Partly allowed

Sri Tulasidas R C v. Smt Sulochana

Karnataka HC13 Dec 2021WP/47611/2018

Case brief

AI extract

What is this about?

High Court addressed a writ petition challenging an execution order for arrears of rent. Court held that while the execution petition was not an abuse of process as tenant violated orders and paid voluntarily before Lok-Adalat, the payment to comply with the interim order must be refunded by the trial court once tenant vacated, to avoid unjust enrichment.

What did the court decide?

Writ petition allowed in part; Execution Petition No.431/2016 quashed; Executing Court directed to refund Rs.50,000 deposited before it.

Sri Tulasidas R C Vs Smt Sulochana — Landlord and Tenant | Karnataka HC (2021)

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W.P.No.47611/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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WRIT PETITION NO.47611 OF 2018 (GM-CPC)

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BETWEEN:

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SRI TULASIDAS R.C. S/O LATE CHIKKARANGAIAH AGED ABOUT 63 YEARS R/AT NO.344, 3^RD STAGE 16^TH CROSS, VIJAYANAGAR MYSURU ... PETITIONER

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(BY SRI N.B.N.SWAMY, ADVOCATE)

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AND :

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SMT. SULOCHANA W/O P.K.RAMA REDDY AGED ABOUT 56 YEARS R/AT NO.104/L, 5^TH MAIN “N” BLOCK, KUVEMPUNAGAR MYSURU – 23 ... RESPONDENT

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(BY SRI S.G.MUNISWAMY GOWDA, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN EX.NO.431/2016 ON THE FILE OF THE COURT OF III ADDITIONAL CIVIL JUDGE AND JMFC, MYSORE AND QUASH OR SET ASIDE THE ORDER PASSED ON 22.09.2018 BY THE LEARNED III ADDITIONAL I CIVIL JUDGE AND JMFC, MYSORE IN IA NO.III IN EX.NO.431/2016 VIDE ANNEXURE-G AND ETC.

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W.P.No.47611/2018

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THIS WP COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Petitioner is seeking quashing of the proceedings in Ex.P.431/2016 on the file of III Additional I Civil Judge and JMFC, Mysuru and the order dated 22.09.2018 passed by the trial Court in the said proceedings on I.A.No.3 for refund of Rs.40,000/- paid by the petitioner to the respondent and for damages of Rs.1,00,000/-.

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The petitioner was the tenant under the respondent in respect of residential house bearing Door No.344, 3^rd Stage, Vijayanagar, Mysuru.

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The respondent filed H.R.C.No.40/2014 before III Additional I C.J. & JMFC, Mysore against the petitioner seeking eviction under Section 27(2)(a) and (r) of Karnataka Rent Act, 1999 (for short ‘the Rent Act’), on the ground that the petitioner has committed

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W.P.No.47611/2018

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default in payment of rent and he requires the premises for his own use and occupation.

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4. During pendency of the petition, the

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respondent filed an application under Section 45 of the Rent Act for staying the proceedings and for a direction to the petitioner to hand over the possession of the property on the ground that the petitioner has willfully defaulted in payment of rent for the period from 19.02.2013 till June, 2014 to the tune of Rs.93,500/- and he was also liable to pay Rs.33,000/which fell due after filing of the petition.

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That application was contested by the petitioner on the ground that he has paid huge advance and after adjusting that, respondent herself is liable to refund Rs.50,000/-. The trial Court in H.R.C.No.40/2014 conducted an enquiry on the said application and on hearing both parties, rejected the defense of the petitioner and called upon him to pay

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W.P.No.47611/2018

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arrears of rent in a sum of Rs.1,43,000/- within two months from the date of order, failing which, to vacate and hand-over the vacant possession of the tenanted property.

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The petitioner challenged that order before the IV Additional District Judge, Mysuru, in Rent Revision Petition No.07/2015. The Revisional Court vide order at Annexure-'B' dismissed the said petition on 24.06.2016 on merits.

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On 26.11.2016 the respondent filed Ex.P.No.431/2016 before the III Additional, 1st Civil Judge and JMFC, Mysuru, seeking recovery of Rs.1,98,000/- towards arrears of rent. Even during pendency of Ex.P.No.431/2016, proceedings in H.R.C.No.40/2014 were going on. The respondent filed a memo in H.R.C.No.40/2014 on 28.04.2017 reporting that petitioner has vacated the premises on 06.02.2016. The trial Court closed H.R.C.No.40/2014

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W.P.No.47611/2018

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vide order Annexure-C dated 28.04.2017 on the ground that tenant has already vacated the premises.

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In Ex.P.No.431/2016, the respondent

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sought warrant for attachment of movables of the petitioner for recovery of arrears of rent. The petitioner appeared before the Executing Court. On 09.09.2017, matter was referred to Lok-Adalat. Before the Lok-Adalat, petitioner paid Rs.40,000/- to the respondent. Thereafter, matter was listed before Executing Court from time to time for payment of balance amount.

