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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.3210 OF 2020 (GM-CPC)
BETWEEN:
MEHRUNNISA THARA,
W/O HANIF THARA,
AGED ABOUT 64 YEARS,
R/AT NO.140 OLD THARAGUPET,
BENGALURU -560002.
REPRESENTED BY HER HUSBAND
AND SPA HOLDER
HANIF THARA,
S/O LATE KADER,
AGED ABOUT 71 YEARS,
NO.140, OLD THARAGUPET,
BENGALURU-560 001.
SENIOR CITIZEN BENEFIT NOT CLAIMED.
... PETITIONER
(BY SRI.RAJESWARA P N, ADVOCATE)
AND:
AHMED YOUNUS KHAN,
S/O MOKTHAR KHAN,
AGED ABOUT 37 YEARS,
R/AT NO.79 THARAVILLA,
FLAT BEARING NO.B-1, 2ND FLOOR,
3RD CROSS, RANOJI RAO ROAD,
BASAVANAGUDI,
BENGALURU-560004
...RESPONDENT
(BY SRI. N J RAMESH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THAT
THE ORDER DTD.14.1.2020 ANNEXURE-A REJECTING THE
EXECUTION PETITION FILED BY THE PETITIONER AS NOT
MAINTAINABLE PASSED IN EXECUTION PETITION
NO.1648/2019 BY THE HONBLE LXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH 69) AND ETC.
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THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY THROUGH PHYSICAL
HEARING, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner being the Decree Holder in Execution Petition No.1648/2019 is invoking the writ jurisdiction of this Court for assailing the order dated 14.01.2020, a copy whereof is at Annexure-A whereby the learned XLVIII Addl. City Civil Judge, Bengaluru city has dismissed the execution proceedings as being not maintainable.
2. After service of notice, the respondent-JDr having entered appearance through his counsel, resists the writ petition making submission in justification of the impugned order and the reasons on which it has been structured.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter as under and for the following reasons:
(a) Petitioner lady being a senior citizen has filed a suit for possession in O.S.No.5346/2016 and the respondent being the defendant tenant is opposing the same by filing the Written Statement; there is absolutely 3 no dispute as to the vinculum juris of landlord and tenant between the parties arising from the lease deed in question; suit having been decreed on 02.01.2018, the said decree having been set aside, matter came to be remanded for trial afresh vide judgment dated 13.12.2018 rendered by a Co-ordinate Bench of this Court in respondent's RFA No.541/2018; the said Judge had reserved liberty to the petitioner herein to apply for a direction to the respondent-tenant to deposit the arrears of rents.
(b) In terms of the liberty reserved in above RFA judgment, petitioner made an application which was favoured by the learned Judge of the Court below vide order dated 12.04.2019 and it's operative portion reads as under:
"I.A.No.5 filed by the plaintiff under Section 151 of C.P.C., is hereby allowed. The defendant is directed to pay the admitted rent of Rs.17,640/- per month from July 2016 till disposal of the case."
(c) Respondent's Writ Petition No.22063/2019 challenging the direction in the above order for payment of arrears of rent came to be dismissed by this Court vide judgment dated 26.06.2019 wherein the operative portion is phrased as under:
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"In the above circumstances, this writ petition being devoid of merits, stands rejected; however, to safeguard the interest of both the sides, the amount payable and accruing under the impugned order shall be deposited in the Court below forthwith, subject to outcome of the suit.
It is needless to mention that discretion lies with the Court below to release some reasonable portion of the amount to be deposited in favour of the respondent if grounds therefor are made out."
The above order was innocuous inasmuch as the direction to pay the rent to the petitioner was modified as the one for depositing the rental amount in the court below subject to outcome of the suit; respondent-tenant's challenge to the same in SLP No. 22595/2019 came to be negatived by the Apex Court vide Order dated 13.11.2019 which has the following text:
"We see no reason to interfere with the impugned order of the High Court.
The Special Leave Petition is, accordingly, dismissed. Pending Applications(s) stand disposed off."
(d) Petitioner had put the above order for depositing the rent, in enforcement by filing Execution Case No.1648/2019; the same was opposed by the respondent contending that the "executable order" of the court below was "modified into non-executable order" by the writ court and that under the modified direction he was required only to deposit the arrears of rent and not 5 pay the same to the petitioner. Agreeing with the version of the respondent, court below has dismissed the execution case; this dismissal is nothing but a travesty of justice, to say the least, since the direction for depositing the rent was retained intact and therefore, there is absolutely no justification for not ensuring the deposit of the arrears of rent; the court below proceeded on a wrong assumption that the order of the trial Judge to pay the arrears of rent to the petitioner was absolutely wiped out by the writ of this court in respondent's writ petition, when the text of the writ order is as clear as can be.
(e) The reasoning of the court below for dismissing the execution that there is no "executable decree" and that the order made on I.A.No.5 directing the respondent to deposit the arrears of rent is "not executable", is ridiculous, again to say the least and is in gross disregard of centuries old maxim executio est finis et fructus legis which literally means that an execution is the end and fruit of the law; the term "execution" is used as an accomplishment of the 'judgment' or 'order' passed by any court of competent jurisdiction; it sounds strange that the learned Judge of the court below finds the trial court order as affirmed by this Court in writ jurisdiction and 6 confirmed by the Apex Court in SLP, as inexecutable; thus, there is a grave error of law apparent on the face of the record warranting interference of this Court for setting it right and thereby to undo the injustice occasioned to the landlady thereby.
