Subhash Chandra Vaish and Others vs Additional District Judge and Others

Satish Chandra, J.—Heard learned Counsel for the petitioners, learned Standing Counsel and the learned Counsel for the opposite parties.

This writ petition has been filed with a prayer to quash the impugned order dated 22.09.2005 passed by Additional District Judge in S.C.C. No. 72 of 2003 Subhash Chandra Vaish and Ors. v. Bhupendra Kumar Singh and Ors.

The brief facts of the case are that there is a property which is situated at Building No. 253, Sadar Bazar, Baniya Mohal, Lucknow where the petitioners are tenant in the basement @ Rs. 25/- per month. In the upper portion of building, there is a private temple and in the basement there is a godown which is occupied by the petitioners, as a tenant.

The opposite parties have filed a S.C.C. Suit No. 870 of 1983 Sri Bhupendra Singh v. Smt Bhagirathi Devi and Ors. in the Small Causes Court for recovery of arrears of rent, damages for use, occupation and eviction but the opposite parties have never made party to the present petitioner. The aforesaid suit was decreed vide order dated 05.03.1991. Thereafter, the opposite party No. 4 had moved an execution application, which was registered as Execution Case No. 29 of 1991 for executing the judgment and decree dated 05.03.1991. The father of the petitioners Sri Ram Nath Vaish being one of the partner in the firm who claimed as tenant, has filed an obstructions for registering the decree under Order XXI Rule 97 & 100 CPC vide Misc. Case No. 35 of 1991. The said application was rejected vide order dated 24.08.1993. Not being satisfied, the petitioner has filed a Revision No. 204 of 1993 in the Court of IXth Additional District Judge, Lucknow. In the aforesaid revision No. 204 of 1993, an objection was taken by the opposite party No. 4 that the father of the petitioner had got knowledge in respect to the S.C.C. Suit No. 870 of 1983 vide proceedings of Suit No. 548 of 1990 and, as such, the resistance of decree dated 05.03.1991 moved by the petitioners'' father vide application under Order 21 Rule 97, is not maintainable but the Additional District Judge Lucknow ignored the plea taken by the opposite parties and vide its judgment and order dated 25.01.1997 allowed the Revision No. 204 of 1993. Thereafter, the opposite party No. 2, i.e. the Additional District Judge, Lucknow vide order dated 21.11.1997 has remanded the matter back to the Small Causes Court with a direction that necessary orders may be passed after hearing the parties concerned. Against which, the review petition was preferred by the petitioners but the same was rejected vide order dated 04.08.2003. Not being satisfied, the petitioners have filed a S.C.C. Revision No. 72 of 2003 before the Additional District Judge, Lucknow which was dismissed on 22.09.2005. Feeling aggrieved against the order dated 22.09.2005, the petitioners have filed the present writ petition.

With this background, and in support of the arguments, learned Counsel for the petitioner Sri Rajeev Singh has relied on the ratio laid down in the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, where it was observed that once such resistance was offered by him the proper procedure which was required to be followed by respondent No. 1 decreeholder was the one contemplated by Order XXI Rule 97, CPC. The said provision reads as under:

Resistance or obstruction to possession of immovable property,-

(1) Wherethe holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Whereany application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

Learned Counsel for the petitioners submit that the petitioners were not a party in the suit and possession of the premises is with the firm. He further submits that whether the claim of the petitioners was right or wrong on merit is a different matter. But once such resistance was offered by him the proper procedure which was required to be followed by the decree holder was the one contemplated by Order XXI Rule, 97 CPC. According to him, the petitioner was prima-facie a stranger to the decree. When he offered obstruction/resistance to the execution of the decree, he would squarely fall within the sweep of the words "any person". He again read out para-5 of the judgment laid down in the case of Brahmdeo Chaudhary (Supra).

Finally, learned Counsel for the petitioners made a request to quash the impugned judgment and order dated 22.09.2005 passed by the Additional District Judge, Lucknow in S.C.C. Revision No. 72 of 2003 (Subhash Chandra Vaish and Ors. v. Bhupendra Kumar Singh and Ors.

