Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 99969997 OF 2018
[Arising out of SLP (C) Nos.2326023261 of 2017]
Hiya Associates & Ors. .. Appellant(s)
Versus
Nakshatra Properties Pvt. Ltd. .. Respondent(s)
J U D G M E N T
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
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.27
10:17:59 IST
Reason:
High Court of Judicature at Bombay in Writ Petition
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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
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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
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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
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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
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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 Court and filed writ petition
under Article 227 of the Constitution of India in the
High Court of Bombay. By impugned order, the High
Court allowed the writ petition, set aside the order of
the Revisionary Court and restored the order of the
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Executing Court, which gives rise to filing of the
present appeals by way of special leave by the
defendants (appellants) in this Court.
13) Heard Mr. D.N. Goburdhan, learned counsel for
the appellants and Mr. Gourab Banerji, learned senior
counsel for the respondent.
14) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
inclined to allow the appeals in part and while setting
aside the impugned order as also the order passed by
the Revisionary Court remand the case to the
Revisionary Court for deciding the defendants’
(appellants) revision afresh on merits in accordance
with law.
15) The reasons to remand the case to the
Revisionary Court are more than one as mentioned
hereinbelow.
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16) In our opinion, the Revisionary Court committed
two errors. In the first place, it should not have
remanded the case to the Executing Court for its fresh
consideration on merits but it should have decided the
revision on merits in accordance with law.
17) It is for the reason that the Executing Court had
already decided all objections raised by the defendants
(appellants) on merits and had found no merit therein.
The Revisionary Court was, therefore, under legal
obligation to decide the legality and correctness of the
findings recorded by the Executing Court on its merits
in its revisionary jurisdiction instead of remanding the
case to the Executing Court. Indeed, we do not find
any justifiable reason, which could justify remand
having regard to the nature of the objections raised by
the defendants (appellants) before the Executing
Court. In other words, this was not the case, which
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needed remand to the Executing Court for its fresh
decision on merits.
18) In our opinion, the remand of a case to the
Subordinate Court is considered necessary when the
Superior Court while exercising its appellate or
revisionary jurisdiction finds that the Subordinate
Court has failed to decide some material issues arising
in the case or there is some procedural lacuna noticed
in the trial, which has adversely affected the rights of
the parties while prosecuting the suit/proceedings or
when some additional evidence is considered
necessary to decide the rights of the parties which was
not before the Trial Court etc. (See Order 41 Rules 23,
23A, 24 and 25 of the Code of Civil Procedure, 1908).
Such was not the case here.
19) Second error committed by the Revisionary Court
was that it allowed the defendants (revision
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petitioners) to file additional documents (Ex.22) to
prove their case.
20) In our opinion, the documents sought to be filed
by the defendants (revision petitioners) were neither
relevant and nor material for deciding the legality and
correctness of the order passed by the Executing
Court. The legality and correctness of the order
impugned in the revision could be decided one way or
the other without the aid of any additional document
but on the basis of material already on record keeping
in view the law laid down by this Court in several
decided cases on the issue in question. Indeed, if the
Executing Court could decide the issue finally at its
level, the Revisionary Court too could do the same at
its level.
21) In our view, the issue in question was not
required to be decided under Order 21 Rule 97 of the
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Code of Civil Procedure but it should have been so
decided keeping in view the law laid down by this
Court in the case of vs. (AIR
Roshanlal Madan Lal
1975 SC 2130) which lays down the principle as to
how the issue of such a nature needs to be dealt with
by the Executing Court when it is raised by the
judgment debtor in execution proceedings.
22) It is due to these two aforementioned reasons, we
are of the considered view that the order passed by the
Revisionary Court is not legally sustainable.
23) So far as the impugned order passed by the High
Court is concerned, in our view, the High Court having
noticed the aforementioned errors in the order of the
Revisionary Court should have remanded the case to
the Revisionary Court for deciding the revision afresh
on merits in accordance with law. Instead, the High
Court itself went into the question on merits and
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upheld the order of the Executing Court. This, in our
opinion, the High Court should not have done and left
it for the Revisionary Court to do.
24) By these observations, we do not mean that the
High Court had no jurisdiction to decide the issue but
having regard to the nature of objections, remedy
available to the parties to have finding on the question
arising in the case one way or the other from the
Revisionary Court and to put the record straight, it
was not called for in this case.
25) It is for these reasons, we consider it proper to
set aside the impugned order and also the order of the
Revisionary Court and remand the case to the
Revisionary Court to decide the defendants’
(appellants’) revision afresh on merits in accordance
with law.
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26) The Revisionary Court would decide the legality
and correctness of the order passed by the Executing
Court dated 28.10.2015 on merits keeping in view the
law laid down by this Court in (supra) and
Roshanlal
other cases on the subject.
27) While deciding the revision, the Revisionary
Court would not be influenced by the observations
contained in impugned order and also of this Court
order because we have not applied our mind to the
merits of the case having formed an opinion to remand
the case to the Revisionary Court.
28) The appeals thus succeed and are accordingly
allowed in part. Impugned order and the order of the
Revisionary Court are set aside and the case is
remanded to the Revisionary Court to decide the
defendants’ (appellants’) revision (No.333/2015) afresh
on its merits in accordance with law.
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29) Since the matter is an old one, we direct the
Revisionary Court to decide the revision within six
months as an outer limit.
…………...................................J.
[ABHAY MANOHAR SAPRE]
..…...……..................................J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
September 26, 2018
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