Punjab-Haryana High Court
Smt. Veena Goel And Others vs Bhim Aggarwal And Others on 25 April, 2012
Author: M.M.S.Bedi
Bench: M.M.S.Bedi
C.R.No.6763 of 2011 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.6763 of 2011 (O&M).
Decided on: April 25, 2012.
Smt. Veena Goel and others.
.. Petitioners
VERSUS
Bhim Aggarwal and others
.. Respondents
***
CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI
***
PRESENT Mr.Pawan Kumar, Sr., Advocate, with
Mr.Anshuman Mandhar, Advocate,
for the petitioners.
Mr.A.K.Chopra, Sr., Advocate, with
Mr.N.D.Kalra, Advocate,
for the respondents.
M.M.S. BEDI, J. (ORAL)
The petitioners were proforma defendants as defendant Nos.5, 6 & 7 in a civil suit for possession filed by Bhim Aggarwal and Indu Aggarwal, plaintiff-respondent Nos.1 & 2, for ejectment of defendant Nos.1 to 4-respondent Nos.3 to 6, from the basement and ground floor of SCO No.202, Sector 14, Panchkula, and for recovery of Rs.1 lac on account of arrears of rent from April 2008 to June 2008. They have approached this Court invoking the jurisdiction of this Court under Article 227 of the Constitution of India for quashing of order dated 1.10.2011, passed by the Additional ...1 C.R.No.6763 of 2011 (O&M) District Judge, Panchkula, dismissing their application for review/modification of judgment and decree dated 19.1.2011, passed in civil appeal moved under Order 47 Rule 1 CPC read with Sections 151, 152 & 153 CPC.
The brief facts, relevant for the decision of present revision petition, are that plaintiff-respondent Nos.1 & 2 had filed a suit for possession by ejectment of defendant Nos.1 to 4, in respect of basement and ground floor of SCO No.202, Sector 14, Panchkula and for recovery. They have impleaded the petitioners as defendant Nos.5 to 7. For the convenience and proper understanding, the memo of parties in the civil suit is reproduced as under: -
"1. Bhim Aggarwal aged about 49 years son of Shri Kishan Dass
2. Indu Aggarwal aged about 41 years w/o Sh.Bhim Aggarwal, both residents of House No.B-1/515, Janakpuri, New Delhi-58.
... Plaintiff.
Versus
1. M/s Amar Electronics Plaza through its Partner Shri Atul goel (Basement and ground floor) S.C.O. No.202, Sector 14, Panchkula.
2. Shri Atul Goel son of Shri Rakesh Kumar s/o Amar Chand, resident of H.No.509, Sector 33-B, Chandigarh.
3. Shri Brij Bhushan Aggarwal s/o Shri Amar Chand, Partner M/s Amar Electronics Plaza, resident of H.No.151, Sector 17, Panchkula.
4. Shri Naresh Kumar son of Shri Amar Chand, Partner M/s Amar Electronics Plaza, resident ...2 C.R.No.6763 of 2011 (O&M) of H.No.151, Sector 17, Panchkula.
... Defendants.
5. Smt.Veena Goel w/o Sh.Rakesh Kumar, resident of H.No.509, Sector 33-B, Chandigarh.
6. Smt.Kiran Goel w/o Sh.Brij Bhushan Aggarwal, resident of H.No.151, Sector 17, Panchkula.
7. Smt.Sangeeta Goel w/o Shri Naresh Kumar, resident of H.No.151, Sector 17, Panchkula.
... Proforma Defendants"
The suit filed by the above said plaintiffs was decreed by the trial Court. It is apparent from the above said memo that the petitioners were made proforma defendants. The decree which was passed by the trial Court in favour of the plaintiffs reads as follow: -
"As a sequel to the aforementioned findings, the suit of the plaintiffs succeeds and stand decreed with costs. The defendants are ordered to hand over the vacant possession of the premises in question to the plaintiffs and to pay the mesne profits @ Rs.66,200/- per month to the plaintiffs from 1.4.2008 till actual handing over the possession. They are also ordered to pay the arrears of the mesne profits along with interest @ 6 per cent per annum. However, it is made clear that if the vacant possession of the premises in question is not handed over to the plaintiff within a period of three months, then the defendants shall be liable to make the payment of the mesne profits ...3 C.R.No.6763 of 2011 (O&M) along with interest @ 18% per annum. Decree sheet be drawn accordingly. File bke conisigned to records after due compliance."
