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2000 DIGILAW 806 (KAR)

M. Ashok Kumar Shetty v. Prabhath Kamal

2000-12-05

R.GURURAJAN

body2000
JUDGMENT R. Gururajan, J.—This appeal is filed being aggrieved by the order passed on IA.I dated 10.7.2000 in OS No. 1570 of 2000. The facts relating to this case are as under; 2. Appellant claims to be a tenant in his individual capacity of the premises bearing No. 394, CEDAR WINGS, II Cross, III Block, Koramangala, Bangalore. Respondent and his father late Omprakash Gupta, are the joint owners of the said premises. The Appellant and the Respondent entered into an agreement to sell dated 28.1.1988. Appellant paid a sum of Rs. 2,00,000/- in terms of the agreement. The balance sale consideration was to be paid subject to the fulfilment of other conditions of the agreement. It is further averred that the schedule property had already been let out in favour of a company Shetty Leasing India Limited, in terms of a lease agreement dated 1.6.1984. Appellant is the Managing Director of the said company. The Respondent herein filed a petition under the Karnataka Rent Control Act seeking for eviction of the schedule property on various grounds. The Respondent (Petitioner in HRC Case) made an application under Section 29 of the Act. The said application was allowed. The said order was not complied with by the Company. Thereafter another application was filed under Section 29(4) of the Act by the Respondent. The said application was allowed by the HRC Court by an order dated 27.3.1998. Against which the Company filed House Rent Revision Petition No. 984 of 1998. The matter was argued and thereafter the House Rent Revision Petition No. 984 of 1998 was disposed of in view of an undertaking given by the Company to vacate and hand over the premises within two years. The company was represented by the Appellant before this Court and before the HRC Court. The Company represented by the Appellant filed an affidavit in terms of the order of the High Court in House Rent Revision Petition No. 984 of 1998. The said affidavit was not acceptable to the Respondent. It opposed it. Later an affidavit was filed by the company through the Appellant to vacate and hand over the possession. 3. Pursuant to the agreement of sale dated 28.1.1998 proceedings were initiated under the Income Tax Act. The said affidavit was not acceptable to the Respondent. It opposed it. Later an affidavit was filed by the company through the Appellant to vacate and hand over the possession. 3. Pursuant to the agreement of sale dated 28.1.1998 proceedings were initiated under the Income Tax Act. During the pendency of the proceedings before the authorities under the Income Tax Act, Respondent issued a notice to pay the balance sale consideration stating therein that in event of non-settlement of the same the agreement ceases to be in force. 4. The Appellant after all these proceedings filed a suit in OS No. 15708 of 2000 and sought for a bare injunction restraining the present Respondent or any person claiming through them from dispossessing the Plaintiff-Appellant from the suit scheduled property except in accordance with law. Along with the suit an application came to be filed seeking for a temporary injunction. The matter was heard and after hearing learned trial Judge by a detailed order rejected the IA filed by the Plaintiff. It is this order that is questioned by the Appellant-Plaintiff in this appeal. 5. Matter is posted for admission. Respondents have entered caveat. Learned Counsel on both sides addressed arguments on merits of the matter and with the consent of the parties this appeal is disposed of finally by me. 6. Learned Counsel for the Appellant took me through the factual details of the case and contended that in view of the sale agreement between the Appellant in his individual capacity and the Respondent, Appellant cannot be dispossessed except in accordance with law. It is his contention that the proceedings initiated earlier, were against the company and any affidavit or undertaking submitted by the Appellant is not in his individual capacity and it was as a Managing Director of the Company and they do not bind him. In support of his contention he relies on judgments in Krishna Ram Mahale (Dead), by his LRs. Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 : ILR 1999 Kar 301. 7. Per contra, learned Counsel for the Respondent contends that though the lease agreement is in favour of the company, the same was taken for residential use of its Managing Director i.e., the Appellant herein. Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 : ILR 1999 Kar 301. 7. Per contra, learned Counsel for the Respondent contends that though the lease agreement is in favour of the company, the same was taken for residential use of its Managing Director i.e., the Appellant herein. He refers to various other documents and contends that after suffering an order of eviction and after contesting before this Court, he has chosen to file a second suit purporting to be in his individual capacity seeking for an injunction. In support of his contention he relies on the judgments of the Supreme Court in T. Arivandandam Vs. T.V. Satyapal and Another, AIR 1977 SC 2421 . 