Haji Kunni Khan vs Kapil Agrawal And Another
2018 Latest Caselaw 2835 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 30
 

 
Case :- S.C.C. REVISION No. - 85 of 2018
 

 
Revisionist :- Haji Kunni Khan
 
Opposite Party :- Kapil Agrawal And Another
 
Counsel for Revisionist :- Alok Tiwari
 
Counsel for Opposite Party :- Arpit Agarwal
 

 
Hon'ble Vivek Kumar Birla, J.

Heard learned counsel for the revisionist and Sri Arpit Agarwal, learned counsel for the opposite party no. 1 and perused the record.

Present revision has been filed challenging the impugned judgement and decree dated 23.5.2018 passed by the Special Judge (E.C.Act)/Additional Sessions Judge, Pilibhit in Misc. Case No. 03 of 2016 (Haji Kunni Khan vs. Kapil Agrawal and anohter) arising out of SCC Execution Case No. 5 of 2015 (Kapil Agrawal vs. Arvind Singh).

By the impugned order, the application filed by the petitioner herein under Order 21 Rule 97 CPC has been rejected by the Court below on the ground that till date no amin parwana has been issued and as such, there is no report regarding obstruction in delivery of possession and as such, the application filed by the present revisionist is not maintainable. It has been noticed that till date no amin report has come as yet.

Submission of the learned counsel for the revisionist is that a third party, who is in possession, is also entitled to move such application even before his dispossession and the law is clear on this issue and therefore, rejection of application filed by the revisionist under Order 21 Rule 97 CPC is illegal. He further submits that he is in possession as both the parties in the suit are in fact his tenants. He further sought to argue the case on merits by submitting that the decree passed by the SCC Court is based on void sale deed and decree was obtained by playing fraud. He has placed reliance on the judgements rendered in the cases of S.P. Changalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs., 1994 AIR (SC) 853, Babulal vs. Rajkumar and others, 1996 AIR (SC) 2050, Brahmdev Chaudhary vs. Rishkesh Prasad Jaiswal, 1997 AIR (SC) 856, Shrinath vs. Rajesh, 1998 AIR (SC) 1827, Ram Kumar Tiwari and others vs. Deena Nath and others, 2002 AIR Chhattisgarh 1, Ravindra Pal Kaur vs. Pandit Kedar Nath Prabhakar and others, 2014 (125) RD 722, Sameer Singh vs. Abdul Rab, 2015 AIR (SC) 591, Ram Kumar Tiwari and others vs. Deena Nath and others, 2002 AIR Chhattisgarh 1, Wahid vs. Mohd. Anwar, 2009 (3) ADJ 606.

On the other hand, learned counsel appearing for the opposite party no. 1 has supported the impugned order and has placed reliance on the judgement of Hon'ble Apex Court rendered in the case of Silverling Forum Pvt. Ltd. vs. Rajiv Trust and others, (1998) 3 SCC 723 and judgement dated 2.4.2015 passed by this Court in Matters Under Article 227 No. 1192 of 2015 (Smt. Pooja Garg vs. Satya Prakash Goyal and 3 others).

I have considered the rival submissions and perused the record.

On perusal of the application filed under Order 21 Rule 97 CPC the allegations appear to be that both the parties to the litigation who claimed themselves to be tenant and landlord, have been alleged to be the tenants of the applicant. However, it is not in dispute that the petitioner is not in possession over the property in dispute. The provisions of Order 21 Rule 97 can be invoked only by a person, even a third party, only when the applicant is in possession. Even as per allegations made in the application, it is clear that the petitioner is not in possession over the property in dispute. In paragraph 7 of the application filed by the revisionist, it has also been mentioned that when the revisionist came to know about filing of the case by Kapil Agrawal against Arvind Singh, he moved an application for impleadment, which was rejected and therefore, he did not get any opportunity of hearing and as such, it is clear that the petitioner was aware of the proceedings but he never come forward to challenge such rejection of his impleadment application or to initiate any separate proceedings.

I have gone through the judgements relied on by the learned counsel for the revisionist as well as learned counsel for the opposite parties.

There is no quarrel about the law that the provisions of Order 21 Rule CPC can be invoked by a person even a third party, however, the law is clear that it can be invoked only when the applicant is in possession. This right, therefore, is available to someone who is in possession and he can resist the possession to the decree holder. In the present case, even as per his own allegation the petitioner is not in possession over the property in dispute. He is claiming himself to be the landlord of the property in question and claims that both the parties in litigation are his tenants and even his impleadment application claiming himself asthe landlord in the suit proceedings has admittedly been rejected, which has become final.

