IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.91 OF 2015 (M) BETWEEN:
MR.L.I.NATHAN @ NATHAN, AGED ABOUT 55 YEARS, S/O LATE LOURD NATHAN, FORMERLY RESIDING AT NO.31/4, MOORE ROAD, III CROSS, FRAZER TOWN, BENGALURU – 560005.
PRESENTLY RESIDING AT NO.1, RATHAN SINGH ROAD, FRAZER TOWN, BENGALURU – 560005. …PETITIONER (BY SRI.K.V.SHYAM PRASAD, ADVOCATE) AND:
1. MRS.LIZY ARUN, AGED ABOUT 65 YEARS, W/O.MR.A.ARUNCHALAM.
2. MR.A.ARUNACHALA, AGED ABOUT 66 YEARS, S/O LATE M.AMRUTHALINGAM.
BOTH ARE RESIDING AT NO.212, VIII “B” MAIN ROAD, HRBR LAYOUT, 1ST BLOCK, KALYAN NAGAR, BENGALURU – 560043. ...RESPONDENTS (BY SRI.M.SHAMANNA, ADVOCATE) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURTS ACT, 1964, AGAINST THE ORDER DATED 09.12.2014 PASSED ON IA NO.1 IN MISC.NO.90/2014 ON THE FILE OF I ADDL. SCJ AND MACT, BENGALURU, DISMISSING THE IA NO.1 FILED UNDER ORDER 7, RULE 11(D) READ WITH SECTION 151 OF CPC., THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed for setting aside the impugned order dated 09.12.2014 on I.A.1 filed under Order VII Rule 11(d) in Miscellaneous No.90/2014 passed by the I Additional Small Cause Judge, Bengaluru (SCCH 11).
2. The facts briefly stated are that the respondents are the landlords of the schedule premises. The petitioner was the tenant. The respondents had filed SC No.3309/2011 for ejectment of the tenancy. The said Small Cause was allowed by order dated 16.1.2014 and the defendant-tenant petitioner herein was directed to quit, vacate and hand over the schedule premises within two months to the respondent. The petitioner herein had preferred Civil Revision Petition against the said order which came to be dismissed and the petitioner was granted time to vacate the schedule premises till 31.12.2014 subject to payment of rents regularly. The petitioner tenant was paying the agreed rents as per the order passed in CRP No.108/2014. Thereafter the respondent landlord filed a miscellaneous case for determination of rent at the rate of Rs.5,000 p.m. from April, 2007, under Order XX Rule 12 CPC and mesne profits at the rate of Rs.7,500/- p.m. from the date of determination of tenancy till the date of handing over actual possession of the schedule premises. The petitioner herein appeared in the said Miscellaneous Case No.90/2014 and filed a written statement and IA 1 under Order VII Rule 11(b) CPC.
3. On hearing both the parties IA 1 was rejected. Being aggrieved by the said order the petitioner has preferred this revision petition.
4. The first and foremost contention of the counsel for the revision petitioner is that there was no direction in the judgment and decree passed in S.C. No.3309/2011 to pay the rent or damages. Even in the revision petition filed by the petitioner against the impugned order passed in S.C. No.3309/2011 the Hon’ble High Court has observed that even though there is a serious dispute with regard to payment of rents there is no adjudication by the Court below in that regard and no definite finding is given with regard to arrears of rent. With this observation the Hon’ble High Court desisted for making any observation with regard to payment of arrears of rents. Even the Court below namely the small cause court after considering the evidence placed on record has given a finding that the contention of the plaintiffs regarding the arrears of rents cannot be accepted for want of documentary evidence. Further it is observed that the plaintiffs have not proved by sufficient documentary evidence regarding the damages of Rs.7,500/-. Therefore, the plaintiffs are not entitled for damages as claimed in the suit. With this observation the trial Court has come to the conclusion that the plaintiff is entitled for relief of ejectment and not for any damages as claimed in the suit. Under these circumstances, the respondents had no locus standi to file a separate miscellaneous for determination of the rent or damages as claimed by them. But the court below has not at all considered these aspects and has proceeded to pass an order for rejection of IA under Order VII Rule 11(d). When there is no specific direction by the small cause court for enquiry under Order 20 Rule 12 CPC a separate miscellaneous filed for determination of mesne profits is not maintainable. The court below has failed to consider the same. Thus it has resulted in miscarriage of justice.
