Vijayakumar vs I N Krishnamadhyastha on 27 July, 2010

[Cites 8, Cited by 0]

Karnataka High Court

Vijayakumar vs I N Krishnamadhyastha on 27 July, 2010

1 % RI-"A 22/01
IN THE) HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27'"! DAY OF JULY 2010 
BEFORE v3.2a
TI--IE: P-ION'I3LE3 MRJUSTICE A.s.PAc1f1_a';9§.jt%uiR$: "F"'  .

REGULAREERSTAPPEMQNCEEEQF200L_ " n

BETWEEN

1.

Vij ayakumar,
S/0. D. Narayana
Major, '

  

Padmavathamma,  ._ V 
D /0. Iate E?'."N_aray2{ria' Gioxvdaf _

S:/0. D§A"Na.rya'na Gowhda,' --
IVi«.7,tjO'r," "  "    ' -
M.P.VV'S.hi\'Vaprasad,'' . 
_ S./0. S1,ib_ba1:m1a,"- 
. «  M3301",

3 M37'. Int}-resh Kumar,
T " ' S /'Q . V:'31'1b_b'amn1e1,
"   MajOi',,_ 

Ev./Iv."P;, Navin Kumar,
S/0. Subbamma,

no->«5»>.!'?"V r  <- .:r-. 5--4 am.  1 '- -- .  .,,_ u..  .V.'~.t'{.'r, =.-.---.--. M  ,.-. .c-r>4(-v:.2- , w*'. =- . -

All are residing at N0.80/ I,



2 RFA 22/GE

H. Stddaiah Road. Bar1ga10re--27.
[Lalbagh Road Cross).  APPELLANT/S

(Sri. G.R. Lakshmipathy Raddy, Adv.)

AND

1. IN. Krishnarrladhyastha.
S/0. Late Narasimha Macihyastha,
Major,   &
C/0. Nandeeswara Lunch Horne,  
No.82, Lalbagh Road, Bangal0iT€--2£_7.A'

2. Anjaliamma,  
D / 0. Late D. Narayanagowdg'

Major,

3. Lakshmanmla, - ~
W/0. Doddegowda,
Major, ' "

4. I\' ivr1r:Té1'1':31'; . V_ '  
D'/0. '--Dodd6gC-Wtia,  
Ma'J'«Q1*,'- "  

5. .NVagenad'1'a_:,V V ..  
V, ._2.ES/ 0. Doddegowda;
._   A. ,. . . . . . ..

_ " --.__Dfo_"_'D_Qd:dég0wda,
'  M'c1.i0r;  '

 __7 . IV'Iai*m11a.

A.  DV/'O. Doddegowda,
" Maj0r,

   Venugopal,

S/0. Doddegowda.



3 RFA 22/01

Major, 

Respondems 2 to 8 are residing at

No.80/1. H. Siddaiah Road.

Lalbagh Cross. Bangalore.  RESPONDENT/S

[SI'i. v.v. Upadhyaya, Adv. for R1, R~2 to R-8 serVed".:}l"'~ >§==i==k=§==i= This RFA is filed under Section 96 agg;ii11sil"t-;:q.¢ judgment and decree di. 28.8.2OOC}'J15lé1ssed in 288,}./'82 l T by the XXIV Addl. City Civil Judge:'Bzingéilofe. cziy. the suit for declaration and pern-1._fc_111en':LAinjuneii.on.fg This RFA having been l1e2:_nfd~..g1n'd» reserved eoréiiiig on for proliouncement 0f__jL1dg:}ient. vda._yv,._il1e Court pronounced the following:

Few IL11'1fOi"i.i;1'n;§i'Lel"aen'd lu'nsuccessi"ul defendants have app1*0aehelci,ih1s iiisppeal challenging the judgment and deeijee grantedl'in..["av0u1' of the first defendant declaring him to beV._,the_'1e.ri:;n1;.V of the suii schedule premises and I'u1*I':her ldr:til.ai'«iiig decree in HRC N0.663/ 1.964 is inexeeuiable, _"(1'iSl.L.II"[)ll'l'g the possession of the premises. gran"?;ing--f perfiianeni in_junc:i.i0n against the defendants from /"

4 RF/-X 22 /01

2. I will refer to the parties as per their rank in the Trial Court. for the purpose otconvenience.

3\ The appellants herein are Defendant to 15 whereas the first respondent herein is thej'f)ia1.'i}~1--i._ii'? :_and remaining respondents are the other dei'en.da.nt.'s.VVindthe said suit. The property in dispute is the prenf.-.is'es': ' Lalbagh Road. Bangalore. the: descridptiton of _V\."a."'i1'1Al'(3v'1v1:1"i«';1t:S tbteeiny furnished in the schedule to t1'1ehp.1:aint.

4. The brief facts "rei'evan_t for ptirpose of this appeal are as under:

The p1_aiVfit..ifi'_ts«.ti1e,_tenazf1t_' of the suit property owned by the defendants and Narayana Gowda had leased the premisets-,to=i.he-__ptain't:itt' much prior to 1963 on a monthly "l:--{SI50/'V'Pyn'}'f""¢i?1€ said Narayana Gowda. the landlord ofttve p.ren1is:e"svfi1ed HRC No.663/1964 seeking eviction of the piaintiff hand. afdeeree of eviction came to be passed in the petitio11.v--._VH 't'tggrieved by the judgment and decree. CRP :_ﬂI\?.0.Vi53_67/'i'E..37l was filed before this Court and it came t.o be "'~diVsn1i'ssed on 5.7.1971 conﬁrming the eviction order. sZ;.;_i

5 RFA 2.2/01

5. The plaintiff filed O.S.No.308/1972 challenging the decree and obtained an exparte injunction. it earr1e.._to be vacated vide order dated 31.5.1973. M.A.No.96/E29}/'«3dFwas preferred and it was dismissed vide order The dismissai was ehalienged in CR? No.2436/ 3. came to be dismissed by this Cour_t .o.n__21.3."i9'7¥i.;:V.'fT1ere;1i'terj . 1 the suit in O.S.No.308/1972 xviets r.ett:i1"i*ieed,.'f'o1eWwg1ivi;:eofi jurisdiction and M.A.No.42/1975 W:-;_ts"'.{'iled iiyfiiie p.1:iim-'i~iij which came to be dismissed sin1iia__1*1y.jthe VV'}'?;1éL'i'1"1'LI'Vﬁ' also instituted O.S.No.698/I975 or1___sviimi_1a;i:_V g1'o.t1i1ds_AAai)id obtained an exparte terriporary iriJi::ineti.oriVj.b'airi'd--Vji"tAjeanie to be vacated. This suit \vets"fil_.ed 't'.h:e«~.itime when CRP No. 1420/1976 was periding'*be".Fore' Court agaisrit an order in M.A.N_n..42/ by the vacating of the order oi"

ii--1j&uiietioVri""iAr1 O.S.NO.698/1975, the piainiiff filed 1Q?T:8f.vi1ich came to be dismissed. The matter was Lipto Court in CRP No.31iO/1978 and there was 3 V._eompi'or;1iié3e decree between theoparties on 8.2.1979 wherein '*.the pFai1'1t.ii'i' agreed to vacate the premises on or before 88.1980. Though many other suits were iristituted. either by 5 REA 22 /01 the piaintiff or at his instance. I do not etc-em it relevantto refer to them as there is no fink so far as the said Eit.igat:i0_ns_:b.et.ween the parties are concerned.

