Bangalore District Court
Mr. Syed Iliyaz vs Sri.Abdul Khuddus on 5 March, 2020
IN THE COURT OF LXIV ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU CITY
Dated this 5th day of March, 2020
-: P R E S E N T :-
Sri. RAJESHWARA
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
O.S.3058/2017
PLAINTIFF: : Mr. Syed Iliyaz,
S/o. Mr.Pasha,
Aged about 57 years,
Proprietor, M/s. Kuba's,
Shop No.5, Diamond Plaza,
No.50, Ibrahim Saheb Street,
Bengaluru-560 001.
(By Sri. G.S. Venkat Subbarao,
Advocate.)
/Vs/
DEFENDANT : Sri.Abdul Khuddus,
S/o. Late Abdul Rahim Saheb,
Aged about 60 years,
R/at. No.10, 2nd Cross,
Srinivas Colony,
Bengaluru-560 027.
2
O.S.No.3058/2017
(By Sri. A.Sathish, Advocate.)
1. Date of institution of the : 26.4.2017
suit
2. Nature of the suit : Injunction suit
3. Date of commencement of : -
recording of evidence
4. Date on which the : 05.03.2020
judgment
was pronounced
5. Duration : years months days
2 10 10
JUDGMENT
Plaintiff filed this suit against the defendant seeking relief of permanent injunction restraining the defendant, his agents and servants or any persons claiming through or under him from dispossessing the plaintiff from the suit schedule premises unless otherwise by due process of law
2. Brief averments of plaint stated as under:
In the plaint plaintiff submitted that, plaintiff is a tenant in respect of suit schedule property. Suit schedule 3 O.S.No.3058/2018 property belongs to the defendant. Rent for the suit schedule property was periodically enhanced up to Rs.13,500/- per month.
3. Further, plaintiff submitted that, defendant permitted the plaintiff to occupy the suit schedule property as lessee. There is no document of lease executed between plaintiff and defendant. Petitioner is regular in paying rent. Plaintiff paid rent upto November 2006 regularly.
4. Plaintiff further submitted that, he is carrying wholesale and retail sale of fancy dress material business in the name and style of M/s. Kubra's. Firm of the plaintiff is registered with statutory authorities. He obtained Value Added Tax Registration Certificate. Plaintiff further submitted that, in the month of November 2016, defendant has not accepted rent and thereafter started to avoid receiving rent till January 2017. Hence, plaintiff sent rent for the month of November December, January through cheque for 4 O.S.No.3058/2018 Rs.40,500/-. The said cheque was not returned to the plaintiff. On enquiry with the postal authorities, he came to know through letter dated 16.6.2017 that, the registered letter sent by the plaintiff on 31.1.2017 was duly served upon the defendant. Hence, defendant received rent for November, December, January 2017. Plaintiff further submitted that, even after receiving rent, defendant demanded the plaintiff to vacate and deliver the vacant possession of the suit schedule property. Plaintiff submitted that, plaintiff is carrying of business in the suit schedule property for over a period of 10 years. Plaintiff and his family members are working under the plaintiff are depending upon the business of the plaintiff for their livelihood. Plaintiff cannot dispossess him from the suit schedule property without following due process of law. Plaintiff further submitted that, once again he approached defendant to tender rent. Defendant came near the suit schedule property with men, material and attempted to dispossess the plaintiff on 24.4.2017. Defendant is influential person in 5 O.S.No.3058/2018 the locality, having back up of men and material. Plaintiff being law abiding citizen is unable to prevent unlawful activities of the defendant in dispossessing him from the suit schedule property. Plaintiff is in possession of huge stock in trade. Defendant has got no manner of right to disposes the plaintiff from the suit schedule property without following due process of law. Cause of action to this suit arose on 24.4.2017. Plaintiff paid court fee as per valuation slip. For the said reason, plaintiff prayed to decree the suit.
5. Defendant appeared through counsel and filed written statement. In the written statement, defendant submitted that, suit filed by the plaintiff is not maintainable either in law or on facts. Hence, same is liable to be dismissed. Averments made in para No.4 of the plaint with respect to enhancing rent upto Rs.13,500/- per month is not true. Defendant specifically denied the relationship of owner and tenant between the plaintiff and defendant. Averments made in para No.6 to 8 in the 6 O.S.No.3058/2018 plaint are false and incorrect. Defendant denied that, plaintiff is carrying on business in the name of M/s. Kubra's since 2005. Defendant denied receipt of Rs.40,500/- rent on 30.1.2017 through cheque by plaintiff. Defendant denied endorsement issued by postal authority on 6.3.2017 about service of letter issued by the plaintiff. The averments made in para 13 to 15 are all denied as false.
