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Karnataka High Court
Basheer Ahmed Sharif - Appellant
Versus
Mohammed Yousuf - Respondent
Decided On : 09-10-93
M.F.A. : 1205 of 1993
Order 43, Rule 1 (r) - Appeal against interim injunction - Suit for declaration and permanent injunction - Adjustment of decree - Bar of maintainability - Third party rights - Certification of adjustment - Suit barred under Section 47, CPC - Injunction set aside
Fact of the Case:
The appellant filed a petition for eviction against respondent 1 and obtained an eviction order. Respondent 1 approached the appellant, paid Rs. 50,000 as advance, and agreed to pay enhanced rent. A document was executed reciting these terms. The respondents filed a suit for declaration and permanent injunction. The trial court issued a temporary injunction restraining the appellant from interfering with their possession. The appellant contended that the suit was not maintainable and the document was forged.
Finding of the Court:
The court found that the document created rights in favor of the respondents and held the suit maintainable. The court also considered the bar of maintainability under Order 21, Rule 2, CPC and Section 47, CPC. The court concluded that the suit was barred under Section 47, CPC and set aside the injunction order.
Issues: (1) Whether the suit was maintainable? (2) Whether the adjustment of decree barred the suit? (3) Whether the respondents were entitled to the injunction?
Ratio Decidendi: The court held that the adjustment of the decree required certification and the suit was barred under Section 47, CPC. The court also found that the respondents were not entitled to the injunction as execution of the decree did not cause legal injury or loss to the respondents.
Final Decision: The appeal was allowed, the injunction order was set aside, and the prayer for stay was rejected.
( 1 ) THIS appeal, under Order 43, Rule 1 (r), CPC, is directed against the order dated 13-7-1993 passed in O. S. No. 1993/93 on the file of the learned 15th Additional City Civil Judge, bangalore, allowing I. A. II filed under Order 39, Rules 1 and 2, cpc and granting interim injunction restraining the appellant from interfering with the peaceful possession and enjoyment of the suit schedule property by the respondents.
( 2 ) THE facts giving rise to this appeal are:the appellant filed a petition in HRC 10477/93 in the court of the Additional Small Causes Judge, Bangalore City against respondent 1 and obtained an order of eviction in respect of the premises involved in the present proceedings on 18-8-1990 after protracted litigation for 7 years. Respondent-1 came up in revision before this court in CRP No. 5414/90 and on a compromise the present appellant agreed to grant time upto 1-6-1993 to vacate the premises. On a joint memo filed before this court time to vacate the premises was allowed upto 1-6-1993 and eviction order was confirmed by dismissing the revision petition on 31-1-1991.
( 3 ) RESPONDENT-1 on the allegations that eviction decree wouldbe executed against him approached the appellant and after negotiations paid Rs. 50,000/- as advance and agreed to pay enhanced rent of Rs. 600/- per month in place of Rs. 120/- p. m. and took the fresh lease of the said premises in favour of himself and his son under a document reciting these terms and filed O. S. No. 1993/93 in the court of 15th Additional City Civil Judge, bangalore for the relief of declaration that he and his son respondent 2 were tenants of the premises and that eviction order in HRC No. 10477/93 was not binding on them and for permanent injunction restraining the appellant from executing the eviction order. It may also be noted that Corporation of City of Bangalore was impleaded as 2nd defendant in the suit alleging that it was set up at the instance of appellant and its officers were harrassing respondent 1 to vacate the premises on the allegation that taxes due to the Corporation in respect of the plaint schedule property has not been paid.
( 4 ) IN the application I. A. II filed under Order 39, Rules 1 and2, CPC for relief of temporary injunction the allegations were that respondent 1 after lapse of one month from fresh lease under document dated 10-2-1993 approached the appellant to pay him enhanced rent of Rs. 600/- p. m. but the appellant refused to receive the same and threatened him to dispossess from the premises by executing the decree and it is also averred that appellant demanded further amount of Rs. 25,000/ -. According to the respondents, to escape from eviction they sought for relief of temporary injunction not to disturb their possession and to restrain the appellant from executing the decree in HRC No. 10477/83.
( 5 ) THE suit and application were seriously contested by theappellant filing written statement and objections before the trial court. The appellant contended that the document dated 10-2-1993 was a concocted and forged document. Every averment in the document has been denied. The appellant specifically denied the averments that he received Rs. 50. 000/- as advance and he had agreed for the enhancement of rent from Rs. 120/- per month to Rs. 600/- month. On the other hand, the appellant urged that he purchased the property in dispute in the year 1978 and tried to persuade respondent 1 to vacate the same, but he did not comply with the request and being fed up with the conduct of respondent 1 he instituted eviction petition in the court of Small Causes on the ground that he required the premises for his bona fide use and occupation for running his own business and the same was contested for 7 years and after his success respondent 1 took the matter to this court in revision and consented for eviction order conceding the reasonable and bona fide requirement agreeing to vacate the premises on or before 1-6-1993. It is
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