Karnataka High Court
Sri. Ashok Kumar vs M/S. Rao Bahadur Gubbi on 23 December, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CIVIL REVISION PETITION NO.126 OF 2016 (EX)
BETWEEN:
SRI ASHOK KUMAR,
S/O KUNDANMAL,
AGED ABOUT 52 YEARS,
RESIDING AT NO.12,
RACE COURSE ROAD,
KALPATARU APARTMENTS,
NO.54, 5TH FLOOR,
BANGALORE-560 001,
HAVING SHOP AT
NO.4, GROUND FLOOR,
IN NO.104,
BELLI BASAVANNA GUDI BEEDI,
MAMULPET,
BANGALORE-560 053. ...PETITIONER
(BY SRI P D SURANA, ADVOCATE)
AND:
M/S. RAO BAHADUR GUBBI
THOTADAPPA CHARITABLE TRUST,
NO.88, GUBBI THODAPPA ROAD,
NEAR CITY RAILWAY STATION,
BANGALORE-560 023,
REPRESENTED BY
ITS SECRETARY. ...RESPONDENT
(BY SRI R B SADASIVAPPA AND A.N.GIRIJESHA,
ADVOCATES)
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THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 18 OF KARNATAKA SMALL CAUSES COURTS
ACT, AGAINST THE ORDER DATED: 24.03.2016 PASSED IN
EX.NO.2612/2015 ON THE FILE OF THE XIX ADDL. SCJ
AND XLI ACMM, BENGALURU, DISMISSING THE IA FILED
UNDER SECTION 47 OF CPC.
THIS PETITION HAVING BEEN HEARD THROUGH
VIDEO CONFERENCE AND RESERVED FOR ORDER,
COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed by the petitioner-judgment debtor for setting aside the order dated 24.03.2016 passed on I.A. under Section 47 of CPC in Execution case No.2612/2015 by the XIX Addl. Small Cause Judge and XLI ACMM, Bengaluru.
2. Heard learned counsel for the petitioner- judgment debtor (tenant) regarding admission and also on I.A. filed by respondent-decree holder for dismissal of the petition. Perused the impugned order and the concerned records.
3. The order passed in execution case No.2612/2015 disclose that the judgment debtor-tenant 3 had filed I.A. resisting the execution of decree on the ground that all the trustees of the landlord trust are not impleaded as parties in the eviction petition as such the suit or petition is not maintainable. Considering the objections raised by the judgment debtor-tenant in his application under Section 47 CPC and the decisions relied on by him, the executing Court has observed that all trustees need not be joined to file a suit. In the present case as per the bye-laws of the trust, the decree holder is represented by the Secretary of the Trust, who is also duly authorized by the resolution of the Board of Trustees. Therefore, the president or the Secretary of the Trust has power to file a suit. It is further held that once the judgment and decree passed by the trial Court is confirmed by the Hon'ble High Court and upheld by the Hon'ble Supreme Court, then the judgment debtor has no option except to hand over the possession of the property. With these reasonings the application is rejected. Being aggrieved by the aforesaid order, the 4 judgment debtor preferred the revision petition on the following grounds:
(a) Section 47 and 48 of the Indian Trust Act mandates that legal proceedings are to be maintained by all Trustees. The trial Court has erred in holding that bye-law No.5 of the Trust enable the Secretary or President to maintain the proceedings.
(b) The first judgment debtor, who is the main tenant has not been impleaded in the execution proceedings.
(c) The decree under execution is in respect of a portion of the property, which is subject matter of S.C.No.995/2013. Hence, the execution petition is not maintainable. The petitioner/second judgment debtor is occupying the shop premises as a tenant under first judgment debtor on a monthly rent of Rs.5,000/-
4. It is pertinent to note that in the order passed in CRP No.297/2015 C/w CRP No.298/2015, this Court has discussed in detail all the aforesaid grounds urged by the judgment debtor and has held 5 that the suit or petition instituted through its Secretary and the execution of the lease deed was also by the President and Secretary in terms of Rules Governance of Trust framed by the Board of Trustees. In view of the said Rules, the President and Secretary are authorized to represent the Trust before any Authority or Court of law. Further it is observed that as per Section 108(j) of the Transfer of Property Act, the lessee may transfer the absolute or any part of his interest in the demised property. This includes transfer by lessee by way of sub-lease and on such transfer, lessee cannot, by reason only of such transfer, cease to be subject to any of the liabilities attached to the lease. The interest transferred will come to an end on determination of the lease. In the instant case, the lease executed in favour of first lessee has to come to an end by efflux of time of lease period. Thus, the sub-lessee cannot continue unless there is a creation of new lease in his individual capacity.
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5. In the instant case, there are no records or convincing evidence to show that after determination of earlier lease in favour of the lessee new lease has been entered into between the landlord and the sub-lessee. The judgment debtor being the sub-lessee has taken up the contention that during the pendency of the civil revision petition he has paid enhanced rent as per the demand made by the landlord, which clearly goes to show that there is a new lease created between the landlord and sub-lessee in respect of the schedule property.
6. It is pertinent to note that order dated 29.06.2016 disclose that the learned counsel for the respondent-landlord has received the amount towards damages for the period from 01.09.2012 to 31.05.2016. The same cannot be construed as acceptance of rent in respect of creation of new lease in favour of the 7 judgment debtor, who is the sub-lessee of the schedule premises.
7. In CRP No.297/2015 C/w CRP No.298/2015, this Court has held that there is no independent right to the sub-lessee to continue in possession of demised property on determination of lease period after efflux of time the sub-lessee is liable to be evicted from the premises as he has no right to come up with any independent defence that the lessee could have had when the lessee has already suffered the decree of ejectment, the sub-lessee cannot take up untenable contentions regarding maintainability of eviction petition. None of these contentions can be urged by the sub-lessee and the sub-lessee has no right to hold on to the property. Even though the lease has come to an end on 31.08.2012, the sub-lessee has not paid the damages towards unauthorized occupation. With these findings the civil revision petition is 8 dismissed as devoid of merits and the order passed for eviction was confirmed.
