Smt. Bindu L vs Smt. H P Indira
2023 Latest Caselaw 6431 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                      BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

         REGULAR FIRST APPEAL NO.857 OF 2023

BETWEEN:

SMT. BINDU L
AGED ABOUT 52 YEARS
D/O LATE KRISHNA NAYAR
W/O ASHOKAN
R/AT D.NO.468, 1ST MAIN
2ND CROSS
DODDAVAKKALGERI
MYSORE
                                       ... APPELLANT

(BY SRI RAGHU PRASAD B.S., ADVOCATE)

AND:

1 . SMT. H.P. INDIRA
    W/O LATE PRITVIRAJ
    AGED ABOUT 46 YEARS

2 . AKARSH
    S/O LATE PRITHVIRAJ
    AGED ABOUT 25 YEARS

3 . APOORVA
    D/O LATE PRITHVIRAJ
    AGED ABOUT 21 YEARS
                             2


   R1 TO R3 ARE R/AT
   NO.4, III MAIN ROAD
   V V MOHALLA
   MYSURU 570 002

   VASANTHA
   S/O LATE S.N. NAGARAJ
   DEAD BY LRS PLAINTIFFS 1-3
   AND 5-6

4 . SUMANGALI
    D/O LATE SRI S.N. NAGARAJ
    AGED ABOUT 66 YEARS
    NO 1113, 1ST MAIN,
    KURUBAGERI,
    LAKSHKAR MOHALLA
    MYSORE

5 . GAYATHRI DEVI
    D/O LATE S.N. NAGARAJ
    AGED ABOUT 51 YEARS
    NO.1113,
    1ST MAIN
    KURUBAGERI
    LASHKAR MOHALLA
    MYSORE - 570 001

   S RAMU
   S/O SIDDEGOWDA
   DEAD BY LRS

6 . KALYANAMMA
    AGED ABOUT 81 YEARS.

7 . MAHESH
    AGED ABOUT 56 YEARS
                           3


   R6 AND R7 ARE R/AT
   23RD CROSS
   II STAGE
   VIJAY NAGAR
   MYSORE 570017

   R6 AND R7 ARE ALSO PROPS.
   JAI MARUTHI MILITARY HOTEL
   D.NOS.485, 468
   KALAMMA TEMPLE STREET
   MANDI MOHALLA
   MYSURU - 570 021

8 . SMT GAYATRHI
    D/O LATE S. RAMU
    AGED ABOUT 60 YEARS

   NO 124, 9TH MAIN
   GOKULAM,
   MYSURU - 570 002

9 . REKHA
    D/O LATE S. RAMU
    AGED ABOUT 56 YEARS
    W/O SHIVA
    D.NO.108, 3RD WARD
    KAGADA NAGARA
    BHADRAVATHI

10. SMT ANITHA
    D/O LATE S. RAMU
    W/O LATE SUBRAMANYA
    AGED ABOUT 51 YEARS
    D.NO.118, WEAVERS COLONY
    PADAYAM KEMPANNA BADAVANE
    NEALAMANGALA,
    BANGALURU
                           4


11. SMT. NAVEENA
    D/O LATE S. RAMU
    W/O PRAKASH
    AGED ABOUT 49 YEARS
    D.NO.2226
    RAMAMANDIRA ROAD
    PADUVARAHALLI
    (VINAYAKA NAGARA)
    MYSURU
                                    ... RESPONDENTS

(BY MS. GEETHA DEVI M.P., ADVOCATE FOR R1 TO R3
 NOTICE TO R4 TO R11 DISPENSED WITH VIDE ORDER
 DATED 08.08.2023)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE ORDER DATED
28.03.2023 PASSED ON I.A.NO.V IN EX.NO.147/2018 ON
THE FILE OF THE ADDITIONAL SMALL CAUSES JUDGE AT
MYSORE, DISMISSING THE I.A.NO.5 FILED UNDER ORDER
21 RULE 97 OF CPC.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 7.9.2023 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:


                 JUDGMENT

This appeal filed is by the appellant (who is

objector before the Trial Court) under Section 96 of

CPC for setting aside the order of rejection of the

application filed under order XXI Rule 97 of CPC by

Small Causes Court, Mysuru in execution

No.147/2018.

2. Heard the arguments of learned counsel for

appellant and counsel for the respondents.

3. The appellant was an objector and the

respondent Nos.1 to 5 were the decree holders and

other respondents were judgment debtors. The ranks

of the parties are retained as per the Trial Court for

the sake of convenience.

4. The case of the appellant before the Trial

Court is that the appellant father was Krishna Nayar

who had entered into lease agreement with one

Pushparaj in 1978. Ever since, they are residing in

the execution petition schedule property since last 45

years. Recently they came to know the decree

holders who file execution petition against judgment

debtors were preparing for taking over the possession

by eviction, without making the appellant as party.