6. Further defendant submitted that, one Sheik Anwar Pasha inducted as tenant by this defendant as per Rent Agreement dated 17.7.2015 for monthly rent of Rs.9,000/-. Later monthly rent was enhanced up to Rs.14,800/-. The said Sheik Anwar Pasha paid rent from January 2016. Defendant had given a legal notice on 24.9.2016 to him to vacate suit schedule property. The said Sheik Anwar Pasha issued reply to the legal notice through advocate dated 19.12.2016 with false allegation. Hence, defendant filed O.S.No. 1718/2017 before Addl.City Civil Judge (CCH-60) against said Sheik Anwar Pasha. Despite service of summons to the said Sheik 7 O.S.No.3058/2018 Anwar Pasha, he remained absent. Later by engaging counsel, Sheik Anwar Pasha proposed a compromise, agreeing to vacate the suit schedule property, in the event a lumsum amount is paid to him. This defendant agreed for the terms of compromise. Accordingly on 25.4.2017 compromise was entered in the said suit. The said suit decreed in terms of compromise. As per the said terms of compromise decree, Sheik Anwar Pasha agreed to quit, vacate and deliver the vacant possession of the suit schedule property within 30 days after receipt of Rs.9,00,000/-. Defendant filed Execution case No.1697/2017 to execute the compromise decree which is pending.
7. Defendant further submitted that, plaintiff herein is none other than son-in-law of said Sheik Anwar Pasha. Said Shiek Anwar Pasha under the pretext of compromise with this defendant has set up the plaintiff and got filed this frivolous suit. The said Sheik Anwar Pasha is playing tricks of this defendant with an intention to harass the defendant. Hence, suit is not 8 O.S.No.3058/2018 maintainable. No cause of action to institute this suit. Suit is frivolous. For the said reasons, he prayed to dismiss the suit with exemplary costs.
8. By considering the averments made in the pliant, denials made in the written statement, contents of documents and other materials our predecessor-in-office framed following issues:
1. Whether plaintiff proves that he is in actual and lawful possession of suit property as on the date of suit?
2. Whether plaintiff further proves that, defendant is causing illegal interference in his peaceful possession and enjoyment of suit property, as averred in the plaint?
3. Whether plaintiff is entitle for the relief sought for?
4. What Order or Decree?
9. On 4.12.2019 advocate for the defendant filed memo with certified copy of the order passed in W.P.No.25243/2019 dated 27.9.2019. Even as per the request made by advocate for plaintiff, matter was 9 O.S.No.3058/2018 referred for Lok-Adalath. In the Lok-Adalath both counsels as well as defendant submitted that matter may be settled in terms of compromise petition filed in WP.No.25243/2019 before Hon'ble High Court of Karnataka. In view of the said settlement, matter was send back to the regular court for disposal. On 24.1.2020 advocate for defendant submitted that matter is settled in W.P.No.25243/2019. He produced copy of the judgment passed in the said Writ petition. Hence, prayed to dispose of the suit in accordance with terms of compromise. Again matter was posted for Lok-Adalath. Matter was not settled. On 13.2.2020 evidence by plaintiff side was taken as nil. Then matter was posted for evidence by defendant's side. Advocate for the defendant submitted no evidence by the defendant's side.
10. Heard arguments.
11. My findings on the above Issues are as under:
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3: In the Affirmative 10 O.S.No.3058/2018 Issue No.4: As per final order for the following:
REASONS
12. ISSUES NO.1 TO 3:- These issues are taken together to avoid repetition of discussion.
13. In view of absence of evidence by the plaintiff as well as defendant, it is just and necessary to consider terms of compromise entered in WP.No.25243/2019. Compromise petition under Order 23 Rule 3 filed in W.P.No.25243/2019 states as follows;
1. The petitioner/ decree holder is the respondent owner/landlord of the shop premises bearing No.05, situated in ground floor of property bearing No.50, Ebrahim Sahib Street, Civil Station, Bangalore 560 001, measuring 180 sq.ft which is more fully described in the schedule hereunder and herein after shall be referred to as schedule property.
2. The petitioner/ decree holder beinbg the owner of the schedule property ahd leased the 11 O.S.No.3058/2018 property in favour of the respondent No.2/ judgment debtor herein upon receipt of Rs.10,000/- (Rupees Ten Thousand only) as a security deposit and the rent was fixed at the rate of Rs.13,700/- per month.
3. The petitioner/ decree holder after issuing termination notice filed a suit of ejectment against the respondent No.2/ judgment debtor in O.S.No.1718/2017 in which proceedings ended in compromise and the compromise decree was drawn by order dated 27.4.2017, wherein the respondent No.1/ judgment debtor agreed to vacate the schedule property by receiving Rs.9,00,000/- from the petitioner/ decree holder and conceded to the decree of ejectment and accordingly decree was passed in favour of petitioner/ decree holder. Despite agreeing under compromise, the respondent No.2/ judgment debtor did not surrender and vacate the suit schedule property. 12
O.S.No.3058/2018 Based on the said decree, an execution in Ex.No.1697/2017 is filed.
