Delhi District Court
V. V. Gujral & Ors. vs . Pushpa Sharma & Ors. on 28 November, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
New Ex. No. 23872/16
V. V. Gujral & Ors. Vs. Pushpa Sharma & Ors.
ORDER
1. This order shall dispose off the application Under Order XXI Rule 97 read with Section 151 of the CPC, dated 30.07.2015, filed on behalf of Objectors Sh Mukesh Sharma and Smt. Sunita Sharma.
2. The brief facts necessary for the disposal of the present application as mentioned in the application are that Shop No. P-4 Connaught Place, New Delhi (herein after suit premise) was originally let out to Mr. Bhawani Sahai Sharma (grandfather of the objectors) who was proprietor of M/s New Man & Company and was carrying on business of garments and watches (including repair of watches) and the rent was paid for the same since 1939 by M/s New Man & Company. After the death of Mr. Bhawani Sahai Sharma the tenancy passed on to his son/LR Sh. V. B. Sharma who continued the same business till his death on 29.12.1998 and after the death of Sh. V. B. Sharma, the tenancy rights passed onto his three LRs namely Mrs. Pushpa Sharma (JD No.1), Ms. Sunita Sharma (objector No.2) and Sh. Mukesh Sharma (objector No. 1) and family business were taken over by the above said three dependents of late Sh. V.B. Sharma in the same name and style as it had been carried out by their ancestors since 1939. It is further stated that one another married son Mr. Ajay Sharma of Late V. B. Sharma had been living separately from Late Shri V.B Sharma since the year Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 1 of 19 1996 and was disowned later by Sh. V.B. Sharma during his lifetime. Ajay Sharma never participated in the family business during the lifetime of Sh. V. B. Sharma and he never claimed or was in legal and physical possession of the suit premises at any point in time. Objector no.2 separated from her husband after a brief marriage in 2002, however, she continued/operated/managed business from the suit premises with the objector no. 1 after the death of Sh. V. B. Sharma in 1998. It is stated that in 2004, DH in a bid to take over the suit premises by alleging that some licensing-cum-Supervision agreement was entered into by JD No.2 (Ajay Sharma) filed a civil suit no. 33/04 against (Pushpa Sharma) and (Ajay Sharma)the JD no.1 & 2 respectively and the suit was decreed on 14.02.2013. The decree dated 14.02.2013 in CS. No. 33/04 was challenged before the Hon'ble High Court of Delhi by both objectors including JD No. 1 vide RFA no. 250/2013, however, vide order dated 29.07.2013 the Hon'ble High Court was pleaded to strike off the names of the objectors from the array of parties and finally said RFA was dismissed by the Hon'ble High Court vide judgment dated 30.01.2014. It is stated that an SLP No. 20678/2014 was filed separately by JD no.1 titled as "Pushpa Sharma vs. V. V. Gujaral & Ors.", which is pending before the Hon'ble Supreme Court. It has been further averred that the tenancy of the suit shop was jointly inherited by objectors and JD no.1 only, as per the law laid down by the Hon'ble Supreme Court in Gian Devi Anand Case. It is averred that JD No.2 never came in physical possession of the suit premises after the demise of the original tenant, thus he was incapable of giving what he did not have and could not have sublet the premises.
3. It is further stated that the by virtue of not being party to CS 33/04 and in terms of the Hon'ble High Court's interim order dt 29/07/2013 in RFA 250/2013, the objectors were never bound by the decree dated 14.02.2013 as such same is not executable against them and/or against their share in the suit property. It has been further mentioned that objectors have recently came to know of the present execution proceedings whereby the possession of the suit premises in which they Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 2 of 19 have a valuable inherited right/title/interest and over which they always maintained effective legal/physical control since the death of original commercial tenant in 1998, is sought to be given to DHs. It pleaded that it is settled law that non-executablity of decree (dated 14.02.2013) can be set up whenever it is sought to be enforced or acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. It is further pleaded that the defect of non- joinder of objectors strikes at the root of the authority of the Court to pass a decree which can not be cured or waived. Hence, it is pleaded that decree cannot be executed against the Objectors.
