Delhi District Court
X. Miss Gulishta vs Pt. Shri Kishan on 20 July, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCT No. 48/2013 (New No. 53/2016)
CNR No. DLWT01-001273-2013
Mustak (Deceased)
Through his Legal Heirs:-
I. Mohd. Mustafa
R/o H.No. 3896/A,
Kucha Mohattar Khan,
Mori Gate, Delhi-110006
II. Musthkim
R/o D-169, Nehru Park Prem Nagar,
Loni, Ghaziabad, U.P.
III. Mehboob
R/o D-169, Nehru Park Prem Nagar,
Loni Ghaziabad, U.P.
IV. Liyakat
R/o 901, Gali No.11,
New Mustafabad, Rajiv Gandhi Nagar,
Delhi-110094
V. Rahimuddin
R/o 3896/A, Kuncha Maohttar Khan,
Mori Gate, Delhi-110006
VI.Fahimuddin
R/o 901, Gali No.11,
New Mustafabad, Rajiv Gandhi Nagar,
Delhi-110094
VII. Nafees
R/o 901, Gali No.11,
RCT Nos. 53/2016 & 12/2016 Page 1 of 21
New Mustafabad, Rajiv Gandhi Nagar,
Delhi-110094
VIII. Noorjahan
W/o Salim
R/o 227, E-Block, Gali No.12,
Nehru Vihar, Dayalpur,
Delhi-110009
IX. Naseem
W/o Sabir
R/o Gram New Badarpur,
Near Welcome City,
Loni, Ghaziabad, U.P.
X. Miss Gulishta
W/o Mohd. Ayaz
C/o Rahis Ahmed
Mohalla Rangrejjan, Sakko Wali Gali,
Village Sanjhapur, Tehsil Muwana,
District Meerut, U.P. ...... Appellant
Versus
Pt. Shri Kishan,
S/o Late Jyoti Prasad (Deceased)
Through LR:
Sh. Pradeep Kumar Sharma,
1904, Kucha Challan, Khari Baoli,
Delhi. ...... Respondent
Date of Institution : 30.05.2013
Date of judgment : 20.07.2020
Appearances:
Sh. Rajesh Gupta, Advocate for LR Nos. 1 to 5 of deceased-
appellant/objector Mustak.
Sh. Ratneshwar Pandey, Advocate for LR Nos. 2 and 3 of deceased-
appellant/objector Mustak.
RCT Nos. 53/2016 & 12/2016 Page 2 of 21
Sh. Bharat Malhotra, Advocate along-with Sh. Kartikey Sharma,
Advocate for the respondent.
AND
RCT No. 58/2013 (New No. 12/2016)
CNR No. DLWT01-000301-2013
Shri Arun Kumar
W/o Late Kedar Nath,
R/o 3896, Kucha Mohattar Khan,
Mori Gate, Delhi-110006 ....... Appellant
Versus
Shri Pradeep Kumar Sharma
S/o Late Pt. Siri Kishan
R/o 1904, Kucha Challan,
Khari Baoli, Delhi-11006 ...... Respondent
Date of Institution : 15.07.2013
Date of judgment : 20.07.2020
Appearances:
Sh. Anurag Dubey and Sh. H.C. Sukhiya, Advocates for the appellant.
Sh. Bharat Malhotra, along-with Sh. Kartikey Sharma, Advocates for
the respondent.
JUDGMENT
1. In this case arguments were heard by this Court prior to the lock-down period arising out of COVID-19 pandemic on 06.03.2020 and the matter was listed for orders on 26.03.2020 and since the Courts were closed, the date for orders was automatically given for 31.07.2020. However, in terms of various directions by the Hon'ble High Court of Delhi as also in CWP (C) No. 3026/20 and CM APPLs No. 10542/2020 and 10543/2020 dated 01.05.2020 by the Hon'ble RCT Nos. 53/2016 & 12/2016 Page 3 of 21 Judges of the Delhi High Court, the matter has been preponed and the parties have been intimated to appear for pronouncement of Judgment/orders today.
2. This common order shall decide the above noted two appeals filed under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act'), against order dated 29.04.2013 passed by Ms. Charu Aggarwal, the then Ld. CCJ-cum- ARC (West), THC, Delhi, which raise a common question of law and intertwined facts and can be conveniently disposed off together.
