Allowed

Sri. K.L. Subhash v. Smt. H.P. Vasanthi

Karnataka HC25 Oct 2021RFA/866/2015

Case brief

AI extract

What is this about?

High Court of Karnataka disposed of two first appeals along with an intermediary application. The appellants agreed to comply with the trial court decree regarding possession handover and rent arrears. The court accepted the undertakings, directed compliance by a specified date, and confirmed the trial court's judgment.

What did the court decide?

Appellants directed to hand over possession and pay arrears of rent Rs.14,850/- as per undertaking accepted by the Court.

Sri. K.L. Subhash Vs Smt. H.P. Vasanthi — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO

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REGULAR FIRST APPEAL No.866/2015 C/W

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REGULAR FIRST APPEAL No.867/2015

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REGULAR FIRST APPEAL No.866/2015

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BETWEEN :

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SRI. K.L. SUBHASH S/O.LATE K.S.LINGADEVARU, AGED ABOUT 72 YEARS, PROPRIETOR, M/S. KAMBI SHIVAPPA STORES, No.347 AND 348, AVENUE ROAD, BENGALURU-560002 AND ALSO RESIDING AT No.547, 3^RD MAIN, BSK III STAGE, II PHASE, BENGALURU-560 085.

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SMT. HEMALATHA W/O.PRAVEEN KUMAR, AGED ABOUT 42 YEARS, RESIDING AT PLOT No.8, DAFEDAR MUNIYAPPA LANE, TIGALARPET, BENGALURU-560 002.

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SRI NARESH KUMAR C JAIN S/O.CHANDANMAL JAIN, AGED ABOUT 37 YEARS,

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RESIDING AT No.8, PLOT No.8, DAFEDAR MUNIYAPPA LANE, TIGALARPET, BENGALURU-560 002.

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… APPELLANTS

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(By SRI.SANJAY H. SETHIYA, ADVOCATE – THROUGH V.C)

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AND:

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SMT. H.P. VASANTHI D/O.LATE H.S.PRASANNA MURTHY, AGED ABOUT 60 YEARS, RESIDING AT No.101, 30^TH CROSS, 7^TH BLOCK, JAYANAGAR, BENGALURU-560 082.

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... RESPONDENT

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(BY SRI K.K.VASANTH, ADVOCATE FOR CAVEATOR RESPONDENT)

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THIS RFA IS FILED UNDER SEC.96(1) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.03.2015 PASSED IN O.S.No.3945/2002 ON THE FILE OF THE XXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-38), BENGALURU, DECREEING THE SUIT FOR POSSESSION, PERMANENT INJUNCTION, ARREARS OF RENT AND MESNE PROFITS.

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REGULAR FIRST APPEAL No.867/2015

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BETWEEN:

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SHRI. K.L. SUBHASH S/O LATE K.S.LINGADEVARU, AGED ABOUT 72 YEARS, R/AT No.547, 3^RD MAIN, BSK II STAGE, II PHASE, BENGALURU-560 085.

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SMT.HEMALATHA W/O PRAVEEN KUMAR, AGED ABOUT 39 YEARS, R/AT PLOT No.8, DAFEDAR MUNIYAPPA LANE, TIGALARPET, BENGALURU-560 002.

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SHRI N.NARESH KUMAR C JAIN S/O CHANDANMAL JAIN AGED ABOUT 34 YEARS, R/AT PLOT No.8, DAFEDAR MUNIYAPPA LANE, TIGALARPET, BENGALURU-560 002.

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… APPELLANTS

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(By SRI.SANJAY H. SETHIYA, ADVOCATE – THROUGH V.C)

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AND :

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SMT. H.P. VASANTHI D/O LATE H.S.PRASANNA MURTHY, AGED ABOUT 57 YEARS, R/AT 101, 30^TH CROSS, 7^TH BLOCK, JAYANAGAR, BENGALURU-560 082.

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...RESPONDENT

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(BY SRI K K VASANTH, ADVOCATE FOR CAVEATOR RESPONDENT)

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THIS RFA IS FILED UNDER SEC.96(1) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.03.2015 PASSED IN O.S.NO.16301/2005 ON THE FILE OF THE XXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-38), BENGALURU, DECREEING THE SUIT FOR POSSESSION AND PERMANENT INJUNCTION, ARREARS OF RENT AND MESNE PROFITS.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard Sri Sanjay H.Sethiya, learned counsel for the appellants through V.C. and Sri K.K.Vasanth, learned counsel for the respondent, in both the appeals.

