IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Lalita vs. The District Judge & ors. S.B. Civil Writ Petition No. 5098/2005 under Article 226 of the Constitution of India. Date of Order: April 04 ,2006. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr. M.C. Bhoot for the petitioner. Mr. J.P. Joshi & Mr. J.K. Bhaiya for the respondent. BY THE COURT: At the request of the learned counsel for the parties, petitioner and respondents decree holders' writ petition is heard finally as in the petition order is challenged by the petitioner which is in favour of the respondent decree holders only. It will be beneficial rather say necessary to narrate the facts of civil suit No. 369/1994 filed by the respondent-landlord’s predecessor Smt. Satwant Kaur against Dhundh Singh’s (originally-tenant) descendants who are also respondents in this writ petition. Said Smt. Satwant Kaur filed the suit No. 369/1994 for eviction of her tenants 1 wherein decree for eviction was passed against the defendant-tenant by the trial court on 5.12.1999 and appeal against the said decree was dismissed by the first appellate court by judgment and decree dated 15.7.2003 and thereafter, second appeal was dismissed by this Court by judgment dated 19.9.2003 and ultimately special leave to appeal was dismissed by the Hon'ble Supreme Court by order dated 19.4.2004. Civil Original Suit No.369/1994 The plaintiff Satwant Kaur filed Civil Original Suit No.369/1994 for eviction against the tenants with the allegations that the suit property was initially let out to one Dhundh Singh on 5.9.1966 on rent of Rs.200/- per month. Dhundh Singh was doing the business of tent house in the suit premises. He died on 13.8.1991. Dhundh Singh's legal representatives did not pay the rent of the suit property from 1.4.1991 and more than three years passed to that, therefore, the tenant became the defaulter in payment of rent. On this ground decree for eviction was sought by the plaintiff. Another ground taken by the plaintiff Smt.Santwant Kaur was that the suit property is required because of the personal bona fide necessity of the plaintiff's son. The detail facts are not relevant about the need of the plaintiff's son. To show that there will be no hardship in case decree for eviction is passed against the legal representatives of the original tenant,the plaintiff submitted that defendant no.1 got the plot measuring 60 ft x 40 ft. and constructed five 2 shops over it which have been let out by him and the defendant also got the area of 10,000 sq.ft. where they are doing their tent business. On these grounds, the plaintiff Smt. Satwant Kaur filed suit no.369/94 against legal representatives of Dhundh Singh. The defendants submitted written statement with the pleas that in fact the rent was not accepted by the landlord from the month of April, 1991 despite tender of the rent by the defendants. When the plaintiff did not accept the rent, the defendant no.2 and 3 sent rent through money order for the period April, 1991 to September, 1991 on 17.10.1991. The landlord Smt.Satwant Kaur did not accept the rent sent by the money order then the defendants sent pay order dated 23.10.1991 of Rs.1200/- along with a registered letter to the plaintiff which too was not accepted by the landlord Smt.Satwant Kaur. Thereupon the defendants gave a notice through their advocate to the plaintiff on 30.10.1991 asking the plaintiff to disclose her bank account number so that the rent may be deposited in the bank account which is permissible under the provisions of Section 19A of the Rajasthan Premises (Control of Rent and Eviction ) Act, 1950 (for short “the Act of 1950”). hen the plaintiff did not respond to the defendants' notice then the defendants started depositing the rent under Section 19A of the Act of 1950.By this the defendants already deposited rent for the shop in dispute upto March, 1995 whereas the suit was filed on 3 20.10.1994.According to the defendants, the defendants have not committed default in payment of the rent. The defendants seriously contested about the alleged need of the plaintiff's son and took a plea that in the life time of Dhundh Singh, a suit for eviction was filed by the landlord which was dismissed by the trial court on 16.4.1977. However, the appeal was allowed by the first appellate court and defendant no.2 to 5 preferred second appeal before the High Court which was allowed by the High Court and in that decree, the part of the shop measuring 14 ft x 14 ft was delivered to the plaintiff for the business of the plaintiff's son. The defendants emphatically submitted that they are doing business of the tent house in the suit shop. After more than five years of the trial, the suit of the plaintiff was decreed by the trial court by the judgment and decree dated 15.12.1999. The defendants, legal representatives