Karnataka High Court
N V Mohammed Unni vs Saifulla Khan on 7 April, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.1557 OF 2013 (DEC)
BETWEEN:
N.V.Mohammed Unni,
S/o.Moid Unni,
Since deceased by his
Legal representatives.
1(a) Nawaz Mohammed Unni,
S/o.Late N.V.Mohammed Unni,
Aged about 39 years.
1(b) Naushad,
S/o.Late N.V.Mohammed Unni,
Aged about 33 years.
Both are residing at No.463,
12th Cross, Wilson Garden,
Bangalore - 560 027. ... Appellants
(By Sri G.Manivannan, Advocate)
AND:
1. Saifulla Khan,
S/o late Khader Khan
Aged about 50 years,
2. Smt.Naseem Taj,
W/o Saifulla Khan
2
Aged about 48 years
Both are R/at No.1,
New Gangammachari Street,
Mothi Nagar, Bangalore - 560 027. ... Respondents
(By Sri T.N.Vishwanath, Advocate for Caveator/respondents)
This RFA is filed under Section 96 order XLI Rule 1 of
CPC, against the judgment and decree dated 01.07.2013
passed in OS.No.5096/2003 on the file of the XIV Addl. City
Civil Judge, Bangalore, decreeing the suit for declaration,
possession and mense profits and etc.
This RFA, coming on for admission this day, the Court
delivered the following:
JUDGMENT
This appeal is directed against the judgment and decree, dated 01.07.2013 passed by the Court of XIV Additional City Civil Judge, Bangalore in O.S.No.5096/2003 directing the appellants to hand-over the vacant possession of the suit schedule property to the respondent - plaintiffs within three months.
2. Sri G.Manivannan, the learned counsel for the appellants submits that if the reasonable time is granted, the appellants would make alternative arrangements and vacate 3 the schedule premises. He submits that the ejectment decree is passed only in respect of one portion. In the other portion of the same building, eviction petition in S.C.No.1591/2011 is pending consideration before the court of Small Causes. He submits that no purpose would be served by the appellants vacating the schedule premises, which constitute only half portion of the building in question. He submits that the appellants are earning their livelihood by running a hotel in the schedule premises. He submits that the appellants would vacate not only the schedule premises in this case but also the schedule premises in S.C.No.1591/2011 in five years' time.
3. Per contra, Sri T.N.Vishwanath, the learned counsel for the respondents submits that the appellants have only been paying `1,000/- for the building, which has the dimension of about 33 ½' x 43 ½'. He submits that both the portions of the building put together would fetch a monthly rent of `50,000/-. He submits that the appellants have been paying monthly rent at the rate of `1,000/- from 4 1997. He submits that the said rental amounts are not adequate even to pay the property tax to the Corporation. He submits that the respondents are ready to give `3,65,000/- to the appellants, if they vacate both the portions of the building forthwith.
4. After arguing like this for some time, both the parties have agreed on certain things. The same is recorded in the joint memo. It is signed by the appellant Nos. 1(a) and (b) and the respondent No.1. The said parties are present before the Court. They and their signatures are identified by their respective learned advocates. They state that they have entered into the settlement of their volition and without any duress from anybody. The joint memo reads as follows:
"The appellants and respondents have jointly begs to submit as under:
1. The appellants have sought for time to vacate the suit schedule property and the subject matter of S.C.No.1591/2011 on the file of the Hon'ble Additional Small Causes Judge, Bangalore and time is granted till 7.4.2016 to which the 5 respondents have agreed for the same subject to payment of `18,000/- per month for the whole property and filing the affidavit in this regard.
2. Both parties agree to report compromise in S.C.No.1591/2011 on the above terms."
5. Sri Vishwanath submits that the second respondent is the wife of the first respondent and that the first respondent has the authorization to enter into this settlement on behalf of the respondent No.2.
6. On perusing the contents of the joint memo and on further hearing the learned advocates, I dispose of this appeal with the following order:
(i) The judgment and decree, dated 01.07.2013 passed in O.S.No.5096/2003 is confirmed. However, two years' time is granted to the appellants to vacate the schedule premises.
(ii) The appellants shall also vacate the adjoining portion of the suit schedule property which is the subject matter of S.C.No.1591/2011 on or before 07.04.2016. 6
(iii) The appellants shall file an affidavit undertaking to vacate the schedule premises in O.S.No.5096/2003 and of S.C.No.1591/2011 and handover their vacant possession to the respondents on or before 07.04.2016.
(iv) The parties shall file the certified copy of today's judgment in S.C.No.1591/2011 pending consideration before the Court of Small Causes (SCCH-12) and seek the closure of the said case in keeping with the settlement reached in this appeal.
(v) The arrears of rent from 08.03.2010 for the schedule premises, which is the subject matter of S.C.No.1591/2011, shall be paid within four weeks from today.
(vi) From April, 2014 till April, 2016 or till the appellants vacate the schedule premises, whichever is earlier the rent shall be paid at the rate of `18,000/- per month for both the portions of the building viz., suit schedule properties which are the subject matter of O.S.No.5096/2003 and of S.C.No. 1591/2011.7
(vii) The appellants shall not induct any third parties into the premises in question.
(viii) Should the appellants default in adhering to any of the conditions stipulated hereinabove, it shall be open to the respondents to resort to the proceedings for the execution of the decree in O.S.No.5096/2003 and to have the proceedings in S.C.No.1591/2011 revived.
7. The office is directed to return the entire court fee to the appellants' side.
8. At this juncture, Sri Vishwanath prays for a direction to the Execution Court for the withdrawal of the amount deposited by the appellants with the Execution Court towards the payment of rental arrears and costs. He is at liberty to make the request to the Execution Court and withdraw the amounts.
Sd/-
JUDGE Cm/-