Karnataka High Court

Mehrunnisa Thara vs Ahmed Younus Khan on 12 January, 2021

Author: Krishna S.Dixit

                          1
  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.
                                 2


    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

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."

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:

"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

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

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

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

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.

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

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: