16 April 1996
Supreme Court
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SRI SAMIR SOBHAN SANYAL Vs TRACKS TRADE PVT. LTD. .

Bench: RAMASWAMY,K.
Case number: C.A. No.-007515-007515 / 1996
Diary number: 9815 / 1995
Advocates: Vs ASHOK MATHUR


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PETITIONER: SRI SAMIR SOBHAN SANYAL

       Vs.

RESPONDENT: TRACKS TRADE PRIVATE LTD. & ORS.

DATE OF JUDGMENT:       16/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J)

CITATION:  1996 AIR 2102            1996 SCC  (4) 144  JT 1996 (5)    74        1996 SCALE  (4)266

ACT:

HEADNOTE:

JUDGMENT:                             WITH        CONTEMPT PETITION NO5.309 OF 1995 & 61 OF 1996                          O R D E R      Leave granted.      This case  is a classic illustration of the travesty of justice and high-handedness in the dispossession of a person in possession  without clue  process of  law. The appellant, admittedly, was inducted as a tenant on behalf of M/s. India Foils Ltd.  into the  premises bearing  No.16 may Fair Road, Calcutta-19. The  property belongs  to  Mrs.  Gertrud  Chand [hereinafter referred  to as  ’landlady’]  who  had  entered into. a  lease with M/s. Indian Foils Ltd. on March 27, 1969 for the  demise of the said property to the said company. In furtherance  thereof,   possession  of   the  premises  was, admittedly, given to the appellant. The landlady had entered into an  agreement with  the 6th  respondent,  M/s.  Habitat Developers on  October 17, 1985 for sale of the property for a sum  of Rs.40  lakhs. For the enforcement thereof, the 6th respondent filed  title suit  No.137 of  1986  for  specific performance in  the court  of the  Second  Assistant  Judge, Alipur. In  the written statement filed by the landlady, she had admitted thus:      "One Mr.  Sanyal was  inducted into      the premises  by India  Foils  Ltd.      Consequently, the defendant was not      in a  position to  offer  the  suit      property  free  from  encumbrances,      but the  plaintiff-Company  despite      full knowledge of such encumbrances      expressed its  desire  to  purchase      the  property  at  a  consideration      price of Rs.40 lakhs".      It would  thus be  seen that  in the  suit for specific performance, the  6th respondent  was put on notice that the appellant was  in possession  and enjoyment  of the  demised

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premises and  yet the  6th respondent  had entered  into the agreement subject  to the  encumbrances.  Subsequently,  the suit came  to be  decreed for  khas  possession  also  which decreed become  final. In  spite of  the fact  that the  6th respondent was  aware of  the continuance  in possession and enjoyment of the demised premises by the appellant, no steps have been  taken either  to have  him impleaded  as a  party defendant to  the suit for specific performance nor a decree personally against him was obtained in any other independent proceeding Sings as on date.      The question,  therefore, is  whether the appellant can be dispossessed  in execution of the decree in title sit No. 137 of 1986. When the possession of the appellant was sought to be  interdicted, admittedly,  he filed  a petition  under Order 21,  Rules 98 and 99, CPC claiming adjudication of his right to  remain in  possession of  the said property. It is his case  that his  employer had  agreed  to  allow  him  in possession till  alternative accommodation  is given  to him even after  retirement. It  is not  necessary to narrate the subsequent events  in chronology  which have  cropped up  in several of  the proceedings. Admittedly, on a petition filed by the  appellant, the  High  Court  had  directed  a  Court Officer to  be in possession of the property. In furtherance thereof, the  Court  Officer  did  take  possession  of  the property. Later,  attempts  have  been  made  by  the  first respondent who  was said  to have  entered into a lease with the 3rd  respondent, to  come into  the  possession  of  the property, but  they were  rejected by the executing Court as well as  by the  High Court  on appeal.  The 6th  respondent assigned his  rights in  the decree  to the  3rd  respondent Pranav  Merchandise   Pvt.Ltd.  In   the   application   for continuance of  the  appellant’s  possession  the  executing Court directed the Court Officer appointed by the High Court to remain in possession of the property till the application filed under Order 21, Rules 98 and 99, CPC was disposed of.      In the  meanwhile, the  1st respondent  had  taken  two others applications  before the  trial  Court  at  different times seeking  for possession  of the  property.  The  first application was dismissed. Consequently, he filed a revision in the High Court. The subsequent two applications also case to be  dismissed, one  day prior  to hearing of the revision under appeal  and the  same became  final. The High Court in the impugned order dated July 6, 1995 has directed induction of the  1st respondent  into possession  of the property. We are informed  that even before that order came to be passed, he had  already come  into possession  of the property. When the matter  had come  up before  this Court  at the  time of admission, the 1st respondent had entered appearance through the counsel  and it  was brought  to our  notice that he had already come  in possession  of the property in execution of the decree.  Nonetheless, by  order dated July 24, 1995 this Court passed the order as under:           "Issue notice.           Mr. Goodwill  Indeevar and Ms.      Mridula  Ray  Bharadwaj,  Advocates      take notice  for  Respondent  Nos.1      and  2  respectively.  Four  weeks’      time is  granted for filing counter      affidavits and two weeks thereafter      for  rejoinder.   Post  after   six      weeks.           Though  the  counsel  for  the      respondents    state    that    the      possession was  taken on 12th July,      1995,    on     the    facts    and

