IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.263 OF 2017 AND CIVIL REVISION PETITION NO.264 OF 2017 BETWEEN:
1. MRS.NAZNEEN KHALEELI, W/O LATE MR.MD RAFI KHALEELI, AGED ABOUT 85 YEARS, NOT CLAIMING THAT ANY SENIOR CITIZENSHIP.
2. MR.ATHA KHALEELI, S/O LATE MR.MD RAFI KHALEELI, AGED ABOUT 68 YEARS, NOT CLAIMING THAT ANY SENIOR CITIZENSHIP.
3. MRS.ZEEBA MOOSAVI, W/O MR.NASEER MOOSAVI, AGED ABOUT 66 YEARS, NOT CLAIMING THAT ANY SENIOR CITIZENSHIP.
4. MRS.SHAHLA RAZA, W/O MR.SAEED RAZA, AGED ABOUT 64 YEARS.
5. MRS.SORAIYA, W/O MR.SAYED ANWAR HASSAN, AGED ABOUT 62 YEARS.
6. MR.ZIA KHALELI, S/O LATE MR.MD RAFI KHALEELI, AGED ABOUT 60 YEARS.
7. MR.ANWAR HASSAN, S/O LATE MR.SYED QAMARHASSAN, AGED ABOUT 69 YEARS, NOT CLAIMING THAT ANY SENIOR CITIZENSHIP.
8. MRS.TAJ SULTANA, W/O LATE MR.JAFFER HASSAN, AGED ABOUT 54 YEARS.
9. MR.SYEDI HASSAN, S/O LATE MR.JAFFER HASSAN, AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT NO.2, LAUREL LANE, RICHMOND TOWN, BENGALURU – 560025.
NO.1 TO 8 REPTD BY GPA HOLDER, MR.SYEDI HASSAN i.e., PETITIONER NO.9, S/O LATE MR.JAFFER HASSAN, AGED ABOUT 28 YEARS, AT NO.2, LAUREL LANE, RICHMOND TOWN, BENGALURU – 560025. …PETITIONERS (COMMON) (BY SRI.RAGHUNATH M.D, ADVOCATE) AND:
1. M/S.SIRAJ AND RENU, A REGISTERED FIRM HAVING ITS OFFICE AT NO.38, 3RD FLOOR, RAIN TREE HALL APARTMENTS, NO.16, RHENIUS STREET, RICHMOND TOWN, BENGALURU – 560025, REP. BY AUTHORISED REPRESENTATIVE.
2. SRI K.S.PONNAPPA, S/O SRI K.K.SUBBAIAH, AGED ABOUT 57 YEARS, NO.14/3, 2ND FLOOR, SHERIFF HOUSE, 85, GEN, K.S.THIMMAIAH ROAD, OLD RICHMOND ROAD, BENGALURU – 25. ...RESPONDENTS (COMMON) (BY SRI.K.S.PONNAPPA, - R2, PARTY-IN-PERSON) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURT ACT., AGAINST THE ORDER DATED 01.04.2017 PASSED ON IA NO.3 IN EX.NO.15131/2013 ON THE FILE OF THE XIII ADDL. JUDGE, COURT OF SMALL CAUSES BENGALURU, ALLOWING THE IA NO.3 FILED UNDER ORDER XXI RULE 98,99 TO 101 OF CPC., THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURT ACT., AGAINST THE ORDER DATED 01.04.2017 PASSED ON IA NO.8 IN EX.NO.15131/2013 ON THE FILE OF THE XIII ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU REJECTING THE IA NO.8 FILED UNDER ORDER 21 RULE 97 READ WITH SECTION 151 OF CPC., THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners in C.R.P. No.263/2017 and C.R.P. No.264/2017 are the decree holders in execution No.15131/2013. The respondent No.1 is the judgment debtor and respondent No.2 is the objector.
02. Civil Revision Petition No.263/2017 is filed by the petitioners for setting aside the impugned order dated 01.04.2017 passed on I.A. No.3 under Order XXI Rule 98, 99 to 101 r/w 151 of CPC, filed by the respondent No.2/objector.
03. Civil Revision Petition No.264/2017 is filed by the petitioners for setting aside the impugned order dated 01.04.2017 passed on application (I.A. No.8) under Order XXI Rule 97 of CPC, filed by the decree holders/petitioners.
