M/S Ramkumar Harishankar & Ors vs Rajesh Kasera & Ors
2021 Latest Caselaw 4119 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     [Civil Writ Jurisdiction]
                     W. P. (C) No. 5967 of 2010
         M/s Ramkumar Harishankar & Ors.                   .... .. ...          Petitioner(s)
                                       Versus
         Rajesh Kasera & Ors.                                        .. ... ... Respondent(s)
                            ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........

       For the Petitioner(s)            :    Mr. Ayush Aditya, Advocate.
       For the Resp. No.1               :    Mr. Ranjan Kumar, Advocate
       For the Interveners              :    Mr. Indrajit Sinha, Advocate
                            ..........

09 / 01.11.2021. Heard, learned counsel for the parties.

I.A. No.6135 of 2021.

I.A. No.6135 of 2021 has been filed for impleading the Intervenors, namely,

1.Kishan Kanhaiya Rungta, S/o Late Prem Kumar Rungta, 2.Bina Devi Rungta, W/o Late Prem Kumar Rungta, 3.Raghuveer Kumar Rungta, S/o Late Santosh Kumar Rungta and 4. Pushpa Devi Rungta, W/o Late Santosh Kumar Rungta, all residents of Gandhi Chowk, Upper Bazar, Ranchi, P.O.- G.P.O. And P.S. Kotwali, District- Ranchi, Jharkhand, as party-respondents in the present Writ Petition, as they are beneficiaries having legitimate claim over the property, in question.

Mr. Indrajit Sinha, learned counsel for the Interveners has submitted that the instant Writ Petition has been filed against the order dated 6.09.2010 (Annexure-4) passed by learned Subordinate Judge-I, Ranchi in Execution Case No.27/07 whereby the right of the interveners has not been decided, as such, Interveners have filed I.A. No.6135 of 2021 before this Hon'ble Court, as Title Appeal No.17 of 1994, on remand of Second Appeal bearing S.A. No.42 of 1996, is pending before the court of learned Additional Judicial Commissioner, Ranchi, After hearing the learned counsel for the parties, I.A. No.6135 of 2021 is hereby disposed of with a direction to the interveners to file an application before the Lower Appellate Court, On an application filed by the Interveners, the Lower Appellate Court shall consider the submissions of the intervener(s), in accordance with law after hearing all the parties with regard to the issue involved in the instant matter and the judgment passed by the different Courts on the same issue.

I.A. No.6135 of 2021 sands disposed of.

W. P. (C) No. 5967 of 2010

Mr. Ayush Aditya, learned counsel for the petitioners has submitted that the instant Writ Petition is with regard to the impugned order dated 06.09.2010 (Annexure-4) passed by learned Subordinate Judge-I, Ranchi, in Execution Case No.27/07, whereby the Executing Court has directed the judgment-debtor to deposit amount of Rs.13,13,500/- as arrears of rent within one month of the order to the

decree holder, failing which, the movable and immovable property of judgment debtor shall be attached and sold on auction.

Mr. Ayush Aditya, learned counsel for the petitioners has further submitted that under Section 15 of the Bihar / Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 1982, wherein the claim for ejectment in order to deposit the rent by the the tenant should be at the rate which was last paid by the said tenant.

Mr. Ayush Aditya, learned counsel for the petitioners has further submitted that the Title Eviction Suit No.58 of 1989 was filed, which was decided/decreed on 16.10.1993 in favour of the plaintiff(s). The defendant/ tenant filed Title Appeal No.17 of 1994 during pendency of the Eviction Suit, the plaintiff filed application for determination of fair rent vide B.B.C. Case No.79 of 1989 which was decided on 08.09.1995 by the Court of S.D.O.-cum- House Rent Controller, Ranchi, Mr. Ayush Aditya, learned counsel for the petitioners has further submitted that before the Appellate Court, a petition under Section 15 of the Bihar / Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 1982 was filed. As per petition filed under Section 15 of the said Act, 1982, the same was allowed on 07.04.1997, directing the appellants to pay rent of Rs.525/- to the plaintiff(s) by the defendant(s) as a last paid rent. Title Eviction Suit No.58/1989 was disposed of, by decreeing the suit in favour of the plaintiff(s) on 16.10.1993. The judgment-debtor preferred Title Appeal No.17 of 94 before the Court of leaned Judicial Commissioner, Ranchi, against the judgment dated 16.10.93 passed in Title Eviction Suit No.58/1989. The said Title Appeal No.17 of 94, was dismissed on 24.04.96. The judgment-debtor preferred Second Appeal No.42 of 1996 which was remanded on 14.01.1997 and since then Title Appeal No.17 of 1994 is pending before the learned Additional Judicial Commissioner, Ranchi.