6. In the compromise taetweegft th_e'V'p'art_'ié:s"i»ii}. CRi-3'.L' N0.3.I10/1978. the piaintiff Li1]Ct:E_I't.O:':;)"}s;'..:v No.308/1972, O.S.N0.698/ cf<P. NQ.£v%t"'v2Q./;:.1..:9:7'F:§ times. Execution Case N0.1O92/1978 differer1t'.

Courts. Furthermore, of t2s.500/-- p.m. to S.N.Dodde Goxyeia. t11e.._etc_fe.r defendant'. as the Eieense eorstiinue as Iieensee till ' I it

7. The pla*i13t'ift_j *e_d1'ii:_ei1ds that in View of this compromise decree, the c§"rd<;':~ of evihtjvtiefii obtained in HRC N0.663/ E964 has 2/_Atr1e>s:ecL1t.ah1e'.'""The plaintiff aiso submitted that the Gowda. who was the Manager of the joint f2tr1'1i_1'3'V/A 0f_.t;he_A}:ctefeI1daI1ts was receiving the license fee of x_'Rs.500~/A as per the compromisetegtaiariy and was issuing the and after 8.8.1980. t.he said Dodcie Gowda wamed to ' recognise the t.enaney and there were talks of compromise xi' RFA 22/01 betweenethe parties wherein the said Dodde Gowda was willing to create a fresh tenancy in favour of the plaintiff. But he died on 02.1 1. i980 before the final agreement. was arrived at."

8. The second defendant who is the younger.b:7o_t'eh'e_r' of deceased Dodde Gowda was the eldest rnen'ihe'r_:~--in':t_hen_1aniilyi and is said to have been ayvareizifof "eoni pro»'rnuisieVffftalvhs between the plaintiff and Dodde Gofwdaaiid plaintiff on 7.11.1980 and inforined t.hatV'i'h_erie."is iii fighting in t.he Courts VH;g}1;']'].i11g't'_rﬁ'"1*ér£Qg1]ise the piaintiff as the tenant be oral agreement for eleven moi)t.iie, Theiplaintiifi'=e1aitnsV that the 2"" defendant. soughban ad\fanVee:"'-of'Rs}'--1eCI000/~ and as the plaintiff was not in a posit.ion"to Vf)'a_yfii'ii"a.t"'_.'n1uci1 of money, he agreed to pay Rs.5,.f&)OV0)*~ £tI1(i1V."i':h;E:lt. a cheque towards t.he advance payment. of issued by the piaintiff to the 21" defendant i'Vi]a'y_-at K::iin_ai{_'-"fhotlgh the plaintiff wanted to execute an ag1'ee1ne-ﬁt eleven months. it is said that 2"' defendant _'Vi_ia_ya iiiumar requested that he would not execute any i . doe'urhents as there are certain legai hurdles in executing the f 'V ~»vwritt.eI1 agreement. in View of a dispute between the defendant 8 RFA 22/0;

and one Atztaulla Habisha Darga in O.S.No.1499/1975. So the plaintill states that the 2*" defendant as the Manager of the family received an advance amount of Rs.5._000/~ t.h1_f_ough a cheque and gave an endorsement; to that elleet. a1n:cl.l.i}\ﬁe;';etVv'o1i receiving the rents at the rate of Rs.500/« plaintiff claims that there is a fresh

9. The defendants had filed it was renumbered as 2020/ the pi decree passed in HRC lfetitionV_a_n':d.:_th.e_v plaint:iflf.:Aclavi.§ms that in View of the eon1p1*oniislei7in 10/1978. the said executiorl Petition is llotw1iiz1iVr1£3'i11ab3€;allHe submits that though3.there wa's:'a.._l':<esh._ lease executed, the defendants are th1'eatenin'ga_t,o Vdisposse'ssR_.'hi1n on the basis oi" the decree in HRC4§:petition compromise order in CRP No.3} 10/ 1978. though_thei'evisVa fresh lease and in the circumstances, sought lefta._dec'iaratioh'that he is the tenant of the schedule premises 0 _ andlkto that the order dated 23.3.1971 in l-"IRC Vr,0V:NAo.e6_.Ej33/V1964 is inexecutable. no longer Valid and binding upon ti'he"'plai1it.il'l and consequently. sought for an injunction " ~rest.rainir3g them front evicting the plaintiff in pursuance of the $4.

9 RFA 22/01 said decree in Case No.2020/l980. The plaintiff also sought for ancillary reliefs.

30. The 2"" ciefeiidani: filed his written stateument' ,fc1"F"Cl the substance of the written statement is only Witi;-igregarld'to the execution of a fresh lease a11d:derilia}..vo'f_ e'Xee_1i'iionloif the fresh lease after t.he compromise decreeiza CRP,l.i1\?Ot.;3}"10;/ it is the submission of the 2"?W.:lglei7enda11'it.1lh2iif'.tiie,ahiount oi' Rs.5,000/-- which was pa.i_d b_\:'i'tlli.elt.:r;!aintiff through a Cheque was the loan amount. due to financial difficulties and, that'- he §nev_,er'V.«agi7eefi'V.to"ereate a fresh lease in favour of the "pl_a_in'ti;ffi_a1'icl that 'ii--e...xi;as receiving Rs.500/-- p.m. after the eoii'ip1'oi*n:i-syeldecree.as'the amount agreed under the eornpromise loetween'*the 'parties and not as the rent of the suit premises. lt _his.,s-ublinission that there is i'nisrepresentatio11 ll'vancli.tabzfiea'tii.o11 0l'C§lO'(ftlm€I1l'lS by the plaintiff with the sole ii1.tle'n.tion_to"ea'u.se harassment to the defendants despite the ol«e_viet:i.on in the HRC Petition and also refusing to vacate tl»1epropert.y despite a compromise between the parties.

"'li_is his 'S.'{lbniiSSiOn that the plaintiff is a veiy rich person and T l'nf1i's.used his intelligence and money only to cause harassment 10 I-em 22/01 to the defendants since from the year 1964 onwards and that the father of the 2"" defendant fotight the litigation all along his life, the elder brother also fought the litigation in liisl_Vllill'e~.Vtinie and that despite his eontintianee as the and the Manager of the joint i"ami.lyH.H till position to take the possession oi" l states that the suit institutedjoy l"rivolot1s and that the prinei;)1elvlVoiij4.3sV applies to the facts and on vsotiltvglit for the dismissal of the suit under Section 35A of CPC.

ll. "die "pleadings. the Trial Court has framed theioliewirig issues} 'Whethle'r--..the plaintiff proves that he is the tenant of plairit schedule properties ?

the plaintiff proves that the order passed in A663/64 is inexeetitable. invalid and not binding ~ V on the plaintiff 'P Whether the suit of the plaintiil' is hit by principles of res judicata?