04. The facts briefly stated are that the petitioners had filed a suit for ejectment against the respondent No.1 herein after terminating the tenancy, which was numbered as S.C. No.15883/2011. The suit was decreed on 04.12.2012. The said judgment and decree was not challenged by the respondent No.1. Therefore, the petitioners filed execution petition which was numbered as E.P. No.15131/2013 and the same was pending before the Additional Small Causes Judge, Mayo Hall, Bangalore. The schedule premises described in the eviction petition was bearing No.85/14, II Floor, Sheriff House, 85, Richmond Road, Bangalore, measuring 100’ x 60’. The petitioners took the vacant possession of the schedule premises by breaking open the lock with police help, by filing application under Order XXI Rule 35(3) of CPC. The respondent No.2/objector by name Sri.K.S.Ponnappa, s/o. late K.K.Subbaiah, Advocate, filed application under Order XXI Rule 98, 99 and 100 of CPC and also filed application under Section 144 of CPC. The said applications went into trial. As against the application under Section 144 of CPC, the objector filed W.P. Nos.11610/2014 and 11900/2014 before the High Court of Karnataka. These two petitions were disposed of vide orders dated 25.09.2014 with a direction to restore the possession to the objector and allowed I.A. under Section 144 of CPC. Considering the rival contentions of the parties, the Hon’ble High Court directed the decree holders to put the petitioner (respondent No.2/objector) back in possession of the premises.
05. In pursuance of the said order, the executing court issued delivery warrants to hand over the possession to the respondent No.2/objector.
06. On hearing both parties, the trial Court has allowed I.A. Nos.2 and 3 filed by the respondent No.2/objector under Section 144 of CPC and under Order XXI Rules 98, 99 and 101 of CPC and rejected I.A. No.8 filed by the decree holders under Order XXI Rule 97 against the respondent No.2/objector.
07. Being aggrieved by the order passed on both I.As., the petitioners have filed these civil revision petitions.
08. As per the records pertaining to this case, the factual situation is, that respondent Nos.1 to 9 claiming to be the owners of the petition schedule property, had filed a suit seeking ejectment of respondent No.1 – M/s.Siraj & Renu from the premises bearing No.85/14, II Floor, Sheriff House, 85, Richmond Road, Bangalore. An exparte decree was obtained by the owners –respondent Nos.1 to 9 herein against the tenant – defendant in S.C. No.5883/2011 vide judgment and decree dated 04.12.2012. Thereafter, execution proceedings were initiated in E.P. No.15131/2013. Court notice was issued to the judgment debtor. As the judgment debtor did not appear, delivery warrant was ordered on 12.04.2013. The Bailiff visited the premises at 12.30 p.m. on 18.12.2013 and found the door locked. There was a name board of an Advocate by name Sri.K.S.Ponnappa. The Bailiff recorded that he waited near the place for half an hour but neither the judgment debtor nor anybody came to the spot to open the door. Hence, the Bailiff could not execute the warrant. He drew up a mahazar recording the said fact and after taking the signatures of two panch witnesses, sent the report to the Court.
09. Thereafter, the decree holders filed an application seeking reissue of delivery warrant with permission to break open the lock with police help invoking Order XXI Rule 35(3) CPC. In the affidavit filed in support of the application, the decree holder - respondent No.9 herein has asserted that, as was evident from the Bailiff’s report, the premises was kept locked by the judgment debtor and therefore, execution of the decree was frustrated, hence, it was necessary to issue fresh delivery warrant with permission to break open the lock providing requisite police help. The decree holders did not mention anything about the occupation of the premises by the Advocate – respondent No.2/ objector herein which fact has been noticed by the Bailiff while returning the delivery warrant unexecuted. They did not make any application under Order XXI Rule 97 CPC seeking removal of obstruction and for obtaining possession of the property. Instead, suppressing the occupation of the premises by the petitioner, relief for breaking open the lock with police help was sought.
10. The executing Court issued delivery warrant and granted police help to break open the lock to execute the decree. It has recorded in the order sheet that Bailiff’s report was perused. The order reissuing delivery warrant with police help to break open the lock does not notice the occupation of the premises by the petitioner who is a third party and who was not a party to the suit for ejectment or to the execution proceedings. Based on the said order, respondent No.2/objector has been dispossessed from the premises in the purported execution of the decree obtained against the judgment debtor – respondent No.10.
