IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 994 of 2018 Between:
1. M/S COORG ENTERPRISES MAIN ROAD, MADIKERI KODAGU DISTRICT - 571 201 A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER SRI B. K. KRISHNA.
2. SRI B. K. KRISHNA AGED ABOUT 80 YEARS, S/O LATE KOTIAN, MANAGING PARTNER M/S COORG ENTERPRISES, MAIN ROAD, MADIKERI CITY KODAGU - 571 201.
(BY SRI VENKATESH R. BHAGAT, ADVOCATE) And:
1. SRI M. G. JAMEEL-UR-REHMAN ... APPELLANTS SON OF LATE K. M. MOHAMMED GHOUSE SAHIB, AGED ABOUT 67 YEARS RESIDING AT “NAGARJUNA APARTMENTS” DAVIS ROAD, FRAZER TOWN BENGALURU - 560 005.
2. SRI M. G. RAIYAZ-UR-REHMAN SON OF LATE K. M. MOHAMMED GHOUSE SAHIB AGED ABOUT 62 YEARS RESIDING AT DOOR NO. 857E, 14TH CROSS, II STAGE, RAJEEVNAGAR MYSORE - 560 019.
3. SRI A. S. MUJTABU HUSSAIN SON OF LATE A. S. REHMAN HUSAIN DEAD BY HIS LRS’ RESPODNENT NOS.4 AND 5.
4. SMT. TANZULA ZAFREEN AGED ABOUT 32 YEARS, DAUGHTER OF SRI A. S. MUJTABU HUSSAIN, WIFE OF SRI NAIZAMUDDIN SHAIK QUERESHI, HUSSAIN MANZIL NO.12, CHURCH ROAD, BASAVANAGUDI BENGALURU - 560 004.
5. SRI AFTAB SYED MEERAN HUSSAIN AGED ABOUT 30 YEARS, S/O SRI A. S. MUJTABU HUSSAIN, HUSSAIN MANZIL NO.12, CHURCH ROAD, BASAVANAGUDI BENGALURU - 560 004.
... RESPONDENTS (BY SRI B. PRAMOD, ADVOCATE FOR R-1 TO R-4) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC.. AGAINST THE JUDGMENT AND DECREE DATED 16.02.2018 PASSED IN REGULAR APPEAL NO.56 OF 2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 27.09.2016 PASSED IN ORIGINAL SUIT NO.26 OF 2013 ON THE FILE OF THE ADDL.CIVIL JUDGE, MADIKERI.
THIS REGULAR SECOND APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendants – tenants in OS.No.26/2013 on the file of the Additional Civil Judge, Madikeri (for short, ‘trial Court’) calling in question the concurrent judgment in OS.No.26/2013 and RA.No.56/2016 on the file of the Senior Civil Judge, Madikeri (for short, ‘appellate Court’). The appellants are called upon to vacate the subject property and hand over the vacant possession. The trial Court directed the appellants-defendants to hand over the possession within six months from the date of its judgment on 27.07.2016. The appellate Court, while confirming the trial Court’s judgment, directed the appellants – defendants to deliver possession of the subject property within three months from the date of its judgment dated 16.02.2018.
2. The learned counsel for the appellants has filed an affidavit of undertaking stating that the appellants shall hand over vacant possession of the suit schedule property to the respondents-plaintiffs on or before 30.06.2020 without compelling the respondents-plaintiffs to file execution petition to recover possession in terms of the impugned judgments and the decrees. Further, the appellants have also undertaken to pay, without default, monthly rent at the rate of Rs.5,000/- from 01.06.2019 to 30.06.2020. Furthermore, it is stated in the affidavit that the appellants have deposited rent payable till February 2018 with the trial Court and the respondents may be permitted to withdraw this amount. As regards arrears of rent from March 2018 till 31.07.2019 (including the amount now offered at the rate of Rs.5,000/- for the months June and July), a sum of Rs.8,500/- is being paid today. The relevant part of the affidavit reads as follows:
I state that the respondents herein have filed a suit in O.S.No.26/2013 before the Additional Civil Judge, Madikeri seeking for eviction of the appellants herein from the suit schedule property. The said suit was decreed and the same was assailed in R.A.No.56/2016 and the same was Dismissed. Being aggrieved by the judgment and decree in R.A.No.56/2016 dated 16.02.2018 the present RSA has been preferred by the appellants.
I state that the appellants will handover the possession of the suit schedule property to the defendants/respondents herein on or before 30.06.2020 without driving the respondents to file execution petition for execution of the judgment and decree in question seeking for possession. The appellants also undertake to pay periodical rent to the respondents herein at the rate of Rs.5000/- per month from June 2019 till 30.06.2020 without fail.
I state that the appellants have deposited the rent till February 2018 before the trial Court and from March 2018 despite the appellants have sent demand draft in that regard, that has been returned. Therefore, the appellants are paying arrears of Rent to a sum of Rs.9,000/- by way of cash to the respondents herein. I state that the appellants have no objection to get release the rent deposited and in the trial Court and in this regard necessary orders may be passed by this Hon’ble Court.”
3. The learned counsel, in support of the undertaking by way of affidavit, submits that the appellants are seeking enlargement of time to vacate only on the ground that they are unable to complete the construction undertaken by them within time, and the commencement of monsoon is further delaying the completion of the construction. The appellants are bona fide in their offer of undertaking to vacate and hand over the subject premises on or before 30.06.2020 whether the appellants’ building is completed or not.
4. The learned counsel for the respondents signifies his assent to the modification of the impugned judgment in terms of the undertaking given emphasising that the appellants have been procrastinating handing over the property despite similar assurance before the court below and the appellants must adhere to the undertaking. The learned counsel acknowledges receipt of a sum of Rs.8,500/- as rental arrears as of 31.07.2019. It is evident from the affidavit of undertaking and the submissions of the learned counsel that the parties have settled their dispute in the light of the impugned judgment and decree. As such the following :
ORDER The appeal is disposed of and the impugned judgments and decrees in O.S.No.26/2013 and RA No.56/2016 are modified, and the appellants/defendants are granted time to vacate and hand over the vacant possession of the subject property on or before 30.06.2020 subject to the condition that the appellants shall pay the rent, without default, a sum of Rs.5,000/- per month to the respondents by way of Demand Draft drawn in favour of respondent No.2 and other terms as undertaken in the affidavit.
The office is directed to draw the decree accordingly.
In view of disposal of the appeal, IA No.1/2019 and IA No.1/2018 do not survive for consideration and the same are disposed of.
SA Ct:sr Sd/- Judge