Ashkara vs Mohammad Anwar

Rakesh Tiwari, J.

Heard Sri M.A. Qadeer, Senior Advocate for the petitioner and Sri A.N. Bhargava, learned Counsel for the respondent.

This writ petition has been filed challenging the validity of the order dated 11.5.2010 passed by the District Judge in S.C.C. Revision No. 78 of 2010 and the order dated 26.4.2010 passed by the Judge Small Causes Court, Jhansi. A further prayer has been made for a writ, order or direction in the nature of mandamus commanding the respondent not to evict the petitioner in execution case No. 13 of 2001 arising out of ex parte decree dated 30.4.2001 passed in S.C.C. Suit No. 6 of 2000 Mohd. Anwar v. Rasuley.

Aforesaid orders have been challenged on the ground that the Judge Small Causes Court has erred in law in rejecting the Misc. Application No. 33 of 2009 and application under section 5 of the Limitation Act filed by the petitioner.

The petitioner claims that late Rasuley was her father was tenant in the house Nos. 36 and 36/A situated at Purani Najhai, Jhansi, who died on 10.1.2001. Thereafter the petitioner succeeded in his interest and stayed in the house in dispute. In support of her case regarding death of Rasuley, on 10.1.2001 a copy of the death certificate has been appended as Annexure No. 1 to the writ petition.

It is submitted that Mohd. Anwar, respondent in the writ petition though had knowledge about the death of Rasuley yet he filed SCC Suit No. 6 of 2000 before the Judge Small Causes Court, Jhansi, against him for eviction and possession of the house in dispute stating that he is the landlord of the aforesaid house which he has purchased from Ramjivan Lal Mishra through registered sale deed dated 26th November, 1980. The suit was dated 15.1.2000 but is stated to have been filed on 17.1.2000.

According to the petitioner, one Ahmad Bux was also tenant of the house in dispute @ of Rs. 20/ per month and after him Rasuley succeeded as tenant by Rasuley and that the petitioner was normally residing with Rasuley till his death.

Sri M.A. Qadir, learned Senior Counsel has argued that the notice/summon sent to the defendant on 27.3.2000 was not served upon him. The Trial Court in the circumstances directed the plaintiff to take fresh steps for service but the same was not taken. However, the Trial Court vide judgment and order dated 30.4.2001 decree the suit ex parte accepting the report of the process server that notice was served by refusal.

It is submitted by the learned Counsel for the petitioner that the report of the process server was fictitious as he was not served with summon in the suit and when she came to know about the ex parte decree, a restoration application was filed by her under Order IX, Rule 13, C.P.C. for restoration of the order dated 30.4.2001. The application of the petitioner was registered as Misc. Case No. 33 of 2009 along with an affidavit wherein it was stated that she was living at Jalaun and came to know about the ex parte decree for the first time in the year 2009 when her uncle Bholu came to her mother''s house. The Trial Court, however, by order dated 26.4.2010 rejected the restoration application of the petitioner. Aggrieved by the aforesaid order the petitioner preferred SCC Revision No. 78 of 2010 which was also dismissed by order dated 11.5.2010. These two orders dated 26.4.2010 and 11.5.2010 respectively are challenged in the present writ petition.

The contention of the Counsel for the petitioner is that the District Judge has wrongly observed that the petitioner had knowledge of the decree dated 31.5.2009 which is against the record and that the Revisional Court has wrongly held that she is not tenant. It is stated that the petitioner has already filed an application before the Judge under section 340, Cr. P.C. against the respondent for obtaining the decree by fraud and as the decree is now sought to be executed in execution case No. 13 of 2001. The petitioner is under threat of eviction and as such she prayed for reliefs claimed in the petition.

Per contra, learned Counsel for the respondent Sri A.N. Bhargava submits that this is the third inning in which aforesaid execution suit has been challenged before this Court by different persons claiming themselves to have inherited the tenancy from Rasuley. He has vehemently argued that the aforesaid order attained finality up to the Apex Court and therefore it is not now open to any person to reagitate the matter claiming tenancy through Rasuley. As far as date of death of Rasuley, and filing of the suit are concerned, he submits that it has been considered by the Court below earlier as well as by the Supreme Court which has been pleased to dismiss the S.L.P. bring at rest the controversy which is again raised in this writ petition.

It is further submitted by the learned Counsel for the petitioner that the admittedly the plaintiff/respondent claimed himself to be the owner and landlord of the house of Mohd. Anwar after having purchased the same from Ramjivan Lal by registered sale deed dated 26.11.1980. At the time of purchase of the house by Mohd. Anwar, one Ahmad Bux was the tenant of the house in dispute at Mainpuri @ rent of Rs. 20/per month. The suit was decreed ex parte by the Judge Small Causes Court, Jhansi vide order dated 30.4.2001 against Rasuley who is said to have entered the house as a sikmi tenant but was later on recognized as tenant by the landlord.

