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2003 DIGILAW 270 (KAR)

GOVINDARAJ v. B. S. RAJA SHEKHAR

2003-03-17

M.P.CHINNAPPA

body2003
M. P. CHINNAPPA, J. ( 1 ) HEARD the learned counsel appearing for the respective parties. ( 2 ) THE brief facts which led to this appeal are as follows : the appellant K. M. Govinda Raju filed a suit against the respondent No. 1 in O. S. No. 6814/95 on the file of the City Civil Court, Bangalore for permanent injunction restraining the respondents from forcibly evicting him from the schedule property on the allegation that he is the tenant under the R-1 in the suit schedule property running a motor-car repair Garage in the name and style of M/s Ganesh Auto Garage. In the suit after contest temporary injunction was granted holding that the appellant plaintiff is in lawful possession as a tenant and his lawful possession is liable to be protected, the said injunction order was confirmed by the High Court in MFA 2994/95 dismissing the appeal, however modifying the order to the effect that he shall be in possession till he is dispossessed by due process of law. ( 3 ) DURING the pendency of the suit, the respondent filed eviction petition against one Mari Muthu in HRC. Case No. 1723/95 and obtained a consent eviction order against him in respect of the same property which was the subject matter of the suit schedule property in O. S. 6814/95 without implead-ing this appellant as a party in the proceedings. As the injunction order was in force the Civil Judge court had issued direction to the Commissioner of Police to protect the plaintiff's possession. The landlord/1st respondent subsequently filed Ex. Case No. 1475/96 for execution of the eviction order passed in HRC. Case No. 1723/95 on the file of the Small Causes Judge, Bangalore, against the said Mari Muthu. However, it is an undisputed fact that the appellant was dispossessed from the property on 10-6-1996 with the help of the police while executing the said decree passed by the HRC Court only against Mari Muthu. Therefore, this appellant filed the application before the Executing Court under Or. 21 R. 94 and 99 r/w S. 151 CPC for re-delivery of possession. ( 4 ) THE respondent filed objections contending inter alia that the application as filed was not maintainable; however, he ought to have filed a separate miscellaneous petition and it is an independent petition as contemplated under Civil Rules of Practice. 21 R. 94 and 99 r/w S. 151 CPC for re-delivery of possession. ( 4 ) THE respondent filed objections contending inter alia that the application as filed was not maintainable; however, he ought to have filed a separate miscellaneous petition and it is an independent petition as contemplated under Civil Rules of Practice. Hence, the I. A. was liable to be dismissed. Even on facts it is contended that the application is not maintainable as he has not brought to the notice of the Court the true facts. In O. S. 6814/95 the applicant claims his tenancy right in respect of premises No. 14/1 and obtained injunction order. The respondent / decree holder specifically contended that the appellant is not at all the owner of the premises No. 14/1 Park Road. Therefore, the appellant is not the tenant under him but he claims that he is the owner of premises bearing No. 14 Park Rd. and the appellant is not the tenant nor has he claimed any tenancy right. On the other hand, the respondent is residing in a portion of the premises which was let out to one Mari Muthu. He might have taken possession of some portion from the said Mari Muthu as sub-tenant and therefore, he has no legal right at all to maintain the suit against the owner. He admits that the appellant has obtained an injunction order which was modified by the High Court to the effect that the temporary injunction order would not prevent the appellant from taking possession in accordance with law. He further emphasised that the appellant is only a sub-tenant. The applt. was evicted from the premises in accordance with law and as per the Judgment and Decree passed by the Court below. On that ground, he submitted that the application is liable to be dismissed. ( 5 ) IN view of this contention, the Court held an enquiry in which the appellant has examined himself as P. W. 1 and he produced Ex. R-1 to R-12. The respondent examined himself as R. W. 1 and he has also produced the C. C. of the written statement filed by him in O. S. 6814/95. After hearing both the parties, the learned Small Causes Judge at Bangalore by his order dt. 30-8-1997 in Ex. No. 1475/1996 rejected the application of the appellant. The said order is questioned in this appeal. After hearing both the parties, the learned Small Causes Judge at Bangalore by his order dt. 30-8-1997 in Ex. No. 1475/1996 rejected the application of the appellant. The said order is questioned in this appeal. ( 6 ) THE learned counsel for the respondent at the very outset raised an objection that this appeal is not maintainable. On the other hand, the appellant ought to have filed Civil Revision Petition as the order is passed by the Small Causes Court on the HRC side. He also further submitted that in an order passed on the HRC side, only revision petition lies and not an appeal. ( 7 ) AS against it, the learned counsel for the respondent however argued that notwithstanding the fact that the HRC Court has passed the order on the execution side, the appln. was filed by the appellant under Or. 21 Rr. 95 and 99 CPC and it is settled law that in any order passed on the application under Or. 