IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 83 of 2002 Reserved on.: 20.6.2008 Date of decision: 27.6.2008 Church, United Church of North India and another Petitioners. Versus Smt. Neena Kaushik and another Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. B.K.Malhotra, Advocate. For respondent No.1. Mr. Naresh K.Sood, Advocate. Deepak Gupta, J. This petition under article 227 of the Constitution of India is directed against the Judgement dated 31.12.2001 delivered by the Additional District Judge, Sirmaur District at Nahan in Civil Misc. Appeal No. 7-N/14 of 2001/2000, whereby he has rejected the appeal of the petitioners and upheld the order passed by the learned Senior Sub Judge, Nahan dated 24.6.2000 whereby he has rejected the objections filed by the present petitioners. This case has a long and chequered history. The property which is the bone of contention was previously owned by one Kanwar Narbir Singh. Its 1 Whether the reporters of the local papers may be allowed to see the Judgment? possession was with one Shri Bela Singh (hereinafter referred to as the tenant). The property was purchased from Kanwar Narbir Singh by Neena Kaushik (hereinafter referred to as the landlady). The landlady purchased this property in July 1974. An eviction petition was filed by the landlady against the tenant in the Court of Rent Controller, Sirmaur at Nahan on 4th December, 1975. This eviction petition was contested by the tenant on various grounds. One of the grounds taken was that he is residing in a portion of the demised premises and the remaining portion of the building was being used as a Church for worship by the Christian community. Shri Bela Singh also denied that he was the tenant in the premises and asserted that the demised premises were under the tenancy of Ambala Church Council of the United Church of North India. He, however, was the Presbyter in-charge of the Church at Nahan. He also set up the plea that the building was a non-residential building, since portion of it was being used as a Church. The Rent Controller came to the conclusion that the tenant Shri Bela Singh was occupying the demised premises in his personal capacity and had not paid the arrears of rent. He also held that the landlady had proved her bonafide requirement for the use and occupation of the premises. The Rent Controller further came to the conclusion that the demised premises were in a decrepit state and required to be rebuilt. On these grounds, an order of eviction was passed against the tenant on 30th November, 1978. The tenant challenged the eviction order by filing an appeal before the Appellate Authority, which appeal was dismissed. He filed a Civil Revision before this Court, which was also rejected. This Court while rejecting the revision petition was pained to note the attitude of the tenant in the eviction proceedings. The Court observed that the tenant denied every thing including the fact that the original owner had transferred the premises to the landlady. With regard to the plea as to whether the Church was a tenant, this Court observed that a “wholly false plea was set-up that it is the Church, who is the tenant”. The tenant raised many other frivolous pleas. After the revision petition was dismissed by the Court, the tenant approached the apex Court, where also his petition was rejected. The landlady then filed an execution petition in the year 1996 for possession of the demised premises. In this execution petition objections were filed by the tenant. He also concocted a new story that after the eviction order had been passed, a compromise had been entered into between him and the landlady and he had been again inducted as a tenant. This plea of tenant also did not find favour with the Rent Controller. The tenant also raised objections with regard to the identity of the property. These objections were also rejected by the Rent Controller. All these orders of the Rent Controller were challenged by the tenant in revision petitions before this Court but he failed in all these cases. Finally on 30th May, 2000, the Rent Controller issued warrants of possession, which were made returnable for 12th June, 2000. When the bailiff went to the spot he found that the judgement debtor had locked the premises. The Bailiff in his report noted that after locking the premises the tenant had gone away. The landlady filed an application that possession may be handed over to her after breaking open the lock. Fresh warrants were issued returnable for 29th June, 2000 in which permission to break the lock was also given. When the Bailiff went to the spot alongwith the decree holder then the tenant, his family members and 15-20 other person gathered on the spot and agitated against the warrants being executed. Assistance of the police was thereafter sought for. The learned Rent Controller approached the learned District Judge, Nahan who in turn took up the matter with the District Magistrate, Sirmaur and police assistance was granted. On 6.6.2000, the present petitioner Ms. V.R.Nirdosh filed an application in the execution petition. She claimed to be a member of the Protestant Christian Community. According to her, her father was in-charge