BACKGROUND FACTS
3. The facts common to the aforesaid appeals are that in Eviction Petition No. 357/2008 titled as Pt. Siri Ram Kishan, Through his LRs v. Ram Kishan & Ors., vide Judgment dated 20.10.1998 the eviction petition filed by the petitioner (respondent through LR in the present appeals) eviction orders were passed under Section 14 (1) (a) (b) of DRC Act in respect of property shown in Site Plan Ex.CW-1/34 i.e. Tin Sheds at 3846, Shahburj, Mori Gate, Delhi and as regards petition under Section 14 (1) (j) of the DRC Act, the respondents/tenants were directed to restore the premises to its original condition within two months of the order, failing which eviction under Section 14 (1) (j) of the DRC Act was ordered to be followed and the matter was listed for the report with regard to Section 14 (1) (j) on 21.12.1998.
RCT Nos. 53/2016 & 12/2016 Page 4 of 214. Aggrieved thereof, the respondents/tenants and to be very precise, the respondent No.9 Sh. Kedar Nath and respondent No.10 Sh. Mohd. Yasin, in whose favour tenancy premises had been proved to have been subleted, assigned or parted with preferred RCA No. 728/1998 and 804/1998 respectively before the Ld. Addl. Rent Control Tribunal, which appeals were dismissed vide common order dated 24.04.2003. The said appellants Sh. Kedar Nath and Sh. Mohd. Yasin, who were arraigned as respondent Nos. 9 and 10 in the original petition, preferred CM (M)-689/2003 before the Hon'ble High Court of Delhi, which was also dismissed vide Judgment dated 19.04.2010. It is also admitted fact that the appellant Mohd. Yasin (respondent No.10 in the main petition) filed Special Leave to appeal viz. SLP (Civil) No. 4457/2011 titled as Mohd. Yasin (deceased) & Ors v. Pt. Siri Kishan and the same was also dismissed by the Hon'ble Supreme Court vide order dated 11.04.2011. However, the appellant/sub-tenant/assignees was granted three months time to vacate the premises on furnishing of an undertaking. Since the said undertaking was not filed, the petitioner/DH filed a Contempt Petition (Civil) No. 266/2013 in SLP (CC) No. 10695/2011 and vide order dated 28.04.2014 the previous order dated 11.04.2011 granting three months time was vacated and the eviction order dated 20.10.1998 attained finality.
5. On the petitioners/landlords i.e. the Decree Holders filing execution application No. 33/2011 for execution of the Judgment and Decree dated 20.10.1998, the JDs namely Kedar Nath and LRs of Mohd. Yasin filed certain objections, which were dismissed but during RCT Nos. 53/2016 & 12/2016 Page 5 of 21 the pendency of the execution proceedings, one applicant/objector Mustak S/o Mausam Ali came forward and filed objections dated 12.10.2012 under Order XXI Rule 97 CPC. In brief, the applicant/objector Mustak, has since died on 24.02.2014 and is survived by his LRs/appellants, who have been impleaded on the record in terms of application under Order XXII Rule 3 CPC allowed vide order dated 05.07.2019 by this Court. Reverting back to the objections filed by the applicant/objector Mustak, now represented through his LRs, it has been claimed that he has been in possession of property No. 3896-A,Kuccha Mohattar Khan, Mori Gate, Delhi since childhood; and that he was not a party to the eviction petition bearing E-357/2008 and, therefore, not bound by the Judgment and Decree dated 20.10.1998. The said objections filed by the applicant/objector Mustak S/o Mausam Ali came to be dismissed vide order dated 29.04.2013 and it would be expedient to quote the relevant order in extenso as under:-
"This order shall dispose of third party objections filed by one Mustak S/o Mausam Ali U/o 21 Rule 97 CPC seeking to object the execution of eviction order dated 20.10.1998 in Eviction Petition No. 357/08 titled as 'Pt. Siri Kishan (Deceased) through L.R.s Vs. Ram Kishan & Ors. After more than thirty years of litigation the eviction order in respect of suit premises bearing No. 3896, Shahburj, Mori Gate, Delhi has attained finality up to the Hon'ble Supreme Court. The Hon'ble Supreme Court has dismissed the S.L.P. (Civil) No. 4457/2011 vide its order dated 11.04.2011 and thereby the eviction order in respect of the afore mentioned premises has become final and binding on parties to the decree. The applicant who has filed the present objections claims himself to be in possession of property No. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi since his childhood and contends that in case he is dispossesed from the said property under the garb of execution of decree in question, he shall suffer irreparable injury. It appears to me that the RCT Nos. 53/2016 & 12/2016 Page 6 of 21 objections have been filed by the applicant at the behest of the J.Ds. to delay execution of eviction order against them. The applicant/objector has not disclosed how, when and in what capacity he came in possession of the aforementioned property. He has not filed any document of his title or claimed ownership. On a close reading of the pleadings of the objector it may be seen that the property in which he claims to be in possession of different from the property in regard to which eviction order have already been passed and has attained finality up to the Supreme Court. In this regard para 4 of the replication to reply on merits filed by the objector is significant and the relevant portion there from is extracted below:
"...Furthermore, it is gathered that the decree holder mentioned the name of the locality as Shahburj, whereas the objector is in possession of property Kucha Mohattar Khan".
