Karnataka High Court
S C Ramesh vs Late Sri Gopal Naidu on 8 February, 2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 87" DAY OF FEBRUARY
BEFORE
THE HON'BLE MR. JUSTICE -« ..
R.F.A.N0.19i5g2QQ;§ '1' " '
BETWEEN: A'
S.C.RAl\/IESH »
s/0 LATE SRI.CHANN_ABASAPPA*.._
NO.87 {OLD Nos. 70 .AN.1_) 73.') '
SUDI-IA BUILDING 2
HANUMAN MANSION, A .
OPP. KINO TALKIES, --
SUBEDAR CHATRAM ROAD;
sEsHADR1RU,RA.A/I . ' _ ,
BANGALORE -,--"--20;"-'--.._ A .. APPELLANT
[By SRILUDAYA E-T(3LI4A;~SENI{5R"CC)UNSEL FOR
sR1.NEELA.KANT.APPA 'R. "PUJAR AND
sR1.PA2é>ANNA.T.,
' A - 1. '"LATE*sR;.G0PAL"NA1DU
~s/ O,_VI.;A'1".3V3TA}3INARAYANASWA1\/{Y NAIDU
.._E.s1Nc'E._DEj(:EAsED BY HIS LRs.
A} RAJ
B) sR1.AfG.sA1NATH
8: (13) ARE R/OF NO.41,
_V LS7" MAIN ROAD
' SFESHADRIPURAM, BANGALORE--2O
C) SMT.A. G.SUJA'IHA VENU
D) SMTNANDINI SHEKAR
R--1[C) & (D) ARE R/OF 43, 137' MAIN ROAD
SHESHADRIPURAM, BANGALORE--20.
2. THE BANGALORE CITY OCRPORATION , _ '
N.R.SQUARE, BANALORE--2 - i
EYITS COMMISSIONER.
[By SRI.G.S.BHAT & ASSoC'IAj'ES, Abvg, FOR R{1"{,A;w To ID)" V
SRE.S.N.PRASHANTH CHANDRA,' 'ADV. EG.RR+2
SRIYUTHS M.C.RANGANNA & H._C..MA1fLAI,INGAPPA, ADVS.
FOR C/R-1 [ATO D)} . V V
THIS R.F.A. IS FILED "U/S 9-6 "013. __C-PC AGAINST THE
JUDGMENT AND DEGREE' DATED :18,I2.2004 PASSED IN
o.S.No.e2S4:_./94 ON THE -FILE 01+'-THVE XXVII ADDL. CITY
CIVIL JUDGE, E3ANG.AI.ORE .{Cc;H No.9), DISMISSING THE
SUIT FOR , PERMANENT INJUNCTICN.
THISA,.I§*;:F.A,'§iA:C~0IVIII\2G DN"'I<*CR DICTATING JUDGMENT
THIS DAY, .THE,CQ'URT_DEL:VERED THE FOLLOWING:
Vf§NDGMENT
This .I;1ppe'al" flied under Section 96 of CPC by the
;A,1IIViS;1eEC.eSSfi;..1Vplaintiff in O.S.No.6264/94 on the file of the
City Civil Judge, Bangalore is directed
ageL§nStV:.th'e judgment and decree dated 18.2.2004
di:3i;_'IiSS'iI1g the Said suit filed by him for declaration and
2. Originally the suit was filed against one A.Gopala
Naiduwdefendant No.1 who died during the of
the suit and thereafter his legal
brought on record. The Bangalore
impleaded as second defendant, this J
judgment, the parties willfloe referredi2§Tith._;'rcference"'to
their ranking in the court
3. The plaintiff that the
decree dated "I;£--FlC.l\§o.2492/89 on the
file of the Court, Bangalore is a
the parties and is without
jurisdiction provisions of Section 21 of
KaijnatakalRen_tVConatrol Act, 1961 (for short 'KRC Act') are
lal1.i:a"ttracted to the suit schedule property which is
fllouse in View of the specific provision under
of the KRC Act and for consequential relief of
'perrnarient injunction to restrain the first defendant from
'interfering with the plaintiffs peaceful possession and
it wenjoyrnent of the suit schedule property and further from
%/t
executing the decree dated 9.10.1990 passed in
HRC.No.2492/89.
4. The subject matter of
bearing door No.87 (Old Nos.
Hanuman Mansion, Subeldar"-- Road,
Seshadripurarn, Bangalorel"eonsisting fof' ground, first,
second and third
5. Reading 'plalint running to 16
pages setting out the facts
reli_ef"sbught, the plaint is full of
argurnents decisions of various courts.
The_suml"and .substance of the averments made in the
plvaiiiitgpyiarew: p.that"th'e"plaintiff has been in lawful possession
"the"'«._;Slni'teupiroperty in his own rights and has been
the rights as owner by paying Corporation
Taxes,..p__l*water and electricity charges and is also
x"ll.AAmaifntaining the building; that the plaintiff occupied the
___elntire suit schedule property in the year 1979 in his own
rights; that the plaintiffs possession which is
uninterrupted and peaceful is known to the first
defendant since 15 years and the first defendant has not
taken any legal action against the plaintiff him
from the suit property; that though the__--§'_:li"s1
claims to be the true owner of thesuit.schedule:property,:7.
he has no title to establish the hell'
was not diligent in enforcingspphisll'alleged",:[email protected];...that the
first defendant never the suit
schedule property had any rights over
the suit schedule the same and the
'thv\~:v"lrights of ownership and
rernaih_in'gl_ in the property for more than 15
years has--«..avcq_nsired_ll "title to the property by adverse
thekriowledge of the first defendant; that he
out the portions of the property to the
tenants when it became Vacant and has been
collecting rents from the tenants in occupation of different
,,,.l'.gApQrti'ons of the property and he is also in actual physical
Wplossession of a portion of the building where he is
residing; that the IS' defendant claiming to be the son of
e&//
the true landlord has obtained an exparte decree dated
9.10.1990 in the Court of Small Causes against _9«...persons
alleging them to be the legal represerit--at'i§feé:"'
Hayavadana Rao who was stat_e~d.to be of'
suit schedule property by iristitijtiiigifciaRc,,1\iVe';"2~q.§2i/89 if
and on the strength of the decree 'defendant
started threatening the him from
the suit schedule said decree is
obtained by.' c-oilviisicinl and the Court
had no decree as the building is
a section 37 of the KRC Act,
the of had no jurisdiction to pass an
order of ei2'ictio.ni3ection 21 of the said Act as such
-t1~i>:\%:"'.ja€'f'€.V:r€€A.].'S nt1'llity and it cannot be enforced against
the plaintiff is not a party to the said
pt1'o1ceedingES'as such it does not bind him; that at the time
of initiating the proceedings in HRC.l\lo.2492/ 89 through
th.eii 5' defendant was aware that the plaintiff has been in
.,_possession and enjoyment of the property in his own
rights, he did not deliberately impleaded the plaintiff as a
fl
party to the said proceedings as such the said decree
cannot be enforced agaisnt the plaintiff.
