Delhi High Court
Smt.Shashi Devi Sharma vs Shri Amarchand Goel & Ors. on 9 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.02.2011
+ RSA No.21/2011 & CM No.2196/2011 (for stay)
SMT.SHASHI DEVI SHARMA ...........Appellant
Through: Mr.S.K.Duggal, Advocate.
Versus
SHRI AMARCHAND GOEL & ORS. ..........Respondents.
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.2195/2001 (for exemption)
Allowed subject to just exceptions.
RSA No.21/20011 & CM No.2196/2011 (for stay)
1. This appeal has impugned the judgment and decree dated
10.12.2010 which had endorsed the finding of the trial judge dated
13.3.2007 whereby the suit filed by the plaintiff seeking a
declaration to the effect that the eviction order dated 18.11.2003
passed in eviction petition No.1621/2003 has been obtained
collusively by the respondents and the same be declared null and
void had been dismissed.
2. In the written statement, it had been contended that the suit
is not maintainable as admittedly objections have been filed against
the said eviction order and which are yet pending. It was further
stated that the order in the said eviction petition calls for no
interference.
3. A preliminary issue had been framed by the trial judge which
reads as follows:
"Whether the suit is barred in view of the provisions of Order 21
Rule 97 and 101 CPC"
4. The certified copy of the objections filed by the plaintiff as
also general power of attorney executed by Bimlawati W/o Madan
Lal in favour of defendant no.1 dated 15.12.1989 qua the suit
property (the property bearing No.C-18/238 measuring 300 sq.
yards) had been placed on record of the Trial Judge. The certified
copy of the affidavit of Subhash Chand wherein he had stated that
he had sold the property measuring 70 sq. yards to Sushil Kumar
vide sale deed dated 26.11.1991 executed by the plaintiff in favour
of Raj Narayan qua 25 sq. yards of the said property; the general
power attorney in favour of Raj Narain, GPA executed by Baij Nath
dated 26.12.1989 showing his address in the suit property; the sale
deed executed by one Ram Rakha Mal in favour of Hari Kishan
having a different description of the property were the other
documents filed before the Trial Court.
5. Order XXI of the Code of Civil Procedure Rule (hereinafter
referred to as „the Code‟) deals with the execution of decrees and
orders. Rule 97 gives a right to the holder of a decree for
possession of immovable property if resisted or obstructed by any
person to make an application complaining of such resistance or
obstruction.
Rule 101 of XXI stipulates:
"All question (including question relating to right, title or interest
in the property) arising between the parties to a proceeding on an
application under rule 97 or rule 99 or their representatives, and
relevant to the adjudication of the application, shall be determined
by the court dealing with the application, and not by a separate
suit and for this purpose, the court shall, notwithstanding anything
to the contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such questions."
6. The present suit is a suit for declaration seeking a
declaration that the eviction order passed by the Additional Rent
Controller is void. Admittedly the objections filed by the plaintiff
are pending before the Additional Rent Controller; the said
objections have challenged the same eviction order; the plaintiff
cannot be allowed to re-agitate the same issue by way of the
present suit when admittedly his objections are pending before the
Additional Rent Controller. A second forum was held not available
to him and rightly so. This finding was endorsed by the first
appellate Court. The substantial questions of law have not been
formulated in the body of the appeal. They are grounds of appeal
which have been mentioned in para 8. The appeal is, in fact, liable
to be dismissed on this ground alone.
7. Arguments have been addressed on the grounds of appeal
only and even presuming that the grounds of appeal set out in the
body of the appeal are the substantial question of laws raised by
the appellant, no such substantial question of law having arisen,
the appeal as also pending application is dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY 09, 2011
nandan
