Case Note & Summary
The Supreme Court considered an appeal arising from high-handed dispossession of a person in possession without due process, in the context of a specific performance suit. The appellant was inducted as a tenant on behalf of India Foils Ltd. into premises at 16 May Fair Road, Calcutta, owned by landlady Gertrud Chand. The landlady had leased the property to India Foils in 1969; the appellant occupied the premises as an employee-tenant. In 1985, the landlady agreed to sell the property to Habitat Developers for Rs.40 lakhs, and Habitat Developers filed Title Suit No.137 of 1986 for specific performance. The landlady's written statement admitted the appellant's possession and that the property was encumbered; despite this, the suit was decreed for specific performance and khas possession. The sixth respondent (Habitat Developers) later assigned its rights to the third respondent Pranav Merchandise Pvt. Ltd. The first respondent, Tracks Trade Private Ltd., claimed rights through a lease with the third respondent and sought possession. The appellant had filed an application under Order 21 Rules 98 and 99 CPC claiming his right to remain in possession until alternative accommodation was provided by his employer. The High Court initially directed a Court Officer to take possession; the officer took possession. Various applications by the first respondent for possession were dismissed by the executing court and High Court, but the High Court, by order dated July 6, 1995, directed induction of the first respondent into possession. The first respondent took possession on July 12, 1995. The Supreme Court, on July 24, 1995, suspended the High Court's order. The respondents argued that the appellant had no right to remain after India Foils admitted by resolution that he had no right, and that maintenance costs were mounting. The Court was not impressed, holding that at this stage only admitted possession mattered, and the appellant's rights under his employment contract were to be adjudicated in his Order 21 application. The Court held that dispossession without a decree or order of eviction and without adjudication of the Order 21 application was unlawful, and such high-handed action could not be condoned. It directed restoration of possession within 24 hours, imposed costs of Rs.7,500 each on respondents 1, 3, and 6 payable to the Supreme Court Legal Aid Committee, and directed the executing court to first decide the heirs' application under Section 28 of the Specific Relief Act, 1963 for rescission of the contract, along with the appellant's Order 21 application. Notices for contempt were issued to the first respondent for disobeying the July 24, 1995 order, and its chief executive/managing director was directed to appear personally on July 15, 1996.
Headnote
A) Civil Procedure - Execution of Decrees - Order 21 Rules 98 and 99, Code of Civil Procedure, 1908 - Person in possession not party to specific performance suit cannot be dispossessed in execution without adjudication of his application under those rules - The appellant was in admitted possession as tenant, and the executing court was directed to decide his application; dispossession without such adjudication was unlawful (Paras Not mentioned). B) Rule of Law - Dispossession Without Due Process - Restitution and Costs - Code of Civil Procedure, 1908, Order 21 Rules 98 and 99 - High-handed action by respondents in taking possession without due process condemned; court restored possession to appellant and imposed costs of Rs.7,500 each on respondents 1, 3, and 6 (Paras Not mentioned). C) Specific Relief Act - Rescission of Contract - Section 28, Specific Relief Act, 1963 - Heirs of landlady's application for rescission of sale contract must be decided before appellant's Order 21 application - Executing court directed to dispose of rescission application along with Order 21 application, with rescission decided first (Paras Not mentioned). D) Contempt Jurisdiction - Wilful Disobedience - Order dated 24 July 1995 directing appellant to be put in possession through Court Officer - Notice issued to first respondent for contempt; personal appearance of chief executive/managing director directed (Paras Not mentioned).
Issue of Consideration
Whether the appellant, in possession of the demised premises but not a party to the specific performance suit, could be dispossessed in execution of the decree without adjudication of his application under Order 21 Rules 98 and 99 CPC; whether the High Court order directing induction of the first respondent into possession should be set aside and possession restored.
Final Decision
Appeal allowed with costs quantified at Rs.7,500 against each of respondent Nos.1, 3 and 6 payable to Supreme Court Legal Aid Committee. First respondent directed to put appellant in possession within 24 hours. Executing court directed to dispose of application filed by respondent Nos.7,8,9 heirs of landlady under Section 28 of Specific Relief Act, 1963 for rescinding the contract along with application filed under Order 21 Rules 98 and 99 CPC, and dispose of it after the former is decided. Contempt Petition No.309 of 1996: notice issued to first respondent to show cause why he should not be convicted for disobedience of order dated July 24, 1995 directing appellant be put into possession through Court Officer. First respondent through its Chief Executive/Managing Director shall be present in person in Court on 15.7.96. Contempt Petition No.309 of 1995 to be posted on same day.
Law Points
- A person in possession not a party to a suit for specific performance cannot be dispossessed in execution of the decree without adjudication under Order 21 Rules 98 and 99 CPC
- high-handed dispossession without due process violates rule of law and must be remedied by restoration
- executing court must first decide application under Section 28 Specific Relief Act for rescission before deciding possessory application.
