Allowed

M/S Fortune Associates v. Smt K L Renuka

Karnataka HC5 Dec 2023WP/54601/2016

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions concerning rival claims to property. It dismissed the petition by the purchaser (petitioner) overruled by prior restitution, and in the other, quashed a decree due to suspicious litigation conduct involving voluntary appearance of a stranger at a Lok Adalat, imposing costs on the petitioner.

What did the court decide?

Decree dated 21.02.2016 in S.C. No.234/2016 quashed; Petitioner directed to pay Rs.2,50,000 to HLSC Bengaluru.

M/S Fortune Associates Vs Smt K L Renuka — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 54601 OF 2016 (GM-CPC)

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C/W

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WRIT PETITION NO. 36985 OF 2016 (GM-CPC)

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IN WP NO. 54601/2016

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BETWEEN:

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M/S FORTUNE ASSOCIATES REGISTERED PARTNERSHIP FIRM, #10, MOSQUE T ROAD, FRAZER TOWN, BANGALORE -560005 REPRESENTED BY ITS PARTNER KARIM AMJAD KHAN.

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…PETITIONER

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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(BY SRI.VIVEK SUBBA REDDY, SENIOR ADVOCATE FOR SRI. N. DILLI RAJAN, ADVOCATE)

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AND:

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SMT K L RENUKA W/O MUNIRAJ REDDY, AGED ABOUT 50 YEARS, R/AT 6/50, 1^ST CROSS, HENNUR MAIN ROAD, LINGARAJAPURAM, BANGALORE-560084.

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K L KAMALA REDDY W/O LATE PUNNUSWAMY,

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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AGED ABOUT 65 YEARS, R/AT NO.57, KACHARAKANAHALLI, FRAZER TOWN, BANGALORE-560084.

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…RESPONDENTS

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(BY SRI. K. R. KRISHNA MURTHY., ADVOCATE FOR R1; SRI. V. RANGARAMU, ADVOCATE FOR R2)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 19.10.2016 PASSED BY THE XXI ACMM & XXIII SMALL CAUSES COURT, BENGALURU IN EXECUTION PETITION NO.517/2016 VIDE ANNEX-A IN RESPECT OF I.A. FILED UNDER SEC. 144 R/W SEC. 151 OF CPC FILED BY R-1.

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IN WP NO. 36985/2016

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BETWEEN:

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SMT K L RENUKA

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W/O MUNIRAJ REDDY, AGED ABOUT 50 YEARS, RESIDING AT NO.6-50,

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1^ST CROS, HENNUR MAIN ROAD, LINGARAJAPURAM, BANGALORE-560 084.

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…PETITIONER

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(BY SRI. K R KRISHNAMURTHY.,ADVOCATE)

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AND:

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M/S FORTUNE ASSOCIATES A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.10, MOSQUE ROAD, FRASER TOWN,

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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BANGALORE-560005 REPRESENTED BY ITS PARTNERS.

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SMT. K.L. KAMALA REDDY W/O LATE PONNU SWAMY, AGED ABOUT 65 YEARS RESIDING AT NO.57, KACHARAKANAHALLI, FRAZER TOWN, BANGALORE-560 084.

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…RESPONDENTS

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(BY SRI. MALLANAGOUDA H., ADVOCATE FOR R1; SRI. V. RANGARAMU, ADVOCATE FOR R2)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE DECREE DATED 21.2.2016 PASSED BY THE SMALL CAUSES COURT, BENGALURU IN S.C.NO.234/2016 VIDE ANNEXURE-A; DIRECT THE TRAIL COURT TO RESTORE THE POSSESSION OF THE PROPERTY TO THE PETITIONER AND THE R-2.

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THESE PETITIONS, COMING ON FOR

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PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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ORDER

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This Court must at the outset observe that though certain stark circumstances, which show that justice dispensation system is in poor light are seen,

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the petitions are being disposed of with circumspection in view of pending contempt proceedings and a comprehensive suit. The reason for this prefatory reference is that it could be possible that notwithstanding the pending execution proceedings under Order XXI of the Code of Civil Procedure, 1908 [for short, ‘the CPC’ ] for recovery of possession pursuant to a decree in a suit for ejectment, another similar suit is commenced bringing about a conclusion in Lok Adalat and recovering possession in the later execution proceedings, and perhaps this is just one aspect of more disturbing circumstances.

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The petitioner in the writ petition in W.P.

