Gayyur vs Shahida Parveen and Another

Indermeet Kaur, J.

1 Respondent No. 2 has also been served. Copy of the paper book has been furnished to him.

2 The order impugned before this Court is the order dated 11th May, 2011 vide which the application filed by the Plaintiff seeking permission of the court to deposit the keys of the suit premises in the court or in alternate to hand them over to Defendant No. 1 had been dismissed; the Plaintiff had been granted last opportunity to hand over the peaceful possession of the suit premises to Defendant No. 2.

The record shows that the present suit has been filed by Shahida Parveen against two Defendants; the contention is that she is the owner of the suit property; Defendant No. 2 is a trespasser and is in illegal possession of the suit property. Both the Defendants had been proceeded ex parte. Ex parte decree had been passed in favour of the Plaintiff vide judgment dated 5th March, 2009. This ex parte decree was the subject matter of challenge by Defendant No. 2; he had filed an application under Order 9 Rule 13 of the Code; this application was allowed on 6th October, 2009. The ex parte decree had been set aside.

The contentions of the respective parties had been delved into; the court had recorded a finding that before proceeding with the suit, the possession of the suit property be restored back to Defendant No. 2. This order dated 6th October, 2009 had been assailed in an appeal before the Additional District Judge who had dismissed it vide judgment dated 18th December, 2009. Civil revision had been preferred before the High Court which had been disposed of on 8th January, 2010 endorsing the finding contained in the order dated 6th October, 2009 as the Plaintiff had sought permission of the court to withdraw the said revision petition; the order dated 6th October, 2009 whereby the directions had been given to the Plaintiff to hand over the keys of the suit property to Defendant No. 2 stood re-endorsed.

On 24th May, 2010, a second revision petition assailing the same order i.e. the order dated 6th October, 2009 had also been disposed of as the Plaintiff had sought permission to withdraw the said petition as well.

Thereafter, a review petition had been filed by the Plaintiff assailing the order dated 6th October, 2009; this had also been dismissed on 16th October, 2010. The order dated 6th October, 2009 stood re-affirmed whereby the Plaintiff had been directed to hand over the keys of the suit premises to Defendant No. 2. The application filed by the Plaintiff seeking modification of the order with a direction to deposit the keys in the court or in the alternate to hand over the keys to Defendant No. 1 had also been dismissed vide impugned order dated 11th May, 2011.

This order is the subject matter of this present petition. On specific query put to learned Counsel for the Petitioner as to what is his grievance in this petition, he has no answer. His contention is that he had not been given a fair opportunity of hearing.

The written statement filed by the Petitioner/Defendant No. 1 cannot be lost sight of; in his written statement he had stated that the Defendant No. 1/Petitioner has nothing to do with the tenanted premises and the same is in the unlawful possession of Defendant No. 2.

In para 6 on merits, he had been stated that the Petitioner was never in possession of the suit property; he was not liable to pay any rent to the Plaintiff. All these contentions had weighed in the mind of the Trial Judge before recording its finding in the order dated 6th October, 2009 whereby the keys of the suit premises had been directed to be handed over to Defendant No. 2.

The contention of the Defendant No. 2 all along was that he is the owner of the suit premises in his own right; he had never agreed to sell the property to the Plaintiff as is the contention of the Plaintiff; all this had been dealt with and considered by the court while dealing with the application under Order 9 Rule 13 of the Code which had been allowed on 6th October, 2009.

The contention of the Plaintiff is that he had purchased this property vide documents dated 24th October, 2003 which is the General Power of Attorney and Agreement to Sell; this was never the case of the Plaintiff when he filed his reply to the application under Order 9 Rule 13 of the Code.

Be that as it may, the order dated 6th October, 2009, by virtue of which the Plaintiff had been directed to hand over the keys of the suit premises to Defendant No. 2 has long since attained a finality; almost all forums have been exhausted; the order dated 6th October, 2009 has been re-affirmed and re-endorsed. The said order does not suffer from any infirmity, it warrants no interference by this Court.

The keys which are lying deposited before the trial court are directed to be handed over to Defendant No. 2. Neither party shall obstruct or interfere in this transaction.

Petition disposed of.