Karnataka High Court
M/S Pyramid Entertainment (India) Pvt ... vs Smt Divya Devi on 3 January, 2018
Equivalent citations: (2018) 2 ICC 469, AIR 2018 KARNATAKA 93, AIR 2018 KAR 93, 2018 (1) AKR 738, (2018) 2 RENCR 165, (2018) 1 RENTLR 369, (2018) 3 CIVILCOURTC 141
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.1375 OF 2016 c/w
REGULAR FIRST APPEAL No.1376 OF 2016
IN REGULAR FIRST APPEAL No.1375 OF 2016
BETWEEN
M/s. Pyramid Entertainment,
[India] Pvt. Ltd.
A Company registered under
Company Registration Act 1956.
And having its registered
Office at No.110,
Kengal Hanumantaya Road,
Bangalore-560027.
Represented by its
Managing Director
Smt. Anita Vasant. ...Appellant
(By Sri. Anil Kumar Shetty, Advocate, for Sri S.Shaker
Shetty, Advocate)
AND
Smt. Divya Devi
W/o. Shri Prem Singh,
Aged 63 years,
Residing at No.127,
Golf Links, New Delhi.
Presently R/at 20,
4th Floor, 1st Main,
2
Jaymahal Extension
Bengaluru-560046. ...Respondent
(By Sri. Sachith Kumar Sahijpal, Advocate, for
Sri Sachin.V.R., Advocate)
This RFA is filed under Section 96 of CPC., against the
order dated 13.07.2016 passed on IA in Ex.No.1094/2015
on the file of the XXVII Additional City Civil Judge,
Bengaluru (CCH-9), dismissing the IA filed under Order 21
Rule 97 of CPC., to Adjudicate their right over the suit
schedule property.
IN REGULAR FIRST APPEAL No.1376 OF 2016
BETWEEN
M/s. Belur Enterprises
Partnership firm having its
Office at No.1041,
Devaparthiva Road,
Chamarajpuram, Mysuru-570002.
Represented by its Partner
Uma Keshavan @ Anitha Vasath. ...Appellant
(By Sri. Anil Kumar Shetty, Advocate, for Sri S.Shaker
Shetty, Advocate)
AND
Smt. Divya Devi
W/o. Shri Prem Singh,
Aged 63 years,
Residing at No.127,
Golf Links, New Delhi.
Presently R/at 20,
4th Floor, 1st Main,
Jaymahal Extension
Bengaluru-560046. ...Respondent
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(By Sri. Sachith Kumar Sahijpal, Advocate, for
Sri Sachin.V.R., Advocate)
This RFA is filed under Section 96 of CPC., against the
order dated 13.07.2016 passed on IA in Ex.No.1094/2015
on the file of the XXVII Additional City Civil Judge,
Bengaluru (CCH-9), dismissing the I.A. filed under Order 21
Rule 97 of CPC., to adjudicate their right over the suit
schedule property.
These RFAs having been heard and reserved on
05.12.2017, coming on for pronouncement this day, the
Court pronounced the following :
JUDGMENT
These two appeals are disposed of by this judgment as they arise from the order passed by the XXVII Additional City Civil Judge (CCH9), in Execution Petition 1094/2015. The appellants are two of the objectors out of six under Order XXI Rule 97 of the Code of Civil Procedure ('CPC' for short). The events that led to preferring these two appeals are as follows :-
2. The respondent instituted a suit, O.S.836/1981, for ejecting her tenant, namely Vasanth Color Laboratories Private Limited and obtained a 4 decree. She also initiated execution proceedings to take possession. The executing court issued delivery warrant on 15.10.2015 and this was challenged by the judgment debtor by filing writ petition 46319/2015 before this Court. The said writ petition was dismissed with exemplary costs of Rs.10,000/-. Aggrieved by this order, the judgment debtor approached the Supreme Court by filing Special Leave Petition, SLP 5557/2016 and it was also dismissed on 4.3.2016 directing the judgment debtor to file an undertaking that it would vacate the suit schedule property on or before 30.6.2016. Accordingly, the judgment debtor filed an undertaking affidavit before this court. On 30.6.2016, the judgment debtor got the execution case preponed and on that day the judgment debtor's advocate handed over keys of a property admeasuring 5500 sq ft, but the total measurement of the suit schedule property or the decreed schedule property is 46,500 sq ft. The judgment debtor surrendered a portion of the suit 5 schedule property and still possession of property measuring 41,000 sq ft was to be handed over to the decree holder. The judgment debtor filed an affidavit stating that some of the portions of the suit schedule property were under the occupation of tenants inducted by it even before the order was passed by the Supreme Court and it was also stated that they were all lawfully sub-tenants and that they had made application under Order XXI Rule 97 CPC showing resistance to evicting them from the portions under their occupation. The executing court dismissed the applications under Order XXI Rule 97 CPC and hence these two appeals.