11 RF'/\ 222/01

4. WhCtl1€1' the plzlintifl' is entitled to get permzmeiit in} urlction as prayed for 'P

5. Whether the suit of the plaintiff is vexatious and frivolous 'P

6. To what relief the plaintili is entitled to V Additional lssue:

7. Whether the suit is not IYl'c:1ir1'E§Eti--?}t'3.b'l'f':.'i'Q1"V"i.l'lEV:'r§Et'S:Qi'lS that defendants have_.o_btairi'e-d an o1'd.ei,.o:i' exrietioioa in HRC 663/64?

8. Whether the suit~~..i_s barred 1o"1*i.nciplesdttolgestoppel for the reasons pleaded ii:.;5'e1::i'.2i 23 of the written statement of th<f";Z""':det'e11C1Eki1't}? .V it i

12. rlt the plairitili was examined as PW.l and 'iaihis documents E2xs.P.1 to P25 were 'The 2V'i"'lV...deferidar1t is examined as DW.l and in his .e\ki{1ene_e,Vt;he.d0euno1ent.s Exs.D.l and 13.2 have been marked.

'' 13, Trial Court after hearing both the counsel for ﬁthe pa'rtie:s and on appreciation of the material on record has a decree as sought for by the plaintill' and agg1'ieved by «.:><.::f:./ V_ww__V4_( ., .. ..., .. ,.W.,.,,_._ ... _ ..........- --z|n.4 , ...... W--- -_..--....--...-. -_-...,_ ..--..- ... .-_.,..~ - 32 RFA 22/01 the same, the contesting defendants have approached this Court in appeal.

14. 1 have heard the learned counsel and the counsel for Resporideijt,_No.};;W"I'he:. i'er'1'1ainingr' 2 respondents though served are absent. points my consideration are: . VA ' V i i

1. Whether the suit. ptdintiii' the principles of res it it

2. Whether the in HRC No.663"/ii and does not : continues to be the te11'&a'i:t'_'oi' property 'P is entitled to the permanent " injj sought for '?

t.he suit instituted by the ¥31aint.iff' is ﬁC~_iil..IO1;i:S and frivolous 'E' .. it Whether the judgment and decree passed by Trial Court grarlting the relief as prayed for by the piaimift' is erroneous and mega}?

:14 13 RFA 22/01

15. it is the contention of the teamed counsel for the appellants that the decree for possession in HRC No.663/1964» confirmed by this Court in CR}? No.86?/i971 is'._\fVal4i_d..V_and exeeutabie. He submits that once a decree is pa_s§s.ed:..'_'u11i'e.sVs "it is either deeiared as huh and void or is c_2ii:'iee.1::1'e.d'h:ii1.ds the» parties to the proeeedirigs. He subr:iit's:..t.i,'§g.-L in CR]? No.3} 10/ 1978 entered int'o.4hetwde'e_n"the etiti the eviction decree passed Rent '~C'on'h§~;ro1.':':§CoVt1rt and therefore, mere eoi11;)i'ehi'ise does not invaiidate the eviction / 1964. it is his submission that' soiiie tiimeiwizis the plaintiff in terms of the icon-ditic)risV':'inc0rjjoréIt.ed 'in the compromise decree by enhancing"!-ghe rent oi";Rs,50/-- 13.111. to Rs.500/~p.m. as license fee iefixingx' for vacating the premises. It is his scontentiion that there is nothing in the compromise decree intft1,1_idV.V2i:t.es the eviction decree passed by the Rent Cont-roi Furthermore, he submits that there was no "re iewa ease or enanc eween i e aries a anv time V n 1 {I t ybt th p t t _ t si1'i:~.sequei1t. to the decree of eviction in HRC N"o.663/1964 or V. compromise order in CR? No.3110/I978 and that the >4/r 1-4 RFA 22/01 plaintiff has fabricated a false and fictitious ClOCt11T1€I11.S and caused misrepresentation to the defendants, who had aria much knowledge of the legal implications. In the circt.1n1sta.r_.i'ces,VA he submits that when there is no fresh leasegtihe_decr<ee*3<)i7, eviction is executable and the plaintiff is bot:-n.d'fto "hand over if the possession of the petition prervnises"\:.rithou't--pfttttingfforili ' any plea of fresh tenancy in terms tihe'lconi'pVt§()mise"

l\io.3li0/1978. He further ':%'gi='it:§ndls"v-that_ 50:' titted' plaintiff is hit by the On these grounds, he has sough"t.zfor_ .,txV/alt? decree and to dismiss the suit of the A1)_la:ipn,ti1ff.,\.A has also relied upon the di.l'fe_'rent-l--ifilgl1 Courts. and the IrIon'ble Apex Court wl1ic'h_vvilil5e~re'ter*red to hereinafter. '.16. Per cVont.r.a, fhellearned counsel for Respondent No.1 V'vsuhmits%,.A*-sthat thei~eV"':-ire documents to prove a fresh lease or _renevvall°-opft ..t'ena"hicy and the 2"" defendant has received an aniotjnt o'i*:'i__.'f?s.5.000/» as house rent advance and npacknowledged the receipt of rent at Rs.500/-- pm. by signing ftlief i'e.ceipts and this evidence is sufficient to prove the renewal ' ofitenancy or a fresh lease between the parties and in the 15 Rt-"A 22/01 circLimst.anees. it is his submission that his suit is not hit by the principles of res judieata and that the }31E1ii'11.lff has every right to continue in possession of the suit. pi"0=p:erft:y in pursuance of the fresh lease and that the cannot be executed in View of the coniproitiiseharid:creation ' new lease. The learned counseljihas"'atsop decisions of ciifterent leligh C0Vurt.s.baiwhich hereinafter.

Re.Point Nos. 1 and 2: V l7. l have nietietilotishly and the documents pi'odttccd_ "Tiiougli the matter is very s,r'rm'ple'."' a3ppe.ars_ that, it is made complicated urinecessarily by ,sta.:t'iiig"..an'n'ecessa1y and irrelevant facts in the pplaint xt?hicl1'.i*t1ns"-toalaottt. 19 pages and the written ,.iL's.'[9.J[VC;I}.:i.€T3,!_'L".Which alsoitins into more pages than the plaint. it .i_s'a declaration that. the plaintiff is the tenant oi' the ,_sc11edulei--_. premises and a further declaration that the vd"~_4'<eviction*decree dated 23.3.1971 in HRC No.66?)/l96él is "«ii1e_xee';.1t.able and no longer valid and binding on the p!aint.it'I' and for a decree of injunction.

16 am 22 /01

18. The fact: that the plaintiff is a tenant of the premises is not in dispute. It is in sucheirctimstances only that. the father or the 2m-1 defendant filed mac No.ee3/;~~eis4i§i:3:s1§i'iig possession of the petition premises from theMQl_ai.i.1tfiil°'z1nclthe Rent Control Court passed a Cl€'3C1'f3(':?.'ClE1l::(:?'C'1 the plaintitl' to vacate thti ¥='1'_@mise;~s and this:cie'ere=:2"'was- confirmed by this Court in plaintiff instituted interim order or temporary injuzietiotlj in getting a decree to vl»lRC No.663/ 1964.

