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2001 DIGILAW 835 (KAR)

Sachidanandamurthy v. Tripajit Singh

2001-11-20

K.SREEDHAR RAO

body2001
ORDER K. Sreedhar Rao, J.—Both these revisions are inter-related and arise out of different orders passed in the same proceedings between the same parties, therefore, heard together for passing common order. 2. The Petitioner in Civil Revision Petition 2705 of 2001 is the Petitioner No. 2 in Civil Revision Petition No. 1030 of 2001 who is the original landlord and the first Petitioner in Civil Revision Petition No. 1030 of 2001 is the daughter of the second Petitioner who has acquired the interest in the petition premises. The ranking of the parties in the present order is referred in the manner as described in Civil Revision Petition 1030 of 2001. The second Petitioner filed the eviction against the Respondent in HRC 1515 of 1985 under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 for the bonafide personal use and occupation of the premises by his daughter who is the first Petitioner. The H.R.C. case ended in compromise. The Respondent undertook to vacate the premises by taking three years time. Accordingly, the eviction was ordered by the Court pursuant to the terms of the compromise. The execution case was filed in Ex. Petition No. 10618 of 1993 on the file of the 8th Additional Small Causes Judge, Bangalore. In the said proceedings, the first Petitioner made an application to come on record under Order 1, Rule 10(2) Code of Civil Procedure in I.A.4. The Respondent filed I.A. 3 for dismissal of the execution petition and also filed objections to I.A.4. The Court, after hearing the parties, allowed I.A. 3 dismissing the execution case and also dismissed I.A. 4. Being aggrieved, the present revisions are filed. 3. The necessary material facts to understand the crux of the revision are set out here under: The petition premises was conveyed by B.D.A. in favour of the second Petitioner by way of registered lease cum sale agreement. On the date of filing of HRC case the second Petitioner had exclusive interest in the property. During the pendency of the HRC case, the lease cum sale agreement executed in favour of the second Petitioner exclusively was rescinded and B.D.A executed a lease cum sale agreement jointly in favour of Petitioners 1 and 2. However at that time, the first Petitioner did not come on record in the HRC proceedings, although she had acquired joint interest in the property. 4. However at that time, the first Petitioner did not come on record in the HRC proceedings, although she had acquired joint interest in the property. 4. The eviction petition came to be allowed by compromise. The present execution petition came to be filed. During the pendency of the execution case, the second Petitioner relinquished his joint interest in the property and requested the BDA to execute the absolute sale deed in favour of first Petitioner. Accordingly, the BDA executed the absolute sale deed in favour of the first Petitioner. Pursuant to that the first Petitioner made an application in Execution Case in I.A. 4 to come on record in the place of second Petitioner-decree holder. The Respondent filed I.A. III contending that the decree holder having lost interest in the property, the decree for eviction is no longer executable and as such contended that the decree is a nullity. The trial Court upheld the objections of the Respondent allowed I.A. III and dismissed I.A. IV. 5. The Counsel for the Respondent contended that the second Petitioner who was the original landlord and the Petitioner in HRC case lost the right and title in the property. Therefore, he is not entitled to maintain the execution case and seek execution of the order of eviction. So also the second Petitioner who is not the owner of the property at the time when the HRC case was filed is not entitled to take the benefit of the order of eviction and to continue the execution petition by getting herself substituted in the proceedings. 6. It is the contention of the Counsel for the Petitioners that the second Petitioner was the exclusive owner of the property when he leased the premises and when he filed the HRC case. However, during the pendency of the proceedings joint interest was created in the first Petitioner along with the second Petitioner and it was not necessary that Petitioner to have come on record as co-Petitioner since the eviction was sought for the use and occupation of the first Petitioner. Admitting the claim for eviction as genuine and bonafide, the Respondent agreed to suffer the order of eviction by taking three years time. Accordingly, eviction order came to be passed by compromise. At the time when the execution case was filed, the Petitioners 1 and 2 had joint interest in the property. Admitting the claim for eviction as genuine and bonafide, the Respondent agreed to suffer the order of eviction by taking three years time. Accordingly, eviction order came to be passed by compromise. At the time when the execution case was filed, the Petitioners 1 and 2 had joint interest in the property. It was the contention of the Counsel for the Petitioner that by operation of law there has been an assignment of interest in favour of first Petitioner and the HRC case was filed by the second Petitioner on the ground of Section 21(1)(h) of the Act for use and occupation of his daughter who is the first Petitioner. Therefore the assignment of exclusive interest in favour of first Petitioner by BDA does not nullify the eviction order rather it fortifies and enhances the case of the Petitioner to enforce the eviction order. 7. The Counsel for the Petitioner relied on the ruling of this Court in Umesh Bhimarao Marapur Vs. Devappa Chulappa Navi, ILR 2000 Kar 854 wherein it is held thus: 6. At this stage, I find it necessary to refer to the provisions of Order 21, Rule 16 Code of Civil Procedure which read as under: APPLICATION FOR EXECUTION BY TRANSFEREE OF DECREE.- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder: Provided that, where the decree or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution: Provided also that, where a decree for the payment of money against two or more persons had been transferred to one of them, it shall not be executed against the orders. 