IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B VEERAPPA W.P.NO. 9727/2019 (GM-CPC) BETWEEN:
MR.K.K.YOUSAF S/O MOMMED AL-BQITHMI BISMI AGED ABOUT 61 YEARS R/A OLD ROAD, KUTHUPARAMBA POST KANNUR DISTRICT KERALA 670643 … PETITIONER (BY SRI JAGADISH D HIREMATH, ADV.) AND:
1 MRS.FATIMA ISHRAAT JEHAN D/O LATE ABDUL HAFEEZ KHAN AGED ABOUT 69 YEARS R/A NO.66, MANFIELD ROAD NORTHAMPTON, NNI-4NN, UNITED KINGDOM REP. BY HER SPA HOLDER DR.K.ZIANULLA SHARIFF, AGED 65 YEARS R/A NO.320, YAMUNA, B4, NATIONAL GAMES VILLAGE KORAMANAGALA BENGALURU 560 034 2 MRS.FATIMA TALATJEHAN W/O DR.SHARIF, AGED 65 YEARS R/A NO.320, YAMUNA B4, NATIONAL GAMES VILLAGE KORAMANAGALA BENGALURU 560 034 … RESPONDENTS (BY SRI MUHAMMAD SHAMIL, ADV FOR SRI P.B.AJIT, ADV.) THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 14.1.2019 PASSED ON I.A.NO.3 BY THE LEARNED CITY CIVIL JUDGE AT BENGALURU IN O.S.NO.854/2017 AS PER ANNEXURE- G.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Defendant filed the present writ petition against the order dated 14.01.2019 passed on I.A.No.3 by the learned City Civil Judge, Bengaluru in O.S.No.854/2017 rejecting the application filed by defendant under Order 14 Rule 5 CPC seeking to frame two additional issues.
2. Respondents – plaintiffs filed a suit for ejectment and mesne profits/damages at the rate of Rs.7500/- per month from the date of termination of tenancy of schedule property vide legal notice dated 17.10.2015 by raising various contentions. The defendant – petitioner filed the written statement denying the plaint averments. When the matter was posted for defendant’s evidence, defendant filed an application under Order 14 Rule 5 CPC read with Section 151 CPC to frame additional issues as to whether suit is maintainable without serving notice under Section 106 of Transfer of Property Act and whether plaintiffs prove that they are owners of suit schedule property contending that notice sent was not served on the defendant and service is mandatory under Section 106 of Transfer of Property Act and though a specific contention was taken in the written statement regarding ownership of property, the trial Court has not framed the issues and therefore he sought to frame two additional issues. Said application was objected to by the plaintiffs contending that very application filed is not maintainable; that defendant has admitted the relationship between plaintiffs and himself as landlord and tenant in respect of suit schedule property; defendant has executed lease deed which is already marked as exhibit; after producing the lease deed, it is not open for the defendant to question the ownership regarding suit schedule property, more so, application filed under Order 14 Rule 5 CPC is not maintainable and sought for dismissal of the application. Trial Court has proceeded to reject the application by the impugned order without assigning any reasons and therefore, present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri Jagadish Hiremath, learned counsel for the petitioner contended that impugned order passed by the trial Court rejecting the application under Order 14 Rule 5 CPC seeking to frame two additional issues is erroneous and cannot be sustained. He would further contend that impugned order passed by the trial Court is not a speaking order and absolutely no reasons are assigned to reject the application. In the absence of the same, impugned order cannot be sustained. Hence, he sought to allow the application.
5. Per contra, Sri Muhammad Shamil, learned counsel for the respondents-plaintiffs sought to justify the impugned order and contended that when the defendant has already admitted relationship of plaintiff and defendant as landlord and tenant, notice terminating the tenancy was sent, the trial Court is justified in rejecting the application and there is no need to frame additional issues sought for. Therefore he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is an undisputed fact that plaintiffs filed a suit for ejectment raising various contentions and for damages of Rs.75,000/- per month from the date of termination of tenancy of the schedule property by legal notice dated 17.10.2015. Defendant filed written statement denying plaint averments. When the matter was posted for defendant’s evidence, the present application came to be filed under Order 14 Rule 5 CPC requesting the Court to frame two additional issues as sought for. Same was opposed by the plaintiffs.
7. The trial Court while rejecting the application – I.A.3 has only stated that in a suit for ejectment, proposed issues now sought are not necessary and issue Nos.1 and 2 earlier framed are sufficient. Absolutely no reasons are assigned with regard to contentions raised in the application and objections filed to the said application. Impugned order is not a speaking order. Trial Court has to apply its mind to the pleadings, written statement and objections and has to pass appropriate orders after assigning proper reasons. In view of the above, impugned order cannot be sustained.
8. For the reasons stated above, writ petition is allowed. Impugned order dated 14.01.2019 passed on I.A.No.3 by the learned City Civil Judge, Bengaluru in O.S.No.854/2017 is set aside. The matter is remanded to the trial Court for fresh consideration of I.A.No.3 and pass appropriate orders with proper reasons in accordance with law.
Sd/- JUDGE *sp