ASLAM KHAN Vs. SULTAN AJIM

JUDGEMENT

(1.) PETITIONER in this writ petition is assailing the interlocutory order passed by the Trial Court, affirmed by the Appellate Court refusing to grant injunction against execution of the decree passed in Civil Suit No. 346-A/99 on 3-5-2000 by 3rd Civil Judge, Class-II, Bhopal.

(2.) DR. Sultan Ajim, respondent No. 1 Filed a suit against respondent no. 2 - Rafat Saeed, which was registered as Civil Suit No. 346-A/99 for ejectment from the tenanted premises. It was alleged that the defendant Rafat saeed was occupying shop in question at the rate of Rs. 945/- per month. Rent had not been paid. A notice was served on 7-4-99, in spite of that rent was not paid. Rent was due from 1-10-1998 to 30-4-99. Total rent due was Rs. 6615/-and without permission of the plaintiff the defendant had kept sub-tenant namely Aslam Khan who was running STD PCO. The defendant No. 2 - Rafat saeed remained ex parte. The Trial Court passed judgment and decree (P-2)on 3-5-2002 directing ejectment. It is conceded at bar that the respondent no. 2 has filed proceedings against ex parte decree which travelled upto this court in revision and revision was dismissed by this Court. Thereafter present suit has been filed by tenant as well as sub-tenant - Rafat Saeed and Aslam khan to set aside the judgment and decree passed in Civil Suit No. 346-A/99. It has been contended by the plaintiff Aslam Khan that it was with the consent of the landlord that original tenant Rafat Saeed respondent No. 2 had inducted aslara Khan as tenant and Rs. 50,000/- was paid as per P-l, during the pendency of the said suit before the 6th Civil Judge, Class-II, Bhopal. Plaintiff prayed for interim prohibitory injunction from executing the decree and taking possession of the disputed shop. Trial Court passed an order (P-6) on 26-12-2002, and had dismissed the application filed by the petitioner and the respondent No. 2. It has been prima facie found that it can not be said that the decree was obtained fraudulently. Relying on the decision of this Court in Kishan chand Vs. Smt. Manisha Lalwani, 1999 (II) MPWN 5, it has been held that sub-tenant is not necessary party. No prima facie case has been found in favour of petitioner. Rent was due from 1-10-1998. Decree has been properly passed. An appeal was preferred before the learned 4th Additional District Judge, bhopal, same has been dismissed as per order (P-7), dated 11-3-2003. The learned Appellate Court has considered the matter in extensive details and has held that an order passed by the Trial Court is proper and on elaborate discussion of the matter has dismissed the appeal.

(3.) LEARNED Counsel for the petitioner Shri P. Rusia has submitted that as the petitioner was not arrayed as the parties to the previous suit, it can not be said that the decree is binding on him. There is serious and triable issue on the strength of document (P-l) raised by the petitioner. Rs. 50,000/- were paid under document (P-l ). Decree has been obtained fraudulently, as such execution of the same ought to have been restrained by interim injunction during the pendency of the suit.