Karnataka High Court
A. Sounder vs V. Srinivas on 27 September, 2018
Equivalent citations: AIRONLINE 2018 KAR 2122
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
CIVIL REVISION PETITION NO.48 OF 2017
BETWEEN:
A.SOUNDER
S/O D ANTONY
AGED ABOUT 45 YEARS
MAHATMA GANDHI ELECTRIC WORKS
NO.99, J.C.ROAD,
BENGALURU - 560 002
REPRESENTED BY HIS GPA HOLDER
M.JAYASEELAN
S/O LATE MURUGAN
AGED ABOUT 55 YEARS ... PETITIONER
(BY SHRI.REUBEN JACOB, ADV.)
AND:
1. V.SRINIVAS
S/O LATE T.N.RUKMINI
AGED ABOUT 35 YEARS,
RESIDING AT NO.57/8
2ND CROSS, 1ST MAIN ROAD,
SRINIDHI LAYOUT,
KONANAKUNTE POST,
BENGALURU - 560 062
2. V.GOVINDRAJ
S/O LATE T.N.RUKMINI
AGED ABOUT 43 YEARS,
2
RESIDING AT
C/O KRISHNA AGENCY
V.N.T. ROAD, CAVERY PATNAM
GUINANRDI ROONDI TALUK,
TAMILNADU - 631 205.
3. V.INDUMATHI
D/O LATE T.N.RUKMINI,
AGED ABOUT 39 YEARS,
NO.182, 5TH BLOCK,
SELNAM VIGAINAGAR,
ATTIPUTTU VILLAGE - 632 001
VELLORE POST, TAMILNADU
4. NARAYANA
S/O LATE T.N.RUKMINI
AGED ABOUT 36 YEARS,
NO.290, AGNT ROAD,
CAVERY PATNAM - 631 205
GUINANRDI ROONDI TALUK,
TAMILNADU
RESPONDENTS 1 TO 4 ARE
REPRESENTED BY THEIR GPA HOLDER,
V.SRINIVAS, S/O LATE T.N.RUKMINI
R/AT NO.57/8, 2ND CROSS, 1ST MAIN ROAD,
SRINIDHI LAYOUT, KONANAKUNTE POST,
BENGALURU - 560 062.
5. A.K.SUNDER
S/O D.ANTONY
AGED ABOUT 60 YEARS,
PROPRIETOR- MAHATMA GANDHI ELECTRIC WORKS
NO.99, J.C. ROAD,
BENGALURU - 560 002
6. CHOKKANATHAN
S/O LATE T.C.NAGABHUSHAN
AGED NOT KNOWN TO THE PETITIONER
3
R/AT NO.1430, 6TH MAIN, 4TH BLOCK,
DODDABOMMASANDRA, (YELAGAMA LAYOUT)
VIDYARANYAPURAM
BENGALURU - 560 097 ... RESPONDENTS
(BY SRI.R.NARAYAN, ADV. FOR R1 TO R4;
SRI.MANJUNATH G.KANDEKAR, ADV. FOR R5;
NOTICE TO R-6 IS D/W V/O DTD:15.2.2017)
THIS CRP IS FILED UNDER SEC.18 OF THE KARNATAKA
SMALL CAUSES COURTS ACT., 1964 AGAINST THE ORDER
DATED:16.03.2016 PASSED ON IA IN EX.NO.2670/2015 ON THE
FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE XLIA
ACMM., AT BENGALURU, DISMISSING THE IA FILED UNDER
ORDER 21 RULE 97 OF CPC,.
THIS PETITION COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY AFTER HAVING HEARD AND RESERVED FOR
ORDER ON 08.08.2017, THE COURT MADE THE FOLLOWING:
ORDER
This Civil Revision Petition is filed by the objector in E P No.2670/2015 on the file of the XIX Additional Small Causes Judge, at Bengaluru, aggrieved by rejection of his application filed under Order 21 Rule 97 of CPC.
