DURGA SINGH Vs. PARKASH CHAND

JUDGEMENT

(1.) The defendant No.1, Durga Singh has filed the second appeal against judgment and decree, dated 1.12.1997 passed by the learned District Judge, Shimla in Civil Appeal No. 50-S/13 of 1990 setting aside the judgment and decree, dated 9.7.1990, passed by the learned Sub Judge, 1st Class, Court No. I, Shimla in Civil Suit No. 363/1 of 1987 and partly decreeing the suit to the effect that the order, dated 8.12.1986 of the learned Rent Controller, Shimla is void, as against the premises in question of the plaintiffs, defendant, Durga Singh is restrained from executing the said order against the plaintiffs. Lal Singh, being not a party to the suit, out of which the appeal has arisen, is not entitled to any relief and the ejectment order, dated 8.12.1986 can be executed against him by Durga Singh. In the second appeal, CMP No. 206 of 1998 for amendment of the written statement has been filed by Durga Singh. The plaintiffs have filed cross-objections in the second appeal. Hence, the second appeal, amendment application and cross-objections are being disposed of through this judgment. The parties in the judgment are referred to as plaintiffs and defendants.

(2.) The facts, in brief, are that Sat Pal, respondent No.2, Parkash Chand, respondent No.1 and Ishwar Dass, predecessor-in- interest of respondents No. 3 (a) and (b) had filed a suit for declaration and injunction against appellant, Durga Singh and respondent No.5, Sukh Dev to the effect the plaintiffs are owners in possession of the suit premises as tenants and the ejectment order, dated 8.12.1986 passed by the learned Rent Controller, Shimla be declared void as the same has been obtained by defendant No.1, Durga Singh after concealing material facts and misleading the court and further in collusion with Sukh Dev. The plaintiffs are tenants of defendant No.1, Durga Singh in the premises known as Ram Singh House since 1969 and he be restrained from causing interference in the possession of the plaintiffs. Sukh Dev, defendant No.2 against whom, eviction order, dated 8.12.1986 has been obtained by Durga Singh has no concern with the suit premises. Sukh Dev in the eviction petition intentionally got the proceedings decided ex-parte. The plaintiffs were never informed nor made party to the eviction petition. The plaintiffs having come to know about the eviction order, they filed an application under Order 21 Rule 26 CPC and also the suit as the eviction order, dated 8.12.1986 has been procured by fraud and concealing material facts from the court. On these allegations, the suit was filed.

(3.) The defendant No.1 contested the suit by filing written statement and took preliminary objections qua maintainability, estoppel, valuation and the suit has been filed by the plaintiff in collusion with defendant No.2. The alleged tenancy of the plaintiffs was denied. It has been alleged that the premises were let out to one Vyas prior to October 1970 and, thereafter, the same were let out to Sukh Dev, defendant No.2 in October, 1970 and a rent note was duly executed. Sukh Dev remained in possession of the suit premises till 1982. Thereafter, the plaintiffs were illegally inducted as sub-tenants by Sukh Dev in the suit premises without the knowledge and consent of defendant No.1. The plaintiffs have no concern with the suit premises. It is also his case, even if the plaintiffs are admitted as sub- tenants in that case also, there was no necessity to join them as respondents in the eviction proceedings. The plaintiffs were watching the proceedings before the Rent Controller and now, they are estopped from challenging said proceedings on the ground that they had no knowledge. The plaintiffs have no locus-standi to file the suit. The defendant No.2 did not file written statement and he was proceeded ex-parte. The plaintiffs filed replication and reiterated their stand.