Karnataka High Court
Blue Fox vs Miss Chitralekha Thambuchetty on 22 June, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2017
BEFORE
THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY
REVIEW PETITION NO. 237/2017 C/W
REVIEW PETITIONS NO.238/2017, 286/2017, 293/2017
IN R.P. NO. 237/2017
BETWEEN:
BLUE FOX
A REGISTERED PARTNERSHIP FIRM
NO.G-80
SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
SRI SHAILESH S NAIK
S/O LATE SRIDHAR NAIK
AGED ABOUT 40
... PETITIONER
(BY SRI JAYAKUMAR S PATIL, SR. COUNSEL, FOR
SRI S. VISHWAJITH SHETTY, ADV.)
AND:
1. MISS CHITRALEKHA THAMBUCHETTY
AGE MAJOR
D/O LATE MR. F THUMBOOCHETTY
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005
2. MR. JOHN RAVIKANTH THUMBOOCHETTY
AGE MAJOR
2
S/O LATE MR. F THUMBOOCHETTY
NO.17, PROMENADE ROAD,
FRAZER TOWN
BENGALURU - 560 005
3. MRS. MARY GEETHANJALI THUMBOOCHETTY
AGE MAJOR
D/O LATE MR. F THUMBOOCHETTY
NO.13/4, BEALE STREET
LIVEPOOL NEW SOUTH EALES
AUSTRALIA
4. MR. BERNARD VIKRAM THUMBOOCHETTY
AGE MAJOR
S/O LATE MR. F THUMBOOCHETTY
NO.16, PROMENADE ROAD,
FRAZER TOWN
BENGALURU - 560 005
5. M/S. D N L ENTERPRISES
79/80, MAHATMA GANDHI ROAD
SHRUNGAR SHOPPING COMPLEX
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
SRI. SHANKAR TAMBRE
AGE MAJOR
6. SRI D L SHIVANNA
AGED MAJOR
FATHER'S NAME NOT KNOW
MANAGING PARTNER
M/S D.N.L. ENTERPRISES
79/80, MAHATMA GANDHI ROAD
SHRUNGAR SHOPPING COMPLEX
BENGALURU - 560 001
3
AND RESIDING AT NO.24
LOWER PALACE, ORCHARDS
BENGALURU - 560 003
7. SMT. ASHA NANJARAJ
W/O SRI D L NANJARAJ
AGE MAJOR
NO.10 APPJAPPA AGRAHARA
CHAMARAJAPET
BENGALURU - 18
8. SRI M G THAMBRRE
AGE MAJOR
FATHERS NAME NOT KNOW
OFFICERS WEAR DEPOT, M G ROAD
BENGALURU - 560 001
9. SMT. AMBABAI THAMBRE
W/O SRI R G TAMBRE
AGE MAJOR
OFFICERS JEWELLARY HOUSE
M G ROAD
BENGALURU - 560 001
10. SMT. INDIRABAI THAMBRE
W/O H G THAMBRE
AGE MAJOR
CITY OFFICERS WEAR DEPOT
GUPTA MARKET, M G ROAD
BENGALURU - 560 009
11. SRI. V CHANDRASHEKAR
S/O SRI Y VENKATARAMAIAH
AGE MAJOR
13TH CROSS, KUMARA PARK
BENGALURU - 560 020
12. SMT. CHANDINI
D/O SRI N CHANDAPPA
AGE MAJOR
NO.10, APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
4
13. SMT. NANDINI
D/O SRI. B CHANDRAPPA
AGE MAJOR
NO.10 APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
14. SMT. SHEELA
D/O SRI N KRISHNAMURTHY
AGE MAJOR
NO.10, APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
15. SMT. MALLIKA
D/O SRI N KRISHNAMURTHY
AGE MAJOR
NO.10, APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
16. SMT. BRUNDA SATHYAPRAKASH
W/O SRI S N SATHYAPRAKASH
AGE MAJOR
R/AT NO.669, 3RD BLOCK
RAJAJINAGAR
BENGALURU - 560 010
17. SRI. S G PUTTARAJU
S/O SRI. S C GOPALAPPA
AGE MAJOR
NO.88 H B SAMAJ ROAD
BASAVANAGUDI
BENGALURU - 560 004
18. SRI SHANKAR
S/O SRI H G THAMBRRE
AGE MAJOR
M/S. THANBRE TEXTILE
MAJESTIC CIRCLE
KEMPEGOWDA ROAD
BENGALURU - 560 009
5
19. SRI STATE GOVERNMENT
BABU
S/O SRI C C GOPALAPPA
AGE MAJOR
NO.88 H B SAMNAJ ROAD
BASAVANAGUDI
BENGALURU - 560 004
20. M/S. SAMPATH KUMARAN AND COMPANY
A PARTNERSHIP FIRM
REGISTERED UNDER INDIAN
PARTNERSHIP ACT
REPRESENTED BY ITS
MANAGING PARTNER
