Punjab-Haryana High Court
Dharamshala Suthre Shah vs Surinder Kumar Deceased Th Lrs And ... on 18 April, 2024
Author: Meenakshi I. Mehta
Bench: Meenakshi I. Mehta
Neutral Citation No:=2024:PHHC:052609
121 2024:PHHC: 052609
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Revision No.6959 of 2023
Date of Decision: 18.04.2024
Dharamshala Suthre Shah
...Revisionist-Petitioner
Versus
Surinder Kumar (deceased) through LRs & Others
...Respondents
CORAM: HON'BLE MRS. JUSTICE MEENAKSHI I. MEHTA
Argued by:- Mr. Arihant Jain, Advocate and
Mr. Kanish Jindal, Advocate,
for the revisionist-petitioner.
****
MEENAKSHI I. MEHTA, J.
By filing the instant revision-petition under Article 227 of the
Constitution of India, the petitioner-Objector-Dharam Shala (here-in-after to
be referred as 'the Objector') has laid challenge to the order (Annexure P-7)
as passed by learned Civil Judge (Senior Division), Jalandhar, (for short 'the
Executing Court') on 21.10.2023 in Execution Petition No.917 of 2019 titled
as 'Surinder Kumar (since deceased) through LRs versus Shiv Pal (since
deceased) through LRs and anr', whereby the Objection-Petition (Annexure
P-5) as preferred by it (Objector), has been dismissed.
2. Bereft of the unnecessary details, the facts, emanating from the
perusal of the record and resulting in the filing of the present revision-petition,
are that respondent No.1-landlord (since deceased and represented through his
legal representatives who shall, here-in-after, be referred as 'the LRs of the
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landlord') filed the Rent Petition against respondents No.2 and 3-Judgment
Debtors (here-in-after to be referred as 'JDs No. 1 and 2' respectively) for
seeking their eviction from the demised shop on the grounds of non-payment
of rent by JD No.1 and the sub-letting of this shop by him to JD No.2 without
his (landlord's) consent. The above-mentioned Rent Petition was allowed by
the Rent Controller vide the order Annexure P-3 passed on 05.12.2017 and the
appeal moved by JD No.2 to assail the afore-said eviction order was also
dismissed by learned Appellate Authority vide the judgment as rendered on
21.09.2019. Thereafter, the LRs of the landlord had filed the above-referred
Execution Petition and the Objector filed the Objection-Petition (Annexure
P-5) therein, which has been dismissed vide the impugned order.
3. I have heard learned counsel for the petitioner-Objector in the
instant revision-petition, at the preliminary stage and have also perused the
record carefully.
4. Learned counsel for the Objector has contended that the Objector
is the owner of the demised shop and it had rented out the same to JD No.2
and respondent No.1 had no right or title in this shop and thus, no relationship
of the landlord and tenant did ever exist between the said respondent, i.e the
alleged landlord and JD No.2 but he (respondent No.1) filed the afore-said
Rent Petition by falsely claiming himself to be the owner-landlord of the
above-mentioned shop and the Objector was not a party to the afore-referred
Rent Petition and therefore, the eviction order passed by the Rent Controller
and the judgment as handed down by the Appellate Authority, upholding the
said order, have no binding effect on the rights of the Objector and moreover,
JD No.2 has already handed over the possession of the demised shop to the
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Objector, a third party to the lis and it being so, the above-said eviction order
is not executable against it (Objector) but while passing the impugned order,
the Executing Court has not taken the afore-discussed crucial aspects of the
matter, into consideration and has also not followed the procedure, prescribed
under Order 21 Rules 98 and 100 CPC and hence, the said order is not legally
sustainable and deserves to be set-aside. To buttress his contentions, he has
placed reliance upon the verdict as rendered by Hon'ble Supreme Court in
"Jini Dhanrajgir & Anr Vs. Shibu Mathew & Anr, 2023 AIR (SC) 2567".
5. However, the above-raised contentions do not hold much water
because as regards the plea qua JD No.2 being a tenant in the demised shop
under the Objector, it is pertinent to mention here that JD No.2 had taken/
raised this plea in the written-statement (Annexure P-2) as filed by him in the
afore-said Rent Petition and the Rent Controller and the Appellate Authority
have duly considered and dealt with the same and have concurrently held that
he (JD No.2) had not been able to prove the above-referred plea/version.
6. So far as the dispute regarding the ownership over the demised
shop is concerned, the same can be decided by the Civil Court and the Rent
Controller and the Court executing the orders passed by the Rent Controller,
have no jurisdiction to decide it and even otherwise, it has specifically been
observed in the afore-referred eviction order and the judgment that the above-
said dispute had already been adjudicated by the Competent Court vide the
judgment, as passed on 19.04.2005 in a previously filed Civil Suit.
7. As regards the contention about JD No.2 having handed over
the possession of the demised shop to the Objector, it is again worth-while to
point it out here that both the Courts below have considered the same and
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have observed that JD No.2 had not adduced/led any evidence on the record
to substantiate/establish the afore-discussed fact. To add to it, in Para No.1 in
the preliminary objections in his written-statement (Annexure P-2), JD No.2
has categorically asserted the factum of his possession over the demised shop
and though, in the Objection-Petition, the Objector has pleaded that this shop
is in possession of the persons to whom the same was given by it (Objector)
but the fact remains that throughout therein, it has neither disclosed the names
of such persons nor the date of JD No.2 having handed over the possession of
the said shop to it, as claimed by it and JD No.2 as well.
8. Even if for the sake of arguments, it is presumed that JD No.2
had delivered the possession of the demised shop to the Objector, even then
the facts and circumstances, as discussed in the preceding para, unequivocally
lead to the only irresistible conclusion to the effect that the possession of the
said shop had been so delivered by him (JD No.2), during the pendency of the
Rent Petition. Order 21 Rule 102 CPC provides as under:-
"Nothing in Rules 98 and 100 shall apply to
resistance or obstruction in execution of a
decree for the possession of immovable
property by a person to whom the judgment-
debtor has transferred the property after the
institution of the suit in which the decree was
passed or to the dispossession of such person."
In view of the afore-quoted provisions, it becomes crystal clear
that the plea of non-compliance of the procedure, as laid down under Order 21
Rules 98 and 100 CPC, is not available to the Objector.
9. The observations made by the Apex Court in Jini Dhanrajgir
and anr (supra), are of no avail to the Objector as the facts and circumstances
of the above-cited case are quite distinguishable from those of the present one
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because in the afore-said case, the parcels of property in dispute were claimed
to have been transferred to the respondents after the dismissal of the Suit and
prior to the restoration thereof when there was no pending 'lis' and therefore,
it had been observed that it would be most appropriate for the Executing Court
to determine the question as to whether any of the transfers in favour of the
respondents would attract Rule 102 of Order 21 CPC whereas in the instant
case, as observed earlier, even if JD No.2 is presumed to have actually handed
over the possession of the demised shop to the Objector, then he had done so
during the pendency of the Rent Petition.
10. As a sequel to the fore-going discussion, it follows that the
impugned order does not suffer from any illegality, irregularity, infirmity or
perversity so as to warrant any interference by this Court. Resultantly, the
revision-petition in hand, being devoid of any merit, stands dismissed.
(MEENAKSHI I. MEHTA)
18.04.2024 JUDGE
seema
Whether speaking/reasoned: Yes
Whether Reportable: Yes
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