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No.54601/2016 is the plaintiff who has commenced two suits for ejectment before the Small Causes

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Court at Bengaluru and the petitioner in the writ petition in W.P. No.36985/2016 is the person who asserts that she along with her sister [the other party to this proceeding] are affected by the commencement and the outcome of the two suits. The petitioner in the writ petition in W.P. No.54601/2016 has impugned the order dated 19.10.2016 on the file of the XXI Additional Chief Metropolitan Magistrate and XXIII Additional Small Causes Court, Bengaluru in Ex. No.517/2016 which arises from the suit for ejection in S.C. No.234/2016. The petitioner in the writ petition in W.P. No.36985/2016 has impugned the executing Court’s decree dated 21.02.2016 in S.C. No.234/2016. The parties for convenience are referred to as they are arrayed in the writ petition in W.P. No.54601/2016.

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It is seen from the records produced that

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neither the petitioner nor the respondents dispute that Sri Lakshmaiah Reddy is the undisputed original

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owner of the immovable property measuring 8,906 sq. feet bearing Municipal No.69A [PID 89-71-69A] of BBMP Ward No.89, Hennur Main Road, Bengaluru, formerly part of larger area in Sy. No.69 of Kacharakanahalli Village, Kasaba Hobli, Bengaluru – the subject property . According to the respondents, Sri Lakshmaiah Reddy has died leaving behind his last Testament and Will bequeathing the subject property in favour of his wife Smt. Gowramma, who in the year 2002, has gifted the subject property under the registered Gift Deed dated 04.03.2002 in their favour. The respondents contend that they had inducted their tenant Sri Nanjundaswamy in possession of the premises in the subject property.

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The petitioner asserts that it has purchased the subject property from Sri Lakshmaiah Reddy under the Sale Deed dated 19.02.2015 and

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such sale deed is executed on behalf of Sri Lakshmaiah Reddy by his Power of Attorney holder,

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Sri Venkatesh, whose interest as attorney was coupled with irrevocable interest inasmuch as he had paid the full sale consideration to Sri Lakshmaiah Reddy. Thus, the rival claim is set up to the subject property, and this rival claim will have to be adjudicated in the respondents’ later suit in O.S. No.4027/2016 which is pending consideration.

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The petitioner has commenced the suit for ejectment in S.C. No.1157/2015 against Sri Paul John Jacob, son of late John Jacob on the file of another Small Causes Court, Bengaluru. This suit is referred to Lok Adalat, and the decree for ejectment is drawn on 03.10.2015 in terms of the compromise reported by the petitioner and aforesaid Sri Paul John Jacob. According to the respondents, during the pendency of this suit in S.C. No.1157/2015 in the month of September 2015, the petitioner’s representative with their men gathered in the subject

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property threatening their tenant, Sri

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Nanjundaswamy, to vacate, and therefore, they had to approach the jurisdictional Police.

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In the meanwhile, the petitioner has filed execution proceedings in Ex. No.2303/2015 putting to execution the decree for ejectment drawn on 03.10.2015 in the Lok Adalat in S.C. No.1157/2015. The respondents, on coming to know about the initiation of the suit and the decree of the execution case, have filed their applications under Order XXI Rules 97-101 of CPC obstructing delivery of possession. The respondents have also filed application for keeping the delivery warrant in abeyance. The concerned Small Causes Court has allowed this application and the enquiry on the respondents’ application obstructing delivery of possession is scheduled for enquiry.

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The petitioner, when this enquiry is under way, in a rather disturbing turn of events, which must be duly considered at every stage and in every

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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pending proceedings, has commenced the subsequent suit in S.C. No.234/2016 for ejectment against the respondents but showing that they are represented by their Power of Attorney holder, Sri Padmanabhan. The respondents contend that this Sri Padmanabhan is a stranger to them. However, Sri Padmanabhan has appeared before the Small Causes Court even before the notice is served in the regular course and has consented for reference to the Lok Adalat. The reference is made to the Lok Adalat on 18.02.2016 and on 21.02.2016 compromise is filed with Sri Padmanabhan agreeing to deliver possession of the subject property to the petitioner on behalf of the respondents.

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misadventure, has filed execution proceedings in Ex. No.517/2016 to enforce this decree, and in execution of the delivery warrant issued, the respondents are dispossessed. However, the respondents have filed

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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an application for restitution of possession with separate application for transfer and clubbing of this execution petition with execution petition in No.2303/2015. The executing Court had issued delivery warrant directing the petitioner to deliver possession of the subject property to the respondents.

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The petitioner has called the executing Court’s order before this Court in the writ petition in W.P. No.54601/2016 [one of the present writ petitions], but without pursuing the same. Later, the executing Court, by the order dated 19.10.2016 which is impugned in the writ petition in W.P. No.54601/2016 has disposed of the applications directing the petitioner and the respondents to participate in the comprehensive suit in O.S. No.4027/2016 for adjudication of their rival claims to the subject property observing that the Court bailiff shall be at liberty to break open the lock if the

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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premises is found to be locked, and if necessary with the help of the Police, for restitution of the possession of the subject property to the respondents under Section 144 of CPC.