3. I have heard the arguments of the learned counsel for the appellants and the respondent.
4. It was the argument of the learned appellants' counsel that the appellants were lawful sub-tenants.
The lease deed between the decree holder and the judgment debtor provided for subletting. Actually, the 6 property leased to the judgment debtor was a vacant land; it was the judgment debtor who constructed a building and sub-leased some portions of the said building. The learned counsel submitted that after the decree holder terminated the tenancy of the judgment debtor, the appellants became the tenants in accordance with Section 106 of the Transfer of Property Act. They should have been made parties to the suit. Since they were not parties to the suit and that they have independent right in respect of the portions subleased to them, they have independent right. Their application under Order XXI Rule 97 CPC should not have been dismissed by the executing court without holding enquiry. The executing court did not raise proper questions for discussion. The appellants have every right to object to the execution and that the decree holder cannot take possession from them. He also argued that since the dispute between the decree holder and the judgment debtor commenced in the year 1981, 7 the provisions of the Karnataka Rent Control Act are applicable and Section 32 of the Karnataka Rent Act protects the possession of the appellants. It was his another point of argument that this court can reconsider the grievance of the appellants by following the provisions of Order XLI Rule 33 CPC. In support of his arguments he has placed reliance on the following judgments :-
i) Chandra Bai vs Tukaram and Others [1977 Kar.LJ 270]
ii) Balumal P. Seth vs Giriyappa [ILR 1991 KAR 1256]
iii) Hotel Kings and Others vs Sara Farhan Lukmani and Others [(2007) 1 SCC 202]
iv) M/s. Laxmi Enterprises vs The Commissioner, Bruhat Bangalore Mahanagara Palike and Another [ILR 2012 KAR 5474]
v) Ratan Lal Jain and Others vs Uma Shankar Vyas and Others [(2002) 2 SCC 656]
vi) Tirath Ram Gupta vs Gurubachan Singh and Another [(1987) 1 SCC 712]
vii) Balvant N. Viswamitra and Others vs Yadav Sadashiv Mule (dead) through LRs and Others [(2004) 8 SCC 706]
viii) K.Muthuswami Gounder vs N. Palaniappa Gounder [(1998) 7 SCC 327] 8
ix) H.Seshadri vs K.R.Natarajan and Another [AIR 2003 SC 3524]
5. The learned counsel for the respondent firstly submitted that the order passed by this court in W.P.46319/2015 and by the Supreme Court on 4.3.2016 are very clear that the judgment debtor should hand over the vacant possession of the suit scheduled property to the decree holder. The applications were filed under Order XXI Rule 97 CPC only for futiling the effect of decree obtained by the decree holder. The appellants are none other than the persons claiming clandestinely under the decree holder. They have no right to object to the decree. He further argued that though the lease deed provided for creation of sub-
tenancy, the appellants cannot take protection under Section 32 of the Karnataka Rent Act because required information to the decree holder/landlord was not given after some portions of the suit property were sublet. In fact, the appellants knew about the decree passed 9 against the judgment debtor. The judgment debtor is a company of which the appellants are the Directors. Therefore, the undertaking given by the judgment debtor/company binds the appellants also. The objectors also filed injunction suit which was dismissed. The executing court rightly dismissed the application noticing that the appellants were claiming right under the judgment debtor. There is no need to interfere with the order passed by the executing court. The learned counsel has relied on the following judgments in support of his arguments :-
