Mohd. Shafi v. Rizwan@ Janno

1. The appellant has impugned the order dated 15th January, 2013 whereby the application filed by the appellant Qudgment-debtor in the execution petition) under Section 144 CPC was dismissed.

2. Few facts ofthe case are that the eviction order was passed against the appellant on 101 h January, 2012 which was challenged before this Court by filing of a revision petition, being RC. Rev. No.141/2012. By order dated 30th March, 2012, this Court while issuing the notice stayed the operation of the impugned judgment dated lOth January, 2012, subject to the appellant's paying the interim user charges of the disputed premises @ ~2,5001- per month from the date of passing of the eviction order and at the admitted rate of rent prior thereto. The direction was also passed that the said details be incorporated in an affidavit to be filed by the appellant within two weeks from that date. The said order was not complied with by the appellant, Ex. F.A. No.ll/2013 Page I of[4] 2013:DHC:7984 rather he filed an application for condonation of delay. The delay was condoned by order dated 16th May, 2012, subject to cost of ~3,000/- which was deposited by the appellant.

3. In the meanwhile, the execution proceedings initiated by the respondent were listed before the Addl. Rent Controller on 13th July, 2012 and the same was put up on 3rd August, 2012 for Nazir report. However, on 6th October, 2012 the possession of the suit property was taken from the appellant through Bailiff in the execution proceedings. On 14th October, 2012, the appellant filed an application before the learned Addl. Rent Controller seeking the restoration of the possession on various grounds. By the impugned order dated 15th January, 2013, the said application for restoration ofthe possession was dismissed.

4. The reasons for dismissal of the application are given in paras 7 w ]1 ofthe impugned order dated 15th January, 2013. The same read as under:-

7. Looking from this aspect, the present application filed U/s 144 CPC is not maintainable as it can be invoked only when a judgment or decree is varied or reversed in appeal or revision. Merely by filing an appeal, JD does not become entitled to restoration of possession. I am placing reliance upon the judgment rendered by Hon'ble High Court in J&K cited in AIR 1982 J&K 2.

8. This court while looking into the record, in order to see the compliance of order dated 30.3.3012 of Hon'ble High Court by JD, within time granted, inquired the factum of deposition of arrears from JD. Pursuant to the order dated 7.11.2012 passed by this court, JD has filed bunch of rent receipts showing deposition of some arrears. After having seen the same, the record filed by JD on 31.10.2012, the same pertains to the deposition of rent @ Rs.300/- p.m. w.e.f. February 2008 as per Ex. FA. No.ll/2013 Page 2 of[4] directions dated 20.9.2011 of Sh. Anil Kumar, Ld. ARC (NE) in some other petition filed U/s 14(1)(a) ofthe DRC Act titled Rizwana@ Janno Vs. Mobd. Safi. Carefully going into the record would amply show and leaves no manner of doubt that the directions of Hon'ble High Court dated 30.3.2012 have remained uncomplied till date as JD neither tendered the interim user charges of tenanted premises@ Rs.2,500/- p.m. w.e.f. 10.1.2012 nor deposited the arrears of rent @ Rs.2,500/- from eviction order i.e. 10.1.2012 and the admitted rate of rent prior thereto. The aforesaid arrears were to be cleared within an outer limit of two months from the date of order dated 30.3.2012 and it was further directed that in case of one single default, original eviction order would stand revive.

9. Having stated so, I also find that the averments in para 2 of the application mentioning full compliance by JD of the order are completely contrary to the judicial record. DH pursuant to the directions dated 28.9.2012 has already taken vacant possession ofthe tenanted premises.

10. The present application is filed only on 17.10.2012. JD did not appear earlier thereto nor apprised the court of pendency of any petition before Hon'ble High Court and only on 17.10.2012 for the first time came up with present application for restitution. JD did not take steps pursuant to the order dated 30.3.2012 of Hon'ble High Court and was imposed costs ofRs.3,000/-. It was only in September 2012, DH came to know of pendency of RC No.141112. Record further shows that even till 17.10.2012, JD had not complied with the directions ofHon'ble High Court dated 30.3.3012.

11. To say the least, JD has not been able to show that he had filed an affidavit within two weeks as ordered vide order dated 30.3.2012, showing compliance of orders. In such circumstances, can it is said that JD was dispossessed illegally and the possession should be restored to him. The answer to this would be in negative. The allegations of collusion of bailiff to dispossess are Ex. F.A. No.ll/2013 Page 3 of[4] also sans any merit as the same are bald and unsupported allegations."

5. The said order has been challenged by the appellant before this Court in the present case. Notice was issued to the respondent.

6. Learned counsel appearing on behalf of the respondent has referred the order dated 29th April, 2013 passed by this Court in revision petition being RC. Rev. No.14112012, whereby the order dated 15 h January, 2013 was also considered. The extracts of the said order dated 29th April, 2013 read as under:- "Learned counsel for the petitioner seeks an adjournment. Learned counsel for the respondent points out that the possession of the disputed tenanted property has been taken over in the course of execution proceedings on 06.10.2012; submission being made that the conditions contained in the order dated 30.03.2012 of this Court have not been complied with. This also find mention in the order passed by the Executing Court on 15.01.2013 that possession of the premises have since been restored. Nothing survives in this petition, the petition stands disposed of accordingly."

7. In view of the above said facts and circumstances of the case, I am of the view that there is no merit in the present appeal. The same 1s accordingly dismissed. Pending application also stands disposed of.