ORDER
M. Ramakrishna, J.
1. This Revision Petition under Section 115 of the Civil Procedure Code is by the petitioner against the order made by the Additional District Judge, Kolar, in Misc. A. No. 30 of 1988 disposed of on 1.4.1992 setting aside the order of temporary injunction passed on I.A.No. I in O.S.No. 37 of 1987 on the file of the Court of the Civil Judge, Chinthamani.
2. The petitioner Gopalakrishna Sharma is the plaintiff and Jyothi Nagaram Chicka Venkatashamaiah and S.V. Subbanna, respondents 1 and 2 herein, are defendants 1 and 2 respectively in the suit in O.S.No. 37 of 1987. For the purpose of convenience, the parties herein are referred he re in afterwards by their ranks in the original suit.
3. The plaintiff filed a suit in O.S.No. 175 of 1985 on the file of the Civil Judge, Kolar, against the defendants for permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the suit premises till he is evicted under the due process of law. On the establishment of the Court at Chinthamani, the suit was transferred there and where it was renumbered as O.S.No. 37 of 1987. In the said suit, the plaintiff filed IA.No. I under Order 39 Rules 1 and 2 C.P.C., for issue of ad-interim order of temporary injunction against the defendants, pending disposal of the suit. This application was opposed by defendant-1. Indeed, a detailed written statement was also presented by him opposing the suit. The learned Civil Judge, after hearing the learned Counsel on both sides, by his order dated 2.3.1988, allowed the application (I.A.No. I) and granted temporary injunction as prayed for, for the reasons stated in the order.
4. Being aggrieved by the said, order, defendant-1 took up the matter in Misc. Appeal No. 30 of 1988 before the Additional District Judge, Kolar, who, having heard learned Counsel on both sides, by his order under appeal, allowed the appeal, set aside the order under challenge and dismissed the application (I.A.No. I). Hence this Revision Petition by the plaintiff.
5. The case of the plaintiff is that defendant-2 is his brother who was the tenant of the suit schedule premises and that he was running a Hotel in the name and style “Hotel Satyaprasad”. On the establishment of the Court of Civil Judge & J.M.F.C., at Chinthamani, defendant-2 began to run a canteen in the Court premises. That was in the year 1971. According to him, defendant- 2 having vacated the suit premises, began to run the canteen in the Court premises. It is his case that he obtained the suit schedule premises from defendant-1, agreeing to pay Rs. 200/- per month as rent and the lease was month to month. He was paying the rent regularly to defendant-1 who was not in the habit of passing receipts for having received the rents of the premises. The plaintiff began to run the hotel under the name and style “New Satyanarayana Bhavan” after obtaining a licence from the Town Municipality, Chinthamani, and he was paying licence fee, electrical charges, water charges etc. He has produced certain documents to disclose these things.
6. The plaintiff has alleged that defendant-1 having colluded with defendant-2, his brother (Plaintiff’s), obtained an order of eviction in H.R.C.No. 10 of 1984 on the file of the Civil Judge, Chinthamani and is executing the said order in Exe.C.No. 124 of 1985 in the said Court. He has also alleged that though defendant-1 was aware that the plaintiff was running the hotel in the suit schedule premises, without making him a necessary party in the eviction proceedings and making only defendant-2 party to the said proceedings, he obtained an order of eviction behind his back and that therefore the eviction order is not binding on him. His further case is that he has gained good will of his customers in the hotel run by him from 1971, that he has no other avocation and is entirely depending upon the hotel business for his livelihood, that his brother, defendant-2, being not in good terms with him, has been in collusion with defendant-1 to harass and dispossess him from the suit schedule premises, that his possession is protected under the Karnataka Rent Control Act, (the Act for short) and that he cannot be evicted arbitrarily without recourse to the Act.
7. In the written statement filed by defendant-1 landlord, it is clearly mentioned that it was defendant-2 S.V. Subbanna, brother of the plaintiff, who was the tenant paying rent of Rs. 265/- per month for the entire suit premises occupied by him by virtue of the lease deed executed in his favour by defendant-1 on 6.8.1970. On 24.11.1971 defendant-2 gave up possession of a portion of the premises and entered into a fresh karar agreeing to pay Rs. 200/- per month as rent and ever since then he has been in possession and enjoyment of the suit premises as a tenant. Defendant-2 paid in all a sum of Rs. 4,041-40 Ps., and the arrears accrued upto 25.4.1973 was Rs. 5,092-60 Ps, which was not paid despite repeated demands. Therefore, he issued a legal notice dated 27.9.1973 calling upon the defendant-2 to pay the arrears of rent; yet he did not pay the rent. Therefore, defendant-1 had to file an eviction petition on the file of the Court of Munsiff, Kolar, for his eviction. On the establishment of the Court at Chinthamani, the case was transferred to the Court at Chinthamani and there it was renumbered as H.R.C.No. 1 of 1974. The said case was transferred to the Court of Munsiff, Chickballapur, by order of the District Court made on 30.4.1974 and it was renumbered there as HRC.No. 26 of 1974. Again it was transferred to the Court of Munsiff, Kolar, by the order made by the District Judge, Kolar, in Misc. No. 16 of 1975 where it was renumbered as H.R.C.No. 52 of 1975. During the pendency of the case, defendant-1 filed an application under Section 29 of the Act for stopping further proceedings as defendant-2 failed to pay the arrears of rent though there was a direction to do so. Again the case was transferred to the Court of the Civil Judge, Chinthamani, by order made by the District Judge, Kolar, in Misc. No. 37 of 1978. After transfer, the records were hushed up in the Court at Chinthamani and it was not brought to the notice of the Judge till 6.4.1984 when defendant-1 brought it to the notice of the Judge who called the explanation of the concerned official for not posting the case before Court and the matter was informed to the District Judge also. It was renumbered as H.R.C.No. 10 of 1984.
8. At the trial of the H.R.C. proceedings in the Court at Chinthamani, defendant-1 adduced evidence, but defendant-2 did not do so even though he admitted the tenancy between him and defendant-1 in respect of the suit premises and the arrears of rent. The learned Judge having found that defendant-2 was in arrears of rent to the tune of Rs. 32,692-60 Ps., directed him to pay it within one month, by his order on I.A.No. II under Section 29 of the Act. Defendant-2 though agreed to pay atleast Rs. 2,000/- within ten days, did not do so and chose to escape the statutory liability of paying the rent due with mala fide intention. On the other hand, he filed a revision before the District Judge against the order made on I.A.No. II, which was dismissed. Further, he also filed an application for transfer of the case to some other Courts, which was dismissed and thereafter he made several applications on the H.R.C. side which also came to be dismissed and he did not choose to pay the arrears of rent as directed. Hence, the learned Civil Judge, Chinthamani, stopped further proceedings in the case and passed an order directing eviction of defendant-2.
9. That apart, defendant-1 has also filed a suit against defendant-2 for recovery of arrears of rent of three years and strangely this case also was transferred to the Court of Munsiff, Sidlaghatta and the learned Munsiff having recorded the evidence of the parties ordered to pay the duty and penalty on the admitted lease deed by both the parties and on that order, the matter is pending before this Court.
10. The decree of eviction made in favour of defendant-1 was sought to be executed in Exe.C.No. 124 of 1985 and defendant-2 having failed in his attempts to postpone the execution of the eviction order, strangely, at the time of executing delivery warrant, colluded with the plaintiff and got the suit in O.S.No. 37 of 1987 filed by the latter, with a view to preventing defendant-1 landlord from seeking the fruits of the decree. Thus, there is collusion between the brothers -plaintiff and defendant-2 to prevent the decree-holder from executing it. The voters’ lists produced along with I.A.No. I in the above suit clearly goes to show that both the brothers have been living in the undivided joint family even as on the date of suit. Therefore, the plaintiff being the younger brother of defendant-2 cannot say that he was ignorant of the H.R.C. proceedings went on from 1974 to 1985 culminating in the order of eviction against defendant-2, his own brother. It is a frivolous case with the connivance of the two brothers and with the mala fide intention, they suppressing all facts and the previous proceedings, filed the suit for permanent injunction restraining the landlord-defendant-1 from seeking the fruits of the decree for which he was awaiting for the last 15 years. The conduct of the plaintiff is most unwarranted and fraudulent and he suppressed all facts including the decree made against defendant-2, his own brother, which he was aware and he was never the tenant paying rent to the landlord-defendant-1.