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It is submitted by learned counsel for respondent Sri.K.K.Vasanth that on 22.07.2021, learned counsel for appellants submitted that the appellants are willing to handover the suit schedule property and comply with the terms of the decree. The same is verified and found to be true as per the proceedings of this court.

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On 05.08.2021, adjournment was sought and thereafter, the matter was posted to 11.08.2021. On 11.08.2021, it was further ordered to be listed on 17.08.2021. On 17.08.2021, learned counsel for appellants submitted that he would advice the appellants to comply with the decree passed by the Trial Court. Thereafter, the

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matter was adjourned to 24.08.2021 and it came to be listed today.

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Meanwhile, learned counsel for the appellants submitted that he had filed a memo to the effect that he would comply with the terms of the decree and also handover demand draft for Rs.14,850/- towards arrears of rent. However, the said memo, as recorded in the ordersheet, is not available. Hence, it does not find a place in the proceedings.

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Learned counsel for appellants submitted that he is ready to deliver the possession of the schedule property, but the plaintiff/respondent is insisting on mesne profits and has returned the demand draft for Rs.14,850/- also.

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In this connection, it is necessary to mention the operative portion of the judgment of the trial court which reads as under:-

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"O.S.No.3945 of 2002 and

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O.S.No.16301 of 2005 filed by the plaintiff therein are decreed with cost.

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O.S.No.6178 of 2003 filed by the plaintiff therein is hereby dismissed with cost to the defendants therein.

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The defendants, their men or agents are hereby permanently restrained from demolishing the suit schedule premises, or altering, or wiping out internal boundaries and bifurcating mark.

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Further they are restrained from removing wrought iron pillars erecting between suit schedule premises and the shop belonging t o the defendants permanently.

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Further, the defendant is restrained permanently from creating any encumbrance in respect of the suit schedule premises.

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Further the defendants are directed to reconstruct the wall between the schedule premises and shop belonging to the defendants as shown in the schedule to the plaint.

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Further, defendant No.1 is directed to vacate and handover vacant possession of the suit schedule property free from all

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encumbrance to the plaintiff within 90 days from the date of this order, as per the terms of the lease agreement dated 13.08.1945 by reconstructing the wall in place of wrought iron pillars erected between the suit schedule premises and property bearing No.348.

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Further the plaintiff is entitled to recover a sum of Rs.14,850/- as arrears of rent from defendant No.1.

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There shall be separate enquiry as regards to mesne profits under Order XX Rule 12 of CPC.

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Keep original judgment in the file of O.S.No.3945 of 2002 and retain a copy in the file of O.S.No.6178 of 2003 and 16301 of 2005.

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Draw decree accordingly.

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Learned counsel submits that key and

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photographs of the schedule property, as is where is condition, will be handed over to acknowledge the delivery of possession of the same. Thus it is made clear, insofar as the eviction of the schedule property, the defendants/appellants are handing over the possession and

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also are ready to handover arrears of rent of Rs.14,850/- to the respondent. Photographs of both inside and outside of the schedule property as standing on the date i.e., on 28.10.2021 shall be taken in the presence of both the learned counsel.

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Insofar as mesne profits as ordered by the Trial Court, is concerned, learned counsel for the appellants undertakes to handover the demand draft to Sri.K.K.Vasanth, learned counsel for respondent on 28.10.2021 at 4.00 p.m. The undertaking of the learned counsel for appellants is accepted and the appellants are directed to comply with the same.

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Accordingly, both the appeals are disposed of thereby confirming the judgment and decree passed by the Trial court. However, it is made clear that in case of any inconsistency or discrepancy in the terms of the decree, the

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respondent can invoke her remedy before the executing court.

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In view of disposal of the appeals, I.A.No.1/2021 for vacating stay does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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Bss.

Sri. K.L. Subhash v. Smt. H.P. Vasanthi

Case brief

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Sri. K.L. Subhash v. Smt. H.P. Vasanthi

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