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Chhotey Etc. Vs. Mohammad YasIn Etc - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 94 of 1976
Judge
Reported in1977RLR484
ActsDelhi Rent Control Act, 1958 - Sections 25; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 97
AppellantChhotey Etc.
RespondentMohammad YasIn Etc
Advocates: D.L. Malhotra and; K.K. Mittal, Advs
Excerpt:
.....cause by the judgment debtor or by some other person on his instigation that they shall direct the applicant to be put in possession. i am not satisfied that this omission to give notice can thus be brushed..........against the sons. daughters and widow of ahmad hussain, the present objector-apyellants, who filed objections dated 21-3-1975 urging that they had been inducted as tenant in the property by mohd. ahmad. during the pendency of the objection the appellant filed an application dated 1-3-1976 for stay of execution, but the same was dismissed by the additional rent controller by his order dated 7-5-1976 as it found that the objector appellant was not able to make out any case for stay of the execution and fixed 26-7-1976 for disposal of the objection. after the dismissal of the stay application the petitioner sought to execute the decree and not having been able to do so, he filed an application on 11-5-76 before the additional rent controller for police aid. this application without.....
Judgment:

Rajindar Sachar, J.

(1) The appellant objector filed an appeal before the Rent Control Tribunal and asked for interim stay which was refused vide order dated 3-8-1976. Thereafter the objector filed an appeal to this Court which was admitted on 20-8-1976 and further proceedings have been stayed in the court below.

(2) On 11-5-1963 Mohd. Yasin and Mohd. Ahmed filed an application against Ahmed Hussain father of the present appellants. During the pendency of the proceedings in the Court of the Rent Controller, Mohd. Ahmed stated that he has sold his share to Mohd. Yasin and thereafter the name of Mohd. Ahmad was struck off from the array of the parties. Decree of eviction was passed in favor of Mohd. Yasin alone on 28-11-1964. The appeal of Ahmad Hussain was dismissed as withdrawn before the Rent Control Tribunal on 4-6-1965 and he undertook to vacate the said property by 15-12-1966.

(3) Ahmad Hussain having refused to vacate the premises the decree-holder took steps under the Slum Areas Act seeking permission to execute the decree. Before however the competent authority could dispose of the application Ahmad Hussain died on 3-11-1974.

(4) Subsequently the decree holder filed an application being execution No. 16/75 for executing the decree against the sons. daughters and widow of Ahmad Hussain, the present objector-apyellants, who filed objections dated 21-3-1975 urging that they had been inducted as tenant in the property by Mohd. Ahmad. During the pendency of the objection the appellant filed an application dated 1-3-1976 for stay of execution, but the same was dismissed by the Additional Rent Controller by his order dated 7-5-1976 as it found that the objector appellant was not able to make out any case for stay of the execution and fixed 26-7-1976 for disposal of the objection. After the dismissal of the stay application the petitioner sought to execute the decree and not having been able to do so, he filed an application on 11-5-76 before the Additional Rent Controller for police aid. This application without issuing notice to the objector was also fixed for 23-7-1976. On 23-7-1976 the objector appellants sought adjournment for producing evidence in their objection application to the execution was granted and the matter was adjourned to 20-8-1976. On the same day the decree holder examined some witnesses in his application of 11-5-1976 and the Additional Rent Controller on unrebuted evidence took the view that it was a case in which police aid should be given and it was so directed. Against this order the present appeal has been brought to this Court. The main criticism of the counsel for appellant is that under Order 2lRuley7CPC when an application is filed it is mandatory on the court to fix a date for investigating the matter and it is only after the court is satisfied that the resistence was occasioned without any just cause by the judgment debtor or by some other person on his instigation that they shall direct the applicant to be put in possession. Mr. Mittal learned counsel for the respondent does not dispute that a formal notice of the application of 11-5-1976 was not issued to the appellants. He however sought to urge that as the date fixed for the disposal of the objection filed under Section 25 of the Rent Control Act filed by the appellant and the application seeking police aid filed by by the respondent were fixed for the same day the appellant should be presumed to have knowledge and could have led the evidence in the police aid application. He also states that had the evidence been led it would not have made much difference. I am not satisfied that this omission to give notice can thus be brushed aside. Technically the impugned order seems to suffer from infirmity though it appears to me that after having rejected the application for stay of execution of 7-5-1976 there was frankly nothing for the trial court but to hold that the appellant had no right to resist the execution application. Of course it is true that appellant's objection to the executability of the decree against them are pending and certainly if their objections succeed they are entitled to remain in possession and it is also true that had they been dispossessed on the prima facie view of the court (hey would have been entitled to be put back in possession if their objection had later on been allowed. It seems to me thereforee that though it is not possible to permit the order of 23-7-76 to be implemented when neither the determination of application for police aid was made after notice nor the objections of the appellants have been disposed of. In my view the fair and correct course would be that the order of 23-7-1976 allowing police aid would remain stayed till the objections which have been filed by the appellants against the execution of decree are disposed of by the Additional Rent Controller. The same would have been disposed of but for the the stay given by this court. The appellant had also made a statement before the the court on 23 7-1976 that he will only produce two witnesses and two objectors and then he will close his evidence. I would, in the circumstance direct that the trial court will now dispose of the objection petition filed by the appellant under Section 25 of the Rent Control Act. The matter has been inordinately delayed and as such it is directed that the appellant objector will be given only one opportunity to produce all his witnesses. Of course if they are not examined on that day because of the reason of the court they will be given another date, but no date will be given by the trial court if the witnesses are not produced by the appellant on the date fixed. If the trial court accepts the appellant's objection petition, obviously the question of the decree-holder seeking the police aid cannot arise and that application will become infructuous. If however the trial court dismisses the objection of the appellant it would be evident that the objectors then would have no right or title to remain in possession of the property, and in that eventuality the order of the Rent Controller dated 23rd 1976 allowing the police aid to the decree-holder may be implemented. Of course it does not in any way affect or take away in any way the appellant's right to challenge the said order dismissing objections by any appropriate proceedings that is open to them under law and to obtain any order that is available to them. Subject however thereforee to any order being obtained by appellant from competent authority allowing them to remain in possession the order permitting police aid to be given to the decree holder may be carried out and implemented.


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