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CASE NO.: Appeal (civil)  1595 of 2005

PETITIONER: Gayatri Devi & Ors.

RESPONDENT: Shashi Pal Singh

DATE OF JUDGMENT: 09/03/2005

BENCH: D.M. Dharmadhikari & B.N. Srikrishna

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C) No. 8962 of 2004)

Srikrishna,J.

       Leave granted.

       This appeal demonstrates how a determined and dishonest  litigant can interminably drag on litigation to frustrate the results of a  judicial determination in favour of the other side.         A property bearing No. 202 B Arjun Nagar, Safdarjung Enclave  in New Delhi was purchased by the first appellant and her husband  late R.S. Gupta under two sale deeds dated 1.5.1970 and 2.5.1974.   On 1.11.1987 the appellant committed perhaps the gravest blunder of  her life of letting out the suit property to the respondent-tenant at a  monthly rent of Rs.1300/-, which subsequently came to be increased  to Rs.1500/- w.e.f. 1.1.1990.  The tenancy was for residential purpose.  The appellant filed a petition for eviction of the respondent by  invoking  section 14(1)(e) of the Delhi Rent Control Act (hereinafter  referred to as ’DRC Act’).  This petition was filed by late  R.S. Gupta,  husband of the appellant No.1 before us, who was also a co-petitioner  in the said eviction petition. The ground put forward in the eviction  petition was that the family of the appellant had expanded and there  was bona fide requirement for personal use. This eviction petition was  contested by the respondent who raised several grounds.  To start   with, the respondent raised a preliminary objection that there existed  no relationship of landlord and tenant between  the appellant no.1 and  himself. He also  denied that the appellant no.1 was the owner of the  suit property. Curiously, however, he did not deny the payment of rent  to the 1st appellant through her husband. The eviction petition no. E- 223/94 was tried and allowed by the court of Additional Rent  Controller. On the basis of the evidence recorded before him the  Additional Rent Controller  specifically found that it was established  that the appellants who were the owners/landlord in respect of the suit  premises. He also examined the case put forward on behalf of the  appellants on merits and held that all the essential ingredients for  eviction under section 14(1)(e) of the DRC Act had been proved.   By  his judgment dated 1.8.1998, a decree for eviction was made.  The respondent challenged the decree for possession by his  revision petition under section 25 of the DRC Act before the High  Court vide CR No.1017/98.  The learned single judge by his judgment  dated 4.5.1999  dismissed the revision petition specifically upholding  the findings of the court below that the present appellant no.1 was the  owner in respect of suit property and that there was no force in the  arguments that there was no relationship of landlord and tenant as  between the present appellant no.1 and the present respondent. The

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High Court also accepted the finding on the merits that the grounds  for eviction had been made out.  The respondent moved a special  leave petition before this Court, S.L.P.(C) No.7234/99, challenging  the judgment of the High Court. This special leave petition was  summarily dismissed by this Court on 21.6.1999.

