HIGH COURT OF CHHATTISGARH, BILASRUR Writ Petition (Art. 227) No.3630 of 2008 PETITIONER/: (Judgment Debtor) RESPONDENT/: Ashish Kumar Sen, S/o Late Jyoti Chandra Sen, aged about 65 years, R/o Tikrapara, Tah. & Distt. Bilaspur (C.G.) Versus Sunil Kumar S/o Ramroop Mourya, R/o Tikrapara, Tah. & Distt. Bilaspur (C.G.) (Decree Holder) {Writ petition underArticle 227 ofthe Constitution of India} Present: Mr. Anand Shukla, counsel for the petitioner. None present for the respondent. No representation is made. Single Bench: Hon'blejflr. T.P. Sharma, J ORDER (22-11-2011) 1. By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged legality and propriety of the order dated 18-6-2008 passed by the District Judge, Bilaspur in Execution Case No.9A/99, whereby the Court below has held that the petitioner herein has vacated the suit premises on 18-12-2007, not in the month of May, 2001. 2. I have heard learned counsel for the petitioner, perused the order impugned, copies of other documents, copy of the Commission report, the first appeal filed by the petitioner herein namely F.A.No.410/99 and the application I.A.No.1963/2001 filed on behalf of the petitioner herein in F.A. No.410/99 dated 12-7-2001. 3. Learned counsel for the petitioner vehemently argued that by filing application dated 12-7-2001 before the first appellate Court, the petitioner herein has vacated the possession of the suit premises and finally the order of withdrawal of first appeal has been passed by this Court on 2-4-2007. Learned counsel submits that both the parties have adduced evidence to show as to when the petitioner herein has vacated the possession, but the Court below has illegally held that the petitioner has vacated the possession on 18-12-2007 i.e. admission of the respondent herein, and has not considered evidence and other documents filed on behalf of the p@titioner herein. /4. The petitioner herein has filed application for withdrawal of appeal on 12-7- 2001 in F.A.No.410/99 vide I.A.No.1963/2001. As per the order dated 2-4- T^ 2007, it has been passed in absence of counsel for the respondent and the petitioner's counsel has informed the Court that the petitioner has vacated the possession of suit premises in the month of May, 2001, therefore, he seeks to withdraw the appeal, and the appeal has been dismissed as withdrawn. After filing of application under Section 151 of the CPC, the Court below has provided opportunity of hearing to the parties and has permitted to adduce evidence. Even the Commission has also been issued. As per admission of the respondent, he has obtained vacant possession on 18-12-2007. 5. Decree for eviction has been granted against ffie petitioner herein vide judgment & decree dated 13-7-99 passed by the District Judge, Bilaspur in Civil Suit No.9-A/99 which has been challenged by the petitioner herein in the year 1999 vide F.A.No.410/99. The appellant therein/petitioner herein filed application for stay of execution under Order 41 Rule 5 of the CPC as I.A.No.5115/99, it has been allowed and execution of eviction part of decree has been stayed vide orders dated 28-7-1999 and 25-8-1999. Thereafter, the petitioner herein has filed application dated 12-7-2001 as I.A. No. 1963/2001 for withdrawal of appeal. As per the information given by counsel for the appellant/petitioner on 2-4-2007, the appellant/petitioner has vacated the possession of suit premises in the month of May, 2001,though eviction part was stayed vide orders dated 28-7-1999 and 25-8-1999. 6. The petitioner herein has filed detailed application for withdrawal of appeal supported by affidavit on 12-7-2001, but for the reasons best known to the petitioner, he has not mentioned the fact that he has vacated the suit premises in the month of May, 2001 i.e. prior to filing of the application or even he has not mentioned the fact in the said application that he has vacated the suit premises on or before filing of such application. Even after filing ofthe saidapplication, the first appeal was listed for hearing and finally the appeal was dismissed as withdrawn vide order dated 2-4-2007 in absence of the respondent. 7. While hearing the parties, the Court below has examined the witnesses and has arrived at finding that the petitioner herein has vacated the suit premises on 18-12-2007 on the basis of admission of the respondent. Eviction decree was against the petitioner, stay was granted by the High Court relating to eviction part and the petitioner has filed application for withdrawal of appeal, as per submission of counsel for the petitioner solely on the ground that he has vacated the possession, but for the reasons best known to the petitioner he has not mentioned such facts in the application Soma dated 12-7-2001 which was sine qua non for the petitioner. Even on 2-4- 2007 at the time of withdrawal of appeal, the petitioner has not given the exact date as to when he has vacated the premises. 8. In these circumstances, by holding that the petitioner has vacated the possession only on 18-12-2007, the Court below has not committed any illegality requiring interference in exercise of supervisory jurisdiction. Consequently, the petition is dismissed. No order as to costs. Sd/- T.P Sharma 'Judge iHiiieaasA.