SHARMA, J. - (1.) IN this petition purporting to be one under Articles 226 and 227 of the Constitution of India, but fundamentally one under Article227 of the Constitution of India a challenge has been made to the order dated 20.11.2013 passed by the Appellate Rent Tribunal, Jaipur affirming the order dated 11.11.2013 passed by the Rent Tribunal, Jaipur (hereinafter 'the Tribunal') as the executing court) dismissing the petitioner - Objector's (hereinafter 'the objector') application under Order XXI Rule 97 CPC against the execution of a certificate of possession issued by the Rent Tribunal, Jaipur in Eviction petition No.619/2010 on 28.2.2011 in a case titled Prabhudayal vs. Veerdev Sharma.
(2.) THE background facts of the case are that the respondent - plaintiff (hereinafter the plaintiff) filed an eviction petition No.619/2010 against one Veerdev Sharma, now deceased and represented by his legal representatives impleaded in this petition as respondents -defendants (hereinafter 'the defendants'). Ground agitated in support thereof were bonafide and reasonable necessity of the plaintiff for the tenanted shop, as also subletting as the defendant was stated to have sub -let the tenanted shop to one Govind Saini. In spite of service of the petition on Veerdev Sharma, then alive, he did not appear before the Tribunal and exparte proceedings were drawn against him. Subsequently the plaintiff and the defendant entered into a compromise, wherein he admitted to the factum of plaintiffs bonafide and reasonable necessity, but stated that the tenanted shop in question had not been sub -let to Govind Saini who was only managing the shop as an employee. Based on the compromise application and admission of the defendant Veerdev Sharma of the plaintiffs bonafide and reasonable necessity, a certificate of possession was issued by the Tribunal on 28.2.2011 whereunder vacant possession of the tenanted shop was to be handed over to the plaintiff by 30.3.2011.
(3.) THE vacant possession of the shop in question however was not handed over to the plaintiff by 30.3.2011. The plaintiff then moved an application for execution of the certificate of possession aforesaid. On 29.7.2011, the Nazir accompanied by the certificate holder's son went to the tenanted shop in issue and finding the objector Govind Saini in possession, informed him that it was to be vacated in terms of certificate of possession dated 28.2.2011. Thereupon an altercation ensued between the son of the holder of certificate of possession Prabhudayal and Govind Saini. The Nazir then made his report to the executing Court and sought directions that the possession of shop in issue be recovered with the aid of the police. This was so directed by the executing Court on 2.8.2011. The objector on his part moved an application under Order XXI Rule 97 CPC before the executing Court on 17.8.2011. It was stated the objector was in occupation and possession of the shop in question for the last 15 years independently in his own right under tenancy of one Pradeep Kumar under a writing/receipt of 1.10.1996 and that neither the plaintiff nor the defendant Veerdev Sharma had any concern with the said shop. It was further submitted that effective 7.2.2011 the objector had obtained electricity connection in his own name in the suit premises on the basis of his old possession even though up to January 2011 the electricity connection in the disputed shop was in the name of the defendant Veerdev Sharma. During the period of the electricity connection in the name of the Veerdev the bills of consumption of electricity at the shop in question were however, stated to have been paid by the objector. Original bills for electricity consumption were stated to have been taken by the Veerdev in January, 2011 on the pretext of billing dispute with the electricity supplier. In the aforesaid facts and defences set up against the execution of the certificate of possession, it was prayed that the certificate of possession dated 28.2.2011 in eviction petition No.619/2010 be declared to be non -effective against the objector and he not be dispossessed from the shop in question in execution thereof. It was alleged that the plaintiff had misused the judicial process to seek to dispossess the objector and had fraudulently obtained the certificate of possession based on a collusive compromise in eviction petition No.619/2010 before the Tribunal behind the back of the objector. It was thus prayed that the order passed by the Tribunal on 2.8.20111 for taking possession of the suit property under certificate of possession dated 28.2.2011 with the aid of police force be quashed and set aside.;