i) Ravinder Kaur vs Ashok Kumar and Another [(2003) 8 SCC 289]
ii) Khasim Hussain vs Gadigi Pratap [ILR 2002 KAR 847]
iii) Chand Khan vs Vahid Khan and Others [(2008) 10 SCC 802]
iv) Smt. Kalloo and Others vs Dhakadevi and Others [(1982) 1 SCC 633]
v) Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Limited vs Khaja Midhat Noor and Others [AIR 1988 SC 1470] 10
vi) Ramkrishna Girishchandra Dode and Others vs Anand Govind Kelkar and Others [AIR 1999 BOM 89}
vii) Som Dutt (dead) by LRs vs Govind Ram [(2000) 9 SCC 345]
6. The above arguments takes me to formulate a question whether the appellants, being the sub-tenants have independent right, title or interest to cause obstruction or to show resistance in accordance with Order XXI Rule 97 CPC to the execution of the decree of eviction.
7. The undisputed facts are that on 5.7.1975, the respondent/decree holder leased vacant land measuring 46,500 sq. ft. to M/s Vasanth Color Laboratories, the judgment debtor. It appears that the appellants and one Ranga Vasanth are the Directors of the judgment debtor. The lease period, as can be made out from the lease deed appears to be 46 years. The lessee, i.e., the judgment debtor built a building in the leased property and let out some of the portions of that building to some 11 persons including the appellants. Clause 12 of the lease deed provides for cancellation of lease if the lessee breaches the specific terms of the lease and further obligates the lessee to hand over the vacant possession of the entire leased property including the portion in occupation of the sub-tenants. The appellants claim to be sub-tenants of two different portions of entire leased property. For breach of terms and conditions of the lease, the respondent filed a suit for eviction of the judgment debtor/lessee and obtained a decree.
8. The above being the undisputed facts, during execution, the appellants came up with application under Order XXI Rule 97 CPC showing resistance to the execution mainly on the ground that till expiry of the original lease period, their possession cannot be disturbed and handing over possession of the principal lessee only amounts to satisfaction of the decree under Order XXI Rule 36 CPC and thus they have become 12 tenants under the respondent/decree holder. The learned counsel for the appellants has referred to judgment of the Supreme Court in this regard in the case of RATAN LAL JAIN AND OTHERS vs UMA SHANKAR VYAS AND OTHERS [(2002) 2 SCC 656]. It is held by the Supreme Court as below : -
"5. Having heard the learned counsel for the parties, we are of the opinion that the appeals are devoid of any merit and no fault can be found with the view taken by the High Court. Rules 35 and 36 of Order 21 of the CPC are relevant and clinch the issue arising for decision. Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or his agent, by removing any person bound by the decree who refuses to vacate the property, if it becomes necessary to do so. (Rule 35, sub- rule 1). Where a decree is for the delivery of any immoveable property in the occupancy of a tenant or other person entitled to occupy the 13 same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. (Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession. In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession. (See five-
Judge Bench decision in Juggobundhu Mukerjee Vs. Ram Chunder Bysack 1880 ILR 5 Calcutta 584 and Full Bench decision in Jayagopal Mundra Vs. Gulab Chand 14 Agarwalla and Ors. AIR 1974 Orissa 173). The rights of the person bound by the decree stand extinguished, he is removed from the property in the eye of law and his right and entitlement whatever it may be qua the person in actual possession and not bound by the decree stand vested in the decree holder".
