CR No.1044 of 2011 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1044 of 2011 (O&M) Date of decision:22.03.2011. Satish Kumar and others ...Petitioners Versus Mohan Lal and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Jaideep Verma, Advocate, for the petitioners. Mr. Sanjeev Sharma, Advocate, and Mr. Amit Rawal, Advocate, for respondent No.1. ***** RAKESH KUMAR JAIN, J. This revision is directed against the order dated 04.12.2010 by which objection filed in the execution application by Satish Kumar, Sandeep Kumar, Sunil Kumar sons of Dharampal and Lata Rani widow of Dharampal on 08.05.2009 has been dismissed. A few skeletal facts are required to be noticed in order to unfold the controversy between the parties. Late Dharampal and Late Raksha Devi, who were brother and sister, were tenants in the demised premises (shop) since 1978 on rent @ `120/- per month. The landlord Mohan Lal filed Rent Petition No.4 of 07.03.2001 against Dharampal and Lalita Kumari, Manju Bala, Anju Bala, Raman Bala, Ranju Bala, all daughters of Late Raksha Devi as her legal heirs, under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] on the grounds of arrears of rent and ceased to occupy the demised premises since March 2000. Since Dharampal could not be served through ordinary process, therefore, he was ordered to be served on 22.01.2002 by way of publication in “Daily Ashiana” published from Patiala, but despite that he did not appear and as such, he was proceeded against ex parte on 09.04.2002. However, the legal heirs of Raksha Devi appeared and contested the eviction petition. The ground of non-payment of rent became redundant as the rent was tendered, but eviction was ordered on 08.09.2006 on the ground of ceased to occupy the CR No.1044 of 2011 (O&M) -2- ****** demised premises. The learned Rent Controller directed the tenants to hand over vacant possession of the demised premises, which was depicted in the site plan Ex.AW3/1, to the landlord within four months from the date of the order. Aggrieved against the order of ejectment, statutory appeal was filed by all the heirs of Raksha Devi and one of the heirs of Dharampal, namely, Raj Kumar. The learned Appellate Authority maintained the order of the learned Rent Controller vide its order dated 11.12.2008, which led to the filing of Civil Revision No.1492 of 2009 which was filed by Raj Kumar S/o Dharampal along with the heirs of Raksha Devi, but the said revision petition was dismissed by this Court on 22.04.2009 and the Review Application No.41-CII of 2009 filed in CR No.1492 of 2009 was also dismissed on 04.05.2009. On the other hand, the landlord was pursuing his execution of the order of eviction before the Civil Court/Rent Controller in which warrant of possession was issued on 25.04.2009, but the bailiff reported that the shop is lying locked with four locks on it. After the failure of Review Application No.41-CII of 2009 filed in CR No.1492 of 2009, objections were filed in the execution application by the present petitioners on 08.05.2009 in which it was alleged that as the landlord knew that Dharampal is missing since 05.06.1999 he should have impleaded his legal heirs as parties before the learned Rent Controller and that the description of the demised premises is not correctly given in the petition filed under Section 13 of the Act, as alleged in the site plan Ex.AW3/1. On 05.12.2009, Raj Kumar S/o Dharampal filed his objection separately in which he raised more or less the same issues which were raised by the other heirs of Dharampal in their objection dated 08.05.2009. Another objection was filed on 12.03.2010 by two daughters of Raksha Devi, namely, Ranju Bala and Manju Bala, again raising the same issues which have been raised earlier by the heirs of Dharampal. The landlord filed reply on 01.08.2009 to the objections dated 08.05.2009 filed by the present petitioners. While these objections were pending, the petitioners filed an application dated 08.05.2009 under Order 26 Rules 9 & 10 read with Section 151 of the Code of Civil Procedure, 1908 [for short “CPC”] for the appointment of Local Commissioner to inspect the spot and submit a report regarding the actual and factual condition of the shops in question and an application dated 08.08.2009 under Order 6 Rule 17 read with Section 151 of CPC in order to amend the objections dated 08.05.2009. CR No.1044 of 2011 (O&M) -3- ****** Both the applications, under Order 26 Rules 9 & 10 and under Order 6 Rule 17 of CPC, filed by the petitioners were dismissed by the learned Additional Civil Judge (Senior Division), Khanna vide his order dated 22.10.2009. Thereafter, one application was filed by the heirs of both Dharampal and Raksha Devi including the petitioners and Raj Kumar for transfer of the execution application from the Executing Court, Khanna to some Court at Ludhiana, which was dismissed on 04.12.2010, but the said order was challenged by Raj Kumar by way of Civil Revision No.5760 of 2010. The said revision petition was allowed by this Court on consensual basis and the execution application was transferred from the Executing Court at Khanna to the Civil Judge (Senior Division), Ludhiana, but with a direction to decide it within a time frame as the heirs of the tenants were trying to delay the execution. On 04.12.2010, the objection filed by Raj Kumar S/o Dharampal on 05.12.2009 was dismissed which was challenged by him by way of Civil Revision No.8241 of 2010 but the same was dismissed in limine by this Court on 23.12.2010. While the Executing Court had dismissed the objection of Raj Kumar on 04.12.2010, on the same day the objection filed by the present petitioners were also dismissed by the impugned order, against which the present revision petition was filed on 10.02.2011, perhaps after watching the fate of the revision petition filed by Raj Kumar against the order of dismissal of his objections on 23.12.2010, but in the meantime, the Executing Court after noticing the statement of bailiff recorded its satisfaction that the possession could not be given without the police help and thus ordered that the letter be written to the learned Additional Sessions Judge for police help. From the resume of the aforesaid facts, it is apparent that heirs of both Dharampal and Raksha Devi have been contesting the litigation tooth and nail. The rent petition was allowed against which appeal was filed by Raj Kumar S/o Dharampal who had further filed revision petition in this Court and after its dismissal, filed review application as well. Similarly, he also filed objection in the execution application. He was a party in the application seeking transfer of the execution application from the Court at Khanna to Ludhiana and had also filed a revision against the order by which his objections were dismissed by the learned Executing Court. It is also brought to the notice of the Court that the Court of Shri B.K.Sharma, Civil Judge (Senior Division), Khanna had lodged one FIR No.265 CR No.1044 of 2011 (O&M) -4- ****** of 2010 in the Police Station Khanna on 01.10.2010 against Raj Kumar, S/o Dharampal, resident of House No.572/15, Bank Colony, Khanna, under Sections 193/420/468/471/120B/34 of the Indian Penal Code, 1860. It is also brought to the notice of the Court that Satish Kumar S/o Dharampal had also made a complaint to the SHO, Police Station Khanna on 14.01.2011 in which he has given his address as House No.572/15, Bank Colony Khanna, Tehsil Khanna, District Ludhiana. Aggrieved against the impugned order dated 04.12.2010, the petitioners have filed the present revision petition alongwith an application bearing CM No.4441-CII of 2011 by which they had sought exemption from filing certified copies of Annexures P-2, P-6 and P-9 and also sought permission to place on record copies of Annexures P-1, P-3, P-4, P-5, P-7 and P-8. The said application was allowed on 16.02.2011. Since the petitioners had projected before this Court by way of photographs that Sohan Lal bailiff was taking bribe from the landlord for the purpose of executing the warrant of possession, notice of motion was issued by this Court and the dispossession of the petitioners was stayed. In pursuance of notice of motion, respondent had put in appearance and the matter was kept for further proceedings and in the meantime, the respondent/landlord filed an application bearing CM No.6381-CII of 2011 in order to seek exemption from filing of certified/true typed/photocopies/true translation of Annexures R-1 to R-16 and CM No.6382-CII of 2011 for placing them on record. All the documents were found to be of the judicial record and as such, both the applications are hereby allowed and the documents are taken on record. The petitioners also filed CM No.6234-CII of 2011 in order to produce photographs and a complaint against bailiffs Ram Rattan and Sohan Lal which has been allegedly made to the District and Sessions Judge, Ludhiana. The application is allowed and the documents are taken on record. The petitioners also filed CM No.7080-CII of 2011 in order to place on record some more documents which are the zimni orders passed by the Courts. The application is allowed and the documents are taken on record. Opening his submissions, learned counsel for the petitioners has argued that order of the learned Rent Controller passing ex-parte eviction is patently illegal as the landlord knew that Dharampal is missing since 1999, therefore, he should have impleaded his legal heirs as parties. In this regard, he has relied upon a decision of the Delhi High Court in the case of Smt. Bimla Devi CR No.1044 of 2011 (O&M) -5- ****** and others Vs. Dharam Chand and another, 1993(2) R.C.R.(Rent) 676. He further submitted that Dharampal, who was earlier missing, died on 28.06.2009, as a result of which they had inherited the tenancy and were, thus, entitled to be impleaded as party in the pending litigation. It is also alleged that as the description of the property in dispute is not correct in the site plan Ex.AW3/1, the learned Court below should not have dismissed the application for appointment of Local Commissioner. On the other hand, learned counsel for the respondents has submitted that the petitioners have not approached the Court with clean hands and have been playing hide and seek throughout. It is alleged that the eviction proceedings were finally concluded with the dismissal of Review Application No.41-CII of 2009 filed in CR No.1492 of 2009 on 04.05.2009, therefore, the death of Dharampal on 28.06.2009 was hardly of any consequence for the purpose of impleading the present petitioners as parties. It is also submitted that the petitioners have been watching the proceedings from back stage as they had projected one of the brothers Raj Kumar in front who had filed the appeal against the order of eviction and had also filed this revision petition and review application before this Court. It is also submitted that from the FIR No.265 dated 01.10.2010 and the letter of the petitioner Satish Kumar dated 14.01.2011 it is clear that Satish Kumar and Raj Kumar are living in the same house No.572/15, Bank Colony Khanna and were in fact hand in glove in the entire proceedings though the allegations are made by Satish Kumar against