IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 32065 OF 2014 (GM-CPC) BETWEEN:
G A AYUB KHAN AGED ABOUT 52 YEARS, S/O LATE SRI.ABBAS KHAN NO.88, GROUND FLOOR, 8TH MAIN ROAD, 3RD BLOCK, JAYANAGAR, BANGALORE-560011 NOW AT NO.36, FLAT NO.202, 2ND FLOOR, 1ST MAIN, 1ST CROSS, SRI GARDEN, BANGALORE-11 ... PETITIONER (BY SRI. M NARAYANA REDDY, ADVOCATE) AND:
1. T H MAHABOOB JAN S/O LATE SRI.KHAZI HUSSAIN SHARIEF, AGED ABOUT 79 YEARS, NO.88, 1ST FLOOR, 8TH MAIN ROAD, 3RD BLOCK, JAYANAGAR, BANGALORE-11.
AMENDED AS PER V.C.O DATED 07.02.2019 R1(A) SMT MAHABOOBJAN W/O LATE MAHABOOBJAN, AGED ABOUT 75 YEARS, R1(B) SRI MANNAN SHARIF @ IMMRAN S/O LATE MAHABOOBJAN AGED ABOUT 57 YEARS, R1(C) RUMANA NIKHAT D/O LATE MAHABOOBJAN, AGED ABOUT 52 YEARS, R1A TO R1C ARE R/AT NO.88, 1ST FLOOR, 8TH MAIN ROAD, 3RD BLOCK, JAYANAGAR, BANGALORE 560011 (BY SRI. S A SAMI, ADVOCATE FOR R1; R(A) TO (C) ARE SERVED) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.6.14 PASSED ON IA.NO.II IN EX.P.NO.1316/11 ON THE FILE OF THE 25TH ADDL. DIST. & SESSIONS JUDGE BANGALORE CITY VIDE ANN-A, & CONSEQUENTLY BE PLEASED TO ALLOW THE SAID APPLICATION.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner, a judgment debtor in Execution Case No.1313/2011, has filed this Writ Petition calling in question the order dated 10.06.2014 whereby, his application in I.A.No.2 filed under section 151 of CPC, 1908, for summoning of the original records relating to O.S.No.5823/2006 has been rejected. After service of notice, the respondent-decree holders has entered appearance and opposed the Writ Petition.
2. Learned counsel for the petitioner submits that in terms of the judgment and decree dated 03.01.2011 in O.S.No.5823/2006, the petitioner has already vacated the premises in question and that the Executing Court which has to adjudge the damages/mesne profits for occupying the premises in question ought to have summoned the original record of the suit proceedings; non-summoning of the original records has put the petitioner to enormous prejudice and loss and therefore, the indulgence of writ court is warranted for setting the injustice at naught. So arguing, he seeks allowing of the Writ Petition.
3. Per contra, learned counsel for the respondent-decree holders opposes the Writ Petition stating that if at all any papers in the original record supported petitioner’s version as to payment of any amount to the decree holders, it was open to him to obtain certified copies thereof for producing the same before the Executing Court; the petitioner having not made any such efforts and having not shown any justification for not making the same, cannot maintain the Writ Petition. Even otherwise also, in the said original records of the proceedings, there is nothing to show that petitioner has made any payment.
4. I have heard the learned counsel for the petitioner and the learned counsel for the respondent- decree holders; I have perused the Writ Petition Papers.
5. The operative portion of the decree dated 03.11.2011 reads as under:
“Suit is decreed with costs.
Defendant is directed to vacate and handover the vacant possession of the suit premises on or before 31.03.2011.
Defendant is directed to pay damages/mesne profits from the date of suit till delivery of vacant possession of the suit premises at the rate of Rs.5,500/- p.m.”
Thus, there is a direction to the petitioner- judgment debtor to pay the damages for mesne profits for occupying the subject property during the suit proceedings and till after vacant possession thereof was delivered to the respondent.
6. If the petitioner is of the opinion that the original record of the suit proceedings contain material to establish that he has made any payment by way of advance or otherwise to the respondent-decree holders, it is open to him to obtain certified copies of the same and to produce before the Executing Court. That effort having not been made, he could not have maintained the application which has been rightly rejected by the Executing Court. The summoning of the original records becomes necessary ordinarily if the certified copies produced by a party are disputed. That is not the case here.
7. Decades ago, what the Judicial Committee of the Privy Council had observed was that the difficulty of a litigant in India begins after he obtains the decree squarely applies to this case. In fact, this is a fit case wherein cost ought to have been levied but not levied since the learned counsel for the petitioner pleaded for leniency.
In the above circumstances, this Writ Petition is dismissed without costs.
Sd/- JUDGE Snb/