Karnataka High Court
Mohammed Aslam Kazi vs B.Z.Muzamil Ahmed Khan on 10 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. VEERAPPA
WRIT PETITION NO.45185/2017 (GM-CPC)
BETWEEN:
1. MOHAMMED ASLAM KAZI
AGED ABOUT 54 YEARS,
S/O. MR. HAJI KAZI MOHAMMED
HASSAN SAHEB
RESIDING AT QAZI MANZIL,
G-101, PLOT NO.49,
BENSON HARMONY,
BENSON CROSS ROAD,
BENSON TOWN,
BANGALORE-560046
BY ITS GPA HOLDER,
MRS. BATHASHA ASLAM KAZI.
2. MRS. BATHASALA ASLAM KAZI
AGED ABOUT 44 YEARS
W/O. MOHAMMED ASLAM KAZI,
RESIDING AT: QAZI MANZIL,
G-101, PLOT NO.49,
BENSON HARMONY, BENSON
CROSS ROAD, BENSON TOWN,
BANGALORE-560046.
...PETITIONERS
(BY SRIYUTS: AMARKUMAR T.S.,
AND B.N. PRAKASH, ADVOCATES)
AND
B.Z. MUZAMIL AHMED KHAN
AGED ABOUT 44 YEARS,
S/O. SRI. ZIAULLA KHAN,
NO.34, BENSON CROSS ROAD,
BENSON TOWN,
BANGALORE-560046.
...RESPONDENT
(BY SRI.VIVEK S. REDDY, SENIOR COUNSEL FOR
SRI. S. ISMAIL ZABIULLA, ADV., FOR C/RESPONDENT)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 23.9.2017 PASSED BY THE
HON'BLE XXVII ADDITIONAL CITY CIVIL JUDGE,
BANGALORE CITY IN O.S.NO.2555/2015, VIDE ANNEXURE-A
AND DISMISS THE APPLICATION FILED BY THE
RESPONDENT UNDER SECTION 148 OF CODE OF CIVIL
PROCEDURE AND ETC.,
THIS WRIT PETITION IS COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioners-landlords have filed O.S.No.2555/2015 before the XXVII Addl.City Civil Judge, Bengaluru for ejectment against the respondent-defendant/tenant in respect of the suit schedule property.
2. During the course of proceedings, the parties have compromised the matter by filing application under Order XXIII Rule 3 of Code of Civil Procedure. In terms of the compromise petition, the trial Court disposed of the suit on 02.12.2015 and the respondent/defendant-Mr.B.Z.Muzamil Ahmed Khan has agreed and filed an affidavit of undertaking to vacate the suit schedule property on or before 31.3.2017 and also agreed to pay entire arrears of 3 rent/damages from 1st of December 2014 to 30.11.2015.
3. Thereafter, again joint memo came to be filed on 07.04.2017. In terms of the joint memo, the respondent-defendant has agreed before the trial Court that he would vacate the leased premises on or before 30.9.2017 without forcing the petitioners to execute the decree and he will not seek any further time to vacate the same and the trial Court has passed the order on the basis of the joint memo. The defendant also agreed that he will not seek any further time to vacate the leased premises and the trial Court has passed an order on the basis of the joint memo.
4. Subsequently, the defendant filed an application under Section 148 of the Code of Civil Procedure for extension of time till 30.09.2018. The same was objected by the plaintiffs-landlords. The trial Court considering the application for extension of time and objection filed, by the impugned order 4 dated 23.9.2017, allowed the application and one year time is extended to the defendant to vacate the schedule property and directed to pay enhanced rent in respect of the suit schedule property on the basis of the previous rent agreement and also directed that defendant shall not seek further extension after expiry of 30.09.2018 and he shall vacate the schedule property on or before 30.09.2018. Accordingly, application came to be disposed of. Hence, the present writ petition is filed by the plaintiffs-landlords.