2. The facts of the case to be stated in brief are that the respondents No.1 to 4 filed SC No.2414/2011 for ejectment of 5th respondent herein on the ground that they are the owners of 4 the suit property. They requested the respondent No.5 to vacate and handover the vacant possession of the suit schedule property. The said suit was decreed by the judgment and decree dated 21.9.2012. In C R P No.479/2012 by the order dated 6.2.2013 the above judgment and decree was set aside by this Court and matter was remanded. By the judgment and decree dated 29.7.2013 the suit was decreed directing the 5th respondent to vacate and handover the vacant possession of the suit schedule property within three months and directed respondent No.5 to pay damages of Rs.3,000/- per month to the plaintiff.
3. The above judgment and decree was subject matter of challenge in C R P No.472/2013 at the instance of the 5th respondent and it was dismissed by the order dated 30.9.2015 granting four months to vacate.
4. The respondents No.1 to 4 filed E P No.2670/2015 in which delivery warrant was ordered. As the delivery warrant could not be executed as the petitioner who was the joint tenant of the premises refused to give access through main entrance to 5 the remaining portion of the property bearing No.99, thereby the Respondents No.1 to 4 filed two applications under Section 151 CPC one for police protection and another for break open the Western wall of the schedule property to execute the delivery warrant. The petitioner filed objector application under Order 21 Rule 97 CPC.
5. The court below by the order dated 16.3.2016 dismissed the application seeking to demolish the western wall, allowed the application for grant of police protection and dismissed the objector application.
6. This petition is filed against dismissal of the application of the petitioner filed under Order 21 Rule 97 CPC.
7. I have heard the learned counsel for the parties and perused the impugned order.
8. The learned counsel for the petitioner submits that petitioner is a joint tenant along with 5th respondent and also a joint agreement holder with him to purchase the schedule property. In this regard both petitioner and 5th respondent have 6 filed suit O S No.8582/2012 seeking specific performance of the agreement. It is submitted that the petitioner - objector has an independent right and also joint agreement holder to purchase the suit schedule property. R1 to R4 are aware of this fact and have admitted this fact. However, they have chosen to institute eviction suit only against respondent No.5 and not against both the joint tenants. The suit premises is a commercial property. The petitioner along with respondent No.5 jointly continued to do business in the suit property after the demise of their father in their independent right. The application filed under Order 21 Rule 97 CPC ought to have been enquired, without which miscarriage has been occurred. The matters relating to independent right and whether the petitioner is bound by the decree require adjudication and the court below without answering any of the said questions has straight away held that no such enquiry is required which is erroneous.
9. On the other hand, the learned counsel for the respondents submits that since admittedly the petitioner is a joint tenant, no independent notice is necessary to the 7 petitioner, he is not required to be made a party to the eviction suit and thus the order dismissing the application filed under Order 21 Rule 97 CPC passed by the court below is justified requiring no interference.
10. The point that arises for consideration is, whether the order passed by the court below dismissing the application filed under Order 21 Rule 97 CPC suffers from any infirmity or irregularity so as to call for interference at the hands of this Court? My finding is in the affirmative for the following reasons.
11. Order 21 Rule 97, 98, 100, 101, 103 & 104 CPC reads thus:
"97. Resistance or obstruction to possession of immovable property.- (1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.8
(2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Orders after adjudication.- (1) Upon the determination of the questions referred to in Rule 101, the court shall, in accordance with such determination and subject to the provisons ofsub-rule (2); -
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment - debtor or by some other person at hisinstigtation or on his behalf, or by any transferee, where such transfer was made during pendency of thesuit or execution proceeding, it shall direct that the applicant be put into 9 possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, orderthe judgment -
debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
100. Order to be passed upon application complaining of dispossession.- Upon the determination of the questions referred to in Rule 101, the court shall, in accordance with such determination,-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application 10 under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit or for this purpose, the court shall, notwithstanding anything to the contrary contained in any toher lawfor the time being in force, be deemedto have jurisdiction to decide such questions.
103. Orders to be treated as decrees.- Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as is if it were a decree.
104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit.- Every order made under jkRule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 orRule 103 ismadehas sought to establish a rightwhich he claims to the present possession of the property."
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12. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. Therefore, it has to be examined, whether the court below is justified in disposing of the application without an enquiry.