8. Being aggrieved by the orders passed in CRP No.297/2015 C/w CRP No.298/2015, judgment debtors/sub-lessees had preferred special leave petition before the Hon'ble Supreme Court in Special Leave to Appeal (C) Nos.30085-30086/2015. The said special leave petitions are dismissed.
9. Considering all these aspects the executing Court has rightly come to the conclusion that the objections raised in I.A. under Section 47 of CPC by the judgment debtors are not tenable. Since all the objections and the contentions raised by the judgment debtors have reached finality. There are no grounds to admit the petitions.
10. The respondent-landlord has filed I.A.No.1/2019 under Section 151 CPC to dismiss the civil revision petition. In support of the I.A., the 9 Secretary of the respondent-Trust has filed affidavit wherein he has stated that this respondent has filed the suit against the petitioner in S.C.No.1179/2013 on the file of the Small Causes Judge, Bangalore seeking for eviction of the petitioner from the B schedule property. The petitioner did not dispute the relationship in the suit and also the tenancy came to an end on 31.08.2012. It is also not disputed that the petitioner is a sub tenant under defendant No.1. It is also not disputed that the decree was obtained against the defendant No.1 in S.C.No.995/2013. In the suit vide No.1179/2013 the defendant No.1 has not contested the matter and has not filed the written statement. The Petitioner herein has contested the matter in the said suit. The trial court after recording the evidence and after hearing both sides was pleased to decree the suit of this respondent on 28.04.2015. Thereafter, the petitioner herein has filed C.R.P No.298/2015 challenging the trial court order before this Court. This 10 Court had considered the petitioner contention and rejected the same by its order dated 17.08.2015. The petitioner had challenged the order passed by this Court before the Hon'ble Supreme Court of India by urging the same contentions with regard to the maintainability of the suit and as well as non making all the Trustees as plaintiffs. The Hon'ble Supreme Court of India, by its order dated 30.10.2015 dismissed the Special Leave petition filed by the petitioner by confirming the order passed by the trial court as well as order passed by this Court. The petitioner herein having the knowledge of the fact that his contention with regard to maintainability of the suit and not filing the suit in the name of all the Trustees was negated by the trial court, this Court and Hon'ble Supreme Court of India. Still the petitioner has filed an application under Section 47 of the Code of Civil Procedure, raising the same contentions in the application. This respondent had filed the detailed objections to the application filed by the petitioner 11 under Section 47 of the Code Of Civil Procedure along with necessary documents. It is an admitted fact that the petitioner herein has not raised any jurisdiction question of the trial Court to pass the decree. The maintainability in question was already decided in the original side itself. Section 47 of the Code of Civil Procedure does not empower the executing Court to sit over the findings recorded on the original side. In the instant case, the petitioner herein again sought the executing Court to go into the maintainability of the suit as well as maintainability of execution petition filed by the Secretary of this respondent Trust. Even in the Civil Revision Petition also, the petitioner has raised the same contention which were raised in the earlier Civil Revision Petition in CRP No.298/2015. Therefore, it is clearly goes to show that the act of the petitioner is nothing but abusing the due process of law with an intention to drag on the matter on one or the other pretext. This acts of the petitioner is also coming in the 12 way of administration of justice and it amounts to contempt of court. As per the law laid down by the Hon'ble Supreme Court of India, in Special Leave Petition (c) Nos.25331-33 of 2015;
"The Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on misplaced expectation of judicial leniency. Exempalry costs are inevitable and even necessary in order to ensure that in litigation as in the law which is practiced in our country, there is no premium on the truth".
It is further stated that in this case also the intention of the petitioner is nothing but make the respondent to run from pillar to post. The petitioner by 13 way of filing the application and filing the Civil Revision Petition made his intention is clearly that by hook or crook to drag on the matter and to prevent the respondent herein from enjoying the fruits of the decree. As such this Civil Revision petition filed by the petitioner is a malafide one, as he is having full knowledge of the fact that he has already raised all these contentions in the original side and the same were rejected and it is not permissible for him to raise same contention in the Execution petition. As such, executing court cannot go beyond the decree. Therefore, this Civil Revision Petition has to be dismissed with exemplary costs.
11. The petitioner-judgment debtor has filed objections contending that he was in occupation of the shop premises as a tenant under the lessee-judgment debtor. The respondent had filed S.C.No.995/2013 for eviction of lessee/judgment debtor as tenant from the 14 entire property. During the pendency of the said petition, the respondent had filed parallel proceedings in S.C.No.1179/2013. The petitioner was not a tenant under the respondent. The petitioner has paid Rs.2,30,000/- towards rent from 01.09.2012 to 31.05.2016. Under these circumstances, the new tenancy is created between the parties on receipt of rents by the respondent. Therefore, the application filed by the respondent-landlord is liable to be dismissed.
12. On going through the reasons stated in the affidavit filed by the respondent-landlord, it is evident that all the grounds stated by the judgment debtor/sub- lessee have been considered by this Court in CRP No.297/2015 C/w CRP No.298/2015. The said order has been upheld by the Hon'ble Supreme Court and the matter has reached finality in all respects. 15
13. For the aforesaid reasons, I.A. No.1/2019 filed by the respondent-landlord is allowed and this Court is of the view that there are no valid grounds to admit the revision petition. Hence, the following:
ORDER The Civil Revision Petition is dismissed.
Sd/-
JUDGE BSR/SJ