Punjab-Haryana High Court
Fancy Agriculture Works vs Sunil Kumar And Ors. on 4 October, 2005
Equivalent citations: (2006)142PLR582
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. This revision petition under Article 227 of the Constitution of India has been filed by the petitioner M/s Fancy Agriculture Works assailing the order dated 12.8.2005 (Annexure-P.2) passed by the learned Civil Judge (Senior Division), Kaithal whereby its objections in the pending execution have been summarily rejected without framing any issue.
2. The case set-up by the petitioner is that Ved Parkash (respondent No. 2) and his wife Smt. Brij Mohini (respondent No. 3) were the landlords of the premises in dispute. In the year 2001, they filed an ejectment petition against their tenant Sohan Lal (since deceased) and now represented by his LR Vinod Kumar (respondent No,4), on the ground of non-payment of rent. It is alleged that the correct address of Sohan Lal was not given. In any case, Sohan Lal died on 10.6.2001 leaving behind Vinod Kumar (respondent No. 4) as his legal heir. The latter entered into a partnership with Anil Kumar on 2.7.2001 (Annexure P1). The partnership was started in the name of M/s Fancy Agriculture Works-petitioner herein. Ved Parkash and Smt. Brij Mohini (respondents No. 2 and 3), it is stated, sold the suit property on 30.7.2001 to Sunil Kumar (respondent No. 1). Accordingly, Sunil Kumar was substituted in place of Ved Parkash and Smt. Brij Mohini (respondents No. 2 and 3) as petitioners No. 1 and 2 in the ejectment petition pending before the Rent Controller. Since the correct address of Sohan Lal, tenant was not given, the ejectment petition was proceeded ex-parte against him and decided in favour of Sunil Kumar (respondent No. 1). On 1.2.2003, Sunil Kumar (respondent No. 1) filed an execution petition in the Court of Civil Judge (Senior Division), Kaithal. When the petitioner-firm came to know about the said execution, it filed objections which have been dismissed in pursuance of the impugned order which is challenged by the petitioner.
3. Learned Counsel for the petitioner submits that the learned executing Court has gravely erred in not adjudicating the objections in accordance with law and the objections of the petitioner were liable to be gone into after framing issues. However, the same have been summarily dismissed without affording full and proper opportunity to the petitioner which has vitiated the impugned order. It is contended that the order of ejectment was obtained by the decree-holder/respondent No. 1 by playing fraud upon the Court, therefore, the same is a nullity and inexecutable. Even the death of Sohan Lal, it is contended, was in the knowledge of Sunil Kumar (respondent No. 1).
4. I have given my thoughtful consideration to the contentions of the learned Counsel for the petitioner. It may be noticed that the ejectment petition was filed by Ved Parkash and Smt. Brij Mohini (respondents No. 2 and 3) on 7.3.2001 on the ground that Sohan Lal, tenant was in arrears of rent since 1.1.1998. Sohan Lal, tenant died during the pendency of the case on 10.6.2001. Thereafter, the property was sold by Ved Parkash and Smt. Brij Mohini (respondents No. 2 and 3) to Sunil Kumar (respondent No. 1) on 30.7.2001. Sunil Kumar was substituted in the petition in place of Ved Parkash and Smt. Brij Mohini on 3.8.2001. The petition was ultimately decided on 18.10.2002. The contention of the petitioner is that the decree was obtained by the decree-holder/respondent by playing fraud on the Court. Besides, the decree-holder/respondent was aware of the demise of Sohan Lal and yet he did not implead him as a party. In fact, Sunil Kumar, decree-holder/respondent, it is contended, has no locus standi to pursue the application on the ground given therein.
5. Accordingly, it was prayed that the order dated 18.10.2002 may be recalled/set aside or in the alternative the execution be dismissed as being not maintainable. The decree-holder/respondent Sunil Kumar filed his reply to the objections of the petitioner and submitted that the tenancy rights of Sohan Lal were inherited by Vinod Kumar (respondent No. 4).
