SOM PARKASH Vs. SANTOSH RANI

JUDGEMENT

(1.) SOM Parkash son of Lal Chand, resident of Sirsa, Tehsil and District Sirsa, has filed the present Civil Revision and it has been directed against the order dated 8-6-1996 passed by the Court of Additional District Judge, Sirsa, who affirmed the order dated 9-5-1996 passed by the Civil Judge (Senior Division), Sirsa, who dismissed the objections of Som Parkash to the ejectment order dated 22-7-1994 and allowed the application of the decree-holder and directions were given to the objector Som Parkash to hand over the vacant possession of the shop in dispute to the decree-holder Smt. Santosh Rani within a period of 10 days at his own costs and responsibility failing which the law would take its own course.

(2.) BEFORE I deal with the submissions raised by the learned counsel for the parties, a few facts are necessary in order to appreciate the controversy between the parties. Decree-holder Smt. Santosh Rani filed an ejectment petition against the tenant Sunil Kumar and her petition was ultimately decided on 22-7-1994 after a lapse of about four years and an eviction order was passed against Sunil Kumar, who preferred a rent appeal against the ejectment order, which was also dismissed on 17-7-1995. After the passing of the eviction order dated 22-7-1994 Sunil Kumar -- the original tenant -- parted the possession of the shop to Som Parkash objector. The statement of Sunil Kumar, judgment-debtor, the original tenant, was recorded in the appeal on 17th July, 1995 and Sunil Kumar stated before the Appellate Authority that Som Parkash son of Lal Chand resident of Sirsa had taken possession of the shop in question from him illegally and forcibly after filing of the rent appeal and now he was in possession of the disputed shop and for that reason he did not want to prosecute his appeal against the judgment dated 22-7-1994 and, therefore, his appeal be dismissed as withdrawn. On this statement of Sunil Kumar judgment-debtor the appeal was dismissed by the Appellate Authority on 17-7-1995. It is the case of the decree-holder that in this manner Som Parkash came into possession of the shop in dispute in an illegal and forcible manner after the filing of the ejectment order and after the filing of the rent appeal, which was filed on 12/16-8-1994. Som Parkash filed objections that he was occupying the shop in his individual right; he being the tenant of the original owner of the shop and, therefore, his possession should be protected. The case of Som Parkash is that the shop in question was owned by Charath Singh son of Kishan Singh, who had let out the same to him on monthly rental of Rs. 400/- vide rent note dated 1-11-1980 and, thereafter the rent was increased to Rs. 750/- per month with effect from 1-2-1984 and since then he had been in possession of the shop in dispute as a tenant and he was never ejected therefrom at any time in due course of law. In fact, the decree-holder Smt. Santosh Rani is the real sister of Sunil Kumar judgment-debtor. Both of them had colluded with each other and managed to get the eviction order dated 22-7-1994 by filing this frivolous, ejectment petition without impleading him as a party.

(3.) SOM Parkash also filed a civil suit that he be not dispossessed from the shop in question illegally and forcibly; this was a suit for declaration with consequential relief of permanent injunction, which was filed against the decree-holder Smt. Santosh Rani. He also filed an application under Order 39, Rules 1 and 2, C. P. C. , praying that during the pendency of the suit he be not evicted from the demised premises. The objector -- Som Parkash earlier obtained stay order from the Civil Court on 1-4-1995 in the suit filed by him. The decree-holder -- Smt. Santosh Rani filed an application for the vacation of the stay but the said order dated 1-4-1995 was confirmed on 20-9-1995, Santosh Rani filed an appeal under Order 43, C. P. C. against the order dated 20-9-1995 on 27-9-1995 and this appeal was disposed of on 20-11-1995 by the Court of Additional District Judge, Sirsa, who accepted the appeal of the decree-holder and the order dated 20-9-1995 was set aside. In this manner the application of Som Parkash under Order 39, Rules 1 and 2, C. P. C. was dismissed. It was held by the learned Additional District Judge, Sirsa, that possession of Som Parkash was not as a tenant since 1st November, 1980 as claimed by him. On the other hand Som Parkash entered into the shop in question after the passing of the ejectment order dated 22-7-1994 and so he is liable to be ejected in execution of the ejectment order, which was passed against Sunil Kumar, as the possession of Som Parkash was through Sunil Kumar. In other words, it was held by the appellate Court that Som Parkash must go from the demised premises with the original tenant-judgment-debtor. Against the order dated 20-11-1995 passed by the Additional District Judge, Sirsa, Som Parkash Objector filed Civil Revision No. 4335-M of 1995 in the High Court, which affirmed the order dated 20-11-1995 passed by the first appellate Court by holding that there was no ground for interference with the said order. In this manner the order dated 20-11-1995 got the finality. Vide para No. 19 of the judgment dated 2-11-1995 it was indicated that defendant No. 2 Sunil Kumar was not pulling on well with his sister Santosh Rani due to litigation between them and for this reason he intentionally gave the possession of the disputed shop to plaintiff Som Parkash to harm the interests of decree-holder Smt. Santosh Rani. It was also held that there was no collusion between Smt. Santosh Rani and Sunil Kumar, rather. Sunil Kumar and Som Parkash had joined hands in order to cause harm to Smt. Santosh Rani. It may also be stated that the Civil Suit filed by the objector Som Parkash for declaration and injunction is still pending in the Civil Court. With regard to the matter of interim relief, Som Parkash had already lost upto the High Court. While dismissing the objections of Som Parkash, it was observed by the executing Court that it had reached to a firm conclusion that the objector was also liable to be evicted in pursuance of the ejectment order dated 22-7-1994 and his possession was not liable to be protected even if he was not a party to the eviction proceedings. Against this order dated 9-5-1995 objector Som Parkash filed an appeal in the Court of Additional District Judge, Sirsa, who vide the impugned order dated 8-6-1996 came to the considered opinion that consideration of objections by the executing Court did not necessarily include nor did it cast a mandate on the executing Court to frame the issues and record the evidence, if those objections were prima facie without merit. It also held that if the executing Court finds that the objections of the judgment-debtor are frivolous, then framing of issues and recording of evidence would be of no use. Also it was observed that the objections of Som Parkash were more in the nature of prolonging the litigation so that the decree-holder may not be able to reap the fruits of the decree. Such a course in favour of the objector would mean to give him an illegal profit. From the impugned order dated 8-61996 it is also clear that the Court of Additional District Judge took into consideration that the documentary proposed evidence, which was sought to be produced by the objector Som Parkash, and after perusing the same the lower appellate Court came to the conclusion that the objector had no case to successfully resist the ejectment order and ultimately finding no merit in the appeal, it was dismissed.