It has been further averred that the possession of the suit premises was taken over by one Gandharva Saini on 24.01.2007 in execution emanating out of suit being CS. No. 307/04 and the objectors received back the full legal/physical possession of the suit premises on 17.07.2015 as per order passed by Sh. Vijay Kumar Dhaiya, Ld. ADJ in execution No.5/2015.
4. It is also stated that the Decree dated 14.02.2013 is not binding on the objectors as they were never a party to the original suit and have never alienated their right in the suit premises after the death of their father in 1998 but DH conveniently made only 2 persons as party to the suit while leaving the objectors and M/s New Man and Co. out of the suit, thus, the decree cannot be executed against them.
5. Reply was filed by the LRs of the DHs stating therein that Sh. Bhawani Sahai Sharma was not in possession of the property since 1939. It was denied that after the death of Sh. V. B. Sharma, the tenancy rights passed upon Smt. Pushpa Sharma, Sh. Mukesh Sharma and Ms. Sunita Sharma or that they were participating in the family business at the suit property. It was statd that only Smt. Pushpa Sharma was a tenant with respect to Shop No. P-4, Connaught Place, New Delhi and this fact has never been denied by Smt. Pushpa Sharma. It is stated that no review or appeal against the order dated 29.07.2013 of the Hon'ble Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 3 of 19 High Court was preferred by the objectors at any event. It was denied that the premises were jointly inherited by the objectors and JD No.1 only. It was pleaded that the judgment of the Hon'ble Supreme Court of India in Gian Devi Anand is not applicable to the facts of the present case as the same was dealing with the property covered under the DRC Act whereas in the present case. The property in question has been held to be outside the ambit of the DRC Act. It is further denied that JD no.2 was never in physical possession of the suit premises or that they became co-tenants on 28.12.1998. The rest of the contents of the application were denied by the DH and dismissal of the present application and issuance of warrants of possession for taking over possession of the suit property, has been prayed for.
6. Arguments have been heard and record perused. Ld. Counsel for the objectors has confined his arguments to the aspect that in law the legal heirs of a tenant inherit the tenancy as per succession Law applicable upon the tenant (as per his religion). It has been contended that as per Section 19 (b) of Hindu Succession Act, if two or more heirs succeeds together to the property of an intestate they shall take the property as tenants-in-common and not as joint tenants. It has been contended by him that in view thereof the objectors have right in the property which cannot be taken away without affording them a hearing. It has been contended that admittedly in the decree under execution the objectors were not party and therefore any order passed is not binding on them as they were not party and they were not given right to defend themselves. It has been further contended that decree holder played fraud with the Court by not disclosing to the Court that after the demise of V.B. Sharma, the tenancy devolved upon the legal heirs comprising of the judgment debtor No.1 and objectors herein. Entire arguments on behalf of objectors boils downs to the submission that objectors too inherited the tenancy; that they were necessary party to suit for possession; that decree passed in their absence is not binding upon them; that objectors were in possession and were running their business.
Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 4 of 19 that DH played fraud by pleading to the Court that JD No. 1 was the tenant and did not disclose that the JD No. 1 as well as both the objectors herein are tenant after having inherited the tenancy rights from V.B. Sharma after his demise.
In order to support above concise contention, Ld. Counsel for the objector has relied upon following judgments:
1. Sarwan Kumar & Anr. v. Madan Lal Aggarwal decided on 06.12.2003 passed by the Apex Court to contend that tenancy is inheritable and ordinary law of succession applies as per the religion of tenant/landlord.
2. Uttam v. Saubhag Singh & Ors. Decided on 02.03.2016 passed by the Apex Court to contend that Section 4 of the Hindu Succession Act have overriding effect over the custom and tradition prevalent before the said Act and that successor takes the property as his separate property.
3. Rakesh Jain v. Suresh Kumar Kohli & Anr. Decided on 05.12.2013 passed by Delhi Hight Court to contend that tenancy rights are property rights and therefore the same are subject of inheritance and shall be governed by law of succession depending on the religion of landlord or tenant and to contend that concept of joint tenancy and tenancy in common are different and distinct in form and substance.
