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2015 DIGILAW 1466 (JHR)

Pawan Kumar Jhunjhunwala v. Hargovind Singh

2015-11-26

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 26.09.2015 in Misc. Case No. 99 of 2015 whereby, petition under Order XXI Rule 97, 99 and 101 CPC has been rejected, the present writ petition has been filed. 2. The petitioner claims himself a tenant in respect of a room about 177 sq. ft. in area in Kedia House situated at Ranchi. It is stated that the said room was let out to the father of the petitioner by Kashi Prasad Kedia, the erstwhile owner of the Kedia House who had taken loan of Rs. 20,000/- from the father of the petitioner on 01.07.1961, acknowledged by money receipt dated 01.07.1961. The loan was availed in cash on payment of annual interest at the rate of 12% and it was agreed between the parties that the interest amount would be adjusted against the rent in respect of the tenanted premises. In the said premises the mother of the petitioner, and his uncle namely, Om Prakash Jhunjhunwala carried a partnership business in the name and style of “Pawan Hardware Stores” since 1962 and the said partnership continued till 1982. Subsequently, the premises was used by the petitioner for his own business in the name and style of “M/s Natraj Industries”. With the consent of landlord a part of the said premises was also used by his uncle Om Praksh Jhunjhunwala for running Pawan Hardwares Store, independently. The son of the erstwhile owner instituted a proceeding before the House Rent Controller for fixing fair rent with respect to different premises and it was registered as BBC Case No. 51 R 15 of 1992 in which final order was passed on 14.06.2006. The said order was challenged by different tenants in BBC Appeal No. 39 R 15 of 2006 however, the appeal was dismissed and the order passed by the House Rent Controller attained finality. One Hargovind Singhrespondent no. 1 claiming purchase of Kedia House instituted eviction suit being ETS No. 05/2008. In the said suit M/s Dwarka Das Mangal Chand was arrayed as defendant however, the petitioner was not made a party therein. The suit was decreed vide judgment and order dated 04.09.2013 and the defendant was directed to vacate the suit premises within one month. The respondent no. In the said suit M/s Dwarka Das Mangal Chand was arrayed as defendant however, the petitioner was not made a party therein. The suit was decreed vide judgment and order dated 04.09.2013 and the defendant was directed to vacate the suit premises within one month. The respondent no. 1 thereafter, instituted Execution Case No. 01 of 2013, in which the petitioner filed a petition under Order XXI Rule 97, 99 and 101 CPC which was registered as Misc. Case No. 99 of 2015. The petition filed by the petitioner has been dismissed vide order dated 26.09.2015. Aggrieved, the petitioner has filed the present writ petition. 3. The learned counsel for the petitioner submits that the petitioner is a tenant and he is in possession of a shop and therefore, he can resist the execution of decree in Eviction Title Suit No. 05 of 2008. Moreover, the petitioner can be evicted from the tenanted premises, only in accordance with law and he has not to wait for his dispossession to participate in the execution proceeding. The learned counsel has relied on decision in “Shreenath & Anr. Vs. Rajesh & Ors.” (1998) 4 SCC 543 . 4. The Eviction Title Suit No.05 of 2008 was instituted by Hargovind Singh who purchased the house along with a part of land in M.S. Plot No. 1767, bearing Municipal Holding No. 672/P and 672/D, new Holding No. 1296 within new Ward No. 6, Cart Sarai Road, Upper Bazar, Ranchi from Manmohan Kedia. The petitioner admits that Manmohan Kedia was the owner of the aforesaid properties. The petitioner claimed that Kashi Prasad Kedia executed a money receipt for Rs. 20,000/- in the name of Bishwanath Jhunjhunwala, for which interest @ 12% per annum was to be paid and in lieu of the interest for the aforesaid loan, Kashi Prasad Kedia leased out one room to Bishwanath Jhunjhunwala, father of the petitioner. The petitioner has claimed that subsequently he started a business in the name and style of M/s Natraj Industries and he is still in possession of the shop. The petitioner has claimed that subsequently he started a business in the name and style of M/s Natraj Industries and he is still in possession of the shop. However, in his application dated 21.07.2015, the petitioner has not averred that in respect of the alleged tenancy in question by virtue of the money receipt dated 01.07.1961 executed by Kashi Prasad Kedia in the name of his father namely, Bishwanath Jhunjhunwala, he approached the plaintiff and the plaintiff consented or denied his continued tenancy in the tenanted premises. Eviction Title Suit No. 05 of 2008 was filed for