M M THIMMAIAH Vs. JINDE RAMAKRISHNAPPA

JUDGEMENT

(1.) These two appeals arise out of the order dt. 23-10-1979 passed by the Second Additional Civil Judge. Bangalore City, in Miscellaneous Case No. 17 of 1979, on his file,under S. 144 of the Code of Civil Procedure, allowing the petition for restoration and directing the respondents to put the petitioner in possession of the petition schedule premises symbolically without actually evicting Respt.-2. The learned Civil Judge has further directed that Respt-2 shall pay the rent at Rs. 1,251 per month to the petitioner from the date on which the symbolic possession of the petition schedule premises is delivered to the petitioner. He has further directed the petitioner to recover mesne profits and damages at Rs. 1,251 per month from Respt.-1 from 4-7-1977 till the date of symbolic delivery of possession of the petition schedule premises to the petitioner. Aggrieved by the said order, petitioner J. Ramakrishnappa has instituted Miscellaneous First Appeal No. 74 of 1980 before this Court where as M. M. Thimmiah, original Respt.-l, has instituted Miscellaneous First Appeal No. 1502 of 1979 before this Court.

(2.) The facts are either not disputed or are established by the evidence on record. They are these : M. M. Thimmaiah, original Respt.-1, instituted H.R.C. No. 138 of 1960 against the original petitioner and some other persons for eviction on the ground of non-payment of rent. The petition was disposed of by consent. The petitioner was given 9 months time from the date of the order to pay the arrears of rent or to deposit them in Court. In the event of deposit of arrears of rent made by the petitioner, the eviction petit/on was ordered to stand dismissed and, in default, the petition was ordered to stand allowed. It appears that the arrears of rent was not paid and, hence, the landlord sought execution of the eviction of the present petitioner, according to him, in Execution Case No. 1021 of 1962. Exhibit R-2 shows the report of the Bailiff on 6-4-1964 along with the Mahazar drawn in Execution Case No. 1021 of 1962. It is clear from these that possession of the petition schedule premises was not delivered to the landlord as the premises were locked and there was resistence. Exhibit R. 4, however, shows that delivery of possession was taken by the landlord on 12-4-1964. Thus, Exhibits R. 5 and R. 6 make it clear that the landlord recovered possession of the petition schedule premises on 12-4-1964. It is the case of landlord M. M. Thimmaiah, however, that subsequently, the erstwhile tenant forcibly entered into possession on 15-6-1964 and M. M. Thimmaiah original Respt.-l in the petition, instituted Original Suit No 2194 of 1968 on the file of the First Munsiff, Bangalore for recovery of possession. The Court, however, returned the plaint for presentation to competent Court and, accordingly, the plaintiff took return of the plaint and presented it before the Court of the Civil Judge wherein it was registered as Original Suit No 323 of 1975. The said suit, O. S. No. 323 of 1975, was decreed ex-parte against the present petitioner on 2-7-1976. The present petitioner, who was defendant in O. S. No. 323 of 1975, instituted a petition under Order IX Rule 13 of the Code of Civil Procedure in Miscellaneous Case No. 313 of 1977 praying for setting aside the ex-parte decree dated 2-8-1976 passed in O S. No. 323 of 1975. That petition was dismissed by the learned Civil Judge by his order dt. 18-9-1978. But it was allowed in appeal by this Court in Miscellaneous First Appeal No. 1214 of 1978, as per the judgment dated 13-12-1978. In the meanwhile, however, the decree-holder M, M. Thimmaiah sought for possession of the petition schedule premises from the present petitioner in Execution Case No. 313 of 1977 and he obtained possession of the petition schedule premises on 4-7-1977. This Court in Miscellaneous First Appeal No. 1214 of 1978 set aside the ex-parte order by its judgment and order dated 13-12-1978. The plaintiff M. M. Thimmaiah had already taken possession of the petition schedule premises pursuant to the ex-parte decree in O. S. No. 323 of 1975 on 4-7-1977 itself. Having taken possession, it appears that he let out the petition schedule premises in favour of Respt.-2 in the petition, namely, Maruthi Glass & Plywoods, by a registered lease deed dated 24-7-1977 on a monthly rent of Rs. 1,251. He also received a sum of Rs. 15,000 as advance from the said tenant, namely, Maruthi Glass & Plywoods. Shri J. Ramakrishnappa, thereafter, instituted the petition for restitution under S. 144 of the Code of Civil Procedure In Miscellaneous Case No. 17 of 1979 before the learned Civil Judge praying that he should be put back in possession of the petition schedule premises as the ex-parte decree was set aside by this Court in Miscellaneous First Appeal No. 1214 of 1978 on 13-12-1978. The said petition was resisted by M. M. Thimmaiah, Respt-1 in the petition, on the ground that petitioner was a tres-passer. He had no right to be in possession and, as such on equitable grounds, he had no claim for restitution. The suit for possession was instituted against him on the ground that he was a tres-passer and it was pending trial In O.S. No. 373 of 1975. Hence, he prayed that the petition for restitution be dismissed. Respt-2 resisted the claim for restitution on the ground that he was a bona fide tenant inducted into the petition schedule premises when Respt-1 in the petition was in legal possession of the premises and, as such his possession could not be disturbed in restitution proceeding under S. 144 of the Code of Civil Procedure.

(3.) The learned Civil Judge raised the following points as arising for his consideration in the petition :-