It may thus be seen from the above that the objector Mustak S/o Mausam Ali has nothing to do with the suit premises in respect of which eviction order have been passed and have attained finality up to the Supreme Court. Even otherwise, the objector has no locus standi to obstruct the execution of the decree in respect of the aforesaid premises. His objections are, therefore, dismissed."
6. It is pertinent to mention here that Decree Holder also filed an application dated 16.10.2012 under Section 152 CPC for correction of so called "typographical error" in the main eviction order dated 20.10.1998, which was also simultaneously decided and allowed on the same day by the Ld. ARC vide separate order dated 29.04.2013, which reads as under:
"Heard.
The D.H. has filed an application dated 16.10.2012 u/s 152 C.P.C. for correction of typographical error int he eviction order dated 20.10.98 regarding number of the suit property inadvertently mentioned as 3846 instead of 3896 in the said order. Opposition to the proposed correction has been filed by the legal heirs of the deceased J.D. according to whom if the correction as suggested in the application is allowed to be carried out, it would materially alter the decree as it would amount to substituting altogether a different property in the eviction order.RCT Nos. 53/2016 & 12/2016 Page 7 of 21
I have considered the submissions of the Counsels for the parties and have also seen the original file of the eviction case and have also gone through the orders passed in the matter up to the apex court. The description of the suit property as given in the eviction petition and the site plan Ex CW-1/34 annexed therewith is property No. 3896, Municipal Ward No. III, Shahburj, Mori Gate, Delhi. There was never ever any dispute between the parties about the identity of the suit property in regard to which eviction order u/s 14 (1)
(a) (b) & (j) were passed by the trial court on 20.10.98 and appeal against the same has been dismissed up to the Hon'ble apex court vide order dated 11.04.2011 passed in S.L.P. (Civil) No. 4457/2011, it appears that there occurred a typographical error in mentioning the number of the suit property as 3846 instead of 3896 and the said error is, therefore, allowed to be corrected. After correction the description of the suit property given in paras 3 and 20 of the trial court judgment/order dated 20.10.1998 shall be read as property No. 3896, Shahburj, Mori Gate, Delhi. The instant application filed by the D.H. u/s 152 C.P.C. is disposed of accordingly."
7. The impugned order dated 29.04.2013 whereby the objections of the applicant/objector Mustak were dismissed are assailed in the present appeal, now survived by his legal heirs primarily on the ground that the eviction order had been passed in respect of property No. 3846, Shahburj, Mori Gate, Delhi, which the Decree Holder has sought to be converted by moving an application under Section 152 CPC to premises No. 3896, Municipal Ward No. III, Shahburj, Mori Gate, Delhi and in the garb of said order dated 29.04.2013 the applicant/objector is sought to be evicted unlawfully; and that the impugned order dated 29.04.2013 is further assailed on the ground that once the Ld. ARC found that the property No. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi-110006 was different property from the one mentioned in the eviction order dated 20.10.1998, his application under Order XXI Rule 97 CPC should have been allowed.
