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2006 DIGILAW 2119 (ALL)

GULSHAN KUMAR CHABAQUE v. KUSUM CHABAQUE.

2006-08-29

TARUN AGARWALA

body2006
JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner alleges to be the owner of the property No. 184, Chabaque Building, District Meerut on the basis of a registered will dated 28.6.1989 executed by his father. The respondent No.1 is his real sister who instituted a suit No. 1095 of 1989 alleging that she was entitled to 1/4th share of the properties left by her father on the basis of a will dated 8.10.1983. The said will also contemplated that she would be entitled to receive the rent from the shops in question. This suit was decreed by a judgment dated 21.7.1999 holding that respondent No. 1 was the owner of 1/4th share of the property in dispute and that she was further entitled to receive the rent from the tenants occupying the shops. The petitioner filed an appeal which is pending till today. The appellate Court has stayed the decree pending the disposal of the appeal. 2. Notwithstanding the aforesaid, the petitioner filed a release application under Section 21(1)(a) of U.P. Act No.13 of 1972 against a tenant Sri Rajendra Singhal. The prescribed authority rejected the release application. The appeal filed by the petitioner was allowed. The tenant’s writ petition was dismissed and the same was eventually affirmed by the Supreme Court of India on 6.7.2006. Consequently, upon the release application being allowed, the petitioner was entitled for the possession of the shop in question. 3. It transpires that the respondent moved an application under Order 39, Rules 1 and 2 of the C.P.C. in which, an interim order dated 15.5.2006 was passed directing the parties to maintain status-quo. Subsequently, by an order dated 23.5.2006 the petitioner was restrained from taking possession of the shop in question till the disposal of the appeal. 4. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition. 5. It further transpires, that against the order of the appellate court, allowing the release application of the petitioner, the present respondent filed Writ Petition No. 11230 of 2006. This writ petition was dismissed by a judgment dated 3.3.2006 on the ground, that the respondent was not a party in the proceedings under Section 21(1)(a) of the Act nor had applied for an impleadment and, therefore, a liberty was given to the said respondent to file a regular suit or move a suitable application in the appeal filed by the petitioner. Based on the said order of the High Court, it is alleged that the respondent filed an application under Order 39 Rule 1 in which the order dated 15.5.2006 and the impugned order dated 23.5.2006 was passed by the appellate Court. 6. It further transpires that the respondent also filed suit No. 284 of 2006 praying that the order of the prescribed authority as well as of the appellate court arising out of the release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 be declared null and void and that a permanent injunction be granted against the petitioner from taking possession of the shop in question. This suit is also pending before the trial court. 7. Heard Sri Shiv Sagar Singh, the learned counsel for the petitioner and Sri Ravi Kant, the learned Senior Counsel assisted by Sri Puneet Kumar Gupta, the learned counsel for the respondents. 8. The learned counsel for the petitioner submitted that no injunction order could have been issued by the appellate court restraining the petitioner from taking possession of the shop in question pursuant to the release application filed under Section 21(1)(a) of U.P. Act No. 13 of 1972 being allowed which was eventually affirmed by the Supreme Court. Such restraint order would amount to nullifying the judgment which had been affirmed by the Supreme Court and therefore, the learned counsel for the petitioner submitted that the impugned order was wholly illegal and the application so filed, was a misuse of the process of the Court. On the other hand, the learned counsel for the respondents submitted that the petitioner had no right to take possession of the shop in question as he was neither the owner nor the landlord of the shop in question and that the answering respondent had been declared to be 1/4th owner of the property in question and was also entitled for the realization of the rent from the tenant. Sri Ravi Kant, the learned Senior Counsel further raised a preliminary objection that the application filed by the petitioner under Article 227 of the Constitution of India was not maintainable against the order dated 23.5.2006, inasmuch as, against the injunction order, the petitioner had a remedy of filing a miscellaneous appeal under Order 43, Rule 1(r) of the C.P.C. In support of his submission, the learned counsel for the petitioner has relied upon a decision of this Court in Mohd. Tahir Khan v. Mohd. Yunus Khan and others, 2006(2)ARC 665, in which it was held that against an order under Order 39 Rules 1 and 2, C.P.C. passed by the lower appellate court, during the pendency of a regular first appeal under Section 96 of the C.P.C., an appeal would lie under Order 43, Rule 1(r) and that no petition could be filed under Article 227 of the Constitution of India. 9. In view of the aforesaid decision in Mohd. Tahir Khan (supra) it is clear, that the petitioner has a remedy of an appeal under Order 43, Rule 1(r), C.P.C. However, the Court feels that on this technicality the application under Article 227 of the petitioner should not be dismissed on the ground of alternative remedy, inasmuch, if the application is dismissed on the ground of alternative remedy, the petitioner could always file an appeal before this Hon’ble Court. Consequently, no useful purpose would be served in dismissing the writ application on the ground of alternative remedy, inasmuch as, the appeal against the impugned order could still be filed before this Hon’ble Court. Consequently, the preliminary objection raised by the respondent is rejected. 10. Coming to the merits of the case, I find, that the impugned order dated 23.5.2006 restraining the petitioner from taking possession of the shop till the disposal of the appeal was without jurisdiction. No such order could be passed on the injunction application which would have the effect of nullifying the order passed on the release application under Section 21(1)(a) of U.P. Act No.13 of 1972 which was affirmed upto the Supreme Court. The order of eviction has to be given effect to and the same cannot be stayed on an injunction application. Consequently, the impugned order is without jurisdiction and cannot be sustained. The order dated 23.5.2006 is quashed. The writ petition is allowed. 11. The order of eviction has to be given effect to and the same cannot be stayed on an injunction application. Consequently, the impugned order is without jurisdiction and cannot be sustained. The order dated 23.5.2006 is quashed. The writ petition is allowed. 11. However, since the parties are before the Court, equities between the parties have to be taken care of and therefore, in exercise of the supervisory powers under Article 227 of the Constitution of India, I propose to pass the following order. 12. Admittedly, under the decree, the respondent has been held to be 1/4th owner of the property in question and also entitled for the realization of the rent. It is alleged that the petitioner is already in possession of more than 3/4th of the property in question and therefore, if the possession is taken by the petitioner it would be very difficult for the respondent to take possession from the petitioner. 13. Be that as it may. At the present moment the petitioner is entitled to take possession of the shop in question. The said orders on the release application are to be complied with until they are set aside by a court of law. In this regard, the answering respondent has already filed a suit. Consequently, in the opinion of the Court, it is open to the petitioner to take possession of the shop in question which would be subject to the result of the appeal No.171 of 1999 pending before the appellate court. It is further directed that the said appeal No. 171 of 1999 shall be decided by the appellate court after hearing the parties positively within three months from the date of the production of a certified copy of this order. Petition Allowed. ————