IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO. 38924 OF 2018 (GM-CPC) BETWEEN:
B. P. VANI W/O LATE DR BALASUBRAMANIAN N AGED ABOUT 53 YEARS, R/AT NO. 56/2 4TH MAIN, 18TH CROSS, MALLESHWARAM BENGALURU - 560 055.
(BY SRI. S. V. PRAKASH, ADV.) AND H. K. GOVINDAPPA MAJOR S/O KRISHNAPPA R/AT NO. 29, VAISHNAVI HOMES 2ND FLOOR, 1ST MAIN, 10TH CROSS, MALLESHWARAM BENGALURU - 560 003.
(BY SRI. B. PAPE GOWDA, ADV.) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 21.07.2018 PASSED BY THE COURT OF LEARNED XVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU IN OS NO.2447/2015 VIDE ANNX-G.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
Order The plaintiff in O.S.No.2447/2015 has filed the present writ petition against the order dated 21.07.2018 framing additional issue Nos.1 to 4 by the learned trial Judge.
2. The plaintiff has filed the suit for specific performance to enforce the agreement dated 15.11.2012 against the defendant raising various contentions. The defendant filed written statement denying the plaint averments and contended that the suit itself is not maintainable since there is no jural relationship between the plaintiff and defendant in view of the sale agreement of the suit schedule property and defendant continued in the suit schedule premises as an agreement holder and not a tenant, etc., and sought for dismissal of the suit.
3. After completion of the evidence and arguments on both sides, when the matter was posted for judgment, on 21.07.2018, the learned trial Judge proceeded to frame the following additional issues:
1. Whether the defendant proves that originally he occupied the suit schedule property as a lessee under a Lease Agreement dated 22.3.2009 for a sum of Rs.22,00.000/- from the husband of petitioner namely Dr. Balasumbramaniam?
2. Whether the defendant further proves that on 16.11.2012 he has surrendered the said lease and became a tenant of the suit schedule property and as the said Dr. Balasubramaniam on a monthly rent of Rs.30,000/- and advance amount of Rs.3,00,000/-?
3. Whether the defendant further proves that the said Dr. Balasubramaniam has approached the defendant and offered to sell the suit schedule property and on 8.2.2014 he has paid an advance amount of Rs.31,00,000/- by way of cash and cheque and obtained a sale agreement on 8.2.2014?
4. Whether the defendant further proves that he is/was always ready and willing to perform his part of the contract under the above said agreement dated 8.2.2014?
Hence the present writ petition is filed.
4. Sri. S. V. Prakash, learned counsel for the petitioner, contended that the impugned order passed by the trial Court framing additional issues pertains to a suit for specific performance filed by the respondent against the petitioner in O.S.No.4153/2016 and the same is not relevant to the suit filed for ejectment by the petitioner. He would further contend that though an application came to be filed by the respondent for clubbing O.S.No.2447/2015, suit filed for ejectment, with O.S.No.4153/2016, suit filed for specific performance, the trial Court by an order dated 24.08.2016 rejected the said application on the ground that there are no grounds to club both the suits. The said order passed by the trial Court has reached finality. Therefore, the impugned order framing additional issues, cannot be sustained. Therefore he sought to allow the present writ petition.
5. Per contra, Sri. Pape Gowda, learned counsel for the respondent, submits that though the plaintiff filed O.S.No.2447/2015 for ejectment on the ground that the respondent is a tenant under her, the respondent also filed O.S.No.4153/2016 against the present petitioner for specific performance to enforce the agreement dated 08.02.2014. It is further contended that once the agreement is entered into between the parties, respondent is not a tenant and he is an agreement holder. When the matter was posted for judgment, the learned trial Judge has framed the additional issues. Therefore, he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is undisputed fact that the present petitioner filed O.S.No.2447/2015 for ejectment against the respondent on the ground that respondent is a tenant under her. The same was disputed by the respondent by filing objections and contended that the present petitioner has executed an agreement in favour of the defendant on 08.02.2014. The present respondent has filed a suit for specific performance and the said suit is still pending. Once the agreement is executed, the defendant seizes to be a tenant and they are agreement holders. It is also not in dispute that during the pendency of the proceedings, the respondent filed an application under Section 151 of the Code of Civil Procedure to club both the suits. The trial Court, by the order dated 24.08.2016, considered the entire materials on record and recorded a finding that the suit filed by the present petitioner for ejectment and suit filed by the present respondent for specific performance, are based on different cause of action and are filed seeking different reliefs. Therefore clubbing of both the suits is not permissible and not proper. Accordingly, by an order dated 24.08.2016, rejected the said application. The said order has reached finality.
7. It is also not in dispute that after completion of evidence on both sides and after arguments in O.S.No.2447/2015, the matter was reserved for judgment. At that stage, the trial Court framed additional issues stated supra. On a careful reading of the additional issues, it is clear that all the issues pertains to specific performance and not ejectment. In O.S.No.2447/2015, the suit filed for ejectment, the trial Court has framed issues on 29.03.2016 and in O.S.No.4153/2016, the suit filed for specific performance, the trial Court has framed issues on 24.08.2016, separately. It is for the learned trial Court to proceed to pass appropriate judgment decree on the ejectment suit and the specific performance suit, separately, based on the issues framed and the oral and documentary evidence adduced in the respective suits. Therefore, the additional issues which pertains to specific performance, framed by the trial Court in the suit filed for ejectment, are not necessary.
8. In view of the above, the writ petition is allowed. The impugned order passed by the trial Court dated 21.07.2018 framing additional issues are hereby quashed. The trial Court is directed to proceed with the matter, in accordance with law.
Sd/- Judge RD