13. The trial court has reasoned relying upon order dated 14.1.2016 in W P No.1688/2016 that notice issued to one of the joint tenant is sufficient, objector has to establish independent right over the property. He is brother of JDr. and he has no independent right to object execution of the decree. The JDr challenged the order in CRP No.472/2013 where this court 12 rejected the contention of the JDr. It is stated, the JDr failed to establish his contention and now he is with the help of objector tried to obstruct execution of the decree. Hence without any enquiry it can be clearly stated that objector has no ground to raise objection for executing the decree. The petitioner - objector has in addition to claiming he is a joint tenant, has also claimed that he is a joint agreement holder with the 5th respondent to purchase the suit schedule property and in this regard suit O S No.8582/2012 is filed seeking specific performance of the agreement and also for such other reliefs. Therefore, petitioner is not only joint tenant but also claims to be a joint agreement holder, thus he is asserting his independent right in respect of the suit schedule property. Whether he has an independent right or otherwise has to be adjudicated by the trial court. In the instant case, no enquiry has been conducted and finding is recorded as to the independent right claimed by the petitioner. Solely on the basis that he is a joint tenant with the 5th respondent, no notice is required, the court below came to the conclusion that without enquiry it could be concluded that petitioner has no independent right. Such a view taken by the 13 trial court without enquiry is not justified and cannot be sustained.
14. The learned counsel for the petitioner has relied upon judgment in Babulal vs., Raj Kumar & others, reported in (1996) 3 SCC 154 and contended that determination of the question of right, title or interest of the objector required to be adjudicated under R.98 which would be an order and a decree under R.103 for the purpose of appeal or otherwise as if it were a decree.
15. The learned counsel for the petitioner has also relied upon another decision in Nooruddin vs., Dr. K L Anand, reported in (1995) 1 SCC 242 to advance a contention that when the applicant claimed independent right, the court in that event, is enjoined to adjudicate the claim and record a finding allowing or rejecting the claim.
16. The learned counsel for the respondents No.1 to 4 placed reliance on the following citations:
(a) H C Pandey vs., G C Paul, reported in AIR 1989 SC 1470, Ashok Chintaman Juker & Ors. Vs., Kishore Pandurang 14 Mantri & another (Civil Appeal No.3759/2001, to advance a contention that joint tenancy constitutes a single unit and therefore notice to one of the defendants was sufficient to determine the tenancy. The case related to notice under Section 106 of T P Act to one of the joint tenants, which is held to be sufficient. Here in this case, the claim of the petitioner is that he is doing business in the premises and he is also a joint agreement holder to purchase the property. The facts of the said cases are different and cannot be applied to the present case.
(b) Kazi Akeel Ahmed vs., Ibrahim & another, reported in (1996) 8 SCC 372, in which the obstructor failed to prove independent right in the suit instituted by himself. The same is not applicable to the present case.
(c) Susheela V Shetty Vs., Sarojini & others, W P No.1688/2016 (GM-CPC) in which the obstruction application was by mother of defendants No.1 & 2 and she failed to establish an independent right over the suit schedule property apart from rights of her children. Here the petitioner is not 15 claiming right just because he is member of the tenant's family, but for the reason that he is in occupation of the premises and doing business as a joint tenant with 5th respondent. This decision is also not applicable to the facts of the present case.
(d) W P Nos.39635-39636/2014 (HRC) (Thammanna vs., Nasreen Asif) where brother's son was an objector filed to establish an independent right.
(e) R F A No.2648/2006 (Gajanan vs., Jayamma) where it is held a person not claiming independent right, title, interest over the suit property, cannot obstruct execution of a decree.
(f) Rithvik L vs., M G Seethaprasad & Ors., (RFA No.1150/2017 (Ex.) where the obstructor failed to produce any piece of material to show his possession and thus rejection of his application was held to be justified.
17. The decisions sought to be relied upon by the respondents No.1 to 4 are not applicable to the facts and circumstances of the present case. In the present case, the petitioner has shown his prima facie independent right in respect 16 of the suit schedule property as joint tenant with 5th respondent. He also claims to be a joint agreement holder and in this regard admittedly the suit has been filed and pending adjudication. Therefore, the matter requires enquiry and without enquiry it cannot be said that the petitioner has no independent right to object execution of the decree.
In the result, this civil revision petition is allowed. The impugned order is set aside. The court below is directed to conduct an enquiry on the application filed by the petitioner under Order 21 Rule 97 CPC and record a finding as required. Any observation made in the present order shall not be taken as one way or the other expressing opinion on merits of the application.
Sd/-
JUDGE akd