Hanuman Sahai Sharma S/o Late Sh. Bhairuram @ Bhairu Lal Sharma v. Babu Lal Sharma S/o Sh. Ram Chandra
2023-08-25
SAMEER JAIN
body2023
DigiLaw.ai
JUDGMENT : 1. The instant writ petition has been filed under Article 227 of the Constitution of India against the order dated 20.04.2016 passed by Civil Judge (S.D.) and Chief Judicial Magistrate, Jaipur in Case No. 13/2014 whereby an application under Order 21 Rule 29 of the Code of Civil Procedure, filed by the respondent-objector, has been dismissed but while dismissing the said application, the learned trial court allowed the framing of issues and taking the evidence of the respondent-objector on record. 2. The relevant facts, necessary for the just and efficacious adjudication of the instant writ petition, are as follows: 2/1. That the petitioner-decree holder filed a suit for eviction, possession, recovery of rent, mesne profit and permanent injunction against the respondent no.2 before the Civil Judge (S.D.) and Chief Judicial Magistrate, Jaipur. 2/2. That despite service, respondent no.2-judgment debtor, did not appear before the learned trial court and therefore, ex-parte proceedings were initiated against him on 31.05.2011. 2/3. That after hearing the arguments, the learned trial court in an ex-parte manner, decreed the suit in favour of the petitioner-decree holder, vide judgement and decree dated 05.03.2013. 2/4. That subsequently, the petitioner filed an execution application before the learned executing court and during the execution proceedings, an objection application came to be filed by the respondent no.1, wherein it was inter-alia alleged that the execution application/decree obtained by the petitioner-decree holder was based on incorrect and misconceived facts as neither the petitioner-decree holder and nor the respondent no.2-judgment debtor are concerned with the property in question. Rather, it was alleged in the objection application that the said property in question is in the possession of the respondent no.1-objector, as the same belongs to him. 2/5. That the petitioner-decree holder filed their reply to the aforementioned objection-application, whilst praying for the dismissal of the same. 2/6. That meanwhile, respondent no.1-objector filed an application before the learned trial court for adducing evidence in the objection application and for framing issues therein on 27.11.2014. However, the said application came to be dismissed vide order dated 24.12.2014. 2/7. That the respondent no.1 moved another application under Order 21 Rule 29 of the Code of Civil Procedure for staying the proceedings before the executing court. 2/8.
However, the said application came to be dismissed vide order dated 24.12.2014. 2/7. That the respondent no.1 moved another application under Order 21 Rule 29 of the Code of Civil Procedure for staying the proceedings before the executing court. 2/8. That after hearing both the parties, the learned court below dismissed the application so filed by the respondent no.1 under Order 21 Rule 29 for staying the proceedings before the executing court, vide impugned order dated 20.04.2016. However, while dismissing the said application, the learned court below allowed the framing of issues and taking of evidence on record in the objection application filed by the respondent no.1. 2/9. That the petitioner-decree holder, being aggrieved with the impugned order dated 20.04.2016, to the extent that it allowed the framing of issues and taking the evidence of the respondent no.1-objector on record, has preferred the instant writ petition. 3. Learned counsel for the petitioner has argued that the impugned order dated 20.04.2016, to the extent of allowing for framing of issues and taking evidence on record of the respondent no.1-objector is illegal, erroneous and contrary to the evidence and material available on record. In this regard, learned counsel submitted that the learned executing court cannot exceed its jurisdiction and allow the framing of issues and adducing evidence on the objection application, especially when an application for adducing evidence so put forth by the respondent no.1-objector was dismissed vide order dated 24.12.2014 i.e. on the same facts, the respondent no.1 had moved an application on 27.11.2014, which was dismissed by the learned trial court vide order 24.12.2014. Thus, there is no occasion to decide/review the same issue, which has already been adjudicated upon by the learned trial court. Lastly, learned counsel for the petitioner-decree holder argued that execution proceedings under Section 47 of the Code of Civil Procedure are summary in nature and have to be given a microscopic angle. Thus, in the facts and circumstances of the case, the learned executing court erred in granting permission for framing of the issues and adducing evidence. In support of his arguments, learned counsel for the petitioner relied upon the dictum of the Apex Court as enunciated in (2001) 6 SCC 534 titled as Dhurandhar Prasad Singh vs. Jai Prakash University & Ors. 4.
