Allowed

Sri Raghavendra Venkatesh Burli v. Mr Hanamantha Mulchand Garag

Karnataka HC6 Oct 2023RSA/1955/2007

Case brief

AI extract

What is this about?

The High Court allowed two regular second appeals, setting aside the judgments of the First Appellate Court that had decreed a suit for injunction. The Court held that since the defendant-owner had already obtained a final eviction decree via a special leave petition dismissed by the Apex Court, compelling him to undergo fresh eviction proceedings violated the principle of double jeopardy. The tri

What did the court decide?

Judgments and decrees of Fast Track Court-II and First Appellate Court set aside; Judgments and decrees of the Trial Court confirmed.

Sri Raghavendra Venkatesh Burli Vs Mr Hanamantha… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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IN THE HIGH COURT OF KARNATAKA, R DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR SECOND APPEAL NO.1954/2007 C/W REGULAR SECOND APPEAL NO.1955/2007

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IN RSA.NO.1954/2007:

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BETWEEN:

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SRI RAGHAVENDRA VENKATESH BURLI, S/O SRI VENKATESH BURLI. SINCE DECEASED BY HIS LRS.

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1A. SMT. SHARADA W/O RAGHAVENDRA BURLI, AGE: 72 YEARS, OCC: HOUSEWIFE, R/O: HALPETH, BAGALKOT, DIST AND TALUK: BAGALKOT.

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1B. SRI VIJAYANAND S/O RAGHVENDRA BURLI, AGE: 44 YEARS, OCC: BUSINESS, R/O: HALPETH, BAGALKOT, TALUK AND DIST: BAGALKOT.

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Digitally signed by BHARATHI H M

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1C. SMT. VAISHALI D/O ASHOK KATTI, AGE: 42 YEARS, OCC: HOUSEWIFE, R/O: 801, ‘ASHUSHA’ BEML ROAD, 3^RD MAIN 3^RD STAGE, RAJA RAJESHWARI NAGAR, BENGALURU.

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1D. SMT. MADHURI W/O ANAND KATTI, AGE: 40 YEAR OCC: HOUSEWIFE, R/O: D-9, MADHUSUDAN, HOOGAR PLOTS, SHAKAMBARI LAYOUT, UDAY NAGAR, HUBLI, DISTRICT: DHARWAD.

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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1E. SMT. BHARGAVI W/O PRAVEEN JAHAGIRDAR, AGE: 36 YEARS, OCCUPATION: HOUSEWIFE, R/O, C/O: JAY PRAKASH DESHPANDE, G-FLOOR , 638, MAHALAXMI LAYOUT, NEAR, SWIMMING POOL, BENGALURU.

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…APPELLANTS

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[BY SRI SHRIVATSA HEGDE, ADVOCATE FOR (A1(B) TO A1(E)]

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AND:

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MR. SHEKARAYYA NINGAYYA TAWARGERI, S/O. MR. NINGAYYA TAWARGERI, AGED: 54 YEARS, OCC: CLERK, R/AT: WARD NO.10, T. P. 39A, BAGALKOT, DIST: BAGALKOT – 587 101.

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MR. SHARANAYYA NINGAYYA TAWARGERI, AGE: 52 YEARS, S/O MR. NINGAYYA TAWARGERI, OCC: CLERK, R/W: WARD NO.10, T. P. NO.29/18, BINNY COMPANY, BAGALKOT, DIST: BAGALKOT – 587 101.

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MR. NALINIKANTH BALAKRISHNA GUJJAR, S/O. MR. BALAKRISHNA GUJJAR, AGED: 70 YEARS, OCC: BUSINESS, R/AT: ARALAKATTI, DIST: BAGALKOT – 587 101.

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MR. RAJESH NALINIKANTH GUJJAR, S/O. MR. NALINIKANTH GUJJAR, AGED: 37 YEARS, OCC: BUSINESS, R/AT: ARALAKATTI, BAGALKOT, DIST: BAGALKOT – 587 101.

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…RESPONDENTS

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(R1, R2 AND R4 ARE SERVED; R3 IS ABATED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE FAST TRACK COURT – II, BAGALKOT IN R.A.NO.152/2005 DATED 12.04.2007 AND RESTORE THE JUDGMENT AND DECREE DATED 30.09.2005 PASSED THE PRIL. CIVIL JUDGE JR.DN., BAGALKOT IN O.S.NO.76/2000, IN THE INTEREST OF JUSTICE.

