IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.11320/2018 (GM-CPC) Between:
Anil Kumar.C, S/o. Late A.Chaurappa, Aged: about 39 years, Proprietor of Sri Raghavendra Sweets & Bakery, Old Bus Stand, Shop No.15, Vanijya Bhavana, Sakaleshapura Town, Hassan District. ...Petitioner (By Sri. Madangowda Patil, Advocate for Sri. R.Kothwal, Advocate) And:
Jagadesh @ Jagga, S/o. Manjaiyya, Aged about 30 years, Resident of Kouda Hally Village, Kouda Hally Post, Taluk: Sakaleshpur, Hassan District. … Respondent (By Sri. Girigowda.C, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated: 23.09.2017 passed by the Trial Court, Court of Civil Judge and JMFC at Sakaleshpura dismissing the I.A.No.II filed by the petitioner under Order XXXIX Rules 1 and 2 r/w Section 151 of Code of Civil Procedure, 1908 in O.S.No.157/2017 vide Annexure- A(C).
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:-
ORDER Petitioner being the plaintiff in the injunctive suit OS.No.157/2017 is knocking at the doors of Writ Court seeking to lay a challenge to the order dated 23.09.2017 made by the learned trial Judge and another order dated 12.02.2018 made by the learned first Appellate Judge whereby temporary protection sought for by him in terms of his application under Order XXXIX Rules 1 & 2 of CPC, 1908 is denied. After service of notice, the respondent-defendant having entered appearance through his counsel opposes the Writ Petition.
2. Sri Madangowda Patil, learned counsel for the petitioner vehemently argues that both the Courts below concurrently erred in not appreciating a wealth of material favouring the petitioner, i.e, the License granted under the Karnataka Shops And Commercial Establishment Act, 1965, at Annexure-B, Composition Tax Registration Certificate at Annexure-C, Rental Agreement dated 04.09.2015 at Annexure-F, Verification Certificate issued by the Karnataka Legal Metrology Department at Annexure-J, Demand Notice dated 04.09.2015 for arrears of rent, License/Registration issued under Food Safety and Standards Act, 2006; he further submits that the rental Agreement between petitioner and the TMC prohibits subletting; all this having not been duly considered by the Courts below, the order of Temporary Injunction is wrongly denied to the petitioner. So arguing, he seeks allowing of the writ petition.
3. Learned counsel for the respondent make submission in justification of the impugned orders contending that both the Courts have held against the petitioner concurrently and therefore, matter does not merit a deeper scrutiny at the hands of the Writ Court exercising restrictive Jurisdiction under Article 227 of Constitution of India; the said orders having been in operation since September’2017, at this length of time, this Court may not upset them.
4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is of the considered opinion that the petitioner is entitled to grant of provisional protection for the running of his business, for the following reasons:
i) the wealth of material mentioned in the paragraphs supra comprises of public records generated under statutory instruments and therefore, they are presumed to be valid by the constitutional imperative enacted under Article 261(1) of the Constitution of India which reads as under:
“Public acts, records and judicial proceedings – Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and every State.”
(the other parts of the Article not being relevant for the consideration of this Court are not produced) no reasons are assigned by the Courts below as to why these documents should not be believed and constitutional presumption as to their validity should not be raised in the absence of rebutting material from the side of the respondent. Thus, there is a great error of law on the face of the impugned orders that has resulted into a manifest injustice and a great hardship to the petitioner as rightly contended by his learned counsel;
ii) the Rental Agreement dated 04.09.2015 whereunder the petitioner gained entry to the premises as tenant specifically prohibits subletting, which aspect has not been adverted to by the Courts below; ordinarily when subletting is prohibited, the claim of the subtenant needs to be viewed with abundant suspicion; event this aspect of the matter has escaped attention of the Courts below;
iii) the respondent has set up the case of sub-enancy on the basis of e-stamp papers allegedly bought by the petitioner in his name; however, the Stamp Sale Register Extract does not mention name of the petitioner as the buyer at all; this apart, the Stamp Vendor Certificate specifically states that at no point of time, the petitioner had bought the subject e-stamp papers; thus, a thick ring of doubt arises from the case of the respondent as to he being in the possession of the subject premises as a subtenant;
5. The wealth of material produced by the petitioner as discussed above, goes to show that he has been running the sweet stall and the bakery having obtained all the necessary Licenses / Registration under the applicable laws, in the subject premises, the contra material not being sufficient to rebut the presumption arising therefrom.
In the above circumstances, this Writ Petition succeeds; the impugned orders are set at naught; petitioner’s application filed under Order XXXIX Rules 1 & 2 r/w Section 151 of CPC, 1908, in OS.No.143/2019 is favoured and an order of Temporary Injunction issues restraining the respondent from interfering or otherwise meddling with the run of the business by the petitioner in the subject premises, directly or indirectly.
The observations hereinabove made being confined to disposal of the writ petition, shall not influence the trial and hearing of the suit.
No costs.
Sd/- JUDGE DS/-