of original tenant Dhundh Singh, preferred regular first appeal no.19/2000 which was dismissed by the court of Addl. District Judge No.1, Udaipur on 15.7.2003. Not satisfied with the decree of dismissal of the appeal of the defendants, the defendants preferred S.B. Civil Second Appeal No.221/2003 before this Court which was dismissed by this Court on 19.9.2003. At the time of dismissal of the appeal of the defendants, a request was made on behalf of the defendants that some time may be granted to the defendants to vacate the suit premises, upon which this 4 Court granted time to the defendants to vacate the suit premises by 31.3.2004. For this indulgence, a condition was put by this Court that the defendants shall submit a written undertaking before the trial court that the defendants shall handover the vacant possession of the property in dispute to the respondent by or before 31.3.2004 and shall also pay entire decreed amount as decreed by the courts below as well as the costs of the second appeal and shall further pay all arrears of rent if due and rent month by month till the tenants vacates the suit premises. The defendants submitted written undertaking in pursuance of this Court's judgment dated 19.9.2003 passed in S.B.Civil Second Appeal No.221/2003 before the trial, i.e., in the court of Civil Judge (Jr.Div.), City (South), Udaipur, copy of which is placed on record of the present writ petition by the respondent legal representatives of the original plaintiff Smt.Satwant Kaur. The defendants after furnishing that undertaking before the trial court filed special leave to appeal before the Hon'ble Apex Court but could not get the stay order in their favour. The defendants submitted an application in S.B. Civil Second Appeal No.221/2003 for extension of time for vacating the suit shop. The application was registered as S.B. Civil Misc. Application No.23/2004. Time was sought on the ground that defendant-tenant’s S.L.P.is likely to be listed before the Supreme Court 5 on 2.4.2004 and the defendants-tenants are hopeful that they may get stay order from the Hon’ble Supreme Court. This Court granted further time to the defendants by order dated 12.4.2004 and extended time for vacating the suit premises up to 20.4.2004. On 19.4.2004 special leave to appeal (Civil) 23491/2003 preferred by the defendants was dismissed by the Hon'ble Apex Court. However, the Hon'ble Apex Court also granted more time to the defendants to vacate the suit shop which is, by 31.10.2004.,on the defendants' furnishing usual undertaking within two weeks from the order of the Hon'ble Apex Court .To take the benefit and to protect the possession, the defendants submitted further written undertaking before the trial court in pursuance of the order passed by the Hon'ble Apex Court on 19.4.2004 wherein the defendants unequivocally further submitted that the appellant shall hand over the vacant possession of the suit shop to the landlord on 31.10.2004 and shall pay the cost of the appeal and arrears of rent. This undertaking is dated 1.5.2004. Despite all above facts and furnishing of undertaking by the defendants( admitting themselves to be tenant in possession), in pursuance of this Court's judgment dated 19.9.2003 and further in pursuance of the order of the Hon'ble Apex Court dated 19.4.2004, the possession was not delivered to the landlord by the defendants. The above facts are relevant because objection petition has been filed 6 against the execution of the same decree passed in C. O. No. 369/1994 and upheld up to Supreme Court. The petitioner Lalita’s claim is that she is wife purchaser of the business of above tenants and is tenant in occupation of the suit shop and she is not bound by the decree passed in Civil Original Suit No.369/94 dated 15.12.1999 and, therefore, the said decree cannot be executed. Claim of Smt.Lalita-petitioner Smt.Lalita firstly, filed the civil suit in the court of District Judge, Udaipur on 29.4.2004. Copy of the plaint submitted by the respondent as Annex. R.3/10. The petitioner Lalita in her suit, admitted that the defendants in the suit no.369/94 were tenants in the suit shop on monthly rent of Rs.200/- per month and she also admitted that they were doing the business of tent house. She also admitted that the said business was from the time of Dhundh Singh's ancestor of the judgment- debtors of the above suit. According to Smt.Lalita, the defendants of suit no.369/94 were not interested in continuing with the business of tent house and ultimately they sold their business to plaintiff's husband deceased Aryan Lal. It was done with the consent of decree-holder Smt. Satwant Kaur. She agreed that she will let out the suit shop to Smt.Lalita's husband Narayan Lal on monthly rent of Rs.350/-. In these circumstances, deceased Narayan Lal purchased all goods of the