M/S. Janardhan Enterprises vs Sri. G Kumar
2021 Latest Caselaw 1554 Kant

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU               R
       DATED THIS THE 8TH DAY OF FEBRUARY, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.12639 OF 2020 (GM-CPC)
BETWEEN:

M/S. JANARDHAN ENTERPRISES
A REGD PARTNERSHIP FIRM,
REP BY ITS PARTNERS AND CO OWNERS
OF THE SCHEDULE POPERTY,

H. DEVENDRA RAO,
S/O. LATE. H RAMACHANDRA BHATT,
SINCE DEAD BY LRS,

1. SMT. JAYALAKSHMI,
W/O. LATE. H. DEVENDRA RAO,
AGED ABOUT 73 YEARS,
(SENIOR CITIZEN NOT CLAIMED)

2 . SRI. H D REMESH
S/O. LATE. H. DEVENDRA RAO,
AGED ABOUT 55 YEARS,

3 . SRI. H D SATYANARAYANA
S/O. LATE. H. DEVENDRA RAO,
AGED ABOUT 52 YEARS,

4 . SRI. H D GIRISH
S/O. LATE. H. DEVENDRA RAO,
AGED ABOUT 49 YEARS.

ALL ARE R/AT NO. 83,
2ND MAIN ROAD,
SESHADRIPURAM,
BANGALORE 560020.
                                         ...PETITIONERS
(BY SRI. PRASANNA KUMAR C S, ADVOCATE)

AND:

SRI. G KUMAR
S/O. GAGENDRA MODALLAR,
AGED ABOUT 54 YEARS,
                                 2

AT MAA FAB NO. 106, 8TH CROSS,
EAST PARK ROAD, MALLESHWARAM,
BANGALORE 560003,
ALSO AT NO. 24/4, 1ST FLOOR,
MARGOSA MAIN ROAD,
NEAR ING VYSHYA BANK,
MALLESHWARAM,
BANGALORE 560003.
                                                  ... RESPONDENT
(BY SRI. D R RAVISHANKAR, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY LEARNED XXXV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH NO.36) BANGALORE ALLOWING
MEMO DATED 28.09.2020 IN EX.PET NO.457/2020 BY ITS
ORDER DATED 28.09.2020 VIDE ANNEXURE-A.

    THIS PETITION COMING ON FOR ORDERS THIS DAY
THROUGH VIDEO CONFERENCE, THE COURT MADE THE
FOLLOWING:-


                            ORDER

Petitioners being the DHrs in Execution 457/2020,

are invoking the writ jurisdiction of this court for assailing

the order dated 28.9.2020, a copy whereof is at Annexure-

A whereby, learned Judge of the court below has restricted

the execution of the decree in question to the premises

admeasuring 1500 sft. and thereby, leaving the other small

premises admeasuring 150 sft., situate beneath the

staircase leading to the first floor.

2. After service of notice, the respondent-tenant

having entered appearance through his counsel,

vehemently opposes the writ petition making submission

in justification of the impugned order and the reasons on

which it has been predicated; the gist of his defence is that

the petitioners subsequent to passing of the eviction decree

has admitted in the execution proceedings that the smaller

portion admeasuring 150 sft. is not part of the demise of

the lease and therefore, impugned order cannot be faltered.

3. Having heard the learned counsel for the

parties and having perused the Petition Papers, this court

is inclined to grant indulgence in the matter for the

following reasons:

(a) Petitioners suit in O.S.No.2627/2014 was for a

decree of eviction; the description of the suit property in

the plaint schedule admittedly includes both the premises

namely the one admeasuring 1500 sft. and the other

admeasuring 150 sft.; the plaint schedule is as under:

"SCHEDULE

All that piece and parcel of the premises measuring 800 square feet in the Basement Floor, 1100 square feet in the Ground floor, 900 square feet in the first floor of the premises and another small premises measuring about 150 square feet under the staircase in the ground floor of premises bearing No.106, 8th Cross, East Park Road, Malleswaram, Bengaluru - 560 003 and bounded as follows...."

(Highlighting is by this Court)

Thus there is no dispute as to the property described in

the schedule which obviously includes the small premises

admeasuring 150 sft. and that is how the respondent-

tenant has understood it.