4. Surender Kumar vs. Dhani Ram & Ors. Decided on 18.01.2016 passed by Hon'ble High Court in CS(OS) No. 1737/2012 to contend that under Hindu Succession Act the successor takes the ancestral property in inheritance as his separate property
5. S.P. Chengalvaraya Naidu vs. Jagannath 1994 AIR 853 1994 SCC (1) 1 that fraud avoids all judicial act and same can be challenged at any stage of the proceedings including collateral proceedings.
6. Oswal Fats and Oils Ltd. vs. Additional Commissioner (Administration) decided on 01.04.2010 passed by Hon'ble High Court in civil appeal no.
7982/2002 to contend that while seeking equitable relief the party must approach court with clean hands.
7. The State of Andhra Pradesh & Anr. vs. T. Suryachandra Rao decided Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 5 of 19 on 25.07.2005 passed by Hon'ble Superme Court in Civil Appeal No. 4461/2005 to contend what fraud means.
8. Jaipur Development Authority vs. Radhey Shyam 1994 SCC(4) 370 to contend that question of invalidity, nullity of the decree in execution can be raised even in execution.
9. Poonam vs. State of UP & Ors. Decided on 29.10.2015, Uddit Narain Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar decided on 19.10.1962 passed by Hon'ble Supreme Court and Kisan Uchattar Madhyamik vs. Iiird Addl. District Judge decided on 05.11.1988 passed by Allahbad High Court to contend that suit cannot be adjudicated in the absence of necessary party.
10. Mst. Surayya Begum etc. vs. Mohd. Usman & Anr. 1991 SSC(3) 114 passed by Hon'ble Supreme Court to contend that if there be any clash of interest between the person concerned and his assumed representative, or if the latter, due to collusion or for any other reason, malafide neglects to defend the case, he cannot be considered to be representative.
11. Abdul Bari vs. Anisul Rahman & Anr. 1993(1) BLJR 296, Srichand P. Hinduja vs. State through CBI 121 (2005) DLT and Noorduddin vs. Dr. K.L. Anand 1995 SCC (1) 242 to contend that executing court can go into the question of title in the execution of decree of possession if it is being objected to.
7. Ld. Counsel for DH has argued that objectors along with JD no. 1 had filed an appeal against the decree dated 14.02.2013 bearing RFA no. 215/2013. On 29.01.2013 the objectors got themselves deleted. It has been contended that once the objectors have preferred an appeal against the decree dated 14.02.2013 and has subsequently got themselves deleted which amounts to withdrawal of the appeal on their part which meant that they had accepted the decree dated 14.02.2013. Once they had challenged and withdrawn their appeal, they have no right to object the execution of the present decree. It has been further contended Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 6 of 19 that once it has been proved on record that JD no. 1 Smt. Pushpa Sharma was the proprietor of M/s New Man & Co. and was in exclusive possession of the property as tenant, therefore, objectors have no right whatsoever to object to the execution petition. It has been further contended that JDs and objectors are hand in gloves with each other as the JD no. 1 during the pendency of the suit had filed an application under Section 151 CPC claiming that she was not served but said application was dismissed by the Court vide order dated 07.09.2007 and she was disbelieved. It has been further contended that Civil (misc.) 1385/07 was filed against the order dated 07.09.2007 which was also dismissed vide order dated 11.10.2007 by the Hon'ble High Court even without issuing notice to DH. It was further contended that JD No. 1 took possession of the suit property from Sh. Gandharv Saini (sub-tenant) in execution proceedings No. 5/15 only on 17.07.2015, therefore, the averment made by the objectors that they were in possession was contrary to the record as possession was taken by Smt. Pushpa Sharma in execution No. 5/15 only on 17.07.2015. It has been further contended that warrant of possession issued by Ld. Predecessor of this court returned unexecuted with the report that on 26.05.2014 one Gandharv Saini was found in possession of the suit property and not any of the JDs and objectors. It has been further contended that JD No. 1 had filed separate SLP bearing no. 20678/2014 and Hon'ble Supreme Court had issued notice limited to the extent of mesne profit but the JDs have not averred therein that objectors too had right in the property or that the objectors were in possession. It has been contended that JD No.1 was only tenant in the property and Ajay Sharma was participating in the business only as an attorney of the JD No.1 and act of Ajay Sharma is being disowned now in order to create ground of challenge and obstruct the present execution petition. It has been further contended that objection petition is liable to be dismissed as in the first execution appeal bearing no. 14/09 titled "Gandharv Saini vs. Pushpa Sharma", it was contended that JD no. 1 was tenant in the suit property in the light of the fact that she became the sole proprietor of "M/s New Men & Co." after the death of her husband and the tenancy rights did Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 7 of 19 not devolve on any of her children. It has been further contended that the said execution appeal was argued on behalf of JD by objector Mukesh Sharma as one of the counsel and stand taken by Mukesh Sharma in the present objection was absolutely contrary to the objection he had filed and therefore objection is nothing but abuse and final attempt on the part of JDs to somehow retain the possession of the suit shop and deprive the DH of the fruit of the decree.
