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2022 DIGILAW 146 (KAR)

Bhagyalatha v. J. R. Ajoy Kumar

2022-02-04

ASHOK S.KINAGI

body2022
JUDGMENT 1. The petitioners aggrieved by the order dtd. 6/9/2021 passed on I.A.No.9 in O.S.No.1/2017 by the Principal Senior Civil Judge and CJM, Mandya, have filed this writ petition. 2. Brief facts leading rise to filing of this petition are as under: That respondent has filed a suit in O.S.No.52/2014 against the petitioners seeking for the relief of mandatory injunction. In the said suit, petitioners appeared and filed written statement. Thereafter, petitioners have filed an application seeking for a direction to respondent to pay the entire arrears of rent amounting to Rs.61,10,500.00 (Rupees Sixty One Lakhs Ten Thousand Five Hundred only) from 10/9/2014 till 10/9/2017. The Trial Court allowed the said application and directed the respondent to pay the arrears of rent of Rs.61,10,500.00, within one month from the date of the order. Failing which, petitioners are at liberty to get the premises vacated. The respondent being aggrieved by the order passed by the Trial Court has preferred Writ Petition in W.P.No.14592/2018 before this Court. This Court, vide order dtd. 10/12/2019, modified the order passed by the Trial Court and directed the respondent to deposit the arrears of rent for the subject period and shall go on depositing the rents accruing due hereafter in the Court below at the rate of Rs.82,000.00 per month and the Trial Court shall keep the said amount in a short term deposit in any Nationalized Bank; to whom this amount or any other amount should go shall depend upon the outcome of the suit proceedings. 2.2. The respondent aggrieved by the order dtd. 10/12/2019 passed by this Court in W.P.No.14592/2018, preferred Special Leave Petition before the Hon'ble Apex Court in Appeal Nos.6789- 6790/2020. The Hon'ble Apex Court dismissed the appeal filed by the respondent. Further, respondent filed a Writ Petition in W.P.No.13742/2020, the same came to be dismissed vide order dtd. 16/7/2021. The petitioners filed an application i.e., I.A.No.9, before the Trial Court seeking for a direction to the respondent to vacate the suit schedule property and handover the possession of the suit schedule property as per the order dtd. 13/3/2018. In support of the application, petitioners filed affidavit stating that the Trial Court directed the respondent to deposit arrears of rent within a period of one month, failing which, vacate the suit schedule property. It is contended that respondent has not complied the order passed by the Trial Court vide order dtd. 13/3/2018. 13/3/2018. In support of the application, petitioners filed affidavit stating that the Trial Court directed the respondent to deposit arrears of rent within a period of one month, failing which, vacate the suit schedule property. It is contended that respondent has not complied the order passed by the Trial Court vide order dtd. 13/3/2018. The Respondent is liable to vacate the petitioners premises. Hence, prayed to issue a direction to respondent to hand over the possession of the suit schedule property. The said application opposed by the respondent by filing objection. The respondent has contended that the application filed by the petitioners is not legally sustainable in the eye of law. The respondent has admitted filing of the application by the petitioners and order passed by the Trial Court vide order dtd. 13/3/2018 and also admitted that the said order was confirmed by the Hon'ble Supreme Court. Further, it is contended that the respondent has suffered financial loss and was force to close the entire business, since September, 2014 till this day. The respondent is neither having money nor having any source of income to pay and depositing the arrears of rent as ordered by this Court. It is further contended that the petitioners intentionally dragging the proceedings of the suit without cross-examining the respondent since from 2015. It is further contended that the application filed by the petitioners is not maintainable. Hence, the respondent prayed to reject the application. The Trial Court, after hearing the parties, has kept the application in abeyance and the same is to be considered along with the merits of the matters. Hence, the petitioners being aggrieved by the said order filed this writ petition. 3. Heard learned counsel for the petitioners and learned counsel for respondent. 4. Learned counsel for the petitioners submits that the Trial Court has passed the order on 13/3/2018, wherein directing the respondent to deposit the arrears of rent. He further submits that the respondent has failed to comply the orders passed by the Trial Court as well as this Court. He further submits that petitioners have already filed a Contempt proceedings against the respondent for disobeyance of the order passed by the Trial Court. He further submits that the Trial Court has committed an error in keeping the application in abeyance. He further submits that the Trial Court, ought to have passed an order on I.A.No.9. He further submits that petitioners have already filed a Contempt proceedings against the respondent for disobeyance of the order passed by the Trial Court. He further submits that the Trial Court has committed an error in keeping the application in abeyance. He further submits that the Trial Court, ought to have passed an order on I.A.No.9. Hence, he submits that the order passed by the Trial Court is arbitrary and perverse. Hence, on these grounds, he prays to allow the writ petition. 