4. The respondent No.1/ objector herein entered appearance and opposed the said execution on the ground that the judgment debtor was working with him and at no point of time the judgment debtor was a tenant in the said property as the judgment debtor is a permanent resident of Mumbai, it is the objector who is carrying on the business in the schedule property. It is his further contention that the decree obtained by the decree holder in O.S.No.1718/2017 is a result of collusion between the parties as such the same is not binding on him.
5. At this stage, at the intervention of Well- wishers, friends and this hon'ble court, the decree holder judgment debtor and the objector have settled the dispute amicably, on the following terms and conditions;-
13
O.S.No.3058/2018
a) The objector herein admits that, the decree holder is the owner and the landlord of the schedule premises.
b) The decree holder herein concedes that the objector is in occupation of the schedule premises and running business as the proprietor of Kubra's Fashions.
c) The decree holder has agreed to pay a sum of Rs,9,00,000/- (rupees nine lakhs only) to objector, that was earlier agreed to be paid to judgment debtor after delivery of vacant possession of schedule premises. Till then the said amount shall be retained by decree holder as security deposit and the judgment debtor has also conceded to the same and has no claims on the said Rs.9,00,000/- (Rupees nine lakhs only).
d) The objector admits that, he is in occupation of schedule property without paying any rents from November 2016 and is due in rents to the decree holder / petitioner in a sum of Rs.5,00,000/- ( Rupees five lakhs only). In terms of the compromise, the objector/ respondent No.1 is paying Rs.5,00,000/- by way of demand draft bearing No.729051, dated 27.9.2019 drawn on Kotak Mahindra Bank, Infantry Road Branch, Bengaluru to the decree holder towards arrears of rent. The objector assures and undertakes to pay the monthly occupancy charges promptly during the term of this compromise on or before 5th day of every succeeding month.
e) The tenancy stands terminated but the objector/ respondent No.1 has requested for some time to shift his business without 14 O.S.No.3058/2018 seeking for extension of lease or without treating such occupation as a lease and accordingly, the petitioner/ decree holder has agreed to grant time till 31.1.2023 subject to payment of occupation charges as herein below stated.
f) The decree holder in view of the objector conceding to vacate the schedule property on or before 31.1.2023 has agreed to permit the objector to continue in possession of the schedule property till 31.1.2023. The judgment debtor and objector agrees that this compromise itself shall not be treated as fresh lease and the objector shall hand over vacant possession of the suit schedule property on or before 31.1.2023.
g) During the terms of this compromise, the objector herein undertakes to pay a sum of Rs.30,000/- ( rupees thirty thousand only) per month as occupancy charges (from 1.10.2019 to 31.5.2021) for use and occupation of the schedule property and thereafter he has agreed to enhance the occupancy charges to Rs.35,000/- (rupees thirty five thousand only) per month (from 1.6.2021 till 31.1.2023) and pay the same to the decree holder.
h) The objector agrees to pay the occupancy charges regularly on or before 5th of every month to which month the occupancy charges fall due, by way of depositing the same in the savings bank account No.0131058050800, IFSC code No.IBKL0000008, MICR code No.560259002, of the decree holder in IDBI Bank, Mission Road Branch, Bengalore. The objector shall furnish to the decree holder, the TDS challans every month promptly for the 15 O.S.No.3058/2018 TDS amounts deducted from the monthly rents.
i) The objector shall pay the occupancy charges only by depositing amounts in bank account of the decree holder only and not through any other mode.
j) The objector further agrees upon failure to pay occupancy charges for two consecutive months the decree holder shall have a right to enforce the compromise immediately and he shall be entitled to recover the possession of the schedule property, forthwith by executing the compromise decree.
k) The decree holder acknowledges to refund Rs.9,00,000/- ( rupees nine lakhs only) to the objector if the objector vacates the schedule property promptly in terms of this compromise.
i) The decree holder agrees that he shall refund the security deposit (interest free) of Rs.9,00,000/- back to the objector after receiving vacant possession of the schedule property from the objector, subject to deductions if any towards arrears in rent, damage to property etc. The failure to pay the same within 15 days after receiving the vacant possession by the decree holder, the same shall be a charge on the property and he shall be liable to pay interest on the security deposit @ 18% per annum.
m) The objector agrees to pay all the charges for the electricity and water consumed in the schedule property during the term granted under this compromise, levied by BESCOM from time to time as per the bills raised and 16 O.S.No.3058/2018 arrears if any shall be deducted from the deposit amount. The objector shall furnish proof of the same at the time of handing over vacant possession of the schedule property.
