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SMT. JAGIR KAUR versus SRI BABU KHAN AND ANOTHER

High Court of Judicature at Allahabad

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Smt. Jagir Kaur v. Sri Babu Khan And Another - WRIT - A No. 52901 of 2006 [2006] RD-AH 17243 (5 October 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

  Petitioner claims herself to be tenant in the house, in dispute since 1981 situate in Mohalla Sher Mohammad, District Pilibhit vide rent agreement dated 12.12.1981 appended as Annexure 1 to the writ petition.

It is submitted that the property in dispute had been purchased by Sri Babu Khan- respondent no. 1 from the erstwhile owner Smt. Pritam Kaur- reswpondent no. 2.

 The respondent Sri Babu Khan is said to have filed Original suit No. 157 of 1983- Babu Khan v. Smt. Pritam Kaur for specific performance of contract in respect of disputed house which was decreed vide judgment and decree dated 20.5.1985. Civil Appeal No. 34 of 1985 was preferred by Smt. Pritam Kaur which was dismissed vide judgment and order dated 7.5.1986 and the decree was put into execution which was registered as Execution Case No. 14 of 1987. In the execution proceedings, sale deed dated 13.5.1991 was executed in favour of the decree holder, plaintiff- respondent no. 1.

Subsequently, when possession of the disputed house was sought to be taken, apprehending her dispossession, the petitioner preferred Misc. suit No.      of 1994 in the Court of Munsif, Pilibhit.

The case set up by the petitioner was that she was tenant in the house in dispute on a monthly rent of Rs.15/- and had taken the disputed house on rent from Smt. Pritam Kaur.  She had been paying rent regularly to Smt. Pritam Kaur.

Sri Babu Khan, plaintiff-respondent no. 1 filed his objections.  The Courts below after hearing the parties, rejected the application of the petitioner on 3.3.1998 allegedly on highly insufficient grounds.

Aggrieved by rejection of her application, the petitioner preferred Civil Revision No. 39 of 1998 which too was dismissed by the revisional Court vide judgment and order dated 7.9.2006.

Counsel for the petitioner contended that the petitioner had filed rent note as paper no. Ga 8/3 and rent receipts from 1991 being paper nos Ga 8/5 to 8/28.  The Revisional Court has wrongly discarded paper no. Ga 8/3 in view of the provisions of Section 17-B of the Registration Act, 1908.  It is vehemently urged that as the rent not was in respect of only 11 months, it required no registration and that the rent receipts have been referred to by both the Courts below. Thus, the finding of both the Courts below, in this regard, is perverse.

Sri Arora, counsel for the petitioner contended that in execution of decree only the sale deed of the disputed property can be got executed in favour of the decree holder Babu Khan and at best the symbolic possession of the property in dispute can also be given to him. However, the actual and physical possession of the disputed property is to continue with the original tenant, i.e., petitioner in the instant case.  He submitted that in this view of the matter, an aobjection was filed by the petitioner under Order XXI Rule 97 of the CPC with the prayer that the petitioner-tenant be not evicted from the disputed accommodation. However, vide order dated 3.3.98, the objection of the petitioner was dismissed in a summary manner although application was in the nature of Order XXI Rule 97 CPC, which is like a full fledged suit and is to be treated as such and is also to be tried after framing necessary issued and taking necessary evidence in this regard. In support of this contention, he placed reliance upon the decision in Nusserwanji E. Poonegar and others V. Mrs. Shirinbai F. Bhesania and others-AIR 1984 Mumbai -357 wherein it has been held that the proceedings under Rules 97,101 and 103 of Order XXI of the Civil Procedure Code are in the nature of a suit and it would be appropriate for the executing Court to frame issues and allow parties to lead all evidence that they may desire to do.

He submitted that a perusal of order passed on the application under Order XXI Rule 97 CPC is of the nature of a decree and the remedy available against such order is that of an appeal.

Placing reliance in Sanjai Kumar and others V. Tirath Ram and others-1987(2) ARC-407, he urged that against the judgment and order dated 7.9.2006, the petitioner has remedy of filing a Second Appeal and, therefore, he prayed that he may be permitted to withdraw the petition with liberty to file Second Appeal.

