Karnataka High Court
Sri. K.M. Khalendar Since Dead By Lrs ... vs Sri. K.M.S. Imtiyaz Saleem on 15 September, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.14852 OF 2016 (GM-CPC)
BETWEEN:
SRI K.M. KHALENDAR
SINCE DEAD BY LRS.,
1(a) NASEEMA
AGED ABOUT 63 YEARS
W/O LATE K.M.KHALANDER
1(b) K.M.ZAMEER
AGED ABOUT 47 YEARS
S/O LATE K.M.KHALANDER
1(c) Y.MUBEENA TAJ
AGED ABOUT 43 YEARS
D/O LATE K.M.KHALANDAR
W/O YAJAAZ AHMED
R/AT 1ST CROSS, KHANAKANAGAR,
NEAR WATER TANK,
GANGAMMAGUDI ROAD,
HOSKOTE,
BENGALURU RURAL DISTRICT.
1(d) K.M.NADEEM
AGED ABOUT 36 YEARS,
S/O LATE K.M.KHALANDAR
1(e) K.SHABEEN TAJ
AGED ABOUT 35 YEARS,
2
D/O LATE K.M.KHALANDAR
W/O M.KHALANDAR
R/AT NEW MOHIDEENIYA BUILDING HOUSE,
B.H. ROAD, TIPTUR,
TUMKUR DISTRICT.
1(f) K.MOHSEENA RAJ
AGED ABOUT 33 YEARS,
D/O LATE KHALANDAR
1(g) K.M.WASEEM
AGED ABOUT 28 YEARS,
S/O LATE K.M.KHALANDAR
1(h) K.M.FAHEEM
AGED ABOUT 28 YEARS,
S/O LATE K.M.KHALANDAR
1(i) K.RUMEZA TAJ
AGED ABOUT 24 YEARS,
S/O LATE K.M.KHALANDAR
PETITIONERS 1(a), 1(b), 1(d)
AND 1(f) TO 1(j) ARE RESIDING AT
NO.10, R.K.LANE,
7TH CROSS, COTTONPET,
BENGALURU-560053.
...PETITIONERS
(BY SRI. ABHINAV R., ADVOCATE)
AND:
1. SRI. K.M.S. IMTIYAZ SALEEM
AGED ABOUT 46 YEARS,
S/O. SRI. M. SALAUDDIN,
2. SRI. K. SHAHEEN TAJ
AGED ABOUT 42 YEARS,
D/O. SRI. K.M.S. IMTIYAZ SALEEM,
3
3. SRI. K.M.I. IMRAN SALEEM
AGED ABOUT 23 YEARS,
SRI. K.M.S. IMTIYAZ SALEEM,
4. KUM. K.M.I. ZAFREEN SALEEM
AGED ABOUT 20 YEARS,
D/O. SRI. K.M.S. IMTIYAZ SALEEM,
5. KUM. K.M.I. AFREEN SALEEM
AGED ABOUT 20 YEARS,
D/O. SRI. K.M.S. IMTIYAZ SALEEM,
MINOR REPRESENTED BY HER
FATHER AND NATURAL GUARDIAN,
S/O SRI. K.M.S.IMTIYAZ SALEEM
ALL ARE RESIDING AT
MALANG VILLA, NO.28,
HARRIS ROAD, BENSON TOWN,
BENGALURU-560046.
...RESPONDENTS
(BY SRI. H.V.KRISHNAMURTHY, ADVOCATE FOR
SRI. H.P.LEELADHAR, ADVOCATE FOR RESPONDENT NOS.1 TO
5
CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED
11.07.2018)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 19.12.2015 PASSED BY THE XVI ADDITIONAL JUDGE,
COURT OF SMALL CAUSES AT BANGALORE CITY (SCCH-14) IN
S.C.NO.45/2015 AT ANNEXURE-K AND STAY FURTHER
PROCEEDINGS IN S.C.NO.45/2015 BY ALLOWING THE I.A.
FILED UNDER SECTION 151 READ WITH SECTION 10 OF THE
CODE OF CIVIL PROCEDURE, 1908 AT ANNEXURE-F DATED
19.11.2015.
THIS PETITION COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
The legal representatives of the deceased defendant in S.C. No.45/2015 before the XVI Additional Judge, Court of Small Causses, Bengaluru City (SCCH-14), have filed this writ petition challenging an Order dated 19.12.2015 passed therein, by which, an application filed by the defendant under Section 151 read with Section 10 of the Code of Civil Procedure, 1908 (for short the 'CPC') was rejected.
2. The petitioner (since deceased) filed O.S. No.2224/2009 before the Court of City Civil and Sessions Judge, Bangalore, for specific performance of an agreement of sale dated 24.11.2011, allegedly executed by respondents herein and three others. The petitioner claimed that he was earlier a licencee in occupation of the suit schedule property and thereafter agreed to purchase the suit property from the respondents and three others and they allegedly failed to complete their part of the contract. Hence, he filed the said suit for specific 5 performance of the agreement of sale. The respondents herein and three others contested the suit and claimed that the agreement dated 24.11.2001 set up by the petitioner (since deceased) was spurious and that he was not entitled to the reliefs sought for in the suit.
3. Later, the respondents herein filed suit in S.C. No.45/2015 for ejectment of the petitioner herein from the suit schedule property. At that stage, the petitioner (since deceased) filed an application in S.C. No.45/2015 to stay the proceedings therein, in view of the pendency of the suit in O.S. No.2224/2009. The Trial Court held that the proceedings in O.S. No.2224/2009 were different from the proceedings in S.C. No.45/2015 and also that the property involved in both the proceedings were different. Hence, it rejected the said application in terms of the Order dated 19.12.2015.
4. Feeling aggrieved by the same, the present writ petition is filed.
6
5. The learned counsel for the petitioner submitted that the suit in O.S. No.2224/2009 filed for specific performance, the petitioner (since deceased) had specifically pleaded that he was placed in possession of the suit schedule property. Therefore, the question whether he was in possession of the suit property in part performance of the aforesaid agreement of sale or whether he was a licencee in possession had to be determined in the suit and unless the said issue was conclusively decided, Small Causes Court could not render a finding on the said aspect. He submitted that if both the suits are proceeded then there is a likelihood of conflicting judgments. He invited the attention of this Court to a judgment of a coordinate Bench of this Court in Deen Perfumery Company, Bangalore v. Naeemuddin Gafar [AIRKARR-2018-4-700]. He further contended that any contra opinion would result in confusion regarding applicability of Section 10 of the CPC., in such a situation. He further submitted that the Small Causes Court cannot adjudicate the question whether the respondents herein 7 had executed an agreement of sale in favour of the petitioner herein and whether possession was delivered to him under such an agreement. He, therefore, submitted that in the fitness of things, the suit (O.S. No.2224/2009) for specific performance should first be decided by the City Civil Court and thereafter, the suit (S.C. No.45/2015) for ejectment could be taken up for consideration by the Small Causes Court. He also relied upon the judgment of a coordinate Bench of this Court in L.C. Prakash v. L.R. Yogesha and others [LAWS (KAR)-2015-12-236].
6. Per contra, the learned counsel for the respondents submitted that the suit for ejectment was largely different from a suit for specific performance. He contended that the respondents herein had not admitted the execution of the agreement of sale propounded by the petitioner herein (since deceased) and therefore, they did not accept that the petitioner was in possession of the suit property in part performance of the agreement of sale. On the contrary, he submits that the petitioner has admitted 8 that he entered possession of the suit property as a tenant but later, claimed to be a purchaser under an agreement of sale dated 24.11.2011. He further submitted that the proceedings in both the suits were distinct and different and were not interdependent and therefore, both the suits could be parallelly proceeded with. He also submitted that the Court of the City Civil and Sessions Judge, Bangalore in O.S. No.2224/2009 cannot pass a decree of ejectment in the event of the respondents herein making a counter claim in the said suit.
7. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for respondents.
8. The suit in O.S. No.2224/2009 was filed for the following reliefs:
"i) A decree of specific performance directing the defendants to jointly execute an absolute sale deed in respect of suit schedule property in favour of the plaintiff by receiving the balance sale consideration of Rs.15,37,700 and hand over all the original documents of title. Upon failure on the part of the 9 defendants to execute an absolute sale deed as sought for supra, then for appropriate orders for the sale deed to be executed through the court.
ii) If for some reason the court were decline the relief of specific performance, direct the defendants to refund the sum of Rs.5,00,000-00 together with interest @ 15% per annum and to further pay damages in a sum of Rs.15,37,700/- together with current and future interest.
ii) Grant costs and
iv) Grant such other reliefs as deemed fit by this Hon'ble Court in the facts and circumstances of the case."
9. The respondents do not admit the execution of the agreement of sale dated 24.11.2011, but claim that the said agreement is spurious. Since the ownership of the suit property is not in dispute, the respondents filed S.C. No.45/2015 for ejectment of the petitioner from the suit schedule property asserting that the petitioner was a tenant in occupation of the suit property and that his tenancy was terminated by a notice dated 25.11.2014. It is, therefore, clear that the reliefs sought for by the petitioner (since deceased) in O.S. No.2224/2009 and the 10 reliefs sought for by the respondents herein in S.C. No.45/2015 were independent and could be proceeded with.
10. Section 10 of the CPC., which relates to stay of trial in suits reads as follows:
"10. Stay of suit.-No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."
11. The Apex Court in the case of National Institute of Mental Health And Neuro Sciences v. C. Parameshwara [AIR 2005 SC 242] held in para No.8 as under:
"8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of 11 the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."12
12. In view of the Judgment of the Hon'ble Supreme Court in National Institute of Mental Health And Neuro Sciences's case (referred supra), the law laid down by the coordinate Bench of this Court in Deen Perfumery Company's case (referred supra) is not the correct position of law as in that judgment, it was assumed that if a suit for specific performance fails, then the trial of the ejectment suit can be restored. Hence, the judgment of the coordinate Bench of this Court in Deen Perfumery Company's case (referred supra) is per incuriam and does not propound the correct position of law. Likewise, in L.C. Prakash's case relied upon by the learned counsel for the petitioner, there were two suits between the parties. The first suit, O.S. No.343/2013 was for declaration and for perpetual injunction while defendant in the said suit filed a suit in O.S. No.176/2015 for perpetual injunction and therefore, this Court held that the issue in both the suits were similar and the trial in the subsequent suit was rightly stayed. The judgment of the coordinate Bench of this Court in L.C. Prakash's case (referred 13 supra) is clearly distinguishable on facts and is not applicable to the case on hand. In the present case, the suit for ejectment could proceed independently and suit for specific performance could also be decided independently and Section 10 of the CPC, is clearly not applicable as reliefs in both the suits are separate and distinct. In that view of the matter, the impugned Order passed by the Small Causes Court cannot be faulted.
This Writ Petition lacks merit and same is dismissed. All contentions of the parties are left open.
Sd/-
JUDGE sma