RCT Nos. 53/2016 & 12/2016 Page 8 of 218. In so far as the second appeal bearing RCT No. 58/2013 (New No.12/2016) filed by Sh. Arun Kumar S/o late Sh. Kedar Nath, it is claimed that he has been in possession of the property No. 3896, Kucha Mohattar Khan, Mori Gate, Delhi-110006 in his own rights and the respondent/Decree Holder has no right, title or interest in the same; and that the respondent/Decree Holder has hatched a conspiracy and thereby seeking eviction in respect of wrong property in an unlawful manner; and that the order dated 29.04.2013 followed by order dated 30.05.2013 are nonest in law since the Ld. ARC committed a grave illegality in failing to appreciate that the matter was pending in the Hon'ble Supreme Court. The order dated 30.05.2013 reads as under:
"Case file called on an application u/s 151 CPC filed by the LRs of JD No. 2 praying for hearing on their pending objections against execution with a further prayer not to evict them from the suit premises during the pendency of their SLP in the Supreme Court.
I have heard the learned Counsel for the LRs of JD No.2 on the above application and also on their objections against execution pending on record. I have also perused the record of the case.
The eviction order under execution pertaining to suit property bearing No. 3896, Shahburj, Mori Gate, Delhi has attained finality up to the Hon'ble Supreme Court. The SLP filed by the LRs of JD No. 3 being SLP (Civil) NO. 4457/2011 against the order of the High Court of Delhi dated 19 th April 2010 in CMM No. 689/2003 was dismissed by the Hon'ble Supreme Court vide its order dated 11th April, 2011. The third party objection u/o 21 rule 97 CPC against execution filed by one Mustak were dismissed by this Court vide its order dated 29th April, 2013 and thereafter two separate application for stay of operation of order dated 29.04.2013, one filed by the third party objector Mustak and the other by Md. Shabbir were also dismissed by this court vide its order dated 22.05.2013 and warrant of possession in respect of suit premises were issued on the same day directing the DH to appear before the ACJ for allotment of bailiff on 27.05.2013 and to report delivery of possession to this Court on 07.06.2013. The W/P is reported to have already been RCT Nos. 53/2016 & 12/2016 Page 9 of 21 issued and its execution at site is awaited.
The Ld. Counsel appearing on behalf of the LRs of JD No.2 has brought it to my notice that the objections against execution filed by the LRs of JD No.2 are pending on record and till the time they are decided the W/P should be kept in abeyance. I have carefully perused the objections filed by the LRs of late JD No.2 and have also heard their Ld. Counsel in the matter. The LRs of JD No.2 seeks to resist the execution primarily on the ground that they are the owners and in possession of the suit property since their childhood. According to them they are the owners of the said property by adverse possession. They say that the DH was neither the owner nor ever remained in its possession. The LRs of JD No.2 seek to rely upon a notice dated 25.06.84 received by JD No.2 from the competent authority (Slums) to show their ownership of suit property described in the notice as property No. 3896/III, Mori Gate, Delhi. The Ld. Counsel for the JD contends that the LRs of JD No.2 have filed a SLP in the Supreme Court against the judgment and order of the High Court dated 19th April, 2010 and according to him the SLP is still pending in the Supreme Court. The Ld. Counsel submits that the W/P should not be executed till the SLP is decided by the Hon'ble Supreme Court.
This court does not find any substance in any of the above contentions urged on behalf of the LRs of JD No.2 As far as plea of ownership of the suit property by adverse possession raised by them is concerned, it may be seen that the same objection was taken by them in their defence to the main eviction proceedings and the same after consideration stood rejected by all the courts. The LRs of JD No.2 were party to the main proceedings and the eviction order that has attained finality binds them. The objection in this regard, if entertained, will amount to reopening the whole eviction decree that has attained finality up to the apex court and the same is impermissible in law. All the JDs including LRs of JD No.2 are liable to be evicted from the suit premises as there is no stay against execution from any superior court. Although the LRs of JD No.2 have contended that a SLP filed by them against the order dated 19th April, 2011 of Delhi High Court is pending in the Supreme Court, but they have neither given any particulars of the SLP in their objections nor have disclosed it to be court even when asked specifically as to what is the status of said SLP. It shall be relevant to note that the SLP filed by the LRs of JD No.l3 have been dismissed to the knowledge of LRs of JD No. 2 by the Hon'ble Supreme Court vide its order dated 11th April, RCT Nos. 53/2016 & 12/2016 Page 10 of 21 2011. It is not the case of the LRs of JD No.2 that there is any stay from the Supreme Court in their SLP.
