Karnataka High Court
Dr. M. Bhaskara Shetty vs Sanjaya Shetty on 25 March, 2021
Author: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.1606 OF 2018(GM-CPC)
C/W
REGULAR SECOND APPEAL NO.990 OF 2017
IN W.P.NO.1606/2018:
BETWEEN:
DR. M. BHASKARA SHETTY,
S/O. M. BOMMAYYA SHETTY,
AGED ABOUT 65 YEARS,
R/AT "NUTHAN NILAYA",
76, BADAGABETTU, BAILOOR,
UDUPI TALUK AND DISTRICT -576 101.
SENIOR CITIZEN NOT CLAIMED
...PETITIONER
(BY SRI. S N BHAT, ADVOCATE)
AND:
SANJAYA SHETTY,
S/O. LATE SHEENA SHETTY,
AGED ABOUT 59 YEARS,
R/AT "SAROJINI NILAYA",
KORANGRAPADY VILLAGE,
UDUPI TALUK AND DISTRICT -576 101.
... RESPONDENT
(BY SRI.S ARMUGHAM, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDERS PASSED BY THE SECOND ADDL.
CIVIL JUDGE AND JMFC, UDUPI IN EXECUTION
PETITION NO.69/2017 DATED 15.12.2017 ON I.A.NO.4
(ANNEXURE-C).
2
IN RSA.NO.990/2017:
BETWEEN:
MR. SANJAY SHETTY,
S/O LATE SHEENA SHETTY,
AGED ABOUT 55 YEARS,
R/O NO.3, 2ND MAIN,
SHESHADIRPURAM,
BANGALORE - 560 020.
...APPELLANT
(BY SRI. DR. S ARUMUGHAM, ADVOCATE)
AND:
DR. M. BHASKARA SHETTY,
S/O LATE BOMMAYYA SHETTY,
AGED ABOUT 65 YEARS,
R/O NUTHAN NILAYA,
76-BADAGUBETTU VILLAGE,
UDUPI TALUK - 576 101.
...RESPONDENT
(BY SRI. S N BHAT, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 READ
WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908 AGAINST THE ORDER DATED
09.01.2017 PASSED IN RA NO.12/2011 ON THE FILE OF
THE ADDL. SENIOR CIVIL JUDGE, UDUPI, DIMISSING
THE APPEAL AND FILED AGAINST THE JUDGMENT AND
DECREE DATED 18.12.2010 PASSED IN O.S.NO.23/2008
ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC,
UDUPI.
THIS WRIT PETITION AND RSA COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
3
JUDGMENT
This RSA & the Writ Petition arise from an ejectment
suit in O.S.No.23/2008 between the same parties; facts on
which these two cases are structured, can be stated briefly
as under;
i) Respondent is the Landlord and the appellant is
the tenant; there is no dispute as to the vinculum juris of
tenancy; respondent filed the suit in O.S.No.23/2008 for
ejectment and the same came to be decreed on
18.12.2010, with an order for the mesne profits;
appellant's R.A.No.12/2011 came to be negatived on
09.01.2017; his further challenge is in this RSA.
ii) The respondent in the RSA filed Execution Petition
No.69/2017 for enforcing the ejectment decree and for the
payment of mesne profits; though there was no stay of the
ejectment decree in the RSA, the learned judge of the
executing Court had kept the execution proceedings at a
bay and further rejected respondent's application filed
under Section 151 read with Section 94E of CPC for
breaking open the lock of the premises; that is how the
challenge in writ petition is structured.
2. Both the cases are between the same parties
and involving the same subject matter were clubbed
together by a learned co-ordinate Bench of this Court;
3. Having heard the learned counsel for the
parties and having perused the case papers, this Court
rejects the tenant's case in RSA and favours the Landlord's
case in the Writ Petition for the following reasons:
a) The ejectment suit in O.S.No.23/2008 was stoutly
resisted by filing the Written Statement; nothing has been
stated about the lack of jurisdiction of the trial Court; the
same having been tried hotly, has been decreed on
18.12.2010; the tenant had filed appeal in
R.A.No.12/2011; even in the appeal memo, nothing has
been stated about the lack of jurisdiction of the learned
trial judge; not even a whisper is made in the depositions;
it is only in the second appeal a contention is taken up in
the form of substantial question of law by pressing into
service Sections 8 & 9 of the Karnataka Small Causes
Courts Act; thus, the jurisdiction of the Courts below was
acquiesced by the tenant for years in the course of legal
battle; now permitting him to turn around and thereby lay
a challenge to the proceedings virtually amounts to an
unconscionable act which this Court cannot do to the
enormous disadvantage of the respondent-Landlord on
whose property, the tenant has been squatting for all these
years that too without any rent.
b) Whether the trial judge had the competence &
jurisdiction, is a mixed question of law & facts; no
foundation has been laid in the pleadings of the tenant nor
in his depositions; not even a whisper was made
suggesting the same to the Landlord when he was
deposing as PW1; the mixed questions of law & facts
cannot be the subject matter of consideration in a regular
second appeal which is admissible only on a substantial
question of law, whose invocation cannot be made in the
absence of the foundational facts.
c) there is lot of force in the vehement contention of
learned counsel for the Landlord that, mere pendency of
appeal against the ejectment decree is not a ground for not
enforcing it in a pending execution proceeding; it has been
a long settled position of law that a decree put in
challenge by way of appeal or otherwise, is not denuded of
enforceability unless there is stay thereon granted by a
Court of competent jurisdiction; a decree not stayed needs
to be executed in due course and if the same is set at
naught, it is always open to the Judgment Debtor to seek
restitution as provided under Section 144 of CPC; that
being the position, the executing Court is hardly justified
in rejecting the application of the Landlord-Decree Holder.
4. There is one more aspect to the cases at hands;
RIGHT HON. SIR JAMES COLVILE, about a century & a
half ago i.e., in the year 1872 had observed in the case of
THE GENERAL MANAGER OF THE RAJ DURBHANGA
VS. MAHARAJAH COOMAR RAMAPUT SINGH IN
MOORE'S INDIAN APPEALS (1871-72), VOL.14, PAGE
605 = 17 W.R.459; it reads:
"These proceedings certainly illustrate what was
said by Mr. Doyne, and what has been often stated
before, that the difficulties of a litigant in
India begin when he has obtained a Decree...."
5. The tenant admittedly, has not paid any arrears
of rent that have accrued due since years; his learned
counsel repeatedly submits that the Landlord had never
demanded the rentals and therefore, the arrears have
remained un-discharged; however, he does not show his
bona fide by offering to pay the same even here, when
asked twice; thus, he has been squatting on the property
of the Landlord without making any payment; such an
unscrupulous litigant is not entitled to relief at the hands
of Courts, regardless of arguable merits in their cases; the
conduct of the tenant is calculated to harass the Landlord
by relentlessly fighting the cases at various levels, there
being absolutely no justification whatsoever; thus, these
are the fit cases for awarding penal & exemplary costs.
In the above circumstances, the appeal in RSA No.
990/2017 is dismissed with a cost of Rs.50,000/- (rupees
Fifty Thousand) only and the Landlord's case in
W.P.No.1606/2018 is favoured and the impugned order is
set at naught, awarding another cost of Rs. 50,000/-
(rupees Fifty Thousand) only, payable by the tenant.
Learned judge of the executing Court is requested to
accomplish the proceedings in the Ex. Petition No.
69/2017 before the onset of Summer Vacation - 2021, if
necessary with the police aid and report compliance to the
Registrar General of this Court, without fail.
Sd/-
JUDGE
Bsv
