IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO. 8645/2017 (GM-CPC) BETWEEN:
M. GOVINDASWAMY S/O MUNISWAMY AGED 57 YEARS PROP: NEW SHALIMAR HAIR CUTTING SALOON HALAPPA SONS COMPOUND DURGIGUDI, SHIVAMOGGA – 577 201 ... PETITIONER (BY SRI. *P.N. HARISH, ADV.) AND:
1. D.V.SUDARSHAN S/O D.N.VENKATESH MURTHY AGED ABOUT 67 YEARS HALAPPA SONS COMPOUND DURGIGUDI, SHIVAMOGGA – 577 201 2. YELLAMMA GOVINDASWAMY W/O M.GOVINDASWAMY MAJOR IN AGE PROP: SHALIMAR PARLOUR HALAPPA SONS COMPOUND DURGIGUDI, SHIVAMOGGA – 577 201 ... RESPONDENTS ***** *Corrected vide chamber order dated 12.12.2017 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.01.2017 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA IN O.S.NO.520/2014 PRODUCED AT ANNEXURE-E AND THEREBY ALLOW THE IA NO.3 FILED BY THE PETITIONER IN O.S.NO.520/2014 ON THE FILE OF THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA PRODUCED AS PER ANNEXURE-C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner filed this writ petition against the order dated 03.01.2017 passed by Principal Civil Judge & JMFC Shivamogga in O.S.No.520/2014, rejecting IA-3 filed by the petitioner under Order VII Rule 11 read with Section 151 of Code of Civil Procedure.
2. The respondent No.1, who is the plaintiff in O.S. No. 520/2014, filed the suit for eviction and recovery of possession against the petitioner and respondent No.2 in respect of suit schedule property which is more fully described in the schedule as ‘A’ & ‘B’ and put the plaintiff in vacant possession of the same and for mesne profits/damages and recovery of Rs.76,221/- being arrears of rent along with interest at the rate of 18% per annum contending that, the plaintiff is the owner of the suit schedule properties and the defendant No.1 has taken the suit ‘A’ schedule property on lease on 15.09.1983 and defendant No.2 has taken the suit ‘B’ schedule property on lease on 29.01.1999. Though lease commenced on different dates, subsequently the defendants clubbed the lease relationship together and begun to remit the payment in common. The defendants are due in a sum of Rs.76,221/- as on the date of filing of the suit. The plaintiff is entitled to claim damages for use and occupation of the schedule properties by the defendants unauthorizedly subsequent to the date of termination. As the defendants did not comply with the terms of notice, hence sought their eviction from the suit schedule property.
3. Defendant No.1 filed written statement denied the plaint averments and contended that the Court has no jurisdiction to try this suit for the relief of eviction against the defendants in respect of both the schedule properties. The suit ‘A’ schedule property is measuring less than 14 square meters. The measurement in respect of ‘A’ schedule property is 15X10 feet which is equal to 150 square feet and it is less than 14 square meters, etc. Hence sought for dismissal of the suit.
4. When the matter was posted for plaintiff’s evidence, the defendant No.1 filed an application under Order VII Rule 11 R/w Sec.151 of Code of Civil Procedure to reject the plaint mainly on the ground that ‘A’ schedule property is less than 14 square feet. Therefore, he sought to dismiss the suit. Said application was resisted by the plaintiff contending that schedule is comprised of two properties. The defendants have taken them on lease from the plaintiff and are making use of both the properties in common for commercial purpose. The same has been clearly explained in the plaint. The total area covered by both the properties is more than 14 square feet. The applicant has taken the measurement of only schedule ‘A’ property.
5. The trial Court considering the application and objections, by the impugned order dated 03.01.2017 rejected IA-III. Hence present writ petition is filed.
6. I have heard Sri.P.N.Harish, the learned counsel for the petitioner who has vehemently contended that the impugned order passed by the trial Court rejecting the application filed under Order VII Rule 11 (d) is erroneous and contrary to the material on record. He would further contend that the trial Court has failed to appreciate that in the plaint itself the plaintiff has contended that the lease of ‘A&B’ schedule properties has been obtained on different dates and the rent for them is also at different rates and the nomenclature of the business is also different. The plaint also reveals that the respondent No.2 is the owner of the business carried out in the ‘B’ schedule property and in the cause title it is mentioned as such and same is not considered by the Court below. He would further contended that the measurement of ‘A’ schedule property is less than 14 square meters and suit for eviction is not maintainable. Hence, he prays to allow writ petition.
7. Having heard the learned counsel for petitioner, it is clear from the plaint averments that the suit is filed by the plaintiff against the defendants for eviction of suit schedule property in respect of suit ‘A & B’ schedule property and for arrears of rent contending, he is the owner of the suit schedule properties and defendants are the tenants but tenancy is not in dispute. Only dispute is with regard to the measurement shown in ‘A’ schedule property. It is the specific case of the respondent No.1 in his objection that the schedule properties comprised of two properties. The defendants have taken them on lease from the plaintiff and making use of both the properties in common for commercial purpose. The total area covered by both the properties is more than 14 square feet. The applicant has taken the measurement of only schedule ‘A’ property without referring to schedule ‘B’ property. The application filed by the defendant No.1 under Order 7 Rule 11 Read with Section 151 of Code of Civil Procedure only says rejection of the plaint for want of jurisdiction.
8. The suit filed for eviction of the defendants from the suit schedule properties consisting of ‘A’ and ‘B’ schedule. ‘A’ schedule is a commercial premises measuring 15X10 feet and ‘B’ schedule is also a commercial premises measuring 170 square feet. It is further recorded that in order to reject the plaint under order 7 Rule 11(d), it must appear from the statement made in the plaint that same is barred by any law. In this suit, plaintiff has specifically pleaded clubbing of tenancy including ‘A’ and ‘B’ schedule premises. Therefore, he asserts that the measurement of the schedule property is more than 14 square meters and the Court has got jurisdiction to entertain the suit. To consider the application filed by the defendant under Order 7 Rule 11(d), the contentions taken up by the defendants in their written statement is not relevant. However, considering the objections raised by the defendants regarding maintainability of the suit, issue No.7 has been framed and the said issue would be considered by the Court at the appropriate stage. Accordingly the trial Court rejected the application. Further, “Whether the suit property is less than 14 square meters or more than 14 square meters”? has to be adjudicated by the parties after a full-fledged trial.
9. The trial Court has rightly adjudicated the case with regard to the maintainability of suit. The defendants have not made out any ground for rejection of the plaint with respect to ‘A’ schedule property filed under Order 7 Rule 11(d) of CODE OF CIVIL PROCEDURE. As such, the trial Court has rightly rejected the application and petitioner is not entitled for the relief sought under Article 227 of Constitution of India.
Accordingly petition is dismissed.
Sd/- JUDGE JS/-