CR No.679 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.679 of 2011 (O&M) Date of Decision: 07.04.2011 Neelam Rani . . .Petitioner Versus Balbir Singh Gumbar and another . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Animesh Sharma, Advocate, for the petitioner. Mr.M.S. Sachdeva, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J (ORAL) This revision petition is directed against the order dated 15.1.2011 by which an application filed by the petitioner for staying the proceedings in the ejectment petition till the decision of her Civil Appeal has been dismissed. At the time of notice of motion, following order was passed by this Court: - “Learned counsel for the petitioner, inter alia, contends that respondent No.1 filed a petition under Section 13 of the East Punjab Urban Rent Restrictions Act, 1949 (for short ‘the Act’) only against respondent No.2 (Raj Kumar) without impleading her as a party though she is in possession of the demised premises as tenant. When she came to know about the filing of the eviction petition, she filed an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for short ‘CPC’) alleging collusion between respondents No.1 and 2 seeking her eviction from the demised premises. It was CR No.679 of 2011 (O&M) - 2 - alleged in the application that she is running her business in the demised premises under the name and style of Pooja Travels as a sole proprietor and her marriage with respondent No.2 has already been dissolved on 23.3.2005 by order passed by the Fast Track Court, Jalandhar. The said application was allowed and she was impleaded as a party to the eviction petition. She had also filed Civil Suit No.221 of 2009 seeking declaration that she is a tenant on the demised premises under respondent No.1 and that the ejectment petition, referred to above, is an act of collusion between the defendants No.1 and 2. In the said suit, defendant No.2 remained ex parte. The learned trial Court dismissed the suit holding that the petitioner is not the tenant but is in possession. The petitioner filed first appeal under Section 96 of the CPC on which stay has been granted and appeal is pending then she filed an application before the Rent Controller with the prayer that the eviction petition be ordered to be adjourned sine die to await the result of the appeal but the said application has been rejected by the Rent Controller vide its impugned order dated 15.1.2011 on the ground that the Rent Controller is competent to decide the relationship of landlord and tenant and the evidence in the rent petition has already been led and the case is fixed for final disposal. Learned counsel for the petitioner has argued that collusion of respondents no.1 and 2 is writ large as respondent No.2 after filing written statement is not taking any interest in the eviction petition as he has not even cross-examined CR No.679 of 2011 (O&M) - 3 - witnesses of the landlord and since he has strained relationship with the petitioner, he want that by virtue of the eviction petition she should be evicted from the demised premises. He also relies upon a Division Bench judgment of the Karnataka High Court reported as “K.Gangasetty and another Vs. S. Munisami” 1992(1) RCR (Rent) 44 to contend that the finding between the parties with regard to relationship of landlord and tenant by the Civil Court is binding upon the Rent Controller and vice versa. It is submitted that appeal is in continuation of the suit and till the appeal is decided, the proceedings before the Rent Controller is ordered to be kept in abeyance especially for the reason that respondents No.1 and 2 have an illegal nexus in order to throw the petitioner out of the demised premises. Notice of motion for 03.03.2011. Till then passing of the final order by the Rent Controller is stayed.” Pursuant to the notice of motion, Mr.M.S. Sachdeva, Advocate has put in appearance on behalf of respondent No.1 and submitted that the application moved under Section 10 of the Code of Civil Procedure, 1908 (for short ‘CPC’) before the Rent Controller is not maintainable in support of which he has relied upon a decision of this Court in the case of “Kishori Lal Vs. Radha Rani Gupta” 1994(2) RCR 647 and one Andhra Pradesh High Court judgment in the case of “Binodlal Sagarmal (M/s.) Vs. Prem Prakash Gupta” 2004(2) RCR 712. He further submits that as the petitioner has already been impleaded as a party on her application moved under Order 1 Rule 10 of the CPC and is contesting the ejectment petition inasmuch as she has led evidence by examining four witnesses besides tendering documents, therefore, she cannot allege that after disappearance CR No.679 of 2011 (O&M) - 4 - of her husband from contesting of the eviction petition her interest in the demised premises has been adversely effected. In reply, learned counsel for the petitioner has submitted that proceedings in the eviction petition are liable to be stayed as her Civil Appeal is pending where she is trying to prove that she is a direct tenant although she had failed to prove the same before the trial Court in her Civil Suit. He further submits that if the Rent Controller holds that she is not the tenant and the Civil Court decides otherwise in appeal then there would be conflicting orders. In this regard, learned counsel for the respondent No.1 has submitted that the learned Rent Controller has yet to decide that the petitioner is a tenant or not whereas it has already been decided by the Civil Court that she is not the tenant and is only in possession being wife of the tenant. After hearing both the learned counsel for the parties and taking into consideration the facts and circumstances of the case, I am of the view that the petitioner does not have any merit in her revision petition for the purpose of staying the eviction proceedings as she had already lost before the Civil Court in proving that she is the tenant in the demised premises. Moreover, it is not a case where she is not a party in the eviction petition before the Rent Controller and would unnecessarily suffer an ejectment order in her absence rather the admitted facts are that she is contesting the eviction petition and has already led evidence both oral as well as documentary, therefore, the eviction petition cannot be kept in abeyance only for the reason that her civil appeal is pending. In view of the above, I do not find any merit in the present revision petition and as such the same is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) APRIL 07, 2011 JUDGE Vivek