Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1064 (ALL)

Saleem Mohd v. Sangeeta Agarwal

2011-04-25

RAKESH TIWARI

body2011
JUDGMENT Hon. Rakesh Tiwari, J. Heard counsel for the petitioner and perused the record. 2. Counsel for the petitioner states that controversy involved in the present petition as well as Writ Petition No. 22131 of 2011, Anoop Singh Vs. Smt. Sangeeta Agarwal and others, is identical, hence both the petitions are connected and are being disposed of by this common judgment. 3. The petitioner has prayed for quashing of the orders dated 7.9.2010 and 24.3.2011 appended as annexure no. 4 and 8 respectively to the writ petition. A writ in the nature of mandamus is also prayed for commanding the respondents not to give effect to the aforesaid orders and restore possession of the petitioner in the shop in question. 4. Brief facts of the case are that landlady respondent claiming herself to be owner of the shop under tenancy of the petitioner, filed SCC suit no. 102 of 2003, Smt. Sangeeta Vs. Sri Saleem Mohd, for eviction of the petitioner from the shop in dispute and arrears of rent amounting to Rs. 4305.28P. alongwith future pendentelite and interest at the rate of 18% per annum. The petitioner contested the suit by filing written statement. The trial court after considering the arguments and evidence adduced by the parties, decreed the suit by judgment and order dated 28. 4.2010. 5. Aggrieved by the aforesaid judgment and decree, the tenant petitioner preferred SCC revision no. 33 of 2010, Sri Saleem Mohd. Vs. Sangeeta, in the court of District Judge, Agra which is pending final disposal. It may be pointed out here that no interim order was granted in the revision in favour of the tenant petitioner. 6. According to the petitioner, revision is continuation of the suit proceedings and the matter is subjudice before the revisional court. No interim order was granted in the revision. Counsel for the petitioner has vehemently argued that though counsel for the landlady had given an assurance that the petitioner shall not be evicted, yet execution application dated 28.7.2010 was filed before the executing court which was registered as execution case no. 47 of 2010. The aforesaid application appears to have been moved stating that since no interim order has been granted in the revision filed by the petitioner, order for delivery of possession of the accommodation in dispute may be passed. 47 of 2010. The aforesaid application appears to have been moved stating that since no interim order has been granted in the revision filed by the petitioner, order for delivery of possession of the accommodation in dispute may be passed. According to the petitioner, the aforesaid application has been allowed ex parte vide impugned order dated 7.9.2010, directing for issuance of Dakhal Parwana. It is argued that pursuant thereto, Dakhal Parwana was issued which was returned on 21.2.2011 with the report and no fresh Dakhal Parwana was issued thereafter. 7. Counsel for the petitioner further argued that without issuance of any fresh order of Dakhal Parwana or notice, information or opportunity of being heard to the petitioner, the execution clerk prepared and issued order for Dakhalnama and possession of the shop in question has been delivered by the petitioner and taken forcibly by the respondent on the basis of Dakhalnama fraudulently prepared. 8. He also submitted that an application dated 14.3.2011 paper no. 18-Ga was moved by the petitioner before the revisional court bringing to the notice of the court that possession has been forcibly and illegally taken away from him without any notice, information or opportunity of hearing to him during pendency of the revision no. 33 of 2010 and prayed therein for restoration of the possession. Another application paper no. 19-Ga was also moved by the tenant petitioner stating that the landlady is trying to demolish the shop in question and therefore appropriate orders may be passed in that regard. 9. On the aforesaid applications ( paper no. 18-Ga and 19-Ga), the revisional court has passed impugned order dated 24.3.2011 directing the landlady respondent not to demolish the suit property or change its nature and maintain status quo on the spot fixing the case on 28.3.2011 for final arguments. According to the petitioner, the revisional court has not decided petitioner's application paper no. 18-Ga for restoration of the possession to the petitioner on the ground that it shall be considered and decided at the time of final hearing in the revision. 10. According to the petitioner, action of the court below in not deciding his application paper no. 18-Ga is arbitrary as revision is continuation of the proceedings in the suit, hence decree passed for eviction of the petitioner is subjudice. 11. 10. According to the petitioner, action of the court below in not deciding his application paper no. 18-Ga is arbitrary as revision is continuation of the proceedings in the suit, hence decree passed for eviction of the petitioner is subjudice. 11. It is submitted by the counsel for petitioner that order dated 7.9.2010 passed by the court below for issuing Dakhal Parwana without giving any notice, information and opportunity of being heard, is illegal and improper and the court below ought not to have passed ex parte order for issuing Dakhal Parwana before the revision was finally decided and hence the order dated 7.9.2010 passed by the executing court is liable to be set aside being arbitrary, illegal and against the principles of natural justice. 