Karnataka High Court
Inayathulla Khan vs L Venkataramana Raju on 6 August, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
REGULAR FIRST APPEAL NO.1180/2012
Between :
Inayathulla Khan
S/o Sri Ghouse Khan
Aged about 66 years
R/at No.121/1
S.G. Narayan Layout
Lalbagh Road
Bangalore-560 027. ...Appellant
(By Sri A Kumaravel, Adv.)
And :
1. L. Venkataramana Raju
S/o R.L. Raju
Aged about 72 years
2. V Ramachandra Raju
S/o L Venkataramana Raju
Aged about 46 years
3. V Badarinarayan
S/o L Venkataramana Raju
Aged about 42 years
All are residing at
No.76, Rangarao Road
Shankarapluram
Basavanagdi
Bangalore-560 004
4. K.V. Sathya Murthy
S/o late K.V. Venkoba Rao
Aged about 58 years
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5. K.V. Ramesha Babu
S/o late K.V. Venkoba Rao
Aged about 53 years
Both are r/at No.1
Dhondu Sa Layout
Mount Joy Road
Bangalore - 560 019
6. Sudha Rao
W/o T.R. Venkoba Road
Aged about 65 years
R/at No.40, Vth Main
Vth Block, Jayanagar
Bangalore - 560 041.
7. K.V. Jayalakshmi
W/o M Srikrishna
Aged about 60 years
R/at No.11/2
M.M.V. Road, V.V. Puram
Bangalore-560 004.
8. K.V. Pushpalatha
W/o H.R. Raja Rao
Aged about 50 years
R/at No.104, 2nd Cross
Canara Bank Colony
Chikkallasandra
Subramanyapura Post
Bangalore-560 001. ... Respondents
(By Sri G.S. Prasanna Kumar, Adv.)
This appeal is filed under Section 96 of CPC, against
the orders dated 07.07.2012 passed on I.A.No.1 in
Ex.No.1018/2012 on the file of the X-Addl. City Civil and
Sessions Judge, Bangalore, dismissing the I.A. No.1, filed
u/o-XXI, Rules-97, 98, 99, 101 and 104, r/w Section 151 of
CPC.
This Appeal coming on for admission, this day, the
Court delivered the following :
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JUDGMENT
The appellant herein is the objector in Execution Case No.1018/2012. Respondent Nos. 1 to 3 herein being the decree holders had levied Execution No.1018/2012 seeking to execute the judgment and decree for ejectment passed in O.S.No.5429/2003. The appellant herein and another person had filed applications in the instant execution petition. Only the appellant who was the applicant in I.A.No.1 in the execution proceedings is before this Court. The said application in I.A.No.1 was filed under Order 21 Rules 97, 98, 99, 101 and 104 of CPC. The Court below after considering the rival contentions has dismissed the application. The applicant in I.A.No.1 is therefore before this Court in this appeal.
2. The respondents have entered caveat. Subsequently, the present counsel Sri G.S. Prasanna Kumar has appeared for respondent Nos. 1 to 3. Accordingly, I have heard the learned counsel for the parties.
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3. The brief facts to be noticed are that respondent Nos. 1 to 3 herein being the owners of the schedule premises had let out the premises in favour of Sri K.V. Sathyamurthy and others. In that regard, having issued a notice as contemplated under Section 106 of the Transfer of Property Act (for short 'the T.P. Act'), suit for ejectment was filed in O.S.No.5429/2003. The Court below after considering the rival contentions in the suit has decreed the suit in favour of respondent Nos. 1 to 3. Since the defendants in the suit had not vacated the premises and handed over the possession to respondent Nos. 1 to 3, the execution petition in Case No.1018/2012 was levied to execute the said decree. In the pending execution proceedings, the appellant herein has filed the application and has contended that he is in possession of the suit schedule property and therefore, has objected to the decree being executed and the possession being taken from the appellant. It is his case that the original tenant of Respondent Nos.1 to 3 had sub-leased the property in his favour. According to him, there is no prohibition in the lease deed entered 5 into between respondent Nos. 1 to 3 and the original tenant who was the defendant in the suit. Hence, it is contended that the sub-lease was permissible in law and therefore, the appellant has the protection under Section 108 of the T.P.Act. In that regard, it is contented that the suit could have been maintained without impleading the appellant herein as one of the defendants and as such, the decree cannot be executed. Hence, the execution petition was opposed.
