Madhya Pradesh High Court
Gajendra Nath vs Shakil Ahmad Khan Alias Ajij Mohd. Khan ... on 23 January, 2003
Equivalent citations: 2003(2)MPHT506
ORDER S.P. Khare, J.
1. This is a revision by defendant No. 1 Gajendra Nath Chaturvedi against the order by which plaintiff Shakil Ahmad Khan's appeal under Order 43 Rule 1 (r), CPC has been allowed and the defendant No. 1 has been restrained from executing the ex pane eviction decree in Civil Suit No. 59-A of 1996 against Abdul Quadir till the decision of the present Civil Suit No. 12-A of 2000.
2. The defendant No. 1 has obtained the aforesaid eviction decree against Abdul Quadir on the allegation that the latter was his tenant in a shop 10' x 24' size situated in Ghoghar, Rewa at a monthly rent of Rs. 20A from the year 1974. The plaintiff claims to have purchased this shop from Abdul Quadir by a sale-deed dated 16-1-1990. He is in actual possession of the shop. He filed an application under Order 21 Rule 97, CPC in the Executing Court stating therein that he is in possession of the shop on the basis of the above mentioned sale-deed and the eviction decree is not binding upon him. It was rejected by order dated 30-11-1998. Thereafter the plaintiff filed the present Civil Suit. No. 12-A of 2000. In this civil suit the application for temporary injunction was rejected by the Trial Court but it has been allowed in appeal.
3. In this revision it has been argued on behalf of the defendant No. 1 that the civil suit is not maintainable in view of the specific provision in Order 21 Rule 101, CPC and the proper remedy for the plaintiff was to file an appeal under Order 21 Rule 103, CPC against order dated 30-11-1998 by which his application under Order 21 Rule 97, CPC was rejected. It is also argued that the plaintiff has no prima facie case as the eviction decree is binding upon him, as he is transferee of the tenant and it was not necessary to implead him as a party to the civil suit as the sub-tenant or the person in whose favour the tenant has parted with the possession is not a necessary party in the eviction suit.
4. After hearing the arguments of the learned Counsel for both the sides this Court is of the opinion that the impugned order of the Appellate Court is liable to be set aside. The Scheme of the provisions in Order 21 Rules 97 to 101 is altogether different after the Amendment in the year 1976 than which prevailed earlier. That has been explained in several decisions of the Supreme Court. In Shreenath v. Rajesh, AIR 1998 SC 1827, it has been made crystal clear that Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the Executing Court complaining such resistance for delivery of possession of the property. Rule 97 (2) after 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained thereinafter. This refers to Order 21 Rule 101 (as Amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 should be determined by the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matters pertaining to that property including any obstruction by a stranger are adjudicated in the executing proceedings. The expression "any person" in Rule 97 (1) is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. So, under Order 21 Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the Executive Court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and the other person claiming title on their own right to get it adjudicated in the very execution proceedings.
5. Again in Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723, it has been observed that the adjudication mentioned in Order 21 Rule 97 (2) need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.
6. It was necessary for the Trial Court and also the Appellate Court to consider the preliminary question whether the suit filed by the plaintiff was at all maintainable.
7. So far as the order of the Appellate Court granting relief of temporary injunction in favour of the plaintiff is concerned, that must be set aside. The plaintiff admittedly claims to be the transferee from the tenant of the defendant No. 1 and, therefore, it was not necessary to implead the plaintiff as a party in the eviction suit. This is clear from Section 14(1)(b) of the M.P. Accommodation Control Act, 1961, that no tenant shall, without the previous consent in writing of the landlord, will transfer his rights in the tenancy to any other person. The order of the Appellate Court shows that it has tried to bring an artificial distinction between the name of the tenant and the transferee and also regarding identity of the shop. It is clear from the dispute between the parties that the plaintiff is claiming the same shop which was let out by the defendant No. 1 to Abdul Quadir. The Trial Court had rightly held that the plaintiff has no prima facie case. The plaintiff has not at all said from where Abdul Quadir got the shop in dispute. In the absence of such plea the case of the defendant No. 1 must be accepted that this shop was let out by him to Abdul Quadir.
8. In view of the above discussion, the revision is allowed. The impugned order of the Appellate Court is set aside and the application of the plaintiff under Order 39 Rules 1 and 2, CPC is rejected.