6. Upon service of the suit surnrnlo-ns,»::deiendant"..__
No.1 appeared before the trial
statement denying the caseof the._plaintifff7
substance of the case of theVV..._defence"of:f1ét defendant as
stated in the written 'statement 'under:
That theiigjfirst ulylabsolute owner in
and this building
was and after the death of his
fatherlhe property as his son and heir;
that one°'K.R..Vgflayavadana Rao took the entire suit
prope'rty""on lease from him on monthly rent of
inclusive of light and water charges
effect" 17.2.1972 as evidenced by the agreement
leasefdated 17.2.1972 executed by said Hayavadana
g'"lRaQ his favour; that the said Hayavadana Rao took the
schedule property on lease for running lodging and
it boarding sections therein and before leasing out the
property to Hayavadana Rao, the defendant himself was
running the lodge and in that connection he had all the
rooms furnished with steel cots, Godrej chairs';-.._:ft~ables,
mirrors, beds and pillows at the cost of
when the premises was leasedto.
value of the furnitures and ei}uip_'n1enti'~were
Rs.75,000/-: that the tenanut"~..IjIayavadana-vliiaohadj paid'
sum of Rs.20,000/- as adVanc:e"vas"--~against va..greed advance
of Rs.25,000/-- and faiiec1- toga of Rs.5,000/- as
a result of the.same,g_'regi's*t:ered.'.flease "deed could not come
into exi-stence.';'1i¢;:,As tenant': was highly irregular in
payrnentlof a chronic defaulter, as per
the law defendant filed a suit for ejectnient
aga1_"hst_pAV'th_e saiti..._..1<I«ayavadana Rao after terminating his
' the provisions of 'I'.P.Act and also for
rec'o{rer3_}.of_V_a9;};'rears of rent in O.S.No.3372/ 81 before the
City fiitril Judge, Bangalore. In the said suit, the
":ff"'defe'i_1dant as plaintiff filed application under Order 40
Rule 1 of CPC for appointing himself as the receiver. After
contest, the said application was allowed and he was
appointed as the receiver. However, against the said
order, I-layavadana Rao filed M.F.A.No.2393/84 before.the
High Court wherein a compromise was entered.__:: into.
between the parties on 23.11.1984_Aand of the».
said compromise, the appeal was'».._dis_po,seda_of.'and*as
the terms of the said'':_ 'e.omprornise,
I-Iayavadana Rao agreed to ppa_v:fthe'V.entire«-- of rent
due by him in installment of
Rs.-40,000/-- 31.1.1985.
However, the lllfiiaollllthough paid some
amount' to keep up the promise
made of the compromise and
therefore once" plaintiff therein was appointed
" V' «as '-rekceivpeiir. which"*-was again challenged by I-Iayavadana
in /88 and during the pendency of the
appeal. llayavadana Rao died on 25.1.1989 and
R""'.__V*thereafieér his legal representatives got themselves
-implleaded and continued the appeal. However, the said
..._proceeding was terminated on account of change in the
legal position. in view of High Court of Karnataka striking
a'?
fl//'
10
down Section 31 of K.R.C. Act as ultra vires the
Constitution of lndia. Therefore, the first defendant filed
eviction petition in HRC.No.2492/ 89 against t4het'»._le.gal
representatives of the tenant Hayavadana Eiao' rill" _
spite of service of notice, the legal representatives '*
Hayavadana Rao remained absent
Court of Small Causes whicl':.._was"-
decree, allowed the petitionp,..a2nd_ 'granted-.,an_:§order of
eviction and the said order sought to be
executed by which is still
pending..='l" "issued therein could not be
executefii._as to be in occupation
of several portions, 'ofA~-'property filed applications before
"lithe V-':,l:':iXe_cnti_on The plaintiff herein had filed
against K.R. I-layavadana Rao for the
relief'lhofV.per:r1t1anent injunction contending that he had
" vthe suit schedule property on lease from
V' g:.'Iela3rav-adana Rao and that he is being sought to be
.di,spossessed without recourse to law. In the said suit.
" V I-layavadana Rao filed written statement denying the claim
.-'?
11
of the plaintiff therein that he was his tenant and in
possession of the property. Hayavadana Rao contended
therein that the plaintiff is only a servant
to collect the lodging charges from 2.
plaintiff duped him and eheated:*,hi1":;j1'1:§y<A't1na1ith'otfise'd,y'
collecting rents and thereforethe plaintiff vias.j
from service. The Court arguments
dismissed the application-. plaintiff therein
under Order Rules' an order of
injunction. dismissal of the
applicat1o'n,--.T;ix; if filed an appeal in
/'High Court which came to be
dismissed 'and"suVbv-sequeritly the plaintiff also brought the
~'"~,.uL€g'o.l"°Representatives' of Hayavadana Rao on record and
't19ie.:sjaid suit came to be dismissed. Thus from
this! it that the plaintiff has neither any right nor
in possession of any portion of the property. That the
passed by the Court of Small Causes in HRC
.,.N}o.2492/89 is legal and that the defendant is entitled to
execute the same and all the persons Who claim to be in
11
12
possession of the property are bound by the said decree as
such the suit is without any merits and is filed a
View to prevent the defendant from executinggfthe.j_~d.ec::ee.A
he has lawfully obtained from the ..
Therefore, the defendant sought for of
with exemplary costs. He denial allthe contentions w
plaintiff regarding adverse ppo.ss:es_sio_n ithetfplea that
the plaintiff is in possession property in
his own right to defendant.
