IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 199 of 2011 Date of decision: 20.9.2011 Kusam Verma & another …Petitioners. Versus Shyam Lal …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No. For the petitioners: Mr. Anup Rattan, Advocate. For the respondent Mr. Neeraj Gupta, Advocate. _____________________________________________________ Deepak Gupta, J(oral) 1. The present petition is directed against the order dated 30th May, 2011 of the learned Rent Controller-II, Solan whereby he allowed the execution petition and ordered that the petitioners (hereinafter referred to as the tenants) be evicted from the suit premises. 2. The undisputed facts are that the respondent Shyam Lal (hereinafter referred to as the landlord) filed an eviction petition against late Shri Ishwar on 16th July, 2005 on the ground that Shri Ishwar was in arrears of rent and the premises were required by the landlord bona fide for his own use and occupation. Shri Ishwar appeared in the eviction petition and filed reply. Unfortunately, Shri Ishwar died 2 during the pendency of the petition and thereafter the landlord filed an application praying that the legal representatives of Shri Iswar, namely, his widow Smt. Kusum Verma, son Nitin Verma and daughter Mitu Verma be impleaded as legal representatives of the deceased. There is no doubt that service was effected on Kusum Verma and Nitin Verma and summons on behalf of Mitu Verma were accepted by Kusum Verma, but it was informed that there is no person by the name of Mitu Verma, but in fact the name is Amit Verma. Since the legal representatives did not appear, exparte eviction order was passed against them on 21st June, 2008. 3. Thereafter the execution petition was filed by the landlord on 28th March, 2009 and the aforesaid three persons were served in the execution petition. Thereafter on 18th July, 2009 Kusum Verma and Nitin Verma had filed objections in the execution petition and they also filed an application under Order 9 Rule 13 CPC in which it was contended that the legal representatives had not been properly served. 4. In the execution petition on 23.10.2009, the learned Rent Controller passed the following order:- “23.10.09 Present Sh. Sanjay Sharma, Adv. Vice Csl. for DH. Sh. R.L. Kaushal, Adv. For the Jd Nos. 1 & 2. JD No.3 exparte. An application under order 9 Rule 13 CPC is pending adjudication wherein the decree sought to 3 be executed in the present application is sought to be set aside. Therefore, it would be appropriate to keep adjudication in the present application in abeyance till the application is decided. Now be put up for consideration on 29.12.2009 Sd/- (Nitin Mittal) RC-II,Solan.” 5. Thereafter the execution petition came up for hearing on 29th December, 2009 and issues were framed. It appears that nobody brought it to the notice of the executing Judge that he had earlier passed an order keeping the execution petition in abeyance. In any event the execution petition proceeded further and thereafter the tenants filed an application for keeping the execution petition in abeyance. By the impugned order, the execution petition was allowed. 6. At this stage I am consciously not going into the merits of the rival contentions of the parties, but the fact is that the executing Court had already passed an order for keeping the execution petition in abeyance. 7. Shri Neeraj Gupta, learned counsel for the landlord has urges that the tenants on one pretext or the other are trying to delay the matter and have successfully done so for almost three years. He states that the issues in the application under Order 9 Rule 13 were framed on 23rd October, 2009 and till date evidence has not been concluded 4 by the tenants. Keeping in view the aforesaid facts, the present petition is disposed of with the following directions:- i. That the impugned order is set aside and the execution petition shall be kept in abeyance till the application under Order 9 Rule 13 is decided; ii. That in the application under Order 9 Rule 13 the tenants shall be given only one opportunity to lead evidence. It shall be their responsibility to produce their witnesses at their own responsibility on 24th November, 2011. In case they do not produce their witnesses at their own responsibility their evidence shall be closed; iii. That the learned Rent Controller shall decide the application under order 9 Rule 13 latest by 28th February, 2012 after giving reasonable opportunity to the landlord to lead his evidence on 24th November, 2011 and no further opportunity shall be granted; and iv. That in case the arrears of rent have not been paid till date, the application under Order 9 Rule 13 shall be only be proceeded with if the tenants deposit the entire arrears on or before 24th November, 2011. It is made clear that the deposit of arrears of rent/use and occupation charges will not confer any right in favour of the present petitioner. In case the arrears are not paid by 24th 5 November, 2011, the petition shall be dismissed as not maintainable. It is made clear that deposit of arrears of rent/use and occupation charges will not create a fresh tenancy in favour of the legal heirs of Shri Ishwar. 8. With the aforesaid directions, the petition is disposed of so also the pending application(s), if any. September 20, 2011 (Deepak Gupta) (vt) Judge