JUDGMENT
A.M. Khanwilkar, J.
1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Small Causes Court at Bombay dated October 31, 1988 in Misc. Notice No 366 of 1985 in RAE Suit No. 3475 of 1981. By the said Misc. Notice, the petitioner who was in lawful possession of flats Nos. 202 and 203 situated at Agra Road at Kurla, Bombay 70 since 1970 as a licensee, prayed that ex parte decree passed on 5-8-1983 in RAE Suit No. 3475 of 1981 against the tenant be set aside and the execution of the said decree in respect of the suit premises be declared as null and void. Other consequential reliefs were also prayed in the said application.
2. It is pertinent to note the backdrop in which the said application came to be filed by the petitioner. According to the petitioner, he was in lawful possession of the suit premises since 1970 as a licensee of one Mr. B. Nath the predecessor-in-title of the respondents 3 and 4 herein, who was the tenant of the respondent No. 1 herein. The said licence was subsisting as on 1-2-1973 when section 15-A of the Bombay Rent Act came into force. By virtue of said status, the petitioner claims to have become protected licensee. In the circumstances, the petitioner started paying rent directly to the landlord-respondent No. 1 herein which has been accepted by him. The petitioner apprehended that respondent Nos. 1 and 2, who are the landlords in respect of the suit premiss were likely to forcibly dispossess the petitioner and for which reason the petitioner instituted suit in the Court of Small Causes Court at Bombay being RAD Suit No. 2454 of 1981 against the respondent No. 1 for a declaration that the petitioner be declared as a tenant in respect of the suit premises. This suit was filed on 3-6-1981 and, on the same day, the petitioner filed an application for injunction for restraining the respondent No. 1 landlord from disturbing the petitioner’s possession of the suit premises without due process of law. The Small Causes Court on the same day was pleased to grant ex parte ad interim order of injunction restraining the landlord-respondent No. 1 from disturbing the petitioner’s possession in respect of the suit premises without due process of law. This order was duly served upon the respondent landlord on 4-6-1981. This fact is not in dispute at all. The respondent Nos. 1 and 2 landlords, however, on 21-7-1981, filed RAE Suit No. 3475 of 1981 for possession of the suit premises in the same Court being the Small Causes Court at Bombay only against respondent Nos. 3 and 4, who were successor-in-interest of the original tenant. According to the petitioner, this suit filed by the respondents-landlords, without joining the petitioner as party defendants or disclosing the fact that the petitioner has filed a prior suit against them claiming to be in possession of the suit premises as a protected licencee in which injunction was already granted against the landlords, was done with purpose namely with a view to somehow evict the petitioner by unfair means. The fact remains that the respondents landlords had by this time full knowledge that the petitioner was asserting to be in possession of the suit premises as a protected licencee; and, even then, in this suit they made no disclosure about the fact of petitioner’s possession and the stand taken by the petitioner in the declaratory suit already filed by him in which injunction was also granted and duly served upon them. The petitioner’s case is that the said suit was filed only against respondent Nos. 3 and 4 in collusion with the said respondents. The fact of collusion can be clearly inferred from the manner in which the suit filed by the respondent Nos. 1 and 2 for possession proceeded before the Rent Court. In a short span of two years from the date of institution of this suit, an ex parte decree came to be passed on 5-8-1983 ordering eviction of the respondent Nos. 3 and 4 from the suit premises. It is relevant to note that on the other hand on 12-4-1984, in the declaratory suit filed by the petitioner before the same Court, the Court confirmed the ex parte injunction which was granted on 3-6-1981. In that proceeding the stand taken by the respondents landlords is that the petitioner had no concern with the suit premises. That stand has been prima facie, found to be without any substance, for reliance was placed by the petitioner on several documentary evidence in the shape of counter foils of cheque paid towards rent and statement of bank, converting letters and acknowledgment, letter of plaintiff dated 12-1-1980 addressed to Assistant Assessor and Collector of Bombay Municipal Corporation, receipts from Assessment Department of B.M.C. towards assessment paid, permission letter from, Chief Fire Brigade, B.M.C., electricity bill payment receipts, meter testing reports, receipts from Water Department of B.M.C. and postal evidence. What is relevant to note is that the Court confirmed the ex parte injunction which was granted by it earlier. Interestingly, although the respondents-landlords were fully aware that in fact the petitioner was in possession of the suit premises, they proceeded to file application for execution of the said ex parte decree passed only against respondent Nos. 3 and 4 in respect of the suit premises. What is relevant to note at this stage is that even in this application no disclosure has been made by the landlords about the fact that the petitioner was claiming to be in possession and that the Court of competent jurisdiction had granted injunction