8. Having heard the rival contentions of the parties it will be useful to record the brief history of the case and other relevant background. There is no dispute about the ownership and landlordship of the DH. The DHs filed suit for possession of the suit property on 30.01.2004 against JD/defendant No.1 Smt. Pushpa Sharma and JD/defendant No.2 Sh Ajay Sharma submitting that JD No. 1 was the tenant for last more than 30 years. It was stated that JD No. 2 was the son of JD No. 1 and held himself out to be the attorney of JD/defendant no. 1. Defendants have entered into tenancy agreement with one Sh. Bhupendra Kumar Bagla S/o Sh. Santosh Kumar terming the said agreement as Licenser-cum- Supervision agreement dated 04.06.2003. It was submitted that said agreement was in fact a tenancy agreement and defendants were receiving rent of Rs.40,000/- from Sh. Bhupender Kumar Bagla and hence the property came out of the purview of Delhi Rent Control Act and DH terminated the tenancy and filed suit for possession. The said suit for possession was contested by JD No. 2 of behalf of both the defendants/JDs. JDs have contested the suit submitting that defendant No. 1 was tenant in the suit property but denied to have entered into agreement with Bhupender Kumar Bagla. It was submitted that defendant No. 2 being attorney of defendant no. 1 entered into Licenser-cum- Supervision agreement with Bhupender Kumar Bagla as defendants have every right to expand their business but aforesaid Bhupender Kumar Bagla flouted the clauses of agreement and therefore defendant No. 2 as an attorney of defendant no. 1 filed a civil suit which was pending in the court of Ld. Civil Judge. It was averred that defendant never sublet the suit shop to any person and never entered Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 8 of 19 into rent agreement.
9. Initially suit was dismissed vide judgment/decree dt 3.12.2007 being not maintainable. Decree Holder preferred appeal bearing RFA No. 82/2008 which was allowed vide judgment dt 5.07.2011 and mater was remanded for deciding afresh. After remand, suit was decreed vide judgment/decree dated 14.12.2013. JD No.1 alongwith objectors filed an appeal RFA No. 250/2013 which was dismissed by the Hon'ble High Courtvide judgment dt 30.01.2014. in the said appeal objectors have got their names deleted vide order dt 29.07.2013.
10. It is also worthwhile to note herein that during the pendency of the said suit Smt Pushpa Sharma herein had moved an application whereby seeking permission to place on record written statement on her behalf leveling serious allegations against the JD/defendant no. 2 Ajay Sharma that he (Ajay Sharma) had no authority to act on her behalf and that he had forged her sign on many places/documents and therefore she may be permitted to place on record her own written statement. The said application was filed by her at the last stage of trial of the said case and was dismissed vide order dt 7.09.2007. In the said application it was also mentioned that the summons of the suit was received by her son Mukesh Sharma who is objector No. 1 in the present objection petition. Said application was duly supported by affidavit of Mukesh Sharma (the objector herein) who in his affidavit has submitted that he was permanent citizen of Canada. Contents of the affidavit of Mukseh Sharma will be discussed little later.
11. After passing of the judgment/decree dt 14.02.2013, Smt. Pushpa Sharma the JD No.1 along with present objectors preferred regular first appeal before the Hon'ble High Court bearing RFA No. 250/2013 which was dismissed by the Hon'ble High Court vide judgment dt 30.01.2014. In the said appeal, names of the present objectors were deleted at the submission of appellant No.2 and 3 therein (the objectors herein) that since they were not parties to the suit from Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 9 of 19 which appeal arose, therefore, were wrongly shown as appellants and at their request their name was deleted from the appeal.