8. 8. It is contended that during the pendency of the HRC case the first Petitioner acquired joint interest along with the second Petitioner and the HRC petition was in fact filed for the benefit of the first Petitioner. The matter ended in compromise with a direction for eviction against the Respondent and at the time when execution case was filed, the property stood jointly in the names of the first and second Petitioner. It is only during the pendency of the execution proceedings on 15.3.1996, the first Petitioner becomes the exclusive owner. Therefore, by operation of law and assignment of interest, the first Petitioner is entitled to be substituted. 9. The Counsel for the Respondent relied on the ruling of the Supreme Court in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, AIR 1975 SC 1409 . In para 4 of the judgment it is held thus: 4. We feel the submissions devoid of substance. First about the jurisdiction and property vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date of a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Ruling on this point are legion, even as situations for applications of this equitable rule are myriad. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Ruling on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact. 10. The decision of the Supreme Court in Smt. Nai Bahu Vs. Lala Ramnarayan and Others, AIR 1978 SC 22 in paras 14, 15 and 21 it is held thus: para 14. It is true that a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties (see K.K. Chari Vs. R.M. Seshadri, AIR 1973 SC 1311 . The Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. Thus dispensing with further proof, on account of the compromise, the Court is to be satisfied about compliance with the statutory requirement on the totality of facts of a particular case bearing in mind the entire circumstances from the stage of pleadings upto the stage when the compromise is effected. para 21. There is nothing in the M.P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. para 21. There is nothing in the M.P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. We are clearly of opinion that the compromise decree in this case is a lawful decree of eviction founded on permissible statutory ground and there are sufficient materials to show that the trial Court applied its mind and was satisfied that a valid decree under the M.P. Act could be passed. 11. The decisions of this Court in The Asiatic Oxygen and Acetylene Co. Limited Vs. Mrs. Azra Abdulla, 1983 (2) KLC. 318. In para 8 it is held thus: 8. In a petition arising under Section 21(1)(j) this Court by its order in Revision Petition 2495 of 1973 held "in any event the right that accrues to them under the Will is an independent right when can be enforced in accordance with law. Further, if this right of theirs is recognised and the decree of eviction is allowed to be taken advantage of by them, they would not be doing so far the benefit of the estate of the deceased Respondent but for the benefit of themselves". Once the property is gifted the owner would lose entire right in the property and it is the donee that would become the full owner of the property. Thus it is rather difficult to believe that the original owner of the property would have any subsisting interest in the property. Any decree that might be passed under Section 21(1)(c) for the benefit of the donee to whom the property had been gifted. If she got a right by virtue of the gift deed she is entitled to enforce it in accordance with law. Therefore, even viewed from this angle and in view of the clear decision of this Court, I do not think that any cause of action still survive in favour of the donee in this case. 12. The Ruling of the Privy Council in Raghunath Das Vs. Sundar Das Khetri and Anr., AIR 1914 PC 129 is cited wherein it is held that the Court has no jurisdiction to add a party where a final decree has been drawn up in a suit. 13. The Counsel also relied on the ruling of the Madras High Court reported in Annapoorani Ammal Vs. Sundar Das Khetri and Anr., AIR 1914 PC 129 is cited wherein it is held that the Court has no jurisdiction to add a party where a final decree has been drawn up in a suit. 13. The Counsel also relied on the ruling of the Madras High Court reported in Annapoorani Ammal Vs. Jayavelu Mudaliar, 1974 (2) Mad LJ 285. In para 4 it is held thus: 4. Apart from this, there is yet another valid reason for upholding the contention of the appellant that the second Respondent is not entitled to be impleaded as party in the partition suit filed by the appellant. As has been already stated above, the second Respondent was not directly a transferee from the first Respondent duty only a transferee from the vendee of the first Respondent, and on account of there being no nexus between the second Respondent and the first Respondent, the second Respondent cannot validly contend that she has acquired interest in the property during the pendency of the suit and as such, is entitled to be made a party. In Chunaughat Kalliam Kutti Amma Vs. Kallingal Tarvad Karunawan and Others, AIR 1925 Mad 1166 . Wallac, J., has held that "The words assignment and creation indicate that it is the person suing that assigns and creates the interest which enables the assignee to continue the suit". In Champatat v. Sonabai ILR 46 Nag 42 it has been held that "A person who comes forward claiming as assignee must derive his right directly from the party to the suit or proceedings and not through an intermediary. It is therefore clear that on both the contentions urged by Mr. Krishna Rao, learned Counsel for the appellant, the order of the learned Subordinate Judge must be held clearly unsustainable 14. It is the contention of the Counsel for the Respondent that as on the date during the pendency of the execution proceedings, the landlord-decree holder having lost interest is not entitled to take out the execution and the execution of sale deed by B.D.A. in favour of the first Petitioner makes the decree of eviction inexecutable and a nullity and as subsequent development the sale deed executed exclusively in favour of the first Petitioner has to be taken into consideration and as such, the decree becomes inexecutable at the hands of the second Petitioner. 