Karnataka High Court
The State Of Karnataka vs Charulatha Wo Late on 28 November, 2023
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RSA No. 100871 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100871 OF 2023 (EJE)
BETWEEN:
1. THE STATE OF KARNATAKA,
REP. BY PRINCIPAL SECRETARY
EDUCATION-PRIMARY AND
HIGHER SECONDARY,
M.S. BUILDING, GATE-2,
BENGALURU.
2. THE DIRECTOR OF PRIMARY EDUCATION,
GOVERNMENT OF KARNATAKA,
NEW PUBLIC OFFICE, K.G. ROAD,
BENGALURU.
3. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS, BALLARI.
4. THE BLOCK EDUCATION OFFICER,
Digitally
signed by HOSAPETE.
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL 5. THE HEAD MASTER,
PATTIHAL Date: GOVERNMENT HIGHER PRIMARY
2023.12.06
12:51:51 SCHOOL TAGORE 27TH WARD,
+0530 HOSAPETE.
...APPELLANTS
(BY SRI V.S. KALASURMATH, HCGP)
AND:
SRI. AJITH DESAI SINCE DEAD BY LR'S
1. SMT. CHARULATHA
W/O LATE AJITH DESAI,
AGED ABOUT 51 YEARS,
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RSA No. 100871 of 2023
2. KUM. SANJEEVANI
D/O LATE AJITH DESAI,
AGED ABOUT 23 YEARS,
3. KUM. NANDINI
D/O LATE AJITH DESAI,
AGED ABOUT 19 YEARS,
4. KUM. SHIVANI
D/O LATE AJITH DESAI,
AGED ABOUT 17 YEARS,
SINCE RESPONDENT NO 4 MINOR,
REPRESENTED BY THEIR MOTHER AND
NATURAL GUARDIAN
SMT. CHARULATHA (RESPONDENT NO.1)
ALL ARE RESIDING AT NO. 204
2ND FLOOR "MOTHER PERINIALS,
3RD A MAIN 2ND CROSS,
BALAJI LAYOUT, VIDYARANYAPURA,
BENGALURU-560097.
...RESPONDENTS
(BY SRI D.N.MANJUNATH, ADVOCATE FOR R1 TO R3;
R4 IS MINOR REPRESENTED BY R1)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS
COURT TO, CALL FOR RECORDS AND SET ASIDE THE JUDGMENT
AND DECREE DATED 29.10.2022 PASSED BY THE PRINCIPAL SENIOR
CIVIL JUDGE AND JMFC AT HOSAPETE IN RA No.16/2021
CONFIRMING THE JUDGMENT AND DECREE DATED 08.02.2021
PASSED BY THE ADDITIONAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HOSAPETE IN O.S.NO.127/2015 BY
ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE.
THIS REGULAR SECOND APPEAL, COMING ON FOR FURTHER
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100871 of 2023
JUDGMENT
The present second appeal by the defendants-State,
whereby, suit seeking for possession was decreed directing
the defendants to hand over the vacant possession of the
suit schedule property.
2. The plaintiffs-respondents instituted suit for
possession directing the defendants to vacate and deliver
vacant physical possession of the suit schedule property, to
pay arrears of rent due from 01.10.1989 to 01.05.2015 to
the plaintiffs and for mesne profit. The Trial Court decreed
the suit of the plaintiffs in part, directing the defendants to
vacate and deliver the vacant possession of the suit schedule
premises and directed the defendants to pay arrears of rent.
The question of mesne profits was kept open to be
determined in a separate proceeding. Appeal preferred by
the State before the First Appellate Court was dismissed
confirming the judgment and decree of the Trial Court.
Aggrieved by the same, this second appeal by the State.
3. This Court on 13.10.2023 admitted the appeal to
consider the substantial question of law and granted an ad-
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interim stay of the judgment and decree of the Courts below
and further proceedings in E.P.No.81/2020 subject to the
appellants depositing a sum of Rs.1,00,000/- on or before
15.11.2023.
4. I.A.No.3/2023 is filed for modification of the
interim order dated 13.10.2023 by the appellants stating
that even before passing of the interim order by this Court,
the respondents herein have taken possession of the suit
schedule property on 11.10.2023. This aspect is not disputed
by the learned counsel appearing for the respondents. The
appellants-State by way of this application is seeking for
restoration of the possession from the respondents
contending that in the said premises Government School is
run and in the midst of the academic year, if the children are
not accommodated, they would be put to hardship.