12. It is also relevant to note that one Gandharv Saini had filed a suit for possession on 21.04.2004 under Section 6 of the Specific Relief Act 1963 against Ajay Sharma (JD No.2) alleging that Ajay Sharma representing himself to be the landlord agreed to let out the suit shop No P-4, Connaught Place, New Delhi on monthly rent of Rs 26,500/- and after receiving Rs 5 Lakh let out the suit shop and he (Saini) started business of ready made garments from the suit shop on 26.09.2003 and on 06.02.20004 at about 10.50 Ajay Sharma threw out his goods and dispossessed him from the suit shop. Ajay Sharma filed written statement but Ajay Sharma did not lead any evidence in defense although witnesses of Gandharv Saini were cross examined on behalf of Ajay Sharma. Said suit was decreed in favour of Gandharv Saini vide judgment/decree dt 23.02.2006. Said decree dt 23.02.2006 was executed and possession of the suit shop was delivered to Gandharv Saini by the Court bailiff on 24.01.2007. After dispossession from the suit shop in the aforesaid manner, Smt. Pushpa Sharma the JD No.1 herein filed an objection petition to the executing Court against Gandharv Saini seeking restoration of the possession submitting that after death of Sh V. B. Sharma she succeeded to the tenancy and was carrying on same business of her husband under the name ans style of "M/s New Man & Co" from the suit shop and was being assisted by her two sons namely Ajay Sharma and Mukesh Sharma (objector herein). It was further stated that since Ajay Sharma was not keeping good habits therefore he (Ajay Sharma) was not allowed to participate in the business. It was further stated that in the beginning of the year 2000 Mukesh Sharma went to Canada as he got job there and on 31.03.2003 she went to Canada and stayed there till 19.11.20003 leaving her brother Sh O.P.Sharma behind to look after her property and business from the suit shop. Her brother had allowed Gandharva Saini to sale ready made garments on commission from the suit shop. It was further stated that on 20.11.2003 Smt Pushpa Sharma took over Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 10 of 19 the control of business after return from Canada and on 06.02.2004 a quarrel took place between Gandharva Saini and Ajay Sharma leading to registration of an FIR No.62/04 against Ajay Sharma, thereafter possession was taken over by Gandharv Saini in collusion with Ajay Sharma through collusive decree. Said objection was contested by Gandgharva Saini and was finally allowed after trial vide judgment dt 14.10.2009 and possession of the suit shop was ordered to be restored to Smt Pushpa Sharma. Aggrieved from the judgment dt 14.10. 2009, Gandharva Sani preferred first appeal bearing Ex. F.A. No. 14/2009 before the Hon'ble High Court which was dismissed vide judgment dt 3.12.2014. Subsequently, compromised was arrived at and Gandharv Saini delivered the possession of the suit shop to Smt. Pushpa Sharma on 17.07.2015 as recorded by the Court of Sh. Vijay Kumar Dhaiya Ld. ADJ (Central-07) in Ex No. 5/2015.
13. It has been the case of the objectors herein that they came to know about the execution proceeding only recently and hence filed the present objection. If their knowledge is confined to "execution proceedings" then perhaps they may be right but their knowledge of landlords' struggle for possession of suit shop through court of law goes back more behind their "recently" discovered knowledge of execution proceeding. Ld Counsel for objectors has not cited any law showing time limit within which one should file objection and he probably did not do so as that might have gone against him. Objector No.1 Sh Mukesh Sharma, who is now practicing advocate as told to this Court by Sh Mukesh Sharma himself, received the summons of the suit (whose decree is under execution) on 14.02.2004 for his mother Smt. Pushpa Devi and his brother Ajay Sharma. Said suit was contested by Ajay Sharma on behalf of himself as well as on behalf of his mother Smt Pushpa Devi as an attorney of Smt Pushpa Devi. When said suit was at the fag end, then Smt Pushpa moved an application seeking direction for supply of plaint and documents and an opportunity to file written statement submitting that she was not served at all and was not aware of the proceedings. In her application she leveled serious allegation against his son Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 11 of 19 Ajay Sharma of forging her signature and of representing falsely of being an attorney of her. Her said application was supported by an affidavit dt 17.05.2007 of her son Shri Mukesh Sharma the objector No.1 herein. In the said affidavit Mukesh Sharma deposed that he was permanent citizen of Canada and summons were received by him on 14.02.2004 as he was in India at that time in connection with his marriage. He furhter deposed in the affidavit that he kept the summon on an open shelf and forgot to tell about papers to his mother and thereafter he went on honeymoon and came back on 27.02.2004 and then became busy in preparation of his departure to Canada on 1.03.2004.