(f) The vehement contention of learned counsel for the petitioner-landlady that the resistance of the respondent-tenant to the execution on the ground of inexecutability of the order in question is abundantly unconscionable apart from being legally untenable, has a lot of force; an unscrupulous tenant who abuses process of the court by not obeying the writ of the constitutional court does not merit grant of any mercy in judicial process; the contention of the tenant that because of COVID Pandemic his business has become sluggish and therefore he is not in a position to obey the order in execution, is only an after-thought; that was not his case before this court on the earlier occasion nor before the Apex Court in his SLP; even here he does not offer to pay the rental arrears in easy instalments; learned counsel for the tenant only repeats the ground of "inexecutability of the writ", as a priest mindlessly chanting the same mantra 7 time & time again with no yield; that would not much come to his rescue.
(g) One more aspect needs to be mentioned that may arguably cast aspersion on the conduct of the respondent-tenant: in variance with the terms of the lease which mentioned the monthly rate of rent to be Rs.16,000/-, the respondent-tenant had claimed that the rate of rent was only Rs.1,600/- and in support of that he had relied upon the document which was stoutly disputed by the petitioner-landlady, as being concocted and forged; the said document was referred by the Co-ordinate Judge of this court for forensic examination and that the handwriting expert gave a report to the effect that it was forged; it is bit difficult to assume that in a costly city like Bangalore and more particularly, in the area in which the suit premises is situate, there can be a rent at such a frugal rate during the relevant period; be that as it may since this is a matter which has to be thrashed out in the trial of the suit and therefore, no opinion is expressed by this court on the same.
(h) The above apart, the respondent-tenant in his applications and objections filed in the Execution Case 8 has made wild allegations both against the petitioner and her counsel contending that they have abused the court order by receiving a bank cheque for a sum of Rs.3 lakh plus; even if such a receipt is arguably true that would not render the order/writ in question any the less executable especially when liberty was reserved to the petitioner by the Co-ordinate Bench in the RFA judgment to seek release of a part of rent amount if deposited, presumably for the sustenance of her family; what anguishes more this court is the recalcitrant attitude of the respondent-tenant in disobeying the writ of this court with impunity by not depositing the huge rental arrears and still squatting the tenanted premises; just by repeating the contention that the order for depositing the rent is legally & factually wrong and therefore, such an order needs no obedience; this is an affront to the judicial process and authority of courts.
(i) The Apex Court in State of Punjab Vs. Gurdev Singh, AIR 1992 SC 111 at para 6 quoting two jurists of yester years namely Wade & Forsyth has observed as under:
"6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v.9
East Elloe Rural District Council, 1956 AC 736 at p. 769 Lord Radcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
It is so because court orders do not bear a brand of invalidity on their forehead and that conceding to the parties of a litigation the liberty to self-adjudge their invalidity sans any legally constituted challenge, would strike the death knell of rule of law and its consequences would be disastrous to an orderly society; of course there may be cases that may register exceptions to this, is beside the point.
(j) In more or less a comparable fact matrix, i.e., M/s Janardhan Enterprises Vs. B. Jayalakshmi and others, W.P.No.46851/2018 decided on 25.10.2019, this court had directed as under:
"In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioners subject application having been favoured, a direction issues to the respondent - tenant to deposit all the arrears of rent in the Court below within a period of eight weeks, failing which, his defence shall be struck off and the suit shall be decreed at once... The 10 respondent tenant is liable to pay a cost of Rs.25,000/- to the petitioners."
The said respondent-tenant's challenge to the above order in SLP No.30095/2019 came to be negatived by the Apex Court vide order dated 25.10.2019, with the following observation:
"Heard. We are not inclined to interfere with the impugned order. The special leave petition is, accordingly, dismissed.
Pending application shall also stand disposed of."
The relief granted to the landlord litigant in the said case merits to be granted to the landlady in this case on the rule of parity if not precedent, the fact matrix and the law applicable being substantially similar.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order; the subject execution proceedings are restored to the Board of the court below and learned Judge of the Executing Court is directed to accomplish the execution proceedings on merits by enforcing the direction for depositing arrears of the rent at the rate of Rs.17,640/- per month computed from July 2016 till date within eight weeks, if necessary by invoking the police power of the State.
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It is also open to the learned Judge of the Court below to strike off the pleadings & defence of the respondent-tenant in the suit in O.S.No.5346/2016 and thereby facilitate the decreeing of the same at once, if the respondent does not deposit all the arrears of rent within eight weeks in compliance of the order in execution.
It hardly needs to be mentioned whatever payment the respondent-tenant has provenly made to the petitioner-landlady or deposited in the court shall be given due discount in quantifying the arrears of rent due.
Respondent is liable to pay a cost of Rs.50,000/- to the petitioner.
The learned Judge of the court below shall submit the compliance report to the Registrar General of this Court in the week following the expiry of the period of eight weeks aforesaid.
The Registry shall mark a copy of this order to the learned Judge of the court below for updating his knowledge of law.
Sd/-
JUDGE Snb/cbc