Karnataka High Court
Puttaswamy Gowda T vs Sri C Shekar on 28 February, 2020
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.3768 OF 2019 (CPC)
BETWEEN:
PUTTASWAMY GOWDA.T
SON OF LATE TIMMEGOWDA
AGED ABOUT 68 YEARS
RESIDING AT NO.4/23, 2ND MAIN
THIMMENAHALLI
GOVINDARAJANAGAR
BENGALURU-560040 ... APPELLANT
(BY SRI. MANU.N.P, ADVOCATE)
AND:
SRI. C.SHEKAR
SON OF. LATE CHINASWAMY
AGED ABOUT 54 YEARS
RESIDING AT NO.9, 7TH A CROSS, 27TH MAIN
HSR LAYOUT, AGARA
OPP: OLD AIRPORT ROAD
BENGALURU-560 017 ... RESPONDENT
(BY SRI. H.N.BASAVARAJU, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER XLIII RULE 1(d) OF CPC, AGAINST THE ORDER DATED
23.03.2019 PASSED ON MIS.NO.480/2017 ON THE FILE OF
THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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BENGALURU (CCH-60), DISMISSING THE PETITION FILED
UNDER ORDER IX RULE 13 R/W SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the petitioner in Misc. Petition No.480/2017 on the file of the LIX Additional City Civil and Sessions Judge, Bengaluru. The appellant has filed this petition in Misc. No.480/2017 under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 for setting aside the ex parte judgment and decree dated 28.04.2017 in O.S.No.4340/2016 on the file of the LIX Additional City Civil and Sessions Judge, Bengaluru City.
2. The respondent has filed the suit in O.S.No.4340/2016 for ejectment of the appellant asserting that the appellant is inducted into possession of the building No.4/23, 2nd main, Timmenahalli, Govindarajanagar, Bengaluru (for short, 'the subject -3- property') as a tenant on terms. Though the tenancy in favour of the appellant is terminated by issuance of notice dated 13.02.2016, the appellant has not vacated and delivered possession of the subject property. The appellant has not participated in the proceedings. The civil Court, on considering the material on record, has granted decree for ejectment directing the appellant to deliver possession of the subject property with liberty the respondent to recover arrears of rent.
3. The appellant has filed the Miscellaneous Petition in Misc. No.480/2017 belatedly accompanied by an application filed under Section 5 of the Limitation Act, 1963, asserting that he was not aware of the proceedings in O.S.No.4340/2016. However, the civil Court on considering the material on record viz., the postal endorsements and the bailiff's report has opined that these documents would show that the respondent is not truthful. The oral -4- testimony of the appellant to the contrary would not suffice to dislodge the evidentiary value of these documents.
4. This Court has referred the parties to mediation, and in the mediation the appellant has agreed to the following terms:-
"i. That the appellant shall pay the sum of Rs.1,00,00,000/- to the respondent on or before 06.11.2019 and have a Registered Sale Deed executed in his favour by the respondent.
ii. That in the event of the appellant failing to pay the agreed consideration of Rs.1,00,00,000/- (Rupees One Crore Only) to the respondent on or before 06.11.2019 and have the registered sale deed accordingly, the appellant undertakes that he will quit, vacate and handover the vacant possession of the suit schedule property in O.S.No.4340/2016 to the respondent.
iii. That in the event of the appellant failing to pay the agreed consideration of Rs.1,00,00,000/- (Rupees One Crore Only) to the respondent on or before 06.11.2019, the respondent is at liberty to have the decree of Ejectment passed in O.S.No.4340/2016 executed, including in Ex. No.4622/2018 pending before LIX Additional City Civil and Sessions Judge, CCH-60, Bengaluru and obtain the vacant possession, for which the appellant shall not have any objections."-5-
5. As per the terms of the memorandum of agreement before the Mediation Centre, the appellant has agreed to pay a sum of Rs.1,00,00,000/- (Rupees One Crore Only) and buy the property on or before 06.11.2019, and has also accepted if the appellant is unable to pay such amount and obtain the sale deed for the subject property from the respondent on or before 06.11.2019, the respondent would be entitled to have the decree in O.S.No.4340/2016 executed in the pending execution case. The appellant and the respondent do not dispute that the memorandum of agreement concluded before the Mediation Centre.
6. This Court considering the affidavit filed by the appellant, has enlarged the time upto 24.02.2020 to enable the appellant to pay agreed consideration and obtain conveyance as per the terms of the memorandum of agreement. The appellant has not paid any amount during the enlarged time, but has now filed an application seeking for further enlargement of time by 30 days.
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7. The appellant has stated that despite putting up different properties owned by him for sale, he is unable to find a purchaser and he also states that if given further 30 days time, he would make necessary arrangements. The appellant, who is unable to mobilize the funds as per agreement before the Mediation Centre, cannot be entitled for any enlargement for time as a matter of right. The appellant is in possession of the property as a tenant and any further delay would only postpone the execution of the decree which the respondent is entitled to in terms of the decree. The appellant is not able to demonstrate the bona fides. In view of the terms of memorandum of agreement which is accepted, the default in performance of such terms and the failure to demonstrate the bona fides, this Court is of the considered view that there is no reason for interference in this appeal. Therefore, the appeal is dismissed.
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In view of the dismissal of the appeal, pending applications does not survive for consideration, and the same is accordingly disposed of.
SD/-
JUDGE KPS