11. I have heard learned Counsel on both sides.
12. Sri G.B. Shastry, learned Advocate, for the plaintiff, petitioner herein, submitted that the plaintiff was not a party to the eviction proceedings in H.B.C.No. 10 of 1984 resulting in the decree of eviction against defendant-2, that therefore he was not aware of the questions of law and fact arose in those proceedings and that he set up an independent title as a tenant. Therefore, he is entitled to maintain the suit. He further submitted that the learned District Judge failed to see that the Ruling of this Court in PARAMOUND INDUSTRIES v. C.M. MALLIGA, , was in favour of the plaintiff and that in the light of the said Ruling, any question of independent title sought to be established by a third person who was not a party to the eviction proceedings, was required to be considered and a finding recorded thereon. He lastly submitted that the learned District Judge ought to have seen that the view taken by the learned Civil Judge in granting an ad-interim order of temporary injunction was no reason why he should reverse it. Again this argument is based upon the Ruling in Paramound Industries’ case.
13. Sri Reddappa, learned Counsel for the landlord-defendant-1, urged that the facts and the question of law arising in Paramound Industries’ case were entirely different from those of the present case and that the Ruling in the aforesaid case could not be pressed into service to dispose of the case on hand. Besides, the argument is that the provisions of Section 30 of the Act clearly lay down that the Civil Court cannot grant an order of injunction with a view to preventing execution of a decree of eviction made under the Act unless the plaintiff seeking such an injunction order establishes an independent title to the suit premises as a tenant. The learned Civil Judge ought to have recorded a finding on whether the plaintiff established prima facie case and the balance of convenience in his, favour with reference to the documentary evidence produced, before granting the temporary injunction sought for by him. When that had not been done, the learned District Judge was right in reversing such an order. Therefore, the learned Counsel urged that this Revision be dismissed.
14. In view of the foregoing, the Points that arise for my Consideration in this Petition are as follows:-
(1) Whether the learned Civil Judge was justified in granting an ad-interim order of temporary injunction restraining the decree-holder, the landlord, from executing the decree passed under the Act, in view of the provisions in Section 30 of the Act and Section 41(b) of the Specific Relief Act, 1963?
(2) Whether the learned District Judge was justified in reversing the order made by the learned Civil Judge?
15. My answer on Point No. 1 is in the negative and on Point No. 2 in the affirmative for the following reasons.
16. There is one Decision of this Court directly applicable to the case on hand rendered in K. LAKSHMINARAYANA ADIGA AND ANR. v. R. GOVINDARAJULU AND ANR., 1988(3) KLJ 392., on the similar question with which we are interested in this case. Chandrakantharaj Urs., J., as he then was, dealing with the provisions of Section 41 of the Specific Relief Act, 1963 (the Act of 1963 for short) with reference to Section 30 of the Act, held as follows:-
“Unless an independent title is set up against landlord, decree/order for eviction passed under the Act must be given effect to. Induction of tenant whether lawful or not once concluded against the main tenant, not open to contend in a separate suit that his induction was lawful.”
17. In paragraph-3 of the Judgment, the learned Judge observed:
“It is now settled law that sub-tenant unauthorisedly inducted by the tenant is not a necessary party in proceedings under the Act. If that is so, then the 1st respondent was not bound to make the petitioners also respondents in his eviction petition before the Court under the Act. Section 30 of the Act provides that notwithstanding anything contained in any other law, where the interest of the tenant in any premises is determined for any reason whatsoever and any order is made by the Court under the Act for recovery of possession of such premises, the order shall subject to the provisions of Section 21, be binding on all persons who may be in occupation of the premises and vacant possession thereto shall be given to the landlord by evicting such persons therefrom, subject to the proviso that nothing in that Section will apply to any person who has an independent title to such premises.”
18. Therefore, it is clear that except a person who is not a party in the H.R.C. proceedings and who has set up an independent title to the suit premises as a tenant, the order in H.R.C. proceedings is binding on all the persons including the persons claiming tenancy under the original tenant.
19. Now we will have to see whether the plaintiff has proved that he has set up a title to the suit property independent of the tenancy of defendant-2 against whom defendant-1 got an eviction decree which has been sought to be stayed in the suit filed by the plaintiff and whether he was not aware of the H.R.C. proceedings against his brother.
