Punjab-Haryana High Court
Santosh Kumar Tiwari vs Jainendra Gurukul & Anr on 28 October, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
ESA No.6 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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ESA No.6 of 2013
Date of Decision: 28.10.2014
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Santosh Kumar Tiwari
. . . . Appellant
Versus
Jainendra Gurukul, Panchkula and another
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Sanjiv Pandit, Advocate,
for the appellant.
Mr.Adarsh Jain, Advocate,
for the respondents.
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RAKESH KUMAR JAIN, J.
This appeal is directed against the order dated 19.4.2011 and 25.1.2013, dismissing the objection filed by the appellant.
The brief facts taken from the order of the appellate Court are that an ex parte judgment and decree was passed in Civil Suit No.1592 of 1996 against Anil Kumar on 14.2.2000 in which it was averred that Anil Kumar was a tenant and had defaulted in the payment of rent and the suit property was required for personal use and occupation. Anil Kumar did not appear despite service and was proceeded against ex parte on 24.10.1997 and thereafter, ejectment order was passed on 14.2.2000. The execution was filed for taking possession but summons were received back unexecuted on VIVEK PAHWA 2014.11.17 14:52 I attest to the accuracy and authenticity of this document ESA No.6 of 2013 -2- 20.2.2003. The appellant filed objections under Order 21 Rule 60 of the Code of Civil Procedure, 1908 [for short 'the CPC] for dismissing the execution and for recalling the warrant of possession claiming that demised premises was never occupied by Anil Kumar, who had never resided in it and was wrongly arrayed as defendant in which the appellant has been residing in his own right. It was claimed that he had voter identity card, LIC policies, land acquisition notices, ration card etc. of that address in his name. The objections were contested by the decree-holder claiming that the appellant was never the tenant on the property in dispute rather it was Anil Kumar, who was in occupation, whose tenancy was terminated through notice and since he failed to appear and contest the suit and left the premises after handing over the possession to the appellant, he is also bound by the decree. The Court framed the following issues on 10.8.2010: -
"1. Whether applicant is occupying and residing in the premises in question i.e. House No.D2, Old Panchkula as his own right and JD never resided and occupied the premises in question, as alleged? OPA
2. Whether this application is not maintainable? OPR
3. Whether the applicant has no locus standi and no cause of action to file the present application? OPD
4. Relief."
VIVEK PAHWA 2014.11.17 14:52 I attest to the accuracy and authenticity of this document ESA No.6 of 2013 -3-
Both the parties led their respective evidence in support of their claim. The objection was dismissed by the Executing Court on 19.4.2011 and the appeal filed by the appellant was dismissed by the Appellate Court on 25.1.2013.
The case of the appellant is that Anil Kumar was not the tenant and he was in possession of the property in dispute in his own right, meaning thereby he also does not claim himself to be a tenant over the property in dispute although he has been claiming his possession. No ownership rights have been claimed on the basis of adverse possession and his application in this regard was dismissed on 25.10.2010 which remained unchallenged. The case of the appellant is that he had never been joined in the suit which was filed against the fake person namely, Anil Kumar by the respondent and obtained an ex parte decree. However, a perusal of his statement, when he appeared as AW1, would clinch the issue because he had admitted that though it is correct that when the suit No.1592 of 1996 was filed, summons of the suit were issued in the name of Anil Kumar but he had not received those summons, but it is correct that when the summons had come, at that time he knew about the summons and the contents of the plaint. It is also correct that he had never filed an application to become a party to the said suit. It is also admitted by him that he had never taken permission from the respondent to live in the premises in dispute and when he saw the summons even at that time he did not come to the owner of the property in dispute obviously to make a complaint that he had filed the suit against a fake person though he is in possession. VIVEK PAHWA 2014.11.17 14:52 I attest to the accuracy and authenticity of this document ESA No.6 of 2013 -4-
In view of these facts, no relief can be granted to the appellant as he very well knew about the proceedings in the Civil Suit No.1592 of 1996 and also that the proceedings were carried out allegedly against a fake person, but he did not choose either to register his complaint to the owner of the property or to the Court where the suit was pending and allowed an ex parte decree against that person to be passed. Thus, in these circumstances, there is no error on the part of the Courts below in dismissing the appeal filed by the present appellant.
Accordingly, the present appeal is found to be without any merit and the same is hereby dismissed.
(RAKESH KUMAR JAIN) 28.10.2014 JUDGE Vivek VIVEK PAHWA 2014.11.17 14:52 I attest to the accuracy and authenticity of this document