7. plaintiff had filed an
application 39 Rules 1 and 2 CFC for an
order of temporary' iri;:.1in¢'tion. The said application was
a1so._§opposed"byfithefifirst defendant. After hearing both
application, the trial Court by order
udcfte-d not only rejected the application filed for
injunct'ion.'but also dismissed the suit with compensatory
if co'st«,of l7{s.2,500/- on the ground that the suit is frivolous
if and fictitious. The said order of the trial Court was
challenged by the plaintiff by filing an appeal before this
13
Court in R.F.A.NO.485/98. The said appeal came to be
allowed by judgment dated 308.2004 and the rnatvteritlwas
remanded to the trial Court for fresh _
accordance with law. Thereafter, the trial
the following issues on the basis 'cf the
parties:
1. Whether the plaintiff e.pr;oves.._t that * he is} in
lawful possessien' 'l._of;_' .vl.th.e»..t'"'entire suit
property?
2. If so,~ the interference
by the offiicials' 2"" defendant?
has locus standi to
challenge the or otherwise of the
' ~ c_1ecreew..passedl'-invHRC.24=92/ 89'?
A the plaintiff proves that the decree
" 910.1990 passed in HRC2492/89
_0n_tjl.1e file of the Court of Small Causes, is
'~ not binding on him'?
Whether the plaintiff proves that Small
Causes Court which passed the decree in
E7
14
HRC2492/89 had no jurisdiction to pass
such a decree'?
6. Whether the plaintiff proves cause of
for the suit?
7. Whether the suit is
parties? V 2 f
8. Whether the court fee.-pafid_ is~..suff1cier1t?./i
9. Whether the plaintiff the relief
of declaration 'injunction as
prayed? ~ '
10. . v"Jv"l'13£; or ' '
8. plaintiff examined himself as
V.rn'ore____witnesses as PWS. 2 to 9 and got
.._to 13.60. On the other hand, one of the
legal "represVerI.tatives of the first defendant Was examined
as DW..1ia:_r1d Exs. D.i to DSS were marked.
it 9'. After hearing both sides, the learned City Civil
if by the judgment and decree under appeal dated
%.
15
18.12.2004 answered issues 1, 4. 5 and 9 in the negative
and issues 3, 6, 7 and 8 in the affirmatiye'.t_"'a,nd
consequently dismissed the suit filed by the _
against this judgment and decreempasse-d--*»byl~., 2.
Court dismissing the suit, the plaintiffhas*pres'ented___thisA
appeal.
10. Upon sewie§..Qf appe'al;VVlthe legal
representatives of through their
learned counsel;".>i_'hatre Holla, learned
Senior V. 'the appellant and
appearing for the contesting
respondents; »
';3ri.Uday'a----«"Holla, learned Senior Advocate appellant apart from reiterating the grounds in the appeal memo contended that the 'oral asvyvell as documentary evidence placed by the A clearly establishes that he has been in possession of; the entire suit property by inducting tenants and ' "collecting rents from them and also by residing in a f} 17 tenant, the plaintiff became the tenant of the land lord in which event the plaintiff is entitled to the protection ;of~.the provisions of the KRC Act and therefore any without impleading him as a party to the _ not binding on him and could not be e-nfolrced as such the court below has coinrnitted "errori.'injd.ismissing , the suit filed for the relief injunction. Though the learned submitted that the contention the plaiiitiff passed in l~lRC.No.24Si'2;l jurisdiction in view ofVl3:7iIpf cannot be accepted for the reason of Section 37 is applicable only in respect ofxailoidgler, he submitted that the decree V' '~vpas-seld HRC.Al§i'o;v2492/89 is a nullity for the reason that Cotllirttxifiiich passed the decree had no jurisdiction to passil decree in View of the judgment of the Court in the case of D.C.Bhatia Vs. Union of i._Ir'u1_if¢.: [(1995) 1 SCC 104]; Shobha Surendar Vs. H.V. Rajan ..._[.?i998 (8) SCC 281} and C.N.Rudramurthy Vs. Kflarakathulla Khan [(1998) 8 SCC 275}, wherein the 18 Honible Supreme Court has held that Section 31 of the KRC Act is constitutional as a result of which constituted under the KRC Act had no jurisdi--etiori'V.'to any order under Section 21 in respect of _-an'n'on_fres»i_dentia1" . 1 premises, the monthly rent of which :e:Xc'eeds and since the premises in questio_n>..was "a_non41:esi,<je~n.tia1 one ' and the monthly rentof. the more vtharl Rs.500/~ , the Court of Small p'*iu1'i.sdiction to pass the decree as nullity Without jurisdiction4"andjlll"'there'io':fe""it be enforced against the plaLinti1'f;.®f,' ' 12'. it hand, Sri.G.S.Bhat, learned cot.u3iseli'~ appeaiting for the legal representatives of sought to justify the judgment under Vjeontended that the court below on proper appreciation of the oral and documentary evidence has A that the plaintiff is not in possession of the property l either in his independent right or in any other capacity and therefore, the trial Court is justified in dismissing the (3 20 and that the sub-tenancy was lawful one and that assuming for the purpose of arguments that --lie--l:.Was..A4sub-- tenant. he was not a necessary party to he is bound by the order tenant; it therefore, it is not open V executability of the order that, the plaintiff has no of right oyer the suit schedule property as he for the relief of injunction and tl'1eV.ll;"u(l3l.ourt has rightly dismissed ai_soft'Vhisislubmission that since the plaintiff semblance of any right over the property norhe:haslsatisfactorily proved that he is either in ph__V_sical""or_:Vin-constrnctive possession of the property, Aglocuslfsttindi to question the legality of the by the competent Court of law and thleze-fore..ltl1el. court below has rightly held that the V"A.«..L*plaintiff___lis not entitled for the relief of permanent 'inj'u_ne'tion. It was also pointed out by the learned counsel even before the trial Court, the plaintiff had not ~ depressed the relief of declaration on the ground that the &l;/'/ 21 decree is a nullity in View of Section 37 of the KRC Act, therefore the trial Court has rightly held that there is no need for considering the prayer for declarati_on_V.:'thins' the absence of any relief sought by the declaration that he has perfected~h_i's by adverse possession, the learned the court below has shit for injunction. It was also 'that? admittedly Section 31 of the by this Court in the case of-ifadmnnabha-.:Rac._Vsfifsitate of Karnataka [ILR V19's's @231 :"'.'?.§:I80jl'._as'ViVultra wires and declared invalid', and 'vi_1*t_nc.V_:lof.:lthe law declared by this Court, the p1foVisi"on_s c,o,nta'ine"d in Part V of the KRC Act,l96l were rnadeaappliclable even to a non--residential premises rent exceeded to Rs.500/- and under these c.irc_uinstances, the first defendant initiated eviction prsoceevdiings against the legal representatives of the it pi'i--.,tenant--Hayavadana Rao and since the legal ..._representatives remained absent in spite of service of notice, the Court of Small Causes which was the 22 competent Court to pass order of eviction allowed the petition and directed eviction of respondents _.th_erein_ and merely because the I-Ion'b1e Supreme Court has held that Section 31 is va1_i.dws_nd a5d¢4oi:sri£utiona1i«in Shoba Surendar's case, the ."evi:c_:tion order ..pa_ss_e'dv.'in A HRC.No.2492/89 Cannot ..h'g1dA.to__ nor "as without jurisdiction. _
13. Having regardto. circumstances of the case .1:igh:t_ made by both sides, consideration in this appeai are: _ . . .
has locus standi to question the-vaiiditjf/legaiity of the eviction order passed in HRc.'No;2492/89?
the plaintiff was in lawful possession of ' -schedule property as on the date of suit, and A1' therefore, he is entitled for an order of permanent injunction.
