IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.52105/2018 c/w WRIT PETITION NO.54066/2016 (GM-CPC) In W.P. NO.52105/2018 BETWEEN:
Sri. Channesa H.L @ H.L. Chanesha S/o late M. Lakappa, Aged about 32 years, R/at No.25, 2nd Main Road, 1st Cross, Mother Dairy Cross, Mathru Layout, Yalahanka Upanagara, Bengaluru – 560 065. ... Petitioner (By Sri. Saket Bisani, Advocate) AND:
1. Sri. H.S. Krishnamurthy S/o late HBS Naik, Aged about 48 years, R/at No.67, 2nd Floor, Doopanahally, Sri. Rama Temple Road, 2nd Stage, HAL, Indiranagar, Bengaluru – 560 008.
Also at:
Sri. H.S. Krishnamurthy C/o Iswarya Bar and Restaurant, No.17, 1/2/24-25, Mother Dairy Circle, Chikkabommasandra, Yalahanka, Bengaluru – 560 064.
2. Smt. Gowramma D/o Sri. Chikkegowda, Aged about 56 years, R/at Chikkabommasandra Village, Yalahanka Hobli, Bengaluru North Taluk, Bengaluru – 560 106. … Respondents (By Sri. R.B. Deshpande, Advocate for R1; Sri. H. Manjunath, Advocate for R2) This writ petition is filed under Article 227 of the Constitution of India praying to quash the order dated 09.10.2018 in O.S. No.26105/2015 passed by the Principal City Civil Sessions Judge at Bengaluru at Annexure-E and etc., In W.P. NO.54066/2016 BETWEEN:
Sri. H.S. Krishnamurthy S/o late HBS Naik, Aged about 50 years, R/at No.67, 2nd Floor, Doopanahally, Sri. Rama Temple Road, 2nd Stage, HAL, Indiranagar, Bengaluru – 560 008.
Also at:
Iswarya Bar and Restaurant, No.17, 1/2/24-25, Mother Dairy Circle, Chikkabommasandra, Yalahanka, Bengaluru – 560 064. ... Petitioner (By Sri. R.B. Deshpande, Advocate) AND:
1. Sri. Channesa H.L @ H.L. Chanesha S/o late M. Lakappa, Aged about 50 years, R/at No.25, 2nd Main Road, 1st Cross, Mother Dairy Cross, Mathru Layout, Yalahanka Upanagara, Bengaluru – 560 065.
2. Smt. Gowramma D/o Sri. Chikkegowda, Aged about 55 years, R/at Chikkabommasandra Village, Yalahanka Hobli, Bengaluru North Taluk, Bengaluru – 560 106. … Respondents (By Sri. Saket Bisani, Advocate for Sri. B.K. Manohar, Advocate for R1; Sri. N. Raghubabu, Advocate for R2) This writ petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 24.09.2016 on I.A. filed under Section 151 of CPC directing the petitioner/defendant No.1 to deposit the agreed rent in respect of suit schedule premises from October 2014 passed by the XIII Additional City Civil and Sessions Judge Mayohall Unit in O.S. No.26105/2015 at Annexure-F and consequently to dismiss I.A. filed under Section 151 of CPC filed by Respondent No.1/plaintiff in O.S. No.26105/2015 on the file of XIII Additional City Civil and Sessions Judge, Mayohall unit, Bengaluru.
These writ petitions coming on Preliminary Hearing in ‘B’ Group this day, the Court made the following:
ORDER W.P. No. 52105/2018 filed by the plaintiff against the order dated 09.10.2018 rejecting his application/I.A. No.II/2018 filed under Section 151 of the Code of Civil Procedure to release the money deposited by defendant No.1 in O.S. No.26105/2015 on the file of XXVIII ACC & SJ., Bengaluru. W.P. No.54066/2016 filed by defendant No.1 against the order dated 24.09.2016 allowing the application filed by the plaintiff and directing defendant No.1 to deposit the agreed rent in respect of suit schedule premises.
