Karnataka High Court
Mr Musthansir vs M/S Mangala Builders Pvt Ltd on 25 October, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL NO.1755/2018(POSSN)
BETWEEN:
Mr.Musthansir,
Moizbhai Matcheswala,
S/o late Moyiz Bhai.A.M.,
Aged about 58 years,
Karabala Road, Kudroli, Mangaluru,
By his P.A.Holder Mansoor M.M.,
S/o Moyiz Bhai.A.M.,
Aged about 60 years,
Hamma Cottege, Kudroli,
Mangaluru-575004. ....APPELLANT
(By Sri.Sanathkumar Shetty.K, Adv)
AND:
M/s. Mangala Builders Pvt. Ltd.,
A Private Limited Company,
Incorporated under
Indian Companies Act,
Having its office at Sanu Place,
Kodialbail, Mangaluru-575003.
By its Managing Director
Chandranth.P.Sanu,
S/o late Purushotham P.Sanu,
Aged about 66 years,
R/at Alake,
Mangaluru-575003. ...RESPONDENT
(Sri.Vishwajith Shetty.S, Adv)
2
This RSA is filed under Section 100 r/w Order XLII
Rule 1 of CPC against the judgment and decree dated
10.7.2018 passed in R.A.No.116/2017 on the file of the I
Addl. Senior Civil Judge and CJM, Mangaluru, D.K.,
dismissing the appeal and confirming the judgment and
decree dated 27.4.2017 passed in O.S.No.305/2011 on
the file of the I Additional Civil Judge and JMFC,
Mangaluru, D.K.
This RSA coming on for admission, this day, the
Court delivered the following:
JUDGMENT
Unsuccessful defendant has assailed the judgment and decree dated 10.7.2018 passed in R.A.No.116/2017 where under the judgment and decree passed in O.S.No.305/2011 dated 27.4.2017 decreeing the suit for ejectment came to be affirmed.
2. Sri.Sanathkumar Shetty.K, learned counsel appearing for the appellant, after arguing the matter for some time, has filed the affidavit of the power of attorney holder of the appellant who is none other than the brother of the appellant stating thereunder that appellant would vacate and hand over vacant possession of the suit schedule premises to the respondent on 3 21.7.2019. It is also stated that sister of the appellant and power of attorney holder Mrs.Zakia who had filed objection obstructing the decree from being executed before the Executing Court has already withdrawn the said petition and as such, there would be no impediment for the respondent-plaintiff to execute the decree in the event of appellant refusing to vacate the premises within the time agreed to, under the affidavit of undertaking.
3. Sri.Vishwajith Shetty.S, learned counsel appearing for the respondent, on instructions from the respondent, submits that he has no objection for time being granted till 21.7.2019.
4. In that view of the matter, except enlarging the time granted by the trial Court, the rest of the decree of Courts below deserves to be affirmed.
Hence, the following:
ORDER
(i) Regular second appeal stands disposed of by confirming the judgment and decree passed in 4 R.A.No.116/2017 dated 10.7.2018 by the I Additional Senior Civil Judge, Mangaluru, D.K. in so far as decree for ejectment is concerned. However, time granted by the first appellate Court to vacate by granting 45 days from the date of judgment is enlarged by granting time up to 21.7.2019 to the appellant to quit, vacate and hand over vacant possession of the suit schedule premises, subject to appellant;
(a) paying damages @ Rs.1,000/- per month till handing over possession;
(b) and appellant shall not induct any third parties to suit schedule premises during the said period; and
(c) appellant shall without driving the respondent to file an execution petition, hand over vacant possession of the suit schedule premises on or before the time agreed to, under the affidavit of undertaking filed.
(ii) No order as to costs.
(iii) Registry to draw the decree accordingly. 5
I.A.No.1/2018 does not survive for consideration and it stands disposed of.
SD/-
JUDGE bkp