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This Court in the writ petition in W.P.

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No.54601/2016 at the first instance had granted interim order which in effect prevented the restitution of the subject property to the respondents, but as recorded by this Court on 24.01.2022, the executing Court’s order for restitution, after the expiry of the time for which the interim order was in operation, has been given effect to and the respondents had recovered possession on 11.11.2019. The petitioner, this Court must observe that perhaps for good reasons, has not sought for any intervention with the restitution of the subject property to the respondents over the last three years. This Court is of the opinion that with this turn of events, the writ petition in W.P.

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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No.54601/2016 will not survive for consideration and

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hence must be disposed of accordingly.

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The circumstances in which the

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proceedings in S.C. No.234/2016 is commenced and which conduct is continued must be examined suit in the light of the respondent’s suit in O.S. No.4027/2016 which is pending consideration to decide on the respondents’ grievance with this decree. In this backdrop, this Court must first mention:

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[i] that the subject property is described differently,

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[ii] that the earlier suit for ejectment in S.C. No.1157/2015 is commenced against a certain Sri Paul John Jacob describing him as being in possession of the premises therein,

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[iii] that despite the respondents’ applications in Ex Petition No. 2303/2015 [arising from the suit in SC No. SC No. 1157/2015] pending consideration, suit in SC No. 234/2016 is commenced and

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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this time against Sri Padmanabhan who appears, as contended by the respondents, on his own volition even before he is served with summons,

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[iv] Sri Padmanabhan enables a reference to Lok Adalat and bringing about a decree for ejectment by consensus, and

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[v] that the execution petition in Ex. No.2303/2015 is filed and the respondents are ejected from the subject property on 13.10.2015.

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It is obvious that the entire exercise with commencement of the suit in SC No. 1157/2015, has resulted in issuance of delivery warrant in Ex. No. 2303/2015 even before the expiry of a month. Further, it is during this period that the later suit in S.C. No.234/2016 is filed against the respondents but showing them as represented by Sri Padmanabhan as their Power of Attorney. This Court, with all due circumspection because of the

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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pending proceedings in CCC No.1/2017 and the comprehensive suit in O.S. No.4027/2016, must observe that the misadventure is rather obvious and stark. Sri Padmanabhan again appears on his own volition in the subsequent suit in SC No. 234/2016 even before the summons are issued and brings about the culmination of the suit with the decree being drawn in Lok Adalat within fifteen days from the date of commencement of the suit.

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This Court is of the considered view that the aforesaid circumstances, amongst others, must entail necessary consequences in law and some of these consequences would undoubtedly be quashing the decree [ lest it be a technical hindrance in the future] and imposition of cost as this conduct undoubtedly muddles the fountain of justice dispensation. Sri K R Krishnamurthy, the learned counsel for the respondents, and Sri Vivek Subba

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Reddy, the learned Senior Counsel for petitioner, are heard on the quantum of cost.

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If Sri K R Krishnamurthy submits that the cost must be exemplary and payable to the High Court Legal Services Committee for just utilization, Sri Vivek Subba Reddy submits that this Court must consider that the petitioner has accepted the restitution and not taken any action and this would be a mitigating circumstance. Considering these circumstances, this Court is of the considered view that the petitioner must pay cost of Rs.2,50,000/- to the High Court Legal Services Committee, Bengaluru within a reasonable time, and this Court must also observe that if the petitioner defaults in tendering this cost within this reasonable time, the same must be recovered as land revenue arrears under the relevant law as against the assets of the petitioner and its partners. Hence the following:

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NC: 2023:KHC:43810 WP No. 54601 of 2016 C/W WP No. 36985 of 2016

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ORDER

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[a] The petition in W.P. No.54601/2016 is dismissed;

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[b] The petition in W.P. No.36985/2016 is allowed and the decree dated 21.02.2016 in S.C. No.234/2016 is quashed directing the petitioner in W.P. No.54601/2016 to pay a sum of Rs.2,50,000/- as cost with the High Court Legal Services Committee, Bengaluru.

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[c] The petitioner in W.P. No.54601/2016 shall pay this cost within a period of eight [8] weeks, failing which the same shall be recovered as arrears of land revenue in accordance with law.

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Sd/JUDGE

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AN/-

M/S Fortune Associates v. Smt K L Renuka

Case brief

What is this about?

What did the court decide?

M/S Fortune Associates v. Smt K L Renuka

Case brief

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What did the court decide?

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