In support of his arguments, learned counsel for the petitioner relied upon the dictum of the Apex Court as enunciated in (2001) 6 SCC 534 titled as Dhurandhar Prasad Singh vs. Jai Prakash University & Ors. 4. Per contra, learned counsel for the respondent no.1-objector has submitted that the order passed by the learned executing court dated 20.04.2016 is in accordance with the settled position of law and thus, calls for no interference of this Court. In this regard, learned counsel submitted that while previously dismissing the application for adducing evidence in the objection application so filed by the respondent no.1 on 24.12.2014, the learned trial court failed to consider the fact that the petitioner-decree holder had filed the civil suit as well as the execution application on incorrect and misconceived facts as neither the petitioner-decree holder and nor the respondent no.2-judgment debtor are concerned with the property in question. It was averred that the learned trial court failed to appreciate the fact that the property in question is in the possession of respondent no.1. Furthermore, it was further submitted that the respondent no.1-objector is the owner of the property in question and the same had been given on rent to one Sh. Dungarsi, wherein the latter was conducting the business of running a ‘Mishthan Bhandar’ and Juice Centre. Thereafter, the petitioner-decree holder, in collusion with the said tenant of the respondent no.1, tried to usurp the property in question, belonging to the respondent no.1-objector. In this regard, it was submitted that the respondent no.1 had also filed a Civil Suit No. 228/2009 for declaration and permanent injunction against the petitioner-decree holder before the District and Sessions Judge, Jaipur, which is pending before the Additional District and Session Judge No.2, Jaipur, wherein a stay order is presently operative. Despite being aware of the said pending proceedings, the petitioner-decree did not implead the respondent no.1 as a party before the court below and obtained the decree for possession on misconceived and incorrect facts. Thus, the learned trial court while dismissing the application for adducing evidence, vide order dated 24.12.2014 committed a grave error in not taking into consideration the aforementioned facts. Thus, while passing the impugned order dated 20.04.2016, the learned executing court, after analyzing the aforesaid facts, allowed for the framing of issues and adducing evidence in the objection application so preferred by the respondent no.1-objector.
Thus, while passing the impugned order dated 20.04.2016, the learned executing court, after analyzing the aforesaid facts, allowed for the framing of issues and adducing evidence in the objection application so preferred by the respondent no.1-objector. In this regard, it was also submitted that while dealing with a writ petition preferred under Article 227 of the Constitution, the Court must limit its enquiry to the limited question of discerning whether a perversity or illegality has crept in the impugned order, thereby, warranting interference of the writ court. However, in the facts and circumstances of the present case, the impugned order dated 20.04.2016 has been passed in accordance with law, as the same is detailed, logical and well-reasoned. 5. Heard the arguments advanced by learned counsel for both the sides, scanned the record of the writ petition and perused the judgment(s) cited at Bar. 6. It is trite that there is limited scope of interference with a well-reasoned order while exercising the jurisdiction under Article 227 of the Constitution of India. It is a well settled principle of law that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on Hon’ble Apex Court judgment of Mohd. Inam vs. Sanjay Kumar Singhal and Ors. reported in (2020) 7 SCC 327 . 7. Upon a perusal of the impugned order dated 20.04.2016, it is observed that the learned court below, while allowing the framing of issues and adducing evidence in the objection application has duly taken into consideration the averments put forth by the learned counsel for the respondent no.1-objector, which were previously not considered while passing the order dated 24.12.20 including the fact that the property in question, is presently in possession of the respondent no.1-objector, who is sought to be dispossessed by the decree so obtained by the petitioner-decree holder.
Moreover, while allowing for adducing evidence, learned trial court also considered the allegation levelled by the respondent no.1-objector qua the decree being obtained by the petitioner-decree holder in collusion with the tenant of the respondent no.1, who is the owner of the said property. Thus, in the aforesaid facts and circumstances, the court below, vide passing the impugned order dated 20.04.2016, took into consideration the aforesaid facts, and allowed the respondent no.1-objector to adduce evidence to prove the averments so made by him. 8. In the opinion of this Court, the learned Trial Court has passed a well-reasoned speaking order and after consideration of material aspects, arrived at a logical conclusion. This Court is in complete agreement with the reasoning adopted by the Court below. There is no violation of principles of natural justice and no palpable error has crept in the order of the learned trial court. The order impugned does not cause any serious prejudice to the petitioner, warranting interference under Article 227 of the Constitution of India. 9. Therefore, considering the observations made herein-above, and relying upon the judgment of this Court in S.B. Civil Writ Petition No. 1965/2015 titled as Babu Lal Sharma vs. Hanuman Sahai, this Court does not deem it fit to interfere with the impugned order dated 20.04.2016. 10. Furthermore, considering the long drawn pendency of the suit, this Court directs the leaned court below to proceed in Case No. 13/2014 and dispose of the same expeditiously, preferably within an upper limit of twelve months from the date of receipt of copy of this order. 11. As a result, the present writ petition is dismissed. Pending applications, if any, are also disposed of.