n) The objector hereby agrees not to sub- let/under let or assign this decree or part with possession of the schedule property or any portion thereof to any third party and its violation shall be treated as breach of compromise and the decree holder shall be entitled to enforce this decree immediately.
o) The objector agrees not to damage make any structure alterations to the suit schedule property.
p) That the objector paying the occupancy charges herein promptly and observing and performing the terms and conditions on the objector's part herein contained, the objector herein shall be entitled to peaceful and quiet use and enjoyment of the schedule property during the term granted under this compromise, free from any sort of interference from the decree holder.
q) In the event the property is sold to any third party before 31.1.2023, the decree holder shall attorn the rights and liabilities accrued under this decree/ compromise in favour of the prospective purchaser.
r) The objector herein undertakes to vacate the property on or before 31.1.2023 without driving the decree holder to approach this hon'ble court. The objector undertakes not to seek any extension of time and he further undertakes to pay the rents agreed supra regularly. The decree holder also undertakes to pay the security deposit back to the 17 O.S.No.3058/2018 objector as agreed supra without driving the objector to approach court.
s) In view of the compromise herein, the judgment debtor herein admits that he has no right and interest in the schedule property and if any rights did exist the same shall cease by virtue of this compromise and he further admits that he has no claim of whatsoever against the decree holder or against the schedule property. In the eventuality of enforcing this decree for non-compliance of this compromise, the decree holder shall proceed only against objector herein without making the judgment debtor a party to the said proceedings as the judgment debtor ceases to have any rights against decree holder or against the suit schedule property.
t) The objector agrees that for any notice or communications to the issued, the same may be served to the objector at the address of the schedule property. The decree holder may be served at the address mentioned in the cause title of this petition.
u) There are certain proceedings pending between the parties herein viz., O.S.No.3058/2017, O.S.No.8637/2017, Crime No.22/2019, and Crime No.42/2019, and Ex.No.1697/2017. All the parties to these proceedings shall make endeavor and co-
operate with each other to withdraw/compromise/settle withint 30 days, all other proceedings pending against each other and shall not make any sort of claims against each other, except one which is agreed under this compromise.
18
O.S.No.3058/2018
v) The objector shall not block the passage by keeping generator or any other stock in the passage that creates obstruction in the passage.
w) The decree holder, judgment debtor and objector have entered into this compromise out of their own free will without any force or coercion.
In view of the order passed by the Hon'ble High Court of Karnataka on the basis of the aforesaid compromise petition filed to test the Execution case No.1697/2017, nothing survive in this suit, except accepting the terms of compromise and order passed by Hon'ble High Court of Karnataka in W.P.No.25243/2019.
14. Plaintiff has not filed any modified order passed either by the Hon'ble High Court of Karnataka or by the Hon'ble Supreme Court of India.
15. Plaintiff has got no right or cause of action to institute this suit against the defendant seeking equitable relief of injunction from taking vacant possession of the 19 O.S.No.3058/2018 suit schedule property. Plaintiff not produced documents or lead evidence to show that, he is entitled to get protection under Rent Act.
16. In view of the compromise decree passed by the Hon'ble High Court of Karnataka in W.P.No.25243/2019, plaintiff abused process of court by instituting the suit by suppressing the fact for which plaintiff is liable to penalized by imposing costs. Hence, plaintiff failed to prove that, he is in lawful possession of the suit schedule property as on the date of suit.
17. Further, plaintiff failed to prove illegal interference by the defendant for his enjoyment in the suit schedule property. For the said reasons, plaintiff is not entitled for any relief as prayed in the plaint. Hence, issues No.1 to 3 are answered in the negative.
18. ISSUE NO.4: Even after entering into the compromise by the original tenant, plaintiff claiming that, he is tenant in the suit schedule property. Plaintiff 20 O.S.No.3058/2018 has not approached the court to seek equitable relief in clean hands. Hence, plaintiff is liable to make good the expenses incurred by the defendant to contest this suit. Hence, following order is made;
ORDER Suit filed by the plaintiff is hereby dismissed with cost of Rs.3,000/-.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on this 5th day of March 2020).
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-65), BENGALURU CITY.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
NIL DOCUMENTS MARKED FOR THE PLAINTIFF:
NIL WITNESSES EXAMINED FOR THE DEFENDANT: 21
O.S.No.3058/2018
-Nil-
DOCUMENTS MARKED FOR THE DEFENDANT:
-Nil-
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY. 22 O.S.No.3058/2018 23 O.S.No.3058/2018 24 O.S.No.3058/2018 25 O.S.No.3058/2018 5.3.2020 Judgment pronounced in open court vide separate Judgment.
ORDER Suit filed by the plaintiff is hereby dismissed with cost of Rs.3,000/-.
Draw decree accordingly.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
26 O.S.No.3058/2018