23 (3) Whether the court below is justified in dismissing the suit of the plariritiff for injunction?
14. As noticed above, .:the_ tgdleclljaration sought in the plaint was to passed in I-IRC.No.2492 aAnullityll:'an'dTa"'collusive decree without juIisd.ictior3.;"'siriceV'""Section'"2 ltiof the KRC Act are not attractedllélto the light of the specific prorzis*ion.of argument based on Section to have been given up during arguinent before the trial Court as is of the trial Court in Para 12 of itsfj'udgme--nt"v.While dealing issue No.5. Therefore ibefoije this "" "Court learned Senior Counsel fairly Section 37 of the KRC Act has no a:3plica.tis_ri'..'to the facts of this case as the relief of eviction was sought against a lodger but it was only against
--.,ti1e.'..'person stated to be a tenant of the entire building. ..._I%lowever, in the court below it was contended that since 24 there was no relationship of landlord and tenant between the first defendant Gopala Naidu and I-Iayavadana Rao or his legal representatives, the Court of Small no jurisdiction to entertain the said petition: 7 was considered by the trial Court' in 1-C3; tc,2Lo= of its judgment and V afteirtt to it circumstances brought outof oral and documentary evidence)" iibeiowi held that I-Iayavadana Rao wasithe building and he had taken sarne father of the first defendan't*~t..A:§i:p therefore there was reiatioxnshiipl ».ar--1d tenant between said Gopala Najdn and" the 1egalA"reVpresentatives of Hayavadana Rao as ;,,the'~-l.Court""'ofV Small Causes had jurisdiction to petition and to pass appropriate orders. In'-.that.~viet.vAlof the matter, the court below held that the plaintiff is not entitled for the relief of declaration.
15. The arguments canvassed before this Court with regard to the jurisdiction of the Court of Small "'3 25 Causes based on the judgment of the Supreme Court in Shoba Surendafs case was not urged befo3:e_:"the_V trial Court and it has been urged for the first Court. In fact in the appeal memo. was raised by the appellant. J application came to be 'fi1Ved..V_be'fore_ geekirlg is permission to raise, an the said application came to" the plaintiff was permitted to raise I shall consider the said let me consider the case lawful possession of the property: and for an order of injunction. IE5. As~~..not1ced from the averments made in the specific case of the plaintiff that he has ,1)1é3hen V'in"_"_v»pos.session of the property -in his own right. to the averments, made in para 7 of the plaint, tl'1e_.Aplaintiff came into picture only in 1979 to run the boldge with the knowledge of the first defendant and that V wHayavadana Rao practically vacated and surrendered the /F 26 possession to the first defendant. Thus from the very averments made in the plaint, it is clear that Hayavadana Rao was in possession of the property at leastrprior to 1979. It is made more clear in para 7 of thfiflpl6ll.i§l.l_l7vll1_t§I*3iI'l it is stated that "there was no written__lease.VVbet\zzeen' so--called landlord and tenant f I-Iayavadana Rao and infthe course of HRC.No.24»92 / 89 no lease deledviwas and therefore in the absence of any 'such lease'V-_dveed__ it is to be inferred that there wasan oralnnderstanding:betyveen them to run the 978 with the relationship of licensor and Accordingly, the plaintiff claims to have c"enie«.into"»_pic'ture in 1979 after the so--called su'rreridei*v~-by llayayadana Rao. According to the plaintiff, iiferii. he has been exercising the rights of owriersyhipl the property by paying Municipal taxes, water and electricity charges etc. and also by leasing out V."ll.A'dif_fei'ent portions of the property to different tenants and collecting rents from them. The circumstances as noted by the court below and which are indicated 2'?
2.7 hereunder would clearly establish that the plaintiff has no independent right over the suit schedule property. It cannot be said that he has perfected his titlevbyiffadverse possession. At the first place it is to be 'ri'ote'd_~'the plaintiff has not sought for any declaratio_n.Vth.at.he_:
perfected his title by adverse po'ssessi(.sn'--_ove'r=.the if by remaining in open; .4__hostile"" andjhuninteitrupterl possession of the property knowwlefdgevviof the true owner. On the otherliand, i.n.1.th.e' plaint he goes to the extent of denyingyth-e.title _the_ 'defendant. When the pl.aintiff:hasffideriiedylithe of the first defendant over the svuiytff it is not open to him to contend that he Alviasffperfected the title by adverse posses.si.o1i..over the"pr0perty. Benial of title of the person against'.vv;ho':n'_j..plea of adverse possession is urged and setting_.-uptadverse possession cannot go together. There ipsgalsovno proper pleading in this behalf. Therefore, the if below has rightly held that the case of the plaintiff ..-tl'1at he is in adverse possession of the property has no I'?
28 substance. I see no error committed by the court below in this regard.
17. T he next question is as to whether"theflpiaintiff has made out any case to prove that he is possession of the property in his own right"foriridependentV:right;':As.' if noticed above, the first defendant has specificaiiy contended t1ta:t.the.v'piaintift7 sfwas the employee of Hayavadan;if"'R"ao:.._ collect the lodging charges from lodging rooms and since the amount collected by ._ by I-Iayavadana Rao. Thus aceordingmtovvthe: the status of the plaintiff was only if an eiriployveepi of I-Iayavadana Rao. The crucial .A :qug,=st_ivonp whether Hayavadana Rao was tenant of the ._N.§'doubt the first defendant has not produced any docurnentary evidence to show that Hayavadana Rao 2 » the property on lease though there is oral evidence in that regard. However, the evidence produced by the ' plaintiff himself estabiishes that Hayavadana Rao took the /7 29 premises on lease. In the cross--examination, the plaintiff examined as PW. 1 has categorically admitted suit schedule property belonged to Adinarayana'sWtatny__V':Naidu and the khatha stood inwg the Adinarayanaswamy Naidu. ':
defendant was the oWne1':_ef_.the'~sluitV after the death of his Naidu. Of course he denies the first defendant was the sole__ hei1'".* Naidu.
