Jai Narain Sahu and another vs Munshi Ram and others

Rakesh Tiwari, J.—Certified copy of the order impugned dated 3.8.2010 filed by the counsel for petitioner alongwith supplementary affidavit, is taken on record.

Heard counsel for the petitioner and perused the record.

By the order impugned dated 3.8.2010 passed by Incharge District Judge, Jhansi, stay application filed by the petitioner in S.C.C. Revision No. 145 of 2010, has been rejected.

The shop in dispute was initially given on rent to Dr. K. Imdad Ali, who claimed to have handed over its possession to landlord Munshi Ram on 10.8.1988. It appears that landlord Munshi Ram filed S.C.C. Suit no. 3 of 1993 on 6.1.1993 against Dr. K. Imdad Ali for arrears of rent and eviction. The suit was decreed on 3.12.2005 in view of consent order dated 9.11.2005 passed in Writ Petition No. 45428 of 2004, Dr. K. Imdad Ali Vs. Munshi Ram. Consequently, execution case no. 4 of 2006 was filed by the landlord for execution of the decree passed in S.C.C. Suit no. 3 of 1993. It is at this stage that petitioner came into picture. According to him, on coming to know about the collusive decree passed in S.C.C. Suit no. 3 of 1993, that he moved an application under Order 21 Rule 97 and 101 read with section 151, C.P.C. claiming himself to be the tenant of the shop in dispute and necessary party to be heard in the matter. The JSCC rejected the application filed by the petitioner vide its order dated 20.7.2010, against which S.C.C. Revision no. 145 of 2010 was preferred by the petitioner alongwith application for stay. Though the revision has been admitted, the application for stay therein has been rejected by the revisional court by the impugned order dated 3.8.2010, against which the present writ petition has been filed.

Parwana for possession possession is also said to have been issued on 7.8.2010 in Execution case no. 4 of 2006. arising out of decree passed in suit no. 3/1993.

The order impugned dated 3.8.2010 is sought to be challenged on the ground that it is apparent that the consent order and judgment passed by the High Court dated 9.11.2005 passed in writ petition No. 45428 of 2004, which is part of the decree in S.C.C. Suit no. 3 of 1993, is collusive as Dr. K. Imdad Ali had categorically and consistently taken a stand that he was not in possession of the suit premises and as such was not liable to pay any rent or liable to be evicted; that it is also clear that the suit was not maintainable in the facts and circumstances of the case.

Further contention of the counsel for petitioner is that Judge Small Cause Court has illegally rejected the application of the petitioner filed under Order 21 Rule 97 and 101 read with section 151, C.P.C. and that revisional court has also committed an error in rejecting the stay application while admitting the revision for hearing. It is emphasized that since Parwana for possession has been issued in execution case no. 4 of 2006 on 7.8.2010, hence this Court may interfere with the order rejecting his application for stay and restrain the respondent from eviction of the petitioner on the basis of Parwana Dakhal of the accommodation in dispute in his possession.

It is lastly urged that the decree is collusive one as it has been obtained without impleading the petitioner who it is claimed was tenant of the shop in question from much prior to the institution of suit no. 3 of 1993, Munshi Ram Vs. Dr. K. Imdad Ali.

Considering the facts of the case and the arguments advanced by the counsel for petitioner as well as on perusal of record, it is apparent that SCC suit no. 3 of 1993 was filed by the landlord against Dr. K. Imdad Ali, for arrears of rent and for handing over its possession. The suit was contested by him on the ground that he has already handed over possession of the shop in question to the landlord and as such there was no question of arrears of rent payable by him. In these circumstances, the High Court passed consent order dated 9.11.2005 in Writ Petition No. 45428 of 2004, in the following terms :

"It was stated in the written statement that even before filing of the suit tenant had vacated the premises in dispute. The same thing is reiterated by learned counsel for the tenantpetitioner during arguments. However, learned counsel for landlordrespondent states that till date landlord has not got the possession of the property in dispute. Learned counsel for landlord respondent also states that if he is declared to be in possession or gets possession, he will not press for recovery of arrears of rent etc.

In view of the fact that tenant petitioner is categorically and consistently asserting that he is not in possession, the suit of the landlord respondent deserves to be decreed in respect of possession. Learned counsel for tenant has also consented for the same in view of statement of learned counsel for landlord that in case possession is held to be with or delivered to the landlord, then he will not press for recovery of any amount against the tenant. As learned counsel for landlord respondent has stated that in case he gets possession or is declared to be in possession, he would not press for arrears of rent, hence the suit (SCC Suit no. 3 of 1993, Munshi Ram Vs. Dr. K. Imdad Ali and others) is liable to be dismissed for recovery of rent and damages for use and occupation. Consequently, S.C.C. Suit No. 3 of 1993 is decreed in respect of possession on the basis of admission and consent of tenant/defendant under Order XII Rule6 C.P.C. Landlord Munshi Ram is declared to be in possession of the property in suit. However, if there is any doubt or dispute in respect of possession then plaintiff landlord is entitled to take possession through execution before the trial court/executing court.

Suit for recovery of rent/damages for use and occupation is dismissed under Order XXIII Rule 1 read with Order XII Rule 6, C.P.C.

Writ petition is accordingly disposed of."

The present petitioner Jai Narain Sahu who claims himself to be the tenant in the shop in question, did not get himself impleaded in the proceedings initiated against Dr. K. Imdad Ali earlier. He also did not appear before the High Court. The court below while rejecting stay application has noted the fact that petitioner was claiming himself as tenant of the shop for the last many years and in possession thereof on rent of Rs. 200 per month. This claim of the petitioner was denied by the landlord categorically stating that he was not tenant of the shop in dispute. The petitioner could not establish since when he is tenant in the shop in dispute and how he has stepped into shoes of tenant particularly when after vacation of shop by Dr. K. Imdad Ali, it was neither allotted to him by the Rent Control Officer nor possession was given to him by the landlord, who denies his status as a tenant. There is even no contract of tenancy between Munshi Ram the landlord and the petitioner who claims to be the tenant. Relevant extract of the order passed by the court below is as follows :

The court below has found that from the documents submitted by the petitioner, no reasonable person would come to the conclusion that petitioner was tenant of the shop in dispute or that shop in dispute was under his possession for a period of time over 20 years. The court below has also considered the averments made by the petitioner regarding boundaries of the shop and relying upon the commissioner report, it has below found that the shop in which the petitioner claims to be the tenant is not the shop in dispute for which suit no. 3 of 1993 has been decreed. Relevant extract of the order in this regard is thus :

The court below while dismissing application of the petitioner filed by him under Order 21 Rule 97 and 101 read with section 151, C.P.C., has rightly come to the conclusion that petitioner has failed to prove his tenancy in the shop or his possession over it or that decree passed by the court in suit no. 3/1993 in pursuant of consent order passed by the High Court, is null and void.

Even before this Court, the petitioner has not been able to establish as to how and when he became tenant of the shop in dispute. He has neither appended any allotment order in his favour nor any agreement or contract of tenancy as noted above. Therefore, his case that he is tenant of the shop in dispute is not made out.

For the reasons stated above, the order impugned does not suffer from any illegality or infirmity warranting interference in writ jurisdiction.

The writ petition is accordingly dismissed. No order as to costs.

Let a copy of this order be sent to the concerned Execution court by fax forthwith.