The suit appears to have been decided ex parte after service upon Rasuley which was deemed sufficient by virtue of denial of acceptance of notice issued by the Court. Pursuant to the decree in favour of Mohd. Anwar execution application was again filed which was registered as Execution Case No. 13 of 2001. In the aforesaid execution proceedings Navi Bux filed objection under Order XXI, Rule 99 of the C.P.C. through his Counsel Sri Rajiv Gupta advocate on two grounds that his father Rahim Bux was the owner of the house in dispute and further that the ex parte decree has been obtained by fraud as Rasuley died on 10.1.2001 even before institution the suit. Hence services could have been affected upon him which was bad for the same. The objections filed by Navi Bux did not find favour with the Executing Court and were turned down by it which was challenged by Navi Bux filed in revision No. 33 of 2003 before the District Judge, which was also dismissed.

Aggrieved by the judgment in the revision Navi Bux moved the High Court through Civil Misc. Writ Petition No. 49116 of 2004 which was also dismissed vide order and judgment dated 24.5.2000 holding that the Courts below have also gave a finding of fact considering the allegation that Rasuley had died prior to the institution of the suit as incorrect and that such finding of facts cannot be permitted to be reagitated in the writ petition. The Court further held that Navi Bux preferred S.L.P. before the Apex Court which was also rejected and thus the order passed in the execution proceeding became final against Navi Bux as such the proceedings by Navi Bux amounted to misuse of process of law and also imposed cost of Rs. 5,000/ while dismissing the writ petition.

It appears that thereafter one Wahid filed an application under Order XXI, Rule 97 and 99 and section 151, C.P.C. through Sri Rajiv Gupta, Advocate, claiming himself to be the owner and in possession over the house in dispute and alleging that decree obtained by Mohd. Anwar against Rasuley is bad in law on the same grounds as in the earlier application field by Navi Bux i.e. the decree was obtained against a dead person. This application was also rejected by the Executing Court and also by the Revisional Court.

After rejection of the aforesaid application filed by Wahid, the petitioner in the present writ petition Smt. Ashikara has now moved an application under Order IX, Rule 13 of the C.P.C. through the same Counsel namely Rajiv Gupta, Advocate, claiming that that Rasuley had died on 10.1.2001 hence the service said to have been affected upon him by way of refusal is bad in law. It was further claimed that Mohd. Anwar has no title over the property in dispute hence the ex parte decree dated 30.4.2001 was liable to be set aside.

The application aforesaid filed by Smt. Ashkara registered as Misc. Case No. 33 of 2009 was preferred after about 8� years along with application under section 5 of the Limitation Act was also dismissed by the Court below noting the contention of the petitioner that she gained the knowledge about the ex parte decree against her father on 9.11.2009 from her uncle Bholu but had never heard about the same as she was residing at Konch in district Jalaun in her inlaws house, that she has moved an application under Order IX, Rule 13 of the C.P.C. and only prayed that her application be allowed and delay be condoned. Objections were filed by Mohd. Anwar to the extent that the petitioner Smt. Ashkara was neither a tenant nor heir of her father Rasuley. It was stated that Rasuley was Sunni muslim and was not defendant in the original suit before the Judge Small Causes Court and neither tenant in the house nor was in possession of it hence it was prayed that the petition be dismissed. The Court considering all the aforesaid points regarding date of death of Rasuley and filing of suit as well as question of service of summon and tenancy which the petitioner claimed to have devolved upon her, recorded a finding that the petitioner was not a defendant in the case and therefore could not present the application under Order IX, Rule 13 of the C.P.C. While recording a finding that Smt. Ashkara is Sunni muslim and does not inherit the tenancy rights from her father Rasuley of which she claims to be the heir. Hence, neither tenancy can devolve upon her in this case as she was not tenant nor she was in possession to the house in dispute and was not normally living with Rasuley at the time of his death. This point attained finality in the High Court as well as by the Apex Court hence cannot be reagitated again.

The Revisional Court in the revision has also recorded a finding of fact that the contention of Smt. Ashkara that she had got knowledge about the ex parte judgment dated 9.11.2009 as such the fact that she had been informed by her uncle Bholu at her inlaws house at Konch District Jalaun is incorrect. The contention of the petitioner which have been considered by the Court below and given in paragraph No. 12 to 18 in detail are quoted below :

In order to appreciate this argument, the affidavit of Smt. Ashikara needs to be referred. In para 14 of this affidavit it has been sworn that she came to knowledge about the ex parte decree on 9.11.2009, when Bholu, her uncle informed her at her in laws'' place in Konch, DistrictOral. In the verification clause it is mentioned that the contents of paras 1 to 16 are true to the personal knowledge of the deponent, to with, Smt. Ashkara. In view of the verification clause of the affidavit, all the contents of the paragraphs 1 to 16 of the affidavit shall be taken to be the personal knowledge of the deponent Smt. Ashkara Para9 of the affidavit of Smt. reads as follows :

Bare perusal of para9 categorically goes to show that in the year, 2003, the deponent Smt. Ashkara came to know that the ex parte decree was passed and further his brother Mohd. Rafiq alias Pappu informed Amin on 31.5.2003 about the death of Rasuley. Thus, Smt. Ashkara according to her own affidavit, had the knowledge of the ex parte judgment against her father Rasuley. Since this fact of the ex parte judgment was to the knowledge of the applicant/revisionist, on 31.5.2003 or any time before it. Resultantly the date of knowledge of the ex parte judgment cannot be taken any more later than 31.5.2003. Having taken into consideration this date, the application for setting aside the ex parte decree, under Order IX, Rule 13 of the C.P.C. Moved on 17.11.2009, is obviously very much delayed and no explanation has been given on behalf of Smt. Ashkara about this delay, nor has this delay been requested to be condoned. This application was not maintainable and the learned Court blow has rightly rejected the application about the condonation of delay.