2. The petitioner in W.P. No.52105/2018 filed suit for ejectment contending that he is the owner of the suit property based on the registered sale deed dated 04.07.2013 from his mother defendant No.2/respondent No.2 and respondent No.1 is a tenant under his mother/defendant No.2. After he purchased the property, he entered into rental agreement with respondent No.1 on 12.10.2013. During the pendency of the proceedings, the plaintiff filed I.A. under Section 151 of the Code of Civil Procedure to direct defendant No.1/tenant (respondent No.1 herein) to deposit the rent before the trial Court from October 2014 at Rs.47,500/- p.m. in respect of suit schedule premises. The trial Court after considering the application and objections, by impugned order dated 24.09.2016 allowed the application. Hence, tenant/defendant No.1 filed W.P. No.54066/2016 before this Court.
3. The plaintiff filed one more application I.A. No.II/2018 under Section 151 of the Code of Civil Procedure to release the money deposited by defendant No.1 towards the rent. On the objections filed by tenant/defendant No.1, the trial Court dismissed the application. Hence, W.P. No.52105/2018 is filed by the plaintiff.
4. I have heard the learned counsel appearing for the parties to lis.
5. Sri. Saket Bisani, learned counsel appearing for the petitioner/plaintiff in W.P. No.52105/2018 contended that the impugned order passed by the trial Court rejecting the application/I.A. No.II/2018 for release of the money deposited by defendant No.1 is erroneous, contrary to the material on record. He would further contend that there is no dispute between the parties and that he is the owner of the property in question under registered sale deed dated 04.07.2013 executed by his mother/respondent No.2. Therefore, the trial Court ought to have allowed the application. He would further contend that when the trial Court allowed the earlier application/I.A. on 24.09.2016 filed by the plaintiff directing defendant No.1 to deposit the rent amount, there is no impediment to release the said amount during the pendency of the proceedings. Therefore, he sought to allow the writ petition.
6. Per contra, Sri. R.B. Deshpande, learned counsel appearing for the petitioner in W.P. No.54066/2016 and respondent No.1 in W.P. No.52105/2018 contended that the order passed by the trial Court allowing I.A. by directing defendant No.1 to deposit the agreed rent in respect of suit schedule premises from October 2014 is erroneous and contrary to material on record. Defendant No.1 has disputed the relationship between the plaintiff and defendant No.2 i.e., mother of the plaintiff. He would further contend that trial Court is justified in rejecting the application-I.A.No.II/2018 filed by plaintiff for release of amount deposited by defendant No.1 before the trial Court. When there is a dispute with regard to the relationship between the plaintiff and defendant No.1, the trial Court ought not to have allowed the application-I.A. filed by the plaintiff, on 24.09.2016. therefore, he sought to dismiss the writ petition filed by the plaintiff in W.P. No.52105/2018 and to allow the W.P. No.54066/2016.
7. Learned counsel for respondent No.2 submits that she has alienated the suit schedule property on 04.07.2013 in favour of plaintiff, who is her son and the plaintiff is the owner of property in question. Therefore, he sought to dismiss the writ petition filed by the tenant/petitioner in W.P. No.54066/2016 and allow the writ petition filed by plaintiff in W.P. No.52105/2018.
8. Having heard the learned counsel appearing for both the parties, it is undisputed that the plaintiff is claiming the ownership under a registered sale deed dated 04.07.2013 and suit is filed for ejectment against respondent No.1. Respondent No.1 denied the relationship of the plaintiff and defendant No.2 and contended that admittedly he is a tenant under respondent No.2, mother of the plaintiff. It is also not in dispute that earlier application filed by the very plaintiff in I.A., the trial Court by order dated 26.09.2016 directed the defendant No.1 to deposit the rent amount. There is no dispute with regard to the ownership of respondent No.2/mother and he is admitted the same. When there is no dispute with regard to the ownership, by virtue of sale deed executed by respondent No.2 in favour of the plaintiff, he cannot take advantage of the same and deny the rents. Therefore, the impugned order dated 24.09.2016 passed by the trial Court on I.A. in O.S. No.26105/2015 directing the defendant No.1 to deposit the rents before the trial Court, is just and proper as he has not disputed the ownership of respondent No.2. Ultimately, it is for the plaintiff to prove the ownership during the trial, based on the oral and documentary evidence. Till such disposal of the suit, defendant No.1 cannot avoid to pay the rents. Accordingly, the trial Court is justified in passing the impugned order dated 24.09.2016. The petitioner has not made out ground to interfere with the impugned order passed by the trial court in exercise of power under Article 227 of the Constitution of India, accordingly, the writ petition filed by tenant/defendant No.1 in W.P. No.54066/2016 is dismissed.
9. It is the specific case of defendant No.1 that plaintiff is not the owner of the property in question. On earlier application/I.A. filed by the plaintiff, the trial Court directed defendant No.1 to deposit the rent amount. Since there was a dispute regarding the landlord and tenant that is between the plaintiff and defendant No.1, the trial Court considering the entire material on record has recorded a finding that defendant No.1 had admitted that he is a tenant under defendant No.2. Though defendant No.2 has stated that she has no objection to pay the rents to the plaintiff, as the defendant No.1 is contended that he is not the tenant under the plaintiff and that he is the tenant under defendant No.2, the plaintiff cannot be permitted to withdraw the rent. It is already observed by the trial Court in the aforesaid order directing defendant No.1 to deposit the rent that only after trial it can be determined as to whether the plaintiff is the landlord of defendant No.1. Hence, at this stage, the amount cannot be released in favour of the plaintiff in view of the dispute regarding the relationship of landlord and tenant. The trial Court has already directed the office to deposit the rents amount paid by defendant No.1 in a Fixed Deposit.. Therefore, the plaintiff can withdraw the amount with interest in the event of the decree being passed in his favour. Accordingly, the application/I.A. No.II/2018 filed by the plaintiff came to be rejected.
10. It is also not in dispute that the earlier order passed by the trial Court dated 24.09.2016 wherein the trial Court at para 10 had specifically recorded the finding that defendant No.1 has disputed the ownership of the plaintiff in respect of the suit schedule property and also disputed that he is the tenant under the plaintiff. Under such circumstances, unless and until full fledged trial is completed, it is very difficult to come to the conclusion about the relationship in between the plaintiff and defendant No.1 as landlord and tenant and in view of defendant No.1 has admitted that he is a tenant under defendant No.2 on monthly rent and he is ready to pay monthly rents to defendant No.2 as per rental agreement dated 10.09.2011 entered into between him and defendant No.2, the trial Court was of the considered opinion to direct defendant No.1 to deposit agreed rent before the Court from October 2014 in order to enable the plaintiff or defendant No.2 either one among them who succeeds to receive the rents. The said order passed by the trial Court has reached finality.
11. The plaintiff has not challenged the impugned order. The same is in accordance with law to exercise the power under Article 227 of the Constitution of India. Accordingly, the writ petition filed by the plaintiff in W.P. No.52105/2018 against order dated 09.10.2018 on I.A. No.II/2018 is dismissed. However, it is needless to observe that in view of the admitted relationship between the plaintiff and respondent No.2 as son and mother, since defendant No.1 has not disputed the relationship of landlord and tenant, it is always open for defendant No.2 to file application for release of amount and if such an application is filed for release of amount, it is for the trial court to proceed in accordance with law.
In view of dispute between the parties and since suit is of the year 2015 and we are in 2019 it is suffice to direct the trial Court to expedite the very suit itself subject to the co-operation of the parties to the lis.
Sd/- JUDGE MBM