tent house from the heirs of deceased Dhundh Singh and rent deed was 7 executed for the suit shop between Smt.Satwant Kaur and Lalita's husband Narayan Lal on 10.9.1992. Original of the rent deed was kept by Narayan Lal and copy was given to Smt.Satwant Kaur. According to Lalita, Smt. Satwant Kaur, the landlord took Rs.20,000/- as advance rent from Narayan Lal and handed over possession of the suit shop to Narayan Lal. Rs.19950/- was adjusted against the rent up to the period 31.5.1997. The remaining Rs.50/- was adjusted against the rent of next month and rent for the month of June, 1997, Rs.350/- was paid to Smt.Satwant Kaur. Thereafter, according to said Lalita, rent of the suit shop was regularly paid to Smt.Satwant Kaur. However, according to the plaintiff no receipt was given by Smt. Satwant Kaur for the rent which she received. Narayan Lal died on 11.8.1999. Smt. Lalita stated that from the life time of her husband she was also used to sit in the shop and was doing the business with her husband, therefore, she became the tenant in the suit shop. According to Lalita in the last days of month of March and in the beginning period of April, she came to know from the neighbour shop-keepers that some litigation is going on in between Smt. Satwant Kaur and the legal heirs of Dhundh Singh, upon which Lalita enquired and found all facts relating to suit no.369/1994 and appeals against the judgment and decree passed in appeal At this stage, it will be worthwhile to mention here that as per the copy of the plaint, the plait bears the date 19.4.2004 whereas by the order of this Court dated 8 12.4.2004 passed in S.B.Civil Misc. Appeal Application NO.23/2004, the tenants of the suit no.369/93 were supposed to delivered the possession of the suit shop by or before 20.4.2004. Since Smt. Santwant Kaur died during the pendency of the first appeal against the judgment and decree dated 15.12.1999 passed in Civil Original Suit No.369/94, therefore, the legal representative of Smt.Satwant Kaur were impleaded as defendants in the suit filed by Smt. Lalita along with defendants of the suit no.369/94. The legal representatives of Smt.Satwant Kaur contested the injunction application filed by Lalita in the suit which she filed in the court of District Judge, Udaipur challenging the executablity of the decree for the property in dispute. The legal representatives of Smt.Satwant Kaur when found that Lalita has come with rent deed dated 10.9.1992, they submitted criminal complaint under Sections 420, 466, 467, 471, 474 and 120B,I.P.C. In the court of Judicial Magistrate(South),Udaipur and the complaint was sent to the police station under Section 156(3), Cr.P.C., on which F.I.R. NO.166/2004 was registered. The concerned investigating officer submitted an application before the civil court on 25.8.04 and prayed that the original deed dated 10.9.1992 may be given to the investigating agency so that the same may be examined by the Forensic Science Laboratory. This application was seriously opposed by the Smt.Lalita but the learned Addl.District Judge NO.2, Udaipur on 9 17.9.2004 ordered that the deed dated 10.9.1992 may be given to the investigating officer for F.S.L. Examination and fixed the date in the case on 20.9.2004. Just after passing the order by the Addl. District Judge No.2, Udaipur, Lalita's advocate submitted an application that the plaintiff Lalita is proposing to prefer writ petition to challenge the order of the learned Addl.District Judge No.2, Udaipur dated 17.9.2004, therefore, the original document may not be handed over to the concerned S.H.O. On this application, the court granted one months' time to Smt. Lalita for obtaining the stay order from the High Court against the order dated 17.9.2004. It has not made clear whether said was challenged or not but it is clear that said order of the trial court was not set aside by any court. In the suit filed by Smt.Lalita (present petitioner), the trial court by a detailed order dated 19.10.2004 dismissed the present petitioner's injunction application. It appears from Annx. R.3/13 that F.S.L. examined the deed dated 10.9.1992 set up by Smt.Lalita-petitioner and opined that the signatures in question are forged one. On 27.10.2004, the present petitioner submitted an application before the trial court seeking permission to withdraw the suit which was seriously objected by the legal representatives of Smt.Satwant Kaur, decree holders but it was submitted on behalf of the petitioner that since the petitioner is withdrawing the suit unconditionally, therefore, even no cost be 10 imposed against the petitioner but the trial court permitted the petitioner-plaintiff to withdraw the suit and awarded cost of Rs.2000/- to the contesting defendants legal representatives of Satwant Kaur. Petition u/o 21 Rules 97 and 98,C.P.C. After all above