3: Saniya Khatun vs Kaberi Senapati Abraham
2021 Latest Caselaw 849 Gua

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GAHC010046302021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : CRP/22/2021

         ON THE DEATH OF MD. ZAKIR HUSSAIN
         HIS LEGAL REPRESENTATIVES

         1.1: MISS JINNAT KHATUN
          D/O LATE ZAKIR HUSSAIN
         RESIDENT OF GANESHGURI CHARIALI
          OPP. GOPAL BORO HIGH SCHOOL
          HOUSE NO. 36
          GUWAHATI 781006
          DIST KAMRUP M ASSAM

         1.2: SAHIL HUSSAIN
          S/O LATE ZAKIR HUSSAIN
         RESIDENT OF GANESHGURI CHARIALI
          OPP. GOPAL BORO HIGH SCHOOL
          HOUSE NO. 36
          GUWAHATI 781006
          DIST KAMRUP M ASSAM

         1.3: SANIYA KHATUN
          D/O LATE ZAKIR HUSSAIN
         RESIDENT OF GANESHGURI CHARIALI
          OPP. GOPAL BORO HIGH SCHOOL
          HOUSE NO. 36
          GUWAHATI 781006
          DIST KAMRUP M ASSAM
         TO BE REPRESENTED BBY HER ELDER BROTHER AND LEGAL GUARDIAN
         SAHIL HUSSAI

         VERSUS

         KABERI SENAPATI ABRAHAM
         W/O MR. V ABRAHAM,
         RESIDENT OF SENAPATI PURI, SILPUKHURI, GUWAHATI 781003, DIST
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            KAMRUP M ASSAM



Advocate for the Petitioner   : MR. N ALAM

Advocate for the Respondent : MS. P C BARNALI NAIR




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                            ORDER

Date : 08-03-2021

Heard Mr. P.K. Kalita, learned Senior counsel assisted by Ms. N. Poddar, learned counsel for the petitioners. Also heard Mr. A. Sattar, learned counsel for the respondent.

2. By this revision under section 115 CPC, the petitioners has assailed the order dated 04.03.2021 passed by the learned Munsiff No.2, Kamrup (M), Guwahati in T.Ex. Case No.42/2019, which was an application filed under section 47 read with section 151 CPC. The said application was filed for recalling of the writ for delivery of possession issued by the said learned Court.

3. The case projected by the petitioners is that their predecessor-in-interest was the tenant of the respondent in respect of the suit land. It is projected that by the initial tenancy agreement dated 01.01.1996, the monthly rent was envisaged at Rs.1500/- per month. In the year 1999, the predecessor-in-interest of the petitioners entered into another agreement with the respondent for taking another room on monthly rent at the basement of the same RCC building and the consolidated rent of both room was fixed at Rs.1900/- per month. The said two rooms are described in schedule A and B of the plaint. The tenancy agreement was renewed from time to time and as per the last tenancy agreement dated 01.04.2007, monthly rent was fixed at Rs.12,735/- per room. The predecessor-in-interest of the petitioners was also required to pay Rs.30/- as other charges. The respondent filed a suit for eviction of the predecessor-in-interest of the petitioners on the ground that after paying rent upto the month Page No.# 3/6

of December 2008, the payment of rent was stopped. The predecessor-in-interest of the petitioners contested the suit and the suit was decreed on 23.12.2015 for eviction and recovery of possession and upon eviction, a decree of permanent injunction was made applicable. The predecessor-in-interest of the petitioners had preferred an appeal which was registered as T.A. 18/2016 and during the pendency of the said appeal, the predecessor-in- interest of the petitioners had died on 25.10.2016 and he was substituted by the present petitioners.

4. It is projected that the petitioner no.3 is a minor and is represented by her elder brother, i.e. the petitioner no.2 herein. It is further submitted that in the meanwhile, the mother of the present petitioner had also died and her name was striked out in first appellate proceeding on 10.10.2018.

5. The learned counsel for the petitioners submits that the said appeal was dismissed by appellate judgment and decree dated 06.08.2019 passed by the learned Civil Judge, Kamrup (M), Guwahati thereby affirming the judgment and decree passed by the learned trial Court. The said judgment and decree had attained finality and it is submitted at the Bar that no revision was preferred against the judgment and decree passed by the learned first appellate Court.