Respondent No.3 filed an appeal before the Additional District Judge, Panchkula, vide civil appeal No.69 of 21.9.2010. The said appeal was decided by the Additional District Judge, Panchkula, on 19.1.2011, confirming the decree and judgment of the trial Court. A direction was issued to the appellants as well as defendant Nos.1 to 4 to hand over the vacant possession of the demised premised to plaintiffs within a period of one month from the date of judgment and decree. An interesting fact of the present case is that during pendency of the appeal, respondent No.3, made a statement that they were ready and willing to deliver the possession of the property in dispute i.e., basement and ground floor of SCO No.202, Sector 14, Panchkula to respondent Nos.5 to 7, the proforma respondents, now, petitioners before this Court. It was also stated that plaintiff Nos.1 & 2, have no right or locus standi to claim possession. Statement made by the counsel for defendant Nos.1 to 4, before the appellate Court on 13.1.2011, reads as follow:
-
"Present Shri Subhash Adhlakha, Advocate, for the appellants.
Shri S.K.Sud, Advocate, for respondent Nos.1 & 2.
Shri P.C.Sharma, Advocate, for respondent Nos.3 to 5.
...4
C.R.No.6763 of 2011 (O&M)
Statement of G.K.Verma, counsel for the
appellants along with appellants.
W/o
Without admitting the contents of the plaint and without admitting the right of respondent Nos.1 & 2, to claim ejectment of the appellants, the appellants are ready to deliver possession of the tenanted premises i.e., basement and ground floor of SCO No.202, Sector 14, Panchkula, to respondent Nos.5 to 7 from whom the premises were taken on rent and reasonable time to vacate and hand over vacant possession to respondent Nos.5 to 7 of the premises may kindly be given. It is made clear that respondent Nos.1 and 2 have no right or locus standi to claim possession from me pertaining to the premises.
RO & AC Kanchan Mahi
ADJ/Pkl 13.1.2011"
On 28.2.2011, a statement was made by the
Judgment Debtors-defendant Nos.1 to 4, before executing Court to the effect that on 25.2.2011, the vacant possession of basement and ground floor of SCO No.202, Sector 14, Panchkula had been handed over to the co-owners Sm.Veena Goel, Kiran Goel and Sangeeta Goel (proforma defendant Nos.5, 6 & 7). They also stated that arrears of rent have also been paid and that the satisfaction of the decree be recorded.
The counsel appearing for the present petitioners ...5 C.R.No.6763 of 2011 (O&M) admitted the correctness of the statement made by the Judgment Debtors and pleaded that satisfaction of the decree be recorded.
Counsel for the decree holders-plaintiffs argued that handing over of the possession to the co-owners is a mimic being played by the Judgment Debtors and that the said co-owners being close relations, it should not be recorded that the decree stood satisfied because the Court passing the decree in favour of plaintiffs had directed the Judgment Debtors-defendant Nos.1 to 4, to hand over the possession of the property in question to the plaintiffs- decree holders and not the co-owners-deemed decree holders/proforma defendants. The executing Court after carefully considering the above circumstances vide order dated 15.4.2011, dismissed the application of the Judgment Debtors under Order 21 Rule 2 read with Section 47 CPC, for recording satisfaction of the decree under execution and issued warrants of possession regarding the property in dispute for delivery of possession in favour of plaintiffs-decree holders vide warrants dated 19.4.2011. The proforma defendants, the petitioners before this Court then filed an application under Order 47 Rule 1 read with Section 151, 152 & 153 CPC, for modifying the decree dated 19.11.2011, passed in civil Appeal No.69 of 21.9.2010, for an order that the judgment and decree in favour of plaintiff Nos.1 & 2, should also be treated as a decree in favour of respondent Nos.1 to 5 in the appeal. It is pertinent to observe here that respondent Nos.1 & 2, were plaintiffs ...6 C.R.No.6763 of 2011 (O&M) and respondent Nos.3, 4 & 5 were proforma defendants now petitioners. The application for review has been dismissed by the Additional District Judge, vide impugned order dated 1.10.2011 observing that the vacant possession of the demises premises is to be handed over by defendant Nos.1 to 4 to the plaintiff Nos.1 & 2. It was observed that the petitioners did not file any appeal against the decree of vacation, as such, the order of vacation passed in favour of plaintiff Nos.1 & 2, cannot be deemed to be a decree for possession in favour of defendant Nos.5 to 7.