eviction of M/s Dwarka Das Mangal Chand from the suit schedule property, the description of which is given as under:- “3. All that piece and parcel of land along with three shop rooms, verandah, cash room and chhaja being portion of M.S. Plot no. 1767, sub plot no. 1767/C and Municipal Survey plot no. 1768 sub plot no. 1768/C corresponding to Municipal holding no. 672 and present holding no. 1296 within old ward no. 2 and new ward no. 6 of the Ranchi Municipal Corporation situated at Cart Sarai Road, Upper Bazar in the town of Ranchi, Police Station Kotwali, District-Ranchi and bounded and butted as follows:- North:-Platform and thereafter Cart Sarai Road. South:-Portion of Holding no. 1296 of the plaintiff. East:-Portion of holding in occupation of tenant Hiralal Bhagwati Prasad. West:-Stair Case of the plaintiff.” 5. The petitioner was examined as defendant witness no. 10 in the eviction suit and he has admitted that he knows the plaintiff and the defendant, both. He admits that he has seen Kedia House situated at Cart Sarai Road and the said property belongs to Manmohan Kedia. He further deposed that the defendant is tenant in the Kedia House for the last 6070 years and there are other tenants also however, he did not disclose that he is also a tenant. He has further deposed that against the rent paid, a receipt is issued by the authorised person in the name of the tenants. The petitioner stated that he visits the shop of Rakesh Jhunjhunwala, owner of M/s. Dwarka Das Mangal Chand and he knows that a development agreement for constructing a multistory building, after demolishing Kedia House has been executed. He has further deposed that against the rent paid, a receipt is issued by the authorised person in the name of the tenants. The petitioner stated that he visits the shop of Rakesh Jhunjhunwala, owner of M/s. Dwarka Das Mangal Chand and he knows that a development agreement for constructing a multistory building, after demolishing Kedia House has been executed. Interestingly, in his deposition in Eviction Title Suit No. 05 of 2008, the petitioner has nowhere stated that he is also a tenant in the Kedia House. In his application under Order XXI Rule 97, 99, 101 C.P.C., the petitioner has not produced any evidence to primafacie indicate that he has been a tenant of the shop situated between the shops of M/s. Dwarka Das Mangal Chand and M/s Hiralal Bhagwati Prasad. In the said application the petitioner has averred as under:- “9. That the opposite party No. 2 was paying rent to erstwhile owner Manmohan Kedia in respect of only two shops only @ Rs. 465/- per month including the water charges, but the opposite party No. 1 filed the suit for eviction in respect of 3 shops and he included the shop in occupation of petitioner clandestinely and obtained decree in respect of 3 shops.” 6. In “Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr.”, (1998) 3 SCC 723 , the Hon'ble Supreme Court has held that, the trial court is not obliged to determine a question merely because the resister has raised it. The Hon'ble Supreme Court has held thus:- “12. The words “all questions arising between the parties to a proceeding on an application under Rule 97” would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section”. 7. A perusal of judgment and order dated 04.09.2013 in Eviction Title Suit No. 05 of 2008 discloses that the trial court noticed the evidence of the petitioner who was examined as D.W. 10. As noticed above, the petitioner admitted that the plaintiff has purchased the suit property from Manmohan Kedia. The description of the suit property in Eviction Title Suit No. 05 of 2008 discloses that the suit was filed in respect of 3 shops. The petitioner though was examined as D.W. 10 in the said suit, now he has claimed that the plaintiff clandestinely included the 3rd shop which is in possession of the petitioner and obtained a decree in respect of 3 shops. The judgment and decree in Eviction Title Suit No. 05 of 2008 has been affirmed by the Appellate Court in T.A. No. 74 of 2013. The trial court while dismissing application under Order XXI Rule 97, 98 and 101 C.P.C., has noticed that had there been truth in the plea of the petitioner, after he was examined as a witness in the suit he would have got himself impleaded in the suit. In respect of the Natraj Industries which the petitioner claims running, he never deposed in the eviction suit. From the materials brought on record, it is apparent that the petitioner failed to produce any evidence to primafacie, establish that he has a subsisting independent right in the property in question. I am of the opinion that the trial court rightly refused to entertain the plea of the objector and dismissed application dated 21.07.2015. 8. Considering the aforesaid facts, I find no merit in the writ petition and accordingly, it is dismissed.