against the landlords from evicting the petitioner without following due process of law. This application was filed on 18-4-1985 for execution of ex parte decree. The same was entertained by the Executing Court on 19-4-1985 and an order of warrant of possession in respect of the suit premises was directed. On the basis of that warrant of possession, the landlords attempted to execute the ex parte decree on 29-4-1985. According to the petitioner, the execution of this decree was resisted on his behalf but, the Bailiff, for the reasons best known to him, made endorsement in his report that the decree has been duly executed. The Bailiff report mentions that one watchman of respondent No. 4 was present at the premises. In fact, the respondent No. 4 had no concern as the petitioner was in possession of the suit premises. Even accepting this report to be accurate, it is clear that the decree against respondents 3 and 4 was purported to be executed against the petitioner behind his back and in any case in contravention of the injunction order which was running against the landlords not to dispossess the petitioner from the suit premises without due process of law, for there was no decree of possession obtained against the petitioner in respect of the suit premises from any competent Court. According to the petitioner, immediately after the attempted execution of the ex parte decree, the petitioner rushed to the Small Causes Court and filed present application being Misc. Notice No. 366 of 1985 in RAE Suit No. 3475 of 1981. In this application the petitioner has set out all the relevant events and clearly asserted that the petitioner is still in possession of the suit property and the purported execution of the ex parte decree as mentioned in the bailiff’s report was false. The petitioner has made serious grievance about the manner in which the bailiff has made the report about the execution of the decree. It is asserted that the respondent Nos. 1 and 2 landlords in collusion with the respondent Nos. 3 and 4 not only obtained ex parte decree in respect of the suit premises but also got the same executed in the manner referred to above which was nothing short of fraud played on the Court especially when the landlords were fully aware that the petitioner was in possession of the suit premises and also had filed a declaratory suit for appropriate reliefs in which injunction was granted in his favour. This application was resisted by the respondent Nos. 1 and 2 on merits as well as on its maintainability on the ground that the petitioner had no locus to challenge the ex parte decree obtained against respondent Nos. 3 and 4. Moreover, it was contended that since respondent Nos. 3 and 4 have already filed a substantive application for setting aside the self same ex parte decree, in such a situation the petitioner, who was not a party to the suit, could not maintain the application praying for setting aside of the said ex parte decree. Per Contra, the petitioner contends that even the application for setting aside ex parte decree filed by the respondent Nos. 3 and 4 was as a counter blast to nonsuit the petitioner on this technical ground.
3. The Executing Court considered the matter in the light of the objections raised by the respondent Nos. 1 and 2. The Executing Court in para 14 of his judgment has observed as under :
“As I discussed above it is an admitted fact on record that the legal heirs of the deceased original tenant against whom the plaintiffs-landlords have filed R.A.E. Suit for possession one of the defendants amongst them i.e. defendant No. 1 has also taken out a notice for setting aside an ex parte decree passed against the defendants and therefore, under these situation at present unable to agree with the argument advanced by the learned Advocate for the applicant Ramjisingh that the applicant Ramjisingh though not a party to the suit is entitled to set aside a decree.”
Besides this, the other consideration which has weighed with the executing Court for rejecting the application preferred by the petitioner can be discerned from the discussion in the penultimate paras 15 and 16 of the judgment, which read thus.
“…………On the above discussion I am of the opinion that there appears to be a controversy between the original defendants and the present applicants Ramjisingh about the possession of the suit premises. It appears to me that though both are at present claiming their independent rights and possession over the suit premises of course the notice of defendant No. 1 for setting aside ex parte decree will be decided separately after hearing of the argument of both the parties.”
“……..I therefore, do not think it necessary and proper to consider the said notice taken out by the applicant Ramjisingh who is not a party to the suit for setting aside ex parte decree passed against the defendants. For the reasons discussed above, I am of the opinion that under the peculiar facts and circumstances of the present notice, in my opinion the applicant herein is not entitled to take out said notice for setting aside the ex parte decree and also further not entitled to ask for a stay of execution of a decree and further reliefs claimed in the notice.”
The Executing Court has further observed in para 17 that in his opinion, in view of the suit filed by the respondents 1 and 2 landlords against the petitioner Ramjisingh which is pending in the City Civil Court, Bombay it would not be proper to discuss or comment on the merit of the contention.
