Mahendra Prasad v. Gyandeo Sharma & Ors.

which was filed by the sole plaintiff-opposite party no.1 for eviction of the sole defendant-opposite party no.2 from the suit premises, which is 2 a shop room on the grounds of default in payment of rent by the defendant and bona fide personal requirement of the plaintiff.

4. In the said suit, defendant-opposite party no.2 appeared and filed his pleadings admitting the relationship of landlord and tenant between the parties. However, due to non-compliance of the order of the trial court passed under section 15 of the Bihar Building (Lease, Rent & Eviction ) Control Act, 1982 ( hereinafter referred to as `the Act’ for the sake of brevity), his defence against ejectment was struck of and finally said suit was decreed on the said ground by the learned court below vide order dated 24.09.2005 holding that there was relationship of landlord and tenant between the partiers. For the execution of the aforesaid decree, the plaintiff-decree holder-opposite party no.1 filed Execution Case No. 05 of 2005.

5. The sole defendant-judgment debtor-opposite party no.2 challenged the said judgment and decree of the eviction suit in First Appeal No. 299 of 2005. Much subsequently the defendant-decree holder-appellant filed I.A. No. 05 of 2007 under Order XLI Rule 5 of the Code for stay of the proceeding of Execution Case No. 05 of 2005, but after considering the matter in detail this Court rejected the aforesaid interlocutory application vide order dated 29.01.2007 passed in the said first appeal.

6. It transpires that thereafter on 24.03.2007 Misc. Case no. 06 of 2007 was filed in Execution Case No. 05 of 2005 under the provisions of Order XXI Rules 97, 99, 100 and 101 of the Code by the petitioner Mahendra Prasad, who was not a party to the eviction suit or execution proceeding. The aforesaid miscellaneous case was contested 3 by the plaintiff-decree holder, but the defendant-judgment debtor did not appear the said miscellaneous case. Finally the said miscellaneous case has been rejected by the learned court below vide order dated 29.09.2007, which is under challenge in the instant civil revision.

7. The claim of the petitioner is that if a miscellaneous case under the provisions of Order XXI Rules 97, 99, 100 and 101 of the Code is filed, it has to be adjudicated with regard to right, title and interest of the petitioner and the decree holder in respect of the disputed properties as per the mandatory provisions of law, which have been completely ignored by the learned court below while passing of the impugned order.

8. The second point raised by the petitioner is that there was defect in the frame of the suit because defendant-opposite party no.2 was wrongly impleaded as he was merely one of the three partners and was neither a managing partner nor the proprietor of the firm, which was the tenant but the tenant firm was not impleaded as a party although it was a necessary party under the provision of Order XXX Rule 1 of the Code.

9. Learned counsel for the petitioner further submits that the firm is tenant of only a small godown of plaintiff-opposite party no.1 but the said godown is not the subject matter of the suit, whereas, the shop in question, which is the subject of the suit, belonged to one Ashok Kumar and the firm is paying rent to the said Ashok Kumar.

10. The third point taken by learned counsel for the petitioner is that there is no proper description of the suit property in 4 the plaint as neither any holding number nor plot number nor circle number nor khata number nor any proper description with boundary have been given therein and hence it merely adds to the frivolity of the suit.

11. Learned counsel for opposite party no.1 disputed in detail all the points raised by learned counsel for the petitioner and presses the reply filed on behalf of opposite party no.1 stating the matter in detail and annexing several documents. She also produces a copy of the plaint, which shows that full description of the suit property is detailed therein.

12. From the arguments advanced by learned counsel for the parties and materials on record as well as the facts and circumstances of the case, it is quite apparent that even according to the objector-petitioner, the firm in question, namely, Navrang had three partners; first of them being defendant-opposite party no.2 Chandra Mohan Prasad, the second being objector-petitioner Mahendra Prasad and the third being one Manish Kumar. Although the objector- petitioner has stated that the firm was tenant and hence the firm should have been impleaded as a defendant in the suit, but the miscellaneous case has not been filed by the firm, rather it was filed only by another partner.

13. On the other hand, it was specifically claimed by plaintiff-opposite party no.1 that defendant-opposite party no.2 was the Proprietor of the said firm, which was also admitted by defendant- opposite party no.2 himself as will be apparent from the memorandum of First Appeal no.299 of 2005, in which the said defendant-opposite 5 party no.2 was the appellant and has described himself as Proprietor of M/s Navrang. Similarly in Civil Revision No. 819 of 2004 filed by defendant-opposite party no.2, he has specifically described himself as Proprietor of M/s Navrang, which has also been mentioned in the vakalatnama filed on his behalf. Furthermore, the trial court while decreeing the suit had found relationship of landlord and tenant between plaintiff-opposite partyno.1 and defendant-opposite party no.2.

14. So far question raised by the objector-petitioner that the landlord of the firm was one Ashok Kumar to whom the firm was paying rent is concerned, the same cannot also be relied upon in the aforesaid facts and circumstances when such an objection was not raised by defendant-opposite party no.2 at any stage of the suit and appeal both and admittedly he was one of the partners of the firm in question even according to the case of the objector-petitioner. Furthermore, the petitioner is not claiming the suit property on the basis of any right or title of his own, rather he is stating that the firm, which he was representing, was merely a tenant but neither the firm is before this Court nor even the objector-petitioner can have any right, title or interest in the suit property to resist proceeding of execution of the decree. Hence even according to the claim of the objector- petitioner, no question of right or title was to be decided by the executing court in the miscellaneous case.

15. So far question of description of the suit property is concerned, it is quite apparent from paragraph no.3 of the petition of Misc. Case No.06 of 2007 filed by the objector-petitioner and made Annexure 5 to the civil revision that in the execution case, the specific 6 details of the suit properties have been given and there is no ambiguity due to which the executing court could face any difficulty in executing the decree. It will be interesting to note that the objector-petitioner is the brother-in-law of the defendant-judgment debtor (opposite party no.2) and he had filed Misc. Case No.06 of 2007 on 24.03.2007 immediately after I.A. No. 05 of 2007 filed by the defendant-judgment debtor-opposite party no.2 in F.A. No. 299 of 2005 for stay of the execution proceeding was dismissed by a bench of this court on

29.01.2007.

16. In the said circumstances, it is quite apparent that the entire exercise is merely to delay the proceeding of the execution case . The learned court below being aware of the said facts and circumstances and attitude of the parties concerned, rightly passed the impugned order rejecting Misc. Case No. 06 of 2007.

17. In the said circumstances, this Court does not find any illegality or jurisdictional error in the impugned order of the learned court below and, accordingly, this civil revision is dismissed with a direction to the executing court to expedite the execution case to reach its logical and final conclusion. MPS/ ( S. N. Hussain, J. )