12. It is stated that as the petitioner has been forcibly and illegally dispossessed from the shop in dispute on the basis of a fraudulent order of Amaldaramad issued and hence impugned orders dated 7.9.2010 and 24.3.2011 are liable to be quashed, allowing the petitioner's application (Paper no. 18-Ga) for restoration of possession of the shop in dispute to the petitioner. 13. Counsel for the petitioner has relied upon paragraph no. 17 of the decision of Apex Court rendered in United India Insurance Co. Ltd. Vs. Rajendra Singh and others ( AIR 2000 SC 1165 ), wherein it has been held that no Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would effect the very basis of the claim. 14. Admittedly, the revision filed by the petitioner is still pending. It appears from "Dakhal Nama" which is appended with the writ petition, that petitioner has handed over possession of the shop in dispute to the landlady. Relevant extract of the report dated 11.3.2011 by the Amin of civil court, in "Dahkal Nama " reads thus : " UPROKTA SAMPATEE PAR DICREEDAR KO KABJA DILAYA GAYA HAI EVAM DICREEDAR NE KABJA PRAPT KAR LIYA." 15. It is not in dispute that JSCC court has decided the suit in favour of the landlady and against the writ petitioner by giving cogent reasons for recording findings of fact against the tenant petitioner. It is not in dispute that JSCC court has decided the suit in favour of the landlady and against the writ petitioner by giving cogent reasons for recording findings of fact against the tenant petitioner. In the revision, since no interim order has been granted to the petitioner, as such the executing court on the application made by the landlady, proceeded to issue Dakhal Parwana, pursuant to which possession of the shop in dispute has been handed over by the petitioner to the landlady. The aforesaid facts establish that petitioner at present is not in possession of the accommodation in dispute. 16. The petitioner has alleged that some fraud has been played and as such order status quo ante may be passed in the facts and circumstances of this case. This Court is not inclined to decide the factual question of facts by recording evidence under Art. 226 whether any fraud has been played or not. It is for the court below to decide this issue and in the facts and circumstances that possession has already been handed over by the tenant petitioner to the landlady, the court below has rightly ordered that the application of the petitioner (paper no. 18-Ga) shall be decided at the time of final hearing as until and unless facts are decided, the question of status quo ante or any other order cannot be made. 18-Ga) shall be decided at the time of final hearing as until and unless facts are decided, the question of status quo ante or any other order cannot be made. Relevant extract of the impugned order in his regard is as under : ^^fuxjkuhdrkZ ds fo}ku vf/koDrk us cgl dh fd bl ckrphr ds nkSjku foi{kh us vpkud fuxjkuhdrkZ dh nqdku dks [kkyh djk fy;k tcfd nksuksa i{kksa esa okrkZ tkjh Fkh vkSj fuxjkuh dh lquok;h dh vfxze rkjh[k 6-3-11 fu;r dh FkhA vr% bl izkFkZuk i= 18x esa fuxjkuhdrkZ us izkFkZuk dh gS fd mls dCtk okfil fnyk;k tk;s] D;ksafd foi{kh us fuxjkuh ds nkSjku fMdzh dks fu"ikfnr djk fn;k vkSj dCtk ys fy;k gSA vr% fuxjkuhdrkZ ds fo}ku vf/koDrk us ;g mijksDr cgl dh fdUrq okn ds lEiw.kZ rF;ksa dks ns[krs gq, bl izkFkZuk i= ij xq.k nks"k ij bl Lrj ij dksbZ vkns'k djuk U;k;ksfpr ugha gksxk] D;ksafd bl izkFkZuk i= dks fdlh Hkh izdkj ds r; djus ls fuxjkuh ds fulrkj.k ds vfUre fu.kZ; ij izHkko iM+sxkA vr% izkFkZuk i= 18 x fuxjkuh ds fuLrkj.k ds vfUre le; foLr`r :i ls lquk tk;sxkA vr% izkFkZuk i= 18x dh lquok;h fuxjkuh dh vfUre lquok;h ds lkFk dh tk;sxhA** 17. So far as paragraph no. 17 of the decision of the Apex Court in United India Insurance Co. Ltd. case (supra) relied upon by the counsel for petitioner is concerned, there is no two opinion and the same does not help the petitioner at all. Rather it supports the view of the Court that it is for the court below before whom fraud is alleged to have been committed, to look into the facts for recall of its order or pass any other appropriate order as question of facts cannot be decided under Art. 226 of the Constitution by taking evidence in this jurisdiction. 18. It may also be stated here that revisional court had fixed 28.3.2011 for final arguments in the revision. Perusal of the order indicates that on 28.3.2011, adjournment was prayed for on behalf of the petitioner which was allowed and revision has been posted for 1.4.2011 for final arguments. It goes to show that petitioner is avoiding to argue his case before the revisional court which is already seized of the matter and has rushed to the High Court bypassing decision of the revisional court in the matter. 19. It goes to show that petitioner is avoiding to argue his case before the revisional court which is already seized of the matter and has rushed to the High Court bypassing decision of the revisional court in the matter. 19. For all the reasons stated above, no case for interference is made out in exercise of extra ordinary powers under Art. 226 of the Constitution of India. Both the writ petitions are accordingly dismissed. The petitioner may pursue his remedy in the pending revision. No order as to costs.