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    circumstances,   we    think   that      interim  suspension   of  the  High      Court’s  order   be  made"   It  is      accordingly made".      It would thus be clear that without any decree or order of eviction  of the  appellant from the demised premises, he has been  unlawfully dispossessed  from the premises without any due process of law. The question, therefore, is: whether he should  be allowed  to  remain  in  possession  till  his application under  Order 21,  Rules 98 and 99 is adjudicated upon and  an order  made. Though the learned counsel for the 1st respondent  and also  for the 3rd respondent, who is one of the  transferees  from  the  6th  respondent,  sought  to contend that  the  appellant  has  no  right  to  remain  in possession after  the lessee,  M/s.  India  Foils  Ltd.  had admitted by  a resolution that the appellant has no right to remain  in   possession,  we  are  not  impressed  with  the arguments. At  this state,  we are  only concerned  with his admitted possession  of the  demised premises.  What  rights would flow from a contract between him and him employer is a matter to  be adjudicated  in his  application  filed  under Order 21,  Rules 98  3nd 99,  CPC. At this stage, it is pre- mature to go into and record any finding in that behalf. The learned counsel  for  the  1st  respondent  also  repeatedly sought to  bring to our notice that on account of the orders of  the   Court  Officer   passed  by  the  High  Court  the maintenance cost  has been  mounting up  due to the delay in disposal of  the proceedings  in various  courts. Even  with regard to  that, we  are not  impressed with the same. Since the letter of the law should strictly be adhered to, we find that high-handed  action taken  by the  respondent Nos. 1, 3 and 6  in having  the  appellant  dispossessed  without  due process of Haw, cannot be overlooked nor condoned. The Court cannot blink  at their  unlawful conduct  to dispossess  the appellant from  demised property  and  would  say  that  the status quo  be maintained.  If the Court gives acceptance to such high-handed  action, there  will be no respect for rule of law  and unlawful  elements would  take hold  of the  due process of  law for  ransom and  it would be a field day for anarchy. Due process of law should be put to ridicule in the estimate of  the law-abiding  citizens and rule of law would remain a mortuary.      Under these  circumstances, we  are left with no option but to  allow the appeal with costs quantified at Rs.7,500/- against each of the respondent Nos. 1, 3 and 6 to be payable to the  Supreme Court  Legal Aid Committee. If the amount is not paid  within one  month from  to-day, the  Supreme Court Legal Aid  Committee would  be entitled  to recover the same from them by execution of this order as decree.      The 1st  respondent is directed to put the appellant in possession within  24 hours. The executing Court is directed to dispose  of the  application filed by respondent Nos.7, 8 and 9.  heirs of  the landlady filed under Section 28 of the Specific Relief  Act, 1963 for rescinding the contract along with the  application filed under Order 21, Rules 98 and 99, CPC and dispose it of after the former is decided. Contempt Petition No.309 of 1996      Notice is  issued to  the first  1st respondent to show cause  why   he  should  not  be  convicted  for  deliberate disobedience of the order dated July 24, 1995 directing that the appellant  be put into possession through Court Officer. Counsel for the 1st respondent takes notice for contempt. He seeks for  and is granted time for filing counter-affidavit. The  1st  respondent  though  its  Chief  Executive/managing Director or  by whatever name is called, shall be present in

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person in  the Court  on 15.7.96 to which date the matter is directed to be posted.      Contempt Petition  No. 309  of 1995 to be posted on the same day.