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On 25.11.2017, petitioner filed I.A.No.III in Ex.P.No.431/2016 as per Annexure-E for refund of Rs.40,000/- paid to the respondent on 09.09.2017

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and to close Ex.P.No.431/2016 on the ground that he has already vacated the premises, the HRC petition is closed, therefore, the execution petition does not

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W.P.No.47611/2018

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survive. The other ground was that, for recovery of arrears of rent, the execution petition does not lie.

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The respondent contested the said petition

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by filing statement of objections as per Annexure-F. On hearing both sides on IA No.III, the Executing Court, vide order Annexure-G dated 22.09.2018, dismissed IA No.III and directed the petitioner to pay the balance amount.

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The petitioner seeks quashing of the

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proceedings in execution petition No.431/2016 and other reliefs as aforesaid in the above petition on the

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ground that the order under Section 45 of the Rent Act was an interim order. He claims that once the main petition in HRC No.40/2014 is closed, the said interim order merges with the main order, therefore, no execution petition was maintainable.

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Sri. N.B.N. Swamy, learned counsel for the petitioner, reiterating the grounds of the petition further submits that, the order under Section 45 of the Rent Act was for either to pay the rent or to vacate the premises. He submits that, since the tenant vacated the premises, the respondent cannot maintain the execution petition for recovery of the rent. He submits that remedy of the respondent if any, is to file a suit for recovery of arrears of rent. According to him, the Execution Petition No.431/2016 is the abuse of process of the Court, therefore, the respondent is liable to pay damages of Rs.1,00,000/to the petitioner.

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In support of his contentions, he relies

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upon the following judgments:-

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1. Prem Chandra Agarwal and another Vs. Uttar Pradesh Financial Corporation and Others¹

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2. G. Balasundaram Vs. M. Eshwaraiah²

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1 (2009) 11 SCC 479

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2 (2007) 6 Kant. LJ 331

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W.P.No.47611/2018

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3. Syed Abdul Wadood Vs. State of Karnataka and Another³

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4. V.N. Vasudeva Vs. Kirori Mal Lihariwala⁴

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Per contra, Sri. S.G. Muniswamy Gowda,

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learned counsel for the respondent seeks to justify the impugned order on the following grounds:-

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i) The interim order passed by the trial Court under Section 45 of the Rent Act was confirmed by the Revisional Court. Despite that the petitioner did not pay arrears of rent accrued up to date. Thereby, he drove the respondent to file Execution Petition No.431/2016.

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ii) The petitioner himself paid Rs.40,000/- before the Lok-Adalat voluntarily. Therefore, he cannot seek refund of the said amount. Despite the petitioner handing over the possession of the premises, he is liable to pay arrears of rent. In view of Rule 33 of the Karnataka Rent Rules, 2001 (for short, 'Rent Rules'), the Execution Petition was maintainable.

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3 1987 (3) KLJ 549

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4 AIR 1965 SC 440

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iii) The order passed under Section 45 of the Rent Act in the proceedings pending under Section 27 of the Rent Act has attained finality. Therefore, the tenant cannot say that, he is not liable to pay rent or seek an adjustment. The judgments relied on by the petitioner's counsel are not applicable.

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In support of his contentions, he relies

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upon the following judgments:-

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1. Pavan Kumar Gupta Vs. B.R. Gupta⁵

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2. C.S. Sheshagiri Vs. Smt. Jayalakshmi By LRS. [HRRP No.31/2011 D/D: 07.01.2016]⁶

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3. Lakshminarayana Sony and Another Vs. C. Basha [HRRP No.302/2004 D/D:11/04.2008]⁷

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4. Priyavarte Mehta Vs. Amrendu Banerjee⁸

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Having regard to the rival contentions, the points that would arise for consideration of this Court are:-

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1. Whether the Execution Petition No.431/2016 was an abuse of the process of the Court ?;

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5 CDJ 2017 SC 631

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6 ILR 2016 KAR 1866

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7 2009(1) KLJ 673

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8 AIR 1994 Patna 114

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W.P.No.47611/2018

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1. Whether the respondent is liable to refund Rs.40,000/- paid by the petitioner ? and

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1. Whether the petitioner is entitled to seek refund of the rent deposited in Execution Petition No.431/2016 by virtue of the interim order passed in this case ?

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Regarding Point No.1

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Admittedly, the petitioner has suffered an order of eviction under Section 45 of the Rent Act for non-payment of arrears of rent accrued during the pendency of proceedings in HRC No.40/2014. He preferred Rent Revision Petition No.7/2015 before the IV Additional District Court, Mysuru, which came to be dismissed on merit as per order Annexure-B dated 24.06.2016 and that order has attained finality.

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Since petitioner neither paid the arrears of rent nor vacated the premises as ordered by the trial Court and the Revisional Court, on 26.11.2016 the respondent filed Execution Petition No.431/2016. Admittedly, the memo reporting vacating the premises

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was filed on 28.04.2017. That goes to show that the petitioner himself was guilty of non-compliance of the orders of the Court.