6. Besides, the existence of partnership between Anil Kumar, partner of the petitioner-firm and Vinod Kumar (respondent No. 4) is denied. In any case, even if there is any partnership, it is stated, that Anil Kumar has no right to file objections as he is/was not a tenant. In fact, Vinod Kumar (respondent No. 4) appeared in the Court of Rent Controller, Kaithal before the ejectment order was passed and had filed a compromise admitting his father Sohan Lal to be in arrears of rent since the period beginning from 1.1.1998 which he failed to pay without any bona fide reason. It was, therefore, prayed that the ejectment order may be passed. The said compromise dated 3.8.2001 is on the file of the Rent Controller in which the ejectment order was passed. However, before the compromise could be accepted/decided, Vinod Kumar (respondent No. 4) failed to appear in the Court and the Rent Controller called upon the landlord to lead ex-parte evidence and thereafter ex-parte ejectment order was passed on 18.10.2002. After considering the contentions of the learned Counsel for the petitioner and perusing the order of the executing Court, it may appropriately be noticed that Anil Kumar who has filed present objections as a partner of the petitioner-firm M/s Fancy Agriculture Works was never a party to the ejectment petition and was never a tenant in respect of the tenanted property. It is a matter of record that Sohan Lal was the tenant of Ved Parkash and Smt. Brij Mohini (respondents No. 2 and 3) and he died during the pendency of the ejectment petition on 10.6.2001. The tenancy rights of Sohan Lal were inherited by his son Vinod Kumar (respondent No. 4). The learned executing Court observed that the partnership deed if any came into existence during the pendency of the ejectment petition i.e. on 2.7.2001 (Annexure P1) whereas the ejectment petition has been filed on 7.3.2001. Besides, it is a matter of record that after the demise of Sohan Lal his son Vinod Kumar (respondent No. 4) appeared before the Rent Controller and he filed a compromise dated 3.8.2001 admitting that Sohan Lal was in arrears of rent since 1.1.1998 and that he had failed to pay the rent without any bona fide reasons. Thereafter Vinod Kumar failed to appear before the Rent Controller and he was proceeded against ex-parte. After taking ex-parte evidence of the landlord/decree-holder, the order of ejectment was passed on 18.10.2001. The learned executing Court observed that the tenancy rights were inherited only by Vinod Kumar (respondent No. 4) after the death of Sohan Lal. Sunil Kumar decree-holder/respondent, as already noticed, had purchased the property on 30.7.2001 and his name was substituted. Vinod Kumar (respondent No. 4) never disputed the rate of rent. The executing Court, it was observed, cannot go beyond the decree. In fact Vinod Kumar (respondent No. 4) had not come to the Court to challenge the execution so the objection taken by the objector-petitioner, it was held, are not legally sustainable.
7. In my view, the findings and conclusions reached at by the learned executing Court are sound and based on correct appreciation of facts and law. The objections have been filed merely for the sake of filing. The tenant-Sohan Lal was admittedly in arrears of rent and his son Vinod Kumar (respondent No. 4) on whom the tenancy rights devolved admitted in his compromise dated 3.8.2001 that his father Sohan Lal was in arrears of rent. Thereafter, the evidence was led by the landlord and the ground for eviction on account of non-payment of arrears of rent was held to be made out. Consequently, the objections that have been filed are without any basis. Even otherwise it is not the case of the objector-petitioner that it has deposited the rent so as to save itself from being ejected from the demised premises. Therefore, the fact that issues have not been framed is quite inconsequential. In fact, where parties are alive to the matter in controversy between them the non-framing of issues is of no significance and the Court can still adjudicate on the same. Learned Counsel for the petitioner has, however, placed reliance on the case of Shreenath and Anr. v. Rajesh and Ors. to contend that where in an execution for decree for immovable property a third party, who is in possession and claims an independent right can object to the execution and get his claim adjudicated when he has sought to be dispossessed by the decree-holder and need not wait until he is dispossessed. There is no dispute to the said proposition and a third party in possession of property claiming independent right can object to the execution of the decree. However, the objections have to be based on same valid ground. As has already been noticed the claim of the landlord was admitted in the ejectment petition. Besides, it is not the case of the petitioner that he has tendered the rent due which would save him from eviction. In the circumstances, the objections as raised are without merit and the learned executing Court has rightly dismissed the same.
8. In the circumstances, there is no merit in this petition and the same is accordingly dismissed.