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Allahabad High Court · body

2015 DIGILAW 2071 (ALL)

Kashif Nawaz Khan v. Ashok Kumar Kothari

2015-07-23

RAN VIJAI SINGH

body2015
JUDGMENT Ran Vijai Singh, J. Heard Sri M.A. Qadeer, learned Senior counsel assisted by Sri M.H. Qadiee, learned counsel for the revisionist and Sri Pramod Jain, learned counsel for the opposite parties. 2. This S.C.C. revision has been filed against the judgment and decree dated 14.7.2015 and 17.7.2015 passed in Misc. Case No. 18 of 2015 in SCC Suit no. 26 of 2006 by which the application of the applicant filed under order 21 Rule 97 of the Code of Civil Procedure (C.P.C.) has been rejected. 3. The facts of this case in brief are that the opposite party no. 1 has filed Small Cause Case no. 26 of 2006 praying eviction of the opposite party no. 2 on the ground of default in payment of rent. The suit was decreed ex-parte on 13.3.2014. No application for setting aside the ex-parte order has ever been made by the opposite party no. 2. 4. The applicant- petitioner, who also claims to be tenant of the same shop on the basis of agreement in between the petitioner and opposite party no. 2, has filed present application under Order 21 Rule 97 of C.P.C.. His application has been rejected on the ground that earlier the applicant had filed an application under Order 1 Rule 10(2) of Code of Civil Procedure (in short C.P.C.) which was rejected and that the order has become final as the same had never been challenged. 5. The court also observed that principle of res-judicata is applicable at every stage of the proceedings and once the impleadment application of the applicant has been rejected that order has never been attained finality, the application under Order 21 Rule 97 of C.P.C. cannot be maintained by the same applicant. The court further observed that for entertaining the application under Order 21 Rule 97 C.P.C. the applicant has to show his independent right but in this case no independent right could be shown by the applicant as he alleges that there was some agreement in between the applicant-revisionist and opposite party no. 2 and there was no such agreement in between landlord and him. 6. Sri Qadeer submits that although there are number of grounds on which the impugned order can be challenged but to avoid further litigation he would not press his revision provided three months time is granted to vacate premises/shop in question. 2 and there was no such agreement in between landlord and him. 6. Sri Qadeer submits that although there are number of grounds on which the impugned order can be challenged but to avoid further litigation he would not press his revision provided three months time is granted to vacate premises/shop in question. Sri Jain, who appears for the opposite parties agrees to the proposal extended by learned counsel for the revisionist by submitting that for a period of three months the applicant be required to pay damages for use and occupation of the shop in dispute. 7. In view of the agreement in between the parties, it is provided that in case, the applicant revisionist files an undertaking before the Court below i.e Executing court/Additional District Judge/Special Judge, Prevention of Corruption Act, Meerut within a period of three weeks from today stating therein that he will vacate the premises in dispute by 31.10.2015, his eviction from the shop in dispute shall remain stayed to 31.10.2015. During this period the applicant is directed to pay an amount of Rs. 3,000/- per month towards damages for use and occupation of the shop in dispute. 8. It is observed that in case, the applicant chooses not to vacate the premises on or before 31.10.2015, the S.S.P., Meerut is directed to dispossess the applicant by using force and hand over the possession of the shop in question to the opposite party no. 1 within a week from the date of filing of the application by the opposite parties seeking eviction of applicant- revisionist alongwith certified copy of the order of this Court. 9. With the aforesaid observations, the revision is disposed of.