Despite his failure in all courts, the respondent did not hand  over possession. The appellant filed an execution petition on  11.8.1999 for execution of the decree for possession.  The  respondent  raised all kinds of frivolous objections including the objection that  DRC Act was not applicable to the area in question; that the sale deed  under which the first appellant claimed the ownership was a  fraudulent document and could not be made the basis of eviction  order; that the identity of the suit premises was different and that there  was no relationship of landlord and tenant between them. All these  objections were carefully evaluated by the executing court which took  the view that all of them had been the subject matters of the trial  before the decree was made that it  was not open to the executing  court to re-open questions settled before the decree was granted. The  court also rejected the plea of fraud as no such plea had been raised  during the trial.  In this view of the matter the executing court  overruled the objections raised in the execution proceedings.  The respondent moved an appeal  before the appellate court  vide  RCA  No. 658 of 1999.    The Rent Control Tribunal which  heard the appeal dismissed the appeal in limine on 27.10.99.  The revision petition moved before the High Court of Delhi,  against the judgment of the Rent Controller  was dismissed as  withdrawn on 9.5.2000. The respondent then filed a civil suit No. 167 of 1999 before  the Civil Judge Delhi alleging that the decree for eviction had been  obtained by playing fraud on the court.  An application under Order  XXXIX Rule 1 & 2 of the Code of Civil Procedure for interim relief   was also moved in the said suit. The Civil Judge came to the  conclusion that the plaintiff-present respondent had failed to make out  a prima facie case and also failed to satisfy any of the requirements  for grant of an injunction.  Thus, he dismissed the application moved  for interim injunction under Order XXXIX Rule 1 and 2 of the C.P.C.  An appeal by the respondent, MCA No.5/2000, against this order was  dismissed by the Senior Civil Judge, on 12.1.2000.  The order of the  appellate court was challenged by Revision No.CR 73 of 2000 before  the High Court of Delhi.  The said Revision application was also  dismissed in limine on January 20, 2000. The respondent then moved an application for review of the  order dated 20.12.1999 before the Civil Judge at Delhi. The court  finding no substance in the application rejected the same.  Having found no leg to stand upon in any court of law, the  respondent filed a second objection petition in the execution  proceedings reiterating the very same objections as raised before, with  the additional ground that there was fraud. This application was also  dismissed as being frivolous with imposition of cost of Rs.1000/- on  the respondent.   The respondent then  moved a revision petition CRP 1193/2000  before the High Court in which the impugned order dated February  23, 2004 was made by the High Court taking the view that, if  execution of the eviction decree was allowed, it would render the suit  filed by the respondent infructuous, particularly when the respondent  had acted on the "direction and advice of the executing court" to file a  civil suit.  It is this order which is impugned in the present appeal. The history of this litigation shows nothing but cussedness and  lack of bona fides on the part of the respondent. Apart from his  tenacity and determination to prevent the appellants from enjoying the  fruits of the decree, there appears to be nothing commendable in the  case. Even before us the same arguments of fraud, and that the  appellants were not legally owners of the suit property, were pleaded.

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In the first place, it appears to us that the revision petition  before the High Court was wholly incompetent in view of the  amended provision of section 115 of the CPC. The Revision Petition  was entertained at a stage of an interlocutory proceedings.  As laid  down by this Court in Shiv Shakti Coop. Housing Society v. Swaraj  Developers  , an order interim in nature or which does not finally  decide the lis, cannot be challenged by way of a revision under section  115 of the CPC. In Ravinder Kaur v. Ashok Kumar and another   a two  Judge Bench of this Court observed: "Courts of law should be careful  enough to see  through such diabolical plans of the judgment-debtors to  deny the decree-holders the fruits of the decree obtained by  them. These type of errors on the part of the judicial  forums only encourage frivolous and cantankerous  litigations causing law’s delay and bringing bad name to  the judicial system."

       In our view these observations aptly apply to the case before us.   The learned counsel for the respondent relied upon the judgment of  this Court in S.P. Chengalvaraya Naidu v Jagannath    and United  India Insurance Co. Ltd. V. Rajendra Singh and others   to  contend that there was a fraud played upon the court and the fraud  unravels everything.   As a general proposition, the proposition is  right.  But fraud must necessarily be pleaded and proved.  In the entire  history of litigation nothing was pleaded, much less proved, as fraud.   We cannot countenance the plea of fraud without any basis.          In the result, we are of the view that the High Court grossly  erred in entertaining the revision petition and granting relief which  was unjustified both in law and on facts.  The impugned judgment of  the High Court is quashed and set aside.   Considering that the respondent has deliberately delayed the  execution, the executing court shall dispose of the execution  proceedings with utmost dispatch.

       In our view, the conduct of the respondent deserves  condemnation which we indicate by imposition of exemplary costs of  Rs.20,000/- on the respondent.