Nevertheless -.that ::.the_ defendant~Gopala Naidii """ of_"'"AVdinarayanaswamy Naidu. Assuminlg. fldinafiaytaraaswamy Naidu had left behind several otfh-eif heirs'*.ap'art from Gopala Naidu, that itself ya grofnlnldfvto deny right of Gopala Naidu, as, in Qopala Naidu would become one of the com ow1_iers- property and in that capacity he had right to file eviction petition to evict the tenant. In the cross- fl 'A.Vex-aiiriination, PW.1 denies the suggestion that he was the = ~.--Manager of Sudha Lodge but he admits that the contents of the documents produced by him as per Exs. P1, 19.21 and 22 that he was the Maggger of the Sudha Lodge are Correct.
Perusal of the contents of Exs. P1, P21 and P22 clearly indicate that the plaintiff has beer1.V_:d.es~eribed therein as Manager of the Sudha Lodge.
4.9.1980, Ex.P.21 is dated 1_0...»1f.2_,198i2"7"aeit1'V"Ex',E.22""is°~ dated 20.53.1985. In all these has 3 described himself as Managei*~. of Siidha "Iii "addition to this, it is an undisputed' that the'--.plaintiff filed a suit in o.s.No.i25o'/setage§fist:::Heyev--edana Rao for the re1ie:f.,e0f._ of the piaint in O.S.No.1250/86 has been rnarkedeVas:iEL;§.4i).1. In the cross examination at rm 4," ~ plaintiff admits that he had filed » 86 against Hayavadana Rae and document * and marked as Ex.D.1 is the certified copy of the said suit. It is also admitted by PW.1 that 2 defendant in that suit Hayavadana Rao had filed Vdgwritten statement, copy of the same has been marked as Ex.D. 14. in Ex.D.14, Hayavadana Rao has made specific 31 averrnents to the effect that the plaintiff therein was his employee and since he misappropriated the money collected from the lodgers, he was dismissed frorirservice.
19. In Ex.D.l, the plaintiff herein;"Wh.Q'..._@a,s:4' also plaintiff in the said suit has clearly stated» the».
scheduled property on 1ease:=..14fron5f 4.:
therein namely Hayavadar1a.. snag' with pa that he should pay Rs.50,Q0O/.-- secnrityppipvfdeposit and Rs.1,300/-- per 'He has further stated therein that tl1e_plaintiif the lease deed betvtéieen l1irr1'se}l-f first defendant (Hayavadana Rao) to indu'ct,__'anylllpersponiiorlpersons as tenants. It is further stated"therelitx-Vthatythere is valid contract of lease entered ' ;in_to --.betWee"n__the plaintiff and the first defendant and the " first has no power, authority or whatsoever with to the possession of the schedule premises except claim for monthly rents. It is further stated in para 5 of Ex.D.1 that the plaintifl" has been in possession of suit premises as a lessee in accordance with the terms and .32 conditions stated therein. In para 10 of Ex.D.1, it is further stated that the plaintiff is in physical possession and enjoyment of the suit premises under"'the"".,first defendant and he is entitled to be in premises until and unless he-'is "mach-__e to"i'egviet~._in"diie~ process of law.
20. In sta'teV:InentvVfg filed by Hayavadana Rao he that he took the suit _sehedule'» - p1"opei"ty lease from Adinarayana [on it monthly rent of Re.1t;pe5,,;§jeidefagreement' dated 17.2.1972, and one Gopa.la"g__' i'~1aidu_.° to be the heir of Adi-inai*ayanaswaInyV Naidu has filed a suit in e Vfpio.s.Ne.s3i72p/81 on the file of the Additional City Civil " and it is still pending. The plaintiff has not. disputed the said fact. Thus from the averments made Exs.D.l and D14, it is clearly established that Hayavadana Rao was the tenant of the entire building and he took lease of the property from Adinarayanaswamy 33 Naidu in the year 1972. '1' he plaintiff only ciairnsto be the sub--1essee under Hayavadana Rao.
21. DW.1 in his oral evidence suit schedule property was his' Narayanaswainy Naidu to .1_--iayaVadana 1972 and on the death'u'ot..xyhisV_ his father Gopaia Naidu tihte the suit property, and thus, Hayavadana:.RaoV---V{tenant of the entire buiiding..a.ii.d§ Rao his legal representatii/'e1:&:;::::' No doubt, the said lease been not evidenced by any docunieiit. the various circumstances noted b.c;ioyVtt'c1ear1y'*-»indicate that Hayavadana Rao was the ' ;Vtcr1an_t..:the_ entire property. EXD2 is the notice issued * i§y~A'. *ci,p;.ia Naidu to Hayavadana Rao on 23.03.1981, wherein it was clearly stated that Hayavadana Rao is the ttyyteiiant of the entire property. There is no serious dispute that HR. Hayavadana Rao did not issue any reply to the same. Ex.D4I~ is the certified copy of the plaint in OS. 34
3372/1981 flied by A. Gopaia Naidu against I-iayavadana Rao praying for ejectrnent and for recovery of arrears of rent. in this piaint in O.S. 3372/1-9'8iif';--«_specific averments had been made that Hayavadana was 'the tenant of the entire property" »-and terminated. Ex.}Z)5 is the the .3 statement filed by HayaV'a.ct:i'ana ' 1981. wherein, Hayavadana Rab" deny status as tenant of the property. ig.i:tIre:v.v"certified copy of the order passgechjby the LA. No.5 in O.S. 3272/198.3:':1vfappbi11t:ing"theijjiaitntiff -- A. Gopala Naidu as receiyer; - record further indicates that against (met appointing A. Gopala Naidu as 'receiver, IA-Iayayadana Rao filed appeal before this Court 984, whereunder, Hayavadana Rao agreed to«.._pay' the arrears of rent in instalments. If Hayavadana yylfiaou wtras not the tenant of the premises, there was no 3' neeci for him either to file appeal against the interim order
--appointing A. Gopaia Naidu as receiver nor agreeing to pay rental arrears in instalments. It is also an undisputed 35 fact that A. Gopala Naidu filed a suit against the plaintiff herein in O.S. No.100/1982 for the relief of perznanent injunction to restrain the plaintiff from i-w;al_i in the building. Ex.D11 is the certi_fied_'lthe.plain't in OS No. 100/ 1982. In the had been made that the Hayavadana Rao and'. "is the tenant of the property and has no right whatsoever is the certified copy of fliiedlby the present plaintiff who Ol.Sf"'lfOO/1982 on 10.06.1982.