21 Rr. 95 and 99 CPC is a suit and the order passed therein shall be construed as a decree. Therefore, only appeal lies. He also submitted that he had filed CRP before this Court but later having realised this defect, the same was converted as appeal and therefore, the contention of the respondent is unsustainable. ( 8 ) THE learned counsel for the respondent also submitted that this application is filed under Or. 21 Rr. 95 and 99 CPC r/w S. 151 CPC. Under these provisions possession cannot be restored. He also further submitted that when there is a specific provision, S. 151 CPC cannot be invoked. t is no doubt true that Order 21 Rr. 95 and 99 would not empower the Court to restore possession but under Or. 21 R. 98 CPC possession can be restored. It is also settled law that wrong quoting of provisions of law is not a ground for the Court to reject the relief if otherwise it can be granted where the party is entitled to. Therefore, this application will have to be construed as the one under Or. 21 R. 98 CPC instead of one under Rr. 95 and 99 CPC. It is also settled law that S. 151 CPC cannot be invoked if a specific provision is available. Therefore, this application will have to be construed as the one under Or. 21 R. 98 CPC instead of one under Rr. 95 and 99 CPC. It is also settled law that S. 151 CPC cannot be invoked if a specific provision is available. But that itself does not prohibit the Court from exercising the inherent power also, along with the relevant provisions of law to grant the relief where the party deserves it to avoid abuse of the process of law. ( 9 ) IN view of the Full Court Judgment of this Court it is a settled law that if an application is filed under Or. 21 Rr. 95 to 101 that application shall be treated as a suit of the applicant claiming independent right over the property as an objector and the order passed therein is a decree. Therefore, only appeal lies. ( 10 ) IT is not in dispute that under the Rent Control Act there is no provision for seeking restoration of the property if one is unauthorisedly evicted. Therefore, he has to work out his remedy under the Civil Procedure Code which is made applicable under the Karnataka Rent Control Act. For the foregoing reasons, I have no hesitation to hold that the primary objection raised by the learned counsel for the respondent is liable to be rejected. ( 11 ) THE learned counsel further submitted that a separate Misc. Petition ought to have been filed and not an I. A. in execution side. This argument also is unsustainable for the reasons stated above. ( 12 ) THE learned counsel also submitted that the appellant is only a sub-tenant and he was not a necessary party to the HRC proceedings, as he was the sub-tenant under one Mari Muthu against whom eviction petition was filed by the respondent. Hence he submitted that the Court has rightly rejected the application which does not call for interference. ( 13 ) REPELLING this argument, the learned counsel for the appellant submitted that there is no evidence to show that the appellant was only a sub-tenant. The appellant had filed a suit in O. S. 6814/95 and obtained a temporary injunction against the respondent from forcibly evicting him from the suit schedule property. The temporary injunction which was granted by the Court below was confirmed by this Court in MFA. No. 2994/95 with modification as noted above. The appellant had filed a suit in O. S. 6814/95 and obtained a temporary injunction against the respondent from forcibly evicting him from the suit schedule property. The temporary injunction which was granted by the Court below was confirmed by this Court in MFA. No. 2994/95 with modification as noted above. In the written statement, the respondent has alleged that the appellant is a sub-tenant under one Mari Muthu who is the tenant of the respondent. The said suit is still pending disposal before the Court. The dispute between the parties is in regard to the fact as to whether the appellant is a tenant or a sub-tenant under the respondent but the fact remains that the appellant was in possession of the property till he was thrown out. Under the circumstances, the learned counsel for the applt. submitted that the Court has committed an error in presuming that the appellant was only a sub-tenant. With this background it is now necessary to find out as to whether the respt. was justified in evicting the appellant from the schedule property. ( 14 ) AS indicated above, a substantial question as to whether the appellant was a tenant or sub-tenant was pending before Court and it is not finally decided. In addition to that, from the order of the Court below that there is a prima facie case made out in favour of the appellant, held, that the appellant is a tenant in view of the fact that the respt. himself had written a letter to the authority to issue licence to run the car garage. In addition to that, he had also given a letter that he has no objection to issue the licence in favour of the appellant. That finding has not been upset by this Court in the aforesaid MFA. Therefore, I hold that the Court below has committed an error in proceeding to consider the application on the assumption that the appellant is only a sub-tenant. ( 15 ) THE appellant has specifically pleaded that Mari Muthu is a fictitious person yet he was not arrayed as respondent in the HRC proceedings though the appellant had obtained a temporary injunction against the respondent, but obtained a decree against the appellant without impleading him as one of the parties in the HRC