Gopal Krishan Arya and Another vs Devender Divedi and Another

S.D. Anand, J.—The tenanted premises under reference were owned by respondent No. 2 Indra Chawla (hereinafter referred to as the landlady). The premises were under the tenancy of respondent No. 1- Devender Divedi (hereinafter referred to as the tenant). The ejectment petition filed by the landlady against the tenant came to be allowed, vide exparte order dated 11.9.2006. Prior thereto, exparte proceedings at the trial had been ordered against the tenant vide order dated 24.4.2006. The tenant filed an application (on 8.9.2005) for setting aside of the exparte ejectment order dated 11.9.2006. Also applied for was an order for restoration of the possession of the premises which came to be delivered to the landlord in the meantime. The plea under Order 9 Rule 13 C.P.C. came to be allowed, vide order dated 22.10.2007. Though we are not presently concerned (about the validity or otherwise of the service), the finding recorded was that service had not been properly effected upon the tenant. No order, however, came to be granted qua restoration of the possession. It was thereafter that the tenant applied for restoration of the possession, vide application dated 8.9.2005. The plea was resisted by the landlady who averred that possession of the premises had been obtained in due course of law and in execution of the exparte ejectment order aforementioned. The learned Rent Controller ordered the restoration of possession to the tenant.

The petitioners (hereinafter referred to as "the transferees") claimed to have purchased the tenanted premises from the landlady, vide registered sale deed dated 24.12.2007 and claimed that the landlady had also delivered the vacant possession of the house to them. The petitioners herein raised a plea that they are bonafide purchasers of the tenanted premises without any notice of the ejectment proceedings aforementioned. They applied for the setting aside of the order Annexure P/1 dated 22.10.2007 and Annexure P/2 dated 12.8.2009. Vide the former, the learned Rent Controller had ordered the setting aside of the exparte ejectment order; while the latter directed the restoration of possession to the tenant.

The plea was negatived by the learned Trial Court.

In revision, it is argued by the learned Counsel appearing on behalf of the petitioners that it was a pure and simple case of the landlady having either colluded with the tenant or her having refrained from properly contesting the plea for setting aside of the exparte ejectment order.

It would be apparent, from a perusal of material obtaining on the file, that eviction order came to be set aside vide order dated 11.9.2006 and that order itself came to be set aside vide order dated 22.10.2007. The averred purchase in favour of petitioner herein came about vide registered sale deed dated 24.12.2007 i.e. long after the order dated 22.10.2007 came to be granted in favour of the tenant and against the landlord. As already noticed in an earlier part of this order, the possession of the premises had already been obtained by the landlady and the latter was directed to restore the possession to the tenant.

It was held in Basant Ram and Ors. v. Smt. Devi and Ors. 2000(1) PLR 755 that if a landlord obtained exparte order of eviction and also possession in pursuance thereof and that order came to be ultimately set aside, the tenant would be entitled to restitution of possession not only from the landlord but also from the transferee or assignee etc. of the latter. That view of this Court was based upon the view obtained by the Apex Court in Hurmat Ali v. Matib Ali AIR 1952 Assam 111 and Chanda Sal v. Jamshed Khan 1994(1) RCR (Rent) 4 (Kar). (In that view of things, the plea raised by the subsequent transferee cannot be upheld). Further, it was held by a Coordinate Bench of this Court in Rajinder Kumar v. Smt. Devi 2001 (1) RCR 246 that the transferee would be bound by the order granted against the predecessor-in-interest and it was further held that in case an order of eviction had been set aside the law is under obligation to restore the possession. The position that, thus, emerges is as under:

The tenant had been dispossessed in execution of an exparte ejectment order which (order) came to be set aside on a finding that proper service had not been proved to have been effected (in the ejectment petition) upon the tenant. Following the setting aside of the exparte ejectment order, the tenant successfully obtained an order for the restitution. The subsequent transferees (petitioners herein) having acquired the averred title at a subsequent point of time, are bound by the order granted against their predecessor-in-interest.

In the light of foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed.