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2014 DIGILAW 654 (AP)

Javeed Khan v. Mirza Taher Ali Baig

2014-06-03

V.SURI APPA RAO

body2014
ORDER : V. Suri Appa Rao, J. 1. Since both the matters are arising out of same subject property, they are taken up at the request of both the Counsel, heard together and are being disposed of by this common order. Petitioner-Javed Khan filed Civil Miscellaneous Appeal No. 279 of 2013 aggrieved over the order dated 3.8.2010 passed in EA No. 470 of 2007 in EP No. 54 of 2007 whereby and whereunder I Senior Civil Judge, City Civil Courts at Hyderabad, allowed the application filed under Order XXI Rules 97 and 99 read with Section 151 of the Code of Civil Procedure seeking to restore possession of E.P. Schedule property from the petitioner therein to Mirza Taher Baig (respondent herein). 2. Petitioner also filed civil revision petition being aggrieved over the order dated 14.2.2012 passed in EA No. 135 of 2011 in EP No. 28 of 2011 whereby and whereunder the learned I Senior Civil Judge, City Civil Courts at Hyderabad, dismissed the petition filed by the petitioner herein under Order XXI Rule 106(3) read with Section 151 of the Code of Civil Procedure seeking to set aside the ex parte order dated 13.4.2011 in EP No. 28 of 2011. 3. Brief facts of the case leading to filing of above cases are that the revision petitioner herein filed OS No. 4207 of 2004 for specific performance against his vendor viz., Mohammed Abdul Azeem, which was decreed. Thereupon, petitioner filed EP No. 54 of 2007 and got the sale deed executed in his favour vide Document No. 1012 of 2007 pursuant to which vacant possession of suit property was also delivered to the petitioner through bailiff by dispossessing the respondent-Mraz Taher Ali Baig (for the sake of convenience hereinafter referred to as 'tenant'). The petitioner states that the respondent filed EP No. 28 of 2011 for execution of order of Court below and that notice of the said E.P. was not served on the petitioner and it was served on the sister of the petitioner by name Nikkat Sultana and that report of the service of notice was fabricated by the respondent as his sister was hospitalized on that day, and the same is liable to be set aside. 4. 4. The Court below by its impugned order dismissed the application filed by the revision petitioner to set aside the ex parte decree passed in EP No. 38 of 2011 firstly on the ground of limitation and secondly on the ground that report of the Process Server of the Court clearly indicated that the notice in E.P. was served on the sister of the revision petitioner. 5. Insofar as EA No. 470 of 2007 preferred by tenant, the Court below restored the possession of the schedule property in favour of the tenant basing on Ex. P1 lease deed dated 16.7.2002 entered between the tenant and his landlord viz., Mohd. Abdul Azeem and considering the fact that the tenant was doing business in schedule promises. 6. Challenging the said orders, the petitioner preferred the above CRP and CMA. 7. Heard both sides and perused the material on record. 8. In CMA, the learned Counsel for the petitioner contended that Ex. P1-lease deed basing on which the Court below restored possession of schedule property is dated 16.7.2002 for a period of eleven months, which expired by 16.6.2003 i.e. long back. As such, the Court below ought not have restored the possession to tenant. The learned Counsel for the petitioner also contended that the sister of the petitioner was hospitalized on the alleged date of service of notice by the respondent on her on behalf of the petitioner, as such, the Court below erred in holding that notice was served on the petitioner. 9. Learned Counsel for the petitioner submitted that the Senior Civil Judge has disposed of the petitions filed by the respondent without following the due procedure and that the trial Court ought to have disposed of the claim petition as if it is a suit. In support of his contention he placed reliance in Arif Abdul Ghani and others v. S. Maheshwar Rao and others, 1999 (4) ALD 300 , wherein this Court held that: "A claim petition filed under Order 21 Rule 97 or 99 CPC, as the case may be, is required to be decided not in a summary manner. In support of his contention he placed reliance in Arif Abdul Ghani and others v. S. Maheshwar Rao and others, 1999 (4) ALD 300 , wherein this Court held that: "A claim petition filed under Order 21 Rule 97 or 99 CPC, as the case may be, is required to be decided not in a summary manner. All the questions relating to right, title or interest in the property, which is the subject-matter of execution may have to be decided by the Court." In Zafu Javeed v. V. Narasimha Reddy and others, 1998 (6) ALD 663 : 1998 (6) ALT 608 , relied on by the Counsel for the petitioner, this Court held that: ".......not only a judgment-debtor but a stranger who is occupying the decretal property is entitled to make objections and the said objections can be adjudicated and orders could be passed. Such decrees are treated as if they are decrees and liable to be appealed to which an appeal lies against original decree." Relying on the above decisions, learned Counsel for the petitioner submitted that the trial Court has not passed order in EP No. 470 of 2007 by following the procedure contemplated under Order 21 Rule 97 of CPC. Therefore, the order passed by the trial Court in EP No. 470 of 2007 is liable to be set aside. 10. Per contra, the learned Counsel appearing for the tenant submitted that seeking setting aside of ex parte decree was filed after long delay and that in pursuance of the order of the Court below, possession of the schedule property was redelivered to the tenant by the Process Server of the Court under due process, such, CMA is liable to be dismissed as infructuous, and there are no merits in CRP also. 11. According to the petitioner, the notice in EP No. 28 of 2011 was served on his sister. Learned Senior Civil Judge on evidence observed that the petitioner did not chose to examine his sister nor he chose to file affidavit of his sister to substantiate that his sister did not receive notice in EP No. 28 of 2011 and accepting the report of the Process Server the Court below held that the petitioner was aware about the service of notice. Added to that in EA No. 470 of 2007, the petitioner contested the matter by engaging advocate and filing counter. Added to that in EA No. 470 of 2007, the petitioner contested the matter by engaging advocate and filing counter. Therefore, the contention of the revision petitioner that he was not served with notice cannot be accepted. 