THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.120 of 2022
ORDER:-
The respondent herein had filed O.S.No.1198 of 2006
before the II Additional Senior Civil Judge, Vijayawada against the petitioner herein, who was the tenant of the respondent, for eviction of the petitioner from the suit schedule property. This suit was decreed on 18.01.2010 directing the petitioner to vacate the schedule property within two months. A.S.No.61 of 2010 filed by the petitioner against this judgment and decree was dismissed by the Additional District Judge, Vijayawada. S.A.No.833 of 2016 filed against this order was dismissed on 18.11.2016.
2. The respondent had thereupon, filed E.P.No.9 of 2017, for executing the judgment and decree obtained by him. While these proceedings were pending, the matter was settled before the Lok-Adalat and the same was recorded in an Award, dated 16.03.2017. As per the Award, the petitioner was to vacate the premises by 14.01.2018. As she failed to honour the said Award, the respondent herein again filed E.P.No.4 of 2018. The petitioner herein contested the said execution petition by taking the ground that she was paying higher rates of rent than what was mentioned in the Award and since the respondent had accepted the said rent, she remains the tenant of the respondent and cannot be evicted from the property. She also took the plea that there was an 2 agreement/undertaking given by the respondent on 13.03.2017 to sell the schedule property to her for a sum of Rs.1,71,00,000/- and as such, she cannot be evicted from the property.
3. The petitioner, ostensibly for the purpose of demonstrating her case set out in the counter, had filed E.A.No.196 of 2019, for appointment of an advocate commissioner, to record her evidence and cross examination. This was allowed on 05.03.2020. However, the advocate commissioner appointed under Order VI of C.P.C had returned the warrant on 24.11.2021 as she had met with an accident and was unable to execute the said warrant. Thereupon, the petitioner herein moved E.A.No.140 of 2021 for appointment of another advocate commissioner. However, this application was rejected by the Executing Court on 06.01.2022. Aggrieved by the said order, the petitioner has approached this Court, by way of the present Civil Revision Petition.
4. The contention of the petitioner was that it was essential for her evidence to be recorded in the Execution Petition that, the respondent had given an undertaking to sell the property; Acceptance of the rent by the respondent, subsequent to the Award, shows that there is a relationship of tenant and landlord between them; the terms of the Award did not record the terms of the compromise properly and as such, an Execution Petition on the basis of said Award is not permissible.
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5. The Executing Court took up each of these issues and found that there was no necessity to adduce any evidence for the Executing Court to take a decision on these issues. The Executing Court also found that the petitioner had suppressed certain vital information including the filing of W.P.No.876 of 2018 before the Hon'ble High Court of A.P and the dismissal of the said writ petition. After having considered all these issues, the Executing Court found that there was no necessity for recording any evidence of the petitioner herein for arriving at a determination of the issues raised by the petitioner herein and dismissed the application.
6. The Executing Court had relied upon the judgment of Hon'ble Supreme Court in Rahul S Shah vs. Jinendra Kumar Gandhi & Others (Civil Appeal Nos.1659-1660 of 2021 dated 22.02.2021), wherein the Hon'ble Supreme Court had directed that "evidence should be taken in execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method".
7. The Executing Court, applying the above principle, considered the issues raised by the petitioner herein and held that these issues do not require any evidence to be recorded.
8. The first contention raised by the petitioner was that acceptance of rent would entail the petitioner to continue in possession of the schedule property. The Executing Court 4 considered the contents of the Award of the Lok-Adalat dated 16.03.2017 and held that the said award itself provided for payment of rent by the petitioner for a certain period with a right to the respondent to initiate eviction proceedings against the petitioner if she does not vacate the property by 14.01.2018. The Award also provided for payment of enhanced rent after 14.01.2018, pending eviction of the petitioner by the respondent. In view of these stipulations in the Award, the Executing Court took the view that nothing further needs to be adduced from the petitioner on this issue.
9. The 2nd issue raised by the petitioner was that she had been paying all the rents regularly and there were no arrears. The Executing Court took into account all the receipts produced by the petitioner to conclude that the petitioner had to still pay Rs.28,80,000/- to the respondent and as such, further evidence would not be necessary on this count. On the last question of whether the terms of the Award recorded the terms of the compromise, the Executing Court took note of the fact that the petitioner had initially filed W.P.No.876 of 2018 challenging the Award of the Lok-Adalat on similar grounds and that the High Court had rejected all these grounds and dismissed the writ petition. The Court also noticed the fact that the petitioner had suppressed the fact of the filing of this writ petition.
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10. In view of the detailed findings given by the Executing Court and in view of the reasons given by the Executing Court, as mentioned above, I do not find any irregular exercise of jurisdiction by the Executing Court calling for the interference of this Court.
11. In the circumstances, the Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, pending if any, in this Civil Revision Petition shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 01.02.2022 RJS 6 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO CIVIL REVISION PETITION No.120 of 2022 Date : 01.02.2022 RJS 7