of the United Church of North India and after his death she had been serving the people of her society. She alleged that there was a Church headed by Reverend Shri Bela Singh situated in the property in question. She averred that it had now come to her knowledge that the landlady claiming to be owner of the property on the basis of some frivolous and false sale deed had obtained an order of eviction. She, therefore, prayed that warrants of possession dated 30.5.2000 be recalled and the objections of the objector be decided. This application was signed by her. Alongwith this application a power of attorney in favour of counsel Shri U.S.Dviwedi of Ambala City was also filed. Reply to this application was filed. Thereafter, additional objections were purported to have been filed on behalf of Ms. V.R.Nirdosh on 19.6.2000. Written submissions were also filed on the same date. Further, objections were also stated to have been filed by her on 22.6.2000. I have gone through all the objections and I find that the signatures on the later objections, especially those dated 19.6.2000 are totally different from the signatures on the original objections dated 6.6.2000. It is apparent that subsequent objections have not been signed by Ms. V.R.Nirdosh but by some other person. It is not very difficult to deduce that this person can be no other than the tenant Shri Bela Singh. The facts of the case have been given in detail to show that the tenant Bela Singh was trying every possible method, legal or illegal, to somehow thwart the execution of the order of eviction passed against him. When all objections filed by him and his family members failed, it is apparent that objections were got filed through Ms. V.R.Nirdosh, the present petitioner. It would be pertinent to mention that in the first objection the petitioner specifically took the plea that Church housed near Chogan was a religious place headed by Reverend Bela Singh. She did not claim any personal right in the property but claimed that the property was the property of United Church of North India. She did not file any document to show that she had been authorised by the United Church of North India to file the applications. In fact, there is nothing on record to show her connection with the United Church of North India. Detailed reply to her application was filed. Thereafter, the objector is alleged to have filed the additional objection on 19.6.2000, which on perusal by the naked eye are not signed by the same person who signed the previous objections. In this additional objection, the plea taken is that United Church of North India, firstly through reverend A.K.Wiser (her father) and thereafter through her, had been in possession of the property since 1929 as owner and had become owner by way of adverse possession. Again no document was filed to support the claim. The second set of objections is totally contrary to the first objection. In the averments made in the first objection she had stated that the property in question is under the control of Bela Singh. She also stated that she had been residing at Jagadri but regularly visited the Church at Nahan. In the objections filed on the next date, she claimed to be in possession of the property. These objections were rejected by the learned executing Court by passing a detailed order. This order was upheld in appeal. Hence, the present petition. The main ground raised on behalf of the objector is that no opportunity was given to the objector to put forth her case. Shri B.K.Malhotra, learned counsel for the objector has strenuously contended that the objections could not have been rejected in a summary manner. He submits that now under law a party cannot challenge a decree by filing a separate suit and the objections under Order 97 must be tried like a suit. Shri B.K.Malhotra submits that issues should have been framed and the parties should have been permitted to lead evidence. Learned counsel also submits that the findings given in the eviction petition are not binding on the objector since the objector was not a party to the eviction petition. In support of his contention Shri B.K.Malhotra has relied upon Noorduddin vs. Dr. K.L.Anand, (1995) 1 Supreme Court Cases 242, Babu Lal vs. Raj Kumar and others, (1996) 3 Supreme Court Cases 154, Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, AIR 1997 Supreme Court 856, Prasanta Banerji vs. Pushpa ashoke chandani and others (2002) 9 Supreme Court Cases 554 and M/s Anupam Coffee House, Kandaghat and another vs. Ved Parkash and another, Latest HLJ 2004 (HP) 919. There can be no dispute with regard to the proposition that when objections are filed under Order 97 and 98 or order 21 by third party the Court is bound to adjudicate upon the same before the Court issues any warrants of possession. However, as observed by this Court in Anupam Coffee House case, the approach of the Court should be pragmatic and not pedantic. The objector under Order 21 Rule 97 brings to the notice of the Court certain facts. He must also show that he is not a pretender for the judgement debtor. He must show and assert that he has his own right, title or interest in the immovable property. The apex Court in Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, AIR 1997 Supreme Court 856 only decided the question that the objections of the stranger obstructionist must be decided before he loses possession. There is no procedure prescribed under Order 21 Rule 97 as to how the objections should be decided. In my considered view, in case, the objector makes out a prima facie case that he is not masquerading for the judgement debtor and prima facie is able to show to the executing Court that he has some right or title in the property then the Court may frame issues and record evidence. However, I am also of the considered view that any obstructionist or third party cannot stall and delay the execution proceedings without prima facie convincing the Court that it has some case in its favour. Otherwise, every judgement debtor can get objections filed by a third party and if these have to be decided like a regular suit there would be no end to the litigation. True it is, that the rights of the genuine objectors have to be protected but the person who objects must prima-facie show to the Court what right he or she has in the property. In the present case, I find that Ms. V.R.Nirdosh is not even claiming any personal right in the property. She claims that the property belongs to the United Church of North India. The objector has not placed on record any resolution of the United Church of North India or any other document showing that she has been authroised to file the objections. As already pointed out above initially the objector took the plea that it is the tenant Bela Singh who was incharge of the Church at Nahan. However, on the next date in the objections, which apparently have been signed by some other person, a new plea was taken up that she is in possession of the premises. No explanation was give as to in what capacity she is in possession of the premises. No document was attached showing that she was an office bearer of the Church or in what capacity she was in possession of the property. I have no doubt, what-so-ever in my mind, that the petitioner was masquerading and filing the objections only on behalf of the original tenant Bela Singh. The question whether it is Bela Singh or the Church, which is the tenant, had already been decided in the eviction petition. It is no body’s case that decree of eviction was passed by collusion between the parties. The original tenant had contested the eviction petition upto the Supreme Court and thereafter filed number of objections in the execution petition. Frivolous objections have been raised at every stage. In the facts of the present case, I am of the considered opinion, that it was not necessary to frame issues or to ask the parties to lead evidence. The objector had not even placed any document to even remotely indicate that she had any right, title or interest in the property or she had been authorised by the United Church of North India to file the petition. The present petition has been filed by United Church of North India through Ms. V.R.Nirdosh. In the petition it is only stated that she is next friend of the Church. Some document should have been filed to show the authority under which she had filed the petition on behalf of the Church. No document has been placed on record to show as to what connection Ms. V.R.Nirdosh has with the Church and how she is next friend of the Church. An objection was raised by the respondent that the present petition is not maintainable and that second appeal lay against the order of the learned District Judge is also not maintainable. Since, I have dealt with all aspects of the matter, I do not propose to decide this question. On merits, itself I find that there is no case in favour of the petitioner. It has also been urged on behalf of the respondents that in fact perusal of the reports of the Bailiff shows that Ms. V.R.Nirdosh was not an obstructionist within the meaning of Order 21 Rule 97, since, she never resisted any of the warrants of possession on the spot. This objection raised by the petitioner appears to be correct. However, I have decided the matter by presuming for the sake of argument that Ms. V.R.Nirdosh is entitled to file the objections. By the time the present petition was filed, the warrants of possession had already been executed but the objectors managed to obtain an order that the parties be directed to maintain status quo with regard to the possession. The petition was filed on 2nd May, 2002 and possession had been delivered to the landlady by Ms. Kiran Virk daughter of tenant Bela Singh on 23.9.2000. This stay order has worked to the disadvantage of the landlady. I am of the considered view that this is a fit case where exemplary costs should be awarded while rejecting the petition since the tenant and thereafter Ms. V.R.Nirdosh have managed to stall the execution proceedings for many years. Even after possession was delivered to the landlady the petitioners have effectively thwarted the landlady from putting the property to any appropriate use till date. In view of the above discussion, I find no merit in the petition, which is dismissed with exemplary costs assessed at Rs.20,000/-. 27th June, 2008 (Deepak Gupta), J. ™