IN THE COURT OF V ADDL SMALL CAUSES JUDGE & XXIV A.C.M.M

Court of Small Causes, Mayohall Unit Bangalore.

(SCCH 20)

Dated this 13th day of February 2014.

Present: Smt.K.Bhagya, B.Com., LL.B,

V Addl Small Causes Judge & XXIV A.C.M.M

S.C.No.15471/2011

BETWEEN:

Smt.Nagina Mastan and Others                                                Plaintiffs

AND

R.T.Lakshmin Narayan Setty                                                      Defendant

 

ORDER ON I.A.NO. XVI

1)   This application is filed by the Advocate for the Defendant under Order 12 Rule 6 R/W Sec.151 of C.P.C praying this Court to dismiss the suit as infructuous in the interest of justice and equity.

2)   Along with the above said application the Defendant filed his affidavit in which he has affirm on oath contending that the suit schedule building comprising of 18 to 20 shops originally belonged to Mr.abdul Khayyum and this Defendant is a tenant of shop No.19/3 under him and paid rent to him during his life time. After his demise the Plaintiffs filed the present suit for eviction in pespect of his shop No.19/3, although it was not known as to how the Plaintiffs derived title to the same. During the cross examination the Plaintiffs have admitted that they themselves have sold the said shop No.19/3 long back. Therefore, the Plaintiffs false claim against the shop No.19/3 stood exposed and it become obvious that suit shall be dismissed. Therefore, to save the false litigation the Plaintiffs gave up the claim against shop No.19/3 by amending the suit as suit for 19/2. The fact remained after having issued the legal notice Ex.P.3 in respect of shop No.19/3 has now falsely proceeded against 19/2 of which he is not the tenant. Therefore , the Defendant got issued notice under Order 12 and Rule 5 of C.P.C calling upon the Plaintiffs to admit the sale of shop No.19/3 and admit the order of Temporary injunction passed in O.S.No.5100/2012 with regard to shop No.19/2 filed by M/s Bangalore Perfumes, who is the actual tenant there. In reply the Plaintiffs have deemed to have admitted both the facts. Firstly the sale of shop No.19/3 under the registered sale deed dated 17/8/2005 is admitted and proved. Secondly, a suit for injunction by the tenant of shop No.19/2 in O.S.No.5100/2012 by M/s Bangalore Perfumers to restrain these Plaintiffs from interfering with the peaceful possession and the interim order of the injunction granted therein is admitted and proved. In the aforesaid undisputed proved facts and circumstances this suit first for eviction of shop No.19/3 or now as 19/2 has become infructuous as the Plaintiffs on one hand have no legal right or title to shop No.19/3 and on the other hand the shop No.19/2 is leased to the Plaintiffs in O.S.No.5100/2012. Therefore, the further proceedings in this suit is meaningless and shall amount to be abuse of process of Court. Hence prays for allowing the application.

3)   For the above said application Advocate for the Plaintiff has filed his objection contending that the application of this nature cannot be filed at this stage of the proceedings and that too when the matter is pending since 2009 and the only relief sought for is that of ejctment. The issues on hand are clear and unambiguous and the contents of the notice are alien to the issues that require consideration this Court. On this very ground the notice under counter is liable to be rejected. The Defendant has filed the application under counter only to protract the proceedings and it has become the habit of Defendant to file one after the other application and since the Defendant deliberately failed to pay the entire arrears of rent, he has no voice to raise and in view of the same the application under counter is liable to be rejected. Earlier the Defendant used to pay the damages in Court.

4)   It is the case of the Plaintiff that legal notice which is marked as Ex.P.3 was issued by the Plaintiff to the Defendant and the same was duly served and Defendant has replied the notice admitting the relationship of landlord and tenant. Defendant had offered to even enhance the rental income and even go to the extent of purchasing the property if the Plaintiffs are prepared to sell the same. In the said reply notice the identity of the property and the relationship of landlord and tenant is not disputed. Under these circumstances, the question of filing an application of this nature that too in a suit for ejectment is nothing but gross abuse of the due process of law and the Defendant is required to be hauled up for contempt. The only property let out to the Defendant is shop No.19/2, it is wrongly typed as No.19/3, which is a typographical error. Other than the property number the remaining material particulars are correct like the boundaries, measurement etc., Just because there was an error in mentioning the property number and when the remaining material particulars are the same the effect of the ejectment notice cannot be taken away. Hence, on this ground the application under counter is liable to be rejected. The Defendant is filing number of applications under different provisions of law and for the same reliefs and the said applications have been rejected by this Court. Thus, the Plaintiff prayed to dismiss the application filed by the Defendant.