5. Per contra, learned counsel for the respondent submits that the petitioners have filed an application seeking a direction against the respondent to pay the arrears of rent. The Trial Court while passing the order as observed that in case, if the respondent fails to pay the arrears of rent, the petitioners are at liberty to get the premises vacated. He further submits that respondent has suffered loss because closure of business. He further submits that respondent is not in a position to pay the arrears of rent. He further submits that in view of the order passed by the Trial Court, the petitioners have already filed a suit for eviction in O.S.No.16/2019, which is pending. He further submits that the petitioners have already filed an Execution Petition to execute the order passed by the Trial Court vide order dtd. 13/3/2018. When the petitioners have already availed a remedy available to them, the petitioners have no right to file an application. He submits that the Trial Court was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ petition. 6. Perused the records and considered the submissions made by learned counsel for the parties. 7. It is not in dispute that the petitioners are the owners of the suit schedule property and the said property was let-out to the respondent on a monthly rent and the document came to be executed between the parties. 6. Perused the records and considered the submissions made by learned counsel for the parties. 7. It is not in dispute that the petitioners are the owners of the suit schedule property and the said property was let-out to the respondent on a monthly rent and the document came to be executed between the parties. The respondent filed a suit against the petitioner for the relief of mandatory injunction directing the petitioner No.1 to get the renewal of Bar and Restaurant License CL-7 with respect to the suit schedule Chalukya Complex and further sought a direction to the petitioner to get the construction of 11 additional suitable, accommodative lodging rooms in the suit schedule Chalukya Complex and consequently seek to award damages of Rs.1,18,25,000.00 towards future damages and to directed the petitioners to pay the same to the respondent along with interest. Thereafter, the Trial Court framed the issues. The petitioners have filed the application seeking a direction to respondent to deposit the arrears of rent to the tune of Rs.61,10,500.00 from 10/9/2014 till 10/9/2017, for the period of 37 months. The Trial Court, vide its order dtd. 13/3/2018, allowed the application filed by the petitioners and directed the respondent to pay the arrears of rent as claimed by the petitioners in their application. Further, the Trial Court as observed that, if the respondent fails to pay the arrears of rent, petitioners are at liberty to get the premises vacated. The said order was challenged by the respondent in W.P.No.14592/2018, this Court vide order dtd. 10/12/2019, modified the order passed by the Trial Court and directed the respondent to deposit the arrears of rent at the rate of Rs.82,000.00, and shall keep the said amount in a short term deposit in any Nationalized Bank. The said order was confirmed by the Hon'ble Apex Court in SLP Appeal Nos.6789- 6790/2020. When the Trial Court has already passed an order directing the respondent to deposit the amount, if the respondent has failed to deposit the amount it is open for the petitioners to take action against the respondent to vacate from the suit premises. 8. Admittedly, in the present case, petitioners have filed a suit for eviction against the respondent, which is pending. Further, the petitioners have also filed a contempt proceedings against the respondent in C.C.C.26/2021 for non-compliance of the order passed by the Trial Court. 8. Admittedly, in the present case, petitioners have filed a suit for eviction against the respondent, which is pending. Further, the petitioners have also filed a contempt proceedings against the respondent in C.C.C.26/2021 for non-compliance of the order passed by the Trial Court. Further, the petitioners also filed Execution proceedings to recover the amount as ordered by the Trial Court, vide order dtd. 13/3/2018. When the petitioners have already availed a remedy by filing contempt as well as execution petition, petitioners was not justified in filing application i.e., I.A.No.9. If the said application is allowed, it amounts to decreeing the suit for eviction without trial. During the pendency of suit for eviction, it would not be proper to consider the application under reference at this stage. The Trial Court is justified in keeping the application in abeyance. I do not find any grounds to interfere with the impugned order by exercising supervisory power under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed. This order will not come in the way of the petitioners, in pursuing contempt proceedings as well as execution petition. Any observation made in this order is restricted to this writ petition only.