Karnataka High Court
M/S Lalbagh Dealers vs Sri R J Vijay Bhushan on 17 September, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.No. 6099/2014 (CPC)
BETWEEN:
M/s.Lalbagh Dealers
Rept. By its Proprietor
Sri. Babu Rao Gudage
S/o.Gundappa Gudage
Aged about 71 years
No.83(Old No.71)
Lalbagh Road,
Bangalore-560 027 ... Appellant
(By Sri. Nanjunda Reddy, Sr.Counsel along with Sri.A.K.
Subbaiah, Adv)
AND:
1. R.J. Vijay Bhushan
s/o.late R. Jayaram
Aged about 51 years
2. R.J. Parfulla Chandra
S/o.late R. Jayaram
Aged about 46 years
3. Shakuntala
W/o.R.J. Shantharam
Aged about 53 years
All are residing at 49
2
Mudalappa Street
Doddamavalli
Bangalore-560 004 ... Respondents
(By Sri. K.K. Vasanth, Advocate for caveator/respondents 1
to 3.)
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This MFA is filed under Section 43 Rule 1(r) of CPC
against the order dated 28.08.2014 passed in I.A.No.1 in
O.S.No.5936/2014 on the file of the XVII Additional City
Civil and Sessions Judge, Bengaluru, dismissing I.A.No.I
filed under Order 39 Rule 1 and 2 of CPC.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
Heard Sri.Nanjunda Reddy, learned Senior Counsel appearing for the appellant/plaintiff and Sri.K.K. Vasanth, learned counsel appearing for respondents/ cavetors/defendants. Perused the order under challenge.
2. Plaintiff has filed a suit O.S.No.5936/14 for the relief of declaration that judgment and decree passed in O.S.No.1347/05 dated 24.3.2008 is not binding on him and for perpetual injunction against defendants from interfering with his alleged possession contending inter-alia that 3 plaintiff is a proprietary concern represented by its proprietor and operating a petrol bunk in the suit schedule property since 1971 after having obtained licence from the Indian Oil Corporation Limited ("IOCL" for short) and in the suit for ejectment filed by the respondents in O.S.No.1347/2005 appellant was not made a party and as such said judgment and decree is not binding on plaintiff. Along with the plaint, an application for temporary injunction was filed seeking an order of restraint against respondents from interfering with plaintiff's possession and enjoyment over the suit schedule property. The said application came to be resisted by respondents-defendants by filing detailed objections. After considering rival contentions trial Court has dismissed the said application by order dated 28.8.2014, against which order present appeal has been filed by plaintiff.
3. Though Sri. Nanjunda Reddy, learned Senior Counsel commenced his arguments on merits of the case, he has fairly submitted that he would advice the plaintiff to 4 withdraw the suit and some reasonable time be granted to the plaintiff to quit, vacate and handover vacant possession of the suit schedule property to respondents herein. His submission is placed on record.
4. Sri.K.K. Vasanth, learned counsel appearing for the respondents-defendants would submit that plaintiff has no locus-standi to maintain the suit in question and he is only a licencee under the IOCL and as such trial Court has rightly rejected his application for temporary injunction. However, on instructions from respondents-defendants, who are present before Court, would also fairly submit that if IOCL were to make an application for extension of time in the disposal of appeal namely RFA.No.691/2008 seeking for extension beyond the time that has been granted which is upto 30.9.2014, respondents-defendants will have no objection to grant time till 31.10.2014 to IOCL and its licencee (plaintiff herein) subject to appellant-plaintiff also filing an affidavit of undertaking in the said appeal undertaking to quit, vacate and handover vacant possession 5 of suit schedule property to the respondents-defendants herein unconditionally and without driving the respondents herein to take possession through execution proceedings. His submission is placed on record.
5. In view of the same, I am of the considered view that present appeal deserves to be dismissed both on merits as well as on the ground of fair submission made by both the learned advocates appearing for the parties.
6. Insofar as merits of the case is concerned, it can be noticed that undisputedly plaintiff herein is a licencee under the licensor namely IOCL. Respondents herein had leased the suit schedule property to the licensor namely IOCL and as such they filed a suit for ejectment in O.S.No.1347/2005 against their licensor namely IOCL which ultimately ended in a decree being passed on 24.3.2008. Said judgment and decree was assailed by IOCL before this Court in RFA.No.691/2008 which after contest came to be dismissed by judgment and decree dated 12.8.2010 and extending the time granted by trial Court and 6 granting four years time to IOCL i.e., upto 07.08.2014 to quit and deliver possession to respondent herein. Just before completion of the said period i.e., three days prior to it, suit in question has been filed by the appellant-plaintiff. It requires to be noticed that appellant has no legs to stand by itself and appellant's/plaintiff's right, if any, is through its licensor namely IOCL and licensor-IOCL having appeared in the said suit for ejectment as well as in the appeal and having defended its right as a lessee over the suit schedule property has suffered a judgment and decree of ejectment passed against it. This Court in appellate jurisdiction had granted time to IOCL to quit, vacate and handover vacant possession of the suit schedule property on or before 7.8.2014. However, considering the hardship that would be caused to its licencee namely the plaintiff-appellant herein, an application is said to have been moved by IOCL in the said RFA.No.691/08 seeking for extension of time by two years. Co-ordinate Bench of this Court after considering the rival contentions and in the interest of justice granted time to the IOCL, licensor of plaintiff to quit, vacate and handover 7 vacant possession on or before 30.9.2014 by order dated 25.8.2014. Learned Advocates would fairly admit that it has also been made clear in the said order that no further extension of time would be granted.
7. However, in order to put quietus to the litigation and to ensure that respondents herein would be able to enjoy the fruits of the decree that has been passed by trial Court without driving respondents herein to take possession of the suit schedule property through the process of the Court, I am of the considered view that liberty should be granted to the IOCL to file an application in said RFA.No.691/2008 for granting time upto 31.10.2014, to which prayer Sri.K.K. Vasanth, learned counsel appearing for the respondents-defendants herein has already expressed his willingness which is subject to the present plaintiff filing an affidavit in RFA No. 691/2008 of undertaking to quit, vacate and handover vacant possession of the suit schedule property.
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8. Hence, placing the submissions made by the respective parties, the present appeal is hereby dismissed.
9. It is also made clear that as undertaken by learned Senior Counsel appearing before this Court plaintiff shall take immediate steps to withdraw the suit in question, appellant-plaintiff shall file an affidavit of undertaking in this appeal as agreeing to comply with the above directions within three days from today. For compliance, list this matter on 22.9.2014.
10. It is made clear that if such an affidavit of undertaking is not filed by the appellant herein, undertaking given by Sri. K.K.Vasanth consenting for extension of time will not ensure to the benefit of appellant.
11. In view of the appeal having been disposed of, I.A.No.I/14 does not survive for consideration and stands rejected.
Sd/-
JUDGE *alb/-.