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Meghalaya High Court · body

2019 DIGILAW 141 (MEG)

Babulal Sharma v. Sant Kumar Bajoria

2019-05-08

MOHAMMAD YAQOOB MIR

body2019
JUDGMENT : 1. The respondents, owners of the suit property filed a suit for eviction bearing Title Suit No. 2 (H)/1983 against the defendants (petitioner herein) before the court of Assistant District Judge, Shillong on two grounds, (i) for bonafide personal requirement and (ii) default in payment of rent. The suit was dismissed vide judgment dated 23.12.1988. Appeal preferred was allowed. 2. Aggrieved whereof, the respondents filed CRP No. 8 (SH)/1991 which was allowed and case was remanded back to the learned District Judge (Appellate Court) for fresh decision. 3. The Appellate Court decided the appeal afresh on 24.09.2008 and finding was recorded that the petitioners (defendants) were defaulters. Against said judgment, petitioners herein filed CRP No. 48 of 2013, which has been disposed of vide judgment dated 06.11.2015. 4. In para 20 of the said judgment it has been recorded, that the findings of the learned trial court as well as first Appellate Court for not accepting the ejectment on the ground of bonafide requirement has attained finality. 5. In para 21 of the judgment it has been recorded that the defendants have been in occupation of the suit premises for the last several decades, they are going to be evicted only on the ground of default in payment of rent, they should in the interest of justice be given a chance to clear the arrears within a reasonable time, if they want to continue in possession of the suit premises. But shall pay the rent at the prevailing rate from January 2015. The prevailing rent shall be the average of the rent paid by the tenants of the neighbouring shops or tenanted premises. Further, it has been observed that both the parties shall settle the prevailing rent of the suit premises to be paid by the defendants within the period of three months from the date of judgment. The defendants were to clear the payment of rent at the prevailing rate as calculated and settled by the parties in the manner indicated, from the month of January 2015 and also the arrears of rent due prior to January 2015 at the old rate within a period of four months from the date of settlement of the prevailing rent of the suit premises and shall continue to pay the rent at the prevailing rate as calculated by the parties, if he continues to posses the suit premises. It has been made clear that in case the defendants fail to pay the arrears of rent within four months indicated above and also the current rent so calculated in the first week of every month on its becoming due, the defendants shall be evicted from the premises as per judgment and decree of the first Appellate Court. 6. Decree holder (respondents herein) have filed the petition for execution of the judgment and decree before the executing court projecting therein that the petitioners (Judgment-Debtors) have not paid the rent in compliance to the judgment. The Judgment-Debtors were put on notice, they have been given umpteen opportunities for filing their objections which they have not availed as is recorded in the order dated 24.04.2019. 7. The Judgment-Debtor No. 6 filed an application questioning the maintainability of the execution petition, same was rejected vide order dated 01.04.2019, the execution petition as such was listed for final hearing. The Judgment-Debtor from time to time sought adjournments, finally on 24.04.2019 further adjournment was sought which was not granted, accordingly, hearing was closed, the matter was fixed for 01.05.2019. On 01.05.2019, learned executing court has passed a precise order providing for preparing a warrant of execution of the judgment and decree dated 24.09.2008 and fixed the petition for report. It appears that the warrant proceedings for execution are being carried into effect which has the effect of evicting the petitioners from the rented premises which include the eviction from the premises where he resides. Aggrieved whereof, instant petition has been filed. According to learned counsel for the petitioner (Judgment- Debtor), the judgment to the extent, it was possible to the Judgment-Debtor has been complied with. Supporting his submission states that the amount of rent was deposited by Bank Draft amounting of Rs. 1,800/- on 22.02.2015, thereafter, the Judgment-Debtor had deposited the rent before the Assistant District Judge which amount in turn has been deposited in the Treasury. In support of this submission, learned counsel has shown various receipts of deposit. 8. Learned counsel for the respondents (decree holder) highlighted that basically, the Judgment-Debtors are prolonging the matter, they have not paid the rent in the manner it was required to be paid neither it was ever notified to the decree holder. In support of this submission, learned counsel has shown various receipts of deposit. 8. Learned counsel for the respondents (decree holder) highlighted that basically, the Judgment-Debtors are prolonging the matter, they have not paid the rent in the manner it was required to be paid neither it was ever notified to the decree holder. Furthermore, the Judgment-Debtors have not projected or filed any response despite umpteen opportunities given to them by the executing court, therefore, now it shall not be open for them to project that they are and have been regularly depositing the rent. 9. Regarding the payment of rent, Bank Draft then, the receipts apparently, appears to be valid what has been the cause for not notifying the payment to the decree holder is not forthcoming. No doubt, the Judgment- Debtor should have filed the response or otherwise, apprised the executing court about the deposit of the rent and cause for non-settlement of the prevailing rent which he has not done for long time but the question is as to whether on such count, default can be attributable to the Judgment-Debtor. 10. Admittedly, the parties have not settled the prevailing rent of the suit premises as was required to be done within three months from the date of the judgment dated 06.11.2015. Therefore, following points arose for determination; (i) whether the amount deposited by the Judgment-Debtor as mentioned above is in consonance with the rule requirement, (ii) whether default in settling the prevailing rent in terms of the judgment dated 06.11.2015 is attributable to the defendants (Judgment- Debtor), and (iii) what are the causes and reasons for not settling the prevailing rent in terms of the judgment. 11. The determination of the aforesaid points give rise to factual disputes which are required to be looked into by the executing court, the observations of the learned executing court that the executing court cannot go behind the decree cannot be faulted but it is not a question of going behind the decree. The question is different i.e., implementation of the decree, in case finally it is found that the Judgment-Debtor had deposited the rent from time to time and is also proved that no fault is attributed to him for not having settled the prevailing rent then, cannot be subjected to eviction. 12. In view of the aforesaid position, learned executing court has to decide the above mentioned points. 13. 12. In view of the aforesaid position, learned executing court has to decide the above mentioned points. 13. Learned counsel for the petitioner (Judgment-Debtor) shall be at liberty to file his response in the aforesaid background along with supporting documents before the executing court before 10.05.2019. 14. Both the parties shall co-operate and shall not seek any adjournment, in case of any default made by either of the parties, learned executing court shall be at liberty to pass appropriate orders. In any case determination of the points mentioned above shall be finalised by the executing court within two weeks, till then the warrant of execution as issued vide order impugned dated 01.05.2019 shall remain in abeyance. However, position as it is prevalent on today shall be maintained. 15. Copy of this judgment be certified to the learned executing court. Learned counsel for the parties shall ensure presence of the parties in person or through an authorised counsel before the executing court on 10.05.2019. 16. Petition shall stand disposed of as above.