Sayed Abdul Rahim Moini vs Bhanwar Lal
2022 Latest Caselaw 5511 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

      S.B. Civil Miscellaneous Application No. 88/2021

                                      In.

            S.B. Civil Second Appeal No.257/2012

Sayed Abdul Rahim Moini S/o Late Sayad Abdul Kayum, R/o
285/16, House of Khan Bahadur Sahab ka, Khadim Mohalla,
Ajmer.
                                                     ----Appellant/Plaintiff
                                     Versus
1. Bhanwar Lal S/o Chatra @ Chacrbhuj, R/o 2/768, Infront
Teachers Training College, Jaipur Road, Ajmer.
                              ............Respondent-Defendant No.1

2. Shri Khemraj S/o Shri Ram Dayal, R/o 2/768, Infront Teachers Training College, Jaipur Road, Ajmer.

............Respondent-Defendant No.2

For Petitioner(s) : Mr. Alok Chaturvedi Mr. Shailendra Kumar For Respondent(s) : Mr. M.M.Ranjan, Sr. Adv. assisted by Mr. Daulat Sharma Mr. L.L. Gupta Mr. Peush Nag

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

04/08/2022

1. Instant Civil Misc. Application has been filed under Section

151 CPC by applicant-Sh.Khemraj, who was party in the original

suit for eviction as defendant No.2, seeking recalling of the final

judgment dated 23.05.2019 passed in S.B. Second Appeal

No.257/2012.

2. Learned counsel for applicant/defendant No.2 submits that

plaintiff and defendant No.1 entered into compromise in the

second appeal No.257/2012 and on the basis of their enter se

(2 of 3) [CMAP-88/2021]

compromise, the second appeal was finally decided vide judgment

dated 23.05.2019 passing a decree for eviction in relation to the

suit premises and now in pursuance to the judgment dated

23.05.2019, the plaintiff in execution proceedings is evicting the

applicant-defendant No.2. He submits that since he is not party to

the compromise, therefore, he cannot be evicted in pursuance to

the judgment dated 23.05.2019 passed on the compromise.

3. Non-applicant-plaintiff has filed reply to the misc. application

and submits that defendant No.2 was sub-tenant in part of rented

premises. For the rented suit property, the original eviction suit

was filed on the ground of subletting stating that his tenant

defendant No.1 has sublet the part of suit property in question to

the defendant No.2. He submits that applicant-defendant No.2

was made party in the original suit for eviction in the capacity of

being a sub-tenant in the part of the suit premises. He further

submits that the suit was decreed vide judgment dated

28.04.2011 for the whole suit property including the part of suit

property is in possession of the defendant No.2. However, the

defendant No.2 did not prefer any appeal against the judgment

and decree. The first appeal was preferred only by defendant

No.1. He further points out that defendant No.1 has submitted

written statement supporting the defence of defendant No.1

without claiming his own independent and separate right in any

part of suit property. He submits that in that view of matter, the

defendant No.2 has no independent right and his application to

recall the judgment dated 23.05.2019 is wholly misconceived.

4. Heard learned counsel for both parties and perused the

record.

(3 of 3) [CMAP-88/2021]

5. On perusal of the record, it appears that the part of suit

property in question, on which the applicant-defendant No.2 is

claiming his possession is undisputedly included and is a part of

the suit property for which the suit for eviction was filed. It is also

clear from the record that the eviction suit was decreed by the

trial court vide impugned judgment dated 28.04.2011, however

the first appeal was filed only by the defendant No.1 and

defendant No.2 did not file any first appeal challenging the decree

for eviction. The defendant No.2 did not claim any independent

right or interest in the suit property before the trial court.

6. In this view, it is apparent that if defendant No.2 was having

any independent right and interest over the part of suit property

in question, he could have filed the first appeal against the

judgment and decree for eviction. Since at the stage of second

appeal, the dispute in relation to the suit property was only

between the plaintiff and defendant No.1, therefore, on the basis

of their compromise, the high Court has passed the judgment

dated 23.05.2019. In the present factual scenario and as per

material on record, the applicant cannot be allowed to recall the

final order dated 23.05.2019, once he did not assert, claimed any

individual right over the part of suit property in question.

7. Accordingly, the misc. application is devoid of merits and the

same is dismissed.

(SUDESH BANSAL),J

TN/48

Powered by TCPDF (www.tcpdf.org)