Andhra HC (Pre-Telangana)
S.N. Jalandhar And Anr. vs K. Sandhya And Anr. on 16 November, 1999
Equivalent citations: 2000(1)ALT716
ORDER T. Ch. Surya Rao, J.
1. The revision petitioners assail the order dated 31-8-1999 passed by the learned Principal Rent Controller, Secunderabad, in E.A. No. 32/1998 in E.P. No. 36/1995 in R.C. No. 197/1987. The first respondent herein filed E.A. No. 32/1998. The facts inter alia in a narrow compass are as follows.
2. The first respondent herein filed R.C. No. 197/1987 seeking eviction of the second respondent herein. R.C. No. 197/1987 was allowed while ordering eviction. Appeal filed thereon and also the revision petition filed before the High Court have been disposed of. Eventually the eviction ordered by the Rent Controller was confirmed. Then the first respondent sought to evict the second respondent by filing E.P. No. 36/1995. When the Bailiff of the Court went to carry out the order, there was an obstruction from the revision petitioners and therefore, the warrant could not be executed. The first respondent herein, therefore, filed the petition under Rule 23(7) of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 for removal of the obstruction.
3. The case of the first respondent inter alia in the petition is that there is only one premises bearing No. 10.5.105 and there is no separate premises bearing No. 10.5.105A and that the revision petitioners' obstruction was set up by the second respondent-judgment-debtor. That petition was resisted by the revision petitioners as well as the second respondent-judgment-debtor. As can be seen from the respective counters filed by them, it is their plea inter alia that the premises bearing No. 10.5.105A is different, wherein the revision petitioners have been residing. Therefore, the obstruction is in good faith. During the course of enquiry two witnesses have been examined on the side of the petitioner-landlady and documents Exs. P-1 to P-7 have been got marked, On the side of the obstructors, five witnesses have been examined and documents Exs. R-1 to R-14 have been got marked. Exs. X-1 and X-2 have been got marked through the witness R.W. 4. On the side of the Court, C.W. 1 Commissioner has been examined and the documents Exs. C-1 to C-10 have been got marked. Upon considering the evidence both oral and documentary the Execution Court has come to a conclusion that there is no premises with Door No. 10.5.105A in existence. With that finding, ultimately the Court has ordered obstruction to be removed. That is now being impugned in this revision petition by the two obstructors. The contentions of the learned Counsel for the revision petitioners are two fold to wit;
(1) Bonn fide assertion is sufficient and in the summary enquiry the Court should not delve very much on the title to the properties, and (2) The scope of the revision is limited as can be seen from Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act. The learned Counsel for the first respondent on the other hand contends that the order passed by the Execution Court is a well considered one and does not warrant any interference.
4. It is the plea of the second respondent in his counter that the premises No. 10.5.105A is distinct and different portion and has nothing to do with the portion under his occupation. What is obvious from the above plea is that the premises in question is one integral whole, a portion of it is now being called as 10.5.105 and the other portion of it is being treated as the portion bearing No. 10.5.105A. The confusion could have been avoided if the schedule of the premises as annexed to the eviction petition in R.C. No. 197/1987 had been filed or for that matter the rental deed of the premises, if any had been filed. The confusion is sought to be created by taking the plea that the building is in two portions with two different numbers viz., 10.5.105 and 10.5.105A. The Court below has taken all pains in trying to come to the conclusion that there is no premises in existence with No. '10.5.105A. To strengthen the above conclusion it has sought to rely on the report of the Commissioner appointed for the purpose of this case and the plan annexed therewith. The said evidence discloses that on the northern side of the premises in question there is another premises bearing Nos. 10.5.106 and 10.5.107. Ultimately the Court has come to the conclusion that if the premises bearing No. 10.5.105A is m existence, that should have been the northern boundary of the premises in question and the same is discernable from the decree of the Court, Although it is not made clear, to show that there has been a premises in existence with No. 10.5.J05A, the revision petitioners are relying very much on Exs. X-1 and X-2. The learned Counsel for the revision petitioners contends that inasmuch as Ex. X-2 declaration was given long prior to the eviction petition, there may be no valid reason to contend that this document is a concocted document. The crucial question is, even assuming for a moment that there is a door with No. 10.5.105A, whether that door number falls within the four boundaries as given in the schedule annexed to the eviction petition, or is it outside the demised premises. The revision petitioners themselves are not clear in this regard, which itself is an indication that they arc trying to take advantage of the existence of the Door No. 10.5.105A, which averment has been made to show that this Door No. 10.5.105A has been subsequently written on the door so as to slop the eviction. Irrespective of the fact that it is within the four corners of the demised premises or not, as can be seen from the evidence on record, the findings of the Court below that it is one building, which is an integral whole, in respect of which the eviction is sought for. The question about the existence of a separate premises with Door No. 10.5.105A is not germane for consideration at all. Even from the relationship between the second respondent-judgment-debtor and the petitioners, it is obvious that the petitioners are trying to stop eviction proceedings some how or other. The Court below has rightly taken into consideration the earlier partition suit filed in between the revision petitioners and the second respondent. Obviously, there has been no reference to any premises bearing No. 10.5.105A and therefore that is only in respect of the premises bearing No. 10.5.105. On a close scrutiny of the facts, it emerges that the eviction sought for is only in respect of the demised premises. The finding of the Court below in that view of the matter is unassailable.
5. Coming to the first contention of the learned Counsel for the revision petitioners, sub-rule 7 of Rule 23 is relevant here to be considered. The said provision reads thus:-
"If such execution is resisted and obstructed by any person other than the person against whom order of eviction was passed, the Controller may hold a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was without any just cause, and that such resistance and obstruction still continues shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction, and if he is satisfied that the resistence or the obstruction was occasioned by any person other than the person against whom order of eviction was passed claiming in good faith to be in the possession of the building on his own account or on account of some persons other than the person the the against whom order of eviction was passed, he shall make an order disallowing the execution against such person."
What is ordained is that the claim of obstructors should be in good faith and the resistance shall not be without any just cause. The enquiry contemplated under sub-rule 7 is obviously summary in nature. That does not mean, the Court is precluded from probing further in the matter with a view to have the necessary clarity in the mind. Merely because an elaborate enquiry has been conducted, prolix orders in that view of the revision petitioners has been passed, it does not mean that the execution Court has committed illegality or material irregularity. So as to know that there is no just cause for the resistance of the obstructors and their claim is not made in good faith, at times, it requires for the Court to have necessary clarification. In view of the clear finding that it is only a building in respect of which the present dispute has arisen, I am of the considered view that there are no merits in the contention of the learned Counsel for the petitioners.
6. As rightly contended by the learned Counsel for respondents, this Court's jurisdiction in this present revision is limited and confined to see whether the Court below has committed any illegality or material irregularity. As observed by me supra, it is a well-considered order with cogent reasons and the finding arrived at by the Court below is unassailable. Therefore, I see no illegality or material irregularity that has been committed by the Executant Court.
7. For the foregoing reasons, the revision must fail. The revision is dismissed, but under the circumstances, no order as to costs.
ORDER
8. At this stage, the learned Counsel requested to grant time for vacating the premises. Having regard to the earlier proceedings, I am of the considered view that the ends of justice would be met if 15 days time is granted. Accordingly, 15 days time is granted for vacating the premises.