11. The third party – objector moved application before the executing Court seeking restoration of the possession of the premises invoking Section 144 of CPC. He had also made an application under Order 21 Rule 98 to 101 of CPC raising objection for execution of the decree. The petitioner has asserted his independent right to occupy the premises as a tenant unconnected with the judgment debtor. The Court below has embarked upon an enquiry into the application filed under Order 21 Rule 98 to 101 of CPC by deferring consideration of the application filed under Section 144 seeking restitution/restoration of the possession of the premises.
12. In this background, the objector who is the respondent No.2 in these two revision petitions, had filed writ petitions in W.P. No.11610/2014 & W.P. No.11900/2014 challenging the order dated 22.02.2014 passed by the V Additional Small Causes Judge, Mayo Hall, Bangalore, on I.A. Nos.I & II in Execution No.15131/2013, thereby deferring the applications filed for restoration of possession of the premises bearing No.14/3, II Floor, Sheriff House, 85, Gen. K.S.Thimmaiah Road (Old Richmond Road), Bangalore - 560 025, admeasuring 160 sq.ft., to the writ petitioner, pending enquiry into the claim made by the writ petitioner under Order XXI Rules 98 to 101 CPC.
13. On hearing both parties and considering entire materials on record, the High Court has passed an order dated 25.09.2014 as under:
“Heard the learned counsel for both parties and perused the entire materials on record. It is undeniable that as per the report of the Bailiff, the premises which is the subject matter of decree of ejectment was in occupation of the petitioner. The report of the Bailiff, copy of which is produced at Annexure-F specifically and clearly mentions that the board of advocate Sri K.S.Ponnappa (petitioner herein) was hung in the premises and it was in his occupation. The report further states that the door of the premises had been locked and nobody from judgment debtor’s side came to the spot to open the door. This report is signed by two other witnesses. This report was filed before the learned Judge. When the decree holders moved another application seeking reissue of warrant to break open the lock with police help, the Court below did not bother to look into this report and to notice the occupation of the petitioner. The Court below has blindly reissued the warrant directing breaking open the lock with police help and for delivery of possession to the judgment debtors. As a result of this order, petitioner – 3rd party has been dispossessed from the premises.
Petitioner has rightly brought this to the notice of the Executing Court and has sought for immediate restoration of his possession. Though this application was resisted and though several contentions are taken by the decree holders, all those aspects would be subject matter of enquiry in terms of the provisions under Order 21 Rule 97 to 101. As far as possession of the premises is concerned since the petitioner has been illegally thrown out of the premises by virtue of the illegal order passed by the Court below mainly because of the non-disclosure of these relevant facts in the affidavit filed by the decree holder in support of the prayer made for reissue of delivery warrant with permission to break open the lock with police help and also due to the omission of the Court in noticing the contents of the report of the Bailiff which would have made it abundantly clear that the premises was locked and was in the occupation of the petitioner – an advocate whose board was seen on the premises. The appropriate thing for the decree holders was to move an application under Order 21 Rule 97 and not to seek reissue of warrant with police help by breaking open the lock. This is nothing but an attempt to abuse the process of the Court.
Be that as it may, the third party who is setting up his own independent right as a tenant is required to establish his right in accordance with law but not by being forcibly thrown out from the premises but by protecting his possession over the premises. Since he has been now dispossessed, ends of justice and the purity of process of justice demand that his possession shall be restored pending enquiry into his claim. The Trial Court was not right and justified in deferring this request of the petitioner.
It is well established that an act of Court shall prejudice none (actus curiae neminem gravabit) particularly when such action is the result of suppression by the beneficiary of certain material facts. Now that such a mistake has been brought to the notice of the Court, the third party cannot be made to suffer. Hence, possession has to be restored to the petitioner subject to the result of further proceedings in the case.
This writ petition is allowed. I.A.No.1/2014 is allowed. Decree holders are directed to put the petitioner back in possession of the premises. All the rival contentions with regard to the merits and the entitlements of the parties are kept open to be adjudicated by the Executing Court. The Executing Court is directed to dispose of the matter expeditiously, at any rate within a period of six months from the date of receipt of a copy of this order.”
14. In pursuance of the aforesaid order, the matter was remitted back to the executing Court with a direction to consider all rival contentions and dispose of the matter expeditiously.
