Farukh Ahmad S/o Late Sri Mehendi Hasan v. Anil Dabral S/o Late Sri Nand Kishore Dabral
2016-06-27
SERVESH KUMAR GUPTA
body2016
DigiLaw.ai
JUDGMENT : 1. By means of this revision, the tenant Farukh Ahmed has challenged the order dated 31.05.2016 passed by the District Judge, Pauri Garhwal in J.S.C.C. Execution No.1 of 2015, whereby the execution application paper No.C-3 moved by the landlord Dr. Anil Dabral was allowed rejecting the objections moved by the tenant and at the same time, the eviction warrant was directed to be issued mandating the tenant to vacate the premises, in question, within a period of one month from the date of such order. 2. Having heard the rival contentions put forth by learned Counsels for either party and perusing the impugned order dated 31.5.2016, it is evident that the basis of such execution is the compromise decree dated 21.12.1989 passed between the parties in S.C.C. Case No.6 of 1988. The said suit was launched by late Dr. Nand Kishore Dabral, father of Dr. Anil Dabral (respondent herein), wherein a compromise was arrived at between the parties, which has duly been discussed in the impugned order as well. 3. It is pertinent to mention here that late Dr. Nand Kishore Dabral had also instituted a Prescribed Authority Case No.37 of 1986 against another tenant Mr. Sharif Ahmed, which was decided on 25.5.1998 asking the tenant to vacate the building. Against that order, the Appeal No.29/1998 was preferred by Mr. Sharif Ahmed which was allowed and thus, the decree of eviction, passed in favour of the landlord, was set aside. The landlord then preferred the Writ Petition (M/S) No.3069 of 2001, which was allowed by a co-ordinate Bench of this Court on 20.7.2004 and thus, the decree of eviction was restored. A special leave petition filed there-against by the tenant was also dismissed on 10.12.2004, with the result, Mr. Sharif Ahmed vacated the tenanted premises on 23.5.2005 pursuant to the Execution Case No.4 of 2004. 4. The contention of learned Counsel for the revisionist/tenant Farukh Ahmed is that the execution launched against him is barred by limitation since as per the terms of compromise, arrived at on 21.12.1989, the execution could have been preferred within twelve years when the P.A. Case No.37 of 1986 against Mr. Sharif Ahmed was finally decided on 20.2.1999 in Appeal No.29 of 1998, where-against no further appeal has been provided under the Act.
Sharif Ahmed was finally decided on 20.2.1999 in Appeal No.29 of 1998, where-against no further appeal has been provided under the Act. The period of limitation would, therefore, run from 20.2.1999 and as such, the execution proceedings could have been launched latest by 20.2.2011 but it has been put into motion in the year 2015. It was argued that thus, the case is barred by limitation. I do not find any force in this contention for the simple reason that on 20.2.1999, there was no decree existing in favour of the landlord and against Mr. Sharif Ahmed. Although, no statutory provision is there in the Act No.13 of 1972 for preferring a further appeal but presentation of a writ petition or invoking the jurisdiction of the Constitutional Court under Article 227 of the Constitution of India, where no second appeal is provided, is also a salutary right of a person who feels himself disgruntled by the order of any judicial authority, either in suit or in the first appeal, and this writ petition could be decided on 20.7.2004 in favour of the landlord viz. the landlord could find the decree in his favour on the strength of the judgment passed by the High Court, therefore, the time limitation of twelve years, so as to put the execution into motion, must be reckoned from that date, and therefore, he was entitled to move the execution application by 20.7.2016, however, he has already moved such application at the beginning of 2015 itself, therefore, the contention raised by learned Counsel for the revisionist has no force and thus, discarded. 5. Otherwise also, it was also one of the stipulations of the Compromise dated 21.12.1989 to the effect that Mr. Farukh Ahmed shall vacate the tenanted premises after expiry of one-month period from the date when Mr. Sharif Ahmed delivers the possession of his own tenanted premises to the landlord, or is evicted by the Court. In execution of the decree, since Mr. Sharif Ahmed could vacate the shop only on 23.5.2005, so it was the bounden duty of the revisionist to handover the possession of the rented premises immediately after 23.6.2005, but he did not do so.
In execution of the decree, since Mr. Sharif Ahmed could vacate the shop only on 23.5.2005, so it was the bounden duty of the revisionist to handover the possession of the rented premises immediately after 23.6.2005, but he did not do so. This way, the tenant has violated the terms of the compromise decree and therefore, the landlord has got every right to initiate the execution proceedings against him within twelve years from the date the cause of action arose, as such, the date of putting the decree into execution is within such limitation. 6. It was lastly argued on behalf of the revisionist that by instituting another SCC Case No.3 of 2003 against Mr. Farukh Ahmed, the landlord has waived the fruits of the compromise decree, is wholly unsubstantial because by issuing a notice on 19.12.2002 thereby demanding the rent and addressing Mr. Farukh Ahmed as ‘tenant’ and thereafter, launching the Suit for eviction, cannot be accepted in the sense that this revisionist had been accepted as the tenant by holding over. Terming the revisionist as ‘tenant’ would not wipe out the legal effect of the statutory provision, where he had become an un-authorized occupant after one month since the judgment dated 20.7.2004 passed in the writ petition against Mr. Sharif Ahmed, or in any case, after one month w.e.f. 23.5.2005 when Mr. Sharif Ahmed had vacated another tenanted premises. Mere addressing by the word ‘tenant’ cannot change his status of unauthorized person in the premises. 7. In view of what has been set forth above, I do not find any force in this revision which is liable to be dismissed at the threshold itself. Revision is dismissed accordingly.