So also, i11€'Q;3.NO.308/ 1972 or OS.

suehmcleelziinatioii that the eviction decree ilsieitlier When he instituted the suit in Q.S.N'o-3:08./..l9?"2. suit Came to be returned for want "v--ofjurisci.i-etio--n anti against the said order, lVI.A.No.42/1975 was _pi'ef'erreichalltvlawash.dismissed and CRP No.1-420/1976 was also di's:ii'issed,'tia_t'e1-. O.S.No.698/1975 was filed and that went up V._i':o t,l1e"}jiigh Court. and in CR1-3 No.8il0/1978 a eonipromise "«i"\.'aas""ente1'eci into between the parties wi'ierei1'1 the rent of Rs.50/-- p.m. was enhanced to RS500/» p.m. as license fee and ai:><f:

17 RFA 22/01

the ptziintiff/tenant agreed to vacate the premises on or before 8.8.1980. There is nothing in the said decree to iiwalidate the eviction order passed in HRC No.663/1964.

19. As Couid be seen from EX.D.1. the coinproitiise-order;

between the parties, it was agre__ed wiiif' continue to be in possession ofthe suit sehedtiie"preznises.tifito 8.8.1980 in t.he capacity of aheensee for E1. .0:--'ie yeazfif and six months from the date _Q__f"th_e=eorr1promisedecree. The rent was enhanced to f{s.£}OO'/_« ;.j_1i1d""w:e1s"called as license fee and the ptaintiff t:I1d€l'tOO'}{=1..}i1'E1f _\tiot_1I.d" inch. (tiaim any fresh right or,the_Ae.i':9.re1E:i;e.r §nd~._statti~s...of a tenant and aiso agreed that byV,thi«s' a1*i":titgen1ent;._nonew tenancty is created and no fresh rightfis_4oonfiriTne'd i'i3J'i.i:E\'OtlI' of the petitioner in relation t.o v "I and that the license fee of Rs.500/~ has __month to the 2"" defendant. S.N.Dodde Gowda. the 2"" defendant in the suit and he aiso tiést shalt vacate and deiiver the vacam possession of 4"'ltt'1e.euscthedtile premises to the respondents on or before withotit putting forth any kind of defense by the 8 " 'p"et.it,ionei' [pleiintim and without: resorting to any kind of Iegetl &.

, W 4., M- '1'--VV'VV'VV' .,_.--_.. ._ ...__ .,_._w.»....,._'..,,;,.- _-_-...,_..,.v...,,-.,. . ;?'<.

-.18 RFA 22/01 action in an Court of law. ' -The .laintii'i' also afreed to Y P withdraw O.S.No.308/1972. o.s.No.e98/i975.§j-.._.'_9*-»ei<i> l\io.1420/1.976 arising out oi' M.A.42/1975,-&ii§cif5.'i:i<Zc:..a§e_ No. 1092/1978. In para 6 of they plaintiff agreed that he shall not l'o'i't.h:' defense either directly or indirecztiy and the petitioner shall vacate and dei.vi.ye1'.Vthe y'2icai1t pofssession of the premises in quesii.oi";-- \v«ithi.n,.ihe..y t'i~rne mentioned and granted by the Court.

20. So ..éi--ftei'-._t.h;is._ Vihe plaintill claims that there oli'iI;;1e.ase: and tovv.siipport his defense. he has produced Ex.Pi. foils of the cheque book wherein Ex.P.1 (b) i"s.._the si'gi1léi.ii'i"e:_ll..oi the 2"" defendant and above the said..s--ignat'ure, it*--is_rnentio11ed as 'Hotel advance'. An amount paid to 2"" defendant by the plaintiff tinder (3). This cheque is dated 21.3.1981 and . he has aVlso"o1'oduoed the receipts 1'C'.gE1I'Cil11g the p£¥.yI'l1f3I1T oi' ..,i;eAr11/licerise lee at l£xs.P.2[a} to 19.2 is} for the period from 9:79 to 810.1982. and Exs.P.8[a) to P8 [o) for the period

-fi'on'1 08.11.1980 to 08.01.1982 and {*3xs.P.4 to 13.63 am the 19 RFA 22/01 receipts dated 8.6.1985. 8.7.1985 and 8.8.1985. The perusal oi' these documents particularly Exs.P.2 [a] to P.2(s) reveal that the sum of Rs.500/- in each of these receipts was reee"i\_:»ed on account of license fee as per the order dated i\lo.3il0/1978. ex.P.2 {S} is dated 8.10.1980 rest of the receipts at Exs.P.3 [a} to-'P'."[3}« fee, it is mentioned as Nandeeshwaiéa receipts. So the plaintiff elainis.,:lthe_1t un"de__r gave the' hotel advance of Rs.5,0QO/~ to.thee--2"'iE»'.._del;er:t;lar1t.,_.Ewho is the Manager of the joint terms of agreement of new tenancy b_etween'h"i}nsell' an:d._the. 2{§<l»'t:lei'encEant. he paid the rent ofhithe }i)i3€II1i'S.€~S_. instead of the license fee from 8.1 1.1_98oVomvarci,§;

Atxlthe same time, it is the contention of the .defencia_nt.s there is no fresh lease or renewal of lease at .__i;iin'elfand:;""whatever they received under the receipts I-75 and P.6 was the license fee and though it is ;rnenti"or1ed as rent in some of the receipts. they were t:_naware of the dii'fei'ei"iee between the license fee and the rent " "and in the circumstances, they contend that there was 110 ii, 'xx' 20 RFA 22/Ol renewal oz!' lease and that a fraud is committed by the plaintift' by obtaining the receipts by mentioning that l,l'1€V9E1Il1Ol.1l'll received was the rent of hotel premises. So it is this e.c)r1t'.if'ople1'sy that is the subject matter of this suit. It is .t_hisﬁ dispute about; the renewal of lease t.hat~t.hpe p_4lai1i1'ti'i"tl':. claims that l the principles of res judieata do and ..a

-considered opinion as the plai.ntii.[f has" made' a i::l:é1'i'm of new' lease between the patties. an_d::h.enee l.l'1€"'pl'_l11"C2l§pl(3 of' res judieata does not apply to s1,1it.j } l

