Karnataka High Court
M Krishnappa vs Sri Hanumanthappa on 24 October, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.633/2013 (RES)
BETWEEN:
M.Krishnappa,
S/o B.Muniyappa @
Giddada Muniyappa,
Aged about 57 years,
R/at Thirumala Shetty Halli,
Samayathana Halli Post,
Viz. Kadugodi,
Hoskote Taluk, Bangalore. ... Appellant
[By Sri Dinesh Gaonkar, Advocate]
AND:
1. Sri Hanumanthappa,
Since dead by his Lrs.
1(a) Smt.Yeshodamma,
W/o late Hanumanthappa,
Aged about 79 years.
1(b) H.Mohan,
S/o late Hanumanthappa,
Aged about 38 years.
Are R/at No.10/14,
Anjaneya Temple Street,
6th Cross, Vasanthanagar,
Bangalore - 560 052.
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2. C.Nagaraj,
S/o Chennappa,
Aged about 60 years,
R/at No.69, Chikkathayappa Street,
7th Cross, Vasanthanagar,
Bangalore - 560 052.
3. Bruhath Bangalore Mahanagara Palike,
Formerly Corporation of the City of Bangalore,
N.R.Square, Bangalore - 560 002.
By its Commissioner. ... Respondents
[By Smt. Naleena Logan, Advocate for C/R1(a and b]
This Regular First Appeal is filed under Order XXI, Rule
103, r/w Section 96 and Order XLI, Rule 1 and 2 of CPC against
the judgment and decree dated 22.3.2013 passed in
Ex.No.1742/2007 on the file of the XVI Additional City Civil and
Sessions Judge, Bengaluru, rejecting the application filed under
Order 21, Rule 97 and 101 of CPC.
This Regular First Appeal coming on for Admission this
day, the Court delivered the following:
JUDGMENT
This appeal is filed by the obstructer in Execution case No.1742/2007 on the file of the XVI Additional City Civil and Sessions Judge. The application filed by the appellant invoking Order XXI Rule 97 and 101 of CPC is rejected by the Execution Court.
2. Sri Dinesh Gaonkar, the learned counsel for the appellant submits that the L.R.s of the deceased first respondent (decree holder) are in possession of the property belonging to 3 the first respondent. The first respondent and the second respondent have colluded with each other to commit fraud on the appellant. He submits that the appellant had advanced the financial assistance to the respondent No.2 (judgment-debtor) for the purpose of the latter's raising the construction on the property in question. On the second respondent committing the default in the payment of the loan-amount, the appellant entered into the agreement of sale with the second respondent in July 1982. He submits that the appellant forcibly took over the possession of the property in question and inducted the tenants thereinto. He further submits that the appellant has been collecting the rents from the tenants. He would take serious exception to the Execution Court misunderstanding the case of the appellant that the possession of the schedule property is handed over to the appellant. As a matter of fact, the appellant has taken the forcible possession of the schedule property, so contends the learned counsel.
3. The learned counsel submits that even when the respondent Nos.1 and 2 fought the legal battle upto the Supreme Court, the appellant was kept unaware of these proceedings. On account of their committing the fraud, the 4 appellant cannot be dispossessed from the property. He submits that the Trial Court has proceeded on the wrong premises. The possessory rights of the appellant are to be adjudicated. Without holding any enquiry, the Execution Court has rejected the appellant's I.A.
4. Smt.Naleena Logan, the learned counsel for the respondent No.1 submits that the appellant is set up by the respondent No.2. She submits that the first respondent's O.S.No.51/1983 for declaration, recovery of possession, permanent injunction and mandatory injunction was decreed by the Trial Court on 26.8.2000. This was challenged by the respondent No.2 by filing R.F.A.No.990/2000 before this Court. The said appeal was dismissed by this Court, by its judgment, dated 2.7.2007. Against that, the appellant filed S.L.P.No.18359/2007 before the Hon'ble Supreme Court of India, which was also dismissed on 8.9.2007.