14. Thus the objector Shri Mukesh Sharma was aware of the suit for possession having been filed by the DHs right since 14.02.2004 but did not bother to come forward to safeguard his own interest if at all he had. Secondly in the affidavit dt 17.05.2007 he is completely silent about the alleged inheritance of tenancy by Smt Pushpa Sharma (JD No.1) and present objectors only. If at all he had interest in the tenancy of the suit shop he would have certainly made mention of it in the said affidavit. If he missed the bus in asserting his right/interest in the tenancy in 2004 when he received the summon because of his excitement due to marriage, he got another opportunity in the form of this affidavit dt 17.05.2007 to assert not only his right in the tenancy but also that of his sister Ms Sunita Sharma, the other objector herein. Silence about inheritance in tenancy in affidavit dt 17.05.2007 by Mukesh Sharma meant two things either the tenancy in the suit shop was not inherited the way the objectors have alleged or that they have given up the tenancy long ago if inherited at all. Hence, objectors cannot be heard for any of the two reason as they are either concocting story to obstruct the execution of decree of possession and if not concocting then they are estopped from asserting their alleged tenancy.
15. JDs and objectors are all hand in gloves is also apparent from the fact that summons of the suit was received for both Smt Pushpa Sharma and Ajay Sharma Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 12 of 19 by Shri Mukesh Sharma from the process server. Process sent to both the defendants by post were returned unserved. Mukesh Sharma in his affidavit dt 17.05.2007 deposed that he forgot to tell his mother about the summons. Mukesh Sharma in his affidavit further had deposed that although he had no cordial relation with his brother but he received the summon for his brother Ajay sharma as his brother had come to attend his marriage. He did not depose that he handed over the summons to his brother Ajay Sharma or got his brother known about the summon. Summons were served on 14.02.2004 and next date before the court was 17.02.2004. Ajay Sharma with his counsel appeared on 17.02.2004 itself and on the same day at 2pm appearance also put by the same counsel on behalf of Smt. Pushpa Sharma. How Ajay Sharma came to know of the said date of hearing? This is possible only when he was informed by Mukesh Sharma which shows that he did not forget to tell anyone. Secondly, if Smt Pushpa Sharma had been serious about her allegation against her son Ajay Sharma for alleged forgery and mis representation then she would have seriously pursued criminal complaint against him. Not only this, she did not ever raise her voice against the counsel who throughout represented her in the said suit till she engaged new counsel to derail the trial by seeking permission to file her own written statement on record. In any case this question of Smt Pushpa Sharma's alleged unauthorised representattion by Ajay Sharma in the suit cannot be gone into here again as the same has already been rejected vide order dt 7.09.2007 and was upheld by the Hon'ble High court vide its order dt 11.10.2007 in CM(M) No. 1385/2007.
