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DIVYAA (STUDENT)     27 July 2015

Application u/o. 38,rule 5 of cpc could be filed by landlord

WHETHER ANY LANDLORD CAN FILE APPLICATION U/O. 38,RULE 5 OF CPC AGAINST THE TENANT AND WHETHER IT IS PERMISSIBLE UNDER CPC OR NOT ..??

I have a query which might be a question of law and I request the legal wizards to kindly guide me about the recourse I should take as it is my maternal uncle’s case who is the defendant/tenant.

Brief facts of the case :

1).   The plaintiff has filed a suit for eviction and recovery of rents against the defendant in the year 2012.

2).    The defendant has filed the W.S. and denied the locus standi of the plaintiff to file the case and he has been contesting the case in the lower Court till date.

3).    The plaintiff has somehow managed the Court and got the decree under Order XII, Rule 6 of CPC passed in his favour and against the defendant without filing any application u/O.12, Rule 6 of CPC on the same day of filing W.S. by the defendant, AND the Court vide order dated 06.06.2012 thereby decreed that the defendant has admitted the relationship of landlord/tenant , receiving of notice u/s 106 of Transfer of Property ACT and the rental value of the suit property is more than Rs. 3500/- which entitled the plaintiff for the decree of possession of the suit premises.

4).     The plaintiff has filed the execution petition for the execution of that decree without informing the defendant and behind his back and finally succeeded to get the execution order and he came alongwith 50 to 55 persons to throw away the belongings of the defendant on 17.10.2012 which resulted in vacation of the suit property by the defendant.

5).     The plaintiff has filed an application under ORDER XXXVIII,RULE 5 of CPC thereby alleging before the Court that the defendant may leave the limits of the jurisdiction of the court to avoid the execution of any decree which may be passed against him for the recovery of rent.

6).   The defendant has filed the REPLY to that application thereby challenging the maintainability of that application under law.

Now the CIVIL JUDGE has allowed that application of the plaintiff because she is biased and I would like to know :

  1.     Whether in the cases of the nature of landlord/tenant dispute and as defined under          clause (a) of Section 16 of CPC ,the Court can allow that application.
  2.      Whether such type of application is not barred under Rule 1 of ORDER XXXVIII of           CPC.
  3.      And if the cases of the nature of landlord/tenant dispute and as defined under clause     (a) of Section 16 of CPC are barred under Rule 1 of ORDER XVIII of CPC then          howcome the Court can allow that application under ORDE XXXVIII, Rule 5 of CPC.

 

And what should be our legal recourse i.e. to file APPEAL or REVISION.

Pls. guide  as I am really disturbed about the management of lower courts by the opposite side counsels.

Regards,

DIVYAA

 

 

 



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