Ratanlal Mandalaus vs Ram Avtar
1996 Latest Caselaw 136 Del

JUDGMENT

S.K. Mahajan, J.

(1) The plaintiff had filed this suit for partition of the property in Schedule A to the plaint and also for rendition of accounts. One of the properties which was sought to be partitioned was a plot of land measuring 7,389 sq. yards situated at 483/49A in Revenue Estate of Jhilmil, Tahirpur M.S. 6, Delhi Shahadara Border, close to Delhi Ghaziabad Trunk Road having about 20 sheds therein. During the pendency of the suit, a compromise was arrived at between the parties and joint application under Order 23 Rule 3 Civil Procedure Code was filed. On February 14, 1984 this Court passed a final decree in terms of the compromise exhibit C-1. Under this decree, the aforesaid property in Jhilmil, Tahirpur had come to the share of the plaintiff and defendant No.6. By order dated January 29, 1993 this Court had appointed the plaintiff as receiver of the property in Jhilmil, Tahirpur. On an application having been made by the receiver in Court being IA.No-2987/93 seeking police help to execute the order of this Court, D.C.P., A.C.P. and S.H.O. of the concerned area were directed to help the receiver in removing the trespassers from the said property.

(2) The present application has now been filed by certain persons claiming themselves to be tenants in different portions of the said property, under Order1 Rule 10(2) Cpc for being imp leaded as parties in the suit, on the allegations that they were in lawful possession of their respective portions and were carrying on their business and as such they could not be removed by the receiver in execution of the orders passed by this Court and the decree & order are stated to have been obtained by misrepresentation of facts. Learned counsel for the applicants has referred to the judgment reported as Hira Lal Patni Vs. Loonkaran Sethiya, to contend that the receiver cannot, under orders of this Court, remove a person who is not a party to the suit. He also relied upon the judgment reported as Krishna Ram Mahale Vs. Mrs.Shobha Venkat Rao, to contend that possession cannot be recovered from him even on the assumption that he has no right to remain on the property and he cannot be dispossessed except by recourse to law. In my opinion, none of these judgments are of any assistance to the applicants. Applicants must first establish a legal right to be in occupation of the property and secondly he must show that the application under Order 1 Rule 10 Civil Procedure Code is maintainable.

(3) Under Order 1 Rule 10 (2) of the Code of Civil Procedure, the Court has the - power to add parties to the suit at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just. As there are no proceedings in the suit pending before the Court, in my opinion, no application under Order I Rule 10 (2) Civil Procedure Code will be maintainable. Proceedings in the suit come to an end on the passing of the decree. When all disputes in the case have been adjudicated by the Court, in my opinion, this provision cannot be made use of by any person. Proceedings must be alive before the Court when an application for impleading a party can be considered by the Court. In my opinion, therefore, the application is not maintainable.

(4) At the time of the passing of the Final decree, a valuation certificate was given by the architect. As on the date of making the valuation, it was reported by the architect that the sheds on the said properties were lying vacant. It clearly means that as on the date of the valuation, the claimants were not in possession of the property. Moreover, prior to the passing of the order dated 15th March, 1993, this Court had passed orders on December 17, 1984 and December 18, 1984 directing the vacant possession of this property to be handed over to the plaintiff and defendant No.6 in the ratio of one- third and two-third respectively and directing defendants 1 to 5 to remove themselves from the joint possession thereof. The said defendants undertook that Mr.Mantu Ram or any person in occupation of the property shall vacate the same within a week and the possession would be handed over to the plaintiff and defendant No.6. By the same order dated December 18, 1984, a local commissioner was also appointed for taking delivery from defendants 1 to 5 and handing over to the plaintiff and defendant No.6. The local commissioner visited the spot and made his report. In terms of the report of the local commissioner, the property consisted of number of sheds and open court yard and there were about 15 trucks standing therein loading and unloading the goods. Shed No.9, measuring about 143 ft. X 55 ft. and shed No.l2, measuring about 38 ft. X 48 ft. were lying vacant. Possession of these sheds was handed over to the plaintiff and defendant No.6. A person by the name of Mantu Ram was present on the said land and he informed the local commissioner that he was kept by one Mr.Hazari Lal in the - property in or about 1962-63 and he was charging commission from the said Mr.Hazari Lal. After 1976 he had not received any money on behalf of said Hazari Lal and since 1982 he was providing space for loading and unloading goods by the , various transporters and was charging commission at the rate of Rs.5 per truck. 8 persons, whose names have been given in the report of the local commissioner, were present there and they informed that they have been inducted by Mr.Mantu Ram and were his tenants but no one was able to produce any document in support of their contentions that they were the tenants on the said land. Applicants 1 to 4 and 8 arc some of those persons who were present there at the time of the visit of the local commissioner. No steps had been taken by any of the said persons to initiate proceedings 509 against the plaintiff or defendant No.6 to the effect that they were not liable to over possession on account of their being tenants in the property. The other applicants were, in any case, not present at the time of visit of the local commissioner 16th April, 1985. It clearly establishes that these persons must be claiming their right in the property from the date after the visit of local commissioner on 16th April, 1985. Except four receipts, which are alleged to be the rent receipts, alleged to have been given by Mantu Ram to one of the applicant Indira Transporter and one receipt dated 1st November, 1978 alleged to have been given by Mantu Ram to Mr.Krishan Lal, no other document was placed on record by any other applicant to show that they were in possession of the land in their own right. One electricity bill in the name of M/s.Shanti Roadways bear date 5.3.1987 has also been placed on record. The receipts in favour of Indira Transporter bear date 1.4.1983, 1.7.1986,2.4.1987 and 2.9.1992. A telephone number printed at the top of the said receipt is 2284458 which is alleged to be the number of the Indira Transporter. It will be interesting to note that the said telephone number is from an exchange which was opened only in the year 1988 which clearly shows that the receipts dated 1.4.1983, 1.7.986 and 2.4.1987 are forged receipts and have been fabricated only with a view to create evidence in favour of the applicants. I cannot also place reliance upon the receipt issued in favour of one Mr.Krishan Lal and the electricity bill in favour of M/s.Shanti Roadways as, in my opinion, firstly Mantu Ram did not have any right to induct any person and secondly, these persons have not been able to establish their lawful possession. Even otherwise the application is barred by delay and laches. In any case, these are not the proceedings in which the applicants can agitate their grievance in an application under Order I Rule 10 Cpc which, I have already held, is not maintainable.

(5) For the aforesaid reasons the application being IA.3492/93 is dismissed.

(6) In view of the dismissal of the main application, the other application being IA.3493.93 does not survive and the same is also dismissed.