Karnataka High Court

Sri Tulasidas R C vs Smt Sulochana on 13 December, 2021

Bench: K.S.Mudagal

                                   W.P.No.47611/2018

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 13TH DAY OF DECEMBER 2021

                      BEFORE

       THE HON'BLE MRS JUSTICE K.S.MUDAGAL

   WRIT PETITION NO.47611 OF 2018 (GM-CPC)

BETWEEN:

SRI TULASIDAS R.C.
S/O LATE CHIKKARANGAIAH
AGED ABOUT 63 YEARS
R/AT NO.344, 3RD STAGE
16TH CROSS, VIJAYANAGAR
MYSURU                               ... PETITIONER

(BY SRI N.B.N.SWAMY, ADVOCATE)

AND:

SMT. SULOCHANA
W/O P.K.RAMA REDDY
AGED ABOUT 56 YEARS
R/AT NO.104/L, 5TH MAIN
"N" BLOCK, KUVEMPUNAGAR
MYSURU - 23                         ... RESPONDENT

(BY SRI S.G.MUNISWAMY GOWDA, ADVOCATE)

     THIS WP IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN EX.NO.431/2016 ON THE FILE OF THE
COURT OF III ADDITIONAL CIVIL JUDGE AND JMFC,
MYSORE AND QUASH OR SET ASIDE THE ORDER PASSED
ON 22.09.2018 BY THE LEARNED III ADDITIONAL I CIVIL
JUDGE   AND   JMFC,   MYSORE    IN  IA  NO.III   IN
EX.NO.431/2016 VIDE ANNEXURE-G AND ETC.
                                           W.P.No.47611/2018

                            2


     THIS WP COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

Petitioner is seeking quashing of the proceedings

in Ex.P.431/2016 on the file of III Additional I Civil

Judge and JMFC, Mysuru and the order dated

22.09.2018 passed by the trial Court in the said

proceedings on I.A.No.3 for refund of Rs.40,000/- paid

by the petitioner to the respondent and for damages

of Rs.1,00,000/-.

2. The petitioner was the tenant under the

respondent in respect of residential house bearing

Door No.344, 3rd Stage, Vijayanagar, Mysuru.

3. The respondent filed H.R.C.No.40/2014

before III Additional I C.J. & JMFC, Mysore against the

petitioner seeking eviction under Section 27(2)(a) and

(r) of Karnataka Rent Act, 1999 (for short 'the Rent

Act'), on the ground that the petitioner has committed W.P.No.47611/2018

default in payment of rent and he requires the

premises for his own use and occupation.

4. During pendency of the petition, the

respondent filed an application under Section 45 of

the Rent Act for staying the proceedings and for a

direction to the petitioner to hand over the possession

of the property on the ground that the petitioner has

willfully defaulted in payment of rent for the period

from 19.02.2013 till June, 2014 to the tune of

Rs.93,500/- and he was also liable to pay Rs.33,000/-

which fell due after filing of the petition.

5. That application was contested by the

petitioner on the ground that he has paid huge

advance and after adjusting that, respondent herself

is liable to refund Rs.50,000/-. The trial Court in

H.R.C.No.40/2014 conducted an enquiry on the said

application and on hearing both parties, rejected the

defense of the petitioner and called upon him to pay W.P.No.47611/2018

arrears of rent in a sum of Rs.1,43,000/- within two

months from the date of order, failing which, to

vacate and hand-over the vacant possession of the

tenanted property.

6. The petitioner challenged that order before

the IV Additional District Judge, Mysuru, in Rent

Revision Petition No.07/2015. The Revisional Court

vide order at Annexure-'B' dismissed the said petition

on 24.06.2016 on merits.

7. On 26.11.2016 the respondent filed

Ex.P.No.431/2016 before the III Additional, 1st Civil

Judge and JMFC, Mysuru, seeking recovery of

Rs.1,98,000/- towards arrears of rent. Even during

pendency of Ex.P.No.431/2016, proceedings in

H.R.C.No.40/2014 were going on. The respondent

filed a memo in H.R.C.No.40/2014 on 28.04.2017

reporting that petitioner has vacated the premises on

06.02.2016. The trial Court closed H.R.C.No.40/2014 W.P.No.47611/2018

vide order Annexure-C dated 28.04.2017 on the

ground that tenant has already vacated the premises.

8. In Ex.P.No.431/2016, the respondent

sought warrant for attachment of movables of the

petitioner for recovery of arrears of rent. The

petitioner appeared before the Executing Court. On

09.09.2017, matter was referred to Lok-Adalat.

Before the Lok-Adalat, petitioner paid Rs.40,000/- to

the respondent. Thereafter, matter was listed before

Executing Court from time to time for payment of

balance amount.

9. On 25.11.2017, petitioner filed I.A.No.III in

Ex.P.No.431/2016 as per Annexure-E for refund of

Rs.40,000/- paid to the respondent on 09.09.2017

and to close Ex.P.No.431/2016 on the ground that he

has already vacated the premises, the HRC petition is

closed, therefore, the execution petition does not W.P.No.47611/2018

survive. The other ground was that, for recovery of

arrears of rent, the execution petition does not lie.

10. The respondent contested the said petition

by filing statement of objections as per Annexure-F.

On hearing both sides on IA No.III, the Executing

Court, vide order Annexure-G dated 22.09.2018,

dismissed IA No.III and directed the petitioner to pay

the balance amount.

11. The petitioner seeks quashing of the

proceedings in execution petition No.431/2016 and

other reliefs as aforesaid in the above petition on the

ground that the order under Section 45 of the Rent

Act was an interim order. He claims that once the

main petition in HRC No.40/2014 is closed, the said

interim order merges with the main order, therefore,

no execution petition was maintainable.

W.P.No.47611/2018

12. Sri. N.B.N. Swamy, learned counsel for the

petitioner, reiterating the grounds of the petition

further submits that, the order under Section 45 of

the Rent Act was for either to pay the rent or to

vacate the premises. He submits that, since the

tenant vacated the premises, the respondent cannot

maintain the execution petition for recovery of the

rent. He submits that remedy of the respondent if

any, is to file a suit for recovery of arrears of rent.

According to him, the Execution Petition No.431/2016

is the abuse of process of the Court, therefore, the

respondent is liable to pay damages of Rs.1,00,000/-

to the petitioner.

13. In support of his contentions, he relies

upon the following judgments:-

1. Prem Chandra Agarwal and another Vs. Uttar Pradesh Financial Corporation and Others1

2. G. Balasundaram Vs. M. Eshwaraiah2

(2009) 11 SCC 479

(2007) 6 Kant. LJ 331 W.P.No.47611/2018

3. Syed Abdul Wadood Vs. State of Karnataka and Another3

4. V.N. Vasudeva Vs. Kirori Mal Lihariwala4

14. Per contra, Sri. S.G. Muniswamy Gowda,

learned counsel for the respondent seeks to justify the

impugned order on the following grounds:-

i) The interim order passed by the trial Court under Section 45 of the Rent Act was confirmed by the Revisional Court. Despite that the petitioner did not pay arrears of rent accrued up to date. Thereby, he drove the respondent to file Execution Petition No.431/2016.

ii) The petitioner himself paid Rs.40,000/- before the Lok-Adalat voluntarily. Therefore, he cannot seek refund of the said amount. Despite the petitioner handing over the possession of the premises, he is liable to pay arrears of rent. In view of Rule 33 of the Karnataka Rent Rules, 2001 (for short, 'Rent Rules'), the Execution Petition was maintainable.

1987 (3) KLJ 549

AIR 1965 SC 440 W.P.No.47611/2018

iii) The order passed under Section 45 of the Rent Act in the proceedings pending under Section 27 of the Rent Act has attained finality. Therefore, the tenant cannot say that, he is not liable to pay rent or seek an adjustment. The judgments relied on by the petitioner's counsel are not applicable.

15. In support of his contentions, he relies

upon the following judgments:-

1. Pavan Kumar Gupta Vs. B.R. Gupta5

2. C.S. Sheshagiri Vs. Smt. Jayalakshmi By LRS.

[HRRP No.31/2011 D/D: 07.01.2016]6

3. Lakshminarayana Sony and Another Vs. C. Basha [HRRP No.302/2004 D/D:11/04.2008]7

4. Priyavarte Mehta Vs. Amrendu Banerjee8

16. Having regard to the rival contentions, the

points that would arise for consideration of this Court

are:-

1) Whether the Execution Petition No.431/2016 was an abuse of the process of the Court ?;

CDJ 2017 SC 631

ILR 2016 KAR 1866

2009(1) KLJ 673

AIR 1994 Patna 114 W.P.No.47611/2018

2) Whether the respondent is liable to refund Rs.40,000/- paid by the petitioner ? and

3) Whether the petitioner is entitled to seek refund of the rent deposited in Execution Petition No.431/2016 by virtue of the interim order passed in this case ?

Regarding Point No.1

17. Admittedly, the petitioner has suffered an

order of eviction under Section 45 of the Rent Act for

non-payment of arrears of rent accrued during the

pendency of proceedings in HRC No.40/2014. He

preferred Rent Revision Petition No.7/2015 before the

IV Additional District Court, Mysuru, which came to be

dismissed on merit as per order Annexure-B dated

24.06.2016 and that order has attained finality.

18. Since petitioner neither paid the arrears of

rent nor vacated the premises as ordered by the trial

Court and the Revisional Court, on 26.11.2016 the

respondent filed Execution Petition No.431/2016.