15. In view of the directions issued in the writ petitions, on 16.10.2014, the respondent No.2/objector appeared before the executing Court and filed an affidavit. Considering the same, the executing Court passed the following order:
“Objector Sri. K.S.Ponnappa filed his affidavit in which he has sworn to the effect that the Hon’ble High Court of Karnataka has allowed W.P. No.11610 and 11900/2014 on 25.09.2014 filed by him and so far he has not received copy of the said order and hence prayed for issuance of delivery warrant against the decree holders.
Perused. Heard.
Issuance of warrant against the decree holders in respect of the petition schedule premises, if necessary P.F. paid.”
16. Again on 22.11.2014, the applicant-objector Sri. K.S.Ponnappa filed additional affidavit for perjury and for restoration of possession in respect of suit schedule property, as prayed in the application dated 05.11.2014. The said affidavit was rejected as per the order dated 20.12.2014. Later on 07.09.2015, notice was issued to the counsel on record for the objector. On 24.09.2015, it was ordered that keeping in abeyance the order, office was directed to send the record as directed by Registrar (Vigilance), High Court of Karnataka, Bangalore. Again on 13.01.2016, the case was posted for appearance of the parties.
17. On the basis of the pleadings in I.A. No.2 under Section 144 of CPC and I.A. No.3 under Order XXI Rule 98, 99 to 101 r/w Section 151 of CPC filed by the objector and I.A. No.8 under Order XXI Rule 97 r/w Section 151 of CPC filed by the GPA holder of decree holders and objections filed to the said I.As., the following points for consideration were framed:
i. Whether the objector/applicant prove that he was in possession over the application schedule property?
ii. Whether the objector/applicant prove that the D.Hr. have illegally dispossessed the applicant from application schedule property by virtue of delivery warrant in Ex.P.No.15131/2013 schedule property?
iii. Whether the D.Hrs. prove that the objector causing the obstruction to the execution proceedings as prayed in I.A. No.8?
iv. Whether the objector is entitled to relief as claimed in the applications?
v. What order or decree?
18. In order to prove the contention of I.As., the objector himself has got examined as PW1 and documents marked as Exhibits-P1 to P33 and on behalf of objector, witnesses by name Santosh Nedungadi has been examined as PW2 and he has got marked Exhibits- P34 to P40, Jerome D’Souza has been examined as PW3 and got marked Exhibits-P41 to P43, Sharad R.Kharade has been examined as PW4 and documents marked as Exhibits-P44 to P59. On the other hand, Syedi Hassan has been examined as DW1 and documents marked as Exhibits-D1 to D6. The court officials have been examined as CW1 and CW2 and documents marked as Exhibits-C1 to C10.
19. On hearing both parties, the executing court on 01.04.2017 passed the following order:
“The Judgment and Decree in S.C. No.15883/2011 passed by SCCH No.20 is hereby set aside.
I.As. No.2 and 3 filed by Applicant/objector by name Mr.K.S.Ponnappa under Section 144 of CPC and under Order XXI Rule 98, 99 to 101 of CPC are hereby allowed.
Accordingly to restore and put back physical possession of the applications premises to the Objector and hereby Decree holders and GPA holder are directed to put the possession to the objector in physical possession of applications schedule property by way renovation as earlier position to the objector within three months from today.
If, D.Hrs. and GPA holder failed to renovation the application property and put the physical possession of the objector, then permitted and liberty given to the objector for making renovation as earlier stage and cost of the same will be recover from the D.Hrs., and GPA holder in due course of law.
Further hereby directed D.Hrs., and GPA holder of D.Hrs., to return all the valuable Articles, Furniture, Books, Case Paper, etc., to the objector immediately.
Further hereby directed that D.Hrs. and GPA Holder of D.Hrs. are liable to pay the compensation sum of Rs.5,00,000/- with interest @ 9% p.a., from the date of applications i.e., on 30.01.2014 till realization to the objector in view damaged caused by them.
Further the I.A. No.8 filed by the D.Hrs. under Order XXI Rule 97 against the objector is hereby rejected on the cost of Rs.5,000/-.
Draw Decree accordingly.”
20. Being aggrieved by the aforesaid order, the revision petitioners who are the decree holders in S.C. No.15883/2011 and Execution No.15131/2013, have preferred civil revision petitions.