On the other hand, Mohd. Arif Khan learned Senior Counsel assisted by Mohd Adil Khan learned Counsel for the opposite parties supported the impugned order. He submits that the petitioners have already got the knowledge of the decree passed in the Suit No. 870 of 1983 as there was a specific mention about the same in Regular Suit No. 548 of 1990 filed by the opposite parties as the petitioners have filed objection u/s 47 read with Order 21 Rule 35, 36, 58, 95, 96 and 97 of CPC. He further submits that the firm was never dissolved after the death of Sri Changga Lal, one partner of the firm and after his death, the godown in question came in possession of the petitioners'' father and on his death the tenancy rights were inherited by the petitioners and opposite party No. 11 and they are in possession as such. It is also submitted that neither the petitioners nor their father were ever partners in the firm M/s. Shiv Narain & Sons to the best of the knowledge of the opposite party No. 4 as they have never paid a single rupee towards the rent.

Learned Counsel further submits that the godown was let out to firm M/s. Shiv Narain and sons. After the death of the petitioners'' father, the proprietor of the firm M/s Shiv Narain and Sons who was the original tenant, the proprietorship business wound up and after the death of the petitioners'' father, they became tenant against whom a suit was filed for arrears of rent and ejectment. He also submits that the said partnership concern has got no connection with the premises in dispute which was never let out to that firm about which registration certificate was issued on 03.02.1983. He further submits that in any case if the petitioners'' father inherited the tenancy right of M/s Shiv Narain and Sons, he could not be said to be in possession in his own rights and could resist the execution application by filing objection as third person. He also submits that when the petitioners have tried to raise construction in open space lying in front of the godown, then they have filed the Regular Suit No. 548 of 1990 in which there was specific mention of the earlier suit No. 870 of 1983. He further submits that after the dissolution of the firm M/s Shiv Narain and Sons, the new firm Ms/. Biseshwar Nath Ram Nath Vaish and Sons came into existence and the father of the petitioners was partner of M/s. Bisheshwar Nath Ram Vaish and sons.

In support of his argument, he submits that there was firm known as M/s. Shiv Narain and Sons which was constituted sometime in 1954 and was registered in the office of the Registrar, Chit Funds Firms and Societies, U.P. Lucknow on 21.10.1954 comprising of three partners namely Sri Prabhu Dayal, Sri Changga Prasad and Sri Mahabir Prasad while there was another firm which was in existence on 16.11.1995 in the name and style of M/s. Bisheshwar Nath Ram Nath comprising of Sri Bisheshwar Nath son of Sri Thakur Prasad; and Sri Ram Nath son of Sri Thakur Prasad as its proprietor.

I have heard both the parties at length and gone through the material available on record.

The main plea of the petitioners is that he was not the party in the original suit. So, according to the order XXI Rule 97 of CPC, he should be made party. In the instant case, it appears that originally the godown in question was let out to firm M/s. Shiv Narain and Sons, which was constituted on 18.06.1954 (CA-2) and after that, Sri Changa Lal, the proprietor of the firm M/s Shiv Narain and sons was dissolved and the tenancy right were inherited by his legal representatives who became the tenant, against whom a suit was filed for arrears of rent and ejectment.

From the records, it appears that the petitioner was not made the party in the Original Suit. So, the Additional District Judge, Lucknow vide its order dated 21.11.1997 has remanded the matter back to the Small Causes Court with direction that necessary orders may be passed after hearing the parties concerned. The petitioners got the opportunity to represent his case. Further, the firm is a juristic person in the eyes of law after the dissolution of the Firm M/s. Shiv Narain & Sons and tenancy right has no meaning, if Ram Nath Vaish inherited the tenancy right of Firm M/s. Shiv Narain and Sons and he could not said to be in possession in his own rights and could resist the Execution Application by filing an objection as third person. It also appears that petitioners have failed to establish their relationship with the Firm M/s. Shiv Narain & Sons by leading any positive evidence. After the dissolution of the firm M/s. Shiv Narain & Sons, the new firm M/s. Visheshwar Nath Ram Nath Vaish & Sons came into existence on 16.11.1995 (CA-1) and the father of the petitioner became the partner of the new firm.