22. E3ut§~a'n'j«,g:rpp;_l1owl:__it :1stor'*thel--:_plainftil'f to establish as to whether he entered irlto, a'=netv't.ra«nsac'tion of lease and whether really alV-Anew leas'elfo'rl »tena_riey was entered into between the parties is irnportari,_t"Qnestion for serious consideration of this..C{ou1't. So fair-asv_tl1e documents are concerned. the plaintill' relies upon *E:X".~--l.-"'__.1 the counter foil of the cheque book and as Ex.P.1 (a), an amount of Rs.5.000/- has . beer1'"'pai--d under the cheque to the 2"" defendant. who has ~,S1glC'i(__3d on the eotinter foil regarding the receipt of the cheque. _ Abo'VeAt.l1e signature. there is a mention 'I---lotel advance'. So on l " tlie basis of this endorsement. .the plaintiff elaims that there is 5% 21 RFA 22/{)1 new lease and that the 2"" defendant who was then the Manager of the joint family has received the z1dvaneVer»a'n'1otint by way of deposit. whereas the defendant claiins"'that borrowed a loan of Rs.5.000/-- from the towards either the advance arnountfpor the (.le1:)o'Si'_t'.'----it' 'ivs-..r1ot,e.te.he ease of the plaintiff that. the vvord 'Hotel advan(:e'- writtenHalj1eve's, the signature is in the hand it-wtrttiiig ofthe'2""*V':§defenda.11t.. whereas the 2"" dei'e1id_ant has _dis;.)_u.te'd. the same and has clearly stated in his evidences"Vthbatmhe.'.:'V'reeeived a loan of Rs.5.000/» front 'th,e:VZ'plai::i_1tii'gt'

23. to} the defendant is dated 21.3.1981. '-If vvas created on 21.3.1981. after the receipt" the 2'" defendant. the plaintiff eouldfhave made" mention of the receipt of the rent by the de'1"en_dant.'afterthis date. But 'as Could be seen from t.he r¢ce:'p;s "i'i'1"_t_.11_e«gevries at I3x.P.2 Nandeeshwara Hotel Rent has 8 _ been'"'--n1eVr1:t.ion°ed in the receipt dated 8.11.1980 at Ex.I3.3 la) _ai1d,__ t.hei'eaftei' in all the receipts. it is mentioned as

-_l\Fandeeshwara Hotel Rent. The receipts obtained by the " plaintiff prior to 8.1 1.1980 reveal that the amount was received 22 Rm 22/01 on account of license fee under the order dated 8.2.1979 in CR? No.3ll0/1978. So the mention of i;he':'words 'Nandeeshwara Hotel Rent' in the receipt prodiiieoil_';il:sl__'lrI:ti'L:.i1 prior to 21.3.1981. i.e.. the date on which issued by the pla.intiff to 2""

no consistency in the versionpoof pls>;ini.ii'l commencenient of the tenancjly the 'c1I"{flt)t;1Tll._= l--l was paid under the Cl'l€Q"Llti: by the' to th.e"def'endant.

24. It appears froin defendant is not a kno\vledgeotis:V1' pCI"SO1'1g toflkriiow l--t_'h.e___c_iVil"i"erence between the license fee~3n'dg.the:*h~ote£_rent 21'r:vd...i't may be also that he was not awgi"f.e of'thelcoi:sequlen_cesl' of mentioning the word 'rent' in the reeeiptse,.._'in3Vte£ir.1 or nzelﬁtioning the word 'Eioense fee' as he ixiaseonfident tl'l'c'itl._'th€iTt"3 was a decree of eviction against the p1:E1ln.tiff,Vlfi.'}'£1ﬁ2C __No.663/1964 and so also. that he had agreed to Vl'.1'E1,L1€llCVlf€l.' possession of the suit property under the . coni";5'roi'i<iigevi'i1 CRP No.31 l0/1978, this confidence must have ~_VITiE-153$ hiin to sign the receipt without knowing the contents and _ thel"re°al meaning of license fee and rent. sis,

7)."?

23 RFA 22/01

25. There is no written agreement of lease between the plaintiff and Defendant No.2 and the plaintiff states both in the complaint and in the evidence that when he calleddviiip-on-._i'.he deceased Dodde Gowda in his life time or the 2"?

execute a lease deed. he states that tl1§2"" dC'i3€1'1'déntlldil-Sag'3&5" . it to execute the lease deed on the g1*o1111dAAihA3at'eait'W'5't1ldVTe.ec'8;:ne an obstacle in respect of a.7su__it inlstvitmed pertaining to the suit p1'ope1~i;vf"V.:Ti1i_s oi:al- of PW.l though mentioned in evidence is not supported by ar1y__mai,ei'ia_l_evideticep ..i'nte1'ested version alone cannot to called upon the defenda_:ntm to agreem_ent. In the ci1*cumstan_cest foil Ex.P'.l {a} and the rent receiiligs. Drod11,_Ced....'--a1't"erthe decree of eviction and the it¢oni}nEorne:.se~»i.in c1é15"'ivo'.'31 10/1979. there is no material at all to"provethat'Vthere was a renewal of lease or a creation of lease b€t'.?t_~'een thledpatrties subsequent to the eviction decree and the V.,compromi'se decree.

Furthermore. it is. not in dispute that after the _,,d€§C1'ee in HRC No.663/1964 which was confirmed by this 54 _,,, __,..,g,__.,,, - ' - -- my-' ~ - "4QgA:&JlAllV:"'.J,Ili¢ﬂAfTIi:Ivi . ,...:t,.-.,, .a ., )4; :1 24 RFA 22/01 Court in CRP No.86?'/1971 dated 5.7.1971, Execution Case No.508/"1974 was filed and later, it was renun-ibered as Execution Case No.2020/1980. This execution pending all along till the judgment and decree in'1pugned:ri'11A appeal was passed by the Trial Court.;.»..»lf__tl1e _:2l"l'l ll(ilel;e»I1a'C!VI'_'1'£Vl1'{;1_VCll'if » agreed to enter into a lease trarisaotior',i_"withltlie _plai1iii';--fl',{'he could have withdrawn this €§;eC:'El_{.i0IlA}3€1li.i0I'll'.l._ So~...1119' Y10F1'*C' withdrawal of the execution, ;;_i§::um of the plaintiff. V A 27'. Furthermore. Order XXI Rule 2 (3) a payr11:_e--:1§t.. haslsnot been certiﬁed or recordedgas be recognised by any Court executing 'they pd [1] provides "Whle"reyany«n1oney payable under a decree of°a:i'iy_lllKi_nd is paid out of Court. {or a decree of otherwise ad1'ust1ed} in whole or in '"'part satisfaction of the decree holder, the deereellholder shall certify such. payment of adi.Lfst,nient to the Court whose duty it is to latexecute the decree and the Court shall record the same accordingly." A [The underline is mine) L 2"'?

