CLR/6/2021
2021 Latest Caselaw 305 UK

IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
     ON THE 27TH DAY OF JANUARY, 2021
                       BEFORE:
HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA

            CIVIL REVISION No. 6 of 2021


BETWEEN:

Shri Govind Wadhwa (Male), aged about 48 years,
S/o Shri Prem Wadhwa, R/o Gupta Niwas, Gupta
Communication      19/20,     Narishilp     Mandir     Marg,
Dehradun.
                                              ....Revisionist
    (By Mr. Vikas Bahuguna, Advocate)


AND:

1. Shri Rakesh Kumar S/o Shri Krishan Jiwan Agarwal
R/o 179, Narishilp Mandir Marg, Dehradun.
2. Smt. Gita Agarwal W/o Shri Rakesh Agarwal R/o
179, Narishilp Mandir Marg, Dehradun.
3. Smt. Neelima Gupta W/o Shri Mihir Gupta, Gupta
Communication      19/20,     Narishilp     Mandir     Marg,
Dehradun.
                                           .....Respondents

    (There is no representation for the respondents)


                     JUDGMENT

The revisionist is an applicant of an application filed under Order 21 Rule 97 C.P.C. in a proceeding, which stood culminated by virtue of a judgment dated 15.02.2020, as a result of an adjudication made in a S.C.C. Suit No. 32 of 2019,

which has decreed in favour of the landlord/ respondent. Subsequent thereto, the decree, as rendered by the Court of learned Additional District Judge, Dehradun, was put to execution, which was registered as Execution Case No. 7 of 2020 "Rakesh Kumar Vs. Mihir Gupta". The same is pending consideration.

2. The controversy, which emanates herein, is that under the pretext of a pre-existing partnership deed, which happens to be registered under the strength of an existing partnership deed, he submits that he had right to continue the occupancy of the tenement in question, from which he contends that he is in possession and was conducting his business. Consequently, as a result thereto, he had filed an application numbered as R.M. No. 500 of 2020 "Govind Wadhwa Vs. Rakesh Kumar and others" under Order 21 Rule 97 C.P.C., invoking the provisions contained under Order 21 Rule 97 C.P.C. The said application, when it was listed on 18.01.2021, the same was dismissed by the learned Executing Court on the ground that the counsel for the revisionist, as well as the revisionist himself was not present before the Court to press the application under Order 21 Rule 97 C.P.C. Seeking recall of the order dated 18.01.2021, the revisionist filed a Misc. Application No. 40 of 2021, which too has been dismissed by one of the impugned orders, which is under challenge before this Court i.e. an order dated 20.01.2021.

3. While rejecting the application by the impugned order, the learned Court of IIIrd Additional District Judge, Dehradun,has assigned the reason that the application, which was instituted on 03.12.2020,

the counsel had not appeared on the said date and, by filing the recall application on the pretext that the counsel was ailing, no evidence ,as such, was placed on record in support of their contention and this Court is of the view that it cannot be ruled out that the recourse to the application under Order 21 Rule 97 C.P.C. was adopted to install the execution proceedings of the decree, which was rendered in favour of the landlord.

4. Hence, this Court is not inclined to interfere in the revision in question. Consequently, the same is dismissed.

(SHARAD KUMAR SHARMA, J.) Vacation Judge Arpan