9. Another point argued by the appellants counsel is that the judgment debtor constructed a building in the vacant land leased to it and thereafter let out some portions of the building to some tenants and, therefore, in a situation like this concept of dual ownership arises and on this point he referred to two judgments of this court, namely CHANDRA BAI vs TUKARAM AND OTHERS [1977 (1) Kar..LJ 270] and M/S LAXMI ENTERPRISES vs THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE AND ANOTHER [ILR 2012 KAR 5474].
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10. The law on the point that symbolic delivery of the decreed property to the decree holder in accordance with Order XXI Rule 36 CPC if the property is in the possession of the tenant as also the concept of dual ownership is an acceptable position. But, in these two appeals, going by the lease deed that came into existence between the decree holder and the judgment debtor, it becomes evident that so far as appellants are concerned, though their possession cannot be said to be that of sub-tenants, they cannot claim that their tenure to possess the portions let out to them cannot be longer than the original lease period. Even if the decree holder had not terminated the original lease to the judgment debtor, for breach of lease conditions, the lease would have been determined after expiry of the lease period and in that event the judgment debtor including the appellants should have surrendered the entire property to the decree holder.
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11. It is true that the executing court has not held enquiry as contemplated under Rule 101 of Order XXI upon the application of the appellants under Order XXI Rule 97 CPC. This was the point vehemently emphasized by the appellants counsel. The executing court has held that the appellants being the sub- tenants of the judgment debtor are bound by the decree of eviction. I do not find any error committed by the executing court in dismissing the application without holding enquiry. Order XXI Rule 97 CPC envisages a situation where the decree holder complains of obstruction to execution by any person and in such a situation the executing court should hold an enquiry to determine the right, title or interest of the obstructor. In this case, it was not the decree holder which made the application complaining of obstruction by the appellants, rather the appellants on their own made the said applications. Therefore, in a situation where the obstructor approaches the court himself, he must be in 17 a position to prima facie make out his right to obstruct the execution and only if a prima facie case is made out by him, the executing court is expected to hold an enquiry in detail. Holding an enquiry may not be necessary if it can be made out apparently that obstruction is caused at the instigation of the judgment debtor or on his behalf or by a transferee from the judgment debtor either during pendency of a suit or execution proceeding. Rules 98 and 101 of Order XXI CPC must be read together to decide when actually enquiry is necessary. There is every possibility of this provision of law being misused by an unscrupulous judgment debtor; any number of applicants may stall the execution of decree by making application under Order XXI Rule 97 of CPC and if every time enquiry is held on such an application, the decree holder will never be able to reap the fruits of the decree. Only if the obstructor has a semblance of right, interest or title superior to that of the decree holder, and if the 18 application under Order XXI Rule 97 does not appear to be frivolous, enquiry is contemplated to determine such right, interest or title. In this case, the appellants do not have independent right or title, they occupied the portion of the building constructed in the leased vacant land and thus their interest is only under the judgment debtor.
12. The learned counsel for the appellants referred to Section 32 of the Karnataka Rent Act and argued that the tenancy in favour of the appellants was created before the Karnataka Rent Act, 1999 came into force and, therefore, the sub-letting to them by the judgment debtor was lawful as the lease deed also provided for sub-letting. He referred to the judgment of this court in the case of BALUMAL P. SETH vs GIRIYAPPA [ILR 1991 KAR 1256]. The learned counsel for the respondent/decree holder referred to Section 33 of the Karnataka Rent Act to repel the 19 arguments of the appellants counsel. On this point it is to be stated that the appellants cannot take shelter under Section 32 of the Karnataka Rent Act because Section 33 (2) makes it very clear that if any premises had been lawfully sub-let by the tenant, it is necessary that a notice must be given to the landlord either by the tenant or the sub-tenant in the prescribed manner about creation of sub-tenancy within six months from the commencement of Karnataka Rent Act. It is not the case of the appellants here that such a notice was given either by them or the judgment debtor to the decree holder. The law laid down by this court in Balumal P Seth (supra) is not helpful to the appellants because that case was decided under the Karnataka Rent Control Act, 1961 and the question dealt with was that unlawful sub-letting provided a ground for evicting a tenant and that lawful sub-letting did not afford a ground for eviction of the tenant and thereby Section 30 of Karnataka Rent Control Act was not applicable in 20 case of lawful sub-letting. Moreover, the decree holder did not initiate eviction proceeding under the provisions of the Karnataka Rent Control Act, 1961. A suit was filed seeking ejectment or eviction of the judgment debtor by terminating the tenancy under Section 106 of the Transfer of Property Act and, therefore, neither the provisions of the Karnataka Rent Control Act, 1961 (now repealed) nor Karnataka Rent Act, 1999 provide a ground to the appellants to show resistance to execution.
