Karnataka High Court
Smt Leelavathi C Tolia Dead By Lrs vs Sri Prathap Kumar J Tolia S/O Jamnadas ... on 4 March, 2010
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 4"' DAY OF MARCH. 2010. BEFORE THE I~ION'BLE MR. JUSTICE ARAVIND . H.R.R.P No. 23/2010 A BETWEEN: A A Smt. Io/ee1avat11i.C.'I'o1ia, Dead by LRS ._ _ Shard.C.To1ia Aged about 55 A' "Son of Late Chandu1a1'Tao1}a. 5 R/o Old No.12, New No. ' V Udani Layout, ' Cambridge Road--,_ V ' Ulsoor, Ba11gaf.i)r6::1ie»-A" 530'-0C',8? A Petitioner [By_s:~1' Adv.) AND: 1 '~ ._I\/I /\'?ar3(;%1A:e1nj1a11ai' "B«h..211iathi, I V Represefited by SyioAP1*sit«hV_aoi'I<ii1mar J Tolia, [o J Tolia, Agedv-abotit. 79 years. E.'»_mt.vVSumit',ra P. Tolia, -- _ about ?4 yr-3a1's. Wife of Pratap Kumar J.'i'o1_ia. '3 Both are residingg, at No. 1580. Dayananda Saga1.r College Road. SE31 Colony. Ktzrzlaraswamy Layout. Bangalore -- 560 078. Respor1dents'"*--, (R-1 by Sri N.Vasu.clevan Adv.) 'xkxxx This HRRP filed under Section the order dated 15.01.2010 passed' in 'l._.A.*4--i «.ot2:_'~Ex:.._V No.1605/2009 on the file cifthe Chief Judge:.v..CoL3§rt Small Causes. Bangalore. allowfiig I.A. 'fi1ed.t_"1_nderVVSeCtion 151 of CPC. 'for put up the 1.995,' E This Petition ha\firtg_'i:§--eei{1' ;he9grr;:l"ia11d reserved for Orders coming on for proi1Vo'-JfI1eerI1.e3'i'tfeforders, this day the Court, madethe fo1lowiiJ.§g' " ' "' 0 The petit.i<;ner:_jhe1'e_iii»who is the decree holder before the Court be'l'o\_i\} "Que-sti0r1i11g the correctness and legality ""of_i;i-lé 3o'Is;1ep_pass[éd"'by the Chief Judge. Small Cause dated 10.01.2010 011 l.A.l\io.4 in the exeeutioh' 1605/2009 under Section 46 of the H H " 0 4." ' ---- :_.l{21r1_1a.ta;}<é1 Rent. Act. 1999. -- 5.11 finaily decided and as such the decision rendered in the said HRRP is final '.9 {vi} Whether the respondents prove
suit is bad for n0n--j0_i_n.de_r 0f_*'.V1ie(.*é,ssary'.V parties namely representatives of: _the '*--pe"£it.i0r1ei*I.,since*. "
deceased '?
(vii) What order
5. The contentions got herself rnarked documents Exs.P.1 Debtors 1 & 2 got examined, 1 8: 2 and got marked d0curnentsVV'E;»£sVfVR}:V '1-0 ;_-.Qn._ consider--ing the pleadings and evidences on _ Court by its order dated 31.03.2009 aliswed t.he'vis:fg_e:{.iti01é under Section 27' {2} (0) of the Rent ii"~~..__'Act and ,di~smissed the petition under Section 27 (2) {r} of 6
7. Being aggrieved by said order the Judgment Debtors 1 8: 2 filed two revision petitions in 119/2009 and 103/2009 respectively before On account. of non~deposit of arrears 1' adjudicated by the trial Court and fal'so----on oVfrifon'~..& payment of rent up to date of filing 0l?§ev0isiori~ which. is a pre~requisite for entertaining 'the"vpe"pitions,' the 00 revision petitions carneyto by_"o1*ders dated 10.07.2009 and 27.07.2009. decree holder has filed execgzt'i'o.n1_'-pet:ition.:2..«on«.sx0v2j;09.2009 in execution possessioii of the petition p1'emises'on"0l.'1.221009'.-.i:::"Oil 05.12.2009 an application
1.A.No_,4»u_nder order 2.1 gale 100 came to be filed seeking de1.1y'e1\& of schedule property {schedule :p'rer:(1ises)1:'whic.i1.'--:'ivas taken on 01.12.2009 by the Decree _ Holder. Obj-eetions to the said application came to be filed the decree holder on 14.12.2009. The Court below by dated 16.01.2010 posted the interlocutory application for enquiiy which order is now assailed in the present revision petition.