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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IN RSA.NO.1955/2007:

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BETWEEN:

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SRI RAGHAVENDRA VENKATESH BURLI, S/O SRI VENKATESH BURLI. SINCE DECEASED BY HIS LRS.

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1A. SMT. SHARADA W/O RAGHAVENDRA BURLI, AGE: 72 YEARS, OCC: HOUSEWIFE, R/O: HALPETH, BAGALKOT, DIST AND TALUK: BAGALKOT.

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1B. SRI VIJAYANAND S/O RAGHVENDRA BURLI, AGE: 44 YEARS, OCC: BUSINESS, R/O: HALPETH, BAGALKOT, TALUK AND DIST: BAGALKOT.

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1C. SMT. VAISHALI D/O ASHOK KATTI, AGE: 42 YEARS, OCC: HOUSEWIFE, R/O: 801, ‘ASHUSHA’ BEML ROAD, 3^RD MAIN 3^RD STAGE, RAJA RAJESHWARI NAGAR, BENGALURU.

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1D. SMT. MADHURI W/O ANAND KATTI, AGE: 40 YEAR OCC: HOUSEWIFE, R/O: D-9, MADHUSUDAN, HOOGAR PLOTS, SHAKAMBARI LAYOUT, UDAY NAGAR, HUBLI, DISTRICT: DHARWAD.

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1E. SMT. BHARGAVI W/O PRAVEEN JAHAGIRDAR, AGE: 36 YEARS, OCCUPATION: HOUSEWIFE, R/O, C/O: JAY PRAKASH DESHPANDE, G-FLOOR , 638, MAHALAXMI LAYOUT, NEAR, SWIMMING POOL, BENGALURU.

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…APPELLANTS

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[BY SRI SHRIVATSA HEGDE, ADVOCATE FOR (A1(B) TO A1(E)]

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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AND:

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MR. HANAMANTH MULCHAND GARAG, S/O. MR. MULCHAND GARAG, AGE: 52 YEARS, OCCN: BUSINESS, R/W: WARD NO.10, T.P.NO.39, BAGALKOT, DIST: BAGALKOT – 587 101.

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MR. SUBHAS MULCHAND GARAG, AGE: 41 YEARS, S/O: MR. MULCHAND GARAG, OCCN: CLERK, R/W: WARD NO.10, T.P.NO.39, BAGALKOT, DIST: BAGALKO – 587 101.

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MR. NALINIKANTH BALAKRISHNA GUJJAR, S/O. MR. BALAKRISHNA GUJJAR, SINCE DECEASED R4 IS TREATED AS LR.

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MR. RAJESH NALINIKANTH GUJJAR, S/O. MR. NALINIKANTH GUJJAR, AGED: 37 YEARS, OCCN: BUSINESS, NEAR ARALAKATTI, BAGALKOT, DIST: BAGALKOT – 587 101.

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…RESPONDENTS

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(R1 AND R4 ARE SERVED; R2 NOTICE TO DISPENSED WITH; R4 IS LRS OF DECEASED R3)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE FAST TRACK COURT – II, BAGALKOT IN R.A.NO.150/2005 DATED 12.04.2007 AND RESTORE THE JUDGMENT AND DECREE DATED 30.09.2005 PASSED THE PRIL. CIVIL JUDGE JR.DN., BAGALKOT IN O.S.NO.74/2000, IN THE INTEREST OF JUSTICE.

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

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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JUDGMENT

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RSA No.1954/2007 is filed by the Defendant No.1 challenging the Judgment and Decree passed in R.A.No.152/2005 dated 12.04.2007 by the Fast Track

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Court No.II, Bagalkot, at Bagalkot (for short ‘First Appellate Court’), reversing the Judgment and Decree passed in O.S.No.76/2000 dated 30.09.2005 by the Court of the Civil Judge (Jr. Dn.), Bagalkot, at Bagalkot (hereinafter for short ’Trial Court’).

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RSA No.1955/2007 is filed by the Defendant no.1 calling in question the Judgment and Decree passed in R.A.No.150/2005 dated 12.04.2007 by the Fast Track Court No.II, Bagalkot, at Bagalkot (First Appellate Court), which reversed the Judgment and Decree passed in O.S.No.74/2000 dated 30.09.2005 by the Court of the l Civil Judge (Jr.Dn.), Bagalkot, at Bagalkot (Trial Court).