Peruslai " of ' indicates that the present appeilantl/fplaiiitiff s not denied the averment made in to the lease of the property to EX.D13 is the certified copy of the jti'dgrne11t,«l"in o.s_ No.100/1982 by which the suit filed by is At Gopala Naidu came to be decreed against the plaintiff flheirein. EX.D.3O is the certified copy of the affidavit filed by Sri. Hasmath Pasha, Advocate, in support of the application filed under Order 21 Rule 97' of CPC in HRC 3'7 landlord and thereafter the landlord delivered possession of the property to him either as lessee or as a licensee.
23. As noticed earlier, in 08. No. the specific case of the plaintiff h"erei.n thathelI,took4.l_leas.el 2 the property from Hayavadana«V__R.-to' llelnethat if plaintiff had not stated thati-fflayavadana..i§aol"'tlsii'rrendered possession of the propertyV"to".thejla:ndlolrd"'and thereafter he entered into property to the knowledge of iSt:1Adefen'danlt'e'l;%_"A,_h__C{opala Naidu. In O.S. No.iOO/ V herein as defendant filedl'-,hig._ he did not assert this fact. Thouglhlin Hayavadana Rao in his statement had asserted that he took the property » ;'on_le,ase 'from K. Adi Narayanaswamy Naidu and that the if=iandi¢ra;tr1qa:;'f11ed suit against him in o.s. No. 3372 /1981 for eyietilon and it is still pending, the plaintiff herein did chose to get himself impleaded to the said suit contending that he is in possession of the property. These circumstances clearly belies the contention of the plaintiff 38 that he entered possession of the property in the year 1979 after surrenderkfi of possession by Hayavadana Rao. No documentary evidence is pro_diiee.d~the piaintiff to establish that he took pg,-9s.e:s.sion 'pot:
property from the owner of the 'evt11er"*~-- hand, in this suit, he has"«-triedthtofiassert' possession of the property right. What is that independent §~}g'ar13'.ypgpeit--out. Reading of the entire plaint thrust of the argumentef in possession of the property' possessory title. He has simultaneously. At the eariiest point of tiine' he'.'did_ dispute that Hayavadana Rao is 't V. -A A the:'te:nantp of theproperty while filing written statement in ::NQi'G-OjT.1982. While filing o.s. No.i250/1986, the plaintiff asserted that he is iessee of the property under _ Hayavadana Rao Without diseiosing as to who is the it 'gwtabsoiute owner of the property, though even to his knowledge as on that date K. Adi Narayanaswarny Naidu was the owner and upon his death, his son/s succeeded 39 to the property. He did not make any attempt to get himself itnpleaded in O.S.3372/ l98l. Howevvergfllonly in the present suit in o.s. No.6264/1994 he t_ri'e'd«l that he is in possession of the property' exercising rights of ownershipfii Th-isy.condu.c't- on :"-t_he:_Plart"*-.A I of the plaintiff deserves deprecated'; contention of the plaintiff «-llipaidfifilorporation Taxes in respect of-zV:lth.e'l--. some period is accepted, it or title on him.
Thereforeiy record, which are disctiislsed that Hayavadana Rao was the: and upon his death his son/_s conti.n'ue.d7th'e tenancy and at no point of time, HR. pH'aya*tr'adana Rad "" "surrendered his tenancy rights. The sub--lease sought to be 1nade--out by the plaintiff also not proved by any acceptable evidence. _ Except; stating in the plaint filed in o.s. i250/1986 that it took property on lease from Hayavadana Rao, the plaintiff has not produced any documentary evidence to substantiate the said contention. In the present suit. he 41
25. As held by the Division Bench of this Court in the case of B.H. Rangaswamy 82. B.1'-I. Jalajak.s!r_rn_i' M/s. Mysore Arts and Wood Works, 1992 Kar 3632, a sub--tenant~bee-oniesa,V'4tenantv4di.re::t1y 1.
under the 1and--1ord as providedikbpy upon determination of sjtenant provided the snb--1ea/Ste wads'. '"A'o"so1ute1y no evidence is placed piaintiff to show that his alleged upon termination of tenancy ..:Ra(*,=§ he became the tenant of the Eseetidon 22 of the KRC Act.
26) »factA"vin""'i3ara--7 of the cross--eXamination, 'd it 3.-.ass'e.rts is not the sub--tenant in respect of schedule property. On the other hand, it is the case theddplaintiff in this suit that the 19* defendant is .. not owner of the property at all and he has no right this property and that he (plaintiff ) himself has '":b€C01I1€ the owner of the property by remaining in possession of the same for more than 15 years prior to 42 the suit. It was also the stand of the plaintiff that Hayavadana Rao was not the tenant of the proper_ty,_ and that upon Hayavadana Rao surrendering.--his'_1)e (plaintiff) entered into possession. of to knowledge of Defendant No.1. ':iTher_'e not in the case of the plaintiff.
