Dinesh Kumar vs Executive Officer, Kukke Sri. Subramanya Temple

B. Manohar, J.—This second appeal is preferred against the judgment and decree dated 16th April, 2016 made in R. A.No.2/2016 confirming the order dated 16th November, 2015 made in CMC No. 13/2014 in Ex.P.No.31/2008 dismissing the application filed under Order 21, Rules 97, 101 and 103 read with Section 151 of CPC.

The subject-matter of the dispute in this appeal is in respect of shop premises bearing Door No.II-399 (old No. 11-316) of Subramanya Kasaba Village, Sullia Taluk. The said property belonged to Sree Kukke Subramanya Temple, Kukke. Originally, the said premises was leased in favour of the second respondent herein. He was carrying on the business in the said shop premises. The authorities of Subramanya Temple initiated proceedings for eviction of the said tenant and filed ejectment suit in O.S.No.37/2002. The said suit was contested by the tenant. Consequently, the said suit was decreed on 29-06-2005 directing the tenant to deliver the vacant possession of the premises to the plaintiff. Aggrieved by the said judgment and decree, the tenant preferred R.A.No.81/2005. The said appeal after contest, came to be dismissed by the judgment and decree dated 4-8-2007. Being aggrieved by the same, the tenant preferred R.S. A.No.27/2007 before this Court, which also came to be dismissed on 11-03-2009. On the basis of the said order, the plaintiff initiated execution proceedings in Ex.P.No.31/2008 for recovery of possession. In the said proceedings, father of the appellant herein one Gangadhar filed CMC No. 1/2010 under Order 21, Rule 97 contending that he is in possession of the shop premises in question. He has obtained the license from the Panchayath to carry on the business and he is carrying on the business for the last 20 years. He has got an independent right over the property and he contended that the decree obtained by the decree-holder cannot be executed as the said Gangadhar is in possession of the premises. The Executing Court after examining the matter, dismissed CMC No. 1/2010 filed by the objector on 24-02-2011. Being aggrieved by the said order, the said Gangadhar preferred R.A.No. 18/2011 before the Civil Judge (Sr.Dn.) and JMFC, Puttur. The said appeal was dismissed on 22-09-2011. Being aggrieved by the said order, he preferred RSA No.2372/2011 before this Court challenging the said order on various grounds. This Court dismissed the said RSA on 22-08-2013. After dismissal of the said RSA for the second time, son of the said Gangadhar made one more attempt and he filed CMC No. 13/2014 in Ex.P. No.31/2008 contending that he is in possession of the premises and claiming independent right as a tenant. However, he was not made party in the earlier proceedings. Hence, he filed CMC objecting the execution of the said decree. The respondent filed detailed objections to the said CMC and contended that filing case after case amounts to abusing the process of court. Earlier tenant as well as the appellant have already lost the case upto the High Court. Hence, the appellant cannot maintain the application.

The trial Court, framed the following issues:

Whether the petitioner proves that he is in occupation and in possession of the building bearing Door No.11-399 old No.II-316 for the past ten years prior to the filing of the suit O.S.No.37/2002 independently with independent right by way of possession in the above referred property?

Whether the petitioner proves that he has right to obstruct the Execution Cause No.31/2008?

Whether the petitioner proves that he has independent right in the property by way of possession as pleaded?

Whether the petitioner proves that the decree awarded in O.S.No.37/2002 is not binding on him?

Whether the petitioner is hit by principles of res-judicata ?

Issue No.6 was recasted as:

Whether the first respondent proves that the claim petition of the petitioner is hit by Section 11 of CPC?

What order?

The appellant examined himself as P.W. 1 and certified copy of Tax Paid Receipt was marked as Ex.P1. On behalf of the respondents, none of the witnesses were examined nor has any document been marked.

The trial Court, after appreciating the oral and documentary evidence held issues 1 to 4 and 6 in the negative and issue No.5 in the affirmative. Consequently, by its order dated 16th November, 2015 dismissed CMC No. 13/2014. Being aggrieved by the said judgment and decree, the appellant preferred R.A.No.2/2016 before the Additional Senior Civil Judge and JMFC, Puttur. The lower appellate court after examining the matter in detail and taking note of earlier two rounds of litigation, dismissed R.A.No.2/2016 filed by the appellant. Being aggrieved by the said order, the appellant has preferred this second appeal.

Sri. T. G. Yatnal, learned counsel appearing for the appellant contended that the judgment and decree passed by the lower appellate court confirming the order made in CMC No.13/2014 is contrary to law. There is dispute regarding the identity of door number of the premises. The premises leased was having Door No.2-97. However, execution petition has been filed for eviction of premises bearing Door No.11-399. There is dispute regarding identity of the shop number. The judgment and decree passed by the trial Court cannot be executed. The appellant is tenant of the premises. He was not made party to the proceedings. Hence, the decree passed by the trial Court is nullity in the eye of law.

On the other hand, Smt. Vaishali Hedge, learned counsel appearing for the first respondent argued in support of the judgment and decree passed by the courts below and contended that there is no dispute regarding identity of the door number. Originally the premises was leased in favour of Sundara Acharya in ejectment Suit in O.S.No.37/2002, the order of eviction has been passed against the tenant. However, door number has been changed into 11-399, there is no dispute regarding identity of the door number. Further, the father of the appellant made one more effort to stall the execution of the judgment and decree made in O.S.No.37/2002 and lost the case up to High Court in RSA No.2372/2011. After losing the case, the appellant had made one more effort. Filing execution petition is abuse of process of the court. The appellant has nothing to do with the shop premises and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and decree, oral and documentary evidence adduced by the parties.

The shop premises belonged to Kukke Subramanya Temple. The authorities of the temple initiated ejectment proceeding for eviction of the tenant in O.S.No.37/2002. The eviction order was questioned by the tenant in RSA No.27/2007. The said RSA came to be dismissed by this Court on 11-3-2009 thereafter, R Gangadhar, one of the close relatives of the original tenant filed CMC No. 1/2010 obstructing the execution of decree of eviction. The said proceeding was ended in RSA No.2372/2011, by its order dated 22-08-2013. Thereafter the son of said P. Gangadhar i.e. the appellant herein made one more effort claiming that he was tenant of the said premises and obstructed the judgment and decree made in O.S.No.37/2002 in CMC No. 13/2014. The trial Court, after examining the matter found that the appellant has no right or interest over the suit schedule property and only with an intention to obstruct the execution of the decree, he has filed CMC and dismissed the said petition. The said order was confirmed in R.A.No.2/2016. No material has been placed before the court to show that the appellant has any interest over the suit schedule property. The eviction proceedings was initiated against Sundara Acharya wherein he had contested the matter up to this Court. If the appellant has any interest over the said property, he should not have kept quite till the two rounds of litigation. Only after dismissal of RSA No.2372/2011 on 22-08-2013 one more attempt has been made by the appellant to obstruct the execution of the decree. The trial Court after examining the matter in detail dismissed the CMC No. 13/2014 and the same was confirmed in R.A.No.2/2016. I find there is no infirmity or irregularity in the judgment and decree passed by the courts below. It is nothing but abusing the process of court. There is no substantial question of law to be decided by this Court in this appeal. Accordingly, the appeal is dismissed.