4. To complete the narration of events it will be appropriate to point out that after the purported execution of the ex parte decree, the respondents-landlords filed a suit in the Court of Bombay City Civil being Suit No. 5917 of 1985 for injunction restraining the petitioner from entering upon and/or remaining in the suit premises on the ground that the decree of ejectment has been executed on 29-4-1985 and that thereafter the petitioner has re-entered the suit premises breaking open the lock and therefore his re-entry in the suit premises be treated as that of a trespasser. On the other hand, according to the petitioner, he has never lost possession of the suit premises in the alleged execution of the decree and that the decree was never executed against him. Moreover, in the said suit the City Civil Court had appointed a Court Receiver and allowed the petitioner to remain in possession as the agent of the Court Receiver. No doubts the suit has been later on decreed in favour of the respondent-landlord but, against the said decree the matter is pending in this Court by way of first appeal filed by the petitioner being First Appeal No. 454 of 1995. It is also not in dispute that the petitioner could not comply with the terms and conditions imposed by the Court Receiver regarding the payment of royalty and for which reason possession of the suit premises has been taken over from him and instead the respondents landlords have been put in possession as the agents of the Court Receiver. The fact remains that the possession of the landlords-respondents is only as the agents of the Court Receiver and not in their own rights as such.
5. This Court is really not concerned with the issues that would arise for consideration in the said First appeal. The said first appeal is obviously a derivative action based on the claim set up in the present proceeding. Whereas, the present writ petition is centered around the question as to whether the ex parte decree obtained by the respondents-landlords against the respondent 3 and 4 only and the alleged execution thereof to claim that the petitioner has been dispossessed with due process of law is not a case of fraud played on the Court or of abuse of process of Court. To my mind, when allegations of fraud played upon the Court or of abuse of process of Court are made and if established from the record, then the courts would not sit on technicalities to deny the relief to an affected party but, in that situation, it will be the bounden duty of the Court to remedy the mischief. The cardinal principle recognised by courts of law and of equity is that no man can take advantage of his own wrong (NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIAO). The Apex Court in the case of S.P. Changalvapa Naidu (dead) by his L.Rs. v. Jagannath (dead) by L.Rs. and others, has observed that the principle of “Finality of Litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. In this case, the Court below has denied relief to the petitioner on the specious plea that he had no locus standi to maintain an application for setting aside the ex parte decree even though the same was the creation of a fraud played on the Court and of abuse of process of Court. In the above case, the Apex Court has further observed that the courts of law are meant for imparting justice between the parties and that one who comes to the courts, must come with clean hands. It is further observed that a person, who’s case is based on falsehood, has no right to approach the Court and should be summarily thrown out at any stage of the litigation. For a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law and it be so treated by every Court, whether superior or inferior. The Apex Court has further observed that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. Further, a litigant, who approaches the Court is bound to produce all the materials relevant to the litigation and, if he withholds any in order to gain advantage of the other side then he would be guilty of playing fraud on the Court as well as on the opposite party. Similarly, an abuse of process is improper use or perversion of process after it has been issued. The perversion of process is improper use of regularly issued process. In other words, when the party employs the regularly issued process for some other purpose then for which it was intended by the law to effect, is nothing but abuse of process. Once the courts are satisfied with this position then it will be the bounden duty of the Court to exercise its inherent jurisdiction to remedy the mischief if necessary by removing or overlooking the procedural and technical shackles EX DEBITO JUSTITIAE so as to do complete justice between the parties.
