IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2017.
BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.9475/2017 (GM-CPC) Between Smt. Rukiya, W/o. N.H.Hyder, Aged about 41 years, R/at Ukkuda House, Kotekar Village, Kinya Post, Mangaluru – 575 022. ...Petitioner (By Sri. M. Sudhakar Pai, Advocate) And Smt. Ashalatha Das, W/o. Anil Das, Aged about 35 years, R/at Door No.23/146(15), Sri Durga Nilaya, Ambika Road, Near Gatty Samaj Bhavan, P.O. : Ullal, Mangaluru – 575 020. ...Respondent (By Sri. S. Rajashekar, Advocate) This Writ Petition is filed under Article 227 of Constitution of India praying to quash the Order dated 20.02.2017 in Misc.Case No.4/2017 on the file of II Addl. Civil Judge & JMFC, Mangaluru, D.K. (which order is contained in the certified copy of the order sheet of Misc. Case No.4/2017 at Annexure-L to the W.P.), only to the extent of not granting stay and etc.
This Writ Petition coming on for Orders this day, the court made the following:
ORDER The defendant has filed this writ petition against the order dated 20.02.2017 in Mis. Case No.4/2017 passed by the Prl. Civil Judge and JMFC, Mangaluru, Dakshina Kannada, issuing notice to the respondent without considering the Interlocutory Application for stay.
2. The present respondent who is the plaintiff before the trial Court has filed suit in O.S. No.715/2012 for ejectment, possession, payment of arrears of rent, mesne profits and also future mesne profits contending that the plaintiff is the absolute owner of residential house bearing Door No.5-188/2 situated at Asha Nilaya, Ukkada House, Post Kinya Kotekar Village, Mangalore Taluk- 575 022. The same was leased to the defendant for a period of three months till she acquires alternative residence. They have entered into lease agreement dated 30.06.2011 with a liability to pay the monthly rental of Rs.2,500/- per month for a period of three months commencing from 01.07.2011. The defendant was chronic defaulter in payment of monthly rents. Therefore, the plaintiff has filed suit for ejectment, possession, payment of arrears of rent and mesne profit, etc.
3. The defendant has filed written statement denied the entire plaint averments made in the plaint and contended that there is no jural relationship of landlord and tenant between plaintiff and defendant. The suit filed by the plaintiff is barred under the provisions of the Karnataka Rent Act, 1999 and hence prays for dismissal of the suit.
4. The trial court by the judgment and decree dated 10.08.2016 decreed the suit and directed the defendant to hand over the schedule premises to the plaintiff within two months and further directed to pay arrears of rent from 01.07.2011 to 31.07.2012 at the rate of Rs.2,500/- per month total comes to Rs.32,500/- and also pay the mesne profits and future mesne profits at the rate of Rs.3,000/- per month from 01.08.2012 till actual handed over the schedule premises.
5. On the basis of the said judgment and decree, the decree holder filed Ex.No.266/2016 on 25.11.2016 to implement the decree. On 17.02.2017 defendant filed Mis. Case No.4/2017 against judgment and decree dated 10.08.2016 made in O.S.No.715/2012. The Mis. Case No.4/2017 came up before the Miscellaneous Court on 18.02.2017, the Miscellaneous Court issued notice of petition and on I.A. copy to the respondent by hand and as well as Court process and the matter was posted on 20.02.2017. On 20.02.2017 the present petitioner filed a memo along with the affidavit and returned hand notice as unclaimed and also refusal by the decree holder. The Miscellaneous Court again issued notice to respondent by RPAD and adjourned the matter to 08.03.2017. That is why, this writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri. M Sudhakar Pai, learned counsel for the petitioner contended that the impugned order passed by the Miscellaneous Court only issued notice to the respondent by RPAD on 20.02.2017. In spite of refusal made by the learned counsel for decree holder and returned hand notice as unclaimed is erroneous, contrary to law and material on record. He further contended that since decree holder already filed Ex.
No.266/2016 on 25.11.2016, therefore the Miscellaneous court ought to have considered the application filed for stay. The same was not done and no interim order was granted. The very same Mis. petition filed becomes frustrated. Hence, he sought to quash the impugned order passed by the trial Court.
8. Per contra, Sri. S. Rajashekar, learned counsel for respondent submits that the decree was not an exparte. Throughout, the counsel represented and also filed written statement and when the matter posted for evidence he seeks time therefore it is not maintainable. The Court notice also issued to the defendant and he has not availed the opportunity. Therefore the trial court was justifying in issuing notice without considering the application for stay. Therefore, he sought for dismissal of the application.
9. Having heard the learned counsel for the parties to the lis, it is undisputed fact that the respondent herein has filed suit for ejectment, possession, arrears of rent and mesne profit. It is also not disputed that defendant has filed written statement and contended that subsequently the very counsel was retired from the proceedings. Therefore, Court has issued notice. The defendant has not availed opportunity. Be that as it may, the fact remains that according to the present petitioner, the decree was exparte and has filed Miscellaneous Case and sought for stay.
10. If there was delay, the Miscellaneous Court ought to have issue notice on delay as well as on main miscellaneous matter and should have protected the interest of parties by giving short date. The trial Court ought to have considered the application for stay along with the application for delay to protect the interest of both the parties, but the same has not been done. Therefore, it is a fit case, that the impugned order passed by the trial Court is erroneous and contrary to law.
For the aforesaid reasons, the writ petition is disposed of and the Miscellaneous Court is directed to take the application for delay as well as application for stay filed by the petitioner in Misc. Case No.04/2017 and decide the same within a period of 15 days and decide the Mis.Case No.04/2017 within a period of 4 months from the date of receipt of order.
Learned counsel for the respondent fairly submits that respondent will not precipitate the execution for a period of 3 months or till disposal of the execution petition. The said fair submission is placed on record.
SD/- JUDGE DL/MBM