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Judgment
Heard finally with the consent of learned counsel for the parties. The appellants have preferred this intra court appeal against order of Single Bench dated 5.4.2013, whereby writ petition filed by appellants against orders of Executing Court dated 30.10.2012 and 6.3.2013, has been dismissed.
Briefly stated, the facts of the case are that respondent no. 2 Pradeep Kumar filed an application for eviction under the provisions of the Rajasthan Rent Control Act, 2001, against respondent no. 3-tenant Balkishan, wherein an objection was taken by tenant that his two brothers Kanhaiyalal and Premnarayan are necessary parties. A specific issue no. 3 was framed as to, "whether Kanhaiyalal and Premnarayan were necessary parties"? The said issue was decided against tenant and a certificate of possession was issued in favour of respondent no. 2. It is relevant to mention that at the time of recording the statement of tenant Balkishan before Rent Tribunal, the appellant Kanhaiyalal was present in the Court. The said fact is proved from the certified copy of the statement of Balkishan, which was referred to during the course of arguments by learned counsel for respondent no. 2. The said statement of Balkishan has not been disputed by learned counsel for petitioner/appellants. Despite knowledge of the present eviction proceedings, the appellants did not file an application under O.1 R. 10 CPC to implead them as a party. It is clear from the statement of Balkishan that present appellants were watching the proceedings of eviction proceedings. However, in an appeal filed by tenant Balkishan against eviction decree, the appellants filed an application under O.1 R. 10 CPC to implead them as a party, which was dismissed. The said order was affirmed by the Single Bench as well as Division Bench of this Court. Thereafter the appeal filed by Balkishan was also dismissed.
Respondent no. 2 Pradeep Kumar, thereafter filed execution petition. In the said Execution Petition, the appellants filed objection petition along with an application to stay the execution proceedings, which was dismissed by Executing Court. The said order was challenged before Single Bench by way of writ petition, which was dismissed vide order dated 5.4.2013. Being aggrieved with the said order of Single Bench, the present intra court appeal has been filed.
Learned counsel for appellants argued that appellants were necessary party and in view of observations made by the Division Bench of this Court, they filed objection petition, along with application for stay, before the Executing Court. He, therefore, submitted that impugned orders passed by Executing Court as well as Single Bench, are contrary to law and this appeal may be allowed and execution proceedings be stayed.
Learned counsel for respondent no. 2 pointed out that the special appeal preferred on earlier occasion by appellants, was decided in absence of respondent no. 2, therefore, this Court was having no knowledge about statement of Balkishan and presence of present appellants in the Court during eviction proceedings. The appellants had full knowledge about eviction proceedings but they did not file any application to implead them as party in the eviction proceedings. They filed an application only in appeal against eviction decree, which was dismissed and the order rejecting their application has been affirmed by the Single Bench as well as Division Bench of this Court. He, therefore, submitted that present proceedings are nothing except a mala fide action on the part of the present appellants to delay the eviction proceedings against their brother tenant Balkishan, against whom decree of eviction has been passed. He, therefore, submitted that the present intra court appeal be dismissed with heavy cost.
We have considered the submissions of learned counsel for parties and examined the impugned order passed by Single Bench as well as Execution Court and also the other order passed by this Court on earlier occasion and original order passed by Rent Tribunal, whereby eviction decree was passed against Balkishan. We have also examined a certified copy of statement of Balkishan/tenant which was referred to by the learned counsel for respondent no. 2 in presence of learned counsel for appellants. A copy of the statement was also shown to the learned counsel for appellants.
After considering submissions of learned counsel for parties, we are satisfied that present proceedings are not bona fide but they have been initiated only to delay the execution proceedings in eviction matter. It is also relevant to mention that the order passed by Executing Court, rejecting the application of appellants filed along with objection petition to stay the execution proceedings, was also challenged before appellate court i.e. Rent Appellate Tribunal, and during pendency of that appeal, without disclosing that fact, the present writ petition was filed before Single Bench, therefore, petitioner/appellants are also guilty of suppressing of material facts from this Court.
In view of above discussion, we find no fault in the order of Executing Court as well as Single Bench so as to interfere with the same in this appeal. The appeal is merit-less and the same deserves to be dismissed. The appeal as well as Stay Application No. 5007/2013, both are accordingly dismissed.