20. I perused the original records made available. It is seen from the order made by the learned Civil Judge on I.A.No. I in O.S.No. 37 of 1987 that to come to the conclusion that the plaintiff has made out a prima facie case that he is in possession of the suit premises where he is running a hotel, he relied on the receipts at Sl.Nos. 41 to 58 showing payment of water taxes made by the plaintiff for the years 1983, 1984 and 1985, a notice dated 10.2.1977 calling upon him to pay the Professional Tax as a registered employer of the Hotel “New Satyanarayana Bhavan”, a receipt dated 25.10.1984 issued by the Agent of Soviet Land Magazine showing payment of subscription for the Magazine, a receipt dated 2.8.1982 showing payment of tax regarding the wet grinding machine, receipts dated 7.7.1976, 15.4.1985 and 20.4.1981 showing payment of Hotel Licence renewal fee made to the Municipality and the report of the Bailiff made while returning the delivery warrant that defendant-2 was not found in possession of the suit premises, that there was no “Hotel Sathyaprakash” run in the said premises and that the plaintiff was running “Hotel Satyanarayana Bhavan” in the suit premises.
Section 30 of the Act reads:
“Vacant possession to landlord.- Notwithstanding anything contained in any other law, where the interest of the tenant in any premises is determined for any reason whatsoever and any order is made by the Court under this Act for the recovery of possession of such premises the order shall, subject to the provisions of Section 21, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting such person therefrom.
Provided that nothing in this Section shall apply to any person who has an independent title to the premises.”
21. The Supreme Court, interpreting the provisions of Section 30 of the Act, held in D.K. PANDEY v. ABDUL AZEEZ, 1987 SCC(3) 63, as follows:-
“When a person has no independent status as a tenant and is enjoying the premises in the tenancy created in favour of the tenant, he has no independent right regarding tenancy and he is bound by the eviction order passed against the tenant.”
22. Similar is the view taken by this Court in Laxminarayana Adiga’s case supra, which is, as already stated, directly applicable to the case on hand as the facts and circumstances and the question of law arising therefrom are similar to those of the present case.
23. The learned Civil Judge, Chinthamani, having been satisfied that defendant-2 S.V. Subbanna was a tenant lawfully inducted by defendant-1 of the suit schedule premises, allowed the application (I.A.No. II) filed under Section 29 of the Act by defendant-1-landlord and ordered eviction of defendant-2 from the suit premises, by stopping further proceedings in H.R.C.No. 10 of 1984. That was an order made in the year 1985 and the decree of which came to be executed in Ex.C. No. 124/85. That being so, the case”of the plaintiff that he has been running a hotel in the suit premises as a tenant from 1971 onwards cannot be accepted. This aspect has not been considered in its proper perspective by the learned Civil Judge.
24. Coming to the documentary evidence produced by the plaintiff such as receipts to show payment of Water Rate, Municipal Tax, Professional Tax etc., those documents would not clinch the point, inasmuch as he being the younger brother of defendant-2 who was lawfully inducted into the suit premises, the possibility of obtaining those receipts in his name cannot be ruled out.
If at all the plaintiff had been in possession of the suit premises in his own right as a tenant, he would have filed objections under Section 47 C.P.C., to the execution of the decree against defendant-2 who is none other than his elder brother, contending that he was in possession of the schedule premises in his own right as a tenant and that the order of eviction of defendant-2 was not binding on him. He has not done so. Therefore, it can be safely concluded that the plaintiff is not in possession of the suit premises in his own right as a tenant.
25. The Decision in M/s Paramound Industries’ case relied on by the learned Counsel for the petitioner-plaintiff, is not helpful to him as the facts and circumstances of that case are entirely different from those of the present case. In that case the distinguishing feature is that the respondent-landlord having obtained an order of eviction under Section 21(1)(f) and (h) on 4.1.1989 against one A.M. Bhatia, put it into execution in Ex.Case No. 4737 of 1989. The petitioner objected to the same by filing objections under Section 47 C.P.C., stating that the order of eviction passed in H.R.C.No. 2828 of 1986 against A.M. Bhatia was not binding upon him and that he was in possession of the Schedule premises in his own right as a tenant; therefore, the order of eviction obtained against A.M. Bhatia cannot be executed so as to dispossess him from the premises and secure possession of the same. Before causing obstruction to the execution by filing objection, the petitioner filed O.S.No. 2886 of 1988 on 21.6.1988 in the City Civil Court against the respondent for a declaration that he is in possession of the schedule premises as a tenant and the order of eviction passed in H.R.C.No. 2828 of 1986 is not binding upon him and to permanently restrain the respondent from executing the said order of eviction and dispossessing the petitioner-plaintiff from the schedule premises. In the instant case, no action was taken by the plaintiff to file objections under Section 47 C.P.C., with a specific stand that the decree made against his brother, defendant-2 S.V. Subbanna, in respect of the suit premises, was not binding on him and that he was a tenant thereof in his own right. Another distinguishing feature in M/s Paramound Industries’ case is that there the petitioner filed a suit for a declaration that he was a tenant of the suit premises and that the decree made against Bhatia in H.R.C.No. 2828 of 1986 was not binding on him. Such a prayer is not to be found in the suit filed by the plaintiff in the present case. The suit filed by him in O.S.No. 37 of 1987 was only for permanent injunction and not for a declaration.
