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2003 DIGILAW 942 (PNJ)

M/s R. K. Electrical Stores v. Jagdish Chander

2003-07-14

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The petitioner is aggrieved by the order of ejectment passed by the authorities below on the ground that the petitioner is in arrears of rent. The revision petition against the impugned order of ejectment passed by the authorities below came up for hearing before this Court on 6.5.2003 when the following order was passed :- "Admitted. Stay dispossession. However, the petitioner shall continue to deposit monthly rent by 10th of each month and shall deposit the entire arrears of rent within one month. To be listed for hearing after the decision of Civil Revision No. 1474 of 1988." 2. On 12.5.2003, the petitioner has moved an application before this Court alleging therein that the petitioner has been forcibly dispossessed from the shop in dispute on 7.5.2003 even after the stay order dated 6.5.2003 was brought to the notice of the Bailiff. The petitioner has moved the application under section 151 of the Code of Civil Procedure for restitution of the shop in dispute in view of stay of dispossession of the petitioner. The petitioner has produced Annexure P-A - the communication addressed by the petitioner to the Bailiff regarding the stay order passed by this Court. 3. Notice of the application was issued to the respondent-landlord who has filed reply to it. It is stated in the reply that on 7.5.2003 when the possession of the demised premises was taken, no stay order or any information regarding any stay was given by the petitioner or his son Pawan Kumar at the spot. It is stated that the possession of the shop in question was delivered by Pawan Kumar voluntarily and without any resistance. Pawan Kumar has written in his own hand on the warrants of possession that he has handed over the vacant possession of the shop in dispute. The warrants of possession was issued when the learned counsel for the petitioner was present during the execution proceedings. The respondent has also attached a copy of order dated 3.5.2003 where warrants of possession was ordered to be issued returnable on 2.8.2003. It has further been stated by the respondent that after having taken the vacant possession of the shop in dispute in execution proceedings, the respondent-landlord has given the same on rent to one Naveen Kumar Gupta on 8.5.2003. The rent deed dated 8.5.2003 has been produced as Annexure R-4. 4. Sh. It has further been stated by the respondent that after having taken the vacant possession of the shop in dispute in execution proceedings, the respondent-landlord has given the same on rent to one Naveen Kumar Gupta on 8.5.2003. The rent deed dated 8.5.2003 has been produced as Annexure R-4. 4. Sh. Naveen Kumar Gupta has also moved an application bearing C.M. No. 11039-CII of 2003 to the effect that the applicant has taken the shop in dispute on rent vide agreement dated 8.5.2003 and has installed STD therein and, therefore, he has a right to protect his possession and bona fide tenancy as having no knowledge of any stay order having been passed by the High Court. 5. I have heard learned counsel for the parties and am of the opinion that the application filed by the petitioner deserves to be accepted. 6. It is not disputed that the petitioner has been dispossessed on 7.5.2003 although order of stay of dispossession was passed by this Court on 6.5.2003. The dispute raised is whether the order of stay was communicated to the Bailiff or to the respondent-landlord at the time of execution of warrants of possession. According to the petitioner, the order of stay was communicated. However, the respondent-landlord has denied such communication and it was stated that the possession of the shop in dispute was surrendered voluntarily. Learned counsel for the respondent has relied upon the decision of this Court in the case of Khushi Mohd. v. Mahabir Parshad and others, 1992 P.L.J. 298 to contend that stay of execution of decree becomes effective from the date it is communicated to the Executing Court. Since the stay of dispossession was not communicated, it has not become effective on the date when possession of the shop in dispute was delivered. It is further contended that it is only the Executing Court which can pass the order of restitution of possession. 7. It is impossible to believe the story propounded by the respondent-landlord that the vacant possession of the shop in dispute was delivered by the son of the petitioner on 7.5.2003. It is further contended that it is only the Executing Court which can pass the order of restitution of possession. 