R R KHANOLKAR Vs. MADHAVI ARUN KAMATH

JUDGEMENT

(1.) A clear-cut point of law which has some rather unusual and interesting facets has been canvassed by the disputing parties in this civil revision petition. Only the relevant facts necessary for the decision of the issue are being set-out by me. The petitioner before me is the landlord of the property situated at No. 157, camp: Belgaum. His case is that one Arun Kamath was his tenant upto the year 1977 when Arun Kamath died. The wife of the deceased-tenant by the name of Shoba Kamath along with her three minor daughters continued in occupation of the premises. In the year 1983 the petitioner-landlord instituted h. R. C. No. 399 of 1983 against Shoba Kamath principally on the ground that she had acquired sufficient and suitable alternate accommodation and that therefore, the landlord was entitled to recover possession of the premises. The suit was contested vigorously by Shoba Kamath and ultimately, a decree came to be passed against her. The matter was carried higher but she was unsuccessful and the decree was ultimately confirmed by the high Court at which time, in December 1990 Shoba Kamath prayed for six months time to vacate the premises. Before expiry of that period, time was extended on her application upto december 1991. Obviously, since the decree had become final and the time period granted by the High Court had elapsed, another round of litigation was started wherein the two daughters moved the Court by way of a suit bearing Original suit No. 619 of 1991. The contention raised in this proceeding was that the earlier decree passed by the Court was executable only against the mother Shoba who incidentally was the second defendant in that suit and it was contended that the two plaintiff daughters as also the third defendant who was a minor and also a daughter were not parties to the decree and that therefore the decree came to be executed against them. An application was made to the Court for an interim order restraining the petitioner-landlord from executing the decree against the plaintiffs and the Trial Court after a protracted hearing passed a very detailed speaking order refusing the grant of interim relief. The matter was thereafter carried in appeal and the appeal Court accepted the plea that was put forward on behalf of the plaintiffs who are the respondents 1 and 2 to this petition in their capacities as daughters of the original tenant arun Kamath and more so since they were not made parties to h. R. C. No. 399 of 1983 in which proceeding the decree was passed, that the petitioner-landlord was liable to be restrained from executing that decree against them. This order has been impugned in the present civil revision petition. At the commencement of the hearing, Smt. Shantha W. Joshi, learned advocate who appears on behalf of the petitioner submitted that this is a case involving serious mala fides. She contended that her client who is the landlord has obtained a decree of a competent Court, that the decree has become final, that this position was accepted by respondent 2-Shoba who is the mother, that she took full advantage of the indulgence shown by this court by agreeing to vacate and asking for time, that she also took even more benefit by getting the time extended for a further period, that just before this extended period elapsed, her own two daughters instituted another legal proceeding in which she is the second defendant. The submission was that this is a clear-cut case which bristles with mala fides and that the filing of the suit constituted a total misuse of judicial process and that in this background, both the facts and the law relating to the case required to be examined and the order passed by the appeal court should be interfered with.

(2.) AS far as facts are concerned, Smt. Shantha W. Joshi submitted that the appeal Court has grossly misdirected itself in law. Her contention was that situation has altered drastically after 1977 when the original tenant Arun Kamath died and she submitted that in the year 1983 when the eviction proceedings were instituted against Shoba Kamath, that this was done in her individual capacity as the then tenant of the premises. Her submission is that even if prior to 1977 Shoba was only the wife of the then tenant, that in 1983 after the death of the husband and after 6 years had elapsed her status had altered to that of being a full-fledged tenant in her own capacity. She states that this position was never disputed by Shoba at any stage right upto the High Court proceeding when the decree passed against her became final. In these circumstances, learned Advocate submits that the appeal Court grossly erred in law by restoring the status quo ante, going back to the days of tenancy of Arun kumar and accepting the position that by virtue of the relationship between Arun Kumar and the daughters, that independent rights devolve on them. Learned Advocate submitted that it is in this background that she places strong reliance on the decision of this Court in S. Gopalakrishna sharma v Jyothi Nagaram Chickavenkatashamaiah and Another. This Court had occasion to consider the implications of an eviction order passed in H. R. C. proceedings and the question as to whether that decree binds persons claiming tenancy under the original tenant. This Court had occasion to refer to the following decisions: 1. M/s. Paramound Industries and Metal Finishers v smt. CM. Malliga ; 2. K. Laxminarayana Adiga and Another v R. Govindarajulu and Another ;

(3.) D. K. Pandey v Abdul Azeez ;