8. I have heard Sri. Ramesh Cl1a1n.d1*a.V"--lcEEirr1ed Counsel for the petitioner and Sri N.V21su'devajrL.learned' Counsel for the respondents l and 2}
9. Sri Ramesh Chaildrexlllllvearried contend that judgment. ha's._V_ to application under iréi'wo"{4id further contend that order an enabling provision ai1rl»_VCou.'rt cornmitted an error in posting the ease for e:.ic°u.li'i*v;'*~._y contended 3:) him that an , .3 V « applicationlluridewrl"order?1 Rule 97 can be filed only by a peVrsori5'iwh'ois I1OtW(llaiIl'li1']g right under Judgment Debtor and onvly_whio_.:is having claim separate and independent right tie' property in question or right to remain in h possession by such iridependent, right. He vvould contend lVtliat'tltidgggrnent Debtors having not challenged the order
-iv-passed in HRRP No.1 19/2009 and 103/2009 cannot now_ fl.»»~w~e 9 delivered possession of schedule premises to the decree holders and as such the Court below has rightily ordered for enquiry on I.A.No.4. He would i'L11'ther (§o11tetr1df"--.t;h--at when the HRRP No.119/2009 and 103/2009 xyiasv as an application for quantification r3f"'t»h.e réfgntzvyearnell t.of,b'e filed by the Decree Holder in fact had been suppressed -l_ljandl"l 103/2009 was being heard and -esp-nlesnds lthls Court had erroneously dismissed ll and it was thereafte1'wards<'t.h'e. 21ppli<éa.tion"~.lfiled 'before the Court below for qua1'1'ii'ifieal,io11.ao'f.'§.l1e rent came to be withdrawn by decree' holder submits that when there was no" j_ural V-relatlionshlp of landlord and tenant the C€>nrt. ollght not to have delivered {he such I.A.No.4~ had been filed and V dd _ exec:i1--€.'ing'C0ri1*t had rightly posted the matter for enquiry. Sri l\l.\/asudevan. learned Counsel for the JDR Upon the iblloxvingludgments 3 (1) {LR 1987 KAR 3464 Pratapsirlgh V/s Jaibunnisa Begaum
(ii) ILR 2004 KAR 1546 R.Sha1*iff and Others V/s A.M<>he1n1ޤedvjV'NoLoe Another
(iii) ILR 20EO KAR 427 Sri Saieem V/s Sri
(iv) ELR2001 KAR41»?S4 E V % M/s Deccan P19emra_jL1 @ R.Prem Vlfleamed Counsel for the for my Consideration :
':'(i)o Court below was justified is I.A.No.4 for enquiry ?
order ?
13°.' -Aféirnit.t,ed3y the decree holder had fiied objection .'o?"'me;.A.N§.4 and had sought for dismissal of the said ';2:.V;v:"}'f)i'iee1tie)1'1. A perusai of the order dated 16.01.2010 does I 7 rent. or said application having been witrhdrawn by decree holder would not have any bearing on the E'ViCti(}fI-.>OI'd€I'. '1" he remedy that was available to the Jt1dgm.ei'1i;:"':f)ebt:=jrs was to prosecute the HRRP's and prosecuting the same and allowjir1g»t.'heV order oi"~ej«.i;etio_n:rt,o it. become final, Judgment. d»ebto1'sl'w_ould not'. entitledlto. contend that on account loi"V'lapl:plieation or suit, possession eo'ul_d}nc.?t delivered to the decree holders exe'c:.ut:i_n.g it is to be held that eonte1?l:tio:nsl_V lthe""'Judgment Debtors sL1pporting' o:r.der4l'passedVVby the Court below Cannot. be sustained an_d' a't:c}o*rd'1'ngly the same is rejected. .15. under order 21 Rule 100 can be . filed' personlmother than Judgment Debtor and who V' i'1idep.endent right which is not traceable to Judgrnent!'Debi:o1~. in the instant case Judgment. Debtor himse'lf:7 Claiming that on account of pendency of RFA it *.._'/40:/2003 the executing Court should not have delivered < E3 possession and by virtue of such right he seeking for redelivery of possession. Judgment Debtor has no right to apply under Rule 100 is much as under;Rtt1e=.vlOO question of title cannot be gone into. Henc7_e;.. Court below directing holding of...r%_nquir3l/llllloiiiip patently erroneous.
16. In so far as the "by the learned Counsel for the 1'68p.{){EVtilVCF1't'nfl1€lI'"C?G'.l.1C£~l1Ot be any dispute with regard down in the said Judgments. HoweVer_'it ism be{Consid.ered herein as to its applicabilityorotherwise"to. the facts of the present case.
17. Jaibunnisa Begum reported 'l in in the said case it has been held question of title to the properties is in dispute; of title would go to the root of jurisdiction it would-not be advisable for the rent Court' to embark upon ll enquiry. In the present case the order passed by the .....¥§ent Court. had reached finality in HRRP 119/2009 and GER'/.
14
103/2009 and hence the above said jtidgnieiiii is not applicable to the facts and circumst.anees of the present case.
18. In the case of Sri R. Shariff referred" it is held by this Court till the final decision respect of declaration of title isfgi{re'1:«,p_E{e1i.t 7. defer all further proceedings. "Fh_e'"said is' ai.s'o,no.t applicable to the facts of thvisfcase have been urged by the 103/ 2009 and 110/2009 and not under Order 21 5- l1eA'pr'ine'iple laid down in the case of Smt. urefe1'1'ed' lllll to supra by learned Counsel for petition:e'1r._V'lissquarely applicable to the facts to the case, whereiiji' ms held as follows :
"From the conduct. of the tenant ml-'H respondent we have no hesitation in coming to the conclusion that the application filed under fly/"
In came to be dismissed on 27.7.2009 and l().()v7-22009 respeCt.ively and thus it had attained fi11ei'3.ity---:'*:;ir1.d apparently the application under order 21 not maintainable having suffered .oi;deI'«of?.eVietion' péissed by a competent. Court. Hence, i3'.{_)i:I'1.t_ i\lc).>1_'yA Aforr111i'l'2ited'--..L herein above will have to be've«...§i11swere'd_V_ in by holding that Court below fijustifiedlii posting l.A.No.4 for inquiry. In view:_ofi aboi/e:'v'*folliowing order is llll
1) allowed.
_ Oideif .2010 passed on l.A.No.4 filed undefléorder 2} Rule 100 posting it: for he is set aside and IA. No.4 is dismissed. A "-3) 'NVo¥olrder as to eosts.
Sdfv ITEDGE Vsk/«