Himachal Pradesh High Court
Smt. Sarvo Devi & Another vs Sh.Mast Ram & Others on 30 July, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 6 of 2007 .
Date of Decision: 30.7.2015 Smt. Sarvo Devi & another ....Petitioners.
Versus Sh.Mast Ram & others ....Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1 No. For the Petitioner r : Mr. B.C.Verma, Advocate.
For Respondent No.5 : Mr. Neeraj Gupta, Advocate.
Sanjay Karol, J (oral) .
The issue of maintainability of th e present petition stands raised by the respondents. Reliance is sought on the decisions rendered by Hon'ble the Supreme Court of India in Shreenath and another Versus Rajesh and others, (1998)4 Supreme Court Cases 543 and this Court in Harjinder Kaur alias Kamal Preet versus K.R.Aggarwal and others, 2000(2) Shim. L.C. 185.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 18:39:52 :::HCHP 2
2. Sh. Milkhi Ram, as landlord, filed a petition under the provisions of Section 14 of the Himachal .
Pradesh Urban Rent Control Act, 1971 against Sh. Kahna (tenant), which stood allowed by the Rent Controller vide order dated 2 nd May, 1994. The ground for ejectment being non payment of arrears of rent. With the tenant failing to pay the same, within the statutory period, present respondent being legal heirs of deceased Milkhi Ram filed an execution petition. Nitu possessed of the premises in question, claiming himself to be another legal heir of Sh. Milkhi Ram, filed objections, resisting execution of order of ejectment. In effect, being one of the legal heir of Milkhi Ram, he resisted d ispossession from the premises in question on the asking of other legal heirs.
3. Vide impugned order, Court below accepted such objections, prima-facie finding Nitu to be one of the legal heirs of Milkhi Ram. Thus, leaving it open for all the legal heirs/ decree holders of getting the property ::: Downloaded on - 15/04/2017 18:39:52 :::HCHP 3 partitioned and as a consequence thereof, seek possession.
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4. Undisputedly, neither Sarvo Devi, Leela Devi nor Nitu were parties before the Rent Controller. Only after death of Milkhi Ram, as his legal heirs , Sarvo Devi and Leela Devi sought execution of the order passed by the Rent Controller. In the objection petition, it clearly stands pleaded that as legal heir, Nitu already stands possessed of the tenanted premises and as such cannot be dispossessed , on the strength of order passed by the Rent Controller.
5. Section 47 CPC mandates determination of all issues only inter se the parties to the lis. Whereas , Order 21 Rule 97 CPC provides that wherever possession of the Decree holder is resisted or obstructed, an application, complaining such resistance or obstruction, can be moved before the concerned Court. Now, Nitu has been held to be legal heir of Milkhi Ram and as such his application, though titled to have been filed under Section 47, was in effect, an application filed under Order ::: Downloaded on - 15/04/2017 18:39:52 :::HCHP 4 21 Rule 97 C.P.C. An y order passed on such an application, by virtue of provisions of Ru le 103 of Order .
21, would only be in the nature of a decree only to be assailed by way of an appeal so provided under the provisions of Section 96 of the Code of Civil Procedure.
Such view stands taken by this court in Kamal Preet (Supra) , as also by the Apex Court in Shreenath (supra).
In this view of the matter, objection so raised by the contesting respondent herein is upheld.
6. Accordingly, the present petition is held to be not maintainable and is disposed of as such, reserving liberty to the parties/respondents to initiate appropriate proceedings as may be so advised , in accordance with law. In view of pendency of present petition, issue of limitation, if any, for s uch period, shall not come in way.
With the aforesaid observations, present petitions stand disposed of, so also pending application(s), if any.
(Sanjay Karol) , Judge.
July,30, 2015.
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