5. The matter was heard on several occasions at the instance of the learned counsel for the petitioners and the learned Senior counsel for respondent. On 09.11.2017, when the matter was posted for preliminary hearing Sri.Amarkumar learned counsel for the petitioners-plaintiffs agreed to grant time up to 25.05.2018 to the respondent- defendant to vacate the schedule premises subject to payment of damages @ `2,00,000/- per month. The 5 same was agreed by the learned Senior Counsel for the respondent-defendant. Therefore, this Court adjourned the matter enabling the counsel for the defendant to file an undertaking to the effect that the defendant will voluntarily to vacate the schedule premises on or before 25.05.2018 and will not seek any further time and for the said period he should pay damages @ `2,00,000/- per month to the petitioners-plaintiffs. Hence, the matter is posted today.
6. Today, learned Senior Counsel for the respondent filed an affidavit of the defendant-tenant Sri.B.G.Mujamilkhan S/o. Late. Sri.Ziaulla Khan and categorically stated at para No.4 "that in compliance of the directions of this Court dated 09.11.2017, defendant undertakes to pay the enhanced damages from `1,70,000/- to `2,00,000/- every month, in respect of the schedule premises. He further stated in the affidavit that he undertakes to hand over the vacant physical possession of suit schedule premises 6 to the petitioners/landlords on or before 25.05.2008 without seeking further extension of time or without forcing the petitioners to file execution". The said affidavit is placed on record which reads as under:
AFFIDAVIT I, B.Z.Muzamil Ahmed Khan S/o. Late Sri.Ziaulla Khan aged about 41 years, residing at N.34, Benson Cross Road, Benson Town, Bangalore do hereby solemnly affirm and state on oath as follows:
1. I State that I am the Respondent in the above case. I am well conversant with the facts of this case. Hence, I am swearing this affidavit on my own behalf.
2. I state that I am a tenant in respect of the premises bearing No.34, Benson Cross Road, Benson Town, Bangalore. The petitioners are the owners of the said property.
3. I state that the petitioners had instituted the present Writ Petition challenging the legality and correctness of the order dated 23.09.2017 passed by the XXVII 7 Addl. City Civil Judge, Bangalore city CCH-9 in OS No.2555/2015, wherein, the trial Court had granted one year extension of time for me to vacate the schedule premises.
4. I state in compliance of the directions of this Hon'ble Court dated 09.11.2017 I undertake to pay the enhanced damages from `1,70,000/-
(`One lakh Seventy thousand) to `2,00,000/- (`Two Lakhs Only) every month, in respect of the schedule premises.
5. I further state I undertake to handover the vacant physical possession of suit schedule premises to the Petitioners/Landlords on or before 25.05.2008 without seeking further extension of time or without forcing the Petitioners to file execution.
6. I further state that I will pay the enhanced damages regularly as and when the same are falls due, during the course of my occupation in the suit schedule premises.
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What is stated above are all true and correct to the best of my knowledge, information and belief.
Identified by me,
Sd/- Sd/-
Advocate DEPONENT
Bangalore,
Dated 10.11.2017
7. In view of the undertaking affidavit filed and in view of the fair submissions made by the learned counsel for the parties on 09.11.2017, the writ petition is disposed of directing the defendant to quit and deliver the vacant possession of the schedule premises and handover to the plaintiffs- landlords on or before 25.05.2018 without seeking further extension of time. The defendant-tenant shall pay damages @ `2,00,000/- (Rupees two lakhs only) per month from 01.10.2017 till 25.5.2018 and he should not induct any other 3rd party interest in terms of the undertaking filed before this Court. With the above observation, the writ petition is disposed of.
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8. It is made clear that at the time of vacating the schedule property, the plaintiffs- landlords are directed to return the advance amount paid by the defendant, if any. In terms of the order stated to supra, the order passed by the trial Court is modified accordingly.
Sd/-
JUDGE BS