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2019 DIGILAW 2871 (RAJ)

Parvati Devi v. Anand Traders, Chabra Bhawan

2019-11-19

ASHOK KUMAR GAUR

body2019
JUDGMENT Ashok Kumar Gaur, J. - The instant writ petition has been filed by the petitionersSmt. Parvati Devi and M/s Anand Traders, challenging the order dated 02.05.2019 whereby in execution application filed by the petitioners to frame issues and record evidence, has been dismissed. 2. Counsel for the petitioners submitted that initially a suit was filed by owner of the property, Shri Padam Chand Chabra, who died during pendency of the eviction application and his legal heirs Smt. Shellbala Chabra and Shri Manish Chabra became the applicants, when application under Section 9 of the Rent Control Act came to be allowed vide order dated 28.10.2014 against one Laxmi Sharma and Jaipur Mid Day Times. 3. Counsel submitted that the said order dated 28.10.2014 was put to challenge by Smt. Laxmi Sharma and appeal also came to be dismissed by the Appellate Rent Tribunal vide order dated 09.05.2016. 4. Counsel submitted that after dismissal of appeal by the Appellate Rent Tribunal, an execution application for eviction from the property in question, was sought. Counsel submitted that in fact the petitioner Smt. Parvati Devi is one of the partners with M/s Anand Traders and shop in question, was given on rent to M/s Anand Traders. Counsel submitted that the owner of the property in connivance with one of the partner of Anand Traders, Smt. Laxmi Sharma sought the eviction of the petitioners. 5. Counsel submitted that the petitioners are in fact in possession of the shop and they have been paying rent to the landlords and they are in possession of requisite documents to show that shop was let out to M/s Anand Traders and Smt. Laxmi Sharma had nothing to do with running of the said shop. Counsel submitted that before the Executing Court, objection was filed by the petitioners and it was prayed that looking to the various evidence in their possession, the Court was required to decide the objections by framing the issues in execution proceedings and after recording evidence, the objection in execution application was required to be decided. 6. Learned counsel also submitted that if tenancy of the shop is created in favour of the firm then, for proper adjudication of the issue in the eviction petition, both the firm and its partners are necessary parties and if any of the party is not arrayed, the entire proceedings are vitiated. 6. Learned counsel also submitted that if tenancy of the shop is created in favour of the firm then, for proper adjudication of the issue in the eviction petition, both the firm and its partners are necessary parties and if any of the party is not arrayed, the entire proceedings are vitiated. The learned counsel also placed reliance on a judgment passed by the Apex Court in the case of Richard Lee Versus Girish Soni & Anr., (2017) 3 SCC 194 . 7. On the strength of the said judgment, the learned counsel for the petitioners submitted that the issue of impleadment of the parties of the firm in the eviction petition has already been taken care of by the Supreme Court in the said judgment and even a suo-motu power can be invoked by the Court in such a situation, as per the Order 1 Rule 10 CPC. 8. Learned counsel submitted that by the impugned order, the court below has failed to exercise its discretion in the proper manner and without permitting the petitioners to lead evidence and without complying the principles of natural justice, the vital issues altogether have been ignored and eviction decree has been passed against the partners who are not in occupation of the shop and have never been treated as tenants. 9. I have heard learned counsel for the petitioner and perused the material available on record. 10. This Court finds that the order of eviction under Section 9 of the Rent Control Act was passed on 28.10.2014 and the occupation of the shop, as per the applicant-landlord, Smt. Laxmi Sharma, against whom the order was passed, had assailed the same order by filing an appeal before the Appellate Rent Tribunal and the said appeal came to be dismissed vide order dated 09.05.2016. 11. This Court finds that prima facie it cannot be inferred that Smt. Laxmi Sharma was in connivance with the landlord and in order to get the shop vacated, she had colluded with the landlord. This Court further finds that if that being the situation as alleged by learned counsel for the petitioners, then there was no occasion for Smt. Laxmi Sharma to file appeal against the order passed under Section 9 of the Rent Control Act. 12. This Court further finds that if that being the situation as alleged by learned counsel for the petitioners, then there was no occasion for Smt. Laxmi Sharma to file appeal against the order passed under Section 9 of the Rent Control Act. 12. This Court has also considered the fact that the petitioners has been given opportunity to file objection in execution application and whatever objections have been taken by them, they are required to be decided by the Executing Court. 13. The prayer of the petitioners to frame issue and lead evidence, cannot be justified, in the present case as the order of eviction passed under Section 9 has already attained finality after dismissal of appeal by the Rent Appellate Tribunal. 14. This Court further finds that the petitioners if have any grievance in respect to the execution proceedings, they can always raise same before the Executing Court, alongwith the material on which they want to rely and Executing Court is expected to look into the same and the framing of issue and leading of evidence is like another trial of the suit in execution proceedings and such situation is not envisaged in the procedure, provided for deciding the execution proceedings. 15. The reliance on the judgment placed by the learned counsel for the petitioners in the case of Richard Lee Versus Girish Soni & Anr. (supra), this Court finds that the Apex Court has laid down the law that in eviction petition both the firms and partners are proper parties to facilitate complete determination of the matter in dispute. The Apex Court has held that all the partners, though may not be necessary parties from the point of view of the eviction petitions but they are necessary proper parties. There is no dispute on the said proposition of law and however this Court is concerned with the objections of the petitioners to frame issues in the execution proceedings and further to permit them to lead evidence and the judgment of Apex Court is of no assistance in the present facts of the case. 16. This Court finds that the court below has not committed any error and as such the writ petition is not entertained and the same is accordingly dismissed.