The Chief Officer vs Shri. Gopinath Bhandarkar
2021 Latest Caselaw 5928 Kant

                                                  RSA 1928/2011
                                 1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF DECEMBER, 2021

                           BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                     R.S.A.No.1928/2011

BETWEEN:

THE CHIEF OFFICER,
TOWN MUNCIPALITY,
VIJAYAPURA, DEVANAHALLI TQ,
BANGALORE RURAL DISTRICT,
REPRESENTED BY ITS
CHIEF OFFICER 562110.                     ... APPELLANT

(By Sri J.G.Chandramohan, Adv.)

AND:

1.     SHRI. GOPINATH BHANDARKAR,
       S/O BALAKRISHNA BHANDARKAR,
       AGED ABOUT 50 YEARS,
       R/O J. C. LAYOUT,
       VIJAYAPURA TOWN,
       DEVANAHALLI TALUK,
       BANGALORE RURAL DISTRICT-562110.

2.     SHRI. A. MILCO
       S/O M. M. DAS,
       AGED ABOUT 45 YEARS,
       R/O KOLAR ROAD,
       VIJAYAPURA TOWN,
       DEVANAHALLI TALUK,
       BANGALORE
       RURAL DISTRICT-562110 .            ... RESPONDENTS

(By Sri B.Ravindra, Adv. for R2;
     v/o dtd:23.06.2016 appeal against r1 stand
     dismissed)

     This Regular Second Appeal is filed under section 100 of
CPC., against the judgment and decree dated 19.10.2010
                                                 RSA 1928/2011
                              2


passed in R.A.No.109/2008 on the file of the Presiding Officer,
Fast Track Court, Devanahalli, dismissing the appeal and
confirming the judgment and decree dated 4.10.2008 passed in
O.S.No.47/2003 on the file of the Prl. Civil judge (Jr.Dn) &
JMFC., Devanahalli.

      This appeal coming on for admission, this day, the court
delivered the following:

                         JUDGMENT

1. This Regular Second Appeal is filed by defendant

no.2 challenging the judgment and decree dated

04.10.2008 passed by the Principal Civil Judge (Jr.Dn.) &

JMFC, Devanahalli, in O.S.No.47/2003, which has been

confirmed in R.A.No.109/2008 by the Fast Track Court,

Devanahalli, vide judgment and decree dated 19.10.2010.

2. For the sake of convenience, the parties are referred

to by the rank assigned to them in the court at first

instance.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, the plaintiff had

filed O.S.No.47/2003 before the Trial Court against the

defendants seeking the relief of permanent prohibitory

injunction restraining defendant no.2 from proceeding RSA 1928/2011

against the plaintiff in pursuance of rent agreement dated

01.11.1998 other than due process of law with respect to

suit 'A' schedule property.

4. It is the case of the plaintiff that he is the absolute

owner in possession of the house property described in

suit 'A' schedule property and defendant no.1 was the

tenant of defendant no.2 in respect of suit 'B' schedule

property. Defendant no.1 had entered into a rent

agreement with defendant no.2 in respect of suit 'B'

schedule property agreeing to pay a rent of Rs.14,950/-

per month to defendant no.2 and it was further agreed by

defendant no.1 that if he fails to pay rent continuously for

a period of three months, defendant no.2 is entitled to

cancel the agreement and take possession of the property.

The plaintiff had stood surety on behalf of defendant no.1.

Since defendant no.1 had not paid the rent in respect of

suit 'B' schedule property to defendant no.2, defendant

no.2 had issued a notice on 02.12.2003 calling upon him

to pay the rent and defendant no.1 had replied to the said

notice calling upon defendant no.2 to withdraw the notice.

RSA 1928/2011

After receiving the reply, defendant no.2 had not taken any

steps against defendant no.1. Subsequently, defendant

no.1 had filed a suit in O.S.No.380/2002 against

defendant no.2 restraining him from interfering with the

possession of defendant no.1 and in the said suit, a

compromise decree was passed. It is the case of the

plaintiff that though defendant no.2 had not proceeded

against defendant no.1 for recovering the rent, he

subsequently issued notice to the plaintiff threatening

action against suit 'A' schedule property. It is under these

circumstances, the suit in O.S.No.47/2003 was filed.

5. After service of notice, defendant no.2 had entered

appearance and filed his written statement denying the

plaint averments. It was contended that since the plaintiff

had stood as surety on behalf of defendant no.1, defendant

no.2 was entitled to recover the arrears of rent either from

defendant no.1 or from the plaintiff and it was the privilege

and option of defendant no.2, and the plaintiff had no say

on the same. It was also contended that it was the duty of

the plaintiff to see that defendant no.1 paid the rent RSA 1928/2011

regularly. Defendant no.2 admitted that defendant no.1

had filed O.S.No.380/2002, but he denied that there was a

consent decree in the said proceedings.

