IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 1148 OF 2019 (RES) BETWEEN:
C. R. PARAMESH SON OF LATE RANGASHETTY AGED ABOUT 55 YEARS RESIDING AT 2ND CROSS BHUJANGESHWARA EXTENSION CHAMARAJANAGAR – 571 313. ... APPELLANT (BY SMT. SUMATHI.S., ADVOCATE FOR SRI. SURYA PRAKASH. A.M., ADVOCATE ) AND:
C. G. ASHWATHANARAYANA SON OF LATE GUNDASHETTY AGED ABOUT 75 YEARS RESIDING AT SMALL BAZAR STREET CHAMARAJANAGAR TOWN – 571 313.
(BY SRI. P. NATARAJA., ADVOCATE) ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.04.2019 PASSED IN RA.NO.80 OF 2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM., [C/C.OF ADDL.SENIOR CIVIL JUDGE AND JMFC.,] CHAMARAJANAGAR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.09.2015 PASSED IN OS.NO.259 OF 2009 ON THE FILE OF THE ADDL.CIVIL JUDGE AND JMFC., CHAMARAJANAGAR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the tenant who is called upon to vacate and handover vacant possession of the suit schedule property by the courts below.
2. The learned counsel for the appellant submits that the dispute in the present proceedings spans not only the obligation to quit, vacate and handover vacant possession of the subject property, but also payment of arrears of rent in terms of the decree with interest at the rate of 9% per annum. The parties have been able to come to terms and according to the terms now agreed, the appellant has undertaken to quit and hand over vacant possession of the subject property on or before 31.8.2020 and to pay the respondent a sum of Rs.1500/- per month from September 2019 to August 2020. The parties have also agreed that the respondent will be entitled for the interest at the rate of 6% per annum instead of 9% per annum as granted by the courts below. However, the parties have not been able to come to terms as regards the arrears of rent as determined in the impugned judgment and decree. The appellant has also filed an affidavit of undertaking both as regards handing over vacant possession of the premises on or before 31.8.2020 and undertaking to pay to the respondent a sum of Rs.1,500/- per month from September 2019 to the actual date of vacating the suit schedule premises. The affidavit is taken on record, and the affidavit in its material part reads as follows:
“2. I state I herby undertake to clear the arrears of rent as per the annexed memo of calcutations within 6 weeks from today.
3. I state that I here by undertake to vacate the suit premises on or before 31.08.2020 without seeking any further time to vacate the premises and driving the respondent to file execution proceedings. I undertake to pay rent at the rate of Rs. 1500/- per month from September 2019 till vacating the suit schedule premises on or before 31.08.2020. I state that the advance amount of Rs. 10,000/- (ten thousand only) paid by me to the respondent herein and the same will be deducted from the future rents payable by me to the respondent.”
3. The learned counsel for the respondent submits that the affidavit is in line with the settlement between the parties, and insofar as the residuary dispute as regards the arrears of rent, the same can be examined in the execution proceedings subject to just exceptions in law. The impugned judgments/decree are modified in view of the settlement insofar as the time to vacate premises and the amount to be paid to sub-serve the interest of justice.
The appeal is disposed of modifying the impugned judgment and decree in O.S.No.259/2009 and R.A.No.80/2016 allowing time to the appellant till 30.8.2020 to quit and hand over vacant possession of the premises subject to paying the respondent every month a sum of Rs.1,500/- for the use of the schedule premises. Insofar as the arrears of rent, the respondent shall be at liberty to prosecute the execution proceedings and be entitled to recover such amount as ascertained by the executing court in accordance with law, with interest at the rate of 6% per annum.
The office is directed to draw the decree accordingly.
SD/-
JUDGE nv Ct:sr