25 RFA 22 /01 So when the plaintiff claims that he paid an advance amount. of Rs.5.000/-- towards the deposit: and went ori'°pa1ying Rs.500/-- as rent of the hotel. he could have second defendant to app1"oe1eh the Executing tthvérlehree provisions of O.XXI Rule 2 CPC lio'r""1*e'poi*t".4&to:.th'e'._Ei<eet_1tingi Court and obtain a certificate or get'ting--_2i new .Vlease«.1"eet;1fd'e(l by Executing Court. In ad_iustme11t obtained, tl.1e pla&ittt'iiif"L':Ceémfiot 'C"i'£l'iI1} stop the execution of the decree? t.he matter. the counsel for the on the decision of the lmlon'l:__2lt: :?.epA{orted"in AIR £997 SC l006 [Stiltanazt Be§t1'119t_..v._A --Jain} wherein it has been held that in respect of_ét'cije.er'ee«,iA"if there was a compromise oi' rights by p.2trt_ies z:t'rraoVuntihg *toi"éidjustme11t of decree and it is not «..fepel1'ted,_A*-to the E)tee't1'iii'1ig Court and therefore not Certified or l_reC0_1*cie{:l'v«so».li5j,,t_the Elxecuting Court. the Court can proceed to execute t.hed._ee'ree. Furthermore, it has been held as Lmder:

"B. Civil P.C. [5 of 1908), 0.21 R.2 --

it it Execution -- Decree for evi.eti.on -- Plea by tenant Vthat possession was already delivered to lar1diord's attorney who permitted him to 28 RFA 22/01 continue in possession as licencee M» Decree not superseded due to such agreement."

So from the perusal of the principles laid down by the Hon'b1e Apex Court. an agreement cannot defeat obtained by a decree holder under a. decree litigation in Court.

28. Furthermore, mere accepiﬁaiice C V I1f;§le landlord after the filing of amount to his giving of On this aspect of t.he matter, reliance decision of High Court" of Madras reported }'\II'i.l [lViAl)} (Abdul Khuddiis V; 's_gnnat'h Jamath) wherein the Hon'ble Court. consiri4ei'ingl"t.her.t31'oi}isilons of Section 1 14 of the Elvidence Act the prin'C.i_1:)le ol waiver held that the acceptance of the rentbyVlthe_ilandio1'd after filing suit for eviction would not up right; to evict the tenant".

He also placed the reliance on the decision of the A Apex Court reported in AIR 1971 SC 2289 [Fort Gloster industries Ltd, V. Sethia Mercantile (P) Ltd.) wherein it has 4, 27 RFA 22/oi been held that by recourse to_th.e provisions of Sect.ion 91 of the Evidence Act, the terms of contract required to be in writing cannot be proved othemrise than by oilering the docu.nient itself in evidence. Any how, this principle is not to the facts on hand as it i.s the claim of the aileged agreement between himself _E_JI1Cl__t,he _2}-xi . L' for a period of eleven months. V .

30. The learned counsi31:vT'{o1* jolacediil reliance on the decision. of the.--Fede.ral.,_Cotirt --r.epo.r§ted in AIR (36) 1949 FC :24 (Kaillllihiashrfoo Capadia v. Bai Jerbai} wherein the_proyi's'i'or1s¥ol the 'l'ransfer of Property,Act' wei*el:coynsid'c1fed and wherein A letting his house to B and l£3e.._4sublet,ti1ig same to C, after determination of leases Ci'eontiniii--ng in possession and sending cheque to A as !'€:1'ili,'V./i -refusing the cheque, but subsequently accepting it his bank account -- Held W monthly tenancy came inizo existence.

He also placed reliance on the decision oi" the High Cot11't of Calcutta 1'epoi't,ed in AIR 1991 CALCUTTA 291 held,.aéj&slVt1r:de1': in 28 RFA 2:2/01 (Smt.l\/lalina l\/Eondal V. Puspa Rani Dasi] wherein Section 115 of the evidence was considered by the Court. A serxrieellof first quit notice was issued by the landlord aI1cl..~«~~th'e.__l_t,e'11ant contiintiing to be in possession even after t.he"'<::xpi_r'y 4oflbtl«1e notice period, the landlord issued q&uit;;4:1otei.eeVa1'id the Court held that there was: an implied \=x-?a_i\.rer of the».f'irsit-,imti'(:4; and the suit on the basis of the .se;eoI1d noticeis v.no't.__b'ad in law} V

32. Further, he also relied L_"up'er1 the 'decision of the Horfble Apex Court repoi't:e;i'ine..;°l;IlIft 170 [Basani Lal [dead] by LRs. &A'--avnother"'v_::"Th'eA._lS_tate and another} wherein the Apex Court.l'eonsi'derir1g the provisions of Sections¥,lG6, and 108 [h] of the Transfer of Property Acts where tlriereyyfas acceptance of rent: on the facts '~';ll3.el'_:l.essee B was holding certain land of running a mill since 1905. in 1936 theiiessee B transferred his rights to a company c.-,1ﬁ the lease deed (did. '2-6-1941} there was .i..i,,A:J¢,ot only an express clause under which the "lessee was entitled to remove the stocks and materials within four months after the '29 RFA 22/01 termination of the lease but thereafter there was another stipulation that in "case the lessee faileclfr' to do so. all the buildings, etC.. would the property of the lessor. A sent to C V dated 262-1944 terminating the lea1se_.~date:l « A 6» 1941 on the ground of breach 'thvel"Co~n1--p:an__yj_:"l' of certain covenants containedAl'the-rein. was "

allowed to the companjl 3()ll¥t'3--llE}%l4*'fo1{.'£=,h.eVVV removal of machinery, I other const1't1ctioh~s_. cl»A"liov.§Jj;:;.:é5':' seenred an order from a A from ejecting it. .111 landacquisition'&proC--e.edings at the inst;a1ieeL..'of LC its the was waiver of nott_ee_ A- \-'Vh'31h€1' the"?

was "tear;a_n::y[ under Sec.ll.l (g) of T.P.ACt and was compliance with Sections M l 'l él-}'~.__ of P. ~7Aet.

{Held {lltiiat there was no waiver of notice. Whenkthere was no evidence to show that the %.re'nt"~was:V'aecepted any time after the notice was giVe~n_3j.to C, and, secondly as the rent was aeeepted by A under protest, it could not A' arhount to waiver because there was no Fintehtion on the part of the lessor to treat. the lease as subsisting."

30 ' RFA 22/01

33. He further relied upon t.he decision reported in MR 1934 Lahore 428 [Bombay Co., Karachi V. Roshan Das Radha Kishan and another} wherein the Court COr1SiCl§1'll.I_1:'g"._V the principle of estoppel held that the agreeinentj'betw_e.e:ii:

decree holder and judgment. debtor. the decree.ho:l'der=.;§;Ccr_ept.ii'tgu benefit under agreement and reftisedi to was held that the decree holder is es't,op'ped other terms. This Court in Hll98l [2]V Kar.L.J. 147 v.lvl\A/l.VlVeerei1dra Kumar and another] of a theatre was renewed on'?.«9¥_'12--i:_98Q m fa\roujr..of the licensee who was a tenant of" Them landlord of the premises cthalleriged the under Article 226 of the Const.Vlt1_,1t,ionﬁ,"' aliegl1'--igA"~t.hat the licensee was not in lawful V' 'vpossessiaon of the theatre on the date of renewal. The lease was lO~7w7O expiring on 9-7-80. Under the lease deedlloption'tioirenew the lease was given to the tenant and the l'._'t,enant~~ei<ierCised his option by notice dt.27--2--l980. Even after the landlord went on accepting rent. The tenant had i niade a deposit to be adjusted towards the rents of the last sis 31 am 22/01 month but the landlord did not so adjust the deposit. It was held as under:

"Held (1) the granting of the renewal licence would not in anyway affect the riglﬂs V the petitioner as a landlord and the _pe--titi:o1'1er: « had no locus standi to institute the 'writ._petiti._on_.V Being landlord ot,'th_e prernises wailsltiiot. enough. Petitioner should"r«'e.Fo"e. inter'eS_teCla subject matter of the peti-t;i~o:n'-and there's.11o.I;zld be some iI1l'ril1gefit.'e.t1t' of right. in him."