C SRIVATSAN
S/O LATE K C R CHAKRAVARTHY
AGE MAJOR
NO.28/29, SHRUNGER SHOPPING
CENTRE 1ST FLOOR NO.80/1
M G ROAD
BENGALURU - 560 001
21. SRI IRFAN NOOR
S/O LATE NOOR MOHAMMED
MAJOR
BUSINESS CARRYING AT SHOP
PREMISES NO.2
AT SHRUNGER SHOPPING CENTRE
LOCATED AT NO.70/80/21
M G ROAD
BENGALURU - 560 001
22. M/S BLUE LAND STORES
A REGISTERED PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNER
SRI MANJUNATH
S/O SRI R VITTAL KHODAY
AGE MAJOR
SHOP NO.15 GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1, M G ROAD
BENGALURU - 560 001
6
23. M/S. PUSHPANJALI
REPRESENTED BY ITS PROPRIETRIX
SMT. JYOTHI NANDALAL KAPAL
W/O LATE SRI NANDALAL G KAPAL
AGE MAJOR
SHOP NO.47,
GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1 M G ROAD
BENGALURU - 560 001
24. M/S. NOBEL TRADERS
REPRESENTED BY ITS PROPRIETOR
SRI KISHORE B PUJABI
S/O SRI R. BHAJANLAL
AGE MAJOR
SHOP NO.26,
GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1 M G ROAD
BENGALURU - 560 001
25. M/S. INDEX INTERNATIONAL
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.27, SHRUNGER SHOPPING CENTRE
W/O LATE SRI NANDALA G KAPAL
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNERS
SRI K N RAJARAM
26. SMT. NIRMALA C CHHEDA
W/O SRI CHUNNILAL CHHEDA
AGE MAJOR
REPRESENTED BY HER
POWER OF ATTORNEY HOLDER
SRI AMISH CHHEDA
S/O SRI. CHUNNILAL CHHEDA
AGE MAJOR
7
SHOP NO.50, GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1, M G ROAD
BENGALURU - 560 001
27. M/S. MONA GARMENTS
HAVING ITS OFFICE AT
NO.27, SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PROPRIETOR
SRI K R CHRGANI
28. M/S. ARU & DEV,
CHARTERED ACCOUNTANTS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.13 A, SHRUNGER SHOPPING
CENTRE, M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
MR. A ARMUGHAM
29. M/S. ARU & DEV,
CHARTERED ACCOUNTANTS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.13A, 13C AND 13C-1
SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
MR. A ARMUGHAM
30. M/S. NOBLE TRADERS
REPRESENTED BY
8
1. SMT. SHASHI K PUNJABI
W/O LATE SRI KISHORE B PUNJABI
AGE MAJOR
2. SRI GAURAV K PUNJABI
S/O LATE SRI KISHORE B PUNJABI
AGE MAJOR
31. SRI KUSHAL K PUNJABI
S/O LATE SRI KISHORE B PUNJABI
AGE MAJOR
SHOP NO.26,
GROUND FLOOR
SHRUNGER SHOPPING CENTRE
NO.80/1, M G ROAD
BENGALURU - 560 001
32. SMT. SONEELAM CHODHA
W/O ANIL KUMAR
AGE MAJOR
NO.7, SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
...RESPONDENTS
(BY SRI ASHOK B PATIL, ADV. FOR C/R1 TO R3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER DATED
27.04.2017 PASSED IN RFA NO.1056/2016, ON THE FILE OF
THE HON'BLE HIGH COURT OF KARNATAKA, BENGALURU.
9
IN R.P. No. 238/2017
BETWEEN:
1. SRI SURESH CHANDRA
SON OF VARAJLAL KESHAVJEE
AGED ABOUT 68 YEARS
PARTNER, M/S WARDROBE
NO.38 AND 39
SHRUNGER SHOPPING CENTRE
IN PROPERTY
BEARING NO.79/80, M.G. ROAD
BENGALURU
2. SRI CHANDRA S.,
SON OF SRINIVAS
AGED ABOUT 52 YEARS
PROPRIETOR
M/S SHRUNGAR XEROX
HAVING SHOP AT NO.7
GROUND FLOOR
SHRUNGER SHOPPING CENTRE
M.G. ROAD
BENGALURU
... PETITIONERS
(BY SRI JAYAKUMAR S PATIL, SR. COUNSEL FOR
SRI VISHWAJITH SHETTY S, ADV.)