6. In the present case, from the chronology of events the inescapable conclusion is that the landlords-respondents 1 and 2 are guilty of having played fraud on the Court and of having abused the process of Court. The landlords were fully aware that the petitioner was claiming to be in possession of the suit premises since 1970 as licencee of the original tenant Mr. B. Nath (predecessor-in-title of respondents 2 and 3 herein). Since his licence was subsisting on 1-2-1973, the petitioner became protected licencee and in fact started paying monthly rent directly to the landlords. Moreover, as the petitioner apprehended danger of being forcibly dispossessed form the suit premises at the hands of the landlords, filed a declaratory suit and also obtained ex parte injunction against the landlords in that behalf. That injunction order was duly served upon the landlords restraining them from dispossessing the petitioners from the suit premises without due process of law. Undisputedly, only thereafter the landlords filed subject suit for possession of the suit premises, albeit against respondents 3 and 4 only. The petitioner was neither joined as party to this suit nor it was disclosed in this suit that the petitioner was asserting to be in possession thereof and that the Court of competent jurisdiction has already granted order of injunction against them from dispossessing the petitioner except with due process of law. This suit came to be decreed ex parte against the respondents 3 and 4 in a short span of only two years. At best the landlords possessed decree for possession only against respondents 3 and 4, which cannot be said to be binding on the petitioner who was the protected licencee under section 15-A of the Act and, therefore, in possession in his own rights. Before this ex parte decree was put into execution the Court confirmed the ad interim injunction granted against the landlords from dispossessing the petitioner from the suit premises without due process of law. Notwithstanding this position the landlords-respondents 1 and 2 subsequently filed application for execution of the ex parte decree in respect of the suit premises which was only against respondents 3 and 4. This application was filed without disclosing that the petitioner was asserting to be in possession of the suit premises and of injunction running against them. A priori, it is a clear case of non-disclosure of material and relevant facts which were within the knowledge of the landlords. Moreover, the respondents landlords could not have, nay ought to have filed the application for execution of the ex parte decree and pressed that application, which conduct was in the teeth of the injunction order operating against them granted by a Court of competent jurisdiction at the instance of the petitioner who was claiming to be in possession of the suit premises. Be that as it may, the respondents-landlords claim that the said decree has be executed, whereas the petitioner asserts that the Bailiff report is false and that he had never lost possession of the suit premises. Even if we were to accept the Bailiff’s report as correct for the sake of argument, it merely mentions that watchman of respondent No. 4 alone was present when the decree was executed as per the warrant of possession. From the documentary evidence produced by the petitioner it is obvious that the petitioner was in possession of the suit premises. In that sense, the respondent No. 4 had no concern. In any case, one thing is abundantly clear that the Bailiff’s report has been allegedly drawn behind the back of the petitioner. If the respondents-landlords were right in contending that they have received possession of the suit premises then that stand is in complete defiance of the injunction operating against them, passed by the Court of competent jurisdiction at the instance of the petitioner, restraining them from dispossessing the petitioner from the suit premises without due process of law. Their claim that the petitioner stands dispossessed if accepted, it necessarily follows that they have caused dispossession of the petitioner contrary to the injunction operating against them for there is no valid decree for possession passed against the petitioner. In other words, assuming that the ex parte decree obtained against respondents 3 and 4 can be said to be regularly issued process, however, that was granted only for the limited purpose of being enforced against respondents 3 and 4 only and not to evict the petitioner from the suit premises who had obtained injunction from the Court to protect his possession and which was and is undoubtedly operating against the respondents-landlords. Accordingly, the respondents-landlords are amiss in using that process to evict the petitioner from the suit premises. Thus, applying the principles mentioned in the foregoing para 5, I have no hesitation but to hold that it is a clear case of fraud on Court and abuse of process of Court and it would be the duty of the Court to remedy the mischief and not disrobe the petitioner on the specious plea that he has no locus-standi to maintain the subject application as erroneously observed by the Court below.
7. The Court below has rejected the petitioner’s application also on the ground that there is some controversy between the original defendants (respondents 3 and 4 herein) and the petitioner herein about the factum of possession of the suit premises; and since both were claiming to be in possession in their own rights and, the fact that the respondent Nos. 3 and 4 have already filed separate application for setting aside the ex parte decree, the subject application instituted by the petitioner ought to be rejected. This reasoning, to my mind, is wholly unsustainable both on facts and in law. The record indicates that the petitioner had relied on several documentary evidence to show that he was in possession of the suit premises since 1970 and on that basis the Court granted injunction in his favour. Whereas, the respondent No. 4 had obviously not placed any such contemporaneous documents on record except his affidavit. In any case, today the position as it stands is that neither the respondent No. 3 or 4 have challenged the ex parte decree and the order passed on their application to set aside the ex parte decree before this Court. Therefore, even this reasoning of the lower Court is devoid of merits.
8. Accordingly, when the petitioner was in possession of the suit premises, the respondents-landlords were required to take out appropriate proceedings against the petitioner and in that proceedings the claim of the petitioner could have been determined. As observed earlier, the petitioner’s claim that he is in possession in his own rights was already sub-judice between the parties and only on determination of that suit against the petitioner and further relief of possession in favour of the landlords that the petitioner could be lawfully evicted and not otherwise. Therefore, it is not open for the respondents-landlords to contend that the petitioner has been dispossessed by following due process of law. If this be so then it was the bounden duty of the Court below and more or so of this Court to exercise inherent powers so as to remedy the mischief.