5)   Heard arguments of both the sides.

6)   Now the points that arise for my consideration are:

  1. Whether the Defendant has made out reasonable grounds to allow the present application?
  2. What Order?

7)   My findings on the above points are as follows:

1. Point No.1         In the affirmative.

2. Point No.2          As per final order for the following.

REASONS

8)   Point No.1: As already observed above, here the Plaintiffs have filed this suit against the Defendant by name R.T.Lakshminarayana Shetty for the vacant possession of the suit schedule premises. When this Court has gone through the whole file, it revealed that both the parties have filed so many Interlocutory Applications which have been disposed off by this Court. This suit was earlier filed as O.S No.25827/2009, in the year 2009 itself. But there afterwards, due to change of law, the said suit has been transferred to this Small Cause Court and re-numbered as S.C.No.15471/2011. The Order sheet reveal that the Defendant appeared before the Court through their Counsel and filed his objections. There afterwards, on behalf of the Plaintiffs their General Power of Attorney holder has got examined as PW1 and he has been fully cross-examined by the other side. There afterwards, some I.As have been filed one after the another and once this case also been referred to Mediation Center and the case has been referred back to this Court as the compromise did not take place in between the paeties.

9)   Here, it is important to note that earlier the suit schedule premises mentioned as premises No.19/3, old No.19-2 situated at Channarayaswamy temple street, there afterwards, during the proceeding of this suit before this Court an application has been filed by the Plaintiffs to get amend the schedule of premises as “19/2”, stating that due to typographical error, the premises number has been mentioned as 19/3 but it is “19/2”. The said application was allowed by this Court against the said order the Defendant also preferred Writ Petition. The Hon’ble High Court of Karnataka has confirmed the order passed by this Court. There afterwards, the Advocate for Defendant filed his additional Written Statement. Again the case has been posted for cross-examination of PW1. Now, the Advocate for Defendant has came up with the present application stating that as per admission of the Plaintiff, the premises No.19/3 has been sold out and in premises No.19/2 M/s Bangalore Perfumers are in possession. So the Defendant is not in possession of the present suit schedule premises. Hence, this suit has to be dismissed as infructuous.

10)At this juncture, it is also pertinent to note that before filing the present I.A the Advocate for Defendant had also issued a notice “ to admit the fact” under Order 12 Rule 5 of C.P.C to the Plaintiff to admit the sale of shop premises No.19/3 under Sale deed dated 17/8/2005 and also to admit the fact that the tenant of M/s Bangalore Perfumers shop No.19/2 has obtained temporary injunction against the Plaintiffs of the present case in O.S No.5100/12 in C.C.H No.7. For the said notice, the Plaintiffs have filed their objection stating that the Defendant is at liberty to produce the certified copy of the sale deed regarding shop premises No.19/3 and regarding O.S No.5100/12 is concerned, the said suit was filed by the father of this Defendant at the instance and instigation of the present Defendant. It is also stated by the Plaintiffs that this Defendant is at liberty to produce the certified copy of the said original suit proceedings. By going through the objections filed by the Plaintiffs to the said notice, it reveal that the Plaintiffs have admitted the fact of sale of shop premises No.19/3 and also the temporary injunction obtained by M/s Bangalore Perfumers of shop No.19/2 in O.S No.5100/12 in CCH No.7. More over, here the Advocate for Defendant also drawn the attention of this Court towards the Cross- examination of PW1. He has deposed in his Cross- examination which has been recorded on 6/2/2012, he has deposed as:

                        “ ….. Shop which is next to M/s Bangalore Perfumers is                  sold. My wife and her sister had sold the same about 8 years                        back. It may be true that said shop is No.19/3”

This PW1 is the General Power of Attorney holder of the Plaintiffs in the present case. As per the above deposition the shop No.19/3 has already been sold out. More over, to the notice issued by the Defendant can produce the certified copy of the said Sale deed. It is very pertinent to note that the Plaintiffs have not denied the fact of sale premises No.19/3.