Mr.Pawan Kumar, senior counsel appearing on behalf of the petitioner has vehemently contended that the lower appellate Court has acted illegally in not dismissing the appeal as having already been executed in view of the statements of Judgment Debtors (defendant Nos.1 to 4), made in the executing Court that they had handed over the property in dispute to the co-owners i.e., petitioners. It is argued that the executing Court should have recorded that the order of eviction stands executed and decree stood satisfied on handing over of the property in dispute by defendant Nos.1 to 4 in favour of proforma defendant Nos.5 to 7. Mr.Kumar has urged that despite the decree having been satisfied the executing Court in pursuance of the judgment and decree passed in favour of plaintiffs, passed another order issuing warrants of possession in respect of the basement and ground floor of SCO No.202, Sector 14, Panchkula in favour of plaintiff-respondent Nos.1 & 2 on 19.4.2011.
...7 C.R.No.6763 of 2011 (O&M) The objections filed by the petitioners before the executing Court against the said warrants of possession have been filed on the ground that the judgment and decree passed in favour of the plaintiffs stands already satisfied by handing over of the possession by the Judgment Debtors in favaour of the co-owners of the property i.e., proforma defendant Nos.5 to 7.
Mr.A.K.Chopra, senior counsel for the plaintiffs- respondents has vehemently contended that the decree had been obtained by the plaintiffs impleading their co-owners as proforma- defendants. Proforma defendants being the co-owners with the plaintiffs tried to cheat the plaintiffs by letting out the property in favour of their close relations defendant Nos.1 to 4.
There is a close relation between defendants and proforma defendants. As a matter of fact, the proforma defendants had taken the tenanted premises on rent for their close relations defendant Nos.1 to 4. The mala fide of the defendants is apparent on the face of the record.
I have heard the learned counsel for the petitioner as well as the counsel for the respondents and carefully gone through the facts and circumstances of this case. The admitted facts in the present case are that plaintiff Nos.1 & 2, i.e., Bhim Aggarwal and Indu Aggarwal had filed a suit for decree of possession regarding basement and ground floor of SCO No.202, Sector 14, Panchkula against defendant Nos.1 to 4 which are mentioned in ...8 C.R.No.6763 of 2011 (O&M) para 2 above. The petitioners were impleaded as defendant Nos.5 to 7, as proforma defendants as they are co-owners with the plaintiffs. The intention of the plaintiffs from the very beginning was to seek eviction of defendant Nos.1 to 4 but since there co-owners had not joined them probably on account of their close relations with defendants-tenants, they were impleaded as proforma defendants. No relief was claimed against the proforma defendants. The petitioners being proforma defendants did not file any appeal meaning thereby that they were satisfied with the eviction order passed in favour of the plaintiffs. The decree for eviction could be executed by the plaintiffs only. The Judgment Debtors-defendant Nos.1 to 4, had made a statement before the executing Court that decree passed in favour of the plaintiffs should be recorded as having been satisfied the possession having been handed over by defendant Nos.1 to 4, to defendant Nos.5 to 7. The executing Court vide a detailed speaking order refused to record that the decree stood satisfied and opted to issue warrants of possession for delivery of possession of the premises in dispute to the plaintiffs- respondents. When asked specifically as to what order should have been passed by the appellate Court by reviewing the ejectment orders, the counsel for the petitioners submitted that the appellate Court should have passed the order dismissing the appeal observing that the decree sought to be executed stood satisfied by handing over of the possession by the proforma defendants to the contesting ...9 C.R.No.6763 of 2011 (O&M) defendants. In case such a prayer is allowed, the decree obtained by the plaintiffs after a serious contest of the case would be set at naught depriving their right to reap the fruits by the malicious and mischievous conduct of the proforma defendants-petitioners and sequence of events mentioned hereinabove indicate that defendants Nos.1 to 4 had colluded with their close relations who were proforma defendant Nos.5 to 7. They have with mala fide intention sought an order from the executing Court to the effect that the decree stood satisfied on possession having been handed over to the co-owners of the plaintiffs. In case a person who has obtained a decree is not permitted to execute the decree, it will tantamount to abuse of process of the Court by the proforma defendants. The rights of the plaintiffs who had obtained a decree after a contest of the case cannot be prejudiced. The lower appellate Court could not have been dismissed the appeal by observing that the decree stands satisfied on the basis of the statement of the petitioners, the proforma defendants. A person who obtained a decree is entitled to execute the same and his rights cannot be defeated by the collusion of the co-defendants as an attempt has been made in the present case.
No ground is made out for interference.
Dismissed.
(M.M.S.BEDI) JUDGE April 25, 2012.
rka ...10