16. It has already been pleaded by the objectors that their names were deleted from the array of appellant in the appeal bearing RFA No. 250/2013 by the Hon'ble High Court vide its order dt 29.07.2013. Perusal of the order dt 29.07.2013 shows that it was at the request of the objectors that their names were deleted by the Hon'ble High Court. Be that as it may, what is relevant is that objectors were signatory to the memorandum of appeal filed along with Smt Pushpa Sharma and in the entire appeal as is apparent from the judgment dt Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 13 of 19 30.01.2004 passed in RFA No. 250/2013, there was no mention of inheritance of tenancy by the objectors along with Smt Pushpa Devi or that frame of the suit was bad for non joinder of objectors. Said appeal was signed by Sunita Sharma and Pushpa Sharma as appellant whereas Mukesh Sharma had signed as advocate for Sh Jagdeep Kumar Sharma Counsel for the appellants, therefore, objectors cannot be permitted to deviate from the contents of the appeal and take contradictory stand. Though Mukesh Sharma had not signed the appeal as appellant, however, he had signed as an advocate for the appellant on behalf of Shri Jagdeep Kumar Sharma but despite that he can be bound down to submission made therein. It is obvious that if objectors had inherited the tenancy the way they have pleaded in their objection, then they should have also mentioned the same in the appeal making it one of the grounds of appeal. However, while being deleted from the array of appellants, none of the grounds of appeal were dropped neither any amended memorandum of appeal or amended grounds of appeal was filed which goes to show that every thing in the appeal remained intact even after their deletion but above noted grounds are missing as is apparent from the copy of judgment dt 30.01.2014 as received by this court from the Hon'ble High Court, which means that said grounds were not taken at all by the objectors. Hence, objectors are estopped from raising such plea which they failed to take when they for the first time approached the court, may be wrongly as they claim while getting their names deleted from the array of the appellant in RFA No. 250/2013.
17. Mukesh Sharma also appeared as advocate for Smt Pushpa Sharma in Ex F A No. 14/2009 titled as "Gandharv Saini v. Ajay Sharma" as is apparent from copy of the judgment dt 3.12.2014 placed on record. The said Ex F. A. No 14/2009 was filed by the Gandharv Saini against the order dt 14.10.2009 passed whereby the executing court had allowed the objection petition field by Smt Pushpa Sharma ordering restoration of possession of the suit shop to Smt Pushpa Sharma. Said appeal was conducted by Shri Mukesh Sharma as one of the Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 14 of 19 advocate for Pushpa Sharma and where entire thrust of argument on behalf of Smt pushpa Sharma was that she succeeded the tenancy after the death of her husband and she was carrying out the same business in the suit shop being the proprietor of 'M/s New Man & Co'. Can in these circumstance Shri Mukesh Sharma plead otherwise than what he argued or was argued in his presence by the Counsel for Smt Pushpa Sharma. Relevant portion of the judgment dt 3.12.2014 passed in Ex F. A No. 14/2009 is quoted hereunder to appreciate what was held in favour of Smt Pushpa Sharma on the basis of evidence and arguments puts forth by Pushpa Sharma's Counsels which included the present objector Mukesh Sharma as well:-
"10. The issue before this Court is as to who was in lawful possession of the suit premises. From the record, it is evident that the suit premises was in possession of 'New Man & Company', whose proprietor is recorded as Smt. Pushpa Sharma in the records of Sales Tax Department. Furthermore, she had been paying for the electricity and water supplies. Therefore, clearly, Sh. Ajay Sharma (respondent No.2) could not be acknowledged as tenant in the suit premises. Additionally, the tenancy receipts were in the name of 'New Man & Company' the proprietorship firm, yet the appellant had not impleaded neither Smt. Pushpa Sharma, the objector nor 'New Man & Company' or the owner of the premises Smt. V. V. Gujral as the party to the suit for restoration of possession under Section 6 of Specific Relief Act.
"12. The appellant may will be a legal entrant into the suit premises but he was never a lessee or licensee but only as a salesman on a commission basis because the person through whom he claims a right namely Mr. Ajay Sharma, had yet to establish his right in the premises also. Therefore, no rights would accrue in his favour apropos the suit premises. As regards the contention that respondent no.2 Sh. Ajay Sharma was a co-tenant in the suit premises and all the more because he had filed various original documents in the suit filed by the appellant, this court is of the view that the same would not confer any right in favour of respondent no.2 as a co-tenant especially, since the possession was with New Man & Company of which the objector was the proprietor. Therefore, Sh Ajay Sharma, Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 15 of 19 respondent no. 2 did not have any right in the suit premises as a co-tenant."
