ZEHRA EHANUM Vs. J JAYAKUMAR

JUDGEMENT

(1.) THIS c. r. p. is directed against an Order passed by the small causes court in execution petition No. 2025 of 1987, dated 28-10-1991. This is a hotly contested litigation but the few facts that are material for purposes of deciding the issue are only being recounted by me. The dispute centres around a small shed that stands in property bearing No. 60/a and in respect of which it is contended that one nawab jan was the tenant. It is also essential to record that the property on which this shed was standing is supposed to have originally belonged to one abdul rahaman and that after his death, his widow and the sons had sold the property to one jayakumar who is the present respondent 1 to this proceeding. Jayakumar had instituted h. r. c. No. 590 of 1987 for eviction of the tenant nawawan who is the 2nd respondent to this petition and the sequence of events as far as that suit is concerned are of some consequence. The suit- was filed on 2-3-1987 and was returnable on 16-4-1987. It is contended that since the tenant was not interested in the premises and was not using them that he agreed to the passing of a compromise decree for which purpose, an application was made to the court for listing the matter earlier and on 20-3-1987 a compromise decree was passed against the tenant giving him 15 days time to vacate. Since he did not vacate, execution petition No. 2025 of 1987 was filed on 6-4-1987 i. e. , the very day after the 15 days time had expired. Thereafter, on 16-4-1987 one more application was made to the court alleging that the premises were locked and that the decree-holder should be given police assistance for purposes of executing the decree, if necessary forcibly. This application was also granted and on 18-4-1987 the respondent 1 through the assistance of the police and the bailiff took possession of the premises. On the same day, the present petitioner filed an application under Order 21, rule 99, C. P. C. for restoration of possession. Her case is that her husband had taken the shed on lease from the original landlord and that a rent of Rs. 50/- was being paid. She also contended that a firewood depot was being run there by her late husband and that she was thereafter carrying on the business, though the licence in respect of the business stood in the name of her son mahaboob. She contended that she was not even a party to the proceedings nor was the decree liable to be executed against her and that the dispossession was wrongful and that consequently, the court ought to restore possession to her.

(2.) THIS application was resisted by the respondents to this petition. It was contended by the first respondent-jayakumar that the applicant is a resident of the adjoining premises, that she has no concern whatsoever with the execution of the decree and that the entire application is false. It therefore became necessary for the court to examine the entire dispute in detail in the course of which the applicant examined as many as 4 witnesses and produced various supportive documents. The respondent examined two witnesses and also produced certain documents and the learned trial judge after examining the evidence and all the other material that was produced before him came to the conclusion that the application was liable to be dismissed. This revision is directed against that order.

(3.) PETITIONER's learned Advocate has alleged serious mala fides in this case. He has submitted that the entire proceeding filed before the trial court was a total fraud and in support thereof, what is contended is that it is impossible to believe that the proceeding could have culminated in such a short period of time, that any tenant would agree to vacate and surrender the premises in the manner that is alleged and furthermore, his submission is that the entire proceeding was a ruse in Order to wrongfully dispossess the present applicant and that therefore, it is necessary, that this court should come down heavily on the first respondent for what has happened. Learned Advocate submitted that the entire story made out about the 2nd respondent being the tenant of the premises is absolutely false and in this regard, he relied heavily on a series of documents; the most important document on which reliance is sought to be placed is ext. P-15, which is a licence for the running of the firewood depot. The learned Advocate submitted that a perusal of this licence will indicate that it related to the premises No. 60/a, 7th cross, wilson garden, which is according to him the premises in dispute. Secondly, the learned Advocate submitted that the licence in question was very much alive at the time when the incident took place. The learned Advocate also draws my attention to a lot of other material which according to him the learned trial judge has totally overlooked. Among these, reliance is sought to be placed on a series of photographs that have been produced in relation to the demolition of the premises and the firewood and charcoal that was found scattered there. His submission is that these photographs very conclusively establish that the shed in question which was there was in a demolished condition and furthermore, that the firewood depot which was being conducted under the licence-ext. P-15 was in fact a business that was running from that place because the photographs do indicate that the firewood and charcoal was found scattered there. Apart from this, learned Advocate submits that the applicant's son has given evidence and that he has pointed out that they apprehended some sort of legal action against them, vis-a-vis the premises in question which was why the caveat petition was filed before the small causes court and the city civil court despite which the proceedings were instituted in the name of a totally bogus party who had nothing to do with the premises. Apart from this, reliance is placed on some other documents such as the money Order receipts in relation to the return of the rent which was not accepted and evidence showing that a draft of Rs. 500/- had been obtained from the bank and that this had been forwarded against payment of the rent some time prior to the incident. The submission canvassed is that all this material cumulatively, will conclusively establish that the applicant has discharged the burden cast on her under Order 21, rule 100, C. P. C. and that in having totally overlooked all this crucial material, a serious error apparent on the face of the record has befallen. The submission therefore is that the impugned Order be set aside and the application for restoration be allowed.