Shahbuddin vs Mohd. Akhlaq

V.B. Gupta, J.—This appeal is filed against judgment dated 5th June, 2009 of Additional District Judge, Delhi, vide which objections filed by appellant were dismissed.

Brief facts are that, in Year 2003, respondent herein, the owner-landlord of property No. 104-D, Gali No. 10, Zakir Nagar, Okhla, New Delhi, filed suit for possession of one shop on the ground floor which was let out to the appellant herein, and also for recovery of Rs. 1,66,000/- as arrears of rent and damages.

The suit was contested by present appellant, which was decreed in favour of respondent. Decree for sum of Rs. 1,62,000/- on account of arrears of rent was passed in favour of respondent, and appellant was further directed to pay damages for unauthorized use and occupation of the shop, till he handed over the vacant possession.

Appellant filed appeal (No. RFA 92 of 2007) in this Court. Along with it, application for stay was also filed, on which following order was passed on 29th March, 2007;

The appellant shall pay the entire arrears of rent/damages/mesne profits to the respondent in the present appeal within one month from today and would continue to pay month to month rent/damages/mesne profits to the respondent as per the computation in the decree under appeal. Subject to compliance of this condition, the appellant will not be dispossessed from the premises in question.

Thereafter, appellant filed an application seeking permission to deposit admitted rent @ Rs. 500/- p.m. On 27th April, 2007, this Court ordered that this application would be considered at appropriate stage and in the meantime appellant was directed to comply with order dated 29th March, 2007.

Appellant filed SLP in Supreme Court against order dated 27th April, 2007, which was dismissed.

Later on, appeal (No. RFA 92 of 2007) was dismissed in default for non-prosecution, which has since been restored.

It is contended by learned Counsel for appellant that trial court wrongly allowed execution application since no site plan of the property was filed.

It is also contended that respondent obtained the judgment and decree dated 31st August, 2006 by causing misrepresentation and suppression of material facts and has played fraud upon appellant.

Present appeal of appellant is most bogus and frivolous one. It is nothing but an abuse of the process of law. Decree for possession/damages was passed in the year 2006, but till date, appellant has neither vacated the premises nor is paying any rent/damages to the respondent/landlord, in spite of order dated 29th March, 2007. Appellant is enjoying the property, without paying even single penny.

Coming to the plea of the appellant that, no site plan was filed along with execution application, it is falsified from the findings given by trial court. In impugned order it is held;

An application u/s 151 read with Section 153 CPC dated 24th August, 2007, moved by DH for issue of warrants of possession as per the site plan filed along with application. The application has been contested by JD by filing a reply. However, no site plan has been filed by the JD despite sufficient opportunities nor the JD or his Counsel has appeared since morning on repeated calls.

Thus, appellant has made false averments in the present appeal that, execution application did not accompany the site plan.

Besides this, no other objection was taken by the appellant before trial court.

Hence, there is absolutely no merit in this appeal which is devoid of any legal force. This appeal is most frivolous, bogus one and has been filed just to deprive the landlord of the fruits of his decree. Such type of frivolous appeal deserves to be dismissed with heavy costs. Accordingly, present appeal is dismissed with costs of Rs. 25,000/-.

Costs be deposited in the name of Registrar General of this Court, within one month from today.

CM No. 8614/2009

Dismissed.

List for compliance on 12th October, 2009.