9. Accordingly, I have no hesitation in taking the view that the Court below was obliged to allow the application preferred by the petitioner instead of rejecting the same for some technical reason. The petitioner has rightly placed reliance on the decision Surajdeo v. Board of Revenue, U.P., Allahabad, to contend that although the petitioner was stranger to the suit filed by the respondents landlords even then he could have maintained the application and was competent to press the relief of setting aside the decree and declaring that the execution of such decree is nullity, since the same is obtained by fraud and collusion.
10. The Counsel for the respondents has placed reliance on Rupchand Gupta v. Raghuvanshi (Private) Ltd. and another, to contend that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it was not suggested by the sublessee that the lessor had even a plausible defence to the claim for ejectment. There can be no doubt that under the ordinary law the landlord need not join the unlawful sublessee as party, but we are concerned with the provisions of the Bombay Rent Act which extends protection to the licensee in possession whose licence was subsisting on 1-2-1973. Certain rights enure in favour of such person and he cannot be evicted unless the tenancy of the main tenant is determined and finally comes to an end. In view of section 14 of the Bombay Rent Act, after the tenancy of the head tenant comes to an end, the protected licensee would become the direct tenant of the landlord and the landlord can evict such person only upon following the procedure established by law. In other words the protected licencee cannot be thrown out from the premises on the basis of decree obtained against the head tenant. In this view of the matter, it was incumbent on the respondents-landlords to obtain appropriate orders against the petitioner from the Court of competent jurisdiction especially when the landlords had full knowledge about the presence of the petitioner and his claim that he was in lawful occupation and was protected by virtue of the statutory provisions. Understood in this perspective, the above decision relied upon will be of no avail.
11. The next decision relied upon by the Counsel for the respondents is reported in All India Rent Control Journal Burmah Shell Oil Distributing (Bharat Petroleum Corporation Ltd). v. Khaja Midhat Noor and others, Reliance was placed on para 11 of this decision. This decision has followed the above said decision of the Apex Court in Rupchand (supra). Since I have already commented upon the application of the said decision, the same reason would apply even with regard to the present decision and the same would be of no avail to the respondents.
12. Reliance has also been placed on the Full Bench decision of this Court reported in Bombay Law Reporter Vol. XLVII page 118, Mangaldas Girdhardas v. Govindhlal Ishwarlal. Even this decision takes the view that the sub-tenant has no right to be joined as party in a suit instituted by the landlord against his tenant. I have already analyzed the ambit of provisions of section 14 of the Act. Ordinarily, it would not be necessary for the landlord to join the sub-tenant or sublessee in a suit for eviction against his head tenant but then the landlord should be content with the decree only against his head tenant and cannot proceed to execute that decree against the subtenant unless the tenancy of the sub-tenant is determined and decree obtained from the Court of competent jurisdiction.
13. The argument now advanced that the entire issue is pending before this Court in the First appeal between the parties, to my mind, this plea is wholly ill-advised and misconceived. The issues that is pending before this Court in the said First appeal emanates from the suit instituted by the respondents-landlords in the year 1985 before the City Civil Court, Bombay for injunction on the ground that the landlord have already executed the decree. That suit is in fact, a derivative proceedings of the present one. In as much as, we are examining the matter in the context of the situation that obtained immediately after the ex parte decree and the attempted execution of that decree by the landlords, seeking to dispossess the petitioner who was in possession who claims to be the protected licensee; Accordingly, the outcome of the First Appeal will not control the adjudication of the issues that arise for consideration in the present petition.
14. Having examined the matter in this perspective, to my mind the appropriate relief to be granted in this petition is to set aside the impugned order and instead allow the subject application preferred by the petitioner in terms of prayer Clauses (a) and (b). At this stage no relief in terms of prayer Clause (c) of that application can be granted since it has come on record that subsequently the Court Receiver has been appointed in respect of the suit premises and at the moment the respondents landlords are stated to be in occupation of the suit premises in the capacity of agents of the Court Receiver. It will be open to the petitioner to take out appropriate proceedings for further reliefs if so advised before the appropriate forum.
15. While parting, I shall like to make it clear that none of the observations in this decision shall affect the merit of the matter in issue in RAD Suit No. 2454 of 1981 stated to be pending between the parties in the Small Causes Court, Bombay. The same shall be decided on its own merit and in accordance with law.
16. Accordingly this writ petition succeeds in the above terms with costs all throughout.
17. At this stage the learned Counsel for the respondents landlords prays that the operation of this order be stayed. I see no reason to entertain this request when I am more than convinced that this is a case of fraud and abuse of process committed by the respondents landlords. In the circumstances request for stay of operation of this order is rejected.
Certified copy expedited.