(b) The respondent-tenant had remained in arrears

of rent for years; the application moved by the petitioners

for a direction for the payment of arrears of rent in lakhs

of rupees, was negatived by the learned trial Judge;

however, this Court in petitioners' earlier

W.P.No.46851/2018 decided on 25.10.2019 reversed the

said order and issued the following direction:

"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 Court below shall not precipitate the suit proceedings till after the respondent-tenant makes the payment as above, or, the period of eight weeks expires, whichever is earlier.

The respondent-tenant is liable to pay a cost of Rs.25,000/- to the petitioners."

(c) The challenge to the judgment in the said writ

petition by the respondent-tenant in SLP No.30095/2019,

came to be rejected by the Apex Court vide order dated

07.01.2020; the text of which is as under:

"Heard

We are not inclined to interfere with the impugned order. The special leave petition is, accordingly, dismissed."

(d) Despite the above, the respondent-tenant has

not deposited any arrears of rent till date; he also has

not paid the costs awarded by this court earlier, on

account of his unscrupulous conduct of squatting on the

tenanted premises and doing business without paying any

rent since 2014; nor has he offered any plausible

explanation for not obeying the said writ; now, the arrears

of rent are stated to have exceeded Rs.1,20,00,000/-; in

terms of the direction of this Court, the learned trial Judge

decreed the suit with cost, vide order dated 18.01.2020

which reads as under:

"ORDER

Suit of the plaintiffs is decreed with cost.

The plaintiffs are entitled for arrears of rent/damages of Rs.79,27,000/- (rupees Seventy Nine Lakhs Twenty Seven Thousand only) from the defendant subject to payment of Court fee.

With regard to arrears of rent/damages, charge is created on the property of defendant bearing No.24, Margosa road, now 3rd main

road, Malleshwaram, Bengaluru Mahanagara Palike, Ward No.7, consisting of a hall, small room, a kitchen, a bathroom and a toilet approximately valued at Rs.65,00,000/-. Accordingly, I.A.No.10 is disposed off."

The said order having not been put in challenge further,

has attained finality.

(e) Petitioner had put the said decree in

enforcement by filing Ex. No.457/2020 wherein the

learned judge of the Court below had issued Delivery

Warrant on 22.09.2020 in respect of the entire suit

schedule property; however, later vide order dated

28.09.2020, this Delivery Warrant has been restricted to

the premises admeasuring 1500 sft. by excluding the other

smaller one admeasuring 150 sft.; this was done by the

learned Judge unilaterally by acting on the respondent-

JDr's Memo dated 28.9.2020 which has the following text:

"The Decree Holders in the above case misrepresent before this Hon'ble Court that they are the owners of 150 square feet under the Staircase in ground floor, though this Hon'ble Court was pleased to form opinion in the judgement that the Decree Holders are not owners of the above said 150 square feet. Hence, the judgement debtor prays that this Hon'ble Court be pleased to modify the order dated 22.09.2020 passed in the above case.

Further, this Hon'ble court answered in Issue No.1 and additional issue No.1 that the plaintiff/decree holders are not the

owners/landlords with in respect 150 sq ft. in page No.11 of the Judgement."

(f) The impugned order whereby the execution is

confined to and now accomplished, as well, is reproduced

below with the striking lines, as they are, for the ease of

understanding:

"Issue Delivery Warrant to the following schedule property;

All the piece and parcel of the premises measuring 80sq.ft in the Basement Floor, 1100 Sq.ft in the Ground Floor, 900 Square Feet in the first floor of the premises and (another small premises measuring about 150 sq. ft) under the Staircase in the ground floor of the premises bearing No.106, 8th Cross, East Park Road, Malleshwaram, Bengaluru - 560 003 and bounded as follows:"

This could not have been done by the Court below

inasmuch as, the smaller premises also has been very

much a part of the property described in the suit schedule;

in terms of the aforesaid writ of this court, the suit has

been decreed as sought for; there was no question of

holding any trial of the suit, because of the specific order of

this Court for decreeing the same; therefore whatever has

been done by the court below beyond the permissible limit

needs to be eschewed from the record; nothing of the same

can be taken cognizance of.

