High Court · 2012

The decree holders/plaintiffs in Title Suit No.13/2004, by the present p etition have challenged the judgment and order dated 31.05.2011 passed by the le arned Civil Judge No.1, Cachar at Silchar, in Misc. Appeal No.19/2009, dismissin g the appeal preferred by the present petitioners by affirming the order dated 1 7.06.2009 passed by the learned Munsiff No.1, Cachar at Silchar, in Misc. Case N o.156/2006 arising out of Title Execution Case No.21/2006, whereby and whereunde r the application filed by the present respondent Nos.1 and 2 under Order 21 Rul e 97 and 99 of the CPC has been allowed by holding that the decree obtained in t he aforesaid suit being Title Suit No.13/2004 cannot be executed against them. It has been submitted by Mr. Phukan, learned counsel for the petitioners that though in the application filed under Order 21 Rule 97 and 99 all question s raised therein are required to be decided in terms of the provisions contained in Order 21 Rule 101 CPC, the learned Munsiff No.1 has passed the order dated 1 7.06.2009 on the basis of the pleadings of the parties and without recording any evidence to record the finding as to whether the respondent Nos.1 and 2 are the tenants in respect of the suit house, who are undisputedly the heirs of the ori ginal tenant Nasir Uddin. The learned counsel further submits that in the object ion filed against the application filed under Order 21 Rule 97 and 99, the petit ioners never admitted that the present respondent Nos.1 and 2, who are the heirs of Nasir Uddin are the tenants. It has been submitted that in the objection fil ed, it has been specifically pleaded that the present respondent No.3 was the on ly tenant in respect of the suit premises and against which the decree has been passed. Mr. Phukan also submits that even though the respondent Nos.1 and 2 are the legal heirs of Nasir Uddin, they may not be the tenants in respect of the su it premises, which question, however, has not been gone into by allowing the par ties to adduce evidence by the learned Munsiff No.1 before passing the order dat ed 17.06.2009. Per contra, Mr. Rajbarbhuiyan, learned counsel appearing for the respond ent Nos.1 and 2 submits that it is evident from the order dated 17.06.2009 passe d by the learned Munsiff No.1 that the present petitioners have admitted that th e present respondent Nos.1 and 2, who filed the application under Order 21 Rule 97 and 99, are the tenants and as such no illegality has been committed by the C ourts below in deciding the said application filed by the respondent Nos.1 and 2 without recording any evidence. I have considered the submissions made by the learned counsel for the pa rties and also perused the materials made available in the revision petition. It appears that the present petitioners instituted Title Suit No.13/2004 against the respondent No.3 for eviction on the ground of defaulter and bonafid e requirement. The said suit was decreed and though the present respondent No.3 challenged the said decree in Title Appeal No.49/2005, the same has also been di smissed. The said decree was put to execution in Title Execution Case No.21/2006 , wherein the respondent Nos.1 and 2 have filed an application under Order 21 Ru le 97 and 99 of the CPC contending that the decree passed in Title Suit No.13/20 04 is not executable against them as they are not parties to the suit and they b eing the successors-in-interest of the original tenant Nasir Uddin, are tenants along with the respondent No.3, who was the defendant in Title Suit No.13/2004. In the objection filed by the present petitioner, it has been stated that the pr esent respondent No.3 in the written statement filed in Title Suit No.13/2004 ha s admitted that he is the tenant and he used to pay rent to the plaintiffs after the death of Nasir Uddin, the original tenant. It has also been stated in the s aid objection that though the present respondent Nos.1 and 2 are the other legal heirs of Nasir Uddin, they are not in possession of the suit property as the te nants. The learned Munsiff No.1 has taken the same as the admission of the peti tioners admitting that the respondent Nos.1 and 2 are the tenants in respect of the suit house under the petitioners and passed the order without allowing the p arties to lead evidence. The appeal preferred by the present petitioners being M isc. Appeal No.19/2009 has also been dismissed on the said ground. Order 21 Rule 101 of the CPC provides that all questions, including ques tions 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 repr esentatives, and relevant to the adjudication of the application, shall be deter mined by the Court dealing with the application and not by a separate suit and f or this purpose, the Court shall, notwithstanding anything to the contrary conta ined in any other law for the time being in force, be deemed to have jurisdictio n to decide such question. The Court in which such application under Order 21 Ru le 97 and/or 99 of the CPC is filed, therefore, unless of course the averments m ade in the said application are admitted, is to decide the questions raised by g iving the opportunity to the parties to adduce evidence, which has not been done in this case. In view of the above, both the orders dated 17.06.2009 passed by the lea rned Munsiff No.1 in Misc. Case No.156/2006 and the order dated 31.05.2011 passe d by the learned Civil Judge No.1 in Misc. Appeal No.19/2009 are set aside. The matter is remitted to the learned Munsiff No.1 to decide the Misc. Case No.156/2 006 afresh by allowing the parties to adduce evidence. Since the said proceeding has been instituted in the year 2006, all endeavour shall be made by the learne d Munsiff No.1 to decide the said proceeding within 6(six) months from the date of the appearance of the parties as fixed by this Court. The parties are directe d to appear before the learned Munsiff No.1, Cachar at Silchar on 10.04.2012. The revision petition is accordingly allowed, as indicated above. No cos ts. The Registry is directed to send the copies of this order passed today t o the learned Munsiff No.1, Cachar at Silchar as well as the learned Civil Judge No.1, Cachar at Silchar immediately.