Raj Kumar of having strained relations. Learned counsel for the respondents has also submitted that if one of the legal heirs is watching the interest, then all of them are not required to be even impleaded. In this regard, he has relied upon a decision of this Court in the case of Gurdev Kaur Vs. Gram Panchayat Balad Kalan and others, 2009(1) R.C.R. (Civil) 550. I have heard learned counsel for the parties in detail and have perused the entire record with their able assistance. The admitted facts are that Dharampal and Raksha Devi were the tenants and have now left for their heavenly abode. When the eviction petition was filed by the landlord, Dharampal was impleaded as a party and efforts were made to serve him personally and when he was not found he was served by way of publication in the newspaper, namely, “Daily Ashiana”. After the eviction CR No.1044 of 2011 (O&M) -6- ****** order was passed, son of Dharampal, namely, Raj Kumar filed the appeal. He failed to satisfy the Appellate Court about the ex-parte proceedings against Dharampal before the learned Rent Controller. The eviction order was maintained by the learned Rent Controller which was challenged by Raj Kumar before this Court but the revision petition filed by him was dismissed and even the review application was also dismissed. When this chapter was over, the present petitioners were brought in front by Raj Kumar for the purpose of staying the execution proceedings on the plea that Dharampal was not properly represented before the learned Rent Controller. Raj Kumar also thought of filing objection in the execution application in which he has specifically mentioned that he is the legal heir of Dharampal. When the Executing Court dismissed the objection of Raj Kumar and also of the present petitioners on the same day, i.e. 04.12.2010, again it was decided by them to file the revision petitions one after the other and in that process Raj Kumar was the first one to file the revision petition. Since Raj Kumar remained unsuccessful in the revision petition, then the present petitioners came forward to file the present revision petition after a period of more than 2 months, rather after the order of issuance of warrant of possession dated 03.02.2011 because the present revision petition was filed on 11.02.2011. It was tried to be projected before this Court from the photographs etc. that the landlord is an influential person who had greased the palm of the bailiff for the purpose of taking possession which impressed the Court at the first blush on the basis of which notice was issued and dispossession of the petitioners was stayed. However, the fact remains that the petitioners had filed applications, under Order 26 Rules 9 & 10 and under Order 6 Rule 17 of CPC, for the purpose of appointment of Local Commissioner and also tried to amend the objections, but the said applications were dismissed on 22.10.2009. Then, effort was made by all of them together in filing the application for transfer of the execution application from the Court at Khanna to the Executing Court at Ludhiana, which was dismissed but the revision petition was allowed by this Court on consensual basis. All these facts are sufficient to point out that the petitioners have not approached this Court with clean hands and have been unnecessarily making allegations against their real brother Raj Kumar about their strained relations. No evidence has been brought on record to show their strained relations except filing one photostat copy of the CR No.1044 of 2011 (O&M) -7- ****** ration card of Raj Kumar in order to show that he is living separately. In this regard, the decision of this Court in Gurdev Kaur's case (supra) would be helpful because it was held therein that all the legal heirs are not required to be brought before the Court if interest of all is fully watched by one of them. In my opinion, since Raj Kumar was looking after the interest of other heirs of Dharampal and there is not even prima facie evidence on record of strained relations amongst the brothers or other sons of Dharampal, the proceedings having been thoroughly carried out by Raj Kumar would be deemed to have been carried out on behalf of the petitioners as well. Insofar as the judgment in the case of Smt. Bimla Devi and others (supra) is concerned, that would not be applicable to the facts of the present case because the entire proceedings have been contested by Raj Kumar S/o Dharampal who has failed to prove that Dharampal has not ceased to occupy the demised premises for 4 months prior to the date of the filing of petition. In view of the above discussion, I do not find any merit in the present revision petition and as such, the same is hereby dismissed, however, without any order as to costs. Before parting with this order, it is also pertinent to mention that there are allegations levelled by the petitioners against Sohan Lal and Ram Rattan bailiffs qua whom he had already filed some complaint to the learned District and Sessions Judge, Ludhiana. Since this Court had not issued notice to both of them, therefore, no decision can be taken in their absence, but from the photographs which have been appended with this revision petition it would be expedient for the District and Sessions Judge, Ludhiana to hold an enquiry against these two bailiffs in view of the complaint made by the present petitioners. The Registry of this Court is directed to send a photostat copy of the complete paper book of this case to the learned District and Sessions Judge, Ludhiana for this purpose. March 22, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE