Karnataka High Court
Pushpa B Kinger vs M/S Roopalee Agencies on 14 August, 2018
Author: S G Pandit
Bench: S G Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR.JUSTICE S G PANDIT
WRIT PETITION Nos.26865/2018 &
27059-27060/2018 (GM CPC)
BETWEEN
PUSHPA B. KINGER
W/O LATE BIHARILAL L. KINGER,
AGED ABOUT 78 YEARS,
R/AT 168, COMMERCIAL STREET,
BENGALURU-560001. ... PETITIONER
(BY SRI. N VASUDEVAN, ADV.)
AND
1. M/S ROOPALEE AGENCIES
REGISTERED PARTNERSHIP FIRM,
REPRESENTED BY ITS PARTNERS
A) HAMANTH CHOTTABHAI
B) NEELESH BHARATH
R/A NO.168, COMMERCIAL STREET,
BENGALURU-560001.
2. MANOJ B. KINGER,
S/O LATE BIHARILAL L. KINGER,
AGED ABOUT 48 YEARS,
NO.168, COMMERCIAL STREET,
BENGALURU-560001. ... RESPONDENTS
(BY SRI. MANIAN K B S, ADV. FOR C/R1 (A & B))
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
2
QUASH THE ORDER DTD:14.06.2018 VIDE ANNEXURE-E AND
22.6.2018 PASSED ON THE IAS FILED BY THE PETITIONER
VIDE ANNEXURE-F UNDER SECTION 148 READ WITH
SECTION 151 CPC AND APPLICATION UNDER SECTION 151
CPC TO LEAD EVIDENCE AND ORDER DTD:22.6.2018 BY
ISSUING DELIVERY WARRANT IN EX NO.25082/2016 VIDE
ANNEXURE-G ON THE FILE OF THE XXVI ADDL. CITY CIVIL
AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU [CCH-
20] AND SUBSEQUENTLY ALLOW THE SAID IAS AND SET
ASIDE THE ORDER DTD:22.6.2018 BY ISSUING A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, DIRECTION
OR ORDER.
THESE WRIT PETITIONS COMING ON FOR 'ORDERS'
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though the writ petitions are listed for orders, with the consent of the parties the writ petitions are taken up for final disposal.
2. The petitioner is before this court under Article 227 of the Constitution of India challenging the order dated 14.06.2018 (Annexure-E) on I.A. filed under Section 148 of Code of Civil Procedure and order dated 22.06.2018 passed on I.A. filed under Order 17 Rule 1 of the Code of Civil Procedure in Execution No.25082/2016 on the file of XXVI Addl. City Civil & Sessions Judge, Mayohall Unit, Bengaluru. The petitioner and respondent No.2 herein are 3 judgment debtors and respondent No.1 is decree holder in Execution No.25082/2016 filed to execute the judgment and decree dated 05.12.2015 passed in O.S. No.25070/2010. In the execution the Judgment Debtor filed I.A. under Section 148 of Code of Civil Procedure seeking extension of time to vacate the schedule premises up to 21.04.2019 and another I.A. under Order 17 Rule 1 of Code of Civil Procedure to lead evidence in the execution. Both applications were rejected by the executing court by order dated 14.06.2018 and 22.06.2018 respectively which are impugned in the writ petition.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents, perused the writ papers.
4. The learned counsel for the petitioner submits that the trial court has not considered the contents of the affidavits filed in support of I.A. filed under Section 148 of Code of Civil Procedure and the order passed by the trial court is not proper and one sided. It is his further submission that in the undertaking filed before the 4 executing court instead of 21.04.2019 it is typed as 21.04.2018 and the said fact should have been taken note of by the executing court while passing the orders on the applications. Further the learned counsel for the petitioner contends that the trial court erred in denying the petitioner to lead evidence in the execution petition. Further it is his contention that without giving any opportunity the application has been rejected and delivery warrant has been issued.
5. Per contra the learned counsel for the respondent-decree holder submits that the trial court in O.S. No.25070/2010 passed judgment and decree on 05.12.2015 directing the judgment debtors-defendants, among other directions to hand over vacant possession of the suit schedule premises to the plaintiff and granted six months time from the date of the order to hand over the vacant possession of the suit schedule premises to the plaintiff. The six months time granted by the trial court expired on 06.06.2016 and thereafter, execution petition to execute the judgment dated 05.12.2015 was filed wherein 5 the executing court issued delivery warrant on 12.08.2016. Immediately thereafter obstruction application was filed by grand-daughter of the judgment debtor in execution proceedings. After hearing the parties the trial court by order dated 07.02.2017 rejected the obstruction application. Thereafter, the judgment debtor filed Misc. Petition No.25122/2016 to set-aside the judgment and decree dated 05.12.2015 and also sought for stay of judgment and decree by filing a separate application. The said application for stay was rejected by the trial court. Thereafter, on 03.07.2017 the judgment debtor filed an affidavit undertaking before the executing court undertaking to vacate and hand over possession of the suit schedule premises by 20.04.2018 and withdrew the Misc. Petition. But even after 20.04.2018 the judgment debtor did not vacate and hand over vacant possession of the suit schedule premises. Therefore, the decree holder filed an application in the execution petition for issuance of delivery warrant. Thereafter, on 24.04.2018 the judgment debtor filed an application-I.A. under Section 148 of Code of Civil Procedure seeking extension of time to vacate and hand 6 over vacant possession till 21.04.2019. It is his submission that Section 148 of Code of Civil Procedure is not applicable to the facts of the case and also he further submits that once the judgment debtor undertakes to vacate and hand over vacant possession, one should abide by the said undertaking given to the court. Therefore, he submits that the trial court has rightly rejected the application filed by the judgment debtor seeking extension of time. Further he submits that the question of adducing evidence would not arise as the judgment debtor has undertaken to vacate and hand over the vacant possession by 21.04.2018.
6. The counsel for the respondent has filed memo dated 14.08.2018 i.e. today before the court, stating that in pursuance to the execution proceedings delivery of the suit schedule premises has been taken on 27.06.2018 and execution petition is closed on 21.07.2018 endorsing that the decree has been fully executed.
7. The question that would arise for consideration is as to whether the trial court is justified in rejecting the 7 application filed by the judgment debtor under Section 148 of the Code of Civil Procedure seeking extension of time to vacate the premises under the facts and circumstances of the case.
8. It is an admitted fact that the judgment debtor suffered judgment and decree in O.S. No.25070/2010 which has attained finality, no appeal is filed by the judgment debtors-defendants. The operative portion of the judgment reads as follows:-
"ORDER Suit of the Plaintiffs Firm is hereby decreed with costs.
2) Defendants-1 and 3 are hereby directed to hand-over the vacant possession of the suit schedule premises to the Plaintiffs Firm and further defendants-1 and 3 are also directed to pay a sum of Rs.8,91,961/- [Rupees Eight Lakhs, Ninety One Thousand, Nine Hundred and Sixty One only] to the Plaintiffs Firm towards the arrears of commission at the agreed rate of 10% on daily/monthly turnover and further defendants-1 and 3 are hereby directed to pay the damages to the Plaintiffs Firm from December-2009 till handing over the vacant possession of the suit schedule premises to the plaintiffs at the agreed rate of 10% commission on daily/monthly turnover.8
3) Defendants-1 and 3 are hereby granted 6 [Six] months time from the date of this Order to hand-over the vacant possession of the suit schedule premises to the Plaintiffs Firm.
4) Draw decree accordingly."
9. It is also not in dispute that the decree holder filed execution on 11.08.2016 and on 12.08.2016 delivery warrant was issued. Further obstruction petition was filed by Smt. Ritika, grand-daughter of the judgment debtor obstructing execution of judgment and decree dated 05.12.2015. After hearing both sides the said obstruction application came to be rejected by order dated 07.02.2017.
The said order has also become final as neither the judgment debtor nor the obstructor have challenged the said order. Thereafter, Misc. Petition No.25122/2016 is filed by the judgment debtor-petitioner herein on 07.09.2016 along with said Misc. Petition an application for stay of the judgment and decree dated 05.12.2015 also came to be filed which was rejected by the trial court. Subsequently the judgment debtor Smt. Pushpa B. Kinger files undertaking affidavit dated 03.07.2017 before the executing court, undertaking to hand over vacant 9 possession of the suit schedule premises on or before 20.04.2018 and further it is undertaken that if the decree holder were to report, the non delivery of the suit schedule premises on 21.04.2018, without notice the decree holder could execute delivery warrant. The affidavit undertaking filed by the judgment debtor Smt. Pushpa B. Kinger reads as follows:-
"UNDERTAKING AFFIDAVIT We, Pushpa B Kinger, W/o Late Biharilal L Kinger, aged about 76 years, proprietor of M/s. Ritikas, No.168, Commercial Street, Bengaluru 560 001 and Manoj B Kinger, S/o Late Biharilal L Kinger, aged about 47 years, M/s Ritikas, No.168, Commercial Street, Bengaluru 560 001 do hereby solemnly affirm and state on oath as follows:-
1. We state that we are the JDR No.1 and 2 respectively in the above Petition. We state that by a Judgment and decree dated 05/12/2015 in OS No.25070/2010 this Hon'ble court had granted a decree in favour of the Decree Holder and against us directing us to vacate and hand over vacant possession of the Suit Schedule Premises within 6 months, that is on or before 04th June 2016 to the Decree Holder. We were further directed to pay the arrears of license fees and to continue to pay the 10% license fees on the monthly turnover until handing 10 over of the possession to the Decree Holder.
2. We state that we are bound by the said Judgment and decree, however we have failed to comply with the directions therein by failing to vacate and handover vacant possession of the said premises to the decree holder on or before 04th June 2016. We had also defaulted in the payment the decretal amounts.
3. We hereby undertake to the court to unconditionally hand over vacant possession of the suit schedule premises to the Decree Holder on or before the (twentieth) 20th of April 2018.
4. We have paid up the arrears of license fees as on 16th June 2017 in a sum of Rs.3,89,689/- (Three lakhs eighty nine thousand six hundred and eighty nine) vide cheques bearing Nos.599185 & 599187 dated 31/07/2017 and 01/09/2017 for a sum of Rs.2,00,000/- and Rs.1,89,689/- respectively.
5. We undertake to the court to continue to pay the license fees as decreed at the rate 10% of the monthly sales turnover with effect from 17th June 2017 until vacating and handing over of the vacant possession as per clause 3 above, by the end of the month by remitting the said amount into the current account of the Decree Holder with Union Bank of India, Cantonment Branch, Commercial Street, Bangalore 560 001 bearing account number 331101010028072.11
6. We undertake to the court not to induct any third person into the suit schedule premises or any portion thereof.
7. We further decree that in the event of any of our above undertakings are breached the same shall tantamount to deliberate breach of undertaking to the court and that we shall be held guilty of contempt of court and we are liable to be prosecuted and punished for the same.
8. We further pray that this Hon'ble Court may be pleased to issue a delivery warrant for delivery of the suit schedule premises by break open of lock, to the decree holder with the assistance of the jurisdictional police to deliver the suit schedule premises to the Decree Holder in the event the Decree Holder were to report to this court on 21st April 2018 of the non delivery of the suit schedule premises or in the event the Decree Holder were to report to the court any default in the payment of license fees as undertaken above during the period until 21st April 2018 by advancing the matter and without court notice to us.
9. We hereby unconditionally withdraw the miscellaneous petition bearing Misc No.25122/2016 and pray that the same may be dismissed as not pressed in view of undertaking to be bound by the Judgment and decree dated 05/12/2015 is OS No.25070/2010.
10. We hereby unconditionally express no objection to the above execution Petition being allowed and withdraw all our objections to the same."12
10. Taking note of the affidavit undertaking that the judgment debtor would vacate and hand over vacant possession on or before 20.04.2018 the execution petition was closed. As the judgment debtor did not vacate the suit schedule premises by 20.04.2018, the decree holder filed an application on 21.04.2018 for issuance of delivery warrant. Immediately thereafter on 24.04.2018 the judgment debtor files an application under Section 148 of the Code of Civil Procedure seeking extension of time till 21.04.2019 to vacate the suit schedule premises. The contention of the judgment debtor that the trial court has not taken into consideration the contents of the affidavit in support of the said application and the order passed by the trial court is one sided cannot be accepted for the reason that the above sequence of events would make it clear that the conduct of the judgment debtor that his intention was only to drag on the proceedings. The trial court by its reasoned order has rejected the application filed by the judgment debtor under Section 148 of Code of Civil Procedure. The trial court has taken note of the time granted under the judgment and decree and subsequent 13 undertaking filed by the judgment debtor. Further the trial court has also observed that the affidavit undertaking is filed in the open court and the judgment debtor was present before the court. The further contention that there is typographical error that instead of 21.04.2019 it is typed as 21.04.2018 in the affidavit of undertaking, is liable to be rejected for the reason that, on going through the affidavit undertaking at paragraph 3 it is clear that the judgment debtor has undertaken to hand over vacant possession of the suit schedule premises to the decree holder on or before 20.04.2018. Further in paragraph (8) the deponent/judgment debtor further makes it clear that if the judgment debtor fails to hand over possession by 21.04.2018 it is open for the decree holder to seek delivery warrant without notice to the judgment debtor. Moreover, it is noticed that the judgment debtor 1 and 2 have signed the said undertaking and it is notarized on 03.07.2017. Both the judgment debtors have signed the undertaking affidavit on each page in the English language. Therefore, contention of the judgment debtor that there is a typographical error that instead of 21.04.2019 it was typed 14 as 21.04.2018 cannot be believed and it is only a ground to drag on the proceedings and with an intention to continue with possession of the suit schedule premises the said ground has been taken. Further, the contention of the petitioner that the trial court has erred in dismissing his application for leading evidence in the execution petition is also liable to be rejected. When the affidavit undertaking is on record which is clear as to the date of vacation of the suit schedule premises there is no necessity to adduce evidence in the execution. The trial court has rightly rejected the said application. The affidavit undertaking is filed before the executing court on 03.07.2017. The judgment debtor kept quiet all along and only when delivery warrant was issued on 21.04.2018, he comes up with contention that there is typographical error in the affidavit undertaking. Having kept quiet for more than nine months only when the delivery warrant is issued, the petitioner has come up with the said contention which cannot be believed. A person who files affidavit undertaking should always abide by the said undertaking and one should not try to escape from such undertaking. 15 The undertaking given to court shall be respected and it should have sanctity. The court shall not come to the aid of person who intentionally or deliberately violates the undertaking given to court.
11. The counsel for the decree holder-respondent as stated above has filed a memo dated 14.08.2018 stating that the possession of the suit schedule premises has been taken through court process on 27.06.2018 and execution petition is closed on 21.07.2018. In view of my above discussion, I am of the view that the petitioner has not made out any ground to interfere with the order passed by the trial court under Article 227 of the Constitution of India.
Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE Chs* CT-HR