5. When the matter was listed before this Court on
20.11.2023, the learned High Court Government Pleader
sought time to get necessary instructions from concerned
department regarding time to vacate the suit schedule
property, since the learned counsel appearing for the
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respondents proposed that some reasonable time would be
granted, if an undertaking affidavit is filed in that regard and
accordingly respondents have filed a memo, which reads as
under:
"The undersigned counsel for the respondents
submits that in pursuance of the undertaking affidavit
filed by the appellants and order passed by this
Hon'ble court to deliver the physical possession and
the payment of rent, the respondents/decree holders
have hereby delivered the vacant physical possession
of the schedule premises to this day itself and
respondents have no objection to put the appellant is
possession till 31.03.2024 subject to the order as
may be passed by this Hon'ble Court.
Further appellants may direct to transfer the
rent payable regularly to the respondent No.1 namely
Smt.Charulatha to her Karnataka Bank (SB) account
bearing No.1232500100992701, IFSC Code
No.KRAB000123, Vidyaranyapura Branch, Bangalore
by any other online mode.
Hence, the matter stood adjourned to 27.11.2023 and
on the said day, on request of the learned High Court
Government Pleader, the matter is posted today i.e.,
28.11.2023.
6. Today i.e., 28.11.2023, learned High Court
Government Pleader filed affidavit of the Block Education
Officer, appellant No.4 for himself and on behalf of the other
appellants stating that the appellants would voluntarily
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vacate and deliver the vacant possession of the
premises/schedule property on or before 30.04.2024 i.e., by
end of the academic year and at paragraph No.5, he has
stated as under:
"5. I respectfully submit that, pursuant to the
directions and instructions given from the Higher authorities
i.e., Deputy director of Public Instructions/Appellant No.3
instructed me to file necessary affidavit/undertaking before
this Hon'ble Court with regarding to the prayer made by the
Respondents herein. Hence, I hereby instructed to
voluntarily vacate and deliver vacant physical possession of
the premises/schedule property on or before 30.04.2024
i.e., conclusion of the academic year and permit to pay the
rent as fixed by Government authorities. I further submit
that, after vacate and handing over the possessions if any
disturbance and nuisance is caused by the public the
concerned department is not liable for any further
consequence which may arise and the Respondents shall
not seek any claim against the present appellants."
7. At this stage, learned counsel for the respondents
objects for the averments with regard to the contents of the
affidavit at paragraph No.5 i.e., "any disturbance and
nuisance caused by the public, the concerned department is
not liable for any further consequences" and submits that
the affidavit filed by the State is not acceptable as the
respondents had undertaken to redeliver the possession to
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the appellants only if an undertaking affidavit is filed by the
appellant that they would deliver the vacant physical
possession of the suit schedule property on or before
31.03.2024, without any condition.
8. The vague affidavit filed by the appellant more
particularly at paragraph No.5 is not acceptable to this Court
and needs to be outrightly rejected. At this stage learned
High Court Government Pleader on instructions from
appellant No.4, who is present before the Court submits that
a better undertaking affidavit to vacate and deliver the
physical possession of the premises on or before 30.04.2024
with payable rent of Rs.12,000/- from December, 2023 till
vacating the premises i.e., 30.04.2024 would be filed within
two weeks.
9. The submissions of both the appellants and
respondents are taken on record. The appellants are granted
time to vacate the premises on or before 30.04.2024,
subject to the undertaking affidavit filed before this Court
within two weeks undertaking that the appellants would
regularly pay the monthly rent/damages of Rs.12,000/- to
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the account number of respondent No.1 mentioned in the
memo of the respondents on or before 10th of every calendar
month starting from December, 2023. The appellants shall
not drive the respondents to file execution petition seeking
delivery of possession.
10. The key of the premises/schedule property is
handed over today i.e., 28.011.2023 by the learned counsel
for the respondents to appellant No.4, which is duly
acknowledged by him.
11. For the foregoing reasons, the substantial
question of law framed by this Court would not survive for
consideration and the second appeal stands disposed of.
12. In light of the disposal of the second appeal,
pending applications, if any, would not survive for
consideration.
Sd/-
JUDGE
EM, CT: UMD
