Sri Shankare Gowda vs Sri S Mari Lakkaiah
2023 Latest Caselaw 3650 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF JUNE, 2023

                       PRESENT

      THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                          AND

       THE HON'BLE MR. JUSTICE C.M. POONACHA

            R.F.A. No.409 OF 2022 (EJE)

BETWEEN:

SRI SHANKARE GOWDA
S/O SRI S K DEVEGOWDA
AGED ABOUT 69 YEARS,
SATHYANARAYANA LAYOUT
3RD STAGE 4TH BLOCK
BASAVESHWARANAGARA
BENGALURU -560 079
                                          ... APPELLANT
(BY SRI VINAY SWAMY C, ADVOCATE)

AND

SRI S MARI LAKKAIAH
S/O LATE GARDI GOWDA
AGED ABOUT 80 YEARS,
R/AT 2394 GROUND FLOOR
15TH B CROSS 1ST SECTOR
H S R LAYOUT
BENGALURU-560102
                                        ...RESPONDENT
(BY SMT DEEPIKA K , ADVOCATE FOR
    SMT RAKSHITHA D J, ADVOCATE)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC. 1908
AGAINST THE JUDGMENT AND DECREE DATED 01.02.2022
                                2




PASSED IN OS. No.5397/2017 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
CITY, PARTLY DECREEING THE SUIT FOR EJECTMENT AND ETC.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.4.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

The above first appeal is filed by the Defendant

challenging the judgment and decree dated 1.2.2022

passed in OS.No.5397/2017 by the XX Additional City Civil

and Sessions Judge, Bangalore, whereunder the suit for

ejectment filed by the Plaintiff has been decreed and the

following order was passed:

"Suit of the plaintiff is hereby partly decreed.

Defendant is hereby directed to vacate the suit premise/property and deliver its vacant possession to the plaintiff within one month from today.

Plaintiff is also entitled to recover arrears of rent of Rs.1,01,000/- from the defendant.

Plaintiff further also entitled to recover damages from the defendant at the rate of 31,000/- p.m. from the month of February 2018 till delivery of vacant possession of schedule premise to him by the defendant.

No orders as to costs.

Draw decree accordingly."

2. In the above appeal, the Registry has raised an

office objection for non-payment of deficit Court Fee of

`74,905/-. On 14.7.2022 the above matter was ordered to

be listed on 22.7.2022 for reporting compromise.

However, no compromise petition has been filed by the

parties.

3. On 29.3.2023 the Counsel for the Appellant

has filed an undertaking affidavit of the Appellant which

reads as follows:

"I, Shankare Gowda S/o Sri S.K.Deve Gowda, Aged about 69 years, R/at No.941, 6th cross, 7th Block, Vishveshwaraiah Layout, Bengaluru - 560091, do hereby solemnly affirm and state on oath as follows:-

1. I submit that I am the Appellant in the above case and I am conversant with the facts of the case. Hence I am swearing to this affidavit.

2. I submit that I have vacated the Schedule Premises long ago and also handed over the keys of the Schedule Premises on 10.09.2022.

3. I submit that I and the Respondent have agreed to resolve the matter amicably and I have already paid a sum of Rs.4,00,000/- to the Respondent and I will be paying a further sum of Rs.8,00,000/- (Rupees Eight Lakhs only) towards final settlement of all dues.

4. I submit that I will be paying the Respondent the said sum of Rs.8,00,000/- in 2 installments i.e., Rs.4,00,000/- (Rupees Four Lakhs only) on or before 15th April 2023 and the remaining sum of Rs.4,00,000/- (Rupees Four Lakhs only) by may 2023.

5. I submit that, failure to do so, the Respondent shall proceed to execute the decree."

4. Since in para 4 of the undertaking affidavit, the

Appellant had agreed to pay a sum of `8 lakhs in two

installments of `4 lakhs each and the first installment

being payable on or before 15.4.2023, the matter was

listed on 17.4.2023. However, on 17.4.2023 the Counsel

for the Appellant filed a Memo and sought for extension of

time for payment of the said sum of `4 lakhs.

5. Having regard to the fact that the Appellant

has not paid the Court Fee in the above appeal and no

compromise petition has been filed and keeping in mind

the subsequent events that have been placed on record in

the undertaking affidavit dated 29.3.2023, as noticed at

para 3 above, we find no reason to grant further time to

the Appellant.

6. Hence, the above appeal is dismissed for non

compliance of the office objections regarding payment of

balance Court Fee.

Sd/-

JUDGE

Sd/-

JUDGE

nd