13. The learned counsel for the appellants also referred to Section 115 of the Transfer of Property Act to argue that after termination of the lease by the decree holder, the appellants became the decree holder's tenants and, therefore, the decree holder could not have brought a suit for eviction without making the appellants as parties to the suit. Section 115 of the Transfer of Property Act reads as below : - 21
"115. Effect of surrender and forfeiture on under-leases:- The surrender, express or implied, of a lease of immovable property does not prejudice an under lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.
The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under section 114".
14. The plain reading of this section makes it very clear that the interest of the under-lessee or a sub- lessee is protected only when the original lessee 22 surrenders the lease expressly or impliedly to the lessor and also when the under-lease or the sub-lease was created on terms and conditions substantially the same as that of the original lease. The next part of this section further makes it very clear that the forfeiture of the lease annuls all under-leases, only exception being the circumstance where the forfeiture is procured by the lessor in fraud of the under-lessees or relief against the forfeiture is granted under Section 114. This section does not help the appellants because the decree holder terminated the lease of the suit property to the judgment debtor because of breach of the terms and conditions of the lease. It is not the case of surrender of lease by the judgment debtor. This was the case of forfeiture or termination of the lease by the lessor and, moreover clause 12 of the lease deed makes it very clear that the original lessee should hand over the entire leased property including the portions under the occupation of sub-tenants in case of breach of the lease 23 conditions. The learned counsel for the appellants has placed reliance on judgment of the Supreme Court in the case of HOTEL KINGS AND OTHERS vs SARA FARHAN LUKMANI AND OTHERS [(2007) 1 SCC 202] and TIRATH RAM GUPTA vs GURUBACHAN SINGH AND ANOTHER [(1987) 1 SCC 712].
15. In Hotel Kings, though it is held that the interest of the appellants therein was not affected by the decree for possession passed against the lessee, the substance of the proposition laid down is that the contract between the lessor and lessee decides or governs the position of the sub-tenants also (para 40 of the judgment). In the case of Tirath Ram Gupta (supra) what happened was the lessee who had held possession of the leased property under a composite lease, surrendered the portion of the property to the lessor which was under the occupation of a sub-tenant and retained the possession under his occupation. In 24 these circumstances the Supreme Court held that the surrender of the portion under the occupation of the sub-tenant was as a result of collusion between the lessor and lessee and, therefore, the sub-tenants possession was protected. Therefore these two rulings do not help the appellants.
16. With regard to the point whether the sub- tenant should be made party to the eviction suit, the position of law was settled by the Supreme Court in the case of BURMAH SHELL OIL DISTRIBUTING NOW KNOWN AS BHARAT PETROLEUM CORPORATION LIMITED VS KHAJA MIDHAT NOOR AND OTHERS [AIR 1988 SC 1470]. Para 12 of the said judgment is relevant to be extracted here : -
"12. In Roop Chand Gupta v.
Raghuvanshi (Pvt.) Ltd. and another, A.I.R. 1964 S.C. 1889, it was held by this Court that it is quite clear that law does not require that the sub-lessee need be made a party, if 25 there was a valid termination of the lease. This Court reiterated that in all cases where the landlord instituted a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and did not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub- lessee. This Court noted at page 1892 of the report that this might act harshly on the sub-lessee; but this was a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. In the facts of this case these observations apply more effectively. The termination of the lease was not disputed by the lessee. There is no allegation of any collusion between the lessee and the respondent".