proceedings and particularly after unconditional withdrawal of the suit by the present petitioner, the petitioner submitted an objection petition under Order 21 Rules 97 and 98,C.P.C. to resist the issuance of possession warrant in execution of the same decree dated 15.12.1999 passed in Civil Original Suit NO.369/94 on the same facts and ground which were the facts and grounds pleaded by the petitioner in her suit which was withdrawn by her unconditionally. The objection petition was seriously contested by the decree holders. However, the executing court did not frame point for determination, therefore, aggrieved against the order of the executing court dated 1.2.2005, to proceed without framing any point for determination, the petitioner Smt.Lalita preferred S.B.Civil Writ Petition No.928/2005 which though was dismissed by this Court but with some observations, upon which the petitioner Smt.Lalita submitted an application under Section 151, C.P.C. before the executing court and prayed that point for determination may be framed and the petitioner may be permitted to produce oral evidence. The executing court framed the point for determination on 8.4.2005. The petitioner also submitted an application 11 under Order 39 Rules 1 and 2, C.P.C. before the executing court and sought stay of execution of the decree dated 15.12.1999 passed in suit no.369/94. Said application was allowed by the executing court by order dated 15.4.2005. The decree holders legal representatives of the original plaintiff Smt.Satwant Kaur preferred appeal against the order of the executing court dated 15.4.2005 which was allowed by the learned District Judge, Udaipur by a detail order dated 18.8.2005. Hence this writ petition has by the petitioner Smt.Lalita objector, objecting the issuance of the possession warrant for taking possession of the shop in dispute in execution of the decree dated 15.12.1999 passed in Civil Original Suit No.369/94. The learned counsel for the petitioner relying upon several judgments of Hon'ble Apex Court and of this Court, vehemently submitted that once an objection petition is filed by the person in possession of the property for which the decree is sought to be executed then if the said objector is not party in the suit and is not bound by the decree, the possession warrant cannot be issued. According to the learned counsel for the petitioner, admittedly the decree was passed not against the petitioner and the petitioner is in possession of the shop in dispute, therefore, the petitioner is not bound by the decree. Till the petitioner's right, title and interest in the suit property are decided, the executing court cannot issue warrant for possession so as to evict the 12 petitioner from the shop property. According to the learned counsel for the petitioner, the entire scheme as provided under the heading of “Resistance to delivery of possession to decree holder or purchaser” and under Rules 97 to 106, it is clear that the complete procedure has been given in these rules for proceeding by the executing court where third party has raised objection against the issuance of possession warrant. As per sub-rule (2) of rule 98, once decree is resisted or obstructed by any person, the court can only proceed to decide and adjudicate upon the issues raised by the objector in the light of the pleas taken by the decree holders and there is no provision under any of the rules which provides that simultaneously the executing court can issue possession warrant. The learned counsel for the petitioner vehemently submitted that unless and until rights of the objector are decided, the decree cannot be executed to evict the objector. The learned counsel for the petitioner vehemently submitted that in fact all rights and questions about the title and interest in the property claimed by the objector can only be decided under Rules 97, 98, 99 and 101 and not in a separate suit. Any order passed under these rules is decree as provided under Rule 103 of Order 27, C.P.C. Therefore, it will be unjust to oust a person in possession claiming his/her right, title or interest in the property during investigation of his/her claim. The learned counsel for the petitioner also submits that same is the view taken by the Hon'ble Apex 13 Court also in the various judgments as well as by this Court also in subsequent judgments. According to the learned counsel for the petitioner, in this case, the objection petition has been entertained by the executing court and the executing court has framed the issue for trial. The objection petition can be decided on the basis of the affidavit or by some summary procedure as held by the Hon'ble Apex Court, therefore, during this enquiry, the possession warrant cannot be issued by the executing court in any case and particularly in this case where so many issues have