Possession according to order of exh.-5
Vinesh K Chhaya
(Querist) 25 November 2013
This query is : Resolved
Respected sir/Madam
My client lodged R.C.Suit for declaration and perpetual injunction before civil court.
The subject matter is "plaintiff is tenant with oral contract and paid rent through check, and landlord forced for possession."
Opponent lodged counter claim during the hearing of exh-5(interim injunction) court ordered in favour of opponent and directed to plaintiff to give possession during 20 days after said order.
at 20th day opponent directly went to premises with police protection (personal application not from court order) and took possession by breaking locks and took the immovable properties situated in locked house.
plaintiff lodged c.m.appeal in limitation.
my queries are
which action to be taken by plaintiff against opponent?
which judgment for section 151 cpc would be applicable here?
which guidelines to be followed for possession of the property which given on rent?
order 40 rule 1 to appoint receiver is applicable here or not?
Gujarat rent act is applicable or not?
Biswanath Roy
(Expert) 26 November 2013
If the order of the court was " PLAINTIFF TO GIVE POSSESSION DURING 20 DAYS AFTER SAID ORDER " then forcible possession by the opponent stands as CONTEMPT OF COURT and a contempt petition can be filed against the opponent. Be it noted that the burden of proving the facts lies upon the Plaintiff to prove the material facts of forcible possession by the help of Police. If it is proved that the opponent party forcibly took possession by the help of Police recovery of possession of demised premises will be easier for the Plaintiff.
T. Kalaiselvan, Advocate
(Expert) 26 November 2013
It appears to be a case of tress pass. In collusion with the police the defendant took law into his hands. If it can be proved then action can be taken under criminal law against the police too for trespassing and other offences. On the basis of the court order, if the plaintiff did not vacate the premise, the defendant has to file an EP along with an application for police aid to take delivery possession of immovable property or on an application under Or 21, R95 and section 151 for breaking open the lock of the house and deliver possession of the house to the petitioner. In the absence of any such application, it is illegal and high handed action by the respondent and an offence punishable under criminal law.
Dr J C Vashista
(Expert) 27 November 2013
1. I agree with Mr. T. Kalaiselvan to a limited extent that the defendant (landlord) should have sought court directions for recovery of possession. 2. However, if the landlord gets possession of his property without indulgence of the court, there is no harm/necessecity of moving to court as the same was, otherwise also, so directed by the court.
3. Applicability or otherwise of Gujrat Rect Act being a state subject and judgement(s) are to be ascertained by you, .
4. Applicability of Section 151 and/or Or. XL R 1 CPC is not in the instant case
Biswanath Roy
(Expert) 27 November 2013
Bear it in mind that Evidence itself is the JUDGEMENT.Before taking any action either Civil or Criminal Plaintiff has to take such a strategic plan so that mischief caused by the opponent can be ventilated automatically and can be proved beyond doubt.
T. Kalaiselvan, Advocate
(Expert) 27 November 2013
properly answered by experts, hope you will consult your lawyer and proceed further.
Rajendra K Goyal
(Expert) 27 November 2013
Well advised by the experts, nothing more to add.
Vinesh K Chhaya
(Querist) 09 December 2013
can court direct for possession of immovable property below limitation of time of appeal?
limitation time for appeal is 30 days after order..the court directed to handover possession of rented immovable property during 20 day...can any expert guide me about how this contrast should be interpreted ???
Biswanath Roy
(Expert) 09 December 2013
Court has some inherent power and the court exercised that power in your case. If the affected litigant could apply for a certified copy immediately after the date of order with the intent of filing an appeal within limitation period he could have intimated such desire before the court for shifting the date of possession on some other date. In your case you did not mention your said desire to court for extension of time.
