Judgment:
C.M. Nayar, J.
(1) [ED. facts : Husband of Deft. no. 2 became tenant in suit premises 29.12.79. He died on 17.3.85 and Deft. No. 2 became tenant. Deft. no. 1, landlord sued her for eviction u/S. 14 of D.R.C. Act on 23.7.90 and a consent decree was passed on 28.8.91 under which Deft. no. 2 agreed to vacate by 15.8.92. Her one son, Deft. no. 3 soon after filed a suit for injunction that they were not liable to vacate suit premises. This suit was dismissed on 8.1.91 for non prosecution. Plaintiff is her 2nd son. He filed instant suit claiming that he, Deft. no. 3 and their mother are tenants-in- common and were necessary parties in eviction case and as they were not imp leaded eviction decree was not binding on them. Plaintiff applied for interim injunction and relied upon. Textile Asso. (I) Bom. Unit vs. Balmohan AIR. 1990. S.C. 20;:3==1991. Raj. L.R. 305.] After detailing above, judgment is :
(2) (B). The judgment of the Supreme Court in Textile Asso. (supra) is also of no application. The premises in question in that case was under the occupation of a tenant who left behind his widow, two sons and daughters. After the death of the tenant, the landlord filed an eviction petition on the ground of bonafide requirement and default in payment of rent. The mother and brother alone were imp leaded as parties and the suit was decreed ex parte on the ground of failure to pay the arrears. The decree was put into execution and the possession was recovered by the landlord. Thereafter, the respondent therein filed a suit and claimed that he was one of the tenant living in the premises at the time of death of his father and ex parte decree obtained by his landlord, thereforee, was not binding upon him. The ex parte decree was accordingly set aside on the facts of that case.
(3) Adverting back to the facts of the present case, it may be stated that the mother of the plaintiff and deft. no. 2, Mrs Renuka Barat had been pursuing the petition for eviction in respect of the suit premises and had willingly made a compromise to vacate the same on or before 15,8.92. She has now filed the w/s in this Court, reiterating the cause of the plaintiff and deft. no. 3, that her two sons have also inherited the tenancy rights after the death of her husband and, thereforee, she could not have given nor had given an undertaking on their behalf as the deft. no. 1 knew it very well that all the legal heirs of Lt. Gen. A K. Barat have inherited the tenancy rights. She has accordingly asked to be released from the undertaking recorded by Shri S.M. Gupta, Rent Controller. She has thereforee, done the somersault to support the claim of her sons, who is the plaintiff and deft, no. 3 in the present proceedings. The obvious conclusion is that the entire family has come together now to save themselves from eviction by taking pleas, which cannot be sustained either on facts or in law. The plaintiff is also wanting to take advantage of the fact that her mother alone had given an undertaking to vacate the suit premises on or before 15.8.92. The other son was represented in this Court for a while and has suddenly withdrawn from the proceedings and used this intervening period to file a suit in the court of Sub Judge Delhi (suit No. 329 of 1992 titled 'Samarjit Barat vs. B.K. Dey)', interalia claiming the same relief which his brother, the plaintiff in the present application has sought.
(4) Learned counsel for the defendant no. 1 has argued that the present suit, as well as, the application is an abuse of the process of court and the plaintiff is liable to be punished for contempt. The plaintiff's suit is the result of collusion and connivance with defts. no. 2 and 3 to defeat the eviction order passed by the court of competent jurisdiction. He has further submitted that deft. no. 3, who is the real brother of the plaintiff and son of defendant no. 2 in 1990 had filed a suit for permanent injunction alleging therein that be was the tenant of the suit premises living with his old aged mother and deft. no. 1 be restrained from interfering with peaceful possession of the tenanted premises and from taking illegal and forcible possession of the same. The suit was dismissed in default on 8.1.91, as nobody appeared for the plaintiff on that date.
(5) The above facts would clearly indicate that the plaintiff as well as defts. 2 and 3 have now joined hands to defeat the decree, which was passed in respect of the suit premises by a court of competent jurisdiction on the specific undertaking by deft. no. 2 before the court. The period for handing over the vacant and peaceful possession was drawing near and the plaintiff as well as deft. no. 3 have now chosen to approach the court for defeating the decree, which has been suffered by deft. no. 2. It is inconceivable that the plaintiff as well as deft. no. 3, who are well educated, would not be aware of the eviction proceedings, which were taking place against their own mother, although they allege that they have been residing in the suit premises at all times. The present application obviously has been motivated with the desire to defeat the legal rights, which have accrued to deft. no. 1 as a result of the compromise decree, which has been passed on 28.8.91. The deft. no. 1 has already retired from Govt. service as far back as 30.6.90, and he has still not been handed over the possession of the suit premises. The balance of convenience obviously is not in favor of the plaintiff. He has also not made prima facie case for grant of any interim relief. The facts of the present case further indicate that the defendant no. 2 acted on behalf of the plaintiff as well as defendant no. 3. Note : Appeal no. 220 of 1992 against aforesaid decision was dismissed by D.B. on 12.11.92.