Now comes to the question whether the application of the revisionist under Order IX, Rule 13 of the C.P.C. was maintainable or not. After rejection of the application under section 5 of the Limitation Act, this question was possibly not required to be probed, but the learned Court below has taken pains to this respect as well, hence this Court also considers it proper to discuss this as well.

In view of the provision of Order IX, Rule 13 of the C.P.C., the application can be moved by the defendant and if the defendant has died, the application may be moved on behalf of legal heirs of the defendant. In execution proceedings Mohd. Anwar (plaintiff/respondent) has substituted the wife of the deceased Rasuley''s deceased son namely, Smt. Shahnaz, as party. Smt. Ashkara the present revisionist was not a defendant in original SCC Case No. 6 of 2000 nor she was legal heir of Rasuley. According to her own admission in the affidavit, the applicant/revisionist was married much prior to the death of Rasuley. According to Sunni law, to which Smt. Ashkara and Rasuley belong, the expectant right of an heirapparent can not pass by succession of his heir, nor can it pass by bequest to a legatee under his Will. Thus, Smt. Ashkara ceases to be the legal heir of the deceased Rasuley. Even if for the sake of argument it be assumed that Smt. Ashkara was the legal heir of Rasuley, it cannot be denied that all the heirs of Rasuley were not arrayed as parties in the application, hence the application under Order IX, Rule 13 of the C.P.C. was bad in law.

It is nowhere the case of Smt. Ashkara that she reside over the house in dispute. According to her own admission by way of affidavit, she has admitted that she was married much before the death of her father Rasuley and after her marriage she is living at her inlaws place in Konch, DistrictOrai. She has nowhere claimed herself to be the occupant of the house in dispute, hence she cannot be treated as a tenant of the house in question. Under section 3 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the tenant has been denied as under:

"(a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant''s death;

[(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death ;

(2) in the case of nonresidential building, his heirs]

[Explanation An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant]"

Perusal of the definition of tenant shows that only occupant of the house can succeed tenancy and nobodyelse. The house is a residential building. Under these circumstances Smt. Ashkara can never assume the status of the tenant of the house in dispute.

Now comes the finding about the death of Rasuley on 10.1.2001. By the repeated findings of the Executing Court, Revisional Court, and the Hon''ble High Court in writ petition referred to above, it has categorically been held that the death of Rasuley on 10.1.2001 could not be proved and the same matter cannot be agitated. There does not appear any reason for the learned Court below nor for this Court to arrive at the different finding than this, which has not been permitted to be challenged by the Hon''ble Superior Court.

It is evident from narration of facts that Rajiv Gupta, Advocate filed application on behalf of the different persons for recall of the ex parte decree and in the execution case, admittedly, if Smt. Ashkara was normally residing with her father at the time of his death summons would have been endorsed by her accepting that her father died but in this case no such application was made by Smt. Ashkara or her brother Mohd. Rafiq alias Pappu son of Rasuley. It is also apparent from the record that the petitioner Smt. Ashkara was married much before the death of her father Rasuley and after her marriage was living at her inlaws house at Konch in district Jalaun and not with her father with whom a son Mohd. Rafiq alias Pappu was living as has been notice by the Court below Mohd. Rafiq alias Pappu son of Rasuley also died but before his death he moved an application dated 31.5.2003 before the Amin informing him that his father Rasuley has died about three years back. After death of Mohd. Rafiq alias Pappu, tenancy would have devolved upon his spouse namely Shahnaz in terms of section 3 (g) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 who had lived in her inlaws house but she went back to her Maika after death of Mohd. Rafiq alias Pappu and remarried elsewhere. Therefore under these circumstances the petitioner was neither tenant nor tenancy would have devolved upon her. She has no right to move an application for entitling tenancy rights being a Sunni muslim as has been rightly noted by the Court below.

Even otherwise the law is "settled that in case of joint tenancy the service of notice upon one of the tenant is sufficient for all other joint tenants. I am supported in my view by the ratio laid down in the judgment by his Lordship in 1989 (4) SCC 214. The findings of the Court below that Smt. Ashkara had knowledge about judgment in suit proceedings does not suffer from any error of fact or in law. The application filed by her after more than eight years is clearly barred by time for which her explanation does not inspire confidence.

In view of all reasons stated above, the writ petition appears to be frivolous and therefore dismissed with the cost of Rs. 30,000/ upon the petitioner.