Karnataka High Court
Dr. M. Bhaskara Shetty vs Sanjaya Shetty on 25 March, 2021
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.1606 OF 2018(GM-CPC)
C/W
REGULAR SECOND APPEAL NO.990 OF 2017
IN W.P.NO.1606/2018:
BETWEEN:
DR. M. BHASKARA SHETTY,
S/O. M. BOMMAYYA SHETTY,
AGED ABOUT 65 YEARS,
R/AT "NUTHAN NILAYA",
76, BADAGABETTU, BAILOOR,
UDUPI TALUK AND DISTRICT -576 101.
SENIOR CITIZEN NOT CLAIMED
...PETITIONER
(BY SRI. S N BHAT, ADVOCATE)
AND:
SANJAYA SHETTY,
S/O. LATE SHEENA SHETTY,
AGED ABOUT 59 YEARS,
R/AT "SAROJINI NILAYA",
KORANGRAPADY VILLAGE,
UDUPI TALUK AND DISTRICT -576 101.
... RESPONDENT
(BY SRI.S ARMUGHAM, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDERS PASSED BY THE SECOND ADDL.
CIVIL JUDGE AND JMFC, UDUPI IN EXECUTION
PETITION NO.69/2017 DATED 15.12.2017 ON I.A.NO.4
(ANNEXURE-C).
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IN RSA.NO.990/2017:
BETWEEN:
MR. SANJAY SHETTY,
S/O LATE SHEENA SHETTY,
AGED ABOUT 55 YEARS,
R/O NO.3, 2ND MAIN,
SHESHADIRPURAM,
BANGALORE - 560 020.
...APPELLANT
(BY SRI. DR. S ARUMUGHAM, ADVOCATE)
AND:
DR. M. BHASKARA SHETTY,
S/O LATE BOMMAYYA SHETTY,
AGED ABOUT 65 YEARS,
R/O NUTHAN NILAYA,
76-BADAGUBETTU VILLAGE,
UDUPI TALUK - 576 101.
...RESPONDENT
(BY SRI. S N BHAT, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 READ
WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908 AGAINST THE ORDER DATED
09.01.2017 PASSED IN RA NO.12/2011 ON THE FILE OF
THE ADDL. SENIOR CIVIL JUDGE, UDUPI, DIMISSING
THE APPEAL AND FILED AGAINST THE JUDGMENT AND
DECREE DATED 18.12.2010 PASSED IN O.S.NO.23/2008
ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC,
UDUPI.
THIS WRIT PETITION AND RSA COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
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JUDGMENT
This RSA & the Writ Petition arise from an ejectment suit in O.S.No.23/2008 between the same parties; facts on which these two cases are structured, can be stated briefly as under;
i) Respondent is the Landlord and the appellant is the tenant; there is no dispute as to the vinculum juris of tenancy; respondent filed the suit in O.S.No.23/2008 for ejectment and the same came to be decreed on 18.12.2010, with an order for the mesne profits; appellant's R.A.No.12/2011 came to be negatived on 09.01.2017; his further challenge is in this RSA.
ii) The respondent in the RSA filed Execution Petition No.69/2017 for enforcing the ejectment decree and for the payment of mesne profits; though there was no stay of the ejectment decree in the RSA, the learned judge of the executing Court had kept the execution proceedings at a bay and further rejected respondent's application filed under Section 151 read with Section 94E of CPC for breaking open the lock of the premises; that is how the challenge in writ petition is structured. 4
2. Both the cases are between the same parties and involving the same subject matter were clubbed together by a learned co-ordinate Bench of this Court;
3. Having heard the learned counsel for the parties and having perused the case papers, this Court rejects the tenant's case in RSA and favours the Landlord's case in the Writ Petition for the following reasons:
a) The ejectment suit in O.S.No.23/2008 was stoutly resisted by filing the Written Statement; nothing has been stated about the lack of jurisdiction of the trial Court; the same having been tried hotly, has been decreed on 18.12.2010; the tenant had filed appeal in R.A.No.12/2011; even in the appeal memo, nothing has been stated about the lack of jurisdiction of the learned trial judge; not even a whisper is made in the depositions;
it is only in the second appeal a contention is taken up in the form of substantial question of law by pressing into service Sections 8 & 9 of the Karnataka Small Causes Courts Act; thus, the jurisdiction of the Courts below was acquiesced by the tenant for years in the course of legal battle; now permitting him to turn around and thereby lay a challenge to the proceedings virtually amounts to an 5 unconscionable act which this Court cannot do to the enormous disadvantage of the respondent-Landlord on whose property, the tenant has been squatting for all these years that too without any rent.
b) Whether the trial judge had the competence & jurisdiction, is a mixed question of law & facts; no foundation has been laid in the pleadings of the tenant nor in his depositions; not even a whisper was made suggesting the same to the Landlord when he was deposing as PW1; the mixed questions of law & facts cannot be the subject matter of consideration in a regular second appeal which is admissible only on a substantial question of law, whose invocation cannot be made in the absence of the foundational facts.
c) there is lot of force in the vehement contention of learned counsel for the Landlord that, mere pendency of appeal against the ejectment decree is not a ground for not enforcing it in a pending execution proceeding; it has been a long settled position of law that a decree put in challenge by way of appeal or otherwise, is not denuded of enforceability unless there is stay thereon granted by a Court of competent jurisdiction; a decree not stayed needs 6 to be executed in due course and if the same is set at naught, it is always open to the Judgment Debtor to seek restitution as provided under Section 144 of CPC; that being the position, the executing Court is hardly justified in rejecting the application of the Landlord-Decree Holder.
4. There is one more aspect to the cases at hands; RIGHT HON. SIR JAMES COLVILE, about a century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE'S INDIAN APPEALS (1871-72), VOL.14, PAGE 605 = 17 W.R.459; it reads:
"These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree...."
5. The tenant admittedly, has not paid any arrears of rent that have accrued due since years; his learned counsel repeatedly submits that the Landlord had never demanded the rentals and therefore, the arrears have remained un-discharged; however, he does not show his bona fide by offering to pay the same even here, when asked twice; thus, he has been squatting on the property 7 of the Landlord without making any payment; such an unscrupulous litigant is not entitled to relief at the hands of Courts, regardless of arguable merits in their cases; the conduct of the tenant is calculated to harass the Landlord by relentlessly fighting the cases at various levels, there being absolutely no justification whatsoever; thus, these are the fit cases for awarding penal & exemplary costs.
In the above circumstances, the appeal in RSA No. 990/2017 is dismissed with a cost of Rs.50,000/- (rupees Fifty Thousand) only and the Landlord's case in W.P.No.1606/2018 is favoured and the impugned order is set at naught, awarding another cost of Rs. 50,000/- (rupees Fifty Thousand) only, payable by the tenant.
Learned judge of the executing Court is requested to accomplish the proceedings in the Ex. Petition No. 69/2017 before the onset of Summer Vacation - 2021, if necessary with the police aid and report compliance to the Registrar General of this Court, without fail.
Sd/-
JUDGE Bsv