Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 521 of 2019 Petitioner :- Ankit Kumar Sharma Respondent :- Waqf Takiya Shah Islam And 8 Others Counsel for Petitioner :- Vijay Kumar Sharma,Satendra Kumar Singh,Suresh Chandra Varma Counsel for Respondent :- Nipun Singh
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Vijay Kumar Sharma, Satendra Kumar Singh, learned counsel for the petitioner and Sri Nipun Singh, learned counsel for the respondent no.1.
The present petition is a glaring example of abuse of process of the Court. The petitioner claiming his right through Jagdish Prasad, the defendant in eviction suit namely SCC Suit No.8 of 2000, has set up a Will dated 25.11.2000, allegedly executed by Jagdish Prasad in relation to the suit property. He seeks to obstruct the eviction decree in Execution Case No.1 of 2017 by filing an application under Order 21 Rule 99 CPC, thus, claims that Sri Jagdish Prasad had excluded all his sons and daughters from all rights in the suit property. Admittedly, Sri Jagdish Prasad had died on 28.1.2001. Further though the claim of the petitioner/objector is that the suit property was recorded in the name of Jagdish Prasad in the tax assessment list of Municipal Board of the year 1997-2002, but, there is no assertion that at any point of time, the name of the petitioner/objector was ever recorded in the municipal records by virtue of the Will dated 25.11.2000.
On a pointed query made by the Court, learned counsel for the petitioner has not been able to establish that at any earlier point of time, the Will dated 25.11.2000 was set up by the applicants/objectors to claim his right in the suit property to the exclusion of all natural heirs and legal representatives of Sri Jagdish Prasad, who was the defendant in SCC suit no.8 of 2000.
It is also reflected from the record that SCC suit no.8 of 2000 was contested by the natural heirs including father of the petitioners/objectors and legal representatives of Sri Jagdish Prasad, the defendant, after they were substituted in eviction suit.
The eviction decree dated 11.8.2015 passed in SCC suit no.8 of 2000 was challenged in SCC Revision No.22 of 2015, which was dismissed on 23.10.2017 by the Additional District Judge, Court No.4 Muzaffarnagar. The judgment debtors i.e.heirs and legal representatives of Jagdish Prasad filed a petition (Matters under Article 227) in 7439 of 2017 (Rakesh Kumar And 17 Others vs Waqf Takia Shah Islam) which was also dismissed vide order dated 15.11.2017. This Court while dismissing the said petition, upholding the decree of eviction against the tenant-petitioners, had granted them time to vacate the suit property i.e. the premises in dispute on or before 31.7.2018 subject to filing undertaking before the court below.
This Court has further observed that the tenant-petitioners would be entitled to seek protection granted by this Court, subject to filing of the undertaking and would be liable to vacate the suit property on or before 31.7.2018 and in case of default, the protection granted to them shall stand vacated automatically. It was also observed that in case, the shop/suit property/premises in question was not vacated as per the undertaking, they shall also be held liable for contempt.
The record further indicates that the petitioners therein i.e., the judgment debtors, though had furnished undertaking before the trial court by filing paper no.15 C, within the time granted by this Court, but they did not vacate the suit premises on or before 31.7.2018. The tenants/judgment debtor had wilfully violated and flouted with impunity the undertaking given by them. Instead of vacating the suit premises in terms of the undertaking, they are now contesting the execution case namely Case No.1 of 2017, arising out of SCC Suit No.8 of 2000.
The petitioner herein is son of one of the judgment debtor, namely Rakesh Kumar son of late Jagdish Prasad, who was one of the defendants in the SCC Suit No.8 of 2000. The petitioner has filed application under Order 21 Rule 99 on 21.8.2018, after expiry of the date for vacation of the shop in question/suit premises pleading his independent right in the suit property on the basis of the aforesaid Will, allegedly executed by his grandfather, the defendant in SCC Suit No.8 of 2000. Admittedly, the said Will was never brought before the SCC Court or any of the higher Courts of law, by the applicant/petitioner when the eviction matters was being contested by the legal heirs of the deceased defendant Jagdish Prasad, including own father of the petitioner herein. At no point of time prior to 21.8.2018, the alleged Will dated 25.11.2000 had seen the light of the day. It was never pressed for asserting his right by the petitioner herein the exclusion of legal heirs claiming to be beneficiary of the Will of Jagdish Prasad.
In view of the fact evident from the record that the judgment debtors had wilfully defied the directions of this Court dated 15.11.2017 with impunity, this Court finds that the petitioner- objector has been set up by the tenants/judgment debtor with a view to frustrate the eviction-decree dated 11.8.2015. The petitioner-objector herein cannot said to be a third party who can claim his independent right in the suit property rather he is a person who has been set up by the judgment debtors, in order to obstruct the eviction decree and protract the execution case.
In the said scenario, this Court does not find any error in the order of the rejection of the interim application 29 C filed by the petitioner/objector, for staying the execution of the decree till disposal of application under Order 21 Rule 99 dated 27.8.2018, which has been registered as miscellaneous case no.104 of 2018.
For the admitted facts in the matter that the tenants/judgment debtors had not handed over peaceful possession of the suit property to the decree holder, despite having furnished an undertaking before the executing court, they are found in contempt for willful and deliberate disobedience of the judgment and order dated 15.11.2017, of this Court.
The executing court is, therefore, directed to issue contempt notice to the judgment debtors and to transmit the matter back to this Court for taking cognizance of the contempt matter.
The report in this regard shall be send to the Registrar General, High Court, Allahabad, who shall place the matter before the court of contempt jurisdiction of this Court.
Subject to the above observations and directions, the present petition is dismissed.
Simultaneously, the executing court is directed to decide the execution case expeditiously without granting any adjournment to any of the parties.
Order Date :- 22.2.2019 Harshita