IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 41053 OF 2019 (GM-CPC) BETWEEN:
SMT SUSHMA B, W/O MANJUNATH, AGED ABOUT 35 YEARS, R/AT NO.587, 4TH MAIN, MUTHYALANAGARA, M.E.S. ROAD, GOKULA POST, BENGALURU-54.
... PETITIONER (BY SRI.PARASHURAM R HATTARAKIHAL, ADVOCATE) AND:
R VENKATESH S/O LATE M.RAMAIAH, AGED ABOUT 56 YEARS, R/AT NO.526, 2ND CROSS, BAHUBALI NAGARA, JALAHALLI VILLAGE, BENGALURUF-13.
... RESPONDENT (BY SRI. N G SREEDHAR & N RAVISHANKAR, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 25.07.2019 PASSED ON IA NO.III FILED BY THE PLAINTIFF/ PETITIONER U/S 151 OF CPC IN O.S.NO.1585/2015 BY THE XLIV ADDL. CITY CIVIL & SESSIONS JUDGE(CCH-45), BENGALURU, UNDER ANNX-A TO THE PETITION AND CONSEQUENTLY ALLOW THE APPLICATION IA NO.3 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a suit for possession in O.S.No.1585/2015 founded on a purported registered sale deed dated 23.9.2007 executed by the respondent herein is invoking the writ jurisdiction of this court for assailing the order dated 25.7.2019, a copy whereof is at Annexure-A whereby the learned IV Addl. City Civil Judge, Bengaluru, having rejected his application in I.A.No.3 filed under section 151 of CPC, 1908 for a direction to the respondent-defendant to deposit a sum of Rs.18,000/- per month by way of approximate rentals for occupying the subject property, till the disposal of the suit.
2. After service of notice, the respondent-defendant having entered appearance through his counsel, resists the Writ Petition mainly on the ground that no foundation is laid in the plaint for maintaining the subject application.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is of the considered opinion that the impugned order being unsustainable, relief needs to be granted to the petitioner for the following reasons:
(a) admittedly the present suit in O.S.No.1585/2015 for possession is founded on a registered sale deed dated 23.09.2007 to which the respondent-defendant is a party as the seller; the respondent’s suit in O.S.No.1422/2015 for the cancellation of the very same sale deed is pending and that petitioner-donee and his mother-donor of the subject property are defendants therein, is beside the point; it is more so because a registered document comprising a compulsorily registrable transaction is presumed to be valid vide Apex Court decision in PREM SINGH vs. BIRBAL, (2006) 5 SCC 353 para 27;
(b) admittedly the respondent-defendant has been in the occupation of the subject property sans any payment by way of rent, fee or damages; petitioner’s suit and respondent’s suit for culminating into decrees this side or that side would take their own time and therefore the competing equities between the parties need to be adjusted by directing the respondent herein to regularly deposit a sum reasonably approximating to the potentional rental value of the property in the court subject to outcome of both the suits; if this amount is invested in an interest earning scheme, the amount also would bulge to the advantage of party emerging victorious in these two legal battles, an otherwise view would militate against sense of justice;
(c) the contention advanced on behalf of the respondent that petitioner’s pleadings in the suit lack material particulars required for maintaining the subject application does not deter the court from ascertaining the fact matrix on the basis of the stand of both the parties in both the suits; the facts mentioned above emerge from the submission made at the Bar; countenancing the contention would amount to court placing premium on unconscionable stand of the contender; in construing the pleadings, it has long been said, the Courts cannot keep the common sense in cold storage vide IN S.B. NORONAH vs. PREM KUMARI KHANNA; 1979(2) RCJ 375;
(d) the Court below needs to ascertain the rental value of the subject property after giving an opportunity to both the sides; court may call for a report from expert bodies like jurisdictional PWD officials or the like in undertaking this exercise.
In the above circumstances, this writ petition succeeds in part; the impugned order is set at naught; the Court below shall ascertain & determine the monthly rental value of the subject property which the respondent-defendant shall regularly deposit with the Court w.e.f. 1.8.2019; the Court below shall invest the said money in a cumulative deposit or the like in any Nationalised Bank; the accumulated amount with interest accruing thereon shall be released to the party emerging victorious in the aforesaid suits.
All contentions of the parties are kept open and the trial Court shall not be influenced by any of the observations made hereinabove, in any way.
Sd/- JUDGE cbc