IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12370 of 2011 Md.Neyazul Haque & Anr Versus Fahima Siddiqui & Anr ----------- ORDER 02. 03.08.2011 At the very outset, the learned counsel for the petitioner submitted that he may be permitted to delete under Article 226 and to insert under Article 227 in page 1 of the application. Permission is accorded. (2) Heard the learned senior counsel, Mr. Rama Kant Sharma on behalf of the petitioners. (3) This application has been filed against order dated 16.07.2011 passed in Execution Case No.5 of 2011 by Execution Munsif, Patna whereby the learned Court below has issued writ to vacate the flat no.301, Chaman Apartment, Bhikhna Pahari. (4) The learned counsel for the petitioner submitted that in fact, the Eviction Suit No.2 of 2002 was filed in the Court of Munsif I, Patna and another Eviction Suit No.8 of 2002 in the Court of Sub Judge VIII, Patna. The Eviction Suit was decreed against respondent no.2 who was defendant in the Eviction Suit. After compromise decree passed in the Eviction Suit, the plaintiff-landlord who is respondent no.1 filed Execution Case No.5 of 2011 in the Court of Execution Munsif, Patna. The learned counsel for the petitioner admitted the fact that in the compromise decree, the tenant, respondent no.2 agreed to 2 vacate the suit premises within certain period. When within the said period, agreed in the compromise decree, the tenant did not vacate the suit premises, Execution case has been filed. In the said Execution case, the present petitioner filed the petition under Order 21 Rule 97 of the C.P.C. claiming that he is real tenant under the plaintiff- respondent no.1 and a collusive decree has been passed in the eviction suit. The said petition has been registered as Misc. Case No.6 of 2011 which has been admitted on 22.02.2011 and is pending adjudication. Notices have also been issued. The learned counsel in view of the above facts relied upon a decision reported in A.I.R. 1997 Supreme Court 856(Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal). On the strength of this decision, the learned counsel submitted that the Executing Court without deciding the right, title and interest of the petitioner would not have dispossessed the petitioner from the suit premises but in the present case, after admission of the Misc. case, the learned Court below issued writ of delivery of possession and police force were deputed for delivering the possession of the suit premises to the landlord and in fact, the petitioner has been dispossessed on 29.07.2011. In such circumstances, the learned counsel for the petitioner submitted that the act of the Executing Court is illegal and in fact, forcefully the petitioner has been dispossessed from the suit premises so this Court may 3 direct the Executing Court to restore the possession of the suit premises to the petitioner. (5) From perusal of the judgment cited by the learned counsel for the petitioner, it appears that in that case, the petition under Order 21 Rule 97 was filed by a third person claiming independent right, title and interest in the suit property. In the present case at our hand, the petitioner is claiming to be the real tenant of the landlord. Section 12 of the B.B.C. Act reads as follows: “12. Binding nature of the order of the Court on all persons in occupation of the building- Notwithstanding anything contained in any other law, where the interest of tenant in any premises is determined for any reason whatsoever and any order is made by the court under this Act, for the recovery of possession of such premises, the order shall be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom: Provided that nothing in this section shall apply to any person who has an independent title to such a premises or to a tenant who has been inducted with the express written permission of the landlord himself personally.” (6) In a decision reported in (2011) 6 Supreme Court Cases 385(Atma Ram Builders Private Limited vs. A.K.Tuli and others), the Hon’ble Supreme Court has held at paragraph 4 and 5 as follows: “4. It is deeply regrettable that in our country often litigations between the landlord and the tenant are fought up 4 to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co- tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court. The time has come that this malpractice must now be stopped effectively.” “5. After our order dated 6-10-2010, the counsel for the tenant should have advised the tenant to vacate the premises in question like a gentleman before or on the expiry of six months from 6-10-2010 but unfortunately they advised the tenant to put up some other person claiming independent right against the landlord as a sub-tenant and start a fresh round of litigation to remain in possession. In this manner, our order dated 6-10-2010 was totally frustrated.” (7) In the present case as has been admitted by the learned counsel for the petitioner, the tenant compromised the eviction suit with the landlord and agreed to vacate the suit premises within stipulated period as reported in the compromise decree. However, when at the time of hearing of this application under Article 227 of the Constitution of India, the petitioner did not produce the compromise decree which has been put in execution. (8) In such view of the matter, when the tenant, respondent no.2 agreed to vacate the suit premises, he should have vacated the said premises within the agreed date on the basis of which the eviction suit has been 5 decreed. So far the present application under Article 227 of the Constitution of India is concerned, admittedly, the petitioner is claiming to be the tenant and there is no written permission by the landlord himself who has been dispossessed in execution of the decree passed in eviction suit. He is not claiming independent title over the suit property as is the case in the decision relied upon by the learned counsel for the petitioner. Now, therefore, the order dated 16.07.2011 which is under challenge has fully taken its effect which is within the purview of Section 12 of the B.B.C. Act. (9) I, therefore, find that the learned Court below has not acted in utter disregard of any law or that the order passed by the Court below is illegal, beyond his authority. Supervisory jurisdiction is exercised by the High Court with a view to keep the inferior Courts within the bounds of their authority and to see that they do what their duty requires to do in legal manner. It is never exercised to merely correct the mistake of law or fact. (10) I, therefore, find no reason to interfere with the order particularly when it has fully taken its effect with full force. Thus, this application is dismissed. Saurabh/A.F.R. ( Mungeshwar Sahoo, J.)