AND:
1. MISS. CHITRALEKHA THAMBUCHETTY
AGE MAJOR
D/O LATE MR. F THUMBOOCHETTY
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005
2. MR. JOHN RAVIKANTH THUMBOOCHETTY
AGE MAJOR
S/O LATE MR. F THUMBOOCHETTY
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU- 560 005
10
3. MRS. MARY GEETHANJALI THUMBOOCHETTY
AGE MAJOR
D/O LATE MR. F THUMBOOCHETTY
NO.13/4, BEALE STREET
LIVEPOOL NEW SOUTH EALES
AUSTRALIA
4. MR. BERNARD VIKRAM THUMBOOCHETTY
AGE MAJOR
S/O LATE MR. F THUMBOOCHETTY
NO.16, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005
5. M/S. D N L ENTERPRISES
79/80, MAHATMA GANDHI ROAD
SHRUNGAR SHOPPING COMPLEX
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
SRI SHANKAR TAMBRE
AGE MAJOR
6. SRI D L SHIVANNA
AGED MAJOR
FATHERS NAME NOT KNOW
MANAGING PARTNER
M/S. D.N.L. ENTERPRISES
79/80, MAHATMA GANDHI ROAD
SHRUNGAR SHOPPING COMPLEX
BENGALURU - 560 001
AND RESIDING AT NO.24
LOWER PALACE ORCHARDS
BENGALURU - 560 003
7. SMT. ASHA NANJARAJ
W/O SRI D L NANJARAJ
AGE MAJOR
NO.10 APPJAPPA AGRAHARA
CHAMARAJAPET
BENGALURU - 18
8. SRI M G THAMBRRE
11
AGE MAJOR
FATHER'S NAME NOT KNOW
OFFICERS WEAR DEPOT
M G ROAD
BENGALURU - 560 001
9. SMT. AMBABAI THAMBRE
W/O SRI R G TAMBRE
AGE MAJOR
OFFICERS JEWELLARY HOUSE
M G ROAD
BENGALURU - 560 001
10. SMT. INDIRABAI THAMBRE
W/O H G THAMBRE
AGE MAJOR
CITY OFFICERS WEAR DEPOT
GUPTA MARKET, M G ROAD
BENGALURU - 560 009
11. SRI V CHANDRASHEKAR
S/O SRI. Y VENKATARAMAIAH
AGE MAJOR
13TH CROSS, KUMARA PARK
BENGALURU - 560 020
12. SMT. CHANDINI
D/O SRI N CHANDAPPA
AGE MAJOR
NO.10, APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
13. SMT. NANDINI
D/O SRI B CHANDRAPPA
AGE MAJOR
NO.10 APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
14. SMT. SHEELA
D/O SRI N KRISHNAMURTHY
AGE MAJOR
NO.10 APPAJAPPA AGRAHARA
12
CHAMARAJPET
BENGALURU - 560 018
15. SMT. MALLIKA, D/O SRI N KRISHNAMURTHY
AGE MAJOR
NO.10 APPAJAPPA AGRAHARA
CHAMARAJPET
BENGALURU - 560 018
16. SMT. BRUNDA SATHYAPRAKASH
W/O SRI S N SATHYAPRAKASH
AGE MAJOR
R/AT NO.669, 3RD BLOCK
RAJAJINAGAR
BENGALURU - 560 010
17. SRI S G PUTTARAJU
S/O SRI. S C GOPALAPPA
AGE MAJOR
NO.88, H B SAMAJ ROAD
BASAVANAGUDI
BENGALURU - 560 004
18. SRI SHANKAR
S/O SRI. H G THAMBRRE
AGE MAJOR
M/S. THANBRE TEXTIULE
MAJESTIC CIRCLE, KEMPEGOWDA ROAD
BENGALURU - 560 009
19. SRI STATE GOVERNMENT BABU
S/O SRI C C GOPALAPPA
AGE MAJOR
NO.88, H B SAMNAJ ROAD
BASAVANAGUDI
BENGALURU - 560 004
20. M/S. SAMPATH KUMARAN
AND COMPANY
A PARTNERSHIP FIRM
REGISTERED UNDER
INDIAN PARTNERSHIP ACT
REPRESENTED BY ITS
13
MANAGING PARTNER
C SRIVATSAN
S/O LATE K C R CHAKRAVARTHY
AGE MAJOR
NO.28/29, SHRUNGER SHOPPING
CENTRE, 1ST FLOOR, NO.80/1 M G ROAD
BENGALURU - 560 001
21. SRI IRFAN NOOR
S/O LATE NOOR MOHAMMED
MAJOR BUSINESS
CARRYING AT SHOP PREMISES
NO.2 AT SHRUNGER SHOPPING CENTRE
LOCATED AT NO.70/80/21
M G ROAD
BENGALURU - 560 001
22. M/S BLUE LAND STORES
A REGISTERED PARTNERSHIP FIRM
REPRESENTED BY ITS PARTNER
SRI MANJUNATH, S/O SRI R VITTAL KHODAY
AGE MAJOR
SHOP NO.15 GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1, M G ROAD
BENGALURU - 560 001
23. M/S. PUSHPANJALI
REPRESENTED BY ITS PROPRIETRIX
SMT. JYOTHI NANDALA KAPAL
W/O LATE SRI NANDALAL G KAPAL
AGE MAJOR
SHOP NO.47, GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1 M G ROAD
BENGALURU - 560 001
24. M/S. NOBEL TRADERS
REPRESENTED BY ITS PROPRIETOR
SRI KISHORE B PUNJABI
S/O SRI. R BHAJANLAL
AGE MAJOR
SHOP NO.26, GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
14
NO.80/1 M G ROAD
BENGALURU - 560 001
25. M/S. INDEX INTERNATIONAL
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.27 SHRUNGER SHOPPING CENTRE
W/O LATE SRI NANDALA G KAPAL
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNERS
SRI K N RAJARAM
26. SMT. NIRMALA C CHHEDA
W/O SRI. CHUNNILAL CHHEDA
AGE MAJOR
REPRESENTED BY HER
POWER OF ATTORNEY HOLDER
SRI AMISH CHHEDA
S/O SRI CHUNNILAL CHHEDA
AGE MAJOR
SHOP NO.50, GROUND FLOOR
SHRUNGER SHOPPING COMPLEX
NO.80/1, M G ROAD
BENGALURU - 560 001
27. M/S. MONA GARMENTS
HAVING ITS OFFICE AT
NO.27 SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PROPRIETOR
SRI K R CHRGANI
28. M/S. ARU & DEV,
CHARTERED ACCOUNTANTS
15
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.13 A, SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
MR. A ARMUGHAM
29. M/S ARU & DEV,
CHARTERED ACCOUNTANTS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.13 A,13 C AND 13C-1
SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
MR. A ARMUGHAM
30. M/S NOBLE TRADERS
REPRESENTED BY
1. SMT. SHASHI K PUNJABI
W/O LATE SRI. KISHORE B PUUJABI
AGE MAJOR
2. SRI GAURAV K PUNJABI
S/O LATE SRI. KISHORE B PUUJABI
AGE MAJOR
3. SRI KUSHAL K PUNJABI
S/O LATE SRI. KISHORE B PUUJABI
AGE MAJOR
SHOP NO.26 GROUND FLOOR
SHRUNGER SHOPPING CENTRE
NO.80/1, M G ROAD
16
BENGALURU - 560 001
31. SMT. SONEELAM CHODHA
W/O ANIL KUMAR
AGE MAJOR
NO.7 SHRUNGER SHOPPING CENTRE
M G ROAD
BENGALURU - 560 001
... RESPONDENTS
(BY SRI ASHOK B PATIL, ADV. FOR C/R1 TO R3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER DATED
27.04.2017 PASSED IN RFA NO.1008/2016, ON THE FILE OF
THE HON'BLE HIGH COURT OF KARNATAKA, BENGALURU.
IN R.P. No. 286/2017
BETWEEN:
M/S. ARU & DEV
CHARTERED ACCOUNTANTS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO. 13A
13C & 13C-1,
SHUNGER SHOPPING COMPLEX
M G ROAD,
BENGALURU - 560 001
REP. BY ITS PARTNER
MR. A ARUMUGHAM
S/O LATE ARUNACHALAM
AGED ABOUT 74 YEARS
... PETITIONER
(BY SRI R B SADASIVAPPA, ADV.)
AND:
1. MISS. CHITRALEKHA THUMBOOCHETTY
D/O LATE SRI F THUMOOCHETTY
AGED ABOUT 71 YEARS
17
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005
2. SRI JHON RAVIKANTH
THUMBOOCHETTY
S/O LATE SRI F THUMBOOCHETTY
AGED ABOUT 68 YEARS
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005
3. MRS. MARY GITHANJALI
THUMBOOCHETTY
D/O LATE SRI F THUMBOOCHETTY
AGED ABOUT 66 YEARS
NO 13/4, BELALE STREET
LIVEPOOL NEW SOUTH
EALES AUSTRALIA
4. SRI BARNAD VIKRAM
THUMBOOCHETTY
S/O LATE SRI F THUMBOOCHETTY
AGED ABOUT 62 YEARS
NO.16 PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005
5. M/S. DNL ENTERPRISES
NO 79/80, M G ROAD
SHRUNGAR SHOPPING COMPLEX
BENGALURU - 560 001
REP. BY ITS PARTNER
SRI SHANKAR TAMBRE
... RESPONDENTS
(BY SRI ASHOK B PATIL FOR C/R1 TO R3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING TO REVIEW ITS ORDER DATED
27.04.2017 PASSED IN RFA NO.1075/2016 BY THIS HON'BLE
18
COURT AND CONSEQUENTLY BE PLEASED TO ALLOW THE
APPEAL FILED BY THE PETITIONER AND BE PLEASED TO SET
ASIDE THE IMPUGNED ORDER IN RFA NO.1075/2016, IN THE
INTEREST OF JUSTICE AND EQUITY.
R.P. NO.293/2017
BETWEEN:
MRS. SONEELAM CHODHA
W/O ANIL KUMAR
AGED ABOUT 65 YEARS
NO.7, SHRUNGAR SHOPPING CENTRE
M.G.ROAD
BENGALURU - 560 001.
... PETITIONER
(BY SRI T.N. RAGHUPATHY, ADV., FOR
SRI. HAREESH BHANDARY T., ADV.)
AND:
1. MISS. CHITRALEKHA THUMBOOCHETTY
D/O LATE MR. F.THUMBOOCHETTY
AGED ABOUT 67 YEARS
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU-560 005.
2. MR. JOHN RAVIKANTH THUMBOOCHETTY
S/O LATE MR. F. THUMBOOCHETTY
AGED ABOUT 64 YEARS
NO.17, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005.
19
3. MRS. MARY GEETHANJALI THUMBOOCHETTY
D/O LATE MR. F. THUMBOOCHETTY
AGED ABOUT 63 YEARS
R/AT NO.13/4, BEALE STREET
LIVEPOOL, NEW SOUTH EALES
AUSTRALIA.
4. MR. BERNARD VIKRAM THUMBOOCHETTY
S/O LATE MR. F THUMBOOCHETTY
AGED ABOUT 58 YEARS
NO.16, PROMENADE ROAD
FRAZER TOWN
BENGALURU - 560 005.
... RESPONDENTS
(BY SRI ASHOK B PATIL, ADV. FOR C/R1 TO R3)
THIS REVIEW PETITION IS FILED UNDER SECTION 114
R/W ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE
ORDER DATED 27.04.2017 PASSED IN RFA NO.1045/2016, ON
THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA,
BENGALURU.
THESE PETITIONS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Respondent Nos. 1 to 4 herein are the plaintiffs in O.S. No.1848/2000 on the file of XI Additional City Civil Judge, Bengaluru City which was filed for recovery of actual vacant possession of the schedule properties 20 from the judgment debtors and also for mesne profits, which came to be decreed. The decree holders filed an execution proceeding No. 142/2014. The petitioners herein, along with other objectors filed objections to the said execution petition. All the objections of these petitioners have been rejected, against which they preferred regular first appeals, which also came to be rejected by this Court on 27.04.2017. Against the said order, Special Leave Petition Nos.15163 and 15164 of 2007 in RFA Nos.1008 and 1056 of 2016, were respectively preferred by the petitioners in R.P. Nos.237 and 238/2017 before the Hon'ble Supreme Court. The Hon'ble Supreme Court on hearing the respective learned counsels, ordered as under:
"The special leave petitions are dismissed as withdrawn with liberty to the petitioners to approach the High Court by filing a review petition. In case the review is decided against the 21 petitioners, they are granted liberty to approach this Court.
Status-quo, as it exists today, shall be maintained for four weeks."
2. The submission of the learned Senior Counsel Sri Jayakumar S. Patil, appearing on behalf of Sri S.Vishwajith Shetty, learned counsel for the petitioners in R.P. Nos.237 and 238 of 2017 is that the Landlord entered into an agreement of lease-deed regarding suit schedule properties with the Lessee on 03.07.1969 and as per Sub Clauses (e) and (f) of Clause 7 of the said agreement, it was permissible to the Lessee to sub-lease the suit schedule properties to Sub-Lessees. Clause 7(f) further clarifies that the Head-Lessee does not lease any portion of the premises for a period beyond the duration of the existing lease, namely 32 years that is from 14.03.1968 and in the event of their holding any deposits from the tenants to make over such deposits to 22 the Lessor if the persons paying the deposits are until in occupation of the leased premises. As per the said clauses of the agreement, the original Lessee can sublet the premises to the present petitioners. Hence, the petitioners are lawfully engaged for all the purposes beyond the lease. When it is the legal position the Landlord has to implead these petitioners as parties. In support of his contention, he referred the Karnataka Rent Control Act, 1961, under which, the Sub-Lessees also are the tenants for the purpose of filing a suit for recovery. Learned Senior Counsel also relied on AIR 1964 SUPREME COURT 1889 in the case of Rupchand Gupta v. Raghuvanshi(Private) Ltd. and another (@ page-SC1892) and submitted that as per the said order the petitioners herein, who are objectors, were to be heard before passing the order and without hearing the objectors passing of an order is contrary to law and in violation of principles of natural justice. Though, clause 7(e) and (f) of the agreement was 23 brought to the notice of the Court, the regular first appeals were rejected. Hence, he submits that review petitions are maintainable with regard to impleading the objectors as necessary parties under Order XLVII Rule 1 of Code of Civil Procedure. Accordingly, learned Senior Counsel submits to recall the order and allow the regular first appeals filed before this Court.
3. Learned Senior Counsel for the petitioner further submits that, as per Section 22 of the Karnataka Rent Control Act, 1961, sub-tenant is also a tenant and to be provided an opportunity of hearing. Hence, he submitted that for the purpose of recovery of possession the petitioners being sub-tenants to be made parties. Here in the instant case the Head-Lessee who had sub- let the suit properties to the petitioners-objectors, hence, these are the persons who are necessary to come on record. Therefore, the suit itself was liable to be rejected, since the objectors were not made parties to 24 the proceedings. It is his further submission that the sub-tenants are tenants under the provisions of Karnataka Rent Control Act and they are tenants for the landlord.
4. He also referred the decision of Supreme Court, reported in (2002)2 Supreme Court Cases 656 in the case of RATAN LAL JAIN AND OTHERS Versus UMA SHANKAR VYAS AND OTHERS and submits that the objectors, to whom the possession was delivered, are not bound by the decree. Sub-lessees have reserved their right to object while execution petition is filed for recovery of possession. Learned Senior counsel further relied on (2007)1 Supreme Court Cases 202 in the case of HOTEL KINGS AND OTHERS Versus SARA FARHAN LUKMANI AND OTHERS, wherein it is held that the Sub-Tenants or Sub-Lessees become tenants on determination of tenancy and decree for possession passed against the Lessee will not bind the sub-lessees. 25 The Sub-Lessees are lawfully inducted into the premises by virtue of clause of the lease-deed and they will not be affected by the decree for possession passed against the original Lessee. Referring the same, learned Senior Counsel submits that, in the present case, as per Clauses 7(e) and (f) of the agreement, the Sub-Lessees are lawfully inducted into the suit properties by virtue of the lease-deed.
5. Sri R.B. Sadasivappa, learned counsel for petitioners in R.P. No.286/2017 by referring the judgment reported in ILR 2012 KAR 5474 in the case of M/s. Laxmi Enterprises vs. The Commissioner, Bruhat Bangalore Mahanagara Palike and Another, submitted that the Lessor entered into an agreement with the Lessee only with regard to the vacant land, thereafter as per the agreement the Lessee put up the construction and these petitioners are Sub-Lessees inducted into the suit properties as such. Under these 26 circumstances, petitioners, who are Sub-Lessees, entered into an agreement with the original Lessee and not with the Lessor. In support of his submission, he relied on Para No.25 of the aforementioned judgment, wherein, it is held as under:
"If the petitioner built on the land leased to him, then, by virtue of the doctrine of dual ownership, he would have the ownership of the building, and if he let out the building, it would not amount to sub-letting of the lease-
hold property, as the lease-hold property was only a vacant land."
6. Learned counsel further relied on the head note of a decision reported (1996) 4 Supreme Court Cases 144 in the case of SAMIR SOBHAN SANYAL Versus TRACKS TRADE PRIVATE LTD. AND OTHERS and submitted that the Sub-Tenants who are inducted into the premises as tenants by virtue of Sub-Clauses (e) and (f) of Clause 7 of the lease-deed, hence, they 27 should have been made parties to the suit and passing the decree without hearing the necessary parties is violation of the agreement. On this ground, he submitted to recall the order passed by this Court in regular first appeal and pray for allowing the same.
7. Learned counsel Sri Hareesh Bhandary T., for the petitioner in R.P. No.293/2017 referred Sub-Clause (j) of Section 108(B) of the Transfer of Property Act, 1882 (T.P. Act) and submitted that the lessee may transfer absolutely or by way of mortgage or sub-lease, the whole or any part, of his interest in the property, and any transferee of such interest or part may again transfer it. As per this provision, Head-Lessee was permitted to sub-lease the suit schedule properties under the agreement between the Landlord and Original Lessee.28
8. Learned counsel Sri Ashok B. Patil for the respondent Nos.1 to 3 submitted to dismiss the review petitions. He contends that as per the submission made by the learned counsels appearing for the petitioners in all the review petitions, referring Order XLVII, Rule 1 of CPC, none of the ingredients, therein, permits the petitioners to take out the ground made in the review petitions and in counter to the submission to the petitioners' counsel, he submitted that though it was permitted to the original Lessee to sub-lease the suit property, there also put up a condition that any sub-lease has to be made within the duration of 32 years, which is the lease period as per lease-deed and after completion of duration of 32 years there is no independent right to the sub-lessees to come on record, for all the purpose they are only tress passers under Section 111(a) of the T.P. Act. Further, he submits that sub-clause (f) of Clause 7 of the agreement clarifies that in the event of sub-leasing, deposit made by the 29 Sub-Lessees, is to make out such deposits to the Lessor, that is to be understood that what are to be transferred to the Lessor, is only deposit, if any, made by the tenant and it cannot be understood that as if tenancy has to be transferred to the Lessor. The submission of learned counsel referring to Section 111 of the T.P.Act is that a lease of immoveable property determines by efflux of time limited thereby. As per the agreement entered into between the Lessor and original Lessee, the stipulated time is 32 years from 14.03.1968. After completion of 32 years, the Sub-
Lessees also have to vacate and handover the possession to the owner of the property. Learned counsel further referred to Sub Clause (q) of Section 108 of T.P. Act, which states that "on the determination of the lease, the lessee is bound to put the lessor into possession of the property".30
9. He further submits that even assuming that the Objectors are Lessees, as per the agreement, they have to handover the possession of the suit properties to the Landlord after efflux of time as per Section 111 of the T.P. Act. Learned counsel referred to AIR 1964 SUPREME COURT 1889 and submitted that the decree against the Lessee bind on the Sub-Lessees and it is further submitted that the Sub-Lessees are aware of all the conditions stipulated in the agreement. He also referred to the judgment reported in-2004(8) Supreme Court Cases 706 - BALVANT N. VISWAMITRA AND OTHERS Versus YADAV SADASHIV MULE (DEAD) THROUGH LRS. AND OTHERS, in which, the decision reported in AIR 1964 Supreme Court 1889 has been referred and it is submitted that the scope of permission to reconsider the matter in whole in review petition, the jurisdiction is only limited and restricted. It cannot be heard as if it is a main matter. In support of the same, learned counsel referred the judgment 31 reported in (2000)7 Supreme Court Cases 296 - DELHI ADMINISTRATION Versus GURDIP SINGH UBAN AND OTHERS and ILR 1987(1) KAR 715 - M. Narayanappa -vs- Hemavathi.
10. Heard the learned counsels appearing for the respective parties.
11. The Sub-Clauses (e)and (f) of Clause 7 of the lease agreement between the Lessor and the Lessee, dated 03.07.1969 read as under:
"7. (e) Not to transfer the lease as such in its entirety to any other party, but the Lessee shall be at liberty to grant such sub- lessees partly or wholly as they may deem fit in conformity with this lease, the intention being that the Lessees herein alone should be directly answerable to the Lessors for the entire duration of the lease.32
(f) Not to lease any portion of the premises for a period beyond the duration of the existing lease, namely, 32 years from 14.03.1968 and in the event of their holding any deposits from the tenants to make over such deposits to the Lessors if the persons paying the deposits are until in occupation of the leased premises"
12. As per the agreement, it is permissible for the Lessee or he is at liberty to create Sub-Lessees, partly or wholly, and the Sub-Clause (f) of Clause 7 further restricts that the permission or liberty given to the original Lessee is for a period not beyond the duration of existing lease period, namely 32 years from 14.03.1968. By reading of Sub-Clauses (e) and (f) of Clause 7, it clarifies that the original Lessee is at liberty to create Sub-Lessees, however the power given under the agreement should be within the duration of lease period, that is, 32 years. The case of the petitioners is that, as right was conferred with the Lessee, these 33 petitioners are inducted as Sub-Lessees and accordingly they have right under the provisions of Karnataka Rent Control Act and as they lawfully inducted into the suit property, they should be heard before passing any order. If the submission made by the learned counsels for the petitioners is examined by a close scrutiny of understanding the Sub-Clauses (e) and (f) of Clause 7 of the agreement, the original Lessee is permitted to create Sub-Lessees for the lease period of 32 years from 14.03.1968 and not beyond the said time. These petitioners ought to have full knowledge about the right which was conferred with the original Lessee for the purpose of sub-leasing. Though these petitioners were rightly inducted as Sub-Lessees, their sub-lease period completes by completion of duration of the lease period. This duration period was to be transmitted to the Sub-Lessees by the original Lessee and it should be well within their knowledge. 34