6. On the basis of the rival pleadings, the Trial Court

framed the following issues.

1) Whether the plaintiff proves that the 2nd defendant has extended time to pay rent by the 1st defendant without his assent?

2) Whether the plaintiff proves that the defendants are in collusion with each other to defraud him?

3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

4) What order or decree?

7. During the course of trial, on behalf of the plaintiff,

one witness was examined as PW-1 and 38 documents

were produced and marked as Exs.P-1 to P-38. On behalf

of the defendants, four witnesses were examined as DWs-1

to 4 and 17 documents were produced and marked as

Exs.D-1 to D-17. The Trial Court, after hearing the RSA 1928/2011

arguments of both sides, by its judgment and decree dated

04.10.2008 had decreed the suit of the plaintiff against the

defendants and had granted a decree of permanent

prohibitory injunction restraining defendant no.2 from

proceeding against the plaintiff in pursuance of the rent

agreement dated 01.11.1998 other than due process of law

in respect of the suit 'A' schedule property. Being aggrieved

by the same, defendant no.2 had filed R.A.No.109/2008

and the First Appellate Court after re-appreciation of the

oral and documentary evidence available on record, by its

judgment and decree dated 19.10.2010 has dismissed the

said regular appeal. It is under these circumstances,

defendant no.2 is before this Court in this regular second

appeal.

8. Learned Counsel for the appellant submits that the

Trial Court as well as the First Appellate Court have erred

in granting the decree of permanent prohibitory injunction

against defendant no.2. He submits that as a result,

defendant no.2 is prevented from taking any action against

the plaintiff. He submits that though there are orders RSA 1928/2011

passed under the Public Premises Act, the courts below

have failed to appreciate the same and the decree of

permanent prohibitory injunction has been granted, and

therefore, submits that the impugned judgment and decree

passed by the courts below are liable to be set aside.

9. I have carefully considered the arguments addressed

on behalf of the appellant/defendant no.2 and also

perused the material on record.

10. The Trial Court, after appreciating the oral and

documentary evidence available on record, has given a

categorical finding that defendant no.2 and its officers

have not passed any order under the Public Premises Act

as against the plaintiff, and therefore, no action can be

taken against him either for proceeding against suit 'A'

schedule property or for recovery of arrears of rent from

him, unless there is an order passed under the Public

Premises Act. The First Appellate Court having re-

appreciated the oral and documentary evidence available RSA 1928/2011

on record, has upheld the said judgment and decree

passed by the Trial Court.

11. It is necessary to note here that the Trial Court has

passed the decree restraining defendant no.2 by means of

permanent prohibitory injunction from proceeding against

the plaintiff pursuant to the agreement dated 01.11.1998

other than due process of law in respect of suit 'A'

schedule property. A reading of the said decree makes it

very clear that on the basis of the rent agreement dated

01.11.1998, no precipitative or coercive action can be

taken as against the plaintiff in respect of suit 'A' schedule

property. The Trial Court, after appreciating the entire oral

and documentary evidence available on record, has given a

clear finding that the competent officer under the Public

Premises Act had not passed any orders under Section 7 of

the said Act or issued any certificate under Section 15 of

the said Act so as to enable the Deputy Commissioner to

recover the arrears of rent as land revenue.

RSA 1928/2011

12. Though the learned Counsel for the appellant has

contended that valid orders have been passed by the

competent authority under the Public Premises Act and

the same was not considered by the courts below, he has

not placed on record any such orders passed by the

competent authorities under the Public Premises Act.

Further, a perusal of the memorandum of appeal would go

to show that no averment has been made in the appeal

memorandum to the said effect. From the perusal of the

judgment of the First Appellate Court, it is seen that even

before the said court, such a contention was not raised on

behalf of defendant no.2. Under the circumstances, the

said contention is liable to be rejected straight away and is

accordingly rejected.

13. The Trial Court as well as the First Appellate Court

having appreciated the oral and documentary evidence

available on record, have given a finding that no orders are

passed under the Public Premises Act as against the

plaintiff, and therefore, have held that unless necessary

orders are passed under the said Act, defendant no.2 RSA 1928/2011

cannot take action against the plaintiff pursuant to the

rent agreement dated 01.11.1998.

14. I find no illegality or irregularity in the judgment and

decree passed by the courts below. Learned Counsel for

the appellant has failed to point out any substantial

question of law that arises for consideration in this appeal.

Therefore, the appeal does not merit admission and

accordingly, the same is dismissed.

Sd/-

JUDGE

KK