IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.1516 OF 2019 Between:
RADHAKRISHNA NAYAK SON OF LATE P NARAYANA NAYAK, AGED ABOUT 59 YEARS, R/AT OPP MAYUR THEATRE, VIZ INLAND MAYURA, PUTTUR TALUK,D.K.DISTRICT. (BY SRI. SACHIN B S., ADVOCATE) And:
1. MRS. AISAMMA WIFE OF K. K. JOSEPH, AGED ABOUT 69 YEARS, R/AT KUNTHUTHARA HOUSE, ULAS NAGARA, KUNJATHABAIL, MANGALORE, D.K.DISTRICT – 575 001.
2. P RAMESH NAYAK AGED ABOUT 59 YEARS, R/AT SWAROOP FASHIONS, OPP:INLAND MAYURA, PUTTUR TALUK, D.K.DISTRICT – 574 241.
... APPELLANT ... RESPONDENTS (BY SRI. RAVISHANKAR SHASTRY. G., ADVOCATE FOR R-1; VIDE ORDER DATED 12.11.2019 NOTICE TO R-2 HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED 31.07.2019 PASSED IN RA NO.15/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, AND MACT, AT PUTTUR. D.K., DISMISSING THE APPEAL FILED AGAINST THE 29.10.2018 PASSED ON I.A. NO. V IN EXECUTION NO. 08/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., PUTTUR, D.K. DISMISSING THE I.A NO.5 FILED UNDER ORDER 21 RULE 97 OF CPC.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant and the learned counsel for the respondent No.1, and perused the impugned judgments and evidence of the parties.
2. This appeal is filed challenging the order dated 29.10.2018 in Ex.No.8/2017 on the file of the Principal Civil Judge and JMFC, Puttur, Dakshina Kannada (for short, ‘the executing Court’) and the judgment dated 31.07.2019 in R.A.No.15/2018 on the file of the Additional Senior Civil Judge and JMFC and Motor Accident Claims Tribunal, Puttur, Dakshina Kannada (for short, ‘the appellate Court’. The appellant has filed an application viz., IA No.V under Order XXI Rule 97 of Code of Civil Procedure in Ex.No.8/2017 contending that he is in possession of the subject premises, a shop premise, and the respondent No.1 is trying to evict him from the schedule premises under the guise of executing decree obtained by the respondent No.1 in O.S.No.260/2010 on 30.06.2016. The executing Court has rejected this application by the order dated 29.10.2018, and rejection of this application is confirmed by the appellate Court by its judgment dated 31.07.2019.
3. The appellant in support of his application contended that he entered possession of the subject property as a tenant under the respondent No.1 on 5.1.1990, and he has continued in possession as tenant under the respondent No.1. The lease in his favour is not determined in the manner known to law. In fact, the respondent No.1 initiated eviction proceedings in HRC No.5/2000 under the erstwhile Karnataka Rent Control Act, 1961, but this petition was dismissed for default on 13.9.2001. This is the last attempt by the respondent No.1 to seek appellant’s eviction. The appellant is not a party to the proceedings in O.S.No.260/2010.
4. The respondent No.1 contested the appellant’s application specifically asserting that the appellant was inducted in possession of the subject property as a tenant under the Rent Bond dated 5.1.1990 on monthly rent of Rs.500/-. However, the appellant surrendered possession of the subject property in the month of December 1990. On the appellant surrendering possession, the respondent No.1 refunded security deposit of Rs.25,000/- that was paid by the appellant at the time of inception of the tenancy. Thereafter, the respondent No.2, who is younger brother of the respondent No.1, was inducted in possession of the subject property. The respondent No.1 initiated proceedings in suit in O.S.No.14/2004 for ejectment. This suit ended in compromise and fresh rent bond is executed by the respondent No.2. However, the respondent No.2 committed breach of terms of this Rent Bond constraining the respondent No.1 to initiate fresh proceedings for ejectment in the suit in O.S.No.260/2010. The appellant has filed the present application at the instance of the respondent No.2.
5. The appellant examined himself as PW.1 and another witness, Sri Giridhar Hegde as PW.2. The appellant, in his cross examination, has admitted that he was put in possession of the property on 5.1.1990 and the deposit of Rs.25,000/-, paid by him at the time of inception of the tenancy, is refunded to him by the respondent No.1 when he surrendered possession. He has also stated that he has continued his business under the name and style ‘P. Narayana and Sons’ in another premises, and his brother, respondent No.2, is in occupation of the subject premises and he is running his business under the name and style ‘M/s. Swaroop Fashions’ in the subject property even as of the date of the evidence. Significantly, the appellant has also stated in his cross-objection that he did not instruct the learned counsel to file the application, and the instructions were given by his younger brother. It is in the light of this unambiguous and unequivocal admissions the Courts below have rejected the application filed by the appellant under Order XXI Rule 97 of CPC. The finding of the Courts below is a finding of fact rendered by them on appreciation of the evidence on record. The evidence on record includes the aforesaid unambiguous and unequivocal admissions. The learned counsel is not in a position to point out that the judgments of the Courts below are otherwise opposed to any settled principle of law. As such, no substantial question of law arises. The appeal is accordingly dismissed.
Sd/- Judge SA Ct:sr