6. The respondent herein had put the decree for execution, which was registered as T.Ex. 42/2019. The learned Senior counsel for the petitioners has submitted that the predecessor-in-interest of the petitioners had filed a suit for permanent injunction which was registered as T.S. No.22/2009 before the Court of learned Munsiff No.1, Kamrup (M), Guwahati, inter-alia praying that the respondent had no right to evict the predecessor-in- interest of the petitioners, forcibly and illegally, and for permanent injunction. The said suit was dismissed by the learned trial Court and the aggrieved predecessor-in-interest of the petitioners had preferred an appeal which was registered as Misc. Appeal no.9/2011. The learned Additional District Judge No.3 (FTC), Kamrup allowed the appeal and remanded the Page No.# 4/6

suit back to the learned trial Court for a fresh decision. After remand, the suit was again dismissed by the judgment and decree dated 25.05.2018 and the aggrieved petitioners had filed an appeal which was registered as T.A. 56/2018. The said appeal was accompanied with a separate application for condoning the delay as well as with an application under Order XLI Rule 5 CPC.

7. On the ground of the pendency of T.A. No.56/2018, the petitioners had filed an application under section 47 read with section 151 CPC, objecting to the execution of the decree in T.Ex. 42/2019 and the same was numbered as petition no.361 dated 04.03.2021. It is in the said application that the impugned order was passed, thereby rejecting the said application and refusing the stay executing proceeding. The petitioners being aggrieved by the said order has filed the present revision.

8. The learned Senior counsel for the petitioners has referred to the stand taken in this application and it is submitted that if the execution proceeding is not stayed during the pendency of the appeal filed by the petitioners, they would suffer irreparable loss and injury. The learned counsel for the respondent has appeared on the strength of the Vakalatnama filed in this application and he has made his submissions in support of the order impugned herein.

9. On considering the materials available on record, it is seen that the prayer made by the predecessor-in-interest of the petitioners in T.S. No.22/2009 is for seeking a decree for declaration that the predecessor-in-interest of the petitioners along with the proprietorial firm were the monthly tenants of the respondent in respect of the suit premises described in Schedule A and B and that the respondent had no right to evict the predecessor-in-interest of the petitioners from the suit premises forcibly and illegally and for disconnecting the water and electrical connection to the suit premises. The respondent has filed T.S. 155/2012 and had obtained a lawful decree from the competent Court, which was affirmed by the appellate judgment and decree passed in T.A. 18/2016 by the learned Civil Judge No.2, Kamrup (M), Page No.# 5/6

Guwahati and the said decree has been put to execution, as such, the Court is unable to accept that the respondent has taken any steps to evict the petitioners without due process of law. Therefore, even if the appeal is decided in favour of the petitioners, that would not have any effect the enforcement of the lawful decree of possession and recovery of khas- possession, as allowed in T.S. No.155/2012 and affirmed in T.A. 18/2016. Therefore, the pendency of T.A. 56/2018 would not be an impediment for the learned Munsiff No.2, Kamrup (M), to proceed with the execution of the decree in the proceeding of T.Ex.42/2019. Therefore, there is no good ground for interference with the impugned order as it does not suffer from any jurisdictional error whatsoever. Therefore, the revision deserves to be and is accordingly, dismissed.

10. At is stage, the learned Senior counsel for the petitioners has made an alternative prayer to the effect that if the petitioners are granted some time by this Court they would voluntarily vacate the suit premises. The said submission has been considered.

11. It is seen that the present application is not a revision against the first appellate judgment and decree passed in T.A. 18/2016 by the learned Civil Judge No.2, Kamrup (M), Guwahati, as such, this Court would not have jurisdiction to touch the decree passed in T.S. No.155/2012 as affirmed in T.A. 18/2016. Nonetheless, in order to shorten the litigation and to bring the lis to an end, the Court is inclined to invoke its extra ordinary superintending jurisdiction under Article 227 of the Constitution of India to provide as follows:

(1) It would be open for the petitioners to file an appropriate application in connection with T.Ex. 42/2019 along with an undertaking to vacate the decretal premises on a particular date by serving an advanced copy thereof to the learned counsel for the respondent.

(2) Upon being satisfied, it would be open to the learned Munsiff No.2, Kamrup (M), Guwahati, who is in seisin of T.Ex. 42/2019 to exercise its power to grant appropriate time to the petitioners to vacate the suit premises which would bring an end to the lis.

(3) It would be also open to the learned executing Court to impose appropriate conditions as it may deem fit and proper so as to ensure that the suit premises is vacated on the appointed Page No.# 6/6

date. On such application being filed, it would be open to the learned executing Court to recall the writ for delivery of possession, on being satisfied with the undertaking given by the petitioners.

12. With the said observations, this revision is found to be bereft of any merit and the same is closed without issuing notice on the respondent.

JUDGE

Comparing Assistant