Mr. Ayush Aditya, learned counsel for the petitioners has further submitted that in the case of B.B.C. Case No.79/89 with respect to the suit premises, whereby the House Rent Controller has fixed the rent of Rs.7,100/- per month, directing the defendant(s)/tenants to pay to the plaintiff with effect from 04.07.1992 by an order dated 08.09.1995. The said order was challenged by the defendants/tenants in B.B.C. Appeal No.32R 15/95-96 which was dismissed and subsequently Revision vide H.R.C. Revision No.487/96 was dismissed on 26.10.1999. Against which, the defendant(s)/ tenant(s) preferred Writ Petition before this Hon'ble Court vide C.W.J.C. No.3131 /1999 [R] which was also dismissed by this Court vide order dated 19.04.2001. Subsequent to the disposal of the Writ Petition on 19.04.2001, in House Rent Controller matter, an application was filed on 05.09.2001, before the learned Lower Appellate Court, for modifying the order dated 07.04.97, which was allowed

and modified the order dated 07.04.97, directing the petitioner(s)/tenant(s) to pay Rs.7,100/- per month and arrears of rent to the tune of Rs.13,13,500/- for the period i.e. 4th July, 1992 till 31st August, 2007.

Mr. Ayush Aditya, learned counsel for the petitioners has further submitted that the Appellate court has wrongly modified the order during appellate jurisdiction, which could have been passed under Order XLI Rule 5 C.P.C. in view of the judgment passed by the Apex Court in the case of State of Maharashtra and Anr. vs. Super Max International Private Limited and Ors, reported in (2009) 9 SCC 772 at Paras 77 to 79 and the learned Appellate Court has modified the order instead of passing an order under Order XLI Rule 5 C.P.C. Further the Executing Court has not decided the right of the plaintiff(s), when title of the property is under dispute with second set of respondents.

Mr. Ranjan Kumar, learned counsel for the respondents has submitted that the order dated 03.10.2001 passed in Title Appeal No.17 of 94 has not been challenged by the petitioners/defendants, as such, the same attains its finality. So far order passed by the learned Appellate Court with regard to modification or with regard to under Order XLI Rule 5 CPC, even this Hon'ble Court under Article 227 of the Constitution of India can rectify the same and the issue which has never been assailed by the writ petitioner cannot be a ground for assailing the final order passed in the said Execution Case, as such, the instant Writ Petition is fit to be dismissed. So far the claim of the title of the plaintiffs and second set of respondents is concerned, the same is not under dispute before the Executing Court. The Executing Court has passed an order with regard to payment of the amount which has been modified as a last rent paid to the plaintiffs @ Rs.7,100/- per month, as such, this Court may not interfere with the same.

Considering the rival submissions of the parties and looking into the facts and circumstances of the case, it appears that the order has been modified on 03.10.2001, though not under Order XLI Rule 5 CPC, but the same has not been assailed. As such, at this belated stage, this Court cannot enter into such merit rather admitted position subsequent to order dated 3.10.2001, defendant(s) ought to have been paid a sum of Rs.7100/- per month to the plaintiff(s), which he has failed to do so, as such, Execution case was filed and the impugned order do not warrant any interference under Article 227 of the Constitution of India.

So far, with regard to ownership of the property is concerned, the intervention application has been disposed of with an observation and direction to the intervenor(s) to agitate the same before the learned Appellate Court and the

learned Appellate Court after considering all the judgments passed in this matter shall pass an order, as such, this Court is not inclined to interfere with the impugned order.

It has been submitted by learned counsel for the petitioners, Mr. Ayush Aditya that this Court may considers that the amount is huge one, as such, it may be paid in installments, as such, the order may be modified by this Court under Article 227 of the Constitution of India.

Mr. Ranjan Kumar, learned counsel for the respondent(s) has serious objection.

This Court considering the pandemic of Covid-19 and the financial crisis, grants liberty to the judgment-debtor to file an affidavit with regard to payment in six equal installments of the arrears of rent for which Execution Case has been filed before the court below, specifying the dates of payment of the same in six installments with current and arrears of rent in accordance with law.

Accordingly, the instant Writ Petition stands dismissed. Consequently the interim order dated 10.03.2011 stands automatically vacated.

Let a copy of this order be communicated through FAX to the court below at once.

(Kailash Prasad Deo, J.) Sandeep/