21. Heard learned counsel for the revision petitioners and the respondent No.2/objector – party-in- person. Perused entire records.
22. These two petitions are filed under Section 18 of the Karnataka Small Causes Court Act, which reads as under:
“18. Revision of decrees and orders of Courts of Small Causes.—The High Court, for the purpose of satisfying itself, that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such orders with respect thereto, as it thinks fit.”
23. Regarding scope of revision, the respondent No.2/objector has relied on the following decisions:
i. 2000 (4) Kar.L.J. 319 ii. 1999 (3) Kar.L.J. 699 iii. 1983 (2) Kar.L.J. 284 In a decision reported in 1999 (3) K.L.J. 699 in the case of R.K.Shivananda vs. Bellulli Shivashankarappa @ Gurusiddappa, this High Court relying on a decision reported in the Hon’ble Supreme Court in AIR 1963 SC 698, has held as under:
“Karnataka Small Causes Courts Act, 1964 - Section 18 – Revision – Scope of – Power of revision is only to satisfy itself that case has been decided according to law – Phrase “according to law” refers to decision as a whole, and is not to be equated with errors of law or of fact simpliciter – Court cannot interfere with plaint finding of fact – Revisional Court cannot reassess value of evidence to come to different conclusion – Where Trial Court has found that money paid by party was towards advance rent or deposit in respect of house he had occupied and not loan, such finding does not call for interference.
HELD: The scope of jurisdiction of this Court under Section 18 is limited to the question whether the decision is according to law. The scope of the jurisdiction under Section 18 is not same as if rehearing by way of appeal and this section does not entitle the Court to interfere with a finding of fact simply on the ground that this Court can take a different view of the matter on material on record. In the present case, the question only relates to appreciation of evidence. Jurisdiction of this Court under Section 18 is not that of a Court of first appeal and this Court is not entitled to interfere with the finding of a fact.”
In a decision reported in 2000 (4) Kar.L.J. 319 in the case of S.I.Kamruddin Shah vs. M.R.Umakanth, this High Court has held as under:
“Karnataka Small Causes Courts Act, 1964, Section 18 – Revision – Scope of – Finding arrived at by Trial Court on basis of evidence on record that suit is not barred by limitation – Such finding, held, cannot be interfered with in revision merely because another view on facts elicited is possible.”
In a decision reported in 1983 (2) Kar.L.J. 284 in the case of Rajagopalaih Setty V.R. vs. N.Radhakrishna, this High Court relying on several decisions of the Hon’ble Supreme Court, has held as under:
“12. … the High Court cannot assume jurisdiction under S. 115 of CPC in order to correct the gross misinterpretation of fact or law. It is only the misinterpretation of the law relating to some laws like limitation, res judicata or provisions creating the bar of jurisdiction of a Court, that would seriously affect the jurisdiction of a Court, that can be corrected by the High Court under S. 115 CPC. So long as there is no error of jurisdiction and so long as there is no material irregularity or illegality in the exercise of jurisdiction, this Court cannot invoke power under S. 115 CPC in order to correct even wrong appreciation of evidence or wrong interpretation of law or wrong approach made by the court below in the appreciation of the evidence.”
24. In view of the aforesaid decisions, the scope of jurisdiction under Section 18 is not same, as if rehearing by way of appeal and this Section does not entitle the court to interfere with the finding of fact simply on the ground that this Court can take a different view of the matter on material on record. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.
25. The main contentions of the counsel for the revision petitioners is that the direction issued by the Hon’ble Court in writ petition was only for restoration of possession, but the executing court has passed an erroneous order by granting five reliefs which is not proper and justified. It was the duty of the objector to safeguard his properties, hence, the revision petitioners are not responsible to return the said properties and furniture. There are no justifiable grounds to quantify the compensation/damages. There is no satisfactory evidence regarding the financial loss caused to the respondent No.2/objector. On 05.11.2014, the possession was delivered back through delivery warrant.
But the objector has not taken any steps. Hence, the respondent No.2 is not entitled for compensation. As per the earlier order dated 20.12.2014, the furniture are taken away. The counsel has relied on the following decisions:
i. 2008 (3) SCC 299 ii. 2009 (2) SCC 772 iii. 1999 (2) SCC 325 iv. 2005 (1) SCC 705 v. 2005 (6) SCC 489 vi. AIR 1967 SC 155 vii. AIR 1966 SC 735 viii. MANU/KA/1480/2010 dated 31.08.2010 in W.P.
No.81314/2009 ix. MANU/SC/0081/2001 dated 06.02.2001 in Appeal (Civil) No.1057-58/2001.
26. The respondent No.2/objector has submitted that he was a tenant of the premises bearing No.14/3, II Floor, Sheriff House, 85, Gen. K.S.Thimmaiah Road (Old Richmond Road), Bangalore -560 025. On 28.01.2014, he was illegally dispossessed and thrown out from the office premises. Therefore, on 01.02.2014, the respondent No.2/objector had filed I.As., under Order XXI Rule 98, 99 to 101 of CPC and also under Section 144 of CPC in execution petition. On 22.02.2014, detailed orders were passed by the executing Court, but it was kept in abeyance till enquiry. The respondent No.2 was compelled to file writ petitions challenging the orders of the executing court. The Hon’ble High Court allowed the writ petitions and directed to restore the possession. On 16.10.2014, the delivery warrant was issued against the decree holders/revision petitioners to restore the possession. On 28.10.2014, the Court Bailiff filed a shara stating about the removal of the main door and sealing it by putting wall and removal of the partition wall. Even the photos of the said premises confirm the same. The legal notice issued by Shekar Shetty dated 30.12.2018 reveals that the respondent No.1 was occupying one unit in second floor, at the address bearing No.16, Rhenius Street, Richmond Town, Bangalore-560 025. The same address is shown in S.C. No.15883/2011. The defendant is described as a registered firm, but no one is representing the firm. The notice/summons is said to have been served on one lady by name Gayathri. Thus, the Decree holders/revision petitioners in collusion with the respondent No.1 have managed to obtain exparte decree with an intention to evict the respondent No.2/objector illegally, by playing fraud and abuse of process of the court. On account of the illegal dispossession, the respondent No.2 has lost all office furniture, books, files, etc., and valuable materials. The possession is not yet restored on account of the wall constructed. Therefore, the respondent No.2/objector has taken symbolic possession, but, he is not in actual possession. Due to the illegal eviction, the respondent No.2/objector has suffered huge loss and put to hardship. Considering the entire evidence placed on record, the executing Court has come to the right conclusion. There are no valid grounds to interfere with the impugned order.
27. The main controversy is regarding illegal dispossession of the respondent No.2/objector. According to the revision petitioners/decree holders, the possession was taken in respect of the property bearing No.85/14, II Floor, Sheriff House, 85, Richmond Road, Bangalore. But, as per the version of respondent No.2/objector, he was in possession of the property bearing No.14/3, II Floor, Sheriff House, 85, Gen. K.S.Thimmaiah Road (Old Richmond Road), Bangalore -
560 025, wherein, he was having his office and conducting legal profession. Thus, the dispute is regarding identification of the property. The respondent No.2/objector is examined as PW1 and four other witnesses are examined as PW2 to PW5. Documentary evidence is also produced. PW1 has given affidavit evidence and also filed additional affidavit evidence, wherein, he has narrated about his occupation in the premises bearing No.14/3, II Floor, Sheriff House, 85, Gen. K.S.Thimmaiah Road (Old Richmond Road), Bangalore -560 025 and his illegal dispossession by playing fraud on the Court and abuse of process of the court. He has been cross-examined at length, but nothing much is elicited.
28. As could be seen from the records, the petition premises building is a vertical construction which is a complex consisting of several shops and offices. Exhibit-D1 to D6 are the letter-heads of M/s.Siraj and Renu, who are the defendants in S.C. No.15883/2011 wherein their office address, namely the petition premises is shown as No.14/2, II Floor, Sheriff House, 85, Richmond Road, Bangalore -560 025. The premises which was said to be in occupation of respondent No.2/objector is No.14/3, II Floor, Sheriff House, 85, Gen. K.S.Thimmaiah Road (Old Richmond Road), Bangalore -560 025. Photographs of the office are at Exhibits-P51 to P56. Some of the photographs of the main door of the office display the name of Advocate – Sri.K.S.Ponnappa.