8. I have heard the learned Counsel at great length. Admitted facts reveal that there exists a lease agreement between Shetty Leasing India Limited, and the Respondent-landlord. The said lease deed is dated 16.1.1984. The said lease deed provides for a lease of the premises in favour of the Company and the said lease is obtained for residential purpose. In terms of the lease deed the Appellant being the Managing Director of the Company has obtained possession as a lessee in terms of the lease deed. The agreement of sale is silent with regard to possession by the Appellant. In the proceedings before the Rent Control Court as well as before this Court the Company was represented by the Appellant herein. This Court after noticing the contention of either parties, has passed the following order reading as under: 5. In view of the above, this petition is dismissed as not pressed, granting two years time to the Petitioner-tenant to vacate and deliver vacant possession of the petition schedule premises to the landlord subject to the Petitioner-tenant filing an affidavit within one month from this date, undertaking to vacate the premises before the expiry of time granted and further undertaking to pay the rents regularly and not to induct anyone else into the premises. If the Petitioner-tenant fails to file an undertaking within one month from this date or if the Petitioner tenant commits breach of the undertaking, the landlord is at liberty to execute the order of eviction even though time granted has not expired. Pursuant to the said order the Appellant has given an undertaking by way of an affidavit on 30.7.1998. If the Petitioner-tenant fails to file an undertaking within one month from this date or if the Petitioner tenant commits breach of the undertaking, the landlord is at liberty to execute the order of eviction even though time granted has not expired. Pursuant to the said order the Appellant has given an undertaking by way of an affidavit on 30.7.1998. In para 3, this is what is stated in the affidavit; 3. I undertake that the tenant/Petitioner company will vacate the tenanted premises within two years from 3rd July, 1998 Again in para 5 it is stated; 5. This affidavit is filed in the capacity as Managing Director of the Plaintiff-company without prejudice to my rights under the agreement of sale dated 28th January, 1988 between me in my personal capacity and the Respondent/landlord, whereunder I will be seeking appropriate legal remedies for specific performance of the said agreement and possession in my personal capacity relating to the tenanted premises which I am personally occupying. The same was objected to by the landlord and an additional affidavit is filed by the Appellant in which it is stated as under; 3. I undertake that the tenant/Petitioner company will vacate and hand over vacant possession of the petition premises within two years from 3.7.1998 and will hand over vacant possession of the petition premises to the Respondents, the Petitioner will not induct any other persons nor part with possession to anybody else and rents will be paid regularly. 4. I submit that in view of the earlier affidavit and this affidavit this Hon'ble Court may be pleased to dismiss IA No. 2 filed by the Respondents in the interest of justice. 9. The trial Court taking note of all these aspects came to a conclusion that no prima facie case is made out warranting an injunction. The Trial Court also considers the question of balance of convenience and chose not to grant relief since balance of convenience lies more in favour of the Respondent. The finding recorded by the trial Court in view of the facts narrated above cannot be said to be capricious or arbitrary requiring my interference. 10. The Counsel as mentioned earlier for the Appellant, argued that the earlier proceedings were not against him and it is referable to the company and company only. The finding recorded by the trial Court in view of the facts narrated above cannot be said to be capricious or arbitrary requiring my interference. 10. The Counsel as mentioned earlier for the Appellant, argued that the earlier proceedings were not against him and it is referable to the company and company only. Any affidavit filed by him cannot be taken note of in these proceedings since these proceedings are to implement the sale agreement between him in his individual capacity and the Respondent. Admittedly the lease deed is dated 16.1.1984 and the agreement is after four years from the date of the lease agreement. The said agreement provides for a lease of residential premises and it was in terms of the lease agreement the Appellant was put in possession. Even when the matter was disposed of by this Court, the Appellant did not take any exception for any undertaking being given for vacating and handing over possession to Respondent. It is only after the disposal of the House Rent Revision Petition and that too after obtaining two years time he tries to wriggle out by his hyper technical pleas just to cling over to the property. Appellant at no point of time resisted to hand over possession on the ground of a sale agreement in earlier proceedings. A litigant who suffers an order and who made the Court to believe that he would abide by his undertaking cannot be permitted to turn around after an order is passed. That very conduct of the Appellant disentitles him for any relief before a Court. In the case on hand, the trial Court considered the conduct of the parties and refused an injunction in favour of the Appellant. 