Himachal Pradesh High Court
Prabhat Kumar vs Smt. Pushpa Devi And Another on 22 October, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 23 of 2018
.
Decided on: 22.10.2019.
Prabhat Kumar ....Petitioner.
Versus
Smt. Pushpa Devi and another ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Rajneesh K. Lal, Advocate.
For the respondents : Mr. Neeraj Gupta, Sr. Advocate
with Mr. Ajeet Pal Singh Jaswal,
Advocate for respondent No. 1.
: M/s Karan Singh Kanwar and
Ashok Kumar, Advocate for
respondent No. 2.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, petitioner has challenged order dated 18.06.2016, passed by the Court of learned Civil Judge (Jr. Divn.), Dehra, District Kangra, H.P. vide which, an application filed by the present petitioner under Section 47 and Order 21, Rules 97 to 101 and Section 151 of the Code of Civil Procedure read with Section 26 of the H.P. Urban Rent Control Act, 1987, was dismissed by the learned Executing ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP Court, as also the judgment passed by the learned Appellate Authority-III, Kangra at Dharamshala, District Kantra, H.P. in .
Rent Appeal No. 1-G/2016, dated 15.01.2018, whereby appeal filed by the present petitioner against the order passed by learned Executing Court was dismissed by the learned Appellate Court.
2. Facts necessary for the adjudication of the present petition are that the petitioner herein was respondent alongwith his brother Sanjay Sharma in Rent Petition No. 3- II/2006, titled as Smt. Pushpa Sharma versus Parbhat Kumar and another. The rent petition was allowed by the Rent Controller (2), Dehra, District Kangra, H.P. vide order dated 19.06.2014. It is not in dispute that the present petitioner did not assail the order so passed by the learned Rent Controller, though the same was assailed by his brother Sanjay Sharma up to Hon'ble Supreme Court. In the Special Leave to petition, which was filed by Sanjay Sharma before the Hon'ble Supreme Court, as is evident from the record, Hon'ble Supreme Court vide order dated 05.02.2016, passed in SLP (C) No. 2467 of 2016, dismissed the Special Leave Petition, though by granting Sanjay Sharma three months' ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP time to vacate the premises in question. It appears from the record that as the premises were not vacated by the tenants, .
execution petition was preferred by the landlord. After the warrant of possession was issued by the learned Executing Court, an application stood filed by the present petitioner under Section 47 read with Order 21, Rules 97, 98, 99, 100 and 101 of the Civil Procedure Code against the execution of the order passed by the learned Rent Controller on the ground that the order so passed by the learned Rent Controller was not executable against the petitioner as he was not the tenant of the demised premises but was a sub tenant inducted as such by Sanjay Sharma and as he was not impleaded as party in the execution petition, the order passed by the learned Rent Controller in the year 2014 was not executable against him.
3. This application stood dismissed by the learned Executing Court inter alia on the ground that (a) that the application filed by the applicant/present petitioner was not maintainable as the same stood filed under those provisions of law which were available to the person who was not a judgment debtor and was a stranger to the eviction ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP proceedings; (b) the stand which was taken in the execution petition was totally in contradiction to the stand which was .
taken by the respondent in the eviction petition.
4. In appeal, the findings so returned by the learned Executing Court stand affirmed by the learned Appellate Court.
5. Feeling aggrieved, the petitioner has filed the present petition.
6. Mr. Rajnish K. Lall, learned Counsel for the petitioner has argued that order passed by the learned Executing Court as well as the judgment passed by the learned Appellate Court were not sustainable in the eyes of law as the Courts below have erred in not appreciating that the stand which might have been taken by the petitioner before the Rent Controller was not material to decide the execution petition and the application filed by the petitioner ought to have been decided on its own facts and after holding an inquiry as to whether petitioner was actually occupying the demised premises, and if yes, then in what capacity.
Learned Counsel has relied upon the following judgments in support of his contention: (i) Sreenath and another v. Rajesh ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP and others AIR 1998 SC 1827, (ii) Har Vilas Versus Mahendra Nath and others, (2011)15 SCC 377 and (iii) Rajeev .
Dutta and others Versus Punjab Wakf Board and another, 2002(3) Shim. L.C. 315. No other point was raised.
7. On the other hand, learned Senior Counsel appearing for respondent No. 1 has argued that there was no infirmity with the order passed either by the learned Executing Court or the judgment passed by the learned Appellate Court and the present petition being devoid of merit is dismissed. He has argued that petitioner in connivance with his brother are adopting the tactics to delay the execution of the eviction orders.
8. I have heard learned Counsel for the parties and perused the impugned order as well as the judgment passed by the learned Appellate Court as also averments made in the petition.
9. It is not in dispute that the petitioner Prabhat Kumar was a respondent in the rent petition. Learned Counsel for the parties have made available to the Court the order which was passed by the learned Rent Controller dated 19.06.2014, relevant portion of which reads as under:-
::: Downloaded on - 24/10/2019 20:24:50 :::HCHP"As a sequel to my findings on various Issues that have been framed between the parties, the .
Respondents are found in arrears of rent at the rate of Rs. 700/- per month with interest @ 9% per annum since April 2004 and therefore the total arrear is calculated to be a sum of Rs. 1,24,790/-, which is due and payable by the Respondents to the applicant regarding the demised premises and for non-payment of these arrears the respondents are ordered to be evicted from the demised premises. It is made clear that in case the Respondents pay the rent due from them to the applicant regarding the demised premises as calculated above, within a period of 30 days from the date of this order, this order of eviction shall not be available for execution. The application accordingly stands disposed of. Let a Memo of Costs be drawn."