18. Mukesh Sharma himself admitted in his affidavit dt 17.05.2007 that case file was inspected by the counsel for his mother Smt. Pushpa Sharma. He too accompanied him and himself seen his signature and recollected about the same. He further deposed in the said affidavit that neither he nor his mother was aware about the pendency of the case. He during the course of argument fairly conceded that he and his mother is living in one house. It can be concluded that Mukesh Sharma contested the present matter firstly under the mask of his mother by supporting all her pleas and contesting her case as one of her advocate. Mukesh Sharma having failed in his such attempt came out openly in his own name and his sister to further create obstruction in the path of decree holder to reap fruit of decree of possession in respect of suit shop. Shri Mukesh Sharma did not explain/disclose as to when he renounced the citizenship of Canada and settled back in India. He now being in active practice of law himself practically contested the case in all possible way putting his mother in front and now has started second round under his own name and that of his sister. Objectors relied upon several case laws noted above but did not cite a single case law to the effect that one who has conducted the case as proxy can also be allowed to be heard in his own name despite having been heard as proxy.
19. Objectors have repeatedly harped on fraud allegedly played by DHs in not disclosing the name of other LRs and in not making them party in the suit. Is not a fraud on the part of the objectors upon the court that despite knowing about the proceedings and despite having interest in the outcome, not coming forward to place the truth before the Court (if at all what they say was true) ? A man is heard after passing of the decree when he comes and say that he was not aware of the proceedings at all or by reasonable exercise of diligence could not have come to know of the proceeding. But in the present case objectors were not only aware but also contested the case as noted above under the mask of Smt. Pushpa Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 16 of 19 Sharma. Smt Sunita Sharma the other objectors despite having filed the appeal and despite having got herself deleted did not bother to take appropriate action soon after withdrawal and waited till the outcome of the appeal in RFA No. 250/2013 and when appeal went against Smt. Pushpa Sharma both objectors came out with these objection on new plea of having inherited tenancy and having been not made party to the suit, just to put another clog in the progressing wheel of justice.
20. It has been further contended that if not the objectors at least "M/s New man & Co." should have been impleaded as party to the suit as it was necessary party as rent receipts relied upon the DHs were in the name of "M/s New Man & co." and therefore certainly suit was liable to be dismissed as admitted tenant was not made party. The contention of the objectors has no force as admittedly "M/s New Man & Co." was not legal entity in the eyes of law. It has come on record and proved by Smt Pushpa Sharma and well argued by Shri Mukesh Sharma in Ex F. A. No. 14/2009 that "M/s New Man & Co." was proprietorship concern of Smt. Pushpa Sharma. Hon'ble Supreme Court in Ashoka Transport Agency v Awdhesh Kumar & Ors., AIR 1999 SC 1484 held :-
"6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 17 of 19 provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business "insofar as the nature of such case permits". This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case."
21. Thus in a case where proprietor herself has been sued no fault could be found with the frame of the suit in not impleading her proprietary concern namely "M/s New Man & Co." in view of the dicta in Ashoka Transport Agency (supra), therefore this ground of non impleadment of "M/s New Man & Co." is not sustainable. Even other wise this ground cannot be taken into consideration as this court is not sitting as court of appeal.
22. Admittedly suit shop was in possession of Gandharva Saini from 24.01.2007 to 17.07.2015 and therefore objectors were not running any business nor could have run any business from the suit shop during this long period of eight/nine years and both objectors must have settled their business else where, if any run by them. Present objection petition has been filed on 31.07.2015 and therefore to say that JD1 had reduced her involvement in the business /affairs of "M/s New Man & Co." due to her old age and the business from suit shop was being actively looked after by objectors since long is hollow claim. Even otherwise hardship likely to be caused to tenant cannot be taken into consideration while implementing law.
23. The case laws noted above and relied upon by the objectors are not applicable to the present facts of the case for the reason discussed herein before as it has already been noted herein before that objectors were aware of the proceedings, were indirectly participating in the proceedings, supporting the stand of Smt. Pushpa Sharma contrary to their own claim in the present objection Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 18 of 19 and it was only when JD No.1 Smt Pushpa Sharma failed that they came forward.
24. In view of the above discussion objection of the objectors Sh Mukesh Sharma and Smt Sunita Sharma is not sustainable and therefore, their objection petition is hereby dismissed.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 19 pages) Delhi/28.11.2016
Ex. No. 23872/16 V. V. Gujral Vs. Pushpa Sharma Page No. 19 of 19