11. Learned Counsel for the Appellant argues that he cannot be dispossessed except in accordance with law. As I mentioned earlier, he came into possession in view of the lease proceedings and he is being dispossessed in view of his own undertaking before this Court and the affidavits. Therefore it cannot be said that he is being dispossessed not in accordance with law. 12. The two judgments relied on by the learned Counsel for the Appellant in support of his argument are clearly distinguishable on facts. Those are not the cases wherein an undertaking was given and the same was flouted at a latter date. Therefore it cannot be said that he is being dispossessed not in accordance with law. 12. The two judgments relied on by the learned Counsel for the Appellant in support of his argument are clearly distinguishable on facts. Those are not the cases wherein an undertaking was given and the same was flouted at a latter date. In this connection it is pertinent to refer to a judgment of the Supreme Court in the case of T. Arivandandam Vs. T.V. Satyapal and Another, AIR 1977 SC 2421 . That was a case where the father of the Petitioner contested an eviction proceeding, lost it, appealed against it, lost again, moved a revision only to be rebuffed by summary rejection by the High Court. But the Judge, in his element jurisdiction, gratuitously granted over six months' time to vacate the premises. After having enjoyed the benefit of this indulgence the maladroit party moved for further time to vacate. All these proceedings were being carried on by the second Respondent who was the father of the Petitioner. Thereafter his son filed a suit before the Fourth Additional First Munsiff, Bangalore for a declaration that the order of eviction, which has been confirmed right up to the High Court and resisted by the 2nd Respondent throughout was one obtained by 'fraud and collusion'. Learned Judge took pity on the tenant and persuaded the landlord to give more time for vacating the premises on the basis that the suit newly and sinisterly filed would be withdrawn by the Petitioner. The trick they adopted was to institute another suit before another Munsiff making a carbon copy as it were of the old paint and playing upon the likely gullibility of the new Munsiff to grant an exparte injunction. The first Respondent entered appearance and exposed the hoax played upon the Court by the Petitioner and the second Respondent. Thereupon the Munsiff vacated the order of injunction he had already granted. An appeal was filed without success and thereafter a petition was moved with the High Court. The High Court rejected the claim, when the matter was taken to the Supreme Court, the Supreme Court noticed all these facts and ruled as under; The sharp practice or legal legerdamain of the Petitioner stultifies the Court process and makes decrees with judicial seals brutum fulmen. The High Court rejected the claim, when the matter was taken to the Supreme Court, the Supreme Court noticed all these facts and ruled as under; The sharp practice or legal legerdamain of the Petitioner stultifies the Court process and makes decrees with judicial seals brutum fulmen. The long arm of the law must throttle such litigative caricatures if the confidence and credibility of the community in the judicature is to survive. 13. In the case of Kanta Gupta (Smt) Vs. VIII Additional District Judge, Meerut and Others, (1991) Suppl. (1) SCC 219 the Supreme Court again considered the eviction proceedings between husband and wife. The facts in that case are that eviction proceedings were initiated against the wife and time was granted for vacating the premises. Thereafter, husband initiated subsequent proceedings and a contention was raised by the husband that physical possession has been with him and that his independent rights and actual possession should not be impaired and prejudiced in these proceedings. Ultimately the matter reached the Apex Court and the Apex Court notices in para 10 as under: 10. The undertaking given to the Court is unconditional, categoric and unqualified. It requires to be held that, as on the date of the undertaking the contemner was in actual physical possession and was capable of complying with the terms of the undertaking. Bhagwandas, having regard to the facts and circumstances appearing against him, cannot also be heard to the contrary. The contemner had undertaken not to induct any third person into possession. Both of them are bound to act in aid and compliance of the undertaking. They have purposefully and with a clear intention to flout the undertaking, put up an untenable defence. We find there is a wilful breach of the undertaking. The Court has not only the power but in appropriate cases the duty to exact obedience to the terms of the undertaking given to it. 14. It was ruled by the Apex Court that undertaking given by the wife is equally binding on the husband. 15. Same principles apply to the facts of the present case. The Court has not only the power but in appropriate cases the duty to exact obedience to the terms of the undertaking given to it. 14. It was ruled by the Apex Court that undertaking given by the wife is equally binding on the husband. 15. Same principles apply to the facts of the present case. The undertaking given by the Appellant in the rent control proceedings binds him even individually on the peculiar facts of the case and by his conduct and he cannot get out of the same by relying on a sale agreement to continue in possession even after an undertaking before this Court. Litigants are not to be encouraged to practice such methods and the long arm of the Law must throttle such tenants as held by the Supreme Court in T. Arivandandam Vs. T.V. Satyapal and Another, AIR 1977 SC 2421 . 16. In these circumstances, I do not find any ground to interfere with the reasoned order of the trial Court. The finding recorded by the trial Court in view of the facts narrated above cannot be said to be capricious or arbitrary requiring my interference. Order of the trial Court is confirmed. Appeal is dismissed and the Appellant is directed to pay a sum of Rs. 2,500/- being the cost of these proceedings to the Respondent within one month from today.