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2011 DIGILAW 2000 (ALL)

Usman Khan v. Nazma Begum

2011-08-25

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.;- 1. Supplementary affidavit has been filed today on behalf of the petitioner, the same may be taken on record. 2. This writ petition is directed against the order dated 24.05.2011, whereby the Additional District Judge, Court No. 7, Moradabad in S.C.C. Case No. 09 of 2008 (Smt. Nazma Vs. Usman) has rejected the application filed by the petitioner under order 7 Rule 11 of the C.P.C. Brief facts of the case are as follows:- 3. A suit for arrears of rent and ejectment was filed by the plaintiff-respondent on 14.05.2008. During the pendency of the said suit, the petitioner also filed a suit for cancellation of sale deeds dated 28.12.2002 and 20.03.2006 (which was registered as Original Suit No. 130 of 2008, Usman Khan Vs. Nazma Begum and others, and the same is pending before the Civil Judge (Junior Division), Thakurdwara, Moradabad) wherein it was further prayed that the proceedings of the present suit no. 9 of 2008 be stayed during the pendency of the said application and the said application was dismissed by the court below by order dated 19.05.2009. Thereafter, the petitioner filed yet another application under order 7 Rule 11 challenging the title of the petitioner and submitted that there is no landlord tenant relationship between the parties, as the suit is barred by law and not maintainable. The respondent filed its objection to the said application under Order 7 Rule 11 and the court below by order dated 24.05.2011 dismissed the aforementioned application under Order 7 Rule 11. Hence the present writ petition. 4. Learned counsel for the petitioner has submitted that the petitioner is the owner of the shop in question and the suit for cancellation of sale deeds is already pending before the Civil Judge, (Junior Division), Moradabad and is carrying on his business in the said shop and there is no landlord tenant relationship between the parties, thus it is not maintainable and is barred by law under Order 7 Rule 11 of C.P.C. 5. Heard learned counsel for the parties and perused the record. 6. A bare perusal of the record shows that the property in question was allegedly purchased by the plaintiff-respondent through two sale deeds dated 28.12.2008 and 20.03.2006 from the defendant-petitioner. Heard learned counsel for the parties and perused the record. 6. A bare perusal of the record shows that the property in question was allegedly purchased by the plaintiff-respondent through two sale deeds dated 28.12.2008 and 20.03.2006 from the defendant-petitioner. It appears that after the execution of the sale deeds, the petitioner became tenant of the disputed shop and committed default in payment of rent, as such a suit for arrears of rent and ejectment was filed by the respondent. After the filing of the aforementioned S.C.C. Suit No. 09 of 2008, the petitioner filed a separate suit for cancellation of sale deeds dated 28.12.2008 and 20.03.2006 and the said suit is still pending. In the meantime, the petitioner filed an application under Section 10 of C.P.C. for staying the proceedings of the application, which was dismissed by the court below by order dated 19.05.2009. Thereafter, an application under Order 7 Rule 11 of C.P.C. was filed, which was also dismissed on 24.05.2011. 7. The registered sale deeds are in favour of the respondent and the suit for cancellation of sale deeds has not yet been decreed, as such, it can not be said that the petitioner is not the owner of the disputed premises. As far as the issue whether there is landlord tenant relationship or not is an issue yet to be decided by the Court below after perusal of the pleadings and evidence on record. At present, thus it can not be said that the present suit is not maintainable and barred by law under Order 7 Rule 11 of the C.P.C. 8. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference by this Court. 9. In the result, the writ petition fails and is dismissed.