PRADEEP KUMAR Vs. ADDITIONAL DISTRICT MAGISTRATE

JUDGEMENT

(1.) This is a Civil Writ Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing the impugned order dtd. 26/3/2019 (Annexure P-6) passed by respondent No. 1 whereby the application filed by respondent No. 2 was allowed and the petitioner was directed to vacate the house in question.

(2.) Brief facts of the present case are that respondent No. 2, who is a senior citizen and is stated to be handicapped, had filed an application dtd. 17/4/2018 under Sec. 22(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with its Rules for the protection of her life and property with respect to House measuring 51 square yards situated in Bank Street, Nabha, District Patiala, Police Station Kotwali Nabha, on the plea that respondent No. 2 is the owner in possession of the house in question and a suit for declaration has been decreed vide judgment dtd. 8/9/2016 (Annexure P-1) declaring her to be the owner of the said property. It was averred that the present petitioner, who is the brother of respondent No. 2, had threatened the respondent No. 2 that he would kill her with a Kirpan and knife and that the present petitioner was already residing in another house belonging to the father of respondent No. 2 which measured 60 square yards and was near to the house in question. It was further averred that respondent No. 2 had several times requested the petitioner to vacate the premises but he had refused to do so. A reply (Annexure P-5) to the said application was filed, in which it was stated by the present petitioner that he had filed a Regular Second Appeal against the judgment of the Courts below vide which the suit filed by respondent No. 2 was decreed and the same was pending and accordingly, the present application was not maintainable. The Additional District Magistrate, Patiala vide order dtd. 26/3/2019 (Annexure P-6) allowed the said application of respondent No. 2 and directed the petitioner to deliver the possession of the house in question. In the said order, it was observed that respondent No. 2 was the owner of the house in dispute and the said fact has been affirmed by the Civil Court, and that the petitioner had not produced any stay order, if passed in the said Regular Second Appeal so as to dispute the ownership of respondent No. 2 and after considering all the aspects, including the fact that respondent No. 2 was a senior citizen and that there were other disputes between the petitioner and respondent No. 2, the Additional District Magistrate passed the said order of eviction. It is the said order which has been challenged in the present writ petition. It will be relevant to note that RSA No. 6348-2018 has also been dismissed by a coordinate Bench of this Court vide judgment dtd. 14/5/2019 (Annexure P-3).

(3.) Learned counsel for the petitioner has submitted that since respondent No. 2 had filed a civil suit for declaration which has been decreed and has been upheld upto this Court, it was not open to the respondent No. 2 to file an application under the Senior Citizens Act and the respondent No. 2 at best should have sought execution of the judgment and decree of the Civil Court in order to take possession from the petitioner. It is further submitted that since no execution has been filed, the impugned order deserves to be set aside and the present writ petition deserves to be allowed.