SMT.SHASHI DEVI SHARMA v. SHRI AMARCHAND GOEL & Ors.

09.02.2011 + RSA No.21/2011 & CM No.2196/2011 (for stay) SMT.SHASHI DEVI SHARMA ………..Appellant Through: Mr.S.K.Duggal, Advocate. Versus

SHRI AMARCHAND GOEL & ORS. ……….Respondents. Through: Nemo. CORAM: HON’BLE MS. JUSTICE INDERMEET KAUR

Whether the Reporters of local papers may be allowed to see the judgment?

To be referred to the Reporter or not? Yes

Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) CM No.2195/2001 (for exemption) Allowed subject to just exceptions. RSA No.21/20011 & CM No.2196/2011 (for stay)

1. This appeal has impugned the judgment and decree dated

10.12.2010 which had endorsed the finding of the trial judge dated

13.3.2007 whereby the suit filed by the plaintiff seeking a declaration to the effect that the eviction order dated 18.11.2003 passed in eviction petition No.1621/2003 has been obtained collusively by the respondents and the same be declared null and void had been dismissed.

2. In the written statement, it had been contended that the suit is not maintainable as admittedly objections have been filed against RSA No.21/2011 the said eviction order and which are yet pending. It was further stated that the order in the said eviction petition calls for no interference.

3. A preliminary issue had been framed by the trial judge which reads as follows: “Whether the suit is barred in view of the provisions of Order 21 Rule 97 and 101 CPC”

The certified copy of the objections filed by the plaintiff as also general power of attorney executed by Bimlawati W/o Madan Lal in favour of defendant no.1 dated 15.12.1989 qua the suit property (the property bearing No.C-18/238 measuring 300 sq. yards) had been placed on record of the Trial Judge. The certified copy of the affidavit of Subhash Chand wherein he had stated that he had sold the property measuring 70 sq. yards to Sushil Kumar vide sale deed dated 26.11.1991 executed by the plaintiff in favour of Raj Narayan qua 25 sq. yards of the said property; the general power attorney in favour of Raj Narain, GPA executed by Baij Nath dated 26.12.1989 showing his address in the suit property; the sale deed executed by one Ram Rakha Mal in favour of Hari Kishan having a different description of the property were the other documents filed before the Trial Court.

Order XXI of the Code of Civil Procedure Rule (hereinafter referred to as „the Code‟) deals with the execution of decrees and orders. Rule 97 gives a right to the holder of a decree for possession of immovable property if resisted or obstructed by any person to make an application complaining of such resistance or obstruction. Rule 101 of XXI stipulates: RSA No.21/2011

All question (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

The present suit is a suit for declaration seeking a declaration that the eviction order passed by the Additional Rent Controller is void. Admittedly the objections filed by the plaintiff are pending before the Additional Rent Controller; the said objections have challenged the same eviction order; the plaintiff cannot be allowed to re-agitate the same issue by way of the present suit when admittedly his objections are pending before the Additional Rent Controller. A second forum was held not available to him and rightly so. This finding was endorsed by the first appellate Court. The substantial questions of law have not been formulated in the body of the appeal. They are grounds of appeal which have been mentioned in para 8. The appeal is, in fact, liable to be dismissed on this ground alone.