that he entered into possession: propertylay Virtue of lease granted by the next breath, he contended never in possession of property. contended that he is in pqssessi;§;1 own right. In another breathulie hy remaining in possession of the property' fort.'-rnore"°than 15 years prior to the date of has perfected his title by adverse possession by V"e~ri_ghts of ownership. On top of these iriconsistent stand, he disputes the title of the 1"
.. defendant Gopala Naidn, in respect of schedule property. l "'._vVAsr':p1aintiff he cannot take such inconsistent pleas which are mutually destructive in nature. However, not even one of these inconsistent pleas is made good by the plaintiff 43 Therefore, the contention of the plaintiff that he is sub» lessee of the property and he is in possessioniplllof the property in that capacity also cannot be acc_epted_*:the same has been rightly rejected bymthe Court-j _'i'herep is no error committed by the Court -this' 'rega1"de.e
27. As noticed exce'pt.l_ sorne documents to show fizlectrlicity and Water charges and he has showing the address of /etc., the plaintiff has not evidence to show that he was of j the property as on the date of the T on 24.10.1994. Therefore, 'is required to be considered for the relief of is, whether the plaintiff was in lawful " the suit schedule property as on the date of the for, whether he was in settled possession of the so that his possession could be protected by means of an order of injunction even against the true owner. until he is dispossessed in accordance with law. 44 As noticed earlier, it was the specific case of the tenant- Hayavadana Rao that the plaintiff herein" his employee employed for collecting the lodging the lodgers. The said fact is als.omshown*'inv* and 13.22 produced by the plaintiff liiixrrselfl has been described as"l._vlVianalgAer: of Therefore, it is reasonable ltiieiplaiintiff in the capacity as the Manager of might have paid Electricity :and -I. if he might have corresporidel-§1"----\>:idfitli__ in that capacity. Therefore; which the plaintiff has prodtic.edt. to him to show that he was in possession 0f',the_pro;perty as on the date of the suit. M noticed earlier that the plaintiff herein had . " tiled "(5.S.1250/ 1987 against Hayavadana Rao for the reiiehflof permanent injunction interalia on the ground he is in possession of the property as a lessee under Hayavadana Rao, and he apprehends his unlawful dispossession. In that suit Hayavadana Rao denied the
-/&/' 45 said case of plaintiff. As could be seen from Ex. D15 the application filed by plaintiff in that suit for an order of Temporary Injunction came to be dismissed byholding that the plaintiff has not made--out any prhna for grant of temporary injunction. The appe-aifiled 4_ the said order before this Court 1jn"'IviFA also j it came to be dismissed as per x'U1ti1na'tel_V."
Ex.D_17 the said suit be non;
prosecution. Thus. from these drojcu:"in_entsé."it' isclear that. the piaintiff was not 'dpos'se.ssio'n,n__'of the schedule property'"a't.any tirrie"'either as a sub--lessee or in any other other hand, these documents showed iflayavadana Rao, till his lifetime and ' thereafter his heirs remained in possession of suit thereof.
29; of the documents which the plaintiff has produced and marked in evidence relate to the period stibsequent to 1994 and therefore those documents are of no assistance to establish possession as on the date of the 48 of a room in third floor from the year 2000. Though PW.4- H.Ka11eshappa in his exaIninati0n--in-chief, filed by way of affidavit has stated that he is in occupation'*Q:f«...d_R.Qom No.23. but does not say as to from occupation of the said room. .~Ho.weVer,vV'ii*£]the._'_er0ss¥'. examination, he has stated that h7ef"is in _t)eetipe,tiQn*.0f Room No.14 from 1995. Vd=.:PW.>5 El in his evidence states that Ropm NO;'2.3'v\ias.in dccupation of Sri. Hasmath Pasha. Advoeatel his office and that he [PW.§5}'i2ifas aittaehded of Sri. Hasmath Pashaandi a..1;aiterV,':::f3-fzie to located his chamber in the said roonr. Vvfiiejyever-;..jaecording to the affidavit filed by Sri. VH_asmath_"PaSha'.*_ the Certified Copy of which has been ass.'Ex.i33'0"in the Execution Proceedings, Sri. has stated that he was earlier paying rent ts Ha.y3.ifadfana Rao and later to the plaintiff. PW.6-- Rajendra Krishna in his exarr1ination--in--chief though if that he is the tenant of Room No.23, did not say as f -»-to from when he is in occupation of the said room. But, in the cross--eXamination, he has stated that he was the 5"' 50 any of the rooms as on the date of the suit. Therefore, the evidence of all these witnesses and the documents produced by them, do not satisfactorily prove on the date of the suit the plaintiff was in possession of the rest of the portion-of the
31. Even if the cont'entiori""the was in possession of the date of the suit is accepted for there is nothing on record to was lawful.
In the abse_r1c,e it also cannot be said in settled possession of the property.'*--de}- icfirciimstances, the plaintiff had no right' to seek' order of injunction against the Legal »ReprVes.entatives of Defendant No.1, who are shown to be the property from executing the decree for evictioifohtajned by them against the tenant. It is not v»onpe'n_tod'the plaintiff to contend that the decree obtained in i iagac No.2492/1989 is a collusive one. Since it is not the case of the plaintiff that he is a lawful sub--lessee of the 51 property, it is also not open to him to contend that he should have been irnpleaded as a party/ respondent to the eviction proceedings. It is well--settled an unlawful sub--lessee is not a necessary partyfto evictioii, proceedings. The decree passedribry 'evictions-against 'thek tenant binds the unlawful lawful sub~tenant who couldfihget status of a tenant uncle': theflandlord uponterinination of tenancy and not an unlawful-vsu'b--tenant;;_ In any case, in the present contention of the PlaintiffMlhatifhefiits either sub--lessee or unlawful sub--lessee, him as party/respondent to the eviction"proceedings.' Therefore, there is no substance "isthei,'"contention'"'of the plaintiff that since he is not favsiparty to the eviction proceedings, it is not binding~onf.hirn. On the other hand, the legal position is Very clear that the eviction order passed against the if 'tenant binds all persons claiming right under such tenant. ~»v--I::IaVing regard to the specific case of the plaintiff as pleaded by him in the suit filed by him in 0.8 No. /
-.