34. l._Feiiled €ttooI1..llihel'decision reported in AIR 1964 {Mohan Lal"v'."Sla1i1ber Kunwar} wherein it is held 'rJl.l'S:'t1"1'1_(il€V}'3. V' 5"

_ l"Whvere landlord after terminating the dtenancy a shift, for ejectrnerit. and during the of the suit accepts money from the "rent-' and gives a receipt stating tht "i'ent the period subsequent to the te1'=niii1alt.io1'1 has been received. he is estopped by conduct, which was such as to lead the lﬂteriant into believing that he was willing to at renew the tenancy if the arrears of rent were paid up to date. from denying that is accepted 32 RFA 22/0% rent and renewed the tenancy: AIR FC 124. Re}. On: AIR 1948 Oudh 127 and AIR 1956 All 175 and AIR 1952 A}! 579. bistingtiisi-magi'»._:*._V_ [para 9} l V The mere use of the word 'rent' < at conclusive. but comi;:;hlé'd':" width -1' circumstances it may establish :eitherllthat*~t»he landlord intended to": renew' the that any reasonabie persori' de£1lin'g.lttriE.l1:1 liirai would have tl:10.1,1ghi."l.""f.hj8£t Vxrhe had" this intention. ' ' ' n.[Pa_ra 9}."

35. The:..ss'iI':'l,i:t.iny:.A_of§th§ése_Ad*eci_sions and the principles laid down w€oiiidf'~-re"Ve;a_l.bthat 'after thequit notice. in Case. ii" a second KnoticeVi'sjissi1ed',<..ithe first notice is said to have been waived. After the'=iss1ianc'e__of' the quit notice, if the rent has been greeeivedl, it been; held that the quit notice is waived lVc1:T1dl'i.lie tenancy continues. But in none of these decisions the 'facts are'issiniiiaifj-to the facts on hand. In the case on hand. there is.~a:ud.ec1*ee oi' eviction against the plaintiff in HRC 3"-'~___l'~»No.663'/1:964 which was not challenged. The decree was n_ot and it is not declared as null and void by the Court. Though a suit came to be instituted Challenging the decree. the sé 33 RFA 22/oi suit. came to be dismissed. In the second suit. instituted. the matter was compromised wherein under the ternis of eomproniise, time was granted to vacate the pI'(3II1iSv!.",:.S:"-."(V).1"~£vV"01' before 8.8.1980. The copy of this compromise produced by the defendant at and'"it"

mentioned that the plaintiff herein f2i'8:s.:_<iri:1V_of Rs.500/- every month to the resp_ondeant:_s'as and occupation of the suit seliedfiiiljeipremi8ses,.88:\yi'i.hoi;1i. claiming any fresh right or the eh.aijaete1~ _of a tenant and by A1__1h_i.§;...=.§1§1"§;1f1.g€f11C'f11I10.ﬁ.€\Kf..I1.€h3ﬂCy_3§ c:'i*'<3.£;1"':€;:c'1iV,--;?:t'rL,C1 _norfres_h 1'igh1_,.,My_ . . 7 is confirmed in%_"fa\»'oL1'i' of:t1'1e p"etitione*r"re--1at:ing to the premises in question. "

36.8'=--r4Furt1'ierrfioi-erhhin8 para 3 it is stated that the plaintgiff/tenant"agreed to pay a sum of Rs.500/~ every month the seeAonvd"ijespondent Sri.S.N.Dodde Gowda and the same sh_ali__ or before 8"' of each month. It is also stated t1__1at-.t'he first payment was to be commenced from 19'79f__Afi3'arthermore. in para 4. the plaintiff agreed to vacate H":-3,I".f1pd.n{A:}iV€1" the vacant possession of the premises on or before 8.8.1980 without. putting forth any kind of defense by

34 RFA 22/oi petitioner (plaintifﬂ and without resorting to any kind oi' legal action in any Court of law. 'The plaintiff aiso undertook to withdraw four cases in respect of the suit. property. in para 6 of this decree. the pla.intii'-f agreed that he forth any kind of plea or defense either direc_t.ly...:oIf_i'ri.ldi.ret:tlyit and in terms oi' this Memo, he shall Vacate andtielnfcrlvacant. possession of the premises in question \V1'i,lIl'!Tl'."l.l"'i€ zperio-:--¥.. mentioned above and granted Court=.._l V.

37. It is necessary Ifeiflieﬁfilfieii_l85tit'h_iS stage that it was the father of the .defend_ants_ i\io.663/1964. He died i.n the year lelldestllsonllD"o'tide Gowda continued the pi'o"ceedirigsl§l*"['i<1e'l of eviction was obtained under Section 29"'"thelll'Mysoi'e:ll§2e11t Control Act 1961. Though the in his lialamint clai.ms that for some delay in paying the !'E',:I"lT.._V the deeijeev of eviction has been passed. the validity of that l\?vas_v..__ciia'llenged in M.A.96/1973 and it came to be V . disrnisse-.l(:l.. approached this Court in CRP No.2436/1973 cancl._theli'evision petition was also dismissed. After the filing of i.'_lt'he"e'i<ecution petition. he filed 'O.S.No.698/1975 challenging '"ti'ie order of eviction in I-IRC petition. He obtained an exparie / 35 RFA 22/O1 injunction and it was vacated. He filed M.A.No.52/1978 and it came to be dismissed and thereafter'. he _fi.led._8~.CR.P No.31 10/ E978 and the matter came to be the plaintiff agreed to vacate the premises on*'8».v-8;:l..98~(l. «So defendants fought the litigation to t.l1r:«A.de'cre{e._of along since from the year £984 to._.l980.

compromised the matter ag:-eeiéiightoy grant to the plaintiff till 8.8.1980 stibject fee of RS.500/- p.m. and wheri hand over the possession of npon by him. they filed pending all along till the disposal So when they fought for the for over 20 years, I do not think_._that aulblflv amount of Rs.5,000/«. the 2nd 8 .'"€Zl€f€l11C:1'alTi""u. would go""for renewal of lease having a decree of ._eVicti'onu'i«n9ltiis,iayour and having eornprornised the matter in CRP.'No.3_l 1:978 for getting the possession by 8.8.1980. at 38;" "A fraud has been alleged by the defendants and they .._stat.c--that they never agreed for a renewal of lease and that the ..p.laintil"1' by misrepresentation created false documents like eé1/ :.'s/'s ' 36 RFA 22 /01 Ex.P.1 by issuing a cheque for Rs.5,000/-- as hand loan to 2""

defendant, and mentioned in the receipt as 'Hotel Rentﬁnstead of license fee and without the knowledge of the 21$-l_l44'del'en~da:1t. played fraud and instituted a false and frivolotisy suit. vagfair-1.s_t.V' the defendants, basing the claim 351$' s'uel_17,a .faF.se«.p1vea.~' The counsel for the appellants has also rel_ied_tjponthevdeeisionof the Horrble Apex Court report'ed"*--in AfRr.(38)_"'l Court 16 (Yeshwant Deorao Raanlleharidl wherein the Hon'ble Apex iaroof of fraud is Concerned, I'1e_}'tj],:t:'l:'1{s\_'[ the' or design is not Capable of ::"'.3:3~'°"..'3S"'llancl it. can only he infei~red:"InVthevi'7f7ery;inatfti'1=e_' of fraud is secret in its origin means adopted for its success.

