GULAB CHANDRA Vs. MUNSIF WEST ALLAHABAD

JUDGEMENT

(1.) BY means of this petition, under Article 226 of the Constitution, the petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the plaint of suit no. 102 of 1987 filed by Smt. Meera Dutta, the opposite party no. 2, along with the proceedings of the suit, pending in the court of Munsif West, Allahabad. The suit is for declaration that she is co-tenant of house no. 673, Colonelganj, Allahabad, hereinafter called the 'disputed house', and for permanent injunction restraining the petitioner from dispossessing her and her dependents from the aforesaid house of which the petitioner is owner-landlord, in pursuance of the decree dated 19th November, 1982 passed by the Judge, Small Causes, Allahabad, in Original suit No. 50 of 1981, Sri Gulab Chand v. Subhash Chandra Mittra and others.

(2.) THE events giving rise to the instant petition are as follows : THE petitioner filed in the court of Judge, Small Causes, Allahabad, suit no. 50 of 1981 against opposite parties nos. 3, 4 and 5 for their ejectment from disputed house. This suit was decreed on 18th November, 1982 and opposite parties nos. 3 to 5 were directed to vacate the disputed house within a month from the date of the decree. THE opposite parties nos. 3 to 5 challenged the decree dated 18th November, 1982 by means of a revision under section 25 of the Provincial Small Causes Court Act, before the District Judge, Allahabad. THE revision was, however, transferred to the court of 5th Additional District Judge, Allahabad for hearing and disposal who dismissed the revision and upheld the decree passed by the Judge, Small Causes, Allahabad, for ejectment of the opposite parties nos. 3 to 4 by means of his judgment and order dated 11 th March, 1983. THEreafter the opposite parties nos. 3 to 5 approached this Court through Misc. Writ Petition no. 4419 of 1983 questioning the legality of the two judgments and order dated 18th November, 1982 and 11th March, 1983 passed by the Judge Small Causes, Allahabad and the 5th Addl. District Judge, Allahabad respectively. This petition remained pending for a period of about four years and during this period the ejectment of the opposite parties nos. 3 to 5 remained stayed under orders of this Court. Eventually the writ petition was disposed of by this Court on 10th February, 1987. While diposing of tbe petition this Court granted time to the opposite parties nos. 3 to 5 for vacating the disputed house till 31st August, 1987 subject to the condition that within two weeks the said opposite parties filed a joint affidavit containing their personal undertaking to handover peaceful possession of the disputed house to the petitioner on or before 31st August, 1987 and further that they made payment of damages for the period upto 31st August, 1987 within one month. THE Court clarified that in case of default the petitioner would be entitled to evict the opposite parties nos. 3 to 5 forthwith.

(3.) THE petitioner asserts on account of the ad interim order dated 5th February 1987, passed by the learned Munsif West, Allahabad, the Execution Court is not going to execute the ejectment decree against the opposite parties nos. 3 to 5 which has been affirmed right upto this Court. Further assertion of the petitioner is that Suit no. 102 of 1987 has been filed by the opposite party no. 2 only with a view to obstruct the execution of the ejectment decree against the opposite parties nos. 3 to 5 at their behest and it is nothing but an abuse of the process of the court. It is asserted by the petitioner that the opposite party no. 2 has been living in Kanpur and does not reside in the disputed house at Allahabad.