Having heard Sri K.K.Arora at length, I find that the Revisional Court observed  that the petitioner had not assigned any reason as to why she did not file the documents before the Prescribed Authority which had been filed, for the first time, in the shape of list 125-Ga, i.e. Ration Card Election Identity Card, Electoral Roll and Gas connection before the Revisional Court and that even otherwise documentary evident produced by her clearly showed that though the petitioner alleged heself to be tenant from 1981 but she utterly failed to prove her case from the records and that the documents filed by her were afterthought and in collusion with erstwhile landlord Smt. Pritam Kaur.

The revisional Court after discussing evidence and contentions of the parties has held as under:-

"6. loZizFke nkSjku fuxjkuh cgl ds Lrj ij ,d izkFkZuk Ik= fuxjkuh drkZ dh vksj ls 124 x bl vk'k; ls izLrqr fd;k x;k fd og lwph dkxt la[;k 125 x ls QksVksLVsV izfrfyfi jk'ku dkMZ] ernkrk igpku Ik= o ernkrk lwph] xSl dusD'ku nkf[ky dh gs] 'kkfey Ik=koyh dj lk{; esa xzkg; dh tk;s ftl ij vifRr 130x Onkjk mrrjnkrk izLrqr dh xbZ ftldk fuLrkj.k fu.kZ; ls iwoz fd;k tkuk U;k;laxr vkSj vkSfpr;iwkZ gS A

7& nkSjku fuxjkuh dksbZ ,slh tks fd eqdnesa dks vfUre #Ik ls izHkkodkjh <ax ls fuf.kZr fd;s tkus ds fy, vko';d gks vUrZxr /kkkjk 151 C;ogkj izfdz;k lafgrk xzkg; fd;s tkus ij fopkj fd;k tk ldrk gS tcfd vkns'k 41 fu;e 27 lh-ih-lh ds izkfo?kku ds vuqlkj nkSjku vihy ;fn dksbZ lk{; izLrqr fd;k tkrk gS rks vkns'k 41 fu;e 27 lh-ih-lh ds izkfo/kku ds vuqlkj gh lk{; esa xzg.k fd;k tk ldrk gS A fuxjkuh esa lk{; xzg.k fd;s tkus ls iwoZ ;g vko';d gks tkrk gS fd tks lk{; fuxjkuhdrkZ nkf[ky djuk pkgrk gS D;k og lk{; nkSjku ijh{k.k okn vf/kuLFk U;k;ky; esa nkf[ky fd;k tk ldrk gS vFkok ugha] ;fn nkSjku ijh{k.k vij U;k;ky; ds le{k izLrqr dj ldrk Fkk rks izLrqr D;ksa ugha fd;k tk ldk rFkkk mldh igqWp ds ckgj Fkk vFkok mlds ckn esa izkIr gks ldk ftldks izkIr djuk mldh lkeF;Z ds ckgj jgk Fkk A ,slk dksbZ Hkh dkj.k fuxjkuhdrkZ us vius izkFkZuk Ik= esa mfYyf[kr ugha fd;k tks lk{; crkSj jk'kudkMZ dh QksVksizfr nkf[ky dh gs og fnukad 13-2-2004 dks lEcfU/kr vf/kdkjh ds Onkjk fuxZr fd;k x;k rFkkk blh izdkj tks igpku Ik=

1-1-95 dks tkjh fd;k x;k vkSj ernkrk lwph o"kZ 1995 esa rFkk xSl dusD'ku fnukad 18-8-2006 dks tkjh fd;k x;k tcfd fuxjkuhdrkZ vius vkidks fookfnr edku dh crkSj fdjk;snkj o"kZ 1981 ls gksuk vfHkdfFkr djrh gS A vr% fuf'pr #Ik ls tSlk fd foOnku vf/koDrk okLrs mRrjnkrk foi{kh dh vksj ls cgl dh x;h gS fd ;g leLr lk{; lksp fopkj dj vius vkidks fookfnr lEifRr ds fdjk;snku ds #Ik esa nf'kZr djus gsrq lkt djds rS;kj fd;k x;k gS ftldk dksbZ ykHk fuxjkuhdrkZ dks izkIr ugha gks ldrk' esa cy izrhr gksrk gS A vr% ,slh fLFkfr esa fuxjkuhdrkZ Onkjk nkf[ky fd;k x;k bl Lrj ij lk{; xzg.k fd;s tkus ;ksX; ugha jg tkrk gS tks fd Loa; esa QksVksLVsV izfrfyfi ds #Ik esa gS A vr% izkFkZuk Ik= 124x rnuqlkj [kkfjt fd;k tkrk gash"