In such view of the matter, the judgements relied on by the learned counsel for the parties, which refers to the right of a third party, who is in possession, are of no help to the petitioner. On the contrary, I find that the judgement of Hon'ble Single Judge dated 2.4.2015 rendered in the case of Smt. Pooja Garg (supra) covers the controversy involved in the present case, paragraphs 2, 3, 4, 5 and 6 whereof are quoted as under:

"2. The petitioner in the present petition alleges that she is landlord of the property in question, and has filed an application, under Order 21 Rules 97, 99 & 103 read with Section 151 CPC, with the prayer that she be permitted to resist the decree, and an order be passed for delivering the possession of the property to the applicant. From the perusal of prayer of the application itself, it is apparent that the petitioner is not in possession, and that she is seeking possession over the property in question.

3. Order 21 Rule 97 CPC confers right of resistance or obstruction to possession, at the instance of a third party, where possession is to be granted to the decree holder. This right, therefore, is available to someone, who is in possession, and resists the delivery of possession to the decree holder. Admittedly the petitioner applicant is not in possession, and therefore, the provisions of Order 21 Rule 97 CPC would not be attracted. So far as Order 21 Rule 99 CPC is concerned, such a provision is available, if any person other than the judgment debtor is dispossessed from immovable property by the holder of a decree for possession of such property pursuant to decree, then such person can make an application to the court concerned complaining of such dispossession. Admittedly as the petitioner is not in possession, the question of her dispossession, pursuant to the decree, does not arise, and therefore, no grievance in respect of dispossession, pursuant to a decree would be available to the petitioner, either.

4. Learned counsel for the petitioner has placed reliance upon a judgment of the Apex Court in Tanzeem-E-Sufia Vs. Bibi Haliman and others [(2002) 7 SCC 50]. Para 14 of the said judgment is reproduced:-

"14. We find that in the case in hand the appellant is claiming its independent right over the property and asserts its possession thereof. Order 21 Rule 101 clearly provides that all questions relating to right, title or interest in property relevant to the adjudication of the application, shall be dealt with the application and not by a separate suit. The High Court therefore, erred in refusing to hear the appellant, on the ground that it has already filed a suit for declaration of its title and for declaration that the decree passed in title suit No. 8 of 1983 is not binding on it. The provision contained under Order 21 Rule 101 CPC seems to have escaped notice of the High Court while passing the order. We would also like to observe that the reasoning given by the execution Court while rejecting the application of the appellant as indicated in the order of the High Court, that the remedy of the appellant would only lie by moving an application under Order 21 Rule 99 CPC is also erroneous as in case of Brahamdeo Chaudhary' (1998) 4 SCC 543, it has been held that it should not be insisted that possession be delivered first and the objector may later on move the Court under Order 21 Rule 99 CPC."

5. Learned counsel for the petitioner, on the strength of aforesaid decision, contends that in a case, where provisions of Order 21 Rule 97 or 99 have been invoked, the procedure contemplated under Order 21 Rule 101 CPC will be attracted, which has not been complied with in this case. This argument is wholly misconceived. Since the claim of petitioner is not covered either under Order 21 Rule 97 CPC nor under Order 21 Rule 99 CPC, there was no occasion for the provisions of Order 21 Rule 101 CPC to be invoked.

6. Since the case of the petitioner is not covered either under the scope of exercise of jurisdiction under Order 21 Rule 97 nor under Order 21 Rule 99, therefore, the grievance, which is being raised by the petitioner by filing the present petition, is not worthy of any consideration. Admittedly, a decree passed by the competent court is being put to execution, which has not been stayed, and the claim of the petitioner is not covered by virtue of provisions under Order 21 Rules 97 and 99 CPC, and therefore, the petitioner has no grievance, which may give any occasion for this Court to interfere in the matter under Article 227 of the Constitution of India."

It is needless to point out that in the above noted judgement the case of Tanzeem-E-Sufia (supra) wherein case of Brahamdeo Chaudhary (supra) was relied on, was also considered by this Court.

Clearly as per the law placed before this Court the object of Order 21 Rule 97 CPC is to protect the possession even of a third party. Admittedly, the revisionist is claiming himself to be the landlord of the property in question and claims that both the parties in litigation are his tenants and even his impleadment application claiming himself as the landlord in the suit proceedings has admittedly been rejected, which has become final.

In such view of the matter, I do not find any legal infirmity or jurisdictional error in the impugned order.

Present revision is devoid of merit and accordingly dismissed.

However, it is made clear that rejection of the application may not be treated as any kind of legal impediment in other proceedings, if initiated by the revisionist.

Order Date :-26.9.2018

Abhishek