Back
2012 Supreme(AP) 1306
ANDHRA PRADESH HIGH COURT
L. Narasimha Reddy, J.
Sha sulthan (died) per Lrs. - Petitioner
Versus
Anil Agarwal and others - Respondent
C.R.P. No. 2555 of 2012 & Writ Petition No. 17689 of 2012
Decided On : 03-07-2012
For the Petitioner/Respondent: Mr. M.V.S. Suresh Kumar
For the Respondents: Mr. K.N. Jwala, Mr. Y. Balaji VAdera, Mr. M. Ravindernath Reddy, SC for HPCL
Headnote:
Civil Procedure Code, 1908 – Rules 98 and 99 of Order 21 – Revision and the writ petition are between the same parties and in relation to the same dispute – Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to, as arrayed in writ petition – 1st respondent is a Government Owned Petroleum Company. Earlier it was known as ESSO Standard Easternin Corporate Oil Company – After nationalisation, it is known with the present name – Company took on lease, a site owned by Sha Sulthana, shown as 2nd respondent herein, now represented by her legal heirs, respondents 3 and 4, and established an outlet at Sanathnagar, Hyderabad – Sri Mahaveer Prasad Agarwal, the father of the petitioner was appointed as dealer to run the petroleum outlet. An agreement, granting licence from time to time, is entered into between the 1st respondent and the dealer. The last of such agreements was executed on 16-08-2006, to be in force for 10 years. Mahaveer Prasad died on 05-12-2009, and petitioner is said to be his legal heir – Held, this is an exception to the general rule that only the broad facts, but not the details or evidence must be stated in the pleadings – Except making a bald allegation that decree was obtained by fraud, the petitioner did not allege in his petition as to what arefacts that constitute fraud and collusion – Further, the very fact that the 1st respondent challenged the decree passed by trial Court by filing appeal and thereafter the Second Appeal would belie the contention of petitioner – Viewed from any angle, the order passed by the Executing Court in E.A. cannot be sustained. The C.R.P is allowed, the order under revision is set aside, and it is held that E.A. filed by the petitioner is not maintainable – Only basis for the petitioner in claiming the relief in W.P. of 2012 is thatExecuting Court granted an order of stay, and as long as the said order is in force, he is entitled to remain in possession of the premises, and the 1st respondent is under obligation to continue the supply of petroleum products – Plea of the 1st respondent is that, strictly speaking, there is no dealership in favour of the petitioner, and even otherwise, the licence stood cancelled with the expiry of the lease, between it and the owners of the land. Since this Court has taken the view that the petitioner does not have any independent right to remain in possession of the premises, no relief can be granted in the writ petition – C.R.P. disposed of.
L. Narasimha Reddy, J.
The revision and the writ petition are between the same parties and in relation to the same dispute. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to, as arrayed in the writ petition.
2. The 1st respondent is a Government Owned Petroleum Company. Earlier it was known as ESSO Standard Easternin Corporate Oil Company. After nationalisation, it is known with the present name. The Company took on lease, a site owned by Sha Sulthana, shown as 2nd respondent herein, now represented by her legal heirs, respondents 3 and 4, and established an outlet at Sanathnagar, Hyderabad. Sri Mahaveer Prasad Agarwal, the father of the petitioner was appointed as dealer to run the petroleum outlet. An agreement, granting licence from time to time, is entered into between the 1st respondent and the dealer. The last of such agreements was executed on 16-08-2006, to be in force for 10 years. Mahaveer Prasad died on 05-12-2009, and the petitioner is said to be his legal heir.
3. The owners of the land, i.e. respondents 2, 3 and 4 filed O.S.No.5497 of 2003 in the Court of XVI Junior Civil Judge-cum-IV Additional Rent Controller, Hyderabad, against the 1st respondent for eviction from the premises, after issuing a notice under Section 106 of the Transfer of Property Act. The suit was later on re-numbered as 313 of 2007. The trial Court decreed the suit on 22-12-2008. A.S.No.44 of 2009 filed by the 1st respondent herein, in the Court of X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad was dismissed on 19-10-2010. Second Appeal No.1192 of 2011 filed before this Court was also dismissed on 09-09-2011. Six months time was granted to the 1st respondent for vacating the premises.
4. The decree-holders i.e. respondents 2, 3 and 4 filed E.P.No.12 of 2011 for execution of the decree, pleading that the Ist respondent did not vacate the premises as directed in the decree and within the time stipulated by this Court. The Executing Court issued delivery warrant against the 1st respondent. At that juncture, the petitioner filed E.A.No.16 of 2012, under Rule 58 Order 21 C.P.C., and E.A.No.17 of 2012, for stay of the execution of the decree. On finding that there was no attachment of the property, the petitioner filed E.A.No.18 of 2012 to amend E.A.No.16 of 2012, so as to bring it within the purview of Rules 97 to 101 of Order 21 C.P.C.
5. The Executing Court took up E.A.No.16 of 2012 on 12-04-2012 for hearing. It considered the objection raised by the 1st respondent as to the maintainability of the E.A. On that day, it passed two orders, viz., a docket order, directing that the further proceedings in the E.P.No.12 of 2011 be stayed, and a detailed order rejecting the objection as to maintainability and holding that the E.A. is maintainable.
6. Respondents 2 to 4 filed C.R.P.No.2555 of 2012 against the order dated 12-04-2012 through which the Executing Court rejected their objection as to maintainability. Petitioner filed W.P.No.17689 of 2012 for a Writ of Mandamus, to direct the 1st respondent to resume supply, complaining that the 1st respondent stopped supply of petroleum products on the ground that execution proceedings are initiated.
7. The petitioner contends that he was not a party in the suit, the Appeal or the Second Appeal, much less the execution proceedings, and the decree was obtained by respondents 2, 3 and 4 in collusion with the 1st respondent. He submits that his father, during the lifetime, and thereafter, himself, are the lessees of the premises and any decree obtained without notice to them, is not binding upon him. He contends that the 1st respondent ought to have insisted that the dealer is made a party to the suit or appeals, since the immediate impact is felt by the dealer, in such proceedings. He contends that there was absolutely no justification for the 1st respondent in abruptly stopping the petroleum products. As regards the revis