5. On the earlier occasion i.e., on 28.3.2019 the counsel for the respondent had submitted his arguments. Thereafter the matter was posted for further arguments, but there is no representation by the counsel for the respondent.
6. The present revision petition is filed against the order passed on I.A.1 filed under Order 7 Rule 11(d).
Order VII Rule 11(d) reads as under:
“ 11. Rejection of plaint - The plaint shall be rejected in the following cases-
(a) xxxxxxxxxx (b) xxxxxxxxxx (c) xxxxxxxxxx (d) where the suit appears from the statement in the plaint to be barred by any law”
7. According to the counsel for the petitioner there is no preliminary decree or a direction for conducting the enquiry regarding payment of mesne profits, since the issue regarding payment of rent or damages has already been heard and decided finally and the same has not been challenged by the respondent. As such, the respondent landlord has no legal right to claim the relief as the order passed in Small Cause No.3309/2011 has reached finality.
8. As could be seen from the order passed in Small Cause No.3309/2011 dated 16.1.2004 the court below has observed that the contention of the plaintiff – landlord regarding the arrears of the rent cannot be accepted for want of documentary evidence.
9. It is also observed that the plaintiff is entitled for the relief of ejectment only and not for any damages as claimed in the suit. It is pertinent to note that the small cause court has partly decreed the suit against the defendant and has granted two months time. There is no specific direction for a separate enquiry regarding payment of mesne profits namely the rent or damages. Being aggrieved by the said order the petitioner tenant had preferred the revision petition before the High Court in CRP No.108/2014 wherein the issue regarding payment of rent had come up for consideration but it was observed by the High Court that though there was a serious dispute with regard to payment of the rent, there is no adjudication by the court below in this regard and a definite finding is not given with regard to the arrears of rent also. As such, the same was not considered.
10. The main points that arise for consideration is that the respondent landlords have not challenged the impugned order dated 16.01.2014 passed in S.C. No.3039/11 not granting the relief for holding the enquiry regarding the mesne profits or for payment of arrears of rent. Even in the CRP filed by the petitioner tenant, no finding was given with regard to arrears of rent. Under these circumstances, the respondent landlord had lost his right of claiming enquiry regarding mesne profits. Another important aspect to be considered is that both the parties have led their evidence before the small cause court regarding payment of agreed rent, arrears of rent and damages, etc., The documentary evidence is also placed on record. On appreciating the oral and documentary evidence the small cause Court has discussed about the dispute regarding the rent payable by the petitioner tenant and has come to the conclusion that the plaintiff is not entitled for any damages. It is also held that the plaintiff’s claim regarding arrears of rent cannot be accepted for want of documentary evidence. Thus it is evident that the issue regarding payment of rent or damages was considered and a finding was given that the respondent herein was not entitled for damages.
This issue was heard and decided between the landlord and tenant finally and when the said finding was not challenged by the respondent landlord, the same cannot be reagitated by filing the miscellaneous case for enquiry regarding mesne profits. But the court below has failed to consider these aspects and has rejected the application under Order 7 Rule 11(d) CPC. The finding given by the court below for rejection of IA 1 filed under Order 7 Rule 11 (d) is erroneous. The impugned order cannot be sustained in law.
11. After hearing the learned advocates and on reconsidering the material on record this Court is of the view that there are valid grounds to interfere with the impugned order and to set aside the same. Accordingly, the civil revision petition is allowed. The impugned order dated 09.12.2014 on I.A.1 filed under Order VII Rule 11(d) in Miscellaneous No.90/2014 passed by the I Additional Small Cause Judge, Bengaluru, is set aside.
Consequently the application under Order VII Rule 11(d) CPC is allowed and Misc. Case No.90/2014 is dismissed.
Sd/-
JUDGE ykl