Himachal Pradesh High Court
Vikas Kapila & Another vs Ashok Sood & Another on 9 December, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
CMPMO No. 231 of 2014 Reserved on : 23.11.2016.
Decided on: 9.12.2016 ___ Vikas Kapila & another .....Petitioners Versus Ashok Sood & another ....Respondents.
of Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt Whether approved for reporting?1 Yes.
For the petitioners: Mr. G.C Gupta, Sr. Advocate
with Ms. Meera Devi,
Advocate.
For the Respondents: Mr. Ajay Kumar, Sr. Advocate
with Mr. Dheeraj K Vashishta,
Advocate for respondent No.1.
________
Sureshwar Thakur, J
The instant petition stands directed against the impugned order recorded on 17.7.2014 by the learned Court below upon the objections constituted therefore under Order 21 Rule 97 readwith Section 151 of Code of Civil procedure by the petitioners herein wherewithin they resisted the execution of the conclusively recorded rendition pronounced 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:43:17 :::HCHP
...2...
qua JD/non-objector B.M Kapila impleaded herein as .
respondent No.2. The verdict of dismissal of the apposite objections constituted therebefore by the petitioners herein under the afore-stated provisions of the Code of Civil of Procedure whereunder they purveyed their resistance qua execution of a conclusively recorded verdict of eviction of the rt non-objector/ respondent No.2 herein from the demised premises stands canvassed by the counsel for the petitioners to stand founded upon an inherent procedural fallacy arouse-
able from the factum of the learned Court below in blatant transgression of the mandate of a judgment reported in Latest HLJ 2014(2)928 titled as Rajinder Singh and others versus Sadhu Ram wherewithin this Court had recorded a conclusion qua objections constituted under Order 21 Rule 97 of CPC before the learned Executing Court by the objectors/resisters to the execution of a conclusively recorded decree of eviction pronounced upon the JD warranting trial thereon analogous to trial of a Civil Suit whereupon the executing Court stood ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...3...
enjoined to strike issues on the contentious pleadings of the .
parties at lis also thereupon it stood enjoined to permit them to adduce their respective evidence thereon whereas apparently with the impugned rendition making a vivid of disclosure qua the aforesaid compliance(s) remaining un- begotten renders the impugned rendition to suffer the ill fate rt of it standing quashed and set aside.
2. The aforesaid submission addressed herebefore by the learned counsel for the objectors/petitioners herein is bereft of his remaining attentive to all the attendant material which exists on record. Initially the conclusively recorded rendition pronounced qua eviction of JD/respondent No.2 herein from the demised premises occurred on 14.9.2004 also the pronouncement aforesaid attained finality whereafter it stood put to execution before the learned Executing Court, only in course whereof objectors/petitioners herein (Successors-in-
interest of late Sh. D.N Kapila, brother of the JD) constituted therebefore objections purveying their resistance qua the ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...4...
execution of a conclusively recorded rendition of eviction of .
the JD/respondent No.2 herein from the relevant demised premises,objections whereof stood anvilled qua his/theirs continuing to hold tenancy qua the relevant premises under of the landlord/DH also his/theirs holding possession thereof whereupon they espoused qua the decree in execution not rt holding any binding effect upon their rights as tenants in the relevant demised premises.
3. The DH/non-objector/respondent No.1 herein repudiated the objections preferred by the objectors/petitioners herein before the learned Executing Court wherein the DH canvassed qua Mr. D.N Kapila surrendering his tenancy in the year 1990 qua the relevant premises whereafter he espoused qua Mr. D.N Kapila thereafter departing for his native place at Nadaun, in sequel whereto JD/respondent No.2 herein stood inducted by him as a tenant in the relevant premises. However the objectors before the learned Executing Court alongwith their apposite ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...5...
objections appended receipts in personification of the .