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The trial court dismissed the suit. The First Appellate Court reversed the judgment and decree of trial Court and decreed the suit.

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Even though, the above stated two regular second

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appeals are arising out of two different set of judgment and decrees passed by the First Appellate Court and trial Court, but the subject matter, relief claimed, defendants and suit property, question of fact and law involved are one and the same. Only plaintiffs are different in the suits as they are claiming to be sub-tenants of defendant Nos.2 and 3 and defendant No.1 is the owner of the suit property. Therefore, both appeals are taken up together to avoid repetition in discussion and reasoning.

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Ranking of the parties are referred as per their rankings before the trial Court for easy reference and convenience.

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Brief facts as set out in the plaint in both the cases are that the plaintiffs are sub-tenants of defendant Nos.2 and 3 and defendant Nos.2 and 3 are sub-tenants of their lessor. Defendant No.1 is the owner of the suit property. Therefore, the plaintiffs have contended that they are in possession over the suit property and their possession is

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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settled possession and hence, unless due process of law is initiated by the defendant No.1, the plaintiffs cannot be evicted. Hence, the plaintiffs filed suit for mandatory injunction.

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It is the case of the defendant No.1 in simple narration that the predecessors of the defendant No.1 were the owners of the suit property and it was given on lease bases to M/s. Binny Company of Madras for a period of 90 years from 15.07.1889 to 15.07.1979. The said

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lessee M/s.Binny Company has sub-let to the predecessors of the defendant Nos.2 and 3. Thus, the predecessors of defendant Nos.2 and 3 have become sub-tenants. Ultimately, the defendant Nos.2 and 3 being sub-tenants through their predecessors have once again the subtenants to the plaintiffs. Therefore, the defendant No.1 was constrained to file suit in OS No.120/1959 for eviction of tenants and sub-tenants and the said suit is dismissed. Against that, HRC Appeal No.13/1972 is filed before the Court of District judge, Bagalkote and the said appeal is

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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also dismissed. Against that the defendant No.1 preferred CRP No.39/1976 before this Court and this court has set aside the judgment and decree of both District Court and Civil Court. Thereby, passed an order of eviction in favour of defendant No.1. Against this, the predecessor of plaintiffs has filed Special Leave Petition before the Hon’ble Apex Court and it was dismissed. Therefore, the eviction order passed in CRP No.39/1976 is confirmed. Therefore, the defendant No.1 prays to allow the appeal and set aside the judgment and decree of First Appellate Court by confirming the judgment and decree of the trial court.

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The trial Court has dismissed the suit on the reasons that the defendant No.1 has been favoured by this Court in CRP No.39/1976 which is for suit for eviction and once again the plaintiffs cannot maintain adjudication of suit for injunction when already there is an order of eviction and once again adjudication on this issue is not permissible. Hence, dismissed the suit.

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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The plaintiffs being aggrieved by the dismissal of suit have preferred regular appeal before First Appellate Court, the First Appellate Court has reversed the judgment and decree passed in the suit and decreed the suit on the reason that the defendant No.1 has to initiate due process of law for eviction of plaintiffs by observing that the plaintiffs are in settled possession.

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Against this judgment and decree passed by the First Appellate Court, the defendant No.1 has preferred these second appeals raising ground that defendant no.1 has already obtained decree of eviction of plaintiffs. Therefore, once again adjudicating on the same issue in respect of the same suit property against the same plaintiffs is amounting to double jeopardy and this is not properly appreciated by the First Appellate Court. Hence, prays to allow the appeal by setting aside the judgment and decree of the First Appellate Court by confirming the judgment and decree of the trial Court.

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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This court on 05.07.2007 in RSA No.1954/2007 while

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admitting the appeal has framed the following substantial question of law:

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“Whether the first appellate Court is justified in reversing the judgment passed by the trial Court ignoring the orders passed by this Court in CRP No.39/1976 and CRP No.3215/1999?”

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This Court on 06.01.2014 in RSA No.1955/2007, while admitting the appeal has framed the following substantial question of law:

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“i. Whether the plaintiffs-respondents in these appeals can maintain a suit for permanent injunction on the basis of alleged settled possession and thereby obstruct execution of the eviction decree passed against the tenant, without there being any independent interest in the plaint schedule property basing their claim on the said sub-tenancy?”

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The above said substantial questions of law are

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based on the same set of pleadings, same set of evidence and same principles of law involved. Therefore, they are

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taken up together for common discussion in order to avoid repetition.