In view of the foregoing, I do not find any merit in the objections of the LRs of JD No.2 and the same are hereby dismissed. In view of the order of this court dated 29 th April, 2013 on application of DH u/s 152 CPC the objections against execution filed by the LRs of JD No.3 are also deemed to have been dismissed. There does not seem to be any obstacle in the execution of W/P as all the objections against execution on record stand decided against the JDs. The W/P be executed in accordance with law and compliance be reported to the court on date already fixed i.e. 07.06.2013."
9. Needless to point out that notice of the present appeals had been issued to the DH/respondent, who has since died and survived by his legal heirs Pradeep Kumar Sharma and the two appeals have been opposed tooth and nail.
ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR PARTIES
10. Suffice to point out, the main grievance of the Ld. Counsel for the appellants/ LRs of the deceased objectors in appeal No. 48/2013 (New No. 53/206) has been that they have been in possession of the premises NO. 3896-A, Kucha Mohattar Khan, Mori Gate, Delhi and hence he cannot be dispossessed in execution of Judgment/Decree dated 20.10.1998 as even otherwise the eviction order dated 29.04.2013 pertained to a different premises No. 3896, Municipal Ward No. III, Shahburj, Mori Gate, Delhi. In so far as the appeal bearing No. 58/2013 (New No. 12/2016) is concerned, without further ado, the same does not come up for consideration in view of decision in SLP (Civil) No. 4457/2011 dated 11.04.2011 and subsequent order dated 28.04.2014 in SLP (Civil) NO. 10695/2011 by RCT Nos. 53/2016 & 12/2016 Page 11 of 21 the Hon'ble Supreme Court. There is no gainsaying that a bare reading of the Judgment dated 20.10.1998 would show that respondent No.9 Sh. Kedar Nath and respondent No.10 Sh. Mohd. Yasin were found to be in exclusive possession of part 'A' and part 'B' of the property as shown in the site plan Ex.CW-1/34 and in so far as decision in SLP is concerned, it is binding on the legal heirs/respondent Sh. Kedar Nath as well.
11. The Ld. Counsel for the respondent/DH, now survived by his legal heir, has urged that the applicant/objector Mustak, now survived by his legal heirs, is a party litigating at the behest of JDs and putting obstructions to the execution of the decree on baseless grounds in as much as property No. 3896, Futa Darwaza, Mori Gate and property No. 3896, Shahburj, Mori Gate, Delhi as well as property No. 3896, Ward No.III, Kucha Mohattar Khan, Shahburj, Mori Gate, Delhi are one and the same property and there is no property bearing No. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi. It is vehemently urged that there has never been any dispute about location and identity of the tenancy premises, which was covered by the main Judgment dated 20.10.1998 and the appeal with regard to which has been dismissed upon Hon'ble Supreme Court.
DECISION
12. I have given my thoughtful consideration to the submissions made by the ld. Counsel for the parties and I have also perused the appeal files as well as record of the ld. Trial Court. First RCT Nos. 53/2016 & 12/2016 Page 12 of 21 thing first, the present objections haven't been preferred under section 25 of the DRC Act, which provides as under:
"25. Vacant possession to landlord -
Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person there from:
Provided that nothing in this section shall apply to any person who has an independent title to such premises."
13. Exfacie, the objector in the instant case, is not claiming any rights through the judgment debtors but an "independent title" to the premises giving it property no. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi as per the proviso to section 25 of the DRC Act, and the claim of the objector/appellants is that in the garb of execution of decree in respect of certain premises, the Decree holder is getting him evicted or dispossessed from a different premises. There is no gainsaying that in order to decide such claim by the objector/appellants, the power of the Rent Controller is identical to that of the Civil Court, by virtue of Section 42 of the Delhi Rent Control Act, 1958 read with Rule 23 of the Delhi Rent Control Rules, 1959, which are extracted below:
"Section 42. Controller to exercise powers of Civil Court for execution of other orders--Save as otherwise provided in Section 41, an order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller RCT Nos. 53/2016 & 12/2016 Page 13 of 21 as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court."
