IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.57285 OF 2018 (GM-CPC) BETWEEN:
Sri.Suchith Kumar, Son of T.G.Nagesha, Aged about 30 years, Businessman, Mobile Sales And Service and Xerox shop, 2nd Cross, 100 ft Road, Vinoba Nagara, Shivamogga City - 577425.
... Petitioner (By Sri.Gagandeep C.M, Advocate for Sri.M.L.Gowda, Advocate) AND:
Smt.Anasuya Wife of H.D.Sadananda, Since dead by her LRs 1(a) Sri.K.G.Sadananda S/o K.G.Kallappa Aged about 60 years 1(b) Smt.K.G.Suma D/o K.G.Kallappa, Aged about 32 years 1(c ) Sri.K.G.Shashank S/o K.K.Sadananda, Aged about 28 years All are residing at Annapurneshwari Krupa, 5th Cross, 100 feet Road, Vinoba Nagara, Shivamogga – 577425.
… Respondents This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 17.09.2018 on I.A.No.2 in R.A.No.70/2018 on the file of the Principal Civil Judge (Sr.Dn.) at Shivamogga and etc.
This writ petition coming on for preliminary hearing this day, the Court made the following:
ORDER The present petitioner who is the tenant under the respondents filed the present writ petition against the order dated 17.09.2018 on I.A.No.2 in R.A.No.70/2018 allowing the application in part and staying the execution and operation of the judgment and decree dated 08.02.2018 made in O.S.No.732/2014 on the file of III Additional Civil Judge and JMFC, subject to condition that the appellant shall deposit 50% of the arrears amount towards rental and damages as per order passed by the trial Court.
2. The respondents who were the plaintiffs before the trial Court filed suit in O.S.No.732/2014 for recovery of vacant possession of schedule property against the present petitioner who is the tenant. After contest, the suit came to be decreed on 08.02.2018 in part and directed the present petitioner-defendant to vacate and deliver the schedule property to the plaintiff within three months from the date of the order and also directed to pay arrears of rent of Rs.4,800/- p.m. from 01.11.2011 to 30.09.2014 and further directed to pay damages at the rate of Rs.4,800/- p.m., to the plaintiff from 30.10.2014 till the defendant vacate and hand over the vacant possession of the schedule property.
3. Aggrieved by the said judgment and decree, the present petitioner filed appeal in R.A.No.70/2018 before the Principal Civil Judge (Sr.Dn.) at Shivamogga and there was delay in filing the appeal. An application was came to be filed for condonation of delay. The trial Court considering the application-I.A.No.1 condoned the delay of 20 days in filing the appeal and allowed I.A.No.2 in part staying the operation of the judgment and decree passed by the trial Court in O.S.No.732/2014 subject to condition that the appellant-tenant shall deposit 50% of arrears of amount towards rental and damages as per the order of trial Court. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.Gagandeep C.M., learned counsel for the petitioner contended that the impugned order passed by the lower appellate Court granting stay of operation of the judgment and decree subject to deposit 50% of arrears of amount towards rental and damages is against the principles and natural justice and the same is liable to be quashed. He would further contend that the appellate Court failed to notice that the suit filed by respondent against the petitioner is not maintainable. Therefore, question of paying 50% of the decreed amount as directed by the appellate Court would not arise. He would further contend that the respondents have created mortgage in the name of the petitioner and suppressed the material facts and without considering this aspects the lower appellate Court has directed the petitioner to pay 50% of the award amount is erroneous. In view of the impugned order passed by the lower appellate Court, the petitioner sustained huge loss and unnecessarily he has to pay the amount to the respondents and the respondents have not returned the amount of Rs.3,50,000/-. Therefore, he sought to allow the writ petition.
6. Having heard the learned counsel for the petitioner. It is not in dispute that the respondents have filed suit in O.S.No.732/2014 for ejectment and possession mainly on the ground they are owners and present petitioner is the tenant. The trial Court after contest recorded a finding that that the plaintiff proved that the defendant has failed to pay arrears of rent from the month of November 2011 till the end of September 2014 to the tune of Rs.1,68,000/- and also proved that the plaintiff has legally terminated the tenancy of the defendant and also proved plaintiff is entitled for possession of suit schedule property and for arrears of rent as prayed for. The defendant failed to prove that the plaintiff and her husband have mortgaged the suit property by receiving a sum of Rs.2,90,000/- for a period of 5 years and thereby, executed the documents on 28.08.2011 as contended in Para 6 of the written statement. Accordingly, the trial Court by the judgment and decree dated 08.02.2018 decreed the suit in part and directed the defendant to vacate and deliver the schedule property to the plaintiff within three months and also directed the present petitioner-defendant to pay arrears of rent of Rs.4,800/- p.m. from 01.11.2011 to 30.09.2014 and further directed the present petitioner-
defendant to pay arrears at the rate of Rs.4,800/- p.m to the plaintiff from 30.10.2014 till the defendant vacate and hand over the vacant possession of the schedule property.
7. It is also not in dispute that being aggrieved by the said judgment and decree, the present petitioner filed appeal in R.A.No.70/2018 before the lower appellate Court. The lower appellate Court has condoned the delay in filing the appeal by allowing I.A.No.1. While considering the application-I.A.No.2 and objections filed by the respondents, the respondents stated that the appellant without paying single pie right from 01.11.2011, the appellant is enjoying the suit schedule property free of costs for more than seven years and unless and until the accrued arrears of rentals and damages are paid, the judgment and decree cannot be stayed. Based on the said objections, the lower appellate Court was of the considered view that according to the respondents from past seven years, the appellant is enjoying the property without payment of rentals. On the other hand, the appellant contends that if the judgment is not stayed, he will be evicted from the suit property and so considering apprehension of the appellant and to put forth his case before the Court, it is necessary to allow the application. If at all, the operation of the judgment and decree is not stayed then the very purpose of filing this appeal will be frustrated and valuable right to accrued to the appellant to put forth his case will be defeated. However, considering the nature of the suit and also the judgment and decree passed by the trial Court, it is found necessary to allow the application subject to payment of 50% of the arrears amount as ordered by the trial Court. Accordingly, the lower appellate Court has exercised discretion while considering Order 41 Rule 5 read with Section 151 of Code of Civil Procedure and allowed the application in part and granted stay as prayed for subject to condition that the appellant shall deposit 50% of arrears amount towards rental and damages as ordered by the trial Court.
8. The learned counsel for the petitioner contends that it is not possible for the petitioner to deposit 50% of arrears amount towards rental and damages as it is huge amount. The trial Court after contest, decreed the suit and granted three months time to vacate and deliver the schedule property and directed to pay arrears of rent and damages. The lower appellate Court exercising its discretion has stayed the proceedings subject to deposit of 50% of arrears amount as stated supra, the same is in accordance with law. The petitioner has not made out any good ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India. Accordingly, the writ petition is dismissed.
Sd/- JUDGE UN