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The learned counsel for the appellant-defendant No.1 submitted that, the First Appellate Court has wrongly observed that the defendant No.1 shall undergo once again due process of law for the reason that the defendant no.1 has already initiated suit for eviction and it was adjudicated culminating into filing of CRP No.39/1976 and based on that, execution proceedings were initiated and in executing proceedings, Court Commissioner was appointed to measure the property before delivery of possession to the defendant No.1. Therefore, defendant No.1 has already taken possession of suit property. But, the plaintiffs by creating false documents showing that they are in possession have filed suit for eviction. Therefore, order of the First Appellate Court is amounting to double jeopardy of issue involved in the case. Therefore, submitted that when already the eviction proceeding has attained finality and the plaintiffs have been favored in the

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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suit for eviction in CRP No.39/1976 by this court, the observation made by the First Appellate Court is amounting once again to go on trial of due process of law is not permissible. Therefore, prays to set aside the judgment and decree passed by the First Appellate Court by confirming the judgment and decree of the trial Court.

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Upon the observations made by the First Appellate Court, as the reasoning given by the First Appellate Court that the defendant No.1 shall undergo once again filing suit for evicting. The learned counsel for the appellant places reliance on the following judgment of Hon’ble Supreme Court:

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1. Padhiyar Prahladji Chenaji(deceased) through legal representatives Vs. Maniben Jagmalbhai(deceased) through legal representatives and others reported in (2022) 12 SCC 128.

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The respondents are served with notice. But, they remained absent.

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17. From the pleadings in both the cases of plaintiffs and

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defendants, undisputed facts are emerged as follows:

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a) Predecessor of defendant No.1 namely

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Venkobacharya and Ananthacharya Burli being the owners of the suit property have given the said property on lease for 90 years to one M/s. Binny Company. The said lease agreement contains a clause prohibiting sub-lease of the property.

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b) The said M/s Binny Company in violation of terms and conditions of lease agreement has sub-let the suit property to one Sheelavanth in the year 1929 and the said Sheelavanth has sub-let half of the suit property in favour of Balakrishnadas Gujjar in the year 1932.(Predecessor of defendant Nos.2,3 and 4).

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c) The respondent Nos.3 and 4 (defendant Nos.2 and 3) have once again sub-leased the property to the present plaintiffs.

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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d) The defendant No.1 has filed the suit in OS No.120/1959 for eviction of sub-tenants and also persons who are claiming as sub-tenants through defendant Nos.2 and 3 and the said suit is dismissed which is confirmed by the District judge, Bagalkote in HRC appeal No.13/1972.

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e) The defendant No.1 has filed CRP No.39/1976 before this Court and this Court on 22.07.1989 allowed the CRP No.39/1976 and set aside the judgment and decree of both Civil Court and District Judge Court and held that the defendant No.1 being the landlord entitled to recover the possession of the suit property.

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f) Against this order passed in CRP No.39/1976, the defendant Nos.2 and 3 have preferred SLP before the Hon’ble Apex Court and the Hon’ble Apex Court has dismissed the SLP confirming the order passed in CRP No.39/1976.

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The above facts are not disputed by the plaintiffs.

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Upon perusing the pleadings of plaintiffs, they have

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admitted that the defendant No.1 as the owner of the suit property. But, their only contention is that they are in settled possession over the suit property as sub-tenants under defendant Nos.2 and 3.

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The trial Court has dismissed the suit of the plaintiffs on the ground that the defendant No.1 has already been favoured in CRP No.39/1976. Therefore, an order of injunction cannot be granted against the true owner. But, the First Appellate Court has reversed the judgment and decree of the trial Court by holding that the plaintiffs are in settled position, even they are to be considered as trespasser, they cannot be evicted unless due process of law is followed by the defendant No.1.