It also appears from the record that the petitioners are the tenant in the godown in question from the last forty years on a nominal rent i.e. Rs. 25/- per month. They are not interested to vacate the said premises. The plea that they were not made the party in the original suit is nothing but merely a dilatory tactics. Regarding the plea of the petitioners, it could be said that when the matter was remanded to the Small Causes Court, they had the opportunity and availed the same. Hence, the plea that they were not the party in the original suit is not sustainable. The petitioners cannot become the owner of the said godown in the name of tenancy.

Moreover, since the petitioner tried to raise construction in open space lying in front of the godown, the opposite parties filed a Regular Suit No. 548 of 1990 in which there was specific mention of the earlier Suit RS No. 870 of 1983 filed by the opposite parties against Smt. Bhagirathi Devi and others. So, the plea that the petitioners were not made parties in the original suit is baseless and a dilatory tactics.

In the instant case, the opposite party No. 4 Sri Bhupendra Kumar Singh has obtained ex-parte judgment and decree for recovery of the arrears of rent, damages as well as ejectment on 05.03.1991 in S.C.C. Suit No. 870 of 1983. The Execution Case No. 29 of 1991 Bhupender Kumar Singh v. Bharigti Devi and Ors. was also filed, which was resisted by the petitioners by filing the objections u/s 47 CPC by stating that the objector has been in possession of the property since last 40 years. It was alleged that the decree was obtained with the collusion in which the objector Ram Nath Vaish was not the party to the Suit. So, the Additional District Judge, Lucknow vide his order dated 21.11.1997, has remanded the matter back to the Small Causes Court with direction that necessary orders may be passed after hearing the parties'' concerned. Against which, a revision petition was preferred by the petitioner but the same was rejected on merit vide order dated 04.08.2003. Being aggrieved, the petitioners have filed the S.C.C. Revision No. 72 of 2003 before the Additional District Judge, Lucknow which was also dismissed on 22.09.2005.

From the facts and circumstances of the case, it appears that the revision petition was rightly dismissed as there was no discovery of new important facts and there was no new fact brought on record. In the instant case, the petitioners have exposed to be in picture for the first time for filing objection u/s 47 CPC and Order XXI Rule 95, 96, 97 CPC, which give rise to Misc. Case No. 35 of 1991. In the objection, it was alleged that the decree holder had obtained the decree dated 19.02.1991 with the collusion of the defendant whereas objector was not the party to the suit but the fact remains that the firm M/s. Shiv Narain & Sons was the partnership firm and the objector Sri Ram Nath Vaish was one of the partner of the erstwhile firm, so he was well aware about the legal proceedings.

In the case in hand, the revisional court has remanded matter once and provided opportunity to the petitioners to become necessary party. The learned executive court has already decided the question about the right, title and interest of the objector in the property in question. In the impugned order, the Additional District Judge has rightly dismissed the revision as there was no new question of law or fact was raised on behalf of the plaintiff. As stated earlier that the plaintiff got opportunity to become the necessary party in the legal proceedings on earlier occasions atleast when the matter was remanded to the Small Cause Court.

Needless to mention that it is in the interest of the State that there should be an end of litigation as per maxim Interest Reipublicae Ut Sit Finis Litigum. Moreover, it may also be mentioned that it is the duty of the judge to prevent further litigation as per the maxim Boni Judicis Est Lites Dirimese Ne List Ex Litre Oritur.

In the facts and circumstances of the case, I am satisfied that there is no sufficient reason nor any material brought on record to interfere with the impugned order where the S.C.C. Revision was rightly dismissed. Hence, the impugned order is hereby sustained along with the reasons mentioned therein. The present petition was filed to delay the proceedings pertaining to the ejectment of the said premises.

The writ petition is devoid of merit. It is accordingly dismissed.