29. The main grievance of the respondent No.2/objector is that eviction petition was filed against M/s.Siraj and Renu only with an intention to evict the petitioner – Sri.K.S.Ponnappa by demolishing the common wall situated inbetween the premises in occupation of M/s.Siraj and Renu who are the defendants in S.C. No.15883/2011 and the office of Sri.K.S.Ponnappa. Exhibit-D6 is the lease agreement which was earlier impounded, later got marked after payment of duty and penalty. There are some interpolations. It is said that the GPA holder representing the owners of the property had filed eviction petition, but the GPA is not forthcoming. Exhibit-D1 and D4 are the letters written by landlady to tenant, wherein, the address of the petition premises is shown as No.14/2. It is the specific case of the respondent No.2/objector that he was having his office quite adjacent to No.14/2 and it was bearing No.14/3. To prove the possession, the petitioner has produced documentary evidence. Exhibit-P1 to P4 are letters and courier receipt; Exhibit-P6 and P7 are greetings; Exhibit-P8 to P11 are other correspondence, Exhibit- P12 and P13 are SMS messages, which goes to show that he was a tenant in possession of the office premises. Exhibit-P1 is the letter written by tenant Sri.K.S.Ponnappa and others to the manager of the building. Exhibit-P3 is the copy of the letter. There is ample evidence to show that in the premises (building complex) bearing No.85/14, II Floor, Sheriff House, 85, Richmond Road, Bangalore, the office premises Nos.14/2 and No.14/3 are located in the same building complex and these two premises in occupation of the respondent No.2/objector and the tenants are the adjacent premises. Thus, the contention of the revision petitioners regarding identification of the properties that the respondent No.2/objector was not a tenant in the petition premises No.85/14 or No.14/3 does not hold good.
30. To prove the illegal dispossession on the basis of the delivery warrant issued as per the order dated 10.01.2014, PW1 has stated in his affidavit evidence in detail about the possession taken by the revision petitioners/decree holders highhandedly with the help of police. In support of his oral evidence, the documentary evidence along with the photographs taken at the spot, bills, etc., are placed on record which are Exhibits-P1 to P59. It is pertinent to note that, the delivery warrant was issued on the basis of the order dated 10.01.2014 and on the basis of the report filed by the Bailiff as per Exhibit-C2. The contents of the said document discloses that the premises where the Bailiff had gone for execution of delivery warrant was the Advocate’s office belonging to Sri.K.S.Ponnappa, Advocate, in the II floor of premises bearing No.85/14, II Floor, Sheriff House, 85, Richmond Road, Bangalore -
560 025 and there was a name board of Sri.K.S.Ponnappa, Advocate, at the said place. He waited for one and half hour, but the door of the said premises was not opened by the defendant. As such, the delivery warrant could not be executed. Therefore, it is necessary to break open the lock and seek police help. The question that arises for consideration is whether the Bailiff can make such an observation in his report when there was no obstruction / objection by the respondent No.2 or any other person at that point of time near the spot? The documents at Exhibit-P1 to P59 goes to show that the respondent No.2/objector was in possession of the premises where the Bailiff had gone for the execution of delivery warrant and the said property was bearing number as No.14/3.
31. PW1 namely respondent No.2/objector has deposed that, on 28.01.2014 at 10.30 a.m., when he was in his advocate chamber at No.14/3, II Floor, Sheriff House, 85, Gen. K.S.Thimmaiah Road (Old Richmond Road), Bangalore -560 025, four men barged into his office and told that there was a warrant issued by the court for evicting him from the premises. The respondent No.2/objector replied that he was not a party to the proceedings and warrant could not be executed against him, as the property number shown in the warrant also did not tally with the premises in his occupation; despite his request and objection, the Bailiffs and police along with the decree holder and their henchmen, illegally and forcibly evicted the respondent No.2/objector from his office chamber and also prevented him from taking important valuable documents, books, cheque, case files, furniture, etc. Some of the photographs which are marked at Exhibit- P45 to P59, Exhibit-C11 and C12 clearly goes to show that immediately after taking possession, the wall was demolished and some portion of the building was damaged. The furniture and other materials belonging to the respondent No.2/objector were dumped on the terrace of the building.