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It is important to note that, the petitioner himself has paid Rs.40,000/- before the Lok-Adalat on 09.09.2017 without questioning the jurisdiction of the Court to entertain the execution petition. Till filing of IA No.3 on 25.11.2017, he did not question the jurisdiction of the Court. That indicates that the petitioner did not suspect the bonafides of the respondent in pursuing the proceedings in Execution Petition No.431/2016. It is not his contention that, he had paid anything out of Court towards discharge of his liability determined under Section 45 of the Rent Act. Therefore, this Court does not find any merit in the contention that the Execution Petition No.431/2016 filed by the respondent is an abuse of the process of the Court.

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Regarding Point No.2:

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The petitioner paid Rs.40,000/- to the respondent before the Lok-Adalat and deposited Rs.50,000/- before the Executing Court to comply the interim order passed by this Court in this writ petition.

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He seeks refund of the same on the ground that, for recovery of the arrears of rent, the execution petition does not lie. It is contended that since HRC Petition No.40/2014 was disposed of, the order passed on interim application merges with the main order, therefore, the question of executing interim order does not arise.

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The interim order under Section 45 of the

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Rent Act was either to pay the rent or to vacate the premises. Since the tenant vacated the premises, the alternate part of the order stood complied. In the main petition, the relief sought was only the eviction of the tenant. Since the tenant vacated, the main

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petition was closed. However, the liability of the tenant to pay the rent does not cease. The tenant vacated to comply part of the interim order. The entire interim order did not merge with the final order. Therefore, there is no merit in the said contention. Such being the position, this Court does not find it necessary to refer the judgments relied by the learned counsel appearing on both sides, on the said point.

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So far as the contention that the petitioner

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had paid certain amount as advance rent, that shall be adjusted in the arrears of rent determined by the trial Court. In para 9 of the judgment in G. Balasundram's case (supra) relied on by the learned counsel for the petitioner himself, this Court relying on the judgment of the Hon'ble Supreme Court reported in AIR 1998 SC 1822 [Tukarama Ramachandra Mane (dead) By LRs. Vs. Rajuram Bapu Lakule (dead) by LRs.] held that the money

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paid on some other account cannot be adjusted towards the rent due. However, every tenant is obliged to pay or tender rent to the Landlord/Landlady within 15 days from the date it falls due. Ultimately in that judgment it was held that the Landlord/Landlady is entitled to recover the rent due, as per the due process of law. Therefore, though Rule 33 of the Rent Rules provides for execution of decrees or orders passed under the Act, as the tenant has already complied the alternate part of the order, the remedy of Land-Lady is to file a suit for recovery of arrears of rent and not execution petition for such relief.

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Regarding Point No.3

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The next point is, whether the petitioner/tenant is entitled for refund of Rs.40,000/paid before the Lok-Adalath and Rs.50,000/deposited in the execution proceedings to comply the interim order of this Court.

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The petitioner has handed over the

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possession of the property and he did not pay the arrears of rent. Whatever amount paid before the Lok-Adalath and deposited before the trial Court is to discharge her liability and such payment/deposit is made by virtue of the orders issued by the competent authority/Court.

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The learned counsel for the respondent submits that, in view of the pendency of this petition, now due to lapse of time, the respondent has lost his right to recover the rent by filing a suit. The amount deposited/paid is the amount which the petitioner is obliged to pay and it was not a gratuitous act. Under such circumstances, directing the respondent to pay the said amount or directing the executing Court to refund the amount to the petitioner, amounts to unjust enrichment which is contrary to Section 70 of

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the Indian Contract Act. Section 70 of the Indian Contract Act reads as follows:-

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“ 70 Obligation of person enjoying benefit of non-gratuitous act,- Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof , the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”

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This Court in exercise of its powers under Articles 226 and 227 of the Constitution of India, cannot permit such unjust enrichment violating Section 70 of the Indian Contract Act. Therefore, the prayer of the petitioner for recovery of Rs.40,000/from the respondent or for refund of the amount deposited in Execution Petition No.431/2016, cannot be granted.

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So far as the prayer for compensation of Rs.1,00,000/- is concerned, this Court has already observed about the conduct of the petitioner in not complying the orders of the Court for payment of arrears of rent. It is already observed that in filing the Execution Petition No.431/2016, the respondent had no intention to abuse the process of the Court. Even that prayer fails.

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Therefore, the writ petition is partly

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allowed.

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The proceedings in Execution Petition No.431/2016 are hereby quashed. The Executing Court is hereby directed to refund Rs.50,000/deposited before it to the respondent Land-lady.

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IA No.3 filed before the trial Court is disposed of accordingly.

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Sd/JUDGE

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pgg/KGR*

Sri Tulasidas R C v. Smt Sulochana

Case brief

What is this about?

What did the court decide?

Sri Tulasidas R C v. Smt Sulochana

Case brief

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