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2010 DIGILAW 610 (PNJ)

Kamlesh Rani v. Janeshwar Kumar

2010-01-25

S.D.ANAND

body2010
Judgment S.D.ANAND, J. 1. The challenge herein at the hands of the petitioner- objector, is to the order dated 25.8.2009 vide which the learned District Judge, Ambala, rejected an appeal filed against the order dated 26.5.2009 of the learned additional Civil Judge (Senior Division), Ambala Cantt. 2. The facts, apparent from the material obtaining on the file, may be indicated in the first instance for easy appreciation. Janeshwar Kumar filed a petition for ejectment of the tenant ( M/s Hira Lal Pawan Kumar sued through suresh Kumar) from the tenanted premises. The plea was allowed by the learned rent Controller, vide judgment dated 31.5.2008 and appeal filed against that order was dismissed by the learned Appellate Authority, vide judgment dated 30.1.2009. Suresh Kumar aforementioned having died during the pendency of the petition before the learned Rent controller, his sons Arun Kumar and Puneet Kumar were brought on record and they contested the petition which, as already indicated, came to be allowed by the learned Rent Controller, vide judgment dated 31.5.2008. The first appeal having been rejected by the learned Appellate Authority, Arun Kumar and Puneet kumar filed a revision petition which was also dismissed by this Court, vide judgment dated 27.3.2009. The special leave petition (bearing No.13896 of 2009)filed by aforementioned Suresh Kumar and Puneet Kumar was also rejected by the apex Court, vide order dated 2.6.2009. That order is extracted hereunder:- "The special leave petition is dismissed. However, the petitioners are granted nine months time To vacate the premises in question on their filing usual undertaking within a period of six weeks from today. It is made clear that if the petitioners do not vacate the premises in question on the expiry of nine months, they will be evicted by police force. " 3. The tenanted premises not having been vacated by Arun Kumar and puneet Kumar, the decree holder filed an execution application. 4. The petitioner herein, who is widow of the deceased Suresh kumar, filed objections to resist the execution of the ejectment decree by raising a plea that it (impugned decree) is not binding upon her and her two daughters Mst. Monika Jain and Mst. Nitika Jain who had not been brought on record as legal representatives of suresh Kumar deceased. The plea was declined by the learned Rent Controller, vide order dated 26.5.2009. Monika Jain and Mst. Nitika Jain who had not been brought on record as legal representatives of suresh Kumar deceased. The plea was declined by the learned Rent Controller, vide order dated 26.5.2009. The order was affirmed by the learned District judge, vide order dated 25.8.2009. 5. It was argued on behalf of the petitioner that the basic order granted by the learned Rent Controller deserves invalidation for the simple reason that the execution application could not have been transferred by the learned Civil Judge (Senior Division), Ambala to the Court of Sh. Parveen kumar, Addl. Civil Judge (Sr. division), Ambala Cantt, as the latter was having jurisdiction in the cantonment area; while the tenanted premises were located within the Ambala City jurisdiction. It was also argued that the learned executing Court acted in haste by ordering the delivery of possession with the police help and by breaking open of the lock. It was also argued that the petitioner herein could not be said to be bound by the impugned ejectment decree as she had not been brought on record as one of the legal representatives of deceased Suresh Kumar. 6. Insofar as the controversy about the jurisdiction is concerned, it merely deserves to be noticed to be discarded. The transfer/assignment of matters is within the administrative realm of the learned Civil Judge (Senior division) Ambala. It may have been assigned to Additional Civil Judge (Senior division), Ambala Cantt on account of administrative exigency of one hue or the other. The impugned order cannot be invalidated just on account of that averment on point of jurisdiction. The petitioner is also not a firmer footing in raising a grievance that the learned Executing Court unauthorisedly proceeded to grant police help in the execution of decree. It would be apparent from the above quoted orders granted by the Apex Court in SLP that the petitioner therein had been granted nine months time "to vacate the premises in question on their filing usual undertaking within a period of six weeks from today. It is made clear that if the petitioners do not vacate the premises in question on the expiry of nine months, they will be evicted by police force." insofar as the order on point of breaking open of the lock is concerned, the cue to the controversy is to be found to the order dated 15.5.2009 passed by the learned Addl. Civil Judge (Senior Division) Ambala Cantt. The Court had received a report from the Bailiff that the Judgment Debtor had locked up the tenanted premises. It was the Bailiff who, accordingly, made a request for an order to execute the warrant of possession by breaking open of the lock. It was in the light of the report made by the Bailiff that the learned Executing court granted the order dated 15.5.2009. 7. Insofar as the binding character of the impugned decree for ejectment is concerned, there is no controversy that the petitioner herein is real mother of Arun Kumar and Puneet Kumar. Her two sons (Arun Kumar and Puneet kumar) had been brought on record. There is plethora of law on the point that even one legal representative is competent to represent the estate of deceased. Even otherwise, it was held by this Court in Manju Devi Vs. Prem Parkash and others 2006 (2)Civil Court Cases 81 that it is the duty of legal representatives to get themselves impleaded and if the legal representatives do not do so, they cannot contend that decree is not executable against them. 8. The reliance placed by the learned counsel for the petitioner upon textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another air 1990 Supreme Couert 2053 is misconceived. In that case, the tenanted premises were under the occupation of one Gopal Kurup. He left behind a widow, two sons and daughter. After death of Gopal Kurup, the landldord filed eviction petition on plea of bonafide requirement and also default in the payment of rent. Only widow and one son of the deceased were impleaded as party. The suit was decreed exparte (apparently on account of default in the payment of arrears of rent ). The decree was executed and the possession obtained by the landlord. It was thereafter that one son of the deceased filed a suit on a claim that he was one of the tenants living in the premises at the time of death of his father Gopal Kurup. The Trial Court found, as a fact, that the petitioner therein was a co-tenant. It was under those circumstances that the Apex court held that the decree was not binding upon that son of the deceased. The Trial Court found, as a fact, that the petitioner therein was a co-tenant. It was under those circumstances that the Apex court held that the decree was not binding upon that son of the deceased. In that context, the following observations were recorded by the Apex Court:- "There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient as the Courts below have said that the decree was not binding upon the respondent. " 9. It is apparent from the above extracted observations of the Apex court that those have no relevance to the facts and circumstances of the present case. 10. In the light of the foregoing discussion, the petition is held to be devoid of merit and is ordered to be dismissed. Disposed of accordingly.