Bangalore District Court
Sri.A.Fazil Pasha vs ) Smt.Parvathamma on 12 April, 2017
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
From No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY : (CCCH.11)
Dated this the 12th day of April, 2017
PRESENT: Sri.K.M.Rajashekar, B.Sc., LL.B.,
(Name of the Presiding Judge)
O.S.No :4299/2015
PLAINTIFF : SRI.A.FAZIL PASHA,
S/o.Sri.M.Abdul Khan,
Aged about 47 years,
Proprietor of M/s.A.F.Auto Garage,
No.47, 2nd Main, CKC Garden,
Bengaluru-560 027.
-VS-
DEFENDANTS : 1) SMT.PARVATHAMMA,
W/o.late Sri.Rajanna,
Aged about 67 years.
2) SMT.DAKSHYANI,
W/o.Sri.Suresh,
D/o.late Sri.Rajanna,
Aged about 47 years.
2 OS.4299/2015
Both are residing at No.44,
14th Cross, Sanjay Nagar,
Bengaluru.
3) SRI.MANJUNATH,
S/o.late Sri.Mrutyanjaya,
Aged about 47 years,
R/at No.851, 8th Main, 17th Cross,
ISRO Layout,
Bengaluru-560 078.
Date of Institution of the suit : 11.05.2015
Nature of the Suit : Injunction
Date of commencement of recording
of evidence : --
Date on which the Judgment was
pronounced : 12.04.2017
Year/s Month/s Day/s
Total Duration : 01 11 01
---
(K.M.RAJASHEKAR)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 OS.4299/2015
JUDGMENT ON PRELIMINARY ISSUE
The Plaintiff has got filed this suit for a judgment
and decree of permanent injunction restraining the
Defendants from interference of suit schedule premises
and to evict the Plaintiff from the schedule premises.
2) In nutshell Plaintiff's case is that, he is the tenant
under the Defendants running a garage by name
'M/s.A.F.Auto Garage' from 15.12.1986 under rent
agreement and paid advance of Rs.15,000/- and monthly
rent was Rs.400/-. Every year Plaintiff is paying enhanced
rent at 5% of the existing rent and as of now Rs.800/- is
the rent per month. Plaintiff claims that Defendants have
taken more than Rs.1,00,000/- from him, in spite of that
they are trying to throw him out illegally from the suit
schedule property without following due process of law,
hence, this suit for the aforesaid reliefs.
3) On service of notice, the Defendants marked
appearance through their counsel and filed their written
4 OS.4299/2015
statement contending that the Plaintiff is not in
possession and occupation of the schedule premises as
on the date of the suit. The possession has already been
recovered under due process of law. Earlier, the
Defendants had filed a suit for ejectment, which came
to be decreed on 23.06.2014, against which, CRP
No.359/2014 was filed and disposed of on 17.03.2015
granting 90 days time to vacate and deliver vacant
possession of the suit schedule premises, since the
Plaintiff failed to comply with the said order, the
Defendants filed Execution Case No.683/2015, wherein,
Rs.50,000/- was refunded to the Plaintiff by way of two
Demand Drafts and Plaintiff undertook to vacate the
premises by 12.05.2015 by paying upto date electricity
bill. Plaintiff has already delivered vacant possession of
the suit schedule premises on 12.05.2015.
Subsequently, Defendants have demolished the
structure and fenced it. Hence, the Defendants contend
that in view of the decree passed in the earlier
5 OS.4299/2015
proceedings and possession delivered in execution
petition, this case does not survive for consideration and
prayed for dismissal of suit with exemplary costs.
4) On the above pleadings of the parties, the
following Issues have been framed by this court on
01.10.2015:-
(1) Whether the Plaintiff proves that as
on the date of the suit the Plaintiff
is in actual, lawful possession of
the suit schedule property?
(2) Whether the Plaintiff proves that the
Defendants are interfering with his
actual, peaceful, lawful possession
of the suit schedule property?
(3) Whether the Plaintiff is entitled for
the reliefs sought for?
(4) What Order or Decree?
The following preliminary Issue has been framed
on 01.04.2017:
" Whether this suit is maintainable in
the present form in view of order by
the Hon'ble High Court in
6 OS.4299/2015
CRP.No.359, 360/14 and EP.683,
684/15?"
5) Heard on preliminary Issue. Perused the records.