"Rule 23. Code of Civil Procedure to be generally followed--In deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908."
14. That being the legal provisions, the objections vide proviso to section 25 of the DRC Act could only be determined in terms of Order XXI CPC as no other mechanism is provided by the DRC Act. In the case of Mohd. Farjam v. Sarfaraz Ahmed, 2010 SCC OnLine Del 1604 : (2010) 171 DLT 309 at page 313, the applicant elected for a remedy by moving an application under Order 21 C.P.C objecting to his dispossession. Refereeing to Section 42 of the Delhi Rent Control Act, it was held that the ruling of the executing Court that it did not possess jurisdiction to decide on issues concerning title does not foreclose the plaintiff's remedies i.e. Order XXI Rule 58, Rules 98-101. It was held that the Court that is called upon to execute a decree is also empowered to consider and rule upon all issues arising out of the right to possession in respect of the property as well as the title to it. The judgment of the Supreme Court in Usha Sinha v. Dina Ram, (2008) 7 SCC 144 was referred in which the Hon'ble Supreme Court . had cited with approval and applied the ruling in a previous decision, i.e. Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723 to the following effect:
"...A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree..."RCT Nos. 53/2016 & 12/2016 Page 14 of 21
15. That being the premise for maintainability of the objections filed by the appellants, this Court may hasten to add that the right of party to resist or raise objection to a execution of a decree and determination of legality of such resistance or obstruction by the Executing Court are two different legal scenarios. In order to decide the underlying premise of the present two appeals, it would be expedient to refer to the relevant provisions of the Civil Procedure Code,i.e. Order XXI Rules 58, and 98-10, that are extracted below:
"ORDER XXI RULE 58. Adjudication of claims to, or objections to attachment of, property--(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit."
"ORDER XXI RULE 98. Orders after adjudication--(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2),--
(a) xxxxxxxxx (Not relevant)
(b) xxxxxxxxx (Not relevant) (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution RCT Nos. 53/2016 & 12/2016 Page 15 of 21 proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
ORDER XXI RULE 101. Question to be determined--All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
16. A conjoint reading of Order 21, Rules 97, 98 and 101 of the CPC brings to the fore that If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. If on such adjudication or determination the court finds that the resistance or obstruction was without just cause, then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Hence, Order XXI is a complete code for resolving all such disputes and such RCT Nos. 53/2016 & 12/2016 Page 16 of 21 order shall be akin to passing of a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. In this regard reference may be invited to decision in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694.
17. In the said view of the proposition of law and procedure, reverting to the instant appeals, this Court has no hesitation in holding that the same are devoid of any merits. There is involved no determination of any right, title or interest in the subject property in as much as the objector now survived by his legal representatives fail to disclose any foundational facts to put any justified resistance or obstructions to the execution of the impugned decree. The ld ARC has very rightly observed that the pleadings of the objector are devoid of any specifics and lack material particulars. There is no iota of averment as to how, when or in what manner the objector came to occupy and possess the property, if any, bearing no. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi, and how or in what manner the said property is connected with the subject property of the decree.
18. In other words, there is no averment in the objections filed on the record by the predecessor in interest or his LRs as to in what capacity, when and from whom he came to occupy and reside in the same. There is no averment if the property has been occupied for residential purposes or commercial purposes. There is filed no site plan RCT Nos. 53/2016 & 12/2016 Page 17 of 21 by the deceased objector nor by his legal representatives nor any material to decipher the nature or extent of the said property. There is no iota of whisper if the property no. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi have been assessed to house tax. Further, there is no document or material on the record that the property no. 3896A, Kucha Mohattar Khan, Mori Gate, Delhi has any thing to do with the property or the tenancy premises covered by the impugned judgment dated 20.10.1998.