32. CW1 and CW2 are the Bailiffs who had gone for execution of the delivery warrant. CW1 is the Bailiff by name Chandresh B.K. who was cross examined and documents are marked as Exhibits-C4 to C8. Exhibit- C4 is the summons to witness; Exhibit-C5 is the delivery warrant with report dated 18.12.2013 submitted by him; Exhibit-C6 is the delivery warrant with report dated 28.01.2014 along with spot mahazar at Exhibit-C7 and Exhibit-C8 is the receipt of possession of immovable property.
33. Another Bailiff by name M.B.Mallikarjun is examined as CW2 and the documents are marked as Exhibit-C9 and C10. Exhibit-C10 is the delivery warrant with report and mahazar dated 28.01.2014. CW1 has admitted Exhibit-C2 – Mahazar dated 18.12.2013. The said report discloses that the petition premises to be vacated was in the possession of respondent No.2/objector Sri.K.S.Ponnappa, Advocate. Despite having the knowledge about the possession of the respondent No.2/objector, he has submitted report as per Exhibit-C5, as “door locked” and has recommended for breaking open the lock with police help. Thus, it appears that the said report was prepared at the instance of the decree holders/revision petitioners. While passing the order, the executing Court has not perused the report-Exhibit-C2 properly and has passed an order for issuance of delivery warrant by breaking open the lock with police help. The documents at Exhibit-C1 and C8 are the report and mahazar. The contents of the said documents discloses that the respondent No.2/objector was present in his office. In such circumstances, there should have been a specific order for vacating the respondent No.2/objector from the said premises. Instead, the report was submitted by the Bailiff for breaking open the lock by taking police help. Exhibit-C7 – mahazar discloses that the furniture, moveable properties, case papers, books and other documents belonging to respondent No.2/objector were taken out from the office with the help of decree holders. CW1 has admitted Exhibits-P47, 50, 51, 52, 56 and 57 which are photographs showing the actual situation at the spot. CW1 has not at all acted according to the procedure prescribed and the belongings of respondent No.2/objector have been thrown out with the help of decree holders.
34. CW2 has clearly admitted in his evidence that on 28.01.2014, the properties belonging to respondent No.2/objector were kept outside, as shown in Exhibits-P47, 48, 49, 50, 51, 52, 53, 56 and 57.
There is no cogent evidence to show that these properties were taken away by respondent No.2/objector. Some of the photographs goes to show that the furniture are dumped on the first floor. The evidence of CW1 and CW2 clearly goes to show that while executing the delivery warrant, the properties belonging to the respondent No.2/objector including the furniture, case files, etc., are taken away by the decree holders. As a result of which, the respondent No.2/objector has suffered damage and loss.
35. Considering the entire oral and documentary evidence placed on record, the executing Court has come to the conclusion that the respondent No.2/objector was in possession of the petition premises and the revision petitioners had in collusion with the defendant/respondent No.1 had managed to take exparte decree for eviction, with a deliberate intention to evict the respondent No.2/objector. The document namely delivery warrant dated 29.10.2014 discloses that the common wall between the petition premises which was in occupation of the respondent No.2/objector and other tenant was demolished and other alterations have been done by closing the door, etc. Therefore, the respondent No.2/objector could not take the physical possession of the property. In this regard, the respondent No.2/objector Sri.K.S.Ponnappa has made an endorsement stating that symbolic possession has been taken, as the main door and the portion of the wall of his premises has been removed and demolished. Unless the main door is fixed and the wall separating the other premises is reconstructed, he is unable to take the actual possession. Therefore, the restoration is inconclusive and incomplete. Even in another report dated 20.11.2014, the respondent No.2/objector has made endorsement that symbolic possession of the property is taken, as stated in the mahazar. The doors and partition walls are required to be installed. These reports coupled with the oral evidence clearly goes to show that the respondent No.2/objector is not in a position to occupy the office premises. The revision petitioners have not placed any evidence to show that the necessary constructions have been done to bring back the original position. Considering all these aspects, the executing Court has passed appropriate orders.
36. The decisions relied on by the learned counsel for the revision petitioners pertains to rent control and quantification of mesne profits to be awarded. In my humble opinion, these decisions are not aptly applicable to the facts of this case.
37. On reappreciation of the entire oral and documentary evidence placed on record, this Court is of the opinion that the findings given by the executing court is justified. There are no valid grounds to interfere or reverse the findings given by the executing Court. As such, these two revision petitions have no merits. Accordingly, these civil revision petitions are dismissed.
Sd/-
JUDGE SJ