4. Respondent Nos. 1 to 3 herein i.e., decree holders however opposed the said application in the execution petition by contending that the original tenant did not have the right to sub-lease the premises in favour of the appellant who is an unauthorised sub-lessee and cannot claim any independent right and therefore, cannot object to the execution of the decree. It is further contended that the sub-lease as claimed by the appellant in any event is on 01.07.2004 i.e., subsequent to the filing of the suit in the year 2003. Therefore, no right can be claimed by the appellant. The said contention of respondent Nos. 1 to 3 herein 6 was accepted by the Court below and the Court below has rejected the application.
5. Similar contentions are advanced before this Court. In the light of the said contentions, the undisputed facts in any event are that respondent Nos.1 to 3 are the owners of the premises, which was the subject matter in O.S.No.5429/2003. The fact that the appellant herein was not the tenant under respondent Nos. 1 to 3 also cannot be disputed. Therefore, in such circumstance, the question that would arise is with regard to the right claimed by the appellant herein as put forth before the Executing Court. Admittedly, the appellant contends that he is a sub-lessee in respect of the premises under the original tenants and they had put him in possession and he is also carrying on the business of motor vehicle garage. In that light, insofar as the objection which is put forth by filing an application under Order 21 Rules 97 to 101 and 104 would necessarily indicate that such objections in the execution petition can only be put forth while claiming an independent right. The appellant herein is 7 claiming right under the tenants of respondent Nos. 1 to 3 who had suffered the decree which is sought to be executed.
6. No doubt, a claim was put forth that since there was no prohibition in the lease agreement to sub- lease the premises, the appellant would have the protection as provided under Section 108 of T.P. Act. In this regard, as rightly noticed by the Court below, the suit in question was filed in the year 2003 while the appellant admittedly was put in possession by the tenant therein on 01.07.2004. Therefore, the very manner of grant of sub-lease is hit by lis pendens and therefore, the appellant in any event cannot claim any independent right. In fact, the Court below having noticed this aspect of the matter has also relied on the decisions of the Hon'ble Supreme Court which has enunciated the said position and has arrived at the conclusion. When the Court below has not committed any error insofar as considering the factual aspects and relying on the law on that point, the order in any event does not call for interference in the instant appeal. 8
7. In view of the said conclusion reached by this Court, the learned counsel for the appellant would pray that sometime be granted to vacate the premises and the appellant in that regard would accept the finality of the decision. Learned counsel prays atleast two years time be granted to vacate the premises. Learned counsel for respondent Nos. 1 to 3 would seriously oppose the grant of such time. It is pointed out that the suit itself was instituted against the original tenant in the year 2003 and sufficient time has elapsed by now. Even otherwise, the appellant claims that he was put in possession in the year 2004 and even thereafter, the appellant has enjoyed the premises for sufficiently long and therefore, no time be granted.
8. Having noticed the rival contentions, what cannot be lost sight is that the premises in question is a commercial premises where the appellant claims that he is running a motor vehicle garage. In such circumstance, in any event, sometime needs to be granted to the appellant to make alternate arrangement 9 to relocate his business. However, the time as prayed by the learned counsel for the appellant is not reasonable.
9. Therefore, keeping all these aspects in view, I am of the opinion that it would be reasonable to grant a period of six months to the appellant to vacate the premises subject to the condition that the litigation would be put to an end. Therefore, the appellant is granted time till 28.02.2013 to vacate the schedule premises. The time granted is subject to the condition that the appellant shall accept the finality of the decision and file an undertaking by way of affidavit in the Registry of this Court within three weeks from this day. In the said undertaking, he shall agree to vacate voluntarily from the schedule premises on or before 28.02.2013 without driving the respondent Nos. 1 to 3 to initiate execution proceedings. The appellant shall also undertake that during the said period of six months, he shall not induct any other person and he shall pay the rents directly to respondent Nos. 1 to 3 without default. If there is default for even one month, 10 the benefit of time granted by this Court would not enure to the appellant. It is also made clear that if the appellant does not voluntarily vacate the premises within the period granted herein, apart from the respondents having right to execute the judgment and decree to secure vacant possession, the appellant herein would also render himself liable for contempt proceedings for violating the undertaking made to this Court.
In terms of the above, the appeal stands disposed of. No order as to costs.
Sd/-
JUDGE hrp/bms