6) My finding on the preliminary Issue is in the
negative for the following :
REASONS
7) Preliminary Issue : Upon going through the
materials available on record, it is seen that the Plaintiff
has come up with this suit for permanent injunction
restraining the Defendants from interfering with the suit
schedule property, to evict the Plaintiff from the suit
schedule property, etc.
The Plaintiff's contention is that, he is running a
garage by name 'M/s.A.F.Auto Garage' from 15.12.1986
as tenant under the Defendants under a rent
agreement, by paying advance of Rs.15,000/- and
7 OS.4299/2015
monthly rent was Rs.400/-at the initial stage and as of
now, Rs.800/- is the monthly rent. Plaintiff claims that
Defendants have taken more than Rs.1,00,000/- from
him, in spite of that they are trying to throw him out
illegally from the suit schedule property without
following the due process of law etc.
On the other hand, the Defendants do admit the
relationship of themselves and Plaintiff as landlord and
tenant. The Defendants specific contention is that,
Plaintiff is not in possession and occupation of the
schedule premises as on the date of the suit. The
possession has already been recovered under due
process of law. Earlier, the Defendants had filed a suit
for ejectment, which came to be decreed on
23.06.2014, against which, CRP No.359/2014 was filed
and disposed of on 17.03.2015. Added to that,
Defendants have filed Execution Case No.683/2015,
wherein, Rs.50,000/- was refunded to the Plaintiff by
way of two Demand Drafts and Plaintiff undertook to
8 OS.4299/2015
vacate the premises by 12.05.2015 by paying upto date
electricity bill. Plaintiff herein has already delivered
possession of the suit premises on 12.05.2015.
Subsequently, the Defendants have demolished the
structure and fenced it. Hence, Defendants contended
that in view of the decree passed in the earlier
proceedings and possession delivered in the execution
petition, this case does not survive for consideration.
8) Upon going through the materials available on
record and the documents placed on record by the
Defendants, it is seen that much water has flown under
the bridge. There are series of litigations between the
parties in respect of the same subject matter between
the same parties for the same relief. It is significant to
note that the Plaintiff herein has filed two suits in
SC.No.800/2012 and 801/2012 before the Small Causes
Court, SCCH.No.5, wherein, the said cases were fought
to the tooth and nail between the parties and the trial
court disposed of both the suits on 23rd June, 2014,
9 OS.4299/2015
wherein, the trial court has decreed the claim of the
Plaintiffs and directed the Defendants to handover the
vacant possession of the suit schedule property within
three months from the date of the order. Those two
suits were filed by the Defendants herein for ejectment
of the Defendant i.e. Plaintiff herein from the suit
schedule property and for future rent by way of
damages. However, the Plaintiff herein who is
Defendant there has preferred CRP before the Hon'ble
High Court in CRP. No.359/2014 and 360/2014,
aggrieved by the orders passed by the trial court in
SC.No.800/2012 and 801/2012 before the Small Causes
Court, SCCH.No.5. The matter was contested before
the Hon'ble high court., wherein, his Lordship of the
Hon'ble High Court of Karnataka has made the following
observation in CRP No.359/2014 and 360/2014:
" Revision Petitions are hereby disposed
of by affirming the judgment and
decree passed by the Trial Court.
However, time granted by the Trial
Court is enlarged/extended by granting
time till 17.3.2015 to the revision
10 OS.4299/2015
petitioner to quit, vacate and handover
vacant possession of the suit schedule
premises to respondent - landlord.
5. In view of revisions petitions having
been disposed of on main, question of
considering pending applications does
not arise and hence, IA.1/2014 and
IA.2/2014 stands rejected."
9) It is seen that both the parties have filed a joint
memo before the Hon'ble High Court in CRP
No.359/2014 and 360/2014. The legal notice issued by
one Mr.Gouse Pasha, counsel representing the Plaintiff
herein indicates that in pursuance of the decree passed
in CRP No.359/2014 and 360/2014, the Plaintiff herein
was willing to vacate the premises by receiving
Rs.50,000/-. However, the endorsement on the legal
notice indicates that for some reason he is issuing the
notice by delaying the same etc. However, the Plaintiff
approaches the executing court in Execution
No.683/2015 and 684/2015 in pursuance of the decree
passed in SC.No.800/2012 and 801/2012 and in CRP
11 OS.4299/2015
No.359/2014 and 360/2014 of the Hon'ble High Court.