Hence the appellant filed application before the Trial

Court as objector under order XXI rule 97 of CPC, but

the Trial Court without making any enquiry dismissed

the application with cost. Being aggrieved by the

same, the objector is before this court.

5. Learned counsel for the appellant has

vehemently contended, since from 45 years the

appellant is in possession of the property, without

making them as party, suit filed by the decree holder

against one Ramu and got the decree for eviction.

Subsequently, the execution petition was filed, at that

time it came to the knowledge of the appellant.

Hence, the Trial Court ought to have made an enquiry

for the purpose of deciding the contention of the

appellant, but without doing so, application came to

be rejected which is not correct and it is against the

law. In support of his argument he has relied upon

the judgments of the Hon'ble Supreme Court as

under:

(1) (2015) 5 SCC 588 in case of Maya Devi Vs. Lalta Prasad.

(2) (2002) 1 SCC 662 in case of N.S.

Narayana Sarma and Ors Vs Godstone exports (P) Ltd., and Ors.

(3) (1998) 3 SCC 723 in case of Silverline Forum Pvt., Ltd., Vs Rajiv Trust and Anr.

6. Per contra, learned counsel for respondent

seriously objected the appeal and contended that the

tenant was the Ramu and suit was filed against him.

The tenancy was terminated by issuing notice, which

was served on him. He has taken the contention

regarding the father of the appellant was occupied in

the petition schedule property. The same was

considered by the Trial Court and decreed the suit.

Therefore, there is no necessary for the trial court to

hold an enquiry. The issue of sub tenancy has been

already decided by Trial Court. The learned counsel

has supported the order of the Trial Court, hence

prayed for dismissing the appeal.

7. Having heard the arguments, perused the

records, the respondent Nos.1 to 5 were the decree

holder who filed suit against other respondents who

are the legal heirs of one Ramu for eviction. The

decree passed by the Trial Court judgment reveals the

said Ramu has taken the contention that one Krishna

Nayar is in occupation. But the Trial Court though

passed the judgment holding that the Ramu was the

tenant and it is also not in dispute. But the appellant

contention is that they are tenant, under one

Pushparaj. The said Pushparaj, how he has entered

into rental agreement with the appellant? and how the

Trial court held that the Ramu was in occupation? If

somebody else was in occupation of place as tenant,

the notice said to be served on Ramu, but address

was not that of the suit schedule premises, that the

Ramu was actually not stayed in the said house.

Whether the Ramu was actually tenant and who was

in actual possession? has not been decided. However,

the appellant's contention is that they are residing in

the said premises for more than 45 years and

definitely the plaintiff might have had the knowledge

about the occupation of these appellants. They have

also produced Voters List, Voter ID card and Voting

Slip to show they are residing in the said house.

These aspects are not being considered by the Trial

Court while passing impugned order.

8. The Hon'ble Supreme Court has held in

Mayadevi's case stated supra that the question raised

by the objector shall be decided on merit. Even in the

of N.S.S Narayana Sarma and Ors. case, the principle

laid down by the Hon'ble Supreme Court while

considering these objector application.

9. Likewise in the Silverline Forum's also taken

the similar view and Hon'ble Supreme Court though

stated there need not be necessarily involved a

detailed enquiry or collection of evidence, but the

court can make the adjudication on admitted facts or

even on the averments made in the Registrar and

court can direct the parties to reduce the evidence for

such determination, if the court deems it fit

necessary. The same view was taken in Anwar

Bhai's case. Therefore, though the matter is not

pertaining to the title dispute, but the appellants are

residing for more than 45 years definitely, it should

have been in the knowledge of the plaintiffs/

respondents, while filing suit for eviction against

Ramu. Ofcourse, the appellant not able to show

whether they have paid any rent to the plaintiffs or to

the Ramu or anybody else but they are staying in the

said house. Therefore, a limited enquiry is required in

this case to know whether the plaintiff filed the suit

knowing fully against Ramu without showing the

names of these appellants and got decree of eviction

shall have to be decided.

Therefore, I am of the view, the order of the

Trial Court requires to be set aside and the matter

requires for enquiry under Order XXI Rule 97 of CPC.

Accordingly, the appeal is allowed.

The order of Trial Court rejecting the

I.A.No.5/2023 filed under order XXI Rule 97 of CPC by

Small Causes Court, Mysuru in execution No.147/2018

is hereby set aside.

The matter is remitted back for fresh

consideration for making enquiry in accordance with

law and dispose of the matter within 6 months from

the date of receipt of the copy of this judgment.

Sd/-

JUDGE AKV