proceedings. ( 15 ) THE appellant has specifically pleaded that Mari Muthu is a fictitious person yet he was not arrayed as respondent in the HRC proceedings though the appellant had obtained a temporary injunction against the respondent, but obtained a decree against the appellant without impleading him as one of the parties in the HRC proceedings. In spite of this specific contention in the application that Mari Muthu is a fictitious and unconcerned person, the respondent has not even chosen to examine Mari Muthu before the Court to show that he was the tenant of the respondent. This will have to be considered in the light of the fact that the said Mari Muthu appeared before Court and filed the compromise petition agreeing to deliver possession of the property. Therefore, it has to be held that it is a collusive petition filed by the respondent against the said person but not known to the appellant. If Mari Muthu was examined before Court, the appellant could have cross-examined him to elicit certain facts to find out as to whether he was the real tenant and the appellant was only a sub-tenant. For the reasons best known to the respondent, the said Mari Muthu was not examined. Under the circumstances, the Court should have drawn an adverse inference against the case of the respt. to the effect that had Mari Muthu been examined, his evidence would have gone against the respt. ( 16 ) THE learned counsel for the respondent mainly contended that Mari Muthu was a tenant of the respondent and the appellant was only a sub-tenant. Therefore, he was not made a party in the HRC petition as unnecessary and in support of this argument, he placed reliance on a Judgment of the Supreme Court reported in Burmah Shell Oil Distributing Now Known as Bharat Petroleum Corporation Ltd. v. Khaja Midhat Noor AIR 1988 SC 1470 wherein Their Lordships have held that even though sub-lessee continuing in possession after expiry of lease period rent paid by sub-lessee and accepted by lessor, termination of lease by one month's notice on lessee alone is valid and notice on sub-lessee is not necessary. In Rupchand Gupta v. Raghuvanshi (Private) Ltd. AIR 1964 SC 1889 the Supreme court have held that in a suit filed by the landlord against the lessee for ejectment after serving valid notice to quit, sub-lessee cannot challenge the decree as a collusive one. In G. Giriyappa v. Anantharai L. Parekh (1994) 3 JT (SC) 214 : ( AIR 1994 SC 2307 ) the Supreme Court held that a sub-tenant inducted by the tenant cannot claim independent right as a deemed tenant. In Biswantah Poddar v. Archana Poddar AIR 2001 SC 2849 it is held that sub-tenancy created without previous consent of landlord and without notice to landlord, the landlord is not obliged to implead sub-tenant as a party to eviction suit. Bilateral agreement between tenant and sub-tenant creating sub-tenancy which contained clause that landlord had given consent to sub-let does not establish previous written consent of landlord. Implied contract permitting creation of tenancy as also waiver of notice cannot be inferred. In Hiralal Kapur v. Prabhu Chaudhury AIR 1988 SC 852 the Supreme Court has held that where landlord in his letter refused to recognise the Trust as a tenant, the Trust cannot be considered as tenant of the premises. This Court in S. D. Patel v. H. R. Thippaiah (1979) 1 Kant LJ 423 has held that payment of rent by a sub-lessee and receipt of rent by the landlord would not establish the relationship of landlord and tenant between them. An unauthorised sub-lessee is not included as a tenant within Section 3 (r) of the Act. ( 17 ) ALL these decisions referred to by the learned counsel for the respondent are pertaining to the fact that there is no dispute with regard to sub-tenancy, but in this case as indicated above, the appellant has been claiming that he is the tenant and not a sub-tenant. The said question has to be decided by the Court in a pending suit. This fact has not been established by the respondent. On the other hand, the appellant has established prima facie by producing the order of a competent Court which was confirmed by this Court that he is a tenant. Therefore, these decisions stated above are not applicable to the facts of this case. This fact has not been established by the respondent. On the other hand, the appellant has established prima facie by producing the order of a competent Court which was confirmed by this Court that he is a tenant. Therefore, these decisions stated above are not applicable to the facts of this case. ( 18 ) ON the other hand, the learned counsel for the appellant placed reliance on a judgment of the Supreme Court reported in Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. AIR 1996 SC 2102 wherein it is held that dispossession of tenant without due process of law in a case for specific performance of the agreement, that the tenant was in possession of the premises-vendee obtaining decree for possession - No independent suit for eviction of tenant proceeded nor tenant impleaded as party to suit. Tenant filed suit under Or. 21 Rr. 98, 99 regarding his right to remain in possession meanwhile dispossession of tenant by transferee-owner without due process of the law was held illegal. ( 19 ) IN this case the respondent was aware that the Court has passed temporary injunction order in favour of the appellant and the same is still subsisting. The suit also is pending. This Court has modified that order and taking advantage of the modification he has filed the application against a fictitious person