Admittedly, the memo reporting vacating the premises W.P.No.47611/2018

was filed on 28.04.2017. That goes to show that the

petitioner himself was guilty of non-compliance of the

orders of the Court.

19. It is important to note that, the petitioner

himself has paid Rs.40,000/- before the Lok-Adalat on

09.09.2017 without questioning the jurisdiction of the

Court to entertain the execution petition. Till filing of

IA No.3 on 25.11.2017, he did not question the

jurisdiction of the Court. That indicates that the

petitioner did not suspect the bonafides of the

respondent in pursuing the proceedings in Execution

Petition No.431/2016. It is not his contention that, he

had paid anything out of Court towards discharge of

his liability determined under Section 45 of the Rent

Act. Therefore, this Court does not find any merit in

the contention that the Execution Petition

No.431/2016 filed by the respondent is an abuse of

the process of the Court.

W.P.No.47611/2018

Regarding Point No.2:

20. The petitioner paid Rs.40,000/- to the

respondent before the Lok-Adalat and deposited

Rs.50,000/- before the Executing Court to comply the

interim order passed by this Court in this writ petition.

He seeks refund of the same on the ground that, for

recovery of the arrears of rent, the execution petition

does not lie. It is contended that since HRC Petition

No.40/2014 was disposed of, the order passed on

interim application merges with the main order,

therefore, the question of executing interim order

does not arise.

21. The interim order under Section 45 of the

Rent Act was either to pay the rent or to vacate the

premises. Since the tenant vacated the premises, the

alternate part of the order stood complied. In the

main petition, the relief sought was only the eviction

of the tenant. Since the tenant vacated, the main W.P.No.47611/2018

petition was closed. However, the liability of the

tenant to pay the rent does not cease. The tenant

vacated to comply part of the interim order. The

entire interim order did not merge with the final order.

Therefore, there is no merit in the said contention.

Such being the position, this Court does not find it

necessary to refer the judgments relied by the learned

counsel appearing on both sides, on the said point.

22. So far as the contention that the petitioner

had paid certain amount as advance rent, that shall be

adjusted in the arrears of rent determined by the trial

Court. In para 9 of the judgment in

G. Balasundram's case (supra) relied on by the

learned counsel for the petitioner himself, this Court

relying on the judgment of the Hon'ble Supreme Court

reported in AIR 1998 SC 1822 [Tukarama

Ramachandra Mane (dead) By LRs. Vs. Rajuram

Bapu Lakule (dead) by LRs.] held that the money W.P.No.47611/2018

paid on some other account cannot be adjusted

towards the rent due. However, every tenant is

obliged to pay or tender rent to the Landlord/Landlady

within 15 days from the date it falls due. Ultimately in

that judgment it was held that the Landlord/Landlady

is entitled to recover the rent due, as per the due

process of law. Therefore, though Rule 33 of the Rent

Rules provides for execution of decrees or orders

passed under the Act, as the tenant has already

complied the alternate part of the order, the remedy

of Land-Lady is to file a suit for recovery of arrears of

rent and not execution petition for such relief.


       Regarding Point No.3

       23.   The    next    point      is,     whether    the

petitioner/tenant is entitled for refund of Rs.40,000/-

paid before the Lok-Adalath and Rs.50,000/-

deposited in the execution proceedings to comply the

interim order of this Court.

W.P.No.47611/2018

24. The petitioner has handed over the

possession of the property and he did not pay the

arrears of rent. Whatever amount paid before the

Lok-Adalath and deposited before the trial Court is to

discharge her liability and such payment/deposit is

made by virtue of the orders issued by the competent

authority/Court.

25. The learned counsel for the respondent

submits that, in view of the pendency of this petition,

now due to lapse of time, the respondent has lost his

right to recover the rent by filing a suit. The amount

deposited/paid is the amount which the petitioner is

obliged to pay and it was not a gratuitous act. Under

such circumstances, directing the respondent to pay

the said amount or directing the executing Court to

refund the amount to the petitioner, amounts to

unjust enrichment which is contrary to Section 70 of W.P.No.47611/2018

the Indian Contract Act. Section 70 of the Indian

Contract Act reads as follows:-

"70 Obligation of person enjoying benefit of non-gratuitous act,- Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."

26. This Court in exercise of its powers under

Articles 226 and 227 of the Constitution of India,

cannot permit such unjust enrichment violating

Section 70 of the Indian Contract Act. Therefore, the

prayer of the petitioner for recovery of Rs.40,000/-

from the respondent or for refund of the amount

deposited in Execution Petition No.431/2016, cannot

be granted.

W.P.No.47611/2018

27. So far as the prayer for compensation of

Rs.1,00,000/- is concerned, this Court has already

observed about the conduct of the petitioner in not