26. Dealing with the provisions of Section 41(b) of the Specific Relief Act, Court in MOHAMMED HASHIM v. SARABI, 1977(2) KLJ 53, had an occasion to consider the right of a person seeking stay of rent control proceedings in a suit for partition filed by her. Govinda Bhat, CJ., as he then was, referring to the scope of Section 151 C.P.C., and the jurisdiction of the Civil Court, held as follows:-
“The Court constituted under the Karnataka Rent Control Act is a Court of exclusive jurisdiction. It is not a Court subordinate to the Civil Court and hence a Civil Court dealing with a partition suit has no jurisdiction to stay proceedings in the Rent Control case,”
27. Similar is the view taken by Puttaswamy, J., as he then was, in MAHANTAPPA GURAPPA v. JAYANTHI STORES, 1980(2) KLJ 313. Referring to the similar averments that the suit was based upon collusion with a view to preventing the execution of the decree obtained under the Karnataka Rent Control Act and the scope of the provisions of Order 39 Rules 1 and 2 C.P.C., vis-a-vis jurisdiction of the Civil Court in granting temporary injunction in a matter of this kind, the learned Judge held as follows:-
“The plaintiffs were not unaware of the protracted legal proceedings culminating in the eviction order and it cannot be said that the plaintiffs had an arguable case.
That defendant-2 was described as a proprietor did not make any difference, particularly when the plaintiffs themselves did not dispute that he continued to be a partner of the firm all along.
A temporary injunction cannot be granted in a frivolous and vexatious suit.
Assuming that the plaintiffs had an arguable case, that by itself cannot be a ground to grant a temporary injunction to prevent the execution of a lawful decree unless there are compelling circumstances for the same.
The word ‘injury’ in Order 39, Rule 1 and 2 does not make any distinction between a void and a voidable decree.
When a party can be compensated in damages, a. Court should be slow to grant a temporary injunction, that too to prevent execution of a lawful decree affirmed by a superior Court.
Even if arguable case, irreparable injury and balance of convenience are in favour of the plaintiffs, even then the conduct of the plaintiffs is an important factor that should be kept in view.
The suit appeared to be a collusive suit filed only to postpone the enforcement of the decree and thus the conduct of the plaintiffs disentitled them to a temporary injunction.”
28. In view of the undisputed fact that the plaintiff and defendant-2, his elder brother, were living together in the same place in an undivided Hindu Joint Family, I am clearly of the view that it is not possible to assume or accept that the plaintiff was unaware of the Rent Control proceedings against defendant-2 initiated in 1974 and ended in a decree of eviction in 1985. Secondly, on his own showing, if there was an oral agreement in his favour in the year 1971, why the plaintiff was keeping quiet all along without impleading himself in the said proceedings or in any way objecting to it, is not made clear. No acceptable evidence is produced to show that he was paying rent towards the premises in question from 1971 till the date of suit. Nothing is there. The learned Civil Judge has failed to apply his mind to these aspects while considering the evidence on record to accept the prima facie case of the plaintiff. The learned District Judge on consideration of the facts and circumstances of the case and the evidence on record has given cogent and acceptable reasons in coming to the conclusion that the ad-interim order of injunction granted by the learned Civil Judge cannot be sustained. I do not think there is any ground for me to interfere with his order under revision.
29. In the result and for the reasons stated above, this Revision Petition fails and is therefore dismissed. The first respondent (defendant-1) is entitled to costs through out. Advocate’s fee is fixed at Rs. 1,000/-.