Rajasthan High Court
M/S Comet Portfolio Services ... vs Smt Putul Devi Wife Of Late Shri ... on 2 February, 2023
Bench: Inderjeet Singh
[2023/RJJP/001282]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1555/2022
M/s Comet Portfolio Services Private Ltd, Through Director Mr
Babulal Bunkar Son Of Shri Ganpat Lal Bunkar Age About 45
Years, Registered Office At 2/a, Kitab Mahal, 192, Dr, D.n. Road,
Mumbai 400001.
----objector-Petitioner
Versus
1. Smt Putul Devi Wife Of Late Shri Manmal Phophalia,
(Deceased) Through:-
1/1. Shri Rajendra Son Of Late Shri Manmal Phophalia,
Resident Of House No. 538, Hanumanji Ka Rasta, Tripolia
Bazar, Jaipur.
1/2. Shri Raja Son Of Late Shri Manmal Phophalia, Resident Of
House No. 538, Hanumanji Ka Rasta, Tripolia Bazar,
Jaipur.
1/3. Shri Rishabh Son Of Late Shri Manmal Phophalia,
Resident Of House No. 538, Hanumanji Ka Rasta, Tripolia
Bazar, Jaipur.
----Decree Holder-Respondents
For Petitioner(s) : Mr. O.P. Mishra, Adv.
For Respondent(s) : Mr. Giriraj Bardhar, Adv. with
Mr. Kapil Bardhar, Adv. &
Mr. Ayush Sharma, Adv.
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
02/02/2023
This writ petition has been filed by the petitioner challenging
the order dated 29.10.2021 whereby the application filed on
behalf of the petitioner for appointment of Moka Commissioner
was dismissed by the Rent Tribunal.
Brief facts of the case are that that the respondent-decree
holder filed eviction application against Smt. Kamla Karnawat and
others on the ground of bona fide need, personal necessity and
[2023/RJJP/001282] (2 of 4) [CW-1555/2022]
alternative premises available to the tenant. The said application
was allowed by the Rent Tribunal vide judgment and decree dated
18.01.2014, being aggrieved thereof the tenant filed appeal
before the Appellate Rent Tribunal which was also dismissed by
the Appellate Rent Tribunal vide judgment dated 27.02.2016,
against which the original tenant filed S.B. Civil Writ Petition
No.5855/2016, 5857/2016 & 5856/2016 which were also
dismissed by this Court vide order dated 05.12.2017. After the
judgment and decree of eviction passed by the Rent Tribunal being
confirmed by the Appellate Rent Tribunal as well as by this Court,
the respondent-decree holder filed execution application before
the Executing Court and during pendency of the execution
proceedings, the possession of the property in dispute was also
handed over to the respondent-decree holder. The objection raised
on behalf of the petitioner-objector was also dismissed by the
Executing Court vide its order dated 22.07.2019. Being aggrieved
by the order dated 22.07.2019, the petitioner-objector filed appeal
before the Appellate Rent Tribunal, Jaipur which was allowed by
the Appellate Rent Tribunal vide order dated 05.02.2020 and the
matter was remanded back to the Executing Court for deciding
afresh the objections submitted by the petitioner-objector after
providing opportunity of hearing to the parties. After the matter
was remanded back and the proceedings were pending before the
Executing Court, the petitioner-objector filed an application for
appointment of Mauka Commissioner which was dismissed by the
Executing Court vide order dated 29.10.2021 and that order is
under challenge in this writ petition at the instance of the
petitioner-objector.
[2023/RJJP/001282] (3 of 4) [CW-1555/2022]
Counsel for the petitioner submitted that the Executing Court
has committed serious illegality in dismissing the application filed
on behalf of the petitioner as in view of the observations made by
the Appellate Rent Tribunal in its judgment with regard to different
measurement as provided by the landlord-decree holder, it is
necessary to appoint the Mauka Commissioner to ascertain the
measurement of the area for which the original decree was passed
by the Rent Tribunal so that the actual measurements may come
on record. Counsel further submits that the Commissioner can be
appointed at any stage of the proceedings and prayed for allowing
the writ petition.
In support of his contentions, counsel for the petitioner relied
upon the judgment passed by this Court in the matter of Smt.
Mangla Devi & Anr. v. Panch Maliyan Samaj, Sawaimadhopur City
& Ors. reported in 2022(4) WLC (Raj.) 449.
He relied upon the judgment passed by the Bombay High
Court in the matter of Malhar s/o Ganpat Bokerphod and others v.
Shivaji s/o Vishwanath Pawal reported in 2013 SCC OnLine Bom
1733.
He further relied upon the judgment passed by the Hon'ble
Supreme Court in the matter of Haryana Waqf Board v. Shanti
Sarup and Ors. reported in (2008) 8 SCC 671.
Counsels for the respondents opposed the writ petition and
submitted that finding of fact recorded by the Rent Tribunal were
never challenged at the instance of the petitioner-objector and all
the findings as evident from the record stood confirmed by the
Appellate Rent Tribunal as well as by this Court. They further
submitted that while the objections were submitted by the
[2023/RJJP/001282] (4 of 4) [CW-1555/2022]
petitioner-objector at the first instance before the Executing Court,
no application was submitted by the petitioner for appointment of
Commissioner, hence the court below has not committed any
illegality in dismissing the application for appointment of Mauka
Commissioner and prayed for dismissal of the writ petition.
Heard counsel for the parties and perused the record.
This writ petition filed by the petitioner deserves to be
dismissed for the reasons; firstly, in compliance of the decree of
eviction which has been confirmed by the Appellate Rent Tribunal
as well as by this Court, the possession of the property in dispute
has already been handed over to the respondent-decree holder;
secondly, at the stage when the measurement of the area of the
property in dispute were objected by the petitioner by filing the
objections, the petitioner itself was negligent in not submitting the
application before the Executing Court at the first instance for
appointment of Mauka Commissioner; thirdly, the petitioner failed
to submit any application for impleading him as a party in the
eviction proceedings at any stage; fourthly, the Appellate Rent
Tribunal has remanded the matter back to the Executing Court for
deciding afresh the objections, considering the observations made
by the Appellate Court in its judgment; and lastly in the facts and
circumstances of the present case, no case is made out for
interference by this Court under Article 227 of the Constitution of
India.
Hence, this writ petition stands dismissed.
(INDERJEET SINGH),J
Jyoti/42
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