15. 15. On going through the citations relied on by the Counsel for the Respondent I find that the ratio laid down in the said decisions has no application to the facts of the case. In AIR 1975 SC it is held that any subsequent development that take place during pendency of the HRC proceedings have to be taken note of and it is held that even during the stage of revision under Section 115 of Code of Civil Procedure the subsequent development can be considered by the High Court. 16. In the present case, it is during the stage of execution proceedings, the Counsel for the Respondent contends that the subsequent developments have to be noted to hold that the decree holder having lost interest in the property is not entitled to execute the decree. The proposition that the subsequent event to be considered during the pendency of the proceedings even at the revisional stage is a ratio totally inapplicable to the execution proceedings since the dispute between the parties is finally decided and concluded by virtue of a decree. Assuming for a moment that such a contention is acceptable in law, the subsequent developments noted would rather advance and enhance the case of the first Petitioner. The eviction petition was filed by the second Petitioner for the bonafide use and occupation of the first Petitioner. The ground for eviction is upheld in view of the admission to that effect in compromise. The first and second Petitioner had joint interest in the property when the case ended in compromise. During the pendency of execution proceedings, if first Petitioner has become the exclusive owner, the said subsequent development is to be considered as an additional advantage to the first Petitioner in order to successfully take out execution since the basis on which the eviction is granted continued to be the same even during the stage of execution proceedings and even on this day. Merely by the fact that she becomes the exclusive owner of the property has no effect of undoing the eviction decree granted and it cannot be contended that the decree has become inexecutable and nullity. 17. The other decision of the Supreme Court reported in AIR 1978 has no application to the facts of the case. Merely by the fact that she becomes the exclusive owner of the property has no effect of undoing the eviction decree granted and it cannot be contended that the decree has become inexecutable and nullity. 17. The other decision of the Supreme Court reported in AIR 1978 has no application to the facts of the case. In the said decision, it is held that the compromise entered into between the parties and the eviction order granted in a Rent Control proceedings was dehors the requisite grounds and the compromise entered into between the parties is a nullity. In the present case the order of eviction granted by the trial Court clearly suggests that the grounds made out for eviction have been prima facie established and during the stage of evidence, the parties enter into a compromise wherein the Respondent agrees to vacate the premises after a period of three years. The Court has given a categorical finding that the requirement made out under Section 21(1)(h) is bonafide and reasonable, accordingly granted eviction. Therefore it cannot be said that eviction granted in the present case did not satisfy the requirement of Section 21(1)(h). 18. The Counsel for the Respondent referred to the decision of the Patna High Court in Chhedi Ram Vs. Smt. Pano Devi and Ors., AIR 1990 NOC 93 wherein it is held thus: (A) Bihar Buildings (Lease, Rent and Eviction) Control Act 1982, Section 11(1)(c) -suit for eviction - bonafide requirement of premises Plaintiff's joint landlords-common decree for eviction not permissible - each landlord has to prove his or her requirement in respect of portion of premises of which he or she is owner. Houses and Rents - suit for eviction -bonafide requirement of joint landlords-proof. (B) Code of Civil Procedure (5 of 1908) Section 115-Revision-scope-non-consideration of a very vital evidence can be taken into consideration by High Court in exercise of power under Section 115. 19. The decision has no application to the facts of the present case. Since the cause made out for eviction in the main petition was for the benefit of the first Petitioner. Therefore even during the execution proceedings, when the first Petitioner becomes exclusive owner and wants to execute the decree, and it cannot render the decree invalid. The decision of this Court in 1983 (2) KLC is also not applicable for the same reason. Therefore even during the execution proceedings, when the first Petitioner becomes exclusive owner and wants to execute the decree, and it cannot render the decree invalid. The decision of this Court in 1983 (2) KLC is also not applicable for the same reason. If the eviction petition was grounded for a different purpose other than the benefit of the first Petitioner, there could have been an arguable point for the Respondent, but however the cause pleaded in the petition is for the benefit of the first Petitioner. Therefore, the registration of sale deed exclusively in favour of the first Petitioner cannot be an adverse circumstance to defeat the decree of eviction. The decision of the Privy Council has also no application to the facts of the present case. The proceedings in a suit at the stage when final decree is drawn up under Order 1, Rule 10 it was held that the application is not maintainable. 20. The facts and the material on record clearly suggests that the provisions of Order 21, Rule 16 apply to the facts on hand as it is a case of assignment of an interest and therefore, first Petitioner would be entitled to come on record by way of substitution and is entitled to execute the sale. In that view of the matter, the dismissal of I.A.III and I.A. IV is set aside. I.A. IV is allowed and the first Petitioner is permitted to come on record. The Executing Court shall proceed to dispose of the execution case in accordance with law. Accordingly, both the petitions are allowed.