5. The learned counsel submits that prior to the appellant filing the obstruction-application, another party, namely, Munivenkatappa had filed the obstruction application, which went on for one year. It is her submission that the second 5 respondent has got the I.A. for obstruction filed through the appellant for the purpose of dragging on the matter.
6. I have minutely gone through the appellant's affidavit filed in support of his obstructing application. In the affidavit, he states that the agreement of conditional sale was executed by the second respondent on 13.6.1980. He also claims to have taken over the possession of the schedule property in July 1982. But the appellant has not filed any suit seeking the relief of specific performance of the agreement, dated 13.6.1980. He has not produced any documents on the record of the Execution Court to show that any of the tenants were issuing the cheques or demand drafts towards the rent in favour of the appellant.
7. The statements made in the affidavit in support of the I.A. are full of loose ends. The Execution Court is justified in rejecting such an I.A. The reading of the affidavit does not disclose that any triable issues are involved. I am also not impressed of the submission urged on behalf of the appellant that the respondent Nos.1 and 2 have acted collusively. The respondent Nos.1 and 2, the decree holder and the judgment debtor respectively, have fought the legal battle bitterly from the 6 Trial Court to the Apex Court. If the second respondent judgment-debtor had lost the possession in 1982 itself, there would not have been any reason for him to file the RFA and thereafter the SLP. The Calcutta High Court, in its decision in the case of MANOHAR KUMAR KANKARIA AND ANOTHER v. SK.
MD. SHAWKAT AND OTHERS reported in AIR 2006 CALCUTTA 256 has this to say in paragraph No.9:
"9. There is no document apart from bare statement on oath that there has been any acceptance of rent either from the lessee or under-lessee either by the plaintiffs or their predecessors-in-interest.................... The plea of collusion, connivance and fraudulent representation are absolutely misleading submission and statement. It appears from the decree itself and the records that the application under Chapter XIIIA was seriously contested and all possible points were taken and dealt with by Learned Judge by passing decree. Moreover an appeal was preferred against this judgment and decree and this decree sustained upon hearing of appeal and dismissal of the same. On the face of the aforesaid proven fact how it can be said that decree was obtained in collusion with the defendants and fraudulently. Therefore, this contention of Mr.Bachawat is rejected accordingly."
8. If the objection is not made in good faith, the enquiry under Order 21 Rule 97 is not necessary; the enquiry is only permissive and not mandatory.
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9. I may usefully refer to the Apex Court's judgment in the case of RAMRAMESHWARI DEVI AND OTHERS v. NIRMALA DEVI AND OTHERS reported in (2011) 8 SCC 249. The relevant paragraphs of the said judgment are extracted hereinbelow:
"32. According to the learned author, 90% of our court time and resources are consumed in attending to uncalled for litigation, which is created only because our current procedures and practices hold out an incentive for the wrongdoer. Those involved receive less than full justice and there are many more in the country, in fact, a greater number than those involved who suffer injustice because they have little access to justice, in fact, lack of awareness and confidence in the justice system.
33. According to Dr.Mohan, in our legal system, uncalled for litigation gets encouragement because our courts do not impose realistic costs. The parties raise unwarranted claims and defences and also adopt obstructionist and delaying tactics because the courts do not impose actual or realistic costs. Ordinarily, the successful party usually remains uncompensated in our courts and that operates as the main motivating factor for unscrupulous litigants. Unless the courts, by appropriate orders or directions remove the cause for motivation or the incentives, uncalled for litigation will continue to accrue, and there will be expansion and obstruction of the 8 litigation. Court time and resources will be consumed and justice will be both delayed and denied.
43. We have carefully examined the written submissions of the learned amicus curiae and the learned counsel for the parties. We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases."
10. In the result, I dismiss this appeal. No order as to costs.
Sd/-
JUDGE MD