i l--,,g'eViletion order passed in HRC 2492/1989. 52 1250/1986, he alleged to have taken lease from H.R. I-Iayavadana Rao and since it is not established that it was a lawful sub--lease, the question of impleald_;i11g the plaintiff as party/respondent to the eviction'.'proeeedvings did not arise. Therefore, the eviction"'order'"pa'ssed "in such proceedings against the tenaritroif 'biirids the plaintiff also and pursulantgtols'uch deereei,_:vt,he in possession of the the tenant are liable to be evictedil discussion made above, it is clear_ locus--standi to questio11~ 'leg:/;'r<kx~;;~ltness of the order passed in "The plaintiff has failed to establishllthat._asfon'~~~"the _ date of the suit he was in " V' possession muchiess in lawful possession of the property in the building. Therefore, the Court vhasptilghtly held that he is not entitled for an order of injvunction restraining the defendants from enforcing 55 proceedings in HRC 2492/ 1989 against the heirs of H.R. Hayavadana Rao , since by then HR. Hayavadana Rao had died. By virtue of the decision of in Padmanabha Rao's case striking down '_ KRC Act, the Court of Small Causes at had' ;
jurisdiction to entertain the Section 21 of the K.R.C. non?» residential building, rnontiiiyijii_ren'teA.._'of exceeded RS500/--. Therefore! Small Causes, Bangalore, 3-eritertainedg and proceeded with thedmrn'atiter.V'i eviction order came to be passedon said eviction order was sought to be. execiited C{opa1a Naidu , the decree holder by E';"3if3C'i1'tiOI1Hi1V3V"('3'fiiitViOI1 No.233/1991. However, several to be in possession of the property, filed appiicattons nnder Order 21 Rule 97 of CPC in the said Fxecntvion petition. But the plaintiff chose to file the suit. In the meanwhile, in Shobha Surendar Vs. Rajan [1998 [8] sec 231), the Apex Court following its earlier decision in D.C. Bhatia Vs. Union of India 57 that the Court of Small Causes had no jurisdiction to pass such a decree in View of the decision of the Supreme Court and therefore, the decree is a nullity and nonwesiti The learned senior counsel by placing reliasice 4_ decisions of the Hon'ble Suprenie"€ou19_t tl:.atj the effect of such interpretationilbyl'*-the that the law as explained by'th:e-rApei< the beginning and the"re_fore~;""' fli2VQu1dllV'alWays have retrospective effect. V
33. On_tl1e other' counsel for the respondent/Adlei7en_dant4vr.C_:'cvo_ri--tended that since Court of Small Causes to pass decree as on that date; decreeis valid and the subsequent judgment of pS:.1vprernle.Court in Shobha Surendar's case cannot a nullity. He also submitted that having regard the fact that the plaintiff not being a lawful sub- V' liesisee and a person having no right over the property and no locus--standi to question the legality of the order passed in HRC 2492/1989, at the instance of such 58 person, this Court should refrain from holding that the decree is a nullity though the Supreme Court in subsequent decisions has held that the law the Supreme Court while interpreting statutory' 4_ unless it is specifically made prospective it. be retrospective one from the dateV_of Courts only explain as to whfatptheyh not makealaw. V i .__p V
34. The Apex Chandra Verma Vs. 'V Chance}llo:r,e::;Ngtgpt{r CU'-izllixiiersity reported in 1990.' held that when the Court decides that"theinterpretation of a particular provision as _ ' giveifi éarlier it in effect declares that the law the beginning was as per its decision, and the law otherwise. This view has been V p reitue1'at'ed the Supreme Court in Sarwan Kumar Vs. 'illiltii/i.:'1r1VV"Lal Aggarwal [2003 (4) SCC 147) by observing when the Court decides that the interpretation given to a particular provision given earlier was not legal, it S9 declares the law as it stood right from the beginning as per its decision. In M.A. Murthy Vs. State of Karrtataka [2003 (7) SCC 517], after referring to sever"al:'f'«-.earlier decisions, the Apex Court has observedjiin under:-- _ _
8. The learned coun=spel1'for'lthe_ submitted that the approach' 'the VA is erroneous as the lavv<decl_ared*blythislilourt is presumed at «all "'tin1es.
Normally, the decision' enunciating a princip-l'e__of law « all cases irrespeéjtiveof its stagexof peridency because it enunciated by the S"up1'«e1ne in fact. the law from incep--1:ion.r doctrine of prospective overrulin'g.l:vvv_hi:eh is a feature of American pjuirisgprudence is an exception to the normal _ ' law, was imported and applied for time in L.C. Golak Nath Vs. State of it In Managing Director, ECIL Vs. B. l * Kizrunakar the View was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding ;./ 60 the law declared by it earlier. lt is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedingS,.A..fci!V'll:V<i' avoid uncertainty and avoidable litigation:l,:"3..'ln * other words, actions taken contrary"'ta:'th'ei»:law '4 declared prior to the date ofldjeclara'ti.ori..'are,pi' validated in larger public interest. lawn "
declared applies to cases.' Kumar Gupta Vs. State_.£lffp'U,P..._pandBaburdm Vs. C.C. Jacob}. It Viszfor t:his;_ indicate as to whether the decision Operate prospectifie_I'\r. Qfijier shall be no it is so indicated in decisi--on."§ It is not open to be held a particular case will be' prospec.tive- "application by application _.Of the" doctrine".ofllprospective overruling. The doctrine '°oi~'-- ---- -«rbindin recedent hel s in _ .A P P pro1rio_t'in_g certainty and consistency in judicial V. d'eiiisior1;'s""ar1d enables an organic development of'thle~V' law besides providing assurance to the 'individual as to the consequences of it lllktransactions forming part of the daily affairs.
-- That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative 63 contended that he has been collecting the rents from the tenants from 1979 itself, the evidence placed on record, do not establish the said contention. On the other. certified copy of affidavit filed by a marked as Ex.D.3O clearly indicates who are the applicants before paying rents to Hayavadana.:.:R'3o and they are paying rents to th.e,.plainiti'ff.'Vf'Iihi's._affidavit filed on 28.02.1991. As ,'t;he'_»__ora1 evidence of PWS. 2 to the ijdocurnents marked thrOUgh"fli'®IYI;.'i, 2 to 9 came to occupy portions. of. the p'ro_p,ertyi"sn,bsequent to the date of filing of the suit. 'l'herefo.re,'=_the'se evidences are of no assistance "Vi"-.to"lithe?plaintiff'irfproving that he was in possession 5% 3./' date of suit. Therefore as on the date of the is not clearly established by the plaintiff that '"hepwas...collecting the rents from the person in occupation =o_f*the various portions of the property, as such, it cannot ~-be said that he was in constructive possession of the property through his so--cal1ed tenants. Therefore, at the 2! a/ 64 instance of the plaintiff who is shown to be not in possession of the property except one room _in the building, as on the date of the suit, it is not properffor-this Court to hold that the eviction order passerlibyl. of Small Causes is a nullity and-r j.
observed earlier, the plaintiff no question the said order andjatp his instance,"-,the decree cannot be declared as,' a cou'rse';"lit is Well- settled law that if by fraud or collusion, the can gbelquestionefld in any proceedings and eveni'i'n:ia collateral"proc'eed'iVngs. It is not the case of plaintiff that the 181 defendant obtained eviction order .again_st""'the heirs of Hayavadana Rao. P;xcept.,"emalgingllVabald statement that the eviction order o't.;tained.:pislrla,.cgllusive one, the plaintiff has not placed any evi--.r,i_ence~ has brought out any circumstances to indicatethat there was a collusion between the petitioner 'A.a'n-d..l'respondent in HRC 2492/1989, as such, the eviction order passed is a collusive one. Therefore, this is not the proceeding in which the plaintiff should be permitted to p/@,,,,