HARPAL SINGH Vs. ANEK SINGH

JUDGEMENT

(1.) THIS is a case where the contemner has not only wilfully violated the order passed by this Court but has been adamant through out not to comply with the same.

(2.) SHRI Darbara Singh, father of the petitioner, was a tenant in shop No. 44 situated at Dera Baba Nanak Road, Batala under respondent No. 1 (hereinafter to be referred to as 1 the landlord). After the death of Shri Darbara Singh the petitioner (who will be referred to hereinafter as the tenant) along with his two brothers and mother inherited the tenancy rights and have been in possession of the shop as tenants. The landlord filed an ejectment petition against Shri Darbara Singh and the proceedings continued even' after his death against the tenant and others heirs of the deceased. The ejectment application was dismissed by the Rent Controller on October 12, 1989. The appeal filed by the landlord was accepted on October 1, 1990 and the appellate authority ordered that the landlord be put in possession of the demised shop within two months from the date of the order i. e. on or before December 1, 1990. In other words, the tenant was allowed two months time to. vacate the shop in dispute. Before the two months' period expired, the landlord filed on 5.11.1990 an application for execution of the order of ejectment passed by the appellate authority. Apprehending that the tenant would file a revision petition in this Court against the order of the appellate authority, the landlord lodged a caveat in this Court under section 14-A of the Code of Civil Procedure, 1908 (for short, the Code) through' Ms Jaishree Thakur. Advocate and Mr. H.L. Sarin, Sr. Advocate. The tenant filed Civil Revision No. 304 of 1990 in this Court impugning the order of the appellate authority. Since the landlord had already lodged a caveat, counsel for the tenant served a copy of the revision petition on the counsel, for the landlord and the revision petition came up for motion hearing before A.L. Bahri, J. on November 29, 1990. Notice of motion was issued which was accepted by Ms. Jaishree Thakur, Advocate, on behalf of the landlord and dispossession of the tenant was stayed. This order was passed in the presence of the counsel for the landlord. It is not disputed that the counsel for the tenant applied for a certified copy of the order passed on November 29, 1990 and obtained the same on that very day as per the procedure of this Court. Shri R.N. Moudgil, Advocate, who appears for the tenant petitioner in this petition was his counsel in the revision petition as well and he states that he wrote a letter to his client and posted the same on November 29, 1990 informing him about the stay order granted by this Court. It is also the case of the tenant which is supported by his counsel in this Court that a photocopy of the certified copy obtained by the counsel from the registry of this Court was also sent on 30.11 1990 to the tenant through one Shri R.S. Walia, Advocate, Batala, who had come to Chandigarh to brief Shri R.N. Moudgil, in some other case and this copy is said to have been delivered to the tenant on 3.12.1990 through his brother Harvinder Singh who is also a tenant in the shop being one of the heirs of the deceased Darbara Singh. Shri Moudgil is also said to have sent another handwritten note in Punjabi to the tenant in which the order passed by this Court had been reproduced and this note was sent through one Shri Joginder Singh who had a case fixed in this Court on November 29, 1990 and was being represented by Shri Moudgil and who was leaving for Batala on that day. Mr. H. L. Sarin, Sr. Advocate, appearing on behalf of the landlord informed this Court that he too had posted a letter to his client on the same day i.e. 29.11.1990 informing him about the stay order passed by this Court through the landlord now alleges that this letter never reached him.

(3.) ON December 5 1990, the executing Court passed an order direct the bailiff to return the warrant unexecuted because the stay order issued by this Court had by then reached the trial Court. On this, respondent No. 2 informed the executing Court that the warrant had already been executed and that the possession of the demised premises had been delivered to the landlord on the previous day i.e. December 4, 1990. The tenant then filed on 7.12.1990 an application for restitution under section 144 of the Code before the Rent Controller which has been strenuously contested by the landlord. The tenant also filed the present petition on December 18, 1990. In response to the notices issued by this Court, the respondents filed their affidavits in reply. Both the respondents denied knowledge of the stay order passed by this Court though it has been admitted by them that possession has been taken from the tenant. After hearing counsel for the parties, this Court by an order dated March 25, 1991 directed the executing Court to dispose of the application for restitution expeditiously on day to day, basis and the parties were directed to complete their evidence within 15 days from the date of the order. The executing Court was directed to send a report to this Court. In pursuance of the directions of this Court, the executing Court has disposed of the application for restitution and by an order dated June 14, 1991 allowed the same and directed the landlord to deliver the possession back to the tenant holding that the landlord had knowledge of the order passed by this Court on November 29, 1990 and it was by suppressing this fact from the executing Court that he obtained the warrant of possession on 12.-??-1990. While holding that the tenant was entitled to the restoration of the possession and deciding issue No. 1 in his favour, the executing Court recorded the following finding :-