19. To sum up, there are no foundational facts pleaded nor any substantive material is/are placed on the record by the deceased objector or his legal representatives that the obstructionist has been having any right, title or interest in the tenancy premises which is the subject matter of impugned judgment and decree dated 20.10.1998. The obstructionist can not lay any challenge to the order dated 29.04.2013 whereby the typographical error was allowed to be rectified in terms of the application under section 152 Of the C.P.C. The plea that the objections have been dismissed without affording the objector an opportunity to lead evidence cuts no ice. This determination in terms of order XXI Rule 101 CPC is proceeding summarily because there is nothing to warrant recording of evidence on any issues since no disputed question of facts are pleaded or espoused otherwise. Ld ARC has rightly opined that the objector appears to have filed the present application under ORDER XXI Rule 97 CPC at the behest of the Judgment debtors to delay and frustrate the execution of the impugned decree. At the cost of repetition, the impugned judgment dated RCT Nos. 53/2016 & 12/2016 Page 18 of 21 20.10.1998 has attained finality up to the Hon'ble Supreme Court and this Court has been shown no compelling facts and circumstances to re-invent the wheel. It goes without saying that the objector at no stage of the pending trial and or other proceedings intervened to show or espouse any legal rights in respect of the tenancy premises in question.
20. The mischief committed by the deceased/objector becomes more apparent when it is seen that in proof of his possession or occupation of the presmises, he has placed on record photocopy of Ration Card which is at Page 15A of the trial Court record, which describes his premises as 3896, Kucha Mohattar Khan, Mori Gate and similar is the address mentioned in his bank account with Syndicate Bank at page 18. He then places on record photocopy of a registered letter addressed to him at House No. 3896 but in another photocopy, it is addressed to him at 3896-A. The photocopy of the Election I-Card at page 22 of the trial Court record indicates his residence at 3896-A, Kucha Mohattar Khan, Chandni Chowk, Delhi whereas photocopy of Driving License at page 23 of the trial Court record indicates his address at 3896, Kucha Mohattar Khan. The objector then files photocopies of electricity bills for the period 30.11.2009, 28.09.2010, 25.11.2010, 28.11.2011, 31.05.2011, 26.05.2012, 30.07.2012 wherein he is shown as Consumer for the premises No. 3896A, other things remaining the same but then there is another letter dated 07.07.2011, which is addressed to him by BSES Yamuna Power Ltd. for revision of sanctioned load and revision in security deposit that is addressed to him at 3896. The game-plan of the objector is clear that by RCT Nos. 53/2016 & 12/2016 Page 19 of 21 camouflaging that they have been in possession of property No. 3896- A, they are without any just cause and unlawfully resisting or obstructing the execution of the decree dated 20.10.1998.
21. Lastly, before parting with this case, it must be emphasized that the present appeals raise 'no question of law' much less than any 'mixed question of law' , and therefore, also there is no merit in the present appeal.
FINAL DECISION
22. In view of the aforesaid discussion, I find that the appeal bearing No. 48/2012 (New No. 53/2016) filed by the deceased objector, now survived by his Legal Representatives is devoid of any merits and has been filed with the ulterior motive to delay and frustrate the execution of impugned decree and hence the same is dismissed. It would bear repetition that in so far as appeal bearing No. 58/2013 (New No. 12/2016) is concerned, same is non est in law after final decision by the Hon'ble Supreme Court dated 28.04.2014, as the appellant derives his right, if any, from the deceased Kedar Nath, who was arraigned as respondent No.9 in the main eviction petition. In the light of above said facts and circumstances, I find that this is a fit case where exemplary costs be imposed upon the appellants for gross abuse and misuse of process of law, and therefore, the appellant is burdened with costs of Rs. 50,000/- to be paid jointly or severally in RCT No. 48/2013 (New No. 53/2016) and likewise in appeal No. 58/2013 (New No. 12/2016), the appellant is burdened with costs of Rs. 50,000/-.
RCT Nos. 53/2016 & 12/2016 Page 20 of 2123. Trial Court record along-with copy of this Judgment be sent back. A signed copy of this Judgment be placed in the file bearing RCT No. 58/2013 (New No. 12/2016). The file of both the appeals be consigned to Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2020.07.22 16:53:11 +0530 Announced in the open Court (DHARMESH SHARMA) on 20th July , 2020 District & Sessions Judge/RCT (West) Tis Hazari Courts: Delhi RCT Nos. 53/2016 & 12/2016 Page 21 of 21