DH/landlord receiving rent from Mr. D.N Kapila subsequent to the latter purportedly surrendering his tenancy in the year 1990. However a close perusal thereof of underscores the factum of none of the receipts which exist on record subsequent to 1990 displaying therein qua the rt landlord/DH receiving therein from the predecessor-in-
interest of the petitioners herein the amount of money constituted therein as rent qua the relevant premises. Also a photocopy of the receipt issued by the Physician who attended upon the predecessor-in-interest of the petitioners herein with a disclosure therein of the latter holding his residence in the tenanted premises whereupon the petitioners' assayed qua theirs predecessor-in-interest thereat holding possession of the tenanted premises would not foreclose any inference qua thereupon the predecessor-in-
interest of the petitioners herein holding possession of the demised premises, as it merely appears to be a suo moto ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...6...
unilateral display by the predecessor-in-interest of the .
petitioners herein whereby it acquires a taint of invention besides concoction rendering it to be discardable, nor also any electricity bills appended therewith holding therewithin of reflections qua the relevant tariff displayed therein qua consumption of electricity qua the demised premises rt standing demanded from the predecessor-in-interest of the petitioners herein would hold any tenacity for concluding qua the brother of the JD predecessor-in-interest of the petitioners herein thereupon belying the factum of the JD/respondent No.2 herein holding tenancy of the demised premises, significantly when the demand of tariff qua the relevant premises as stand displayed therein may be a sequel to the JD/respondent No.2 herein not obtaining from the authorities concerned alteration of the electricity connection in his name.
4. The aforesaid discussion though prima-facie unveils an inference qua the impugned rendition pronounced ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...7...
by the learned Court below not suffering from any gross taint .
yet the counsel for the petitioners herein vehemently insists qua omission of striking of an apposite issue(s) by the learned Court below on the contentious pleadings of the parties at of contest also its omission to permit them to adduce their respective evidence thereon prejudicing the espousal rt therebefore of the petitioners whereupon he contends qua the tenacity of the impugned verdict hereat standing belittled.
5. The insistence made by the learned counsel for the petitioners herein upon the mandate of this Court encapsulated in the verdict relied upon by him supra though holds therewithin the afore-referred legal expostulation of exacting inflexible rigor whereas its mandate standing evidently infracted when may hence entail the inevitable sequel qua the impugned rendition suffering the misfortune of its standing invalidated, yet its sharpness besides gravity stands blunted by a rendition recorded by the Hon'ble Apex Court in (1998) 3 Supreme Court Cases 723 in a case titled as ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...8...
Silverline Forum Pvt. Ltd versus Rajiv Trust & another, relevant .
paragraphs whereof occurring at Sr. No. 12,13 and 14 which stand extracted hereinafter, contrarily therewithin holding qua the learned Executing Court, on standing seized with of objections constituted therebefore by the resister or objector to the conclusively recorded rendition of eviction rt pronounced upon a person holding possession/occupying the relevant premises as a tenant under the DH wherein they ventilate qua theirs thereat holding its possession also thereupon theirs concerting to escape the effect upon them of the conclusively recorded rendition of eviction pronounced upon a person impleaded as a JD therein, the learned executing Court holding the discretion to or its may directing the contesting parties to adduce evidence on the apposite issue(s) as arise(s) for determination on the apposite contentious pleadings of the parties whereupon the ensuing sequel is there being no omnibus fetter nor any preemptory obligation upon the learned Executing Court to always in all ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...9...
eventualities proceed to strike issues on the contentious .
pleadings reared therebefore by the DH besides by the apposite objector/resister by the latter constituting therebefore a petition under Order 21 Rule 97 sub rule 2 of of CPC nor also there being a perennial peremptory dictate upon the learned executing Court to permit adduction of rt evidence thereon by the relevant combatants thereat.
"12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...10...
execution Court can decide whether the question raised by a resistor .
or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
13. In the above context we may refer to Order 21, Rule 35(1) which reads thus :
of " 35"Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on rt his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property."
14. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary."
6. Now hereat it has to be determined whether the aforesaid condition constituted therein in exception to the general principle qua the learned Executing Court striking issues on the contentious pleadings of the parties at contest thereat besides permitting them to adduce their evidence ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...11...
thereon, stands hereat satiated. For making the aforesaid .
unearthings the factum of an evident close relationship of brothers existing inter-se the JD/respondent No.2 herein vis-
à-vis Mr. D.N Kapila, the predecessor-in-interest of the of petitioners herein does inevitably warrant a conclusion qua the apposite objections standing seeped in a vice of a deep rt collusion occurring inter-se both also theirs being contrived besides engineered merely for preempting the DH to obtain issuance of warrants of possession qua the demised premises from the Executing Court.
