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2019 DIGILAW 1477 (HP)

AJAY BHARDWAJ v. SANDEEP SAHANI

2019-09-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. 1. The petitioner herein/tenant/JD, stands, aggrieved by an order, of, dismissal, made by the learned trial Court, upon, his application cast under Order 14, Rules 1, and, 2 of the CPC, (a) where through, the latter strived for striking of an issue, appertaining to the maintainability of the execution petition, as, instituted before the learned executing court, obviously, by the decree holder/landlord/respondent herein. 2. The afore striving, was, anvil led, upon, the strived elicited evidence, hence, appertaining, to, an espoused struck issue, and, appertaining, to, the , the readiness, or willingness or otherwise, of each, of the contesting parties, to mete deference to the covenants, as, carried, in, the compromise decree. The entire fulcrum of the lis, is, squarely rested, upon, an allusion being made to the compromise deed, embodied in Ex. C-1, entered into, inter se, the the decree holder/landlord, and, the judgment debtor/tenant, and, in consonance wit herewith, the learned Rent Controller concerned, pronounced an order, on, 14.12.2015. 3. The apposite clause (e) of compromise deed, borne in Ex. C-1, reads as under:- "(e) That after receiving the balance payment and last installment of Rs.21,00,000/- (Twenty one Lakh) as mentioned above the Respondent will hand over and surrender the vacant and peaceful possession of rented accommodation of the petitioner or his authorised representative on or before 31.12.2106. In case Respondent fails to surrender or handover the vacant possession of the rented accommodation to the petitioner on or before 31.12.2016 in that case the petitioner will be entitled to take the possession of rented premises by executing the eviction order as also after the said date the Respondent will be liable to pay use and occupation charges/mesne profits @Rs. 500/- per day to the petitioner for retaining the unauthorised possession of rented accommodation/premises after 31.1.2017, which amount shall be recoverable in execution proceedings itself as a decree of civil Court under Section 26 of the Himachal Pradesh Urban Rent Control Act, 1987. However, it is agreed between the parties that the petitioner is not entitled to or shall not claim any previous arrears of rent or any use and occupation charges from the Respondent till 31.1.22016 by which date the Respondent are required to handover the possession of rented accommodation to the petitioner or his authorised representative." 4. However, it is agreed between the parties that the petitioner is not entitled to or shall not claim any previous arrears of rent or any use and occupation charges from the Respondent till 31.1.22016 by which date the Respondent are required to handover the possession of rented accommodation to the petitioner or his authorised representative." 4. The afore clause (e) makes clear under linings, vis-a-vis, upon, the JD/petitioner herein, receiving from the decree holder, the last agreed installment of Rs.21 lakh, (i) thereupon, the JD/petitioner herein handing over the vacant, and, peaceful possession, of, the demised premises, vis-a-vis, the decree holder, or, vis-a-vis, his authorised representatives, on, or before 31.12.2016, (ii) and, upon the judgement debtor/petitioner herein, making default(s), in, the handing over, of, vacant possession, of the demised premises, to the landlord/decree holder, on or before 31.12.2016, (iii) thereupon, the latter being amenable for coercive eviction, through, the process, of, court, (iv) besides there through a covenant, is, cast, upon, the judgment debtor qua his being amenable to liquidate mesne profits, quantified at Rs.5000/-per day, to the decree holder, for, his/their retaining the unauthorised possession of the demised premises, rather after 31.1.2017. 5. The afore extracted relevant clause of Ex. C-1, does obviously, bring forth the afore visible and trite displays, and, apparently with prima facie defaults being made, by the JD/petitioner herein, vis-a-vis, the afore extracted clause, borne in compromise deed, Ex. C-1, (a) hence, constrained the decree holder/respondent herein to, in consonance with the relevant echoings, as, borne in the apposite clause of Ex. C-1, rather on 10.03.2017, hence institute an execution petition, before the learned trial Court. However, after the JD/petitioner herein being served on 22.4.2017, and, also his through, his duly constituted counsel, making appearance before the learned executing court, rather thereat no endeavour was made, by the JD/petitioner herein, either to handover, the keys, before the executing court, to the decree holder, or to his counsel, (b) contrarily, the instant application, stood belatedly, instituted in the month, of, January, 2018. The effect of the extant application being instituted belatedly, since the casting, of, the executing petition by the decree holder, for, his through, the, process of the court, seeking coercive possession, of, the demised premises, hence, from the judgment debtor, (c) and, also when, upon, conjoining therewith, the, further factum, that, since the filing of the execution petition, before the learned executing court, and, up till the institution of the extant application, none of the orders, as, made by the learned executing court, make any display, qua, either the counsel for the JD or the JD making any deposit of keys, of, the demised premises, before it, nor also any echoings, are, borne in any of the orders, as, made by the learned executing court, from the date of filing, of, the execution petition, up till the filing of the extant application, (d) qua the counsel for the judgment debtor or the JD, offering, the, handing over of keys of the demised premises, to the counsel, for the decree holders, (e) necessarily, all carry effects, vis-a-vis, the extant endeavour, being, a, belatedly contrived endeavour, merely, for frustrating the execution of, the, compromise decree against the demised premises, and, it being also a colourable exercise, to delay, and, prolong, the, completest execution, of, the compromise decree, borne in Ex. C-1. 6. Be that as it may, there was obviously, no necessity, for the learned executing court, to go beyond, the, mandate, of, the compromise decree nor the learned executing court, was enjoined to strike, any issue, vis-a-vis, the readiness or willingness or otherwise, of each, of the contesting litigants, to, mete the completest deference, vis-a-vis, the afore extracted apposite clause, occurring in Ex. C-1, (a) unless, there existed cogent, and, formidable evidence on record, in display, qua in contemporaneity, vis-a-vis, the filing of the execution petition, by the decree holder, his not being financially capacitated, to liquidate, the agreed sum, of Rs.21 lakh, to, the judgment debtor, (b) and, hence it becoming unimperative, hence, for the learned executing court, to, insist upon, the, JD to handover or deposit the keys of the demised premises or handover the same to the counsel, for, the decree holder. The afore evidence is grossly amiss, obviously hence the afore made conclusion derives optimum strength, and, thereupon, this Court, is, constrained to firmly concluded, that, the extant application warrants dismissal, and, that, the learned executing, has, also aptly dismissed it. 7. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed. The impugned order is maintained, and, affirmed. The parties are directed to appear before the learned executing Court, on, 15th October, 2019. The learned executing court is directed to, in accordance with law, expeditiously decide the matter. All pending applications also stand disposed of. Records be sent back forthwith.