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Admittedly, it is proved that the defendant No.1 is the owner of the suit property. The plaintiffs are third generation sub-tenants. The defendant Nos.2 and 3 are also not owners of the property. But, they are also subtenants through their predecessors. The predecessor of

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defendant Nos.2 and 3 were also sub-tenants under one Sheelavanthappa and Balakrishnadas Gujjar. Therefore, it is not the case of the plaintiffs that they are owners of the suit property but their claim of possession is based on the sub-tenants. When this being the fact, the defendant No.1 is proved to be landlord has filed suit for eviction in OS No.120/1959 and the said suit is dismissed which is confirmed in HRC appeal No.13/1972 by the District judge, Bagalkote. Against this judgment and decree, the defendant No.1 has preferred CRP No.39/1976 before this Court and this Court has set aside the judgment and decree passed in OS No.120/1959 and HRC appeal No.13/1972 and ordered that the defendant No.1 is entitled for possession of the suit property. The order passed by this Court in CRP No.39/1976 has attained the finality as Special Leave Petition preferred before the Hon’ble Apex Court against this order is also dismissed. Therefore, for eviction of plaintiffs, there was complete adjudication of eviction proceedings and defendant No.1 has got favoured in getting the eviction of sub-tenants

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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who are in the suit property. This is rightly considered by

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the trial Court and the trial Court is correct in dismissing the suit.

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But, the First Appellate Court has committed an error in observing that the plaintiffs are in settled possession over the suit property and hence, they cannot be evicted unless following due process of law by defendant No.1. The order of First Appellate Court is nothing but compelling the defendant No.1 to proceed once again with adjudication process of eviction which has been already attained finality in CRP No.39/1976. Therefore, the order of First Appellate Court is nothing but amounting to double jeopardy on the same issue and on the same subject matter, same property between the same parties.

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What is due process of law, is explained by the Hon’ble Supreme Court in the case of Padhiyar Prahladji Chenaji(supra ). In para 28 of the judgment, it is observed as follows:

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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In the said decision, in Maria Margarida, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :-

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“28. The expressions ‘due process of law’, ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing— ejectment from settled possession can only be had by recourse to a court of law. Clearly, ‘due process of law’ or ‘due course of law’, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

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Now, this ‘‘due process’’ or ‘‘due course’’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right

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(injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the “bare minimum” requirement of ”due process” or “due course” of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the “recourse to law” stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.”

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In the above cited decision, the defendant is held to be the true owner on the basis of the registered sale deed and therefore, the plaintiff is not entitled to any permanent injunction against true owner. Therefore, in the

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above said decision, when the defendant is held to be true owner on the basis of the registered sale deed and therefore the right of the defendant is determined as he is the owner of the property upon adjudication. Therefore, the plaintiff is not entitled for the relief of permanent injunction. The core of the case in the present case is also having similar circumstances that the defendant No.1 has already obtained decree of eviction in CRP No.39/1976 and therefore, the plaintiffs are not entitled for relief of permanent injunction. When the defendant No.1 has initiated due process of law and succeeded in CRP No.39/1976, then once again compelling the defendant No.1 to initiate proceedings of eviction and adjudicate upon it cannot be permitted as it is amounting to double jeopardy. Therefore, in this regard, the First Appellate Court has committed error, once again compelling defendant No.1 to undergo one more adjudication of eviction of plaintiffs. The order directing the defendant No.1 once again to undergo due process of law which has already been adjudicated is nothing but abuse of process

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of Court and law. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside.

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The Hon’ble Apex court by following the principles of law laid down in the case of Maria Margadia Sequeria Vs Erasmo Jack De Sequeria (D) reported in 2012(5) SCC 370 were pleased to observe and laid down the principle of law regarding what is due process of law, which is discussed from paragraph Nos.26 to 30 which are extracted below:

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“26. This Court in Anima Mallick v. Ajoy Kumar Roy and Another (2000) 4 SCC 119 held that where the sister gave possession as gratuitous to the brother, this Court restored possession to the sister as it was purely gratuitous basis and the sister could have reclaimed possession even without knowledge of the brother.

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According to the appellant, this Court in Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others (2004) 3 SCC 137 has observed that no injunction can be granted against the true owner and Section 6 of the Specific Relief Act cannot be invoked to protect the wrongdoer who suppressed the material facts from the Courts.

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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The appellant submitted that Section 41 of the Specific Relief Act debars any relief to be given to such an erring person as the respondent who is guilty of suppression of material facts.

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The appellant relied on Automobile Products India Limited v. Das John Peter and Others (2010) 12 SCC 593 and Ramrameshwari Devi and Others v. Nirmala Devi and Others (2011) 8 SCC 249 where the Court has laid down that dilatory tactics, misconceived injunction suits create only incentives for wrongdoers.

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The appellant submitted that for more than two decades the appellant is without the possession of her own house despite the fact that she has valid title to the suit property.”

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The factual matrix’s in the above stated case in

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Padhiyar Prahladji Chenaji(supra ) and in the present case are more or less similar one.