Therefore, the argument that Section 115 of the Transfer of Property Act protects the interest of the 26 appellants and that the decree of eviction does not bind the appellants cannot be accepted.
17. It is not as if the appellants were not aware of the eviction decree. In fact, the persons representing the appellants were also Directors of the judgment debtor company and thus they had the knowledge of decree of eviction passed against the judgment debtor. It is a point to be mentioned here that the respondent filed an application for vacating the interim order of status quo granted by this court at the initial stage of these appeals. In the said application it is mentioned as below :
"3. In view of the above facts of the lis between the parties, it can very well be seen that the Appellant who also comprised of common directors of the Tenant in the parent proceedings has colluded with her husband and has filed the above appeal only with the intention to harass the Respondent and to deprive her of her rightful enjoyment of the 27 property which was lawfully taken possession of by her through the executing court. In fact, the fact of filing of WP No.46319/2016 before this Hon'ble Court, and subsequently the filing of SLP No.5577/2016, as well as the undertaking rendered before the Hon'ble Supreme Court in the said SLP by the husband of the Appellant, have all occurred after the Appellant appeared before the Executing Court as an objector seeking to protect her right as a subtenant of Sri. B.Ranga Vasanth. Therefore it can be gathered that the undertaking of Sri. B.Ranga Vasanth is with the concurrence of the Directors of the Appellant and other sub- tenants. This is further substantiated by a letter addressed to the Power of Attorney Holder of the Respondent by the Directors of the Appellant, along with Sri. B.Ranga Vasanth, the third Director of the Tenant at the time of taking possession of the Schedule Premises. The letter dated 15.07.2016 is herewith produced at Annexure-S".28
I have perused Annexure-S which is not disputed and which cannot be disputed. This letter is signed by Anita Vasanth who represents the appellant company in RFA 1375/2016. The appellant in RFA 1376/2016 is also represented by Uma Keshavan @ Anita Vasanth. Therefore, the appellants are represented by the very same person who is also a Director of the judgment debtor company. Merely because she represents the appellant in another capacity, it cannot be said that she had no knowledge of the eviction decree and all the subsequent proceedings in the executing court, this court and the Supreme Court. For these reasons, it can be said emphatically that the appellants are bound by the decree of eviction and from their conduct they are estopped from setting up independent right to cause obstruction to the decree. In view of the terms and conditions set forth in the lease deed dated 5.7.1975, the interest of the appellants cannot be said to be higher than that of the judgment debtor. Therefore, I do 29 not find force in the argument of the appellants' counsel that the appellants have every right to cause obstruction.
18. Before conclusion, I find it necessary to refer to some judgments other than referred to above and cited by the appellants' counsel. The judgment of the Supreme Court in the case of K.MUTHUSWAMI GOUNDER vs N.PALANIAPPA GOUNDER [(1998) 7 SCC 327] has been cited in relation to one point argued by the appellants' counsel that the interest of the appellant can be protected by moulding relief in accordance with Order XLI Rule 33 CPC. No doubt the appellate court has power to mould the relief, but in the light of the facts and circumstances discussed above, I do not find that there is a ground to mould the relief.
19. The judgment in H.Seshadri vs K.R.Natarajan and Another [AIR 2003 SC 3524] pertains to application made under Order XXI Rule 99 30 CPC. The Hon'ble Supreme Court has held that whenever such an application is made it is imperative that the court should decide the application taking into consideration the fact whether the applicant claims a right independent of the judgment debtor. Rule 101 of Order XXI contemplates an enquiry in relation to applications made either under Rule 97 or 99. As I have already held in para No. 11 that enquiry was not necessary, the said decision is not applicable to the facts of this case.
20. Therefore, from the foregoing discussion, I conclude that these two appeals fail and accordingly they are dismissed with costs.
Sd/-
JUDGE ckl