JASPAL SINGH Vs. NARINDER SINGH AND ANOTHER

JUDGEMENT

(1.) This revision petition is directed against the order dated 27.9.2010 passed by the learned Rent Controller, Ludhiana by which objection filed by the petitioner under Order 21 Rule 97 of the Code of Civil Procedure, 1908 [for short ''CPC''] was dismissed and also against the order of the learned Appellate Authority dated 10.01.2011 by which appeal filed against the order dated 27.09.2010 was dismissed.

(2.) The brief facts of the case are that respondent No. 1 filed an eviction petition against respondent No.2 under the provisions of the East Punjab Urban Rent Restriction Act, 1949 [for short ''the Act''] which was allowed on 21.02.1998. On 09.04.1999, the petitioner filed Civil Suit No. 269 titled as 'Jaspal Singh v. Narinder Singh' seeking declaration and permanent injunction on the ground that in fact he has been inducted as tenant in the demised premises on 03.09.1997 by one Smt. Inderjit Kaur and since then he is continuing in possession as a tenant after the demised premises was vacated by respondent No.2 on 02.09.1997. Admittedly, in the Civil Suit the petitioner was granted injunction and his dispossession was stayed. The Civil Suit was contested by respondent No.1. Issues were framed on 31.01.2003 but the petitioner, after availing 7 opportunities including the opportunity allowed on payment of costs, failed to examine any witness and also did not enter the witness box in support of his case. Consequently, the learned trial Court closed the evidence of the plaintiff/petitioner under Order 17 Rule 3 CPC. Ultimately, vide its judgment and decree dated 23.12.2004, the Civil Suit was dismissed by the learned Civil Court. Aggrieved against that judgment and decree of the learned Trial Court, the petitioner filed an appeal under Section 96 of CPC which was barred by limitation. Therefore, Misc. Application No.51 dated 19.04.2005 filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay was dismissed by the learned First Appellate Court vide its order dated 13.08.2008 and ultimately the appeal was also dismissed. According to the petitioner, he filed an application under Order 1 Rule 10 of CPC in the execution application which was not pursued by him and was got withdrawn. Thereafter, on 14.05.2004 the objection under Order 21 Rule 97 of CPC was field in the execution application during the pendency of the Civil Suit, meaning thereby, he has chosen two remedies at the same time without disclosing this fact to the Civil Court and without withdrawing the Civil Suit on the ground that the Civil Court has no jurisdiction to entertain it. During this interregnum, he enjoyed the injunction order granted by the learned Trial Court and the execution proceedings remained standstill. Since the petitioner was not sanguine of the success of his objection filed under Order 21 Rule 97 of CPC even after the dismissal of the Civil Suit, he preferred to file an appeal against the order of the learned Civil Court but as the appeal was barred by limitation, therefore, the same was dismissed. The learned Executing Court has taken all these facts into consideration while considering the objection and has dismissed the same and the said order was upheld by the learned Appellate Authority. Aggrieved against those orders, the present revision petition has been field.

(3.) Learned counsel for the petitioner has submitted that the Civil Court has no jurisdiction to decide the question of possession of the petitioner which could have only be decided under Rule 21 Order 97 of CPC. In this regard he has relied upon two decisions of the Supreme Court rendered in the cases Noorduddin v. Dr. K.L. Anand, 1995 2 RRR 556;and P. Janardhana Rao v. Kantian and others,2004 2 ACJ 0626.