Each (:_ircumﬂs~tanoeVby i"t_sel"f may not mean much. but taking all lvdaof theim:_~t.ogether.lHt.hey'lrnay reveal a fraudulent or dishonest the dictum laid down by the Hon'ble Apex Court intliei._eontext of the facts and circumstances of this "._'CE1S€. it isj_abundant.ly clear that. the plaintiff has played fraud ~f:on l.l'1f: defendants and despite his undertaking to vacate the l premises in terms of the order at Ex.D.1 played mischief by 3:» '37' RFA 22/oi taking the disadvantage of the innocence of the 21"?' defendant and having given a loan of Rs.5,000/-- made a mention that it is Hotel advance and hatched a plan to mention as Ielotellvent. in the receipts in the place of license fee and instituted"agstiit. and dragged the litigation all along till its disposaI.""l'4?l:' has fought for possession of the petitiloln'preijnises'"particiilai*ly the premises which is located in prominent place would never forego' of that litigation. lie is involved,-in the.i-lii.i:gaii'o'n.in the"COt£§rt.s for two decades to get a decree oi' niaii of normal sense would not attern§)tv__to a decree for a paltry gfleposit Thcwscrutiny of the evidence of PW.i andthe dovct;:ifriven't;s:fl"produced by him clearly establish that he misrelpresentation to the 21*" defendant and l"-izaking disadvantage""of his financial condition. gave a loan of created false documents like E',x.P.l (a) rnentioningglrithgerein as 'Hotel advance' and played fraud by W._obtaining";. the receipts mentioning therein as rent instead of 'Wlicense fee.

38 am 22/01

39. So far as the alleged renewal of lease is concerned. as stated above and at the cost of repetition, except the interested version of PW.l, there is no material on as regards the payment of Rs.5.000/-.

signature of the defendant.

Rs.5,000/-- and made a mention above the signature and examined any independent gniegotiations between the parties forvc'i'e:at.i.oi1g. He puts forth a blind excuse foifnot document on the ground of ag ~pe«i'tai.£ningl tolllthelllproperty and the 2""

defendant hlavilng hirrrthat. was not willing to execute the written 'docunientila1;id~ihoi1gh in the receipts produced. there are ma'1ciyVr»ec.eipts Which are prior to the cheque dated Whe1*einl'th'e're is a mention of rent. He states that _the:_ was created on payment of the deposit. of Rs'.55_llC)0C)=/'Q;\'l5:t'}ri:e1'e is inconsistency in the version of plaintiff Kgand it is impossible and improbable that after long litigation he 'd_coL1l'd'_. give up possession of the property situated in a prime lofeality. So it is clearly a case of fraud and misrepresentation 41 RFA 22/O1 Re.Point No.5:

42. During the consideration of Point l\los.l the evidence has been reappreciated and the evidence leads to the only inference that the fraud and misrepresentation in obtaining the lii._lV{eV¥. Ex.P.1 and the receipts and based 7t_l*iose instituted the suit; rnakirléi 8. '53._19.ini"ei%_'l\.9f--1.§t2l/f or it fresh lease. The litigation 1964 it continued all along till of litigation and the patienge of be appreciated.

Unfortunately,3'-.the?'ilrial decree in favour of the plaﬁ no niaterial to hold that the decree is invalid or that w'CI'€E1UOn of a new lease. But unfort.11Vnateiy. the.Trialv.CotA1-t granted a decree in favour of the '~v.pla.i-ntiff;,_A*-It is becat;1"s'e'of these reasons the defendants had to ..C'c;n~t challenging the decree of the Trial Court. In considered opinion, the scrutiny of the evidence leads to ",_t.he on~ly'f."nfe1-ence that the suit instituted is fictitious and "«d:V'1F1'iV\/VO':l'()US. Hence, I answer Point No.5 in affirniative and the d defendants are entitled from the plaintiff the costs of litigation sis 42 RFA 22/0;

throughout and compensatory cost of Rs.10.000/-- under Section 35~A CPC.

Re.Point No.6:

43. Though the Trial Court has judgment, it has relied upon Ex.R 3.... the couiiter.loilv"ol" the'? cheque wherein there is mention and below it the signature oil'l t~he~ 2i-icI-._dlei'enda:1:it;ﬁ':SoWalso. considered the receipts \'\fl'1f:'I'¢3'[,.1"vﬁ"«,illstﬁadl..OfV:_lllCI1tiO11i11g the license fee. there was Hotel Rent'.

These two circumstarlces to hold that there is creation new lea.se._'VIt_ h:ts"forgotte1'1 the fact that the larigdlordi" p_et.ition for eviction inthe year 1964, foughtt.l'i€_litigation"«upto the High Court and got a decree. of etfictioim suit was instituted Challenging the ">..dec1-ee' and *u.ltiniate'iy'L'Vthe matter was compromised in High 10/ 1978 and when the landlord fought the litigation_forl_over 20 years. it could have considered the "._.possibi~lity. as t.o whether a Landlord would intend to create a filewlllease transaction. It has also not taken into Consideration the provisions of QXXI Rule 2(3) CPC. Furthermore. when w 43 RFA 22/0i there is no evidence at at} to prove a new lease and merely because that Defendant No.2 signed a receipt obi.aivned_0'by the plaintiff mentioning as rent, eornrnitted an error there was creation of a new lease. In my .opin'ion';--,Tthe 151412.:

Court has not appreciated the €VlCl(f;l'1C6b_i__I71' 'pei'si{3veelti.;§.e.,' It 0 has relied upon the interested:versiorrAoilPW. la plain0i;ifl."'ands, committed an error in graiitingppllla decree VVl1i':lAEl\:?:':C)'L1I' of the plaintiff. In that view ovfithe mjat.te:r;" answer No.6 in the al"i'irinative and proceed to pass inidgnierit and decree passed by the lil_"i'ia.l dated 28.8.2000 is set aside and suit by the first respondent i.e.. the plai1f1.T€il"f "in thVe'~.TrialpVCourt is dismissed with the costs the appeilant No.1 is also entitled to of Rs.l0.000/-- from the piaintiff [Res"ponci'entv No. 1).

Sd/-3 '' JUDGE

Legal Document View

Unlock Advanced Research with PRISMAI

Karnataka High Court

Vijayakumar vs I N Krishnamadhyastha on 27 July, 2010