MIYAW KHAN Vs. MANOHARLAL

JUDGEMENT

(1.) Questioning the rejection of the claim petition in limine by the III Assistant Judge, City Civil Court the present CRP is filed.

(2.) The 1st respondent obtained a decree for eviction of the 2nd respondent- tenant from the suit schedule property in O.S. No.128 of 1977. E.P. No.129 of 1989 was filed by the 1st respondent-decree holder for execution of the decree. On the allegation that the petitioner is in possession of the suit property which is a vacant land measuring 191 sq. yards covered with a tin-shed and that the decree holder was about to take steps to eject him in the guise of executing the decree, the petitioner filed claim petition inE.P. 272/96 under Order 21, Rule 99 CPC. The case of the petitioner as disclosed in the claim petition is that he purchased the property under an agreement of sale executed by the 1st respondent on 13-5-1987 i.e., during the pendency of the suit, paid a substantial amount of Rs.20,000/- towards sale consideration and obtained vacant possession on the same day and he is now carrying on business therein. According to the petitioner the 1st respondent informed him that the eviction was ordered by the High Court one and half months earlier to the date of agreement he could pursuade the 2nd respondent to deliver the vacant possession. It is also averred that he filed a suit for specific performance and injunction against the lstrespondent within a fewdays after the agreement was obtained. Admittedly, the said suit was dismissed for default and an application to restore it was also dismissed. There upon, the petitioner filed CMA No.3 of 1996 which is now pending. The 1st respondent denied the execution of the agreement of sale. It is his case mat the 2nd respondent, who suffered the decree of eviction set up the petitioner and got the claim petition filed by him. The 2nd respondent filed a counter In the E. A. virtually supporting the case of the petitioner stating that pursuant to the agreement of sale the petitioner was put into physical possession of the land on 13-5-1987 and that he has nothing to do with the suit property.

(3.) The learned Assistant Judge dismissed the E.A. on two grounds- the claim of the petitioner is not bonafide and unbelievable and that Order 21 Rule 99 cannot be invoked unless the petitioner is dispossessed. Much can be said against the view taken by the learned Assistant Judge as far as the second ground is concerned. The view taken by this Court in more than one decision including the one cited by the learned Judge himself is that the person in possession need not wait till actual dispossession but he can move the Court before-hand on a reasonable apprehension of dispossession, (vide AIR 1987 A.P. Page No.206). As far as the 1st ground in concerned, the learned Counsel for petitioner vehemently contends that without an enquiry as to the right, title and interest over the suit property, the claim petition cannot be rejected in limine on the ground that the claim is not bow fide. This contention, though plausible cannot be accepted on the facts of the present case. Apart from the other relevant facts adverted to by the lower Court, the most important fact to be noted is that the suit for specific performance of the alleged agreement filed by the petitioner against the 1st respondent was dismissed and the application to restore the suit was also dismissed; now, an appeal is pending. In the state of affiars, the petitioner has no semblance of right or claim over the suit property. The petitioner cannot claim any title or interest over the suit property merely on the basis of the agreement so long as the conveyance deed has not been executed. As the things now stand the suit for specific performance of agreement had failed. How and in what manner the petitioner came into possession of the suit property pending the suit despite the hotly contested litigation between the landlord (1st respondent) and the tenant (2nd respondent) is not explained to the prima facie satisfaction of the Court. The case of the petitioner is that the 1st respondent represented to him that vacant possession was obtained from the 2nd respondent one and half months before the agreement of sale was entered into, but that was not stated in the counter filed by the 2nd respondent. If the 2nd respondent vacated the land voluntarily and surrendered the possession, the suit would have died a natural death, but undisputedly the contest in the suit persisted and it went up to the High Court. There cannot, therefore, be an iota of truth in the vague assertion of the petitioner mat the vacant possession was obtained on the date of the agreement of sale and by that date, the tenant namely 2nd respondent was not in possession. It is equally unnatural that a suit for specific performance filed by the petitioner within a few days after obtaining the agreement of sale, if really the vacant possession was delivered to him and he was enjoying the property, In the face of these undeniable facts, the claim petition does not deserve further secrutiny or enquiry, on the very basis of the pleadings and the admitted course of events, the claim cannot be sustained even prima facie. In such a situation, it would be an empty formality to entertain the claim petition, enquire into it and decide the same after a full-fledged trial. To do so would be to give a handle to an unscrupulous litigant to abuse the process of the Court and to drag on the execution proceedings. I cannot understand Order 21 Rule 99 as leaving no option to the Court but to entertain and enquire into any and every type of claim petition irrespective of the fact whether it is frivolous, vexatious or ex fade untenable. Further enquiry in the sense of recording oral evidence is not a matter of course, though it may be a normal rule. I am, therefore, not inclined to interfere with the order challenged in this revision.