of the company in liquidation, the Company Court had no jurisdiction in respect thereof atleast when the Judgment & Decree was passed on 5.2.1987. For one this issue was not agitated in the objections filed before the Executing Court. The Hon'ble Apex Court in Venkatappa @ Moode (dead) by LRs v. M. Abdul Jabbar and others, (2006) 9 SCC 235 has held that no new case can be set up in an appeal. Besides, in my considered opinion .....

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er letter/agreement to lease dated 7.4.1960 and having received rent from M/s. Mahesh Metal Works, was the landlord. And this is also an admitted fact by the objectors/resistors, submitted the Official Liquidator's counsel, as this background was the very foundation of the case of the objectors/resistors who set up their purported sub-tenancy (not proved) under clause 2 of the letter/agreement to lease dated 7.4.1960 under the hand of the Official Liquidator of the Company in liquidation to .....

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