13. The submission of the learned counsel for the petitioners is that, the Sub Clause (f) of Clause 7 clarifies that while sub-leasing, any deposits made by the Sub-Lessees like these petitioners, is to make over such deposits to the Lessors, which means the deposit made by these petitioners have been transmitted to the Lessors. The said submission has to be examined in the light of the sub Clause (f) of Clause 7. As per the lease-deed, the duration completes after expiry of 32 years from 14.03.1968 and within the said period if any deposit is made by the Sub-Lessees, who are the petitioners herein, that is to be deposited to the Lessor. That cannot be understood as if the tenancy to be transmitted to the Lessor. Under these circumstances, the deposit made by the Sub-Lessees, petitioners herein, might have been transferred to the sub-Lessor. The petitioners' submission in regular first appeals that they are necessary parties and they should have been heard is not correct. The Supreme Court in the 35 decision reported in AIR 1964 SUPREME COURT 1889 at Para 12 has held, the decree in the suit would bind the Sub-Lessee. This may act harshly on the Sub-Lessee, but this is a position well understood by the petitioners when they entered in the suit schedule properties as sub-lessees. The law allows this and so the omission cannot be said to be an improper act. The Sub-Clause (e) and (f) of Clause 7 of the lease-deed enables the Lessee to create Sub-Lessees, but the duration thereof could not extend beyond 32 years as per the lease-deed. After completion of 32 years these petitioners will not get any independent right as Original-Lessee. These are facts covered while disposing of the regular first appeals. In the judgment referred by the petitioners reported in (2007) 1 Supreme Court Cases 202 the issue involved is under the provisions of Bombay Rent Act, which is not helpful in the present case. What the Supreme Court stipulated is as Sub-Lessees will become a tenant of 36 the Landlord on the same terms and conditions if the tenancy continued. This judgment is not applicable to the facts and circumstances of the present case as the facts and circumstances here are different. In the instant case, the Sub-Clauses (e) and (f) of Clauses 7 of the lease-deed clarify that the Head-Lessee can create Sub-Lessees, but it should be within the stipulated period.
14. Another judgment referred by Sri R.B. Sadasivappa, appearing for the petitioner in R.P. No.286/2017 - reported in (1996)4 Supreme Court Cases 144 where the lease entered into between the parties is in respect of vacant land. They become Lessee in respect of the building, the same also examined in the light of the agreement entered into between the parties. The terms and conditions are referred therein and parties have to act according to the agreement entered into.
37
15. Further, the judgment referred by Sri R.B. Sadasivappa, reported in ILR 2012 KAR 5473, with regard to the head-note, wherein, it is held that "If the petitioner built on the land leased to him, then, by virtue of the doctrine of dual ownership, he would have the ownership of the building, and if he let out the building, it would not amount to sub-letting of the lease-hold property, as the lease-hold property was only a vacant land." However, in Para 25 of the judgment it is held as under:
"In the instant case, the Corporation is the owner of the land. Under the lease deed at Annexure'C' the petitioner was put in possession of the said land. It was a term lease for 60 years under which the petitioner was permitted to put up a construction. The petitioner has constructed a multi-storied complex thereon as per the plan sanctioned by the Corporation. None of the clauses in the lease deed positively state that the building to be erected on the demised land 38 would be in the ownership of the Corporation. There was no impediment in the way of the parties to have had a clause in a positive form to that effect. In the absence of such a clause, it cannot be said that the Corporation is the owner of the building. By virtue of the doctrine of dual ownership, the petitioner has become the owner of the building. The petitioner has not violated any of the conditions of the lease. The lease of the building by the petitioner in favour of third parties did not amount to sub-letting as the lease hold property was only the land. On this ground, the Corporation cannot evict the petitioner from the land and the building in question. On the expiry of the period of lease, the building constructed by the petitioner will vest with the Corporation free from all encumbrances. If the petitioner violates any of the terms of the lease insofar as the land is concerned, it can be evicted from the land and the building notwithstanding the un- expired period of lease".39
16. The judgment referred above does not support the case of the petitioners herein. Considering the findings and submissions made by the learned counsels for the parties, the case of the petitioners have been considered by this Court while disposing of the regular first appeals and I do not find any error apparent on the face of the order.
17. After considering the matter in detail and depth, the matter is fully discussed at the time of disposing of the regular first appeals and when it is done by this Court while disposing of the appeals, now it may not be proper to re-consider the same. I do not find any scope for interference.
Accordingly, review petitions are dismissed.
Sd/-
JUDGE SBS