without impleading the person as party to the proceedings. On the other hand, no opportunity was given to the appellant to have his say before the Court. Therefore, execution of that order against the appellant is illegal. Accordingly, the judgment of the Supreme Court relied by the appellant supra is squarely applicable to the facts of this case. ( 20 ) IN similar circumstances, this Court in Smt. Zehra Khanum v. J. Jayakumar ILR (1997) Karnataka 19 : (1997 AIHC 563) held that the husband of the petitioner was a tenant running a firewood depot and on his death, his son along with the petitioner continued it. Respondent/landlord without making them party to eviction proceedings brought in a third party, got ex parte order and filed execution petition. This Court has held that the petitioner who ran firewood business with her husband had locus standi to contest the proceedings and the Court had powers to restore the premises to the petitioner who was illegally dispossessed. Respondent/landlord without making them party to eviction proceedings brought in a third party, got ex parte order and filed execution petition. This Court has held that the petitioner who ran firewood business with her husband had locus standi to contest the proceedings and the Court had powers to restore the premises to the petitioner who was illegally dispossessed. Even on facts also the judgment is directly applicable to the case on hand. ( 21 ) THE learned counsel for the respondent however vehemently argued that in his evidence the appellant has admitted that he has got counter-foil of the cheques issued in favour of the respondent and those counterfoils were not produced before Court to show that he is the tenant and paying rents to the respondent. This argument is unsustainable in view of the fact that the injunction order was obtained and the same is still subsisting and the suit is also still pending. No decision was taken that the respondent is sub-tenant. Therefore, non-production of the counter-foils of the cheques does not lead to draw any adverse inference. ( 22 ) THE learned counsel for the respondent however submitted that it is an admitted fact that immediately after the appellant was evicted from the premises, the entire premises was demolished and the same is not available to the Court to restore possession to the appellant. On that ground also the Court was right in rejecting the application. In support of that argument, he placed reliance on the Judgment in Vannattankandy Ibrayi v. Kunhabdulla Hajee 2000 (8) Supreme 553 : (2000 AIR SCW 4592) in which case, shop let out to the tenant was razed to ground, due to accidental fire. The tenant constructed new shop on the same site without consent of the landlord. The suit was for demolition of the new shop. Tenancy was extinguished on total destruction of premises governed by Rent Control Act. Building does not include vacant land over which premises once stood. When shop was completely destroyed tenancy right stood extinguished for want of subject matter of demise. Section 108 (B) (e) has no application in case of premises governed by Rent Control Act when it is completely destroyed by natural calamities. Eviction petition under Rent Control not possible, remedy available is civil suit for recovery of possession of land. When shop was completely destroyed tenancy right stood extinguished for want of subject matter of demise. Section 108 (B) (e) has no application in case of premises governed by Rent Control Act when it is completely destroyed by natural calamities. Eviction petition under Rent Control not possible, remedy available is civil suit for recovery of possession of land. ( 23 ) IN this case, the respondent has intentionally demolished the building immediately after taking possession illegally from the respondent (sic) but in the case referred to above, the shop was razed to the ground only because of accidental fire. If the ground taken by the appellant is to be accepted, the very purpose of the Act would be defeated and the order of the Court becomes redundant and frustrated. Such acts will have to be curbed instead of encouraging him who has deliberately disobeyed the order of a competent Court. ( 24 ) ON the other hand, the learned counsel for the respondent submitted that to avoid the abuse of process of the Court, the court can always invoke inherent jurisdiction under S. 151 CPC. to substantiate that argument, he placed reliance on a judgment of the Rajasthan High Court reported in Magna v. Rustam AIR 1963 Rajasthan 3 wherein it is held that in a case of disobedience during pendency of suit, the Court can invoke inherent power under S. 151 to do justice to the parties. In Hari Nandan Agrawal v. S. N. Pandita AIR 1975 Allahabad 48 the Division Bench of the Allahabad High Court has held where interim injunction restraining defendants from dispossessing plaintiff issued, plaintiff dispossessed by wilful disobedience of injunction, the Court can pass such order as would undo wrong done to plaintiff. In Umaraosing Daulatsingh v. Ramgopal Ramanarayan AIR 1961 Madh Pra 9 it is held that injunction order against disturbing plaintiff's possession and breach of the same, cannot be justified on the ground that plff. was not in possession at all. In Sujit Pal v. Prabir Kumar Sun, AIR 1986 Calcutta 220 the Calcutta High Court has held that suit for permanent injunction and declaration of tenancy - forcible dispossession of plaintiff in violation of interim injunction inherent power can be invoked to grant temporary mandatory injunction