ESA No.27 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ESA No.27 of 2011(O&M) Date of Decision: December 12, 2011 Pawan Kumar and others .....Appellants v. Surender Kumar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sanjay Bansal, Sr. Advocate with Mr.Amit Bhatia, Advocate for the appellants. ...... Ram Chand Gupta, J.(Oral) C.M.Nos.12358-59-C of 2011 Requests for placing on record Annexures A1 to A16. The same are taken on record subject to all just exceptions. Both the applications stand disposed of accordingly. ESA No.27 of 2011 The present appeal has been filed against order dated 18.10.2011 passed by learned Additional District Judge, Faridabad, dismissing appeal filed by present appellants against order dated 29.8.2011 passed by learned Executing Court, i.e., Civil Judge (Junior Division), Faridabad, vide which objection petition filed by present appellants was dismissed. I have heard learned counsel for the appellants and have gone through the whole record carefully including both the orders passed by learned Courts below. ESA No.27 of 2011(O&M) -2- Facts relevant for the decision of present appeal are that a petition for eviction under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (for short `the Act') regarding shop in dispute was filed by predecessor-in-interest of present respondents-decree-holders, namely, Narayan Dass against Firm Jagan Nath Om Parkash through Shri Om Parkash son of Shri Jagan Nath and Rishi Parshad son of Shri Jagan Nath. The said eviction petition was dismissed by learned Rent Controller vide order dated 14.9.1977. Narayan Dass preferred appeal against the said order. In the appeal Rishi Parshad entered into a compromise with Narayan Dass and agreed to vacate the suit premises. Appeal was accepted by appellate authority vide order dated 6.5.1978. However, the said order was challenged by Sangeshwar Dass, predecessor-in-interest of the appellants by filing civil suit No.326 of 1978 against Narayan Dass and M/s. Jagan Nath Om Parkash and Rishi Parshad and others. The said suit was decreed by Sub Judge Ist class, Faridabad, vide judgment and decree dated 24.1.1981. Aggrieved against the same, Narayan Dass filed appeal and the same was allowed by learned Additional District Judge, Faridabad, vide judgment and decree dated 23.8.1982 on the statement of Sangeshwar Dass that he wanted to withdraw the suit. The said judgment and decree passed by Additional District Judge, Faridabad, was challenged in regular second appeal before this Court by Bhagwat Saroop, who was defendant no.6 in that suit. However, Sangeshwar Dass was also made a party in the said proceedings and as Sangeshwar Dass died, the present appellants were impleaded as legal representatives of Sangeshwar Dass in regular second appeal before this Court and they were also represented by a counsel. However, the said regular second appeal was dismissed by this Court vide judgment and ESA No.27 of 2011(O&M) -3- decree dated 9.3.2005, Annexure A8. Perusal of Annexure A8 shows that Mr.Adish Gupta, Advocate appeared for legal representatives of Sangeshwar Dass, i.e., the present appellants in the said regular second appeal. Perusal of Annexure A8 shows that the plea which is now being taken by the present appellants was never taken by them before this Court in the said regular second appeal though they were duly represented by their counsel. No plea was taken that no such statement was made on behalf of Sangeshwar Dass before learned first appellate Court and that it was a result of fraud. There is no explanation as to why the plea now being taken was not taken by the present appellants before this Court earlier that the judgment was obtained by impersonating and by playing fraud upon Sangeshwar Dass. Hence, it has been rightly held by both the Courts below that the present appellants have failed to made out a case of any fraud being committed upon them. Hence, in view of these facts when the order passed by appellate authority under the Act has already been challenged by predecessor-in-interest of present appellants by way of filing of a civil suit, which was dismissed, they cannot be permitted to agitate the said point again by way of objections in the present execution petition. It has been further contended by learned counsel for the appellants that even if appellants did not raise any objection before this Court in pending regular second appeal and did not take the plea of fraud, they can still take the plea of fraud by filing objections before the Executing Court. However, in my view, the plea is without any merit. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the ESA No.27 of 2011(O&M) -4- impugned orders. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 12.12.2011 ( Ram Chand Gupta ) meenu Judge