Dilip Gupta, J. - (1.) THIS petition seeks the quashing of the order dated 29th November, 2011 passed by the Judge, Court of Small Causes, Agra by which the application filed by the petitioner for summoning the witnesses through the process of the Court was rejected. It transpires from the records of Writ Petition No. 1035 of 2011 earlier filed by Saroj Bhargava -respondent No.1 in which the petitioner was arrayed as respondent No.2 that SCC Suit No. 90 of 2008 was filed by Saroj Bhargava for eviction of the defendant Vijay Upadhyay from the building bearing Kothi No. 35, Nehru Nagar, Agra and for recovery of arrears of rent, which building had been leased by the plaintiff in favour of Vijay Upadhyay by the lease dated 4th December, 2004 on a monthly rent of Rs.5,500/ -. The Suit, on contest by Vijay Upadhyay, was decreed on 14th July, 2010 for eviction and damages for use and occupation @ Rs.10,000/ -per month. Issue No.1 in the said suit was whether the defendant was the tenant of the entire house or only the part of the house and the Judge, Court of Small Causes held that the defendant was the tenant of the entire building.
(2.) FEELING aggrieved, the defendant Vijay Upadhyay filed Revision No. 307 of 2010 in the High Court which was partly allowed by the judgment and order dated 11th August, 2010. The decree for eviction was upheld but the damages were reduced to Rs.7,000/ -per month. The judgment and order was further assailed by the defendant Vijay Upadhyay in the Supreme Court by filing Special Leave Petition which was dismissed on 4th October, 2010. The Review Petition filed by the defendant -Vijay Upadhyay in the High Court for review of the judgement and order dated 11th August, 2010 was also rejected on 8th October, 2010. The decree holder Saroj Bhargava applied for execution of the decree which was registered as Execution Case No. 2 of 2010. The judgment debtor Vijay Upadhyay, however, filed objections under Section 47 of the Code of Civil Procedure which were registered as Miscellaneous Case No. 75 of 2010. The objections were rejected by the Executing Court by the order dated 4th November, 2010. The judgment -debtor Vijay Upadhyay also filed an application for review of the order dated 4th November, 2010 which was registered as Miscellaneous Case No. 76 of 2010. Thereafter an application for amendment of the Review Application was filed which was rejected on 15th November, 2010 and the Review Application itself was rejected by the Executing Court on 24th November, 2010.
(3.) IT transpires that after the tenant had lost from all the Courts, an application purporting to be under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure was filed by the present petitioner S.S. Dixit on 27th November, 2010 in Execution Case No. 2 of 2010 in which it was alleged that the property in question had been let out to the applicant @ Rs.200/ -per month by Anand Swaroop Kapoor w.e.f. 1st July, 1975 and the applicant, subsequently sub -let a portion of the tenanted property to Vijay Upadhyay @ Rs.3,000/ -per month and his tenancy commenced w.e.f. 1st January, 2003. It was further alleged that the applicant was the tenant and in actual possession of the property but it had come to his notice that SCC Suit No.90 of 2008 had been filed by Saroj Bhargava against Vijay Upadhyay though Saroj Bhargava had never let out any portion of the said house to Vijay Upadhyay and she had also obtained the decree for eviction of Vijay Upadhyay. It was, therefore, prayed that the Execution Case No.2 of 2010 may be dismissed and the applicant may not be dispossessed from the property. These objections were registered as Miscellaneous Case No.77 of 2010.;