by directing police to restore possession. was not in possession at all. In Sujit Pal v. Prabir Kumar Sun, AIR 1986 Calcutta 220 the Calcutta High Court has held that suit for permanent injunction and declaration of tenancy - forcible dispossession of plaintiff in violation of interim injunction inherent power can be invoked to grant temporary mandatory injunction by directing police to restore possession. ( 25 ) THERE is no quarrel as far as the principles enunciated by Their Lordships in the decisions referred to above. But the question as to whether the appellant was a lesseee or sub-lessee is not at all determined by the Court. On the other hand, the appellant has been contending that he is a tenant and he was paying rent to the respondent. That as indicated above, prima facie established by the appellant. That being the case, it was incumbent on the respondent to implead him in the HRC proceedings. Needless to say that he neither pleaded in the HRC petition filed against the alleged Mari Muthu that the appellant has obtained injunction order against the forcible eviction of the appellant nor has made mention of the HRC proceedings filed by the respondent against the said Mari Muthu in respect of the same property in the MFA filed by him before this Court. Thereby it is clear that the respondent has suppressed the material particulars from this Court as well as from the notice of the HRC Court. Had it been brought to the notice of the Court, the HRC Court at least would have given a finding as to whether the appellant was a necessary party to the proceedings and if it was brought to the notice of the appellant, he would have come to know about the HRC proceedings filed by him to take suitable action to come on record. Very cleverly the respondent has avoided the same from the knowledge of the appellant. ( 26 ) THE learned counsel has vehemently argued that the appellant has alleged in the petition that he was in posssession for over 35 years that being his evidence, he was hardly about 13/14 years and it is improbable for a boy of 13/14 years to venture to run an automobile garage by taking the premises on lease. ( 26 ) THE learned counsel has vehemently argued that the appellant has alleged in the petition that he was in posssession for over 35 years that being his evidence, he was hardly about 13/14 years and it is improbable for a boy of 13/14 years to venture to run an automobile garage by taking the premises on lease. This fact cannot itself be a ground to hold that he is not a tenant because there is some discrepancy in regard to the number of years he has been in possession of the premises, but at the time of giving evidence, it is clear that he was 53 years old. In that context, this argument also cannot be accepted. ( 27 ) THE learned counsel for the respondent further argued that the appellant has described the schedule property in the original suit as No. 14, Park Rd. and the respondent has specifically denied that he is the owner of the said property. On the other hand, the eviction petition is filed in respect of the premises bearing No. 14/1 Park Rd. and therefore, the appellant cannot claim that he is the tenant of the respondent. This argument is without any substance. From the perusal of the description of the property with reference to boundary, it is clear that the subject-matter of both the HRC case as well as the original suit is one and the same except that the number is mentioned as 14/1' instead of 14'. Even accepting for a moment that if the contention of the respondent is true, then it was not open to the respondent to execute the decree against the appellant who was in possession of a separate property. But however, there is no dispute that the appellant is in possession of the schedule property and identity is not in dispute with reference to the boundaries given both in the plaint and also the HRC petition. Therefore, this argument also is rejected. ( 28 ) EVEN though the wife of the appellant had shown the injunction order granted by a competent Court, the appellant, process server and the police officers who were present, mercilessly threw all the belongings out of the premises and the forcible possession was taken contrary to the injunction order granted by the Court. ( 28 ) EVEN though the wife of the appellant had shown the injunction order granted by a competent Court, the appellant, process server and the police officers who were present, mercilessly threw all the belongings out of the premises and the forcible possession was taken contrary to the injunction order granted by the Court. Therefore, the learned counsel for the appellant submitted that the appellant is entitled to be put in possession of the premises even though the premises was demolished by the respondent obviously to show that he is entitled for possession of the premises. ( 29 ) THE learned Court below has not considered the case in its proper perspective but as stated above has proceeded on the assumption that the appellant is a sub-lessee and therefore, he is not entitled for restoration of possession. For the foregoing reasons, the impugned order is liable to be set aside and the appeal deserves to be allowed. In the result therefore, I proceed to pass the following : order the appeal is allowed and the impugned order is set aside directing the respondent to put the appellant in possession of the property within two months from this date. The appellant also is entitled for costs throughout. The Advocate's Fee is fixed at Rs. 2,000/ -. Appeal allowed. --- *** --- .