been framed by the executing court and the executing court is proceeding to decide the issues. The learned counsel for the respondents decree holders vehemently submitted that this is a clear case of abuse of process of the court by the petitioner in collusion with the judgment and debtors of civil original suit no.369/94 which is apparent from the facts and of which full cognizance has been taken by the civil court in the suit filed by the petitioner herself wherein the civil court dismissed the petitioner's application for grant of injunction by detailed order dated 19.10.2004. By withdrawing that suit in which petitioner’s prayer for same injunction was refused the petitioner can not put herself in better position. The no civil or other court can ignore the fact of dismissal of petitioner’s earlier application for grant of injunction against execution of the decree passed in C. O. 369/1994. Not only this that the 14 petitioner's case is totally false and concocted but from the facts of the case it is clear that the legal representatives of the original tenant Dhundh Singh tried their best to keep the possession by contesting suit no.369/94 for five years in the trial court and thereafter they preferred first appeal, second appeal and sought time from this Court for vacating the suit premises twice and submitted written undertaking before the trial court admitting that they are in possession of the suit property and will handover the vacant possession of the suit property to the decree holders. Not only this but the same judgment debtors preferred special leave to appeal petition before the Hon'ble Apex Court and there also they sought time for vacating the shop in dispute and they furnished undertaking before the civil court that the judgment debtors will deliver the possession of the suit property to the landlord on or before 31.10.2004 but the possession has not been delivered to the decree holders till today. Thereby, the judgment debtors have flouted the courts' orders and breached their undertaking given in pursuance of the order of the High Court and of the Hon'ble Supreme Court in this matter So far as the petitioner's case is concerned, the petitioner's alleged deed dated 10.9.1992 has been found by the F.S.L. to be forged one and admittedly the petitioner has no rent receipt for the suit shop from Smt.Satwant Kaur or successor of Smt. Satwant Kaur. Not only has this, the timings exposed the petitioner and the judgment debtors. The 15 judgment debtors sought time from this Court to vacate the suit premises, second time by moving application for extension of time, upon which this Court granted time to vacate the suit property by 20.4.2004 and Lalita filed the suit before the District Court on 29.4.2004. It is apparent from the copy of the plaint that suit was in fact drafted (a day before to time for vacating the shop) and was ready for filling on 19.4.2004 but it appears that on 19.4.2004 the time was extended by the Hon'ble Apex Court for vacating the suit premises and, therefore, it appears that the suit was not filed on 19.4.2004 or on 20.4.2004. On factual aspects, learned counsel for the respondents decree-holders, vehemently submitted that in this case, admittedly there is no evidence for name shake on the basis of which the petitioner can claim her possession and in fact the petitioner is none else than the person set up by the judgment debtors because unless there was connivance between judgment debtors and the petitioner, the suit could not have been drafted on 19.4.2004 and would not have been kept in pocket unless the petitioner was informed by the judgment debtors that now there is no urgency for filing the suit. Apart from circumstantial evidence, it is admitted case of the petitioner herself that the suit property was let out to Dhundh Singh's ancestors of the judgment debtors of civil original suit no.369/94. The business is the same. There is no evidence of purchase of the business of Dhundh Singh from the judgment debtors by 16 the petitioner's husband, therefore, on merits, the petitioner has no case. The learned counsel for the respondents decree holders vehemently submitted that looking to the conduct of the petitioner and the judgment debtors, the writ petition deserves to be dismissed. However, according to the learned counsel for the respondents, the first appellate court very carefully examined the facts of the case and the executing court committed serious error of law in granting the injunction order. The learned counsel for the petitioner in rejoinder submitted that in fact there was no need for moving any application under Order 39 Rules 1 and 2, C.P.C. by the petitioner because once the objection petition has been filed and entertained by the court, the executing court itself could not have proceeded to issue possession warrant