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2013 DIGILAW 886 (KAR)

Suresh Chandra Agarwal v. Mohammed Saleem

2013-08-07

S.N.SATYANARAYANA

body2013
Judgment : 1. The defendant in OS.No.2372/2010 on the file of V Additional Civil Judge, Mysore, has come up in this appeal impugning the concurrent finding of both the courts below in passing the judgment and decree of eviction of defendant from the suit schedule property. 2. The admitted facts are that, appellant herein who is defendant in OS.No.2372/2010 is tenant in respect of property bearing Door No.1702/1, New No.9/1 in Hanumantha Rao Street, Makkaji Chowk, Devaraja Mohalla, Mysore, constructed on site measuring 50x25 feet consisting of ground and first floor portion, which is being utilised for commercial use in the ground floor and for residential purpose in the first floor. 3. Admittedly, defendant got into suit schedule property as tenant by virtue of the order of Rent Control Court about 37 years prior to filing of the suit on monthly rent of Rs.500/-, which is being increased from time to time to Rs.2,350/-pm., as on the date of suit for eviction was filed. In the said suit, based on the pleadings, oral and documentary evidence available on record, the trial Court proceeded to pass the judgment and decree directing eviction of defendant from suit schedule property granting six months time to vacate the suit schedule property and also directing payment of mesne profits at the rate of Rs.2,350/- from the date of suit till date of delivery of vacant possession of suit schedule property. 4. Being aggrieved by the same, defendant in the original suit filed regular appeal in RA.No.90/2012 on the file of Senior Civil Judge, Mysore, wherein on re-appreciation of pleadings, evidence available on record, the lower appellate Court confirmed the judgment and decree passed by the trial Court in evicting the defendant from suit schedule property awarding mesne profits in a sum of Rs.2,350/-pm. However, while dismissing the regular appeal in RA.No.90/2012 the lower appellate court did not grant any time. Hence, defendant in the original suit has come up in this second appeal challenging the concurrent finding of both the courts below, more particularly, in not considering his prayer for grant of sufficient time to relocate himself. 5. Heard the counsel for appellant. Perused the judgment and decree of both the courts below. On going through the same, the reason given by both the courts below for passing the order of eviction appears to be just and proper. 5. Heard the counsel for appellant. Perused the judgment and decree of both the courts below. On going through the same, the reason given by both the courts below for passing the order of eviction appears to be just and proper. However, it is seen that appellant herein, defendant in trial court is carrying on business in ground floor of suit schedule property and is using the first floor portion as his residence. Admittedly, he has settled his business for past 37 years. It is stated that he is doing business in Crockery and as such, there is lot of outstanding due to him from the retailers who have taken supplies from him and also from other customers. It is his grievance that if he is made to relocate himself without giving any time, it will be difficult for him to recover the said outstanding and also to find suitable accommodation closer to the place of his present business. In that view of matter, there is serious error committed by the lower appellate court in not considering grant of sufficient time to relocate his business and residence. 6. This Court after hearing the learned Counsel for appellant feel that except the fact that appellant is not provided sufficient time to relocate himself, the finding regarding passing of eviction order against him appears to be just and proper on all counts. In that view of matter, appeal is required to be dismissed. While doing so, this Court feel that further time of six months from this day is required to be granted to the appellant herein to relocate his business and as well as his residence. However, the same cannot be granted without putting him on certain terms. Accordingly, it is made clear that six months time granted to appellant herein which would be there till 28.2.2014 is subject to payment of mesne profits at Rs.10,000/-pm., commencing from 1.9.2013 to 28.2.2014. That on or before 31.8.2013 the appellant herein shall pay entire arrears of rent/mesne profits at the rate of Rs.2,350/- pm., covering up to the period of 31.8.2013. 7. That on or before 31.8.2013 the appellant herein shall pay entire arrears of rent/mesne profits at the rate of Rs.2,350/- pm., covering up to the period of 31.8.2013. 7. Thereafter, from 1.9.2013 appellant shall continue to pay mesne profits at the rate of Rs.10,000/- pm., and the same shall be paid on or before 10th in the month of September for that month and appellant shall continue to pay mesne profits for subsequent months at Rs.10,000/-pm., on or before 10th of each month towards mesne profit of that month. That appellant would voluntarily vacate and deliver the vacant possession of suit schedule property to the respondent herein on or before 28.2.2014 without forcing him to levy execution and to take possession through delivery warrant to be issued in execution proceedings. That appellant shall not induct third party into suit schedule property and shall not damage or alter the nature of property during said period. 8. That he shall not make any application seeking extension of time at the end of six months time granted in this appeal. The appellant shall file the undertaking to the aforesaid effect within two weeks from today. It is made clear that if an application seeking extension of time is filed by appellant, said application will be automatically considered as contempt of court because appellant would be committing the offence in filing the application seeking extension of time as against the undertaking given by him. 9. With the aforesaid observations and directions, the appeal filed by defendant in the original suit is dismissed granting him time till 28.2.2014 to vacate the suit schedule property subject to aforesaid conditions.