7. Aggravated momentum to the aforesaid inference stands evinced from the factum of a legal notice making a disclosure therein qua the counsel representing the petitioners herein issuing/serving upon the DH, a notice, ventilating therein a grievance qua the JD alongwith the predecessor-in-interest of the petitioners herein standing inducted as a tenant in the relevant premises by the DH. The aforesaid disclosure occurring therein makes a palpable ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...12...
display qua the petitioners acquiescing to the factum of joint .
tenancy existing qua the relevant premises inter-se D.N Kapila and B.M Kapila. The notice aforesaid stood issued on 8.5.2014 hence subsequent to the conclusively recorded of pronouncement made on 14.9.2004 by the learned Rent Controller concerned against the JD/respondent No.2 herein .
8. rt In the afore-stated backdrop the effect of an omission by the respondent No.2 herein to discharge the apposite onus on the relevant issue(s) qua the petition suffering from a vice of non-joinder and mis-joinder of parties when stands coagulated with the afore-stated communications occurring in the notice at hand appended with the petition hereat holding echoings therein qua the respondent No.2 herein/JD alongwith the predecessor-in-
interest of the petitioners herein jointly holding tenancy qua the demised premises also when the counsel who served the legal notice upon the DH is also the counsel who represented the JD before the Rent Controller concerned is qua thereupon ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...13...
a graphic display emanating qua the espousal made in the .
objections reared by the objectors/petitioners herein being an invention besides a concoction merely for preempting the execution of the conclusively recorded renditions of both the of learned Courts below. Moreover, the effect of the aforesaid inference is qua with Mr. D.N Kapila residing alongwith Mr. rt B.M Kapila in the relevant premises his throughout holding awareness qua the pendency of the apposite petition constituted by the DH before the learned Court concerned against Mr. B.M Kapila (his brother) whereupon he was enjoined to seek his impleadment therein whereas his afore-
stated omission begets a sequel of his acquiescing to the apposite conclusive pronouncements made qua his brother Mr. B.M Kapila whereupon the relevant liability of eviction pronounced upon Mr. B.M Kapila is alike the latter binding upon him also.
9. The summon bonum of the above discussion qua the principle held in the pronouncement of the Hon'ble Apex ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...14...
Court (supra), relevant paragraphs whereof stand extracted .
hereinabove qua there being no rigid fiat upon the learned executing Court to strike apposite issue(s) on the contentious pleadings of the parties in a petition constituted therebefore of by the Objectors/resisters under Order 21 Rule 97 (2) of CPC nor it concomitantly being under an inflexible obligation to rt permit them to adduce their respective evidence thereon unless it is deemed necessary besides expedient for facilitating it to record its pronouncement, when stands applied hereat especially when the afore-stated material makes a loud pronouncement qua the apposite objections as stood preferred therebefore standing engineered besides concocted contrarily when only the apposite objections hold a prima-facie tinge of tenacity besides creditworthiness thereupon alone the learned Executing Court prima-facie standing enjoined to strike issues on the contentious pleadings of the parties besides stood enjoined to permit them to adduce their respective evidence thereon ::: Downloaded on - 15/04/2017 21:43:17 :::HCHP ...15...
significantly when throughout it would be facilitative for .
recording an effective determination. For reiteration when the aforesaid principle whereupon the learned Executing Court stood enjoined to strike issues upon the contentious of pleadings constituted therefore by the combatants therefore stands hinged upon the aforesaid endeavor facilitating it to rt pronounce an efficacious rendition upon the apposite concert existing therebefore remains unsatiated, thereupon the espousal made by the learned counsel for the petitioners qua for omission(s) thereof the verdict impugned hereat warranting interference necessitates its standing discountenanced. There is no merit in this petition the same is accordingly dismissed. All pending applications stand disposed of accordingly.
December 9,2016 ( Sureshwar Thakur ),
(priti) Judge.
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