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2016 DIGILAW 41 (KAR)

Nagaveni v. M. Vittal Devadiga

2016-01-12

R.B.BUDIHAL

body2016
ORDER : Budihal R.B., J. 1. Though this matter is listed in the orders list, but with the consent of both sides, it has been taken up for final disposal. 2. Heard the learned counsel for the petitioner and also the learned counsel appearing for respondent No. 4. 3. The writ petitioner filed this writ petition challenging the order dated 3.12.2015 passed by the II Addl. Senior Civil Judge, Mangaluru, as per Annexure-L in R.A. No. 235/2015 directing the writ petitioner herein to deposit an amount of Rs. 1,50,000/- towards mesne profits. 4. Heard the learned counsel for the writ petitioner. Learned counsel during the course of his arguments made the submission that the petitioners have filed an application before the Executing court to come on record and the said application was filed under Order 21 Rule 97 of CPC contending that they are also having tenancy rights in the said property and they were not arrayed as parties to the original suit and the decree was obtained behind their back and in the absence of the writ petitioners. 5. Learned counsel made the submission that earlier when memo was filed seeking permission to lead evidence on the application of writ petitioners, the same was rejected by the Executing court and aggrieved by the said order, he approached this court by filing a writ petition in W.P. No. 16340/2015 and the same was disposed of directing the trial court to dispose of the application by keeping in mind the decision of the Hon'ble Supreme Court and to take decision in the matter by giving an opportunity to lead their evidence. Subsequently, the Executing court dismissed the application. The petitioners filed R.A. No. 235/15 in which direction was given to the applicant to deposit an amount of Rs. 1,50,000/-. Learned counsel submitted that whatever the direction given by the Original court, or first Appellate Court with regard to deposit of the amount towards mesne profit is concerned, is not at all binding upon them as they were not parties in the original proceedings. Hence, counsel submitted that so far as direction to the extent of deposit of the amount towards mesne profits is concerned, it is illegal and not sustainable in law. Hence, counsel submitted that the writ petition be allowed and the direction issued by the First Appellate Court to that extent is to be set aside or modified. 6. Hence, counsel submitted that so far as direction to the extent of deposit of the amount towards mesne profits is concerned, it is illegal and not sustainable in law. Hence, counsel submitted that the writ petition be allowed and the direction issued by the First Appellate Court to that extent is to be set aside or modified. 6. Per contra, learned counsel appearing for the caveator-Respondent No. 4 during the course of his argument made the submission that the suit was originally by Venkataramana Devaru of Sri Venkateshwara Temple, against three persons seeking their eviction from the suit schedule property. The said suit was decreed and the judgment and the decree passed was also confirmed by the Appellate Court and subsequently, they have filed Execution petition for execution of the decree passed by the lower court. At that moment of time, the present writ petitioners moved an application to come on record and the said application was filed contending that they are also having interest in the property and they are having right to contest the matter. 7. Learned counsel made the submission that the said application was filed only with an intention to prolong the proceedings. It is also his contention that notice was given to the tenants and it is not the case of the writ petitioners herein that they are having any independent right in the said property. Learned counsel submitted that even if notice to any one of the tenant is sufficient as the claim is a joint tenancy. Learned counsel also made the submission that tenant who was already party to the original proceedings in the suit, raised all those contentions in the said suit by way of filing written statement was considered by the trial court and only after that suit was decreed for eviction of the said defendants from the schedule property. Learned counsel further made the submission that in R.A. No. 235/2015 when the order has been passed on the said application giving a direction to deposit the amount of Rs. 1,50,000/-, the appellate court is having power to give such directions to protect the interest of the parties to the litigation. Hence, the counsel submitted that it is the discretionary order passed by the court and there is no illegality committed by the said court in giving such direction. 1,50,000/-, the appellate court is having power to give such directions to protect the interest of the parties to the litigation. Hence, the counsel submitted that it is the discretionary order passed by the court and there is no illegality committed by the said court in giving such direction. It is also his submission that if said direction is set aside by the court, then it is difficult that if the parties without making payment of the mesne profits, left the properties as it is, then it will cause irreparable loss and injury to the Caveator-Respondent No. 4. Hence, counsel submitted that there is no merit in this writ petition and the lower appellate court has taken into consideration all these aspects of the matter and ultimately disposed of the said application with the above observation. Hence, he submitted that there are no grounds to interfere with the order passed by the first appellate court. 