The order sheet dated 02.05.2015 placed on record in
respect of these two litigations indicates that :
" Both parties argued as per order of
Hon'ble High Court of Karnataka .
DHr handed over DD No.114786 dated
16.3.2015 to JDr drawn on Bank of
Baroda for Rs.25,000/- and another DD
No.425383 dated 16.3.2015 of SBI,
Bengaluru for Rs.25,000/- to JDr.
JDr agreed as per order to vacate
premises by 12.5.2015. DHr has co-
operated to give extra time. Hence,
application filed by JDr is disposed as
agreed.
On failure to handover vacant
possession order of abeyance comes to
an end and office to comply order of this
court dated 20.4.2015 returnable by
Hgdt: 06.6.15.
JDr agrees to handover paid electricity
bill as on today."
10) The Decree Holder also appears to have filed a
Memo dated 06.06.2015 reporting delivery of possession
to him. It is also seen that the Plaintiff herein has
issued a legal notice to Defendant No.3 and directed
12 OS.4299/2015
him to execute the registered sale deed in respect of the
very same subject matter, which was replied by the
Defendants herein denying the said transactions. Apart
from that, the very same Plaintiff has filed a suit in
O.S.No.7884/2016 before the City Civil Court, Bengaluru
for re-delivery of possession of the very same schedule
premises. The said suit was filed on 15th February, 2016.
Even though the learned counsel appearing for the
Plaintiff vehemently argued that he has got very good
case on merits and he is able to establish it by adducing
evidence and has every possibility of succeeding etc.,
but as rightly argued by the learned senior counsel Sri.
R.B.Sadashivappa, appearing for the Defendants, it is
seen that this is a height of misusing the justice
dispensation system. The materials on record
imminently establish the fact that the Plaintiff is trying
to make mockery of the justice dispensation system. It
is pertinent to note that in spite of Plaintiff being party
to all the previous proceedings, absolutely nothing has
13 OS.4299/2015
been whispered in the plaint regarding previous
litigations. In spite of giving an undertaking before the
Hon'ble High Court of Karnataka regarding delivery of
possession and inspite of intimating the Defendants
through his counsel offering delivery of possession, still
Plaintiff claim that he is in possession and enjoyment of
the suit schedule premises as on the date of the suit.
But the documents on record obviously speak otherwise.
The materials on record clearly indicate that the Plaintiff
is an unscrupulous man having disrespect to the orders
of the court. In spite of he himself undertaking before
the highest court of the State, he has approached the
court with a relief of injunction suppressing all true and
material facts. Added to that, by filing OS.No.7884/2016
Plaintiff makes it very clear that he is not in possession
of the suit schedule premises. Apart from that, in this
suit also, Plaintiff has filed as many as 07 interim
applications for injunction and amendment, wherein, he
himself claim that he is not in possession of the suit
14 OS.4299/2015
premises. The conduct of the Plaintiff clearly indicates
that he is making mockery of the orders of the Hon'ble
High Court of Karnataka. Added to that, there is one
more litigation in respect of the same subject matter
claiming re-delivery of possession already instituted by
the Plaintiff. Even if the Plaintiff has got any truth in his
claim, he has got every liberty to establish it in
O.S.No.7884/2016 and work out his remedies. By filing
this kind of frivolous litigations Plaintiff has caused great
inconvenience to the opposite party as well as to the
court.
11) Under the facts and circumstances of the case, I
am of the opinion that in view of the various litigations
fought and concluded before the competent court of
law, in Small Causes Court as well as before the Hon'ble
High Court of Karnataka coupled with acceptance of the
executing court regarding delivery of possession as on
02.05.2015, I am of the opinion that this suit is being
15 OS.4299/2015
filed on 12.05.2015 subsequent to acceptance by the
competent court regarding the dispossession of the
Plaintiff from the suit schedule property. Such being the
case, a simple suit for bare injunction, that too,
suppressing all the material facts does not survive for
consideration at all and hence, I answer the preliminary
Issue accordingly and proceed to pass the following :
ORDER
The suit of the Plaintiff is hereby dismissed with costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, dated this the 12th day of April, 2017.) (K.M.RAJASHEKAR) VI Addl.City Civil & Sessions Judge, Bengaluru City.
16 OS.4299/2015ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side : N I L
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side : N I L
(b) Defendants side : N I L
--
VI Addl.City Civil & Sessions Judge, Bengaluru City.