7. It is impossible to believe the story propounded by the respondent-landlord that the vacant possession of the shop in dispute was delivered by the son of the petitioner on 7.5.2003. A perusal of the proceedings on the warrants of possession attached by the respondent-landlord shows that the Bailiff has written his report firstly on the warrants of possession to the effect that no stay order was shown and that Pawan Kumar, son of the tenant, had voluntarily vacated the shop in dispute. Thereafter, the signature of witnesses are appearing on the warrants of possession. It is only thereafter a line is recorded that the stocks have been removed from the shop and vacant possession has been delivered to the decree holder. Still further, order dated 3.5.2003 shows that the warrants of possession was made returnable on 2.8.2003 and counsel for the petitioner was not present on that date. 8. It is the categorical stand of the petitioner that the respondent-landlord brought with him 20 goonda elements and threatened him to vacate the shop else he would be thrown out of the shop. At that stage, son of the petitioner called the petitioner who was bed-ridden due to fracture of leg and also their counsel at Karnal who immediately reached at the spot and submitted an application to the Bailiff requesting him not to execute the warrants of possession. It is not possible for me to believe the endorsement of Pawan Kumar having been executed voluntarily, out of free will and without informing that the High Court has granted the stay of dispossession. Once the stay has been granted, there is no question of not informing the Bailiff regarding stay. The conduct of the respondent-landlord speaks volume about the high- headedness in executing the warrants of possession inasmuch as on 8.5.2003 the respondent-landlord has executed a rent deed in favour of Naveen Gupta letting out the shop in dispute to him. It is apparent that the respondent was aware of the stay order passed by this Court and attempts were made by the respondent to frustrate the order passed by this Court. This action of the respondent is wholly unjustified, illegal and rather contemptuous. 9. It is apparent that the respondent was aware of the stay order passed by this Court and attempts were made by the respondent to frustrate the order passed by this Court. This action of the respondent is wholly unjustified, illegal and rather contemptuous. 9. The judgment in Khushi Mohd.s case (supra) relied upon by the respondent is while interpreting the provision of Order 41 Rule 5 of the Code of Civil Procedure. However, the said judgment has not taken into consideration the decision of the Supreme Court in the case of Mulraj v. Murti Raghunathji Maharaj, AIR 1967 S.C. 1386, wherein it has been held that the order of stay in the execution matter is in the nature of prohibitory order and is addressed to the Court that is carrying out the execution. It has further been held that the stay order must come to the knowledge of the Court to which it is addressed before it takes effect. The Court may receive knowledge either on receipt of an order of stay from the Court that passed it or through one party or the other. In para No. 11 of the aforesaid judgment, the Supreme Court held as under :- "(11) Though the court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court has knowledge of the stay order. We are of the opinion that S. 151 of the Code of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so ....." 10. The argument of the respondent that it is only the Executing Court which could pass the order of restitution does not carry weight in the facts and circumstances of the case. The argument of the respondent that it is only the Executing Court which could pass the order of restitution does not carry weight in the facts and circumstances of the case. The revision petition is pending before this Court and the interim order passed by this Court is still operative. The learned Rent Controller is persona designata competent to devise his own procedure and, therefore, the High Court in exercise of the powers under section 15(6) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 can pass order which is just and proper. The action of the respondent-landlord is patently unjustified when he has dispossessed the petitioner in spite of the stay order passed by this Court. The subsequent act of letting out of the premises to Sh. Naveen Kumar, the next door neighbour, on the next day confirms such conduct of the respondent-landlord. 11. Therefore, I am of the opinion that the action of the respondent-landlord in executing the warrants of possession on 7.5.2003 is wholly unjustified and illegal. The petitioner is entitled to restitution of the possession. Consequently, the respondent-landlord is directed to restitute the possession to the petitioner-tenant within two weeks from today. However, if the respondent fails to hand over the physical possession of the premises in dispute to the petitioner within two weeks from today, the respondent shall be liable to be proceeded against under the provisions of the Contempt of Courts Act as well as the Executing Court shall issue warrants of possession directing the petitioner to be put in possession of the shop in dispute. Civil Misc. No. 871-CII of 2003 and Civil Misc. No. 11039-CII of 2003 stand disposed of.