IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B VEERAPPA WRIT PETITION NO.54517/2017 (GM-CPC) BETWEEN:
SRI. GOVINDARAJU S/O MUNIDASAIAH AGED ABOTU 39 YEARS PRESENT R/A NO 2214/D B M ROAD, KUVEMPUNAGAR CHANNAPATTANA TALUK PERMANENT RESIDENT OF VALETHOPU MALLUR HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT - 562160 (BY SRI:RAGHAVENDRA K, ADV) AND:
SMT. ADISANJEEEVALAKSHMI W/O LATE P R ANANTHAPADHMANABHA AGED ABOUT 67 YEARS R/AT NO 2211/A, 3RD CROSS KUVEMPUNAGAR SOUTH CHANNAPATTANA TALUK RAMANAGARA DISTRICT - 562160 ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE HON'BLE PRL. SR. CIVIL JUDGE AND JMFC AT CHANNAPATNA IN EX. NO. 38/2016; QUASH THE ORDER ON I.A. UNDER SECTION 151 READ WITH SECTION 94-E OF CPC DATED 27.11.2017 PASSED BY TEH HON'BLE PRL. SR.CIVIL JUDGE AND JMFC AT CHANNAPATNA IN EX. 38/2016 AT ANNEXURE-C AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R The petitioner who is the judgment debtor is before this Court against the order dated 27.11.2017 made in Ex.No.38/2016 allowing the application filed by the decree holder issuing delivery warrant if P.F. paid with the help of jurisdictional police and also if in case, any lock is put to the petition schedule premises, then the executing authority i.e., Bailiff/P.S. are at liberty to remove the said obstruction with the help of police and hand over the schedule property/premises to the decree holder, forthwith.
2. The respondent/plaintiff filed OS No.194/2014 against the present petitioner/judgment debtor for relief of eviction of the defendant from the schedule shop and recovery of arrears of rent of Rs.15,000/- and damages of Rs.10,000/- per month till handing over the possession and for cost of the suit. It was contended that the plaintiff is the owner of schedule premises and was given on rent to the defendant/the present petitioner for 11 months from 16.10.2009 at the rate of Rs.5,000/- per month. In terms of the agreement, if the plaintiff agrees the defendant can continue as a tenant in the suit schedule property etc., 3. Though the present petitioner/judgment debtor appeared through Counsel, but failed to file the written statement. Therefore, the case was posted for evidence. After considering the evidence of PW1 and the material documents at Exs.P1 to P4, the Trial Court by an judgment and decree dated 29.04.2015, decreed the suit and directed the defendant to vacate the schedule premises within two months and hand over the same to the plaintiff, otherwise defendant is liable to pay damages of Rs.10,000/- per month till handing over the possession. It was also directed to pay arrears of rent of Rs.15,000/-.
4. Against the said judgment and decree, the learned Counsel for the petitioner filed Misc. Petition No.6/2015 and it was dismissed on 31.07.2017 and there was no interim order. Subsequently, another Misc. Petition No.8/2017 was filed and there was no interim order in the said case. In the meanwhile, the decree holder filed Execution Petition No.38/2016 to implement the decree. Thereafter, though execution was filed on 28.06.2016, the execution petition was dragged and successfully the tenant continued in the shop without paying rent from 29.04.2015, even though there is no interim order.
5. As a last resort, after filing several applications, ultimately the decree holder filed application under Section 151 of Code of Civil Procedure seeking issuance of delivery warrant with the help of police stating that the judgment debtor has not paid the rent due. The judgment debtor has not delivered the possession of the schedule premises and also refused to hand over the possession of suit property, caused obstruction and put lock to the schedule premises. The judgment debtor has not obeyed the Court order. Therefore, there is a necessity of issuance of direction to the police to break open the lock. The impugned order depicts that judgment debtor has not filed any objection. The Trial Court considering the entire application has allowed the application. Hence, the present petition is filed.
6. I have heard the learned Counsel for the petitioner.
7. Sri.K.Raghavendra, learned Counsel for the petitioner contended that the Trial Court passed the judgment and decree on 29.04.2015 as ex-parte. Therefore, the judgment debtor filed Misc. Petition No.6/2015 and it was dismissed on 31.01.2017. Subsequently another Misc. Petition No.8/2017 is filed and it is pending for consideration. During the pendency of proceedings, the Execution Court cannot issue delivery warrant. Therefore, he contended that the Executing Court has not given an opportunity to file the objection. Therefore, he sought to set aside the impugned order of the Trial Court by allowing the present writ petition.
8. Having heard the learned Counsel for the petitioner, it is not in dispute that the respondent/decree holder filed OS No.194/2014 for eviction and for arrears of rent and damages. Though the present judgment debtor represented through counsel, has not filed written statement and not contested the proceedings. Therefore, the Trial Court has proceeded to consider the evidence of PW1 and the material documents Exs.P1 to P4 and decreed the suit on 29.04.2015 granting two months time. Admittedly, the said judgment and decree reached finality. The judgment and decree is not stayed by any of the higher Courts.
9. It is also not in dispute that Misc. Petition No.6/2015 was filed by the petitioner in the year 2015 and there was no interim order till it was dismissed for default on 31.01.2017. Subsequently, another Misc. Petition No.8/2017 was filed and the same is pending and there was no interim order passed. It is also not in dispute that from 29.04.2015, till today, petitioner has not paid arrears of rent or damages as per the order passed by the Trial Court, even though there is no interim order. Though learned Counsel for the petitioner has tendered for payment, it is rejected by the Trial Court.
10. The Trial Court considering the application has recorded a finding that in spite of the order passed by the this Court, the judgment debtor has failed to pay the arrears of rent. Further, the judgment debtor has alleged against the act of the Court itself stating that the Court’s bailiff has committed theft of articles, which itself shows the very conduct of the judgment debtor. There is no stay in this case and the miscellaneous petition filed by the judgment debtor also dismissed for non- prosecution. This Court considering all these aspects has issued delivery warrant, but it returned unexecuted. Therefore, the decree holder has come up with the application which appears to be reasonable. Looking into the facts and circumstances of the case, the conduct of the judgment debtor and to avoid dragging of the case and to meet the interest of justice, the application has to be allowed. Accordingly, the application is allowed.
11. In view of the aforesaid facts, the petitioner has not made out any grounds to interfere with the order passed by the Trial Court and the same is in consonance with the judgment and decree and order passed in the Misc. Petition No/6/2015 as long back in the year 2015. Admittedly there is no interim order against the judgment and decree. Therefore, the defendant is bound by the decree passed by the Trial Court, but he has dragged the case for more than four years. Therefore, it is high time for the Court to implement the order passed by the Court in order to maintain majesty of law. Therefore, the petitioner has not made out any ground to interfere with the impugned order under supervisory writ jurisdiction of this Court under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE *bgn/-