11)Regarding 19/2 also, this PW1 has deposed in his Cross-examination as:

                        “…..Xerox copy of the Lease deed is pertaining to 19/2.                        It is true to say that as per the said Lease deed tenant is                     Shivapratap. It is true to say that as per the Lease deed                                      business carried out in the said property is Bangalore                               Perfumers. It is true to say that Ex.P2 was signed by my                        father in law and it was issued in favour of Bangalore                                   Perfumers”.

So as per the above deposition, the premises No.19/2 is in possession of M/s Bangalore Perfumers. More over, to the notice issued by the Defendant to admit the fact of temporary injunction obtained by the M/s Bangalore Perfumers against these Plaintiffs, in the objection statement the Plaintiffs have stated that the Defendant is at liberty to produce the certified copy of the said injunction order obtained byn the said M/s Bangalore Perfumers. But it is further stated that the said suit is filed by the daughter of this Defendant. So the said objection statement reveal that the Plaintiffs have not denied the fact of obtaining temporary injunction by the M/s Bangalore Perfumers against these Plaintiffs.

12)Further, the Defendant along with the present application also produced the Xerox copy of the order sheet of O.S No.5100/12 filed by M/s Bangalore Perfumers against these Plaintiffs which was filed for relief of temporary injunction. He has also produced the Xerox copy of the Plaint of the said O.S.No.5100/12. The Schedule of the said suit also reveal as:

                        Shop Premises bearing No.19/2, measuring 10×28                         situated at Channarayaswamy Temple Street, Kumbarapet                           Cross, Bangalore-560002,

              Bounded on:

                        East by : Channarayaswamy Street

                        West by : Private Property

                        North by : Shop sold by Defendant

                        South by : Shop No.19/1

The schedule of the amended Plaint of the present case also reveals as:

                        All that part and parcel of portion of premises No.19/2,                  Old No.19-20, situated at Channarayaswamy Temple Street (Kumbarapet Cross) facing main street, Bangalore, measuring about 10 feet by 28 feet and the same is bounded on the:

                        East by : Road

                        West by : Private Property

                        North by : Earlier property owned by S.Abdul Khayyum                                               now belonging to others.

                        South by : Remaining portion of the same property                                             owned by Nagina Mastan and Sabina Banu.

By going through both the schedule, they reveal one and the same. When the document reveal that in O.S No.5100/12, M/s Bangalore Perfumers are in possession of premises No.19/2, how can this Defendant also be in possession of the same schedule property? Of course, here the argument of the counsel for the Plaintiff is that the proprietor of M/s Bangalore Perfumers, M/s. Uma Srinivasan D.S is none other than the daughter of this Defendant only. To that effect no documents produced before the Court. More over these Plaintiffs have also not produced any documents to show that this Defendant has transferred the tenancy or sub-let the same premises to the said M/s Bangalore Perfumers. Here, the PW1 has deposed very clearly in the Cross-examination saying that “My father-in-law has leased out the premises No.19/2 to M/s Bangalore Perfumers” such being the case, definitely this suit would become infructuous.

13)Of course, here this Court has also observed that in the quit notice issued by the Plaintiffs to the Defendant he has admitted the tenant and landlord relationship between themselves in respect of premises No.19/3. But the said premises No.19/3 has already been sold out. More over this Court also observed that the Order sheet reveal that after appearing before the Court , the Defendant had been paying rents in the Court itself till March 2013 (as per order sheet) But now the facts and circumstances and the documents reveal entirely a different thing. The present suit schedule premises is neither premises No.19/3 nor premises No.19/2. Under such circumstances when there are admissions to this effect by the PW1 himself in the Cross-examination and also in the objections filed to the notice issued by the Advocate for Plaintiff, this suit has to be dismissed as infructuous. Hence, I answer this point No.1 in the affirmative.

14)Point No.2:In view of the findings on point No.1, the following order is passed.

ORDER

Suit is dismissed as infructuous. No order as to costs.