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In the above cited case, the plaintiffs have filed suit for declaration and permanent injunction against the defendant. The defendant is the true owner. Therefore, it was held that there was already matter was adjudicated and attained finality. Therefore, initiation of suit once again by the defendant No.1 for declaration and permanent injunction is unwarranted and thus, plaintiffs

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are not entitled for the relief of permanent injunction and declaration.

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In the present case also, the defendant No.1 has succeeded in eviction proceedings in CRP No.39/1976 and once again compelling the defendant No.1 to undergo adjudication of eviction proceedings under the guise of nomenclature as ‘due process of law’ is not warranted.

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Thus, in this regard, the First Appellate Court has committed a serious error. If the defendant No.1 initiates fresh eviction proceedings, then the same amounts to double jeopardy and evidence are to be led what already have been done in earlier proceedings with same contention in respect of same suit property between the same parties who are sub-tenants. Therefore, this is amounting to double jeopardy. The doctrine of double jeopardy is a rule that states that no one shall be put twice in peril for the same offence. Here, in the present case, the word for the same offence can be replaced with word for the same subject matter and same cause of

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action. The principle of double jeopardy is preventing no one shall be put twice in peril. In the present case, the First appellate court on the guise of following due process of law has once again put the defendant No.1 in peril to undergo once again the eviction proceedings. Therefore, if spirit of Article 20(2) of the Constitution of India is applied, the said double jeopardy is applicable in the present case also.

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One of the paramount objects of following due process of law is preventing the owner to take law into his hands by forcibly evicting the tenants. But in the present case, defendant No.1 has already undergone by following due process of law by initiating eviction proceedings as discussed above, which has attained finality in CRP No.39/1976. Therefore, literally, there is no question of once again following due process of law in the instant case. It is not the case of the plaintiffs that without eviction order, the defendant No.1 is trying to evict the sub-tenants/plaintiffs. There are multiple sub-tenants in

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NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

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the present case. When once the suit is filed against tenants and sub-tenants, then the owner need not once again file the suit against further sub-tenants. Subtenancy flows from the sub-tenants. Therefore, compelling the defendant No.1 to undergo once again the eviction adjudicatory process as held by First Appellate Court is not correct as it is against the spirit of Article 20(2) of the Constitution of India.

¶155

Further, the order of the First Appellate Court is nothing but issuing injunction against the true owner who is defendant No.1 even when the defendant No.1 is having benefit of order passed by this Court in CRP No.39/1976. Therefore, the First Appellate Court has impliedly diminished the order passed by this Court in CRP No.39/1976 by which the defendant No.1 is entitled for eviction of the sub-tenants/plaintiffs.

¶156

Therefore, the approach of the First Appellate Court is against the settled principle of law as discussed above amounting to illegal and perverse in nature and thus liable

¶157

26 - NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

¶158

to be set aside and accordingly set aside. Thereby, the substantial questions of law are answered that the First Appellate Court is not justified in reversing the judgment and decree passed by the trial Court and also suit for permanent injunction on the basis of alleged possession is not maintainable. Therefore, the judgment and decree passed by the trial Court is needed to be restored / confirmed. Hence, I proceed to pass the following:

¶159

ORDER

¶160

i) RSA No.1954/2007 and RSA No.1955/2007 are hereby allowed.

¶161

ii) The judgments and decree passed by the Fast Track Court-II, Bagalkot in RA No.152/2005 and 150/2005 dated 12.04.2007 reversing the judgment and decree dated 30.09.2005 passed by the Civil Judge, Junior Division, Bagalkote in OS No.76/2000 and OS No.74/2000 respectively are hereby set aside.

¶162

- 27 - NC: 2023:KHC-D:11954 RSA No. 1954 of 2007 C/W RSA No. 1955 of 2007

¶163

iii) Judgments and decree dated 30.09.2005 passed by the Civil Judge, Junior Division, Bagalkote in OS No.76/2000 and OS No.74/2000 respectively are hereby confirmed.

¶164

iv) No order as to costs.

¶165

v) Draw decree accordingly.

¶166

SD/JUDGE

¶167

BNV- up to para.2 HMB- Para3 to end CT-ASC

Sri Raghavendra Venkatesh Burli v. Mr Hanamantha Mulchand Garag

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Sri Raghavendra Venkatesh Burli v. Mr Hanamantha Mulchand Garag

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