Hasmathi Bai and Others vs S.P.J. Vijayalakshmi and Others

Aravind Kumar, J.—This appeal has been filed by defendants being aggrieved against the judgment and decree passed in R.A. No. 18/2013 dated 23.11.2013 whereunder suit for ejectment had been decreed by trial Court in O.S. No. 1208/2008 by judgment and decree dated 06.11.2012 and defendants had been directed not only to hand over vacant possession of suit schedule property by granting four (4) months time, but also directed to pay damages at Rs. 20,000/- per month from the date of suit till the date of eviction, came to be affirmed.

Though matter was argued for sometime this Court found that matter could be amicably settled between the parties and as suggested by the Court learned Advocates appearing for both parties after consulting their clients who were present before the Court, on 11.08.2015 had submitted that parties had agreed in principal to arrive at an amicable settlement and had sought for time to report such settlement. Accordingly, matter came to be adjourned from time to time.

Today learned Advocates appearing for parties have filed a compromise petition under Order XXIII Rule 3 CPC, whereunder it is agreed to between the parties as under:

That the Appellants and Respondent No. 2 are granted time to vacate and handover the vacant possession of the suit schedule premises to Respondent No. 1, which is subject matter of the above Appeal, till the end of November 2016 (30th November 2016). The Appellants shall hand over the vacant possession of the premises to the 1st Respondent on or before 30th November 2016 voluntarily. The Appellants shall not induct any third parties into the premises. The Appellants shall not seek any further extension of time under any circumstances of whatsoever nature. The appellants shall vacate and hand over vacant possession of suit schedule premises in good condition.

The Appellants shall not induct any third parties in to the suit schedule premises, which is the subject matter of this Appeal.

The Appellants have paid rent/damages for the use and occupation of premises in question upto the end of 2013. As agreed between the parties the appellants have to pay a sum of Rs. 3,60,000/- (Rupees Three Lakh Sixty Thousand Only), which covers the damages payable by the appellants for use and occupation of premises. The Appellants have paid Corporation Tax in respect of the property on behalf of first Respondent for the year 2013-2014 and 2014-2015 of Rs. 92,242/- (Rupees Ninety Two Thousand Two Hundred and Forty Two Only) after adjusting the same the balance mesne profits payable upto the end of 31st August, 2015 is at Rs. 2,67,758/- (Rupees Two Lakhs Sixty Seven Thousand and Seven Fifty Eight Only) by way of Demand Draft dated: 18.08.2015, drawn on Canara Bank, Mysore Main Branch, Mysore in favour of first Respondent Smt. SPJ Vijayalakshmi in full and final satisfaction claim of mesne profits payable by the Appellants to the first Respondent till the end of 31st August, 2015. The Appellants shall pay the mesne profits for use and occupation of the premises from 1st September 2015 till handing over the schedule premises to the first Respondent at the rate of Rs. 20,000/- (Rupees Twenty Thousand Only) per month. The appellants shall not make the aforesaid monthly payments regularly without fail on or before 15th of every month and failure to pay any two monthly rent or user charges will entitle the first respondent to immediately get the vacant possession of the suit schedule premises through execution petition.

Both the parties who are present before the Court admit the execution of compromise petition.

Third appellant who is present before the Court has made available the power of attorney executed in his favour by appellants 1, 2, 4 and respondent No. 2. Respondent No. 2 is the sister of appellants 2 and 4 and daughter of appellant No. 1. Judgment and decree passed by trial Court would indicate that she had placed exparte. Hence, in exercise of power vested in this Court under Order XLI Rule 14 CPC (Karnataka Amendment) notice to respondent No. 2 is dispensed with.

Even otherwise, since the compromise petition has been signed on behalf of appellants 1, 2, 4 and respondent No. 2 by virtue of power of attorney executed in favour of appellant No. 3 and both parties present before the Court having stated that they have understood the contents of compromise petition and without any force, threat or coercion they have affixed their signatures to the compromise petition and also in view of the fact that they have stated before this Court that matter is amicably settled as indicated in the compromise petition, I do not find any impediment for accepting the said compromise petition. Parties who are present before the Court are identified by their respective learned Advocates who are present before the Court.

Learned Advocates present before the Court namely Sri. K.M. Vishwanath representing Sri. P.D. Surana for appellants and Sri. L.S. Chikkanagoudar, learned counsel appearing on behalf of respondent No. 1 have identified the parties and in token of having identified them they have affixed their signatures.

In view of the fact that settlement has been arrived at the instance of Court, this Court is of the considered view that appellants would be entitled for refund of Court fee under Section 66 of the Karnataka Court Fees and Suits Valuation Act, 1958 as amended (by Act 9/2015). In view of settlement having been arrived under Section 89 of the CPC, registry to issue cheque in favour of third appellant on proper identification.

For these reasons, I accept the compromise petition. In view of the terms agreed to under the compromise petition, judgment and decree passed by the Courts below stands modified as indicated hereinbelow. For the reasons aforestated, I proceed to pass the following:

i. Second appeal stands disposed of in terms of compromise petition.

ii. Appellants shall pay a sum of Rs. 20,000/- per month till handing over vacant possession of suit schedule property to first respondent commencing from 01.09.2015 and said damages for use of suit schedule property shall be paid on or before 15th of succeeding month with a double default loss.

iii. Appellants shall file an affidavit of undertaking to hand over vacant possession of suit schedule property to respondent No. 1 on or before 30.11.2016 without seeking for any further extension.

iv. Registry to draw the decree accordingly.

v. Appellants are entitled for refund of Court fee as ordered hereinabove and registry to issue cheque.