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2019 DIGILAW 2921 (RAJ)

Anandi Lal S/o Shri Roodmal v. Ratan Lal S/o Shri Manak Chand

2019-12-02

MAHENDAR KUMAR GOYAL

body2019
JUDGMENT : 1. After arguing for sometime, learned counsel for the applicant-appellant wants to withdraw the application No.1/2019. 2. Application is dismissed as withdrawn. 3. Heard learned counsel for the appellant on the application filed under Section 96 of the Civil Procedure Code, 1908 for permitting the appellant to file the present appeal. 4. The judgment impugned herein has been passed in the suit for eviction and arrears of rent filed by Shri Ratanlal-respondent No.1 against the respondents no. 2 to 4 stating therein that vide rent note dated 23.01.1981 (Exhibit-1), the property, the subject matter of the dispute, was let out to the respondents no.3 and 4 @ Rs. 500/- per month. Eviction was sought on the ground of default in payment of rent for the period of 22 months from 01.01.1983. Since, the defendants/respondents no. 2 to 4 after filing the written statement, did not put in appearance, ex-parte proceedings were carried out and vide judgment and decree dated 05.08.1997, the learned trial Court decreed the suit filed by the plaintiffs for eviction and arrears of rent. This Court was informed by the respective counsels that the respondents-defendants herein did not assail the judgment and decree dated 05.08.1997 which, thus has attained finality. 5. Shri P.C. Jain, learned counsel appearing for the applicant contended that he is in possession of the property, the subject matter of suit for eviction. He contended that vide sale deed dated 23.01.1981, the respondents No.2 and 3 has allegedly sold the property to the respondent No.1-plaintiff and since, on the same day, vide rent note dated even, the property was allegedly let out to the sellers i.e., defendants no.1 and 2, therefore, it should have been inferred by the learned trial court that sale deed dated 23.01.1981 was a sham transaction. It was further contended that though eviction of the defendants No. 1 and 2 was sought from the Plot No.43, Jhotwara, they were shown to be resident of Nasik in Maharashtra and in absence of any averment in the suit that the property was either lying vacant or was sublet, the learned trial Court ought to have inferred that the defendants No.1 and 2 were not in occupation of the premises. Lastly, it was contended that since averment in his application under Section 96 C.P.C. that he is in possession, has not been rebutted by the respondent No.1, it should be deemed to have been admitted by the respondent no.1 and since, he is in possession of the property, it should be held by this Court that the ex-parte judgment and decree dated 05.08.1997 is in-executable against him. It was, therefore, prayed that his application be allowed and requisite leave may be granted to him to prosecute the appeal. 6. Per contra, learned Senior Counsel Shri R.K. Agrawal appearing for the respondents has submitted that present applicant has no locus to challenge the judgment and decree dated 05.08.1997 inasmuch as application filed by him under Order 1 Rule 10 C.P.C. before the learned trial Court, was dismissed vide its order dated 02.08.1997, which has attained finality. It was contended that no such inferences as to the sale deed dated 23.01.1981 being a sham document or that the present applicant-appellant has been in possession of the property in dispute, could have been drawn by the learned trial Court in absence of any evidence in this regard. It was further contended that since the eviction was sought on the ground of default in payment of rent; hence, he was not required to plead sub-letting. It was, therefore, prayed that the application as well as the appeal preferred by the present applicant-appellant be dismissed. 7. Heard learned counsels for the parties. 8. The suit was filed by respondent No.1 for eviction and arrears of rent against the defendant/respondents No.2 to 4 on the strength of rent note dated 23.01.1981. As is reflected from the findings recorded by the learned trial court, there was no evidence before the learned trial Court that the present applicant-appellant has been in possession of the property in dispute. This Court could not be persuaded by the learned counsel for the appellant to take any inference as to the sale deed dated 23.01.1981 being sham document as the property was let out to the sellers on the same day. Nor, any such inference that in absence of any averment in the suit that the respondents No.2 and 3/defendants No.1 and 2 being resident of Nasik, were not residing in the rented premises or that it was sublet, the suit was not maintainable. Nor, any such inference that in absence of any averment in the suit that the respondents No.2 and 3/defendants No.1 and 2 being resident of Nasik, were not residing in the rented premises or that it was sublet, the suit was not maintainable. Besides, this Court has, vide its judgment dated 29.11.2019, dismissed the Civil First Appeal No.63/2000 preferred by the present applicant-appellant against the judgment and decree passed by the learned trial Court whereby, the suit filed by him for declaration and permanent injunction with respect to the same property, subject matter of the present appeal, has been dismissed. Merely, because, the averments in the application under Section 96 C.P.C. seeking permission to prefer the first appeal have not been rebutted by the respondent No.1 by filing reply, it cannot be inferred that the same stands admitted affecting the merits of the judgment and decree dated 05.08.1997 impugned herein. 9. I find no force in the application preferred by the applicant-appellant and in the facts and circumstances stated hereinabove, he cannot be permitted to prefer and prosecute the present appeal challenging the judgment and decree dated 05.08.1997. Therefore, the application filed by the applicant-appellant under Section 96 C.P.C. seeking permission to prefer the appeal is dismissed and consequently the appeal also.