-1- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad son of late Shri Bhairon Lal VERSUS Additional Civil Judge (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. Date of Judgment :::: 9th April 2010 Hon'ble Mr. Justice Dalip Singh Shri G.P. Sharma, Counsel for the Petitioner Shri Satish Khandal, Counsel for the Respondents *** By the Court : Heard learned counsel for the parties. This writ petition has been filed by the objector- petitioner, who had preferred an application under Order 21 Rule 97 C.P.C. along with an application under Section 151 C.P.C. for staying the delivery of possession and the warrant for possession as well as request for Police assistance. The said application under Section 151 C.P.C. was dismissed by the learned Executing Court vide order dated 24.10.2009. During the course of hearing of this petition, it was revealed that before any order could be passed by this -2- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. Court, the warrant for possession had already been executed and possession delivered to the decree-holder. In the facts and circumstances, therefore, no relief can be granted in this writ petition so far as the application under Section 151 C.P.C. is concerned. Learned counsel for the petitioner thereafter sought to contend that the learned Court below has committed an error in deciding the application under Section 151 C.P.C. on merits and thereby virtually deciding the entire application under Order 21 Rule 97 C.P.C. I am of the view that with a view to determine the prima-facie case if it becomes necessary for the Court to consider the merits of the submissions the same have to be considered and dealt with while passing the order on the application for interim relief. In the instant case, the most striking feature is that the decree-holder non-petitioner filed a suit for eviction against the two brothers of the petitioner namely; Ramgopal son of late Shri Bhairon Lal and Sita Ram son of late Shri Bhairon Lal, non-petitioner Nos.3 and 4 respectively. The aforesaid suit came to be dismissed by the learned trial Court after being contested by the defendants. The plaintiff decree-holder preferred a first appeal, which was allowed by the learned Lower Appellate -3- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. Court and against which both Ramgopal and Sita Ram preferred S.B. Civil Second Appeal bearing No.823 of 2007 before this Court. The said second appeal came up for consideration before the High Court on 16.01.2008. The defendants Ramgopal and Sita Ram, who had preferred the second appeal submitted before this Court that they may be granted some time for vacating the premises and accordingly vide order dated 16.01.2008 nearly an year and half's time was allowed to the defendants Ramgopal and Sita Ram, the non-petitioner Nos.3 and 4, herein for vacating the premises on or before 31st July, 2009. Needless to say that the aforesaid order came to be passed on the premise that both, Ramgopal and Sita Ram, non-petitioners Nos.3 and 4 were in possession of the premises in dispute and they wanted some time to hand- over vacant possession of the premises in dispute. One of the condition for granting the time for vacating the premises upto 31.07.2009 was that the defendants would submit an undertaking before the learned trial Court that they would handover vacant and peaceful possession of the premises to the plaintiff decree-holder on or before 31st July, 2009. In the said order, the condition No.3 imposed by the Court was that the defendants would further submit an -4- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. undertaking that they shall not sublet, assign or part with possession of the premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period i.e. upto 31.07.2009. Before the Court a solemn undertaking was given and upon the same the Court granted time to the defendants upto 31st July, 2009. The condition No.3, which was part of the undertaking given before the Court clearly stipulates that no third party interest would be created and no part of the premises would be entrusted to any third party. If any third party, including the present petitioner had any interest in the premises, it was expected that the defendants should have clearly stated before this Court that there was the interest of third party, namely present petitioner, who was one of the brother of the defendant and that he was in possession of the premises. But this not done. In the facts and circumstances, the learned Court below having taken into account all these salient features, which have been mentioned above did not find any prima- facie case in favour of the present petitioner for staying the execution and the warrant for delivery of possession and dismissed the application under Section 151 C.P.C. -5- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. Learned counsel appearing for the respondent No.1 pointed out from the reply submitted by the respondents and the documents annexed therewith that the present petitioner is in fact not in possession of the premises in dispute, inasmuch as he owns a separate house and is in possession of the said premises situated at 1-B-67 Shiv Shakti Colony (B), Shastri Nagar, Jaipur, which forms part of Ward No.64 of Hawamahal Vidhan Sabha Constituency, Jaipur. In support of the aforesaid, the voter list, including containing the names of the petitioner and members of his family in the aforesaid premises situated in Shastri Nagar, Jaipur other than the present premises are clearly spelt-out. Learned counsel for the petitioner did not dispute the aforesaid fact. Learned counsel sought to contend that in fact he did not dispute the fact that he was in possession of the said premises in Shastri Nagar, but he submits that this would not lead to the conclusion that the petitioner does not have any possession of the premises in dispute. So far as the aforesaid submissions is concerned, there is on record, filed along with the reply the documents, including the voter list, Annexure R/2 for Ward No.60 of Kishanpole, Vidhan Sabha Constituency of Jaipur where the -6- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. premises in dispute is situated. The persons shown as residents of the premises in dispute as voters are Ramgopal and his family members and Sita Ram, the judgment-debtor only. Their names appear from serial number 476 and 482 of the voter list for Ward No.60 of the Kishanpole, Vidhan Sabha Constituency of Jaipur, where the disputed premises is situated. The name of the petitioner and his family are conspicuous by their absence so far as the address of the premises in dispute situated in Ward No.60 of Kishanpole, Vidhan Sabha Constituency, Jaipur is concerned. Prima- facie, therefore, the voter list of 2008 and 2009 go to show that in fact the petitioner was not in possession and not residing in any portion of the disputed premises in Kishanpole, but instead of was residing at the premises situated at 1-B-67 Shastri Nagar, Jaipur. Apart from the voter lists the and water and electricity bills, there is also the application submitted by Ramgopal, the judgment-debtor-respondent No.3, herein before the learned Executing Court on 21.08.2009 after the time allowed to vacate by 31st July, 2009 expired in terms of the order of this Court dated 16.01.2008 passed in second appeal for vacating the premises. By the aforesaid application Ramgopal submitted before the learned Executing Court that he had applied for -7- S.B. Civil Writ Petition No.14336 of 2009. Jagdish Prasad Vs. A.C.J. (J.D.) Jaipur (W), Jaipur City, Jaipur & Ors. extension of time before this Court and, therefore, the warrant for possession may not be issued and the execution should remain stayed. The very fact that it was Ramgopal, who was even after the expiry of the period for vacating the premises had expired applying to this Court for extension of time goes to show that it was only Ramgopal, judgment-debtor, who was in possession of the premises, in dispute and not the present petitioner. In the facts and circumstances, I find no reason to interfere in the writ jurisdiction with the impugned order. The application of the present petitioner is malafide and an abuse of the process of the Court in the facts and circumstances mentioned above. The writ petition is accordingly dismissed with costs of Rs.5000/- to be paid to the decree-holder by the petitioner, the same may be realized by way of execution of this order by the learned Executing Court. (Dalip Singh), J. Ashok/