8. In support of his contention learned counsel for the caveator-respondent No. 4 relied upon the decision of the Hon'ble Supreme Court reported in 1995 Supp(3) SCC 403 : (2005)1 SCC, 705 : (2011)8 SCC 249 : AIR 1989 SC 1470 . 9. I have perused the principles enunciated in the said decisions. In the decision reported in AIR 1989 SC 1470 , their Lordships laid down the proposition as under: "Transfer of Property Act(4 of 1882), S.106-Tenancy-Succession-Heirs of original tenant succeed to tenancy as joint tenants and not as tenants in common-Service of notice under S.106 on one of joint tenants who acted on behalf of others was sufficient." 10. In another decision reported in (2005)1 Supreme Court Cases 705 at Head note-A, their Lordships laid down the proposition as under: "Rent Control and Eviction-Eviction decree-Imposition of terms/conditions for grant of stay-De[posit of reasonable sum not the same as contractual rate-Permissiblity-Held, the appellate court while exercising jurisdiction under Or. 41 R. 5 does have power to put the Conflicting considerations and other factors involved for exercise of discretion for grant of stay and formulating terms to put the parties on, enumerated-Appellate court imposing terms on tenant of depositing Rs. 15,000 as rent per month in court for grant of stay of decree for eviction (original rent being Rs. 371.90p.) for premises situate in Connaught Place in Delhi-Adjoining premises belonging to same landlord, admeasuring 2000 sq. ft. 15,000 as rent per month in court for grant of stay of decree for eviction (original rent being Rs. 371.90p.) for premises situate in Connaught Place in Delhi-Adjoining premises belonging to same landlord, admeasuring 2000 sq. ft. having recently been let out for a rent of Rs. 3.5 lakhs a month-Held, there is every justification for the appellate court to put the appellant tenant on terms and direct him to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent -Rationale for, given that there was a need to deter tenants from perpetuating the life of litigation and thereby robbing the landlord of the fruits of the litigation even if successful-On fact, Tribunal took extra care to see that the amount was retained in deposit with it until the appeal was decided so that the said amount could be disbursed by the appellate court consistently with the opinion formed by it at the end of the appeal-Moreover, it was not the case of the tenant before the Supreme Court, nor was it in the High Court that the amount of Rs. 15,000/- was unreasonable or grossly on the higher side-Appeal of tenant dismissed with costs in High Court and Supreme Court-Appeal of tenant dismissed with costs in High Court and Supreme Court-Civil Procedure Code, 1908- Or. 41 R.5- Grant of stay-Terms that may be imposed." 11. Therefore, looking to the principles enunciated in the said decisions, and the facts and circumstances of the case on hand, the tenants already represented in the said suit and took the contention which was considered by the original court. But so for as the contention of the applicants in the application, those contentions were also already considered by the court. The claim of the Writ petitioners as tenants is also that they are joint tenants in the said property. Therefore, as per the decision of the Hon'ble Supreme Court, notice to any one of such tenant who is represented other tenants, is a notice to the other tenants, as per the provisions of Section 106 of the Transfer of Property Act. 12. The decision of the Hon'ble Supreme Court also goes to show that the Appellate court is having power while passing the order for stay of the proceedings, it can order for depositing the rent amount also. 13. 12. The decision of the Hon'ble Supreme Court also goes to show that the Appellate court is having power while passing the order for stay of the proceedings, it can order for depositing the rent amount also. 13. Looking to these principles enunciated in the decision and the order passed by the first Appellate Court with regard to the direction to deposit mesne profits are concerned, even though it is the contention of the writ petitioners-applicants that they were not parties in the original proceedings and such direction is not binding on them till their application is disposed of. But the order passed by the first appellate court on the application and regarding deposit of the mesne profit is permissible under law and it is also the discretionary order passed by the court to protect the interest of the parties. In view of the principles enunciated in the decisions referred to above and also looking to the facts and circumstances of the case on hand, I am of the opinion that no illegality has been committed by the court in giving such direction for deposit of the mesne profits at the rate of Rs. 1,50,000/-. There are no valid and legal grounds for this court to interfere with the said order and to alter or modify the same. Accordingly the writ petition is hereby rejected.