- (1.) S. U. Khan, J. This is tenant's writ petition. Landlord respondent filed a suit for eviction against the tenant petitioner being SCC Suit No. 360 of 1996 on the file of JSCC Kanpur Nagar. According to the plaint of the said suit provisions of U. P. Act No. 13 of 1972 were not applicable to the shop in dispute defendant was the tenant of the shop in dispute on behalf of the plaintiff at the rate of Rs. 450 per month; the tenant had taken the shop on rent for five years which period had expired and that tenant had not paid the rent for more than four months inspite of notice dated 18-10-1995. The tenant had not appeared in the suit hence it was decreed ex parte on 14-5-1999 by JSCC, Kanpur Nagar. The suit was filed on 21-8-1996. Prior to filing of the aforesaid suit for ejectment plaintiff had filed another Regular Suit No. 524 of 1996 against Kanpur Development Authority and tenant Veerendra Singh Pal who was also defendant in the suit for ejectment. The suit was dismissed in default. The case of the petitioner is that in the suit for ejectment no notice or summons was served upon him. The petitioner on 16-8-2001 filed restoration application for setting aside the ex parte decree and judgment dated 14-5-1999 alongwith an application under Section 17 PSCC Act for permission to furnish security instead of depositing of decreetal amount in cash. The application to furnish security was rejected on the same date i. e. on 16-8-2001 and the petitioner was directed to deposit the decreetal amount in cash by 18-8-2001. Execution application had already been filed by the plaintiff respondent. In the said execution application the petitioner on 17-8- 2001 filed objection under Section 47 C. P. C. which was supplemented by supplementary objection dated 27-10-2001. The main thrust of the petitioner in his objection in execution application was that the plaintiff was not owner of the shop in dispute as the same had already been acquired by Kanpur Development Authority. In the said objections reliance was placed upon the defence taken by the Kanpur Development Authority in O. S. No. 524 of 1996 and on the documents filed by the Kanpur Development Authority in the said suit. One of the objections was that the decree was bad to the extent of nullity for non-impleadment of Kanpur Development Authority. The objections were rejected by JSCC, Kanpur Nagar on 4-12-2003 (execution application and the objections were numbered as Case No. 65/74/99) against the said order dated 4-12-2003 the petitioner filed revision being SCC Revision No. 101/2003. The said revision was dismissed in limine by District Judge, Kanpur Nagar on 19-12-2003. This writ petition is directed against the aforesaid order rejecting the objections of the petitioner in execution.
(2.) IN para 28 (ii) of the writ petition it has been mentioned that the restoration application of the petitioner was dismissed by JSCC, Kanpur Nagar for want of compliance of provisions of Section 17 of PSCC Act. IN the instant writ petition prayer for quashing plaint of SCC Suit No. 360/96, orders dated 4- 12- 2003,14-5-1999,16-8-2001 and 19-12-2003 has been made. The solitary argument of the learned counsel for the petitioner is that the ex parte decree passed by JSCC dated 14-9-1990 is without jurisdiction, hence it could be questioned and set aside in execution proceedings also. Learned counsel for the petitioner has placed reliance upon the following authorities: (1) AIR 1972 SC 1371, (2) AIR 1994 SC 853, (3) AIR 1996 SC 1819, (4) 2003 ACJ 1966, (5) 2004 (1) AWC 6 and (6) 2004 (1) AWC 247. This question has been dealt with in detail in 1990 (1) SCC 193, which is a judgment by three Hon'ble Judges and has been referred to in AIR 1996 SC 1819 (supra ). In this regard reference can also be made to AIR 1997 SC 122.
(3.) THE question of dispossession of landlord by paramount title holder has been discussed in two recent authorities of Supreme Court reported in AIR 2002 SC 569 and 665. In the latter authority (O. P. Gupta v. R. B. Goel), it has been held that firstly evidence to that affect must properly be brought on record by the tenant. In the said case during pendency of appeal the said fact was stated in an affidavit filed by the tenant in appeal. Written Statement was not got amended. THE Supreme Court held that the said plea could not be considered. Similarly in the instant case the tenant did not file any written statement taking the said plea. In fact tenant did not pursue his restoration application. He cannot, therefore, be permitted to raise this/objection in execution. In the aforesaid authority of Supreme Court (O. P. Gupta v. R. B. Goel) it was also held that unless there was an order of resumption and forfeiture passed by the Development Authority against the landlord, the plea of dispossession by paramount title-holder could not be successfully taken by the tenant. In the aforesaid earlier authority of the Supreme Court (Vashu Deo v. Bal Kishan) three principles have been laid down for application of plea of dispossession by paramount title holder: (i) The party evicting must have a good and present title to the property. (ii) The tenant must have quitted or directly attorned to the paramount title-holder against his will. (iii) Either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title-holder or there must be an event, such as a change in law or passing of decree by a competent Court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant-handing over possession or attorning in favour of the paramount title-holder directly, or in other words the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted (para 12 ). In the instant case none of the aforesaid conditions is satisfied.;