12. Admittedly, notice in EP No. 28 of 2011 was served to the petitioner through his sister Nikkat Sultana on 5.4.2011. Thereafter, the petitioner filed EA No. 135 of 2011 to set aside the ex parte order dated 13.4.2011 passed in EP No. 28 of 2011. The Court below dismissed EA No. 135 of 2011 on the ground that the revision petitioner failed to prove that the respondent/tenant played fraud and obtained impugned order in EP No. 28 of 2011. In CMA No. 279 of 2013, the appellant challenged the order dated 3.8.2010 passed by the I Senior Civil Judge in EA No. 470 of 2007. In the said EA No. 470 of 2007 the petitioner, M. Javed Khan is arrayed as first respondent and Mohd. Abdul Azeem, original owner of the schedule premises is arrayed as second respondent. Both of them remained ex parte. Therefore, learned Senior Civil Judge passed order in EA No. 470 of 2007 directing the petitioner to re-deliver the EP schedule premises to the respondent herein within 30 days failing which the respondent herein is entitled for delivery of possession through process of the Court. The petitioner challenged the above order on the ground that the alleged rental agreement dated 16.7.2002 is only for a period of 11 months and it has to be renewed from time to time, but not renewed after expiry of lease period w.e.f. 16.6.2003. Therefore, there is no extension of lease in favour of the tenant. Learned Senior Civil Judge allowed EA No. 470 of 2007 on the ground that the respondent/tenant is doing business in EP schedule premises under the name and style of ARK Enterprises Travel Agency and that he is the lawful tenant of the schedule premises. Therefore, allowed the petition filed by the respondent directing the petitioner to re-deliver EP schedule premises. In the said application filed by the respondent for re-delivery is on the ground that he is in possession and enjoyment of the property as lawful tenant. The petitioner and the original landlord i.e., M. Mohd. Abdul Azeem remained ex parte. 13. Therefore, allowed the petition filed by the respondent directing the petitioner to re-deliver EP schedule premises. In the said application filed by the respondent for re-delivery is on the ground that he is in possession and enjoyment of the property as lawful tenant. The petitioner and the original landlord i.e., M. Mohd. Abdul Azeem remained ex parte. 13. Learned Senior Civil Judge after considering the entire aspects passed reasoned order in EA No. 470 of 2007 and directed the petitioner to re-deliver EP schedule property and also dismissed the petition i.e., EA No. 135 of 2011 filed by the petitioner to set aside the ex parte order dated 13.4.2011 in EP No. 28 of 2011 on the ground that the petitioner was duly served with notice through his sister and also on the ground that the petitioner failed to make out case for setting aside the order dated 13.4.2011. 14. Learned Counsel for the respondent/tenant submitted that the respondent, who is in possession of the property as tenant cannot be dispossessed without due process of law. In Samir Sobhan Sanyal v. Tracks Trade (P) Ltd. and others, (1996) 4 SCC 144 , wherein the Supreme Court held that: "the person in possession of the property cannot be dispossessed without due process of law. When appellant was inducted into the premises as a tenant on behalf of a company pursuant to a lease entered into between the company and landlady. Subsequently agreement of sale of the premises entered into by the landlady with respondent 6 despite the respondent being aware of continuance of possession and enjoyment of the premises by the appellant. Appellant's dispossession from the premises without any decree or order of eviction, held, unlawful being without any due process of law." 15. The petitioner/landlady purchased the property under agreement of sale executed by one M. Mohd. Abdul Azeem, thereafter he filed OS No. 4207 of 2004 for specific performance of contract and obtained decree. He filed EP No. 54 of 2007 and got the sale deed executed in his favour through Court pursuant to the sale deed possession of the suit property was delivered through bailiff, though the respondent was in possession of the suit property as tenant under M. Mohd. Abdul Azeem. Therefore, the respondent/tenant filed EA No. 470 of 2007 for restoration of the suit property. Abdul Azeem. Therefore, the respondent/tenant filed EA No. 470 of 2007 for restoration of the suit property. The trial Court directed the petitioner for re-delivery of property on the ground that the respondent being tenant cannot be evicted without following the due process of law. The petitioner, therefore, challenged the order passed in EP No. 470 of 2007 and also the ex parte order passed in EP No. 28 of 2007 on the ground that he was not served with notice in EP No. 28 of 2011. 16. The trial Court after considering the evidence on record observed that the notice in EP No. 28 of 2011 was served through his sister by Process Server and that re-deliver was ordered in EA No. 470 of 2007 when the petitioner and the original landlord remained ex parte. 17. Admittedly, the respondent/tenant is not a party to the suit filed by the petitioner/landlord for specific performance of contract against his vendor under agreement of sale. Ex. P1 lease deed dated 16.7.2002 clearly indicates that the respondent/tenant has taken out the premises on lease and carrying on business under the name and style of VRK Enterprises, Travel Agency. The respondent has thus proved that he was tenant on that day. As the respondent is in possession and enjoyment of the property as tenant, the tenant cannot be dispossessed from the suit premises without following due process of law. Admittedly, the respondent is not claiming title over the suit premises and he is claiming to be the tenant and he is in possession and enjoyment of the same. Therefore, he cannot be evicted from the premises without due process of law. 18. In view of the above facts and circumstances of the case, the trial Court has rightly passed the order in EA No. 470 of 2007 and EP No. 28 of 2011 after service of notice to the petitioner/tenant. Therefore, I do not see any grounds to interfere with the order passed by the trial Court. For the above reasons, the civil revision petition and CMA being merit less are dismissed. There shall be no order as to costs. Petition dismissed