Writ petition under Article 227 challenging the Trial Court's order keeping an application for possession in abeyance due to pendency of separation/eviction suit. Court dismissed the petition finding the维持 of abeyance justified.
Writ petition dismissed; Trial Court order keeping I.A. No. 9 in abeyance upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
DATED THIS THE 04TH DAY OF FEBRUARY 2022
BEFORE
THE HON’BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.18022 OF 2021 (GM-CPC)
BETWEEN:
ALL PETITIONERS No.1 TO 4 ARE R/AT CHANNE GOWDANA DODDI, B.M. ROAD, MADDUR - 564 728.
...PETITIONERS
(BY SRI. S.R.HEGDE HUDLAMANE, ADOCATE) .
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AND:
SRI. J.R. AJOY KUMAR, S/O J.E. RAMASWAMY, AGED ABOUT 50 YEARS, R/AT LAKKAVANAHLLI ROAD, HIRIYUR TOWN, HIRIYUR - 572 143.
…RESPONDENT
(BY SRI.H.M. NEEMATH, ADVOCATE FOR SRI.ZAMEER PASHA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT MANDYA, AT O.S.NO.01/2017 DATED MADE ON I.A.NO.IX VIDE ANNEXURE-L BY EXERCISING THE POWER OF SUPERVISORY JURISDICTION DIRECTING THE RESPONDENT TO HAND OVER THE POSSESSION OF SCHEDULE PROPERTY MENTIONED IN O.S.NO.01/2017 FORTHWITH AND ISSUE SUCH OTHER INCIDENTAL RELIEF WHICH ARE NECESSARY AND TO PROTECT THE INTEREST OF PETITIONERS INCLUDING THE PROPERTY OF PETITIONERS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
The petitioners aggrieved by the order dated
06.09.2021 passed on I.A.No.9 in O.S.No.1/2017 by
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the Principal Senior Civil Judge and CJM, Mandya, have filed this writ 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/- (Rupees Sixty One Lakhs Ten Thousand Five Hundred only) from 10.09.2014 till 10.09.2017. The Trial Court allowed the said application and directed the respondent to pay the arrears of rent of Rs.61,10,500/-, within one month from the date of the order. Failing which, petitioners are at liberty to get the premises vacated. The respondent being
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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 dated 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/- 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 dated 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.67896790/2020. The Hon'ble Apex Court dismissed the
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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 dated 16.07.2021. 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 dated 13.03.2018. 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 dated 13.03.2018. 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
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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 dated 13.03.2018 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
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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.
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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.
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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 dated 13.03.2018. 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.
submissions made by learned counsel for the parties.
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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/- 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/- from 10.09.2014 till 10.09.2017, for the period of 37 months. The Trial Court, vide its order dated 13.03.2018, allowed the application filed by the petitioners and directed the respondent to pay
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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 dated 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/-, 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.67896790/2020. 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.
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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 dated 13.03.2018. 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
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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.
SD/JUDGE
GRD
2 issues framed by the court
Whether the High Court should exercise supervisory jurisdiction under Article 227 to set aside the Trial Court's order keeping an application in abeyance.
Whether allowing the application to vacate premises would amount to decreeing a pending suit for eviction without trial.
1 provisions across 1 enactments
BHAGYALATHA
M.C. NAGESH
M.N. KAILASH
M.N. YASHAS
J.R. AJOY KUMAR
ASHOK S. KINAGI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