It may be that paper no. Ga 8/3, i.e. rent note, did not require registration under the Registration Act, 1908 for the reason that it was executed for a period of 11 months only but there is no evidence that further agreement was entered into in furtherance of the rent not extending the tenancy after 11 moths. After the period of rent note had expired, no fresh rent note was executed. The revisional court has given a finding that the documents have been filed as an afterthought in collusion with the landlord, hence rent receipts -paper nos. G 8/5 to Ga 8/28 could not have been taken into consideration and have rightly not been taken into consideration.

The revisional court has also discussed the provisions of Order XXI Rule 27 of the Code of Civil Procedure (for short ''CPC;), which is as

under :-

"27. Liability of judgment-debtor discharged- No order of restitution or discharge under Rule 26 shall prevent the property or person of a judgment-debtor from being retaken in execution of the decree sent for execution.

It prevents property or person of a judgment debtor from being retaken in execution of the decree sent for execution.

The revisional Court has proceeded to adjudicate upon application of the petitioner in accordance with the provisions contained therein, i.e. Order XXI Rules 101 and 103 CPC. Order XXI Rules 101 and 103 are as under :-

"101. Question to be determined -  All questions, including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being, in force, be deemed to have jurisdiction to decide such questions.

103. Orders to be treated as decrees - Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."

The contention of the counsel for the petitioner is that proceedings under Order XXI rule 97 read with rules 101 and 103 are at par with issues framed in the suit as has been held in Nusserwanji E. Poonegar and others V. Mrs. Shirinhai F. Bhesania and others- AIR1984 Bombay-357 which was subsequently affirmed by Hon'ble Supreme Court in           2004(54) ALR -187.

A perusal of Order XXI Rules 101 shows that it provides that all questions including questions regarding right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

Rule 103 provides that where any appliation has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

On a plain reading of Order XXI rule 101, it is clear that the provisions of rule 101 have been enacted for determination of question  regarding right, title or interest of a third party who had been, for some reason, made a party in the suit.  The status of third party is that of an intervenor under rule 101 so that decree under rule 103 may be passed after hearing all the parties. Proceedings under rule 101 cannot be taken to be proceedings in suit or at par with suit as the provision itself provides that any objection of the third party may be adjudicated upon and the Court shall have jurisdiction to hear it despite the fact that the suit had already been decreed. In so far as rule 103 is concerned, it only provides that the proceedings under rules 98  and 100 shall be treated as decree. It does not provide that provisions under Order XXI rule 97 would also be treated as decree. If law provides that certain thing has to be done in certain manner, it has to be done in that manner. This golden rule has been settled, time and aganby Hon'ble the Apex Court in catena of decisions.

Counsel for the petitioner contended that Order XXI Rule 97 had initially permitted to be used by the decree holder as a weapon where there was a third party and third party was making objection. He further submits that from perusal of Order XXI it appears that application could not have been filed by the third party but under Order XXI Rule 99, any person other than the judgment debtor who has been dispossessed from the immoveable property by the decree holder could move an appliation.  He urged that under Order XXI rule 99, application can be made by a person after he is dispossessed .  This has been interpreted by Hon'ble Supreme Court in Silverline Forum Pvt. Ltd. V. Rajiv Trust and another -AIR 1998 SC-1754 and Ashan Devi and another V. Phulwasi Devi and others- (2004) 54 ALR-187.

At this stage of judgment, the counsel for the petitioner states that remedy of filing Second Appeal is available to the petitioner, hence he does not want to press this writ petition.

In view of the above statement, without entering into the controversy any further, the writ petition is dismissed as not pressed.  The petitioner is at liberty to file Second Appeal, if she is so advised. No order as to costs.

Dated 5.10.2006

kkb


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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