10. It clearly borne out from the findings returned by the learned Rent Controller in the eviction petition that the order that the order of eviction was not only passed against Sanjay Sharma but was also passed against the present ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP petitioner, who was respondent No. 1 in the eviction proceedings. It is also a matter of record that the order so .
passed by learned Rent Controller dated 19.6.2014 was not challenged by Prabhat Kumar (present petitioner) which has attained finality. While deciding the eviction petition, learned Rent Controller took note of the respective stands which were taken by the parties before it in para 3 of the order, which is being reproduced herein-below:-
"Notice of the application was issued to the respondents, who have contested the same by filing a reply. Preliminary objections have been taken that the petition in hand is not maintainable, applicant and her predecessor are estopped from instituting this application, applicant has no cause of action to file this application and the Site Plan relied upon by the applicant is wrong and does not disclose the actual position on the spot. On merits, it has been admitted that a disputed shop is owned by the applicant after death of Sambhu Ram, the father of the applicant. The disputed premises alongwith the adjoining shop are both in possession of the ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP Respondents. It has been explained at length that one shop was taken by both the respondents, who .
are brothers, for the purpose of running a joint business, however, the same was taken on rent in the name of Respondent No. 1 in 1995 from the father of the present applicant. Both the brother began to conduct their business in the shop and this fact of joint occupation and business was well within the knowledge of predecessor-in-interest of the applicant, due to which reason, he consented to installation of an electricity meter in the name of respondent no. 2. The adjoining shop was subsequently let in favour of respondent no. 2 in the year 1996 in the name of Respondent no. 2. himself and the electricity meter for this shop is in the name of Sh. Sambhu Ram, which is shown as the disputed premises. The applicant has given detailed account of his case to plead that the disputed shop was in fact let in favour of Respondent No. 2 in 1996 and the adjoining shop is the one, which had been let in favour of respondent no. 2. However, now the applicant is confusing the ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP matter by presenting that the shop which was let in favour of respondent no. 2 is the one that was let in .
favour of respondent no. 1 in 1995, and therefore, the Site Plan showing the respondent no. 2 in possession of shop ABCD is wrong to the effect that it was let in favour of Sh. Prabhat Sharma. In any case the later perspective of the defence taken by the respondent is to the effect that the disputed premises was always in the possession of both the respondents, who have been running a joint business therein. It has been submitted that in fact the respondent no. 2 used to pay the rent for both the shop of the applicant and her predecessor-in-
interest either personally or through authorized agents and it was well within the knowledge of the applicant that they were in joint tenancy of the suit premises. It has also been submitted in order to counter the averments of non-payment of rent that the rent has been paid upto December 2005 by making cash payments as well as adjustment of the amount of material taken by Sh. Sambhu Ram from the shop of the respondent. Letter for the ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP period thereof has been tendered by the respondent, however, the same was refused by the .
applicant. With such submission, dismissal of the application in hand has been prayed for."
11. Thus, it is evident from the findings returned by learned Rent Controller and which have attained finality that the stand of the petitioner before the learned Rent Controller was that he was a tenant of the demised premises. Now, in this background, when one peruses the order passed by the learned Executing Court as also the judgment of learned Appellate Court, one does not finds any perversity in the same. Once the petitioner has taken a specific stand before the learned Rent Controller as respondent No. 1 therein that he was a tenant of the demised premises, by no stretch of imagination, in the application/objections, which were subsequently filed by him, he could have been permitted to take a stand contrary to the stand taken by him before the learned Rent Controller. Further, when the petitioner was a respondent before the learned Rent Controller and was duly represented by a Counsel before the said Court, application filed by him by invoking the provisions of Order 21, Rules 96 ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP to 101 of the Civil Procedure Code otherwise also was not only mis-conceived but also a misuse of process of law.
.
12 The right which has been conferred under Rule 99 of Order 21 of the Civil Procedure Code is in favour of a person other than a judgment debtor.
13. Be that as it may, fact of the matter still remains that the petitioner was resisting the execution of the decree by way of said application by taking up a ground which was not his defence before the learned Rent Controller. Therefore, in these circumstances, findings which stand returned by the learned Executing Court that filing of the application was nothing but an abuse of process of law for delaying the execution of the vacation order, are correct findings.
Similarly, no infirmity can be attributed to the judgment which has been passed by the learned Appellate Court, vide which, it has upheld the order passed by the learned Executing Court by giving reasons which are duly borne out from the record of the case. Learned Appellate Court has specifically held in para 16 of the judgment passed by it that where a party has taken a definite stand once and the Court has given a decision on that footing, he could not be ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP subsequently allowed to take inconsistent position with regard to the same matter.
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14. At this stage, I will refer to the judgments which have been relied upon by learned Senior Counsel for respondent No. 1. In Sreenath and another v. Rajesh and others, AIR 1998 Supreme Court 1827, Hon'ble Supreme Court has held that a third party in possession claiming independent right as a tenant not party to a decree under execution can object and get his claim resisted when a decree holder intends to dispossess him/her. This view thereafter stands reiterated by Hon'ble Supreme Court in Har Vilas Versus Mahendra Nath and others (2011)15 SCC 377 and this Court in Rajeev Dutta and others Versus Punjab Wakf Board and another 2002(3) Shim. L.C. 315 has follow the same view.
15. In my considered view, there is no dispute with regard to this proposition of law. However, these judgment have no applicability as far as the present case is concerned for the reasons that herein the petitioner admittedly was a party in the eviction petition and thus, it is not a case where the eviction order was passed at his back.
::: Downloaded on - 24/10/2019 20:24:50 :::HCHPAccordingly, as this Court does not find any infirmity with the order passed by the learned Executing .
Court or the judgment passed by the learned Appellate Court, this petition being devoid of any merit, is dismissed. No order as to costs. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge October 22, 2019.
(narender) ::: Downloaded on - 24/10/2019 20:24:50 :::HCHP