Karnataka High Court
Mr Shantilal vs Mr K Rudrappa on 14 September, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
C.R.P.NO.312/2012
BETWEEN:
MR SHANTILAL
S/O LATE CHAMPALAL
AGED ABOUT 59 YEARS
NO.28/7, KEMPANNA CROSS
SUSHEELA ROAD, DODDAMAVALLI
BANGALORE- 560 004 ... PETITIONER
(BY SRI G M PARAMASHIVAIAH, ADVOCATE)
AND:
MR K RUDRAPPA
REPRESENTED BY HIS
SUBSEQUENT PURCHASERS NAMELY
1. MR C ARUN KUMAR
AGED ABOUT 47 YEARS
S/O MR CHAINRAJ
NO. 6/1, RATHNAVILAS ROAD
BASAVANAGUDI
BANGALORE- 560 004
2. MR U ASHOK KUMAR
AGED ABOUT 47 YEARS
S/O MR UTTAMCHAND
NO.63, NAGARTHPET
BANGALORE- 560 004 ... RESPONDENTS
(BY SRI M.NARAYAN, ADVOCATE FOR C/R)
THIS CRP FILED U/SEC.115 OF THE CPC, AGAINST
THE ORDER DATED 18.07.2012 PASSED IN
EX.NO.1400/2007 ON THE FILE OF THE CHIEF JUDGE,
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COURT OF SMALL CAUSES, ALLOWING THE EXECUTION
PETITION.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The learned judge of the Execution Court has passed the impugned order, the operative part of which reads thus:
"Execution petition is allowed. The judgment-debtor Shanthilal is hereby directed to occupy the newly constructed shop measuring 7' x 20' (140 sq.ft) in the portion of the property No.940, Dharmarayaswamy Temple Road, Nagarthapet, Bengaluru - 560 002, within 30 days from the date of this order on payment of monthly rent of Rs.1,500/- and advance amount of Rs.1,25,000/- to the decree- holders failing which, the decree-holders are at liberty to deal with the schedule property as desired by them."
2. Aggrieved by the same, the judgment debtor is before this Court.
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The decree under execution is a compromise decree made in S.C.No.297/2003.
3. The compromise petition filed by parties reads thus:
"The parties to the above suit have mutually compromised the matter as under:
1. The plaintiff herein filed two eviction petitions in HRC No.581/92 and HRC No.582/92 against his tenants seeking eviction on the ground of demolition and reconstruction among other grounds and since the respondent in HRC No.581/92 died during the pendency of the proceedings, his legal representatives have been brought on record and one of the LRs is the respondent/tenant in HRC No.582/92. The two eviction petitions are pending before SCCH No.16.
2. Since HRC courts lost jurisdiction in respect of shop premises pursuant to coming into operation of the Rent Control Act, the shop premises got deleted from HRC No.581/92 and thereafter the plaintiff has filed the above ejectment suit against the defendants in respect of the shop premises.
3. In the mean time, by intervention of well wishers, the parties have entered into a
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Memorandum of Understanding whereunder the plaintiff herein has agreed to provide shop premises to respondent Sri.Shantilal on the following terms and conditions mutually agreed to and as stipulated in the said Memorandum of Understanding dated 9.10.2003. a. That the defendants shall handover possession of the residential premises in their occupation for demolition on the plaintiff notifying to the defendants that he has obtained sanctioned plan or modified plan for construction of the new building, and also shift the shop to a temporary shop provided by the plaintiff herein, and deliver vacant possession of the suit schedule shop for demolition and reconstruction. b. The plaintiff shall provide the shop accommodation in the new building to the tenant Shantilal as soon as the roof of the basement or the designated shop is cast.
c. The plaintiff shall provide shop accommodation of not less than 140 square feet carpet area in ground floor of the new building and at the same place (next to Lakshmi Vilas Bank Ltd. and facing Nagarthpet Main Road) and position where the tenant's shop premises is located at present in the present building within a period of 9 months from the date of defendants delivering
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the possession of the premises as per clause 3(a) supra.
d. The tenant Mr. Shantilal shall pay monthly rent of Rs.1,500/- and advance of Rs.1,25,000/- to the new shop premises taking into consideration the fact that the respondents in H.R.C.No.581/92 and HRC No.582/92 namely the defendants herein are giving up their tenancy rights in respect of the residential portions of the said property in favour of the owner/plaintiff. However, there shall be increase of 15% in the rent on the proposed rent payable at every 3 years.
e. A separate Rental Agreement shall be entered into in this behalf at the time of the tenant Mr.Shantilal occupying the new shop in the newly constructed building.
f. If for any reason the construction of the shop is not completed within 9 months from the date of delivery of possession as per clause 3(a) supra, the tenant Mr.Shantilal is at liberty to take up and complete the construction of the shop and carry on his business therein and the owner and/or his building contractor shall not question or interfere in the matter.
g. In case the tenant Mr. Shantilal puts up the construction as stated supra the cost and expenses of the construction shall be deducted
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in the rent payable by the tenant Mr. Shantilal to the landlord plaintiff till such time the costs and expenses are recovered by the tenant out of the rent payable.
4. The parties hereto have appended hereto the copy of the Memorandum of Understanding as Annexure 'A' as part and parcel of this compromise petition and prays that this Hon'ble Court be pleased to decree of the above ejectment suit in terms of this compromise petition, in the interest of justice and equity.
4. In the compromise petition no right is reserved to the decree holder to approach the execution Court for a direction to the tenant to occupy the shop. Therefore, the order passed by the execution court is beyond the terms of compromise petition entered into between parties and decree made thereon. Therefore, the petition is accepted. The impugned order is set aside.
Sd/-
JUDGE nas.