M/s. Haji M. Abdul Razak and Co. vs K. Ismath Enoon

S.N. Satyanarayana, J.—This second appeal, filed by defendants 1 and 2 in O.S. No. 332/2001 on the file of Principal Senior Civil Judge, Mangalore, challenging the concurrent finding of both the courts below in decreeing the suit of plaintiff for ejectment, mesne profits and delivery of vacant possession, has come up for admission this day.

This day, learned Counsel for the parties have filed application in IA.I/2014 under Order 23 Rule 3, CPC reporting that dispute between the parties is amicably settled. The second appellant, who was one of the partner of first appellant-firm along with his father, after the death of his father, he being the sole person in-charge of first appellant-firm as its proprietor has affixed signature to compromise petition filed under Order 23 Rule 3, CPC. The sole respondent, who is plaintiff in original suit has affixed his signature as respondent in this proceeding. The parties who are present before the Court submit that they have gone through the contents of compromise petition filed in to the Court in IA.I/2014, understood the same and agreed to abide by the same.

The gist of which is that second appellant as proprietor of first appellant agree and accept the judgment passed by both the courts below in ordering his ejectment from suit schedule property and also direction to pay mesne profits, which is determined in the said proceeding. He has agreed to vacate the suit schedule property subject to time being granted to him till 31.12.2014. For which, respondent herein, plaintiff in trial court has no objection. The appellants have agreed to pay revised rate of rent at Rs. 10,000/- per month for the extended period i.e., from 1.1.2014 to 31.12.2014. Subject to payment of revised rent, respondent has no objection to judgment being modified so far as the time granted to appellants for vacating suit schedule property. It is also mutually agreed between the parties that there shall not be more than two consecutive default in payment of rent. It is further agreed between the parties that entire arrears of rent and mesne profit shall be paid by appellants to respondent through Demand Draft on or before 28.2.2014 and to encash the bank guarantee furnished by appellants before the lower appellate court in R.A. No. 41/2011 on the file of II Additional District Judge, Dakshina Kannada, Mangalore. Counsel for the appellants submitted that he will file the affidavit of undertaking in terms of compromise petition within two weeks from today.

Since this appeal is settled between the parties even before it is taken up for admission, appellants are entitled to seek refund of Court fee as per the judgment rendered by the Division Bench of this Court in the matter of A. Sreeramaiah Vs. The South Indian Bank Ltd., . The Court fee which shall be refunded shall be drawn in the name of second appellant and shall be handed over to learned Counsel Sri. G. Balakrishana Shastry, who is representing appellants 1 and 2 in this proceeding.

Accordingly, this second appeal is disposed of in terms of compromise petition.