(g) It is true that the decree needs to accord with

the judgment; however, the enforcement of a decree/order

of a competent court cannot be resisted on the ground per

se that it does not so accord; a wrong decree nevertheless

binding & enforceable unless it is set at naught on a

proper challenge being laid in an appropriate proceeding:

vide State of Punjab Vs. Gurudev Singh, AIR 1992 SC

111, paragraphs 6 & 7; an argument to the contrary would

concede power to a party to disobey a decree on his self-

judgment as to its being bad, when only a majistra dicta

can alone do it; this is not desirable in a system governed

by rule of law; admittedly, no such challenge is laid to the

decree, even to this day; but an application for the

amendment of the decree is stated to be pending and its

aspects are discussed & decided infra.

(h) Any civilized system of Administration of

Justice functions on a fundamental norm of "Justice

According to Law" nearly as discussed by Roscoe Pound, in

the title article, 12 Louisiana Law. Review. 1952

published by YALE University Press, New Haven; there

may be cases wherein courts grant indulgence even where

justice appears to lie in the penumbra of law; however the

case at hands is not one such; what the learned Judge of

the court below has done by the impugned order reminds

an allegory ascribed to the Roman stoic philosopher

Seneca (c.4 BC-AD 65); in his work De Ira (On Anger);

he narrates an event: a Roman statesman Gnaeus

Calpurnius Piso, who in a fit of anger had ordered the

execution of a soldier who had returned alone after

enjoying his leisure, leaving his comrade; Piso had

assumed that soldier had killed the comrade; however, just

before the execution of the soldier, the missing comrade

arrived on the scene; therefore, a Centurion who was

ordained to oversee the execution, stopped beheading; all

they went back to Piso and pleaded for suspension of the

warrant of execution on the ground of innocence of the

soldier; however, this made Piso so angry that he ordered

the execution of all the three: the execution of the solider

was to be carried out as the order was already given; the

Centurian was ordered to be executed for failing to oversee

the execution for which he was appointed; in addition, the

comrade was ordered to be executed since his appearance

caused two innocent persons loosing their lives.

i) What is stated above is the historic background

that led to Seneca coining the maxim fīat jūstitia ruat

cælum "Let justice be done though the heavens fall"; the

maxim signifies the belief that, justice must be realized

regardless of consequences; this maxim became popular

after the noted judge William Murray's, decision in John

Wilkes Case in 1770; since then, the sages of law

continued to use the maxim to dispel the argument of

undesirable consequences often pressed into service for

resisting the execution of decrees & orders of courts; the

impugned order runs counter to the spirit of the maxim.

(j) Learned counsel for the JDr vehemently

contends that the courts of law are there to do justice on

the principle of ex dubito justitiae; however, the culpable

conduct of the petitioner does not justify the invocation of

this equitable maxim; as already mentioned above, he

happens to be an unscrupulous businessman squatting on

others' property without paying rent, for years; that was

the reason why he was directed to deposit the rent within a

specified period and asked to pay heavy costs, as well;

despite the peremptory order in the earlier writ petition, he

chose not to obey the same; even before this court, he

refused to avail the opportunity given for making the

payment of arrears of rent (now stated to be

Rs.1,20,00,000/-) in easy installments; this court

exercising extraordinary jurisdiction constitutionally vested

in it under Article 227 need not show leniency to such an

unscrupulous litigant.

(k) Learned counsel for the respondent pleaded

with passion that he has already filed an application for

the modification of the decree for excluding the small

premises in question and therefore a direction be issued to

the court below to consider the same; this court declines to

accede to that request, because admittedly, he is not the

owner of that premises too; he has neither produced any

evidence either in the court below or before this court to

show that he has paid any rent for the said premises; in

fact, he has not taken up such a plea at all; apparently, he

is squatting on this property, free of cost and still he wants

to retain it for enjoyment; he has troubled the petitioners

all through; however, the rejection of this contention shall

not come in the way of the issue as to ownership of the

subject premises being litigated by the right persons, if

any, in an appropriate proceeding; a loud message needs

to go to the circles that be, that the courts would not

tolerate the unscrupulous litigants.

In the above circumstances, this writ petition

succeeds; the impugned order to the extent it excludes the

smaller portion of 150 sft. from execution, is set at naught;

the learned judge of the Executing Court is requested to

accomplish the execution of the remaining part of the

decree that comprises the said smaller premises, forthwith,

if necessary with the police aid, and further, to report

compliance to the Registrar General of this Court.

Costs reluctantly made easy.

Sd/-

JUDGE

Bsv/Snb