B.L. Loomba, J. - (1.) PETITIONER Smt. Premwati seeks to challenge the order dated 10.3.86 passed by the then VI Addl. District Judge, Hardoi, Sri Ram Kishore, whereby the application of opposite party No. 2 Sob a Ram, in Misc. Case No. 1 of 1986 was allowed and the Petitioner was directed to deliver back the possession of the disputed shop within specified time failing which the possession of the shop shall be delivered to the opposite -party Sobha Ram through court. Respondent No. I Sobha Ram alone is contesting this Writ Petition, the Respondents 3 to 5 are sons and daughters of Petitioner Smt. Premwati.
(2.) THE impugned order is a reasoned order giving out detailed facts pertaining to the controversy. Petitioner Smt. Premwati's late husband Chet Ram was admittedly the tenant of the shop in question while Respondent No. 2 Sobha Ram was his sub -tenant. Petitioner purchased the shop in the year 1962 and after the death of her husband in the year 1982 she filed Small Causes Suit No. 64 (w /82) seeking eviction of Sobha Ram and Respondents 3 to 5, her sons and daughters. The suit was decreed by Munsif East, Hardoi. by his judgment dated 24.1.86. Copy of judgment has not been filed by either party. However, at the time of the hearing of the writ petition a certified copy of the moment in the suit has been made available by the learned Counsel for the Petitioner. A perusal of the judgment would indicate that one of the pleas raised by Sobha Ram in contest of the suit was that the sale deed in favour of Petitioner Smt. Premwati was Benami and her husband Chet Ram was in fact the true purchaser. A plea also raised that in any case Chet Ram was acting as agent of his wife and was the main functionary. Chet Ram had filed a suit against Sobha Ratn being Suit No. 75 of 1978. Papers relating to this suit (Suit No. 75 of l978) have not been produced on record by either party. From the judgment of aforesaid Small Cause Suit No. 64 (w/82) dated 24.1.86, it, however, appears that there was some partnership deed between Chet Ram and Sobha Ram and Chet Kam had claimed rendition of accounts. Eventually, the suit was decided through compromise, according to which Chet Ram was no more a partner m the business and was entitled only to get rent from Sobha Ram. It is un disputed that till the time of his death Chet Ram had been receiving rent from Sobha Ram. Learned Counsel for the Respondent argues that initially the rate of rent payable to the arts -while owners of the shop was Ks. 60/ - per month but as a result of compromise decree in suit No. 7 of 1978, rate of rent was increased from Rs. 60/ - to Rs. 100/ - per mon In any case, the substance of the plea of Sobha Ram was that he was occupation of the shop in question in the capacity of tenant and not unauthorised sub -tenant who could be liable to be evicted by petition Smt. Premwati. Since this controversy is the subject matter of decision civil revision Under Section 25 of the Small Cause Courts Act, pended before the District Judge, I refrain from making any observations as to try merits or otherwise to the pleas raised by Sobha Ram. As is mention above, Petitioner's suit for eviction of Sobha Ram was decreed. Other respondents, namely, the sons and daughters of the Petitioners did not conte the suit. Sobba Kam was obviously in exclusive physical possession of to shop and the eviction decree for all practical purposes was operating one against Sobha Ram. Now, about the developments which have direct bearing on the writ petition. After the suit was decreed on 24.1.86, the petition is said to have obtained possession over the shop as against. the Defendants -Respondents 2 to 5. A copy of the Dakhalnama dated 25.1.has been filed as annexure 3 to this writ petition. According to the contain of this Dakhalnama, possession over the shop was delivered to the petitioner , not only on behalf of Petitioner's sons and daughter but also Sobha Ram who was described as sub -tenant. It was mentioned that act possession was removed by the Defendant -judgment -debtors and actus possession was taken by Petitioner and a lock was placed. The Dakbal nama contains the signatures of Respondents 3 to 5. the sons and daughter of the Petitioner and that of three witnesses, the time of the delivery of the possession has been mentioned to be 8 a.m. On 25.1.86 Respondent Sobha Ram moved an application before the Musif East who in exercise of powers under the Provincial Small causes Courts Act had decreed the suit on 24.1.86. On the same day delivery of possession was stayed for one month by that court.
(3.) SOBHA Ram filed revision petition Under Section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 24.1.86 and moved an application dated 13.2.84, Under Sections 94 and 151 of the Code of Civil Procedure; copy of this application is annexure 4, to the writ petition. It is in disposal of this application that the impugned order annexure 1 was passed. Through the application Under Sections 94 and 151 of the Code it was submitted that the judgment was delivered at about 4 p.m. on 24 -1 -86 and the next day he moved the trial court and the delivery of possession was stayed for one month. On 31.1.86 revision petition was filed and on the same day delivery of possession was stayed by the District Judge and that the Petitioner Smt. Premwati and her sons had full knowledge of the stay orders dated 25.1.86 and 31.1.86. It was alleged that on 10.2.86 he was forcibly evicted from the shop and the articles in the shop valuing over Rs. 15,000/ - were thrown out. The details of the articles have been given in the list appended to the application dated 13.2.86. Petitioner Smt. Premwati filed objections against this application, copy whereof Annexure -5 is. It was asserted in this objection, vide paragraph 3 thereof, that the possession over the shop was taken by the Petitioner on 25.1.86 at 8 in the morning with the consent of Sobha Kam and that Sobha Ram was subsequently instigated by other persons and he came forward to make false allegations about his forcible eviction on 10.2.86 despite the stay orders dated 25.1.86 and 31.1.86. Respondents 2 to 4 also filed their reply, copy being annexure 6 to this writ petition. They have also asserted that Sobha Ram had delivered possession of the shop to the Petitioner on 25.1.86. It is also to be noted that Sobha Ram had made an application before the ial court on 30.1.86 that the Petitioner was making attempts on 26.1.86 to t lock over the shop forcibly and he had sought the intervention of the police d that the police had taken the key of the shop but eventually refused stove it back, copy of this application is annexure 7. Annexure 8 is the copy f the report of the station officer denying the allegations about taking key f the shop stating that Sobha Ram had approached the police on 27.1.86 aging that he had obtained a stay order from the trial court on 25.1.86 but copy of the stay order was under preparation and could not become available to him. It was also mentioned that the lock of the Petitioner was found in the shop on 26.1.86.;