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2010 DIGILAW 795 (KAR)

Mukesh Jain v. Sandhya E. Rao

2010-07-09

ARAVIND KUMAR

body2010
Judgment :- Aravind Kumar, J: This is a plaintiffs appeal questioning the correctness and legality of judgment and decree passed in O.S.No.7113/2006 by the XXIV Additional City Civil Judge. Bangalore dated 12.10.2007 where under plaintiff’s suit for declaration and perpetual injunction to declare as null and void the judgment and decree passed in SC.No.2183/2003 on the file of the Chief Judge, Court of Small Causes has been dismissed. This Court by order dated 26.6.2008 had ordered for securing the trial Court records and same has been received. Hence, by consent of learned Advocates the appeal is taken-up for final hearing at the stage of admission itself. 2. The facts in nutshell leading to the filing of this appeal are as under: Prior to filing suit SC.No.2183/2003, Plaintiff had filed a suit O.S.No.3627/2002 and plaint came to be returned on 22.10.2003 for being presented before the Chief Judge, Court of Small Causes and on such representation of the plaint the suit in question came to be registered as SC.No.2183/2003. SC.No.2183/2003 was filed by the first respondent herein against the second respondent for ejectment of the second respondent (on the ground that he was a tenant) from the suit schedule property. It was contended that suit schedule property originally belonged to the father of the first respondent Sri U. Jagannatha Rao and on account of gift deed executed by the said U. Jagannatha Rao on 19.03.1980 in favour of his daughter Sandhya E. Rao she claimed to be the owner of the suit schedule property and a suit SC.No.2183/2003 was filed by her for ejectment of second respondent herein from the suit schedule property. It was contended in the suit that 2nd respondent is the proprietor of M/s.Manoranjan Enterprises. Prior to the filing of the suit notice of termination of tenancy has been issued by above said Smt. Sandhya to Sri.P.Suresh Kumar on 21.03.2002 which also came to be replied by the said Suresh Kumar i.e.. second respondent herein on 29.04.2002. The defendant therein also filed the written statement contraverting the plaint averments and after recording the evidence of the parties said suit came to be decreed on 07.07.2006. 3. second respondent herein on 29.04.2002. The defendant therein also filed the written statement contraverting the plaint averments and after recording the evidence of the parties said suit came to be decreed on 07.07.2006. 3. It is pertinent to state at this juncture that during the pendency of the above said SC.No.2183/2003 the appellant herein had filed an application under Order 1 Rule 10(2) to get himself impleaded and on 29.06.2006 the said application came to be rejected which has reached finality inasmuch as there being no challenge to the said order. Subsequently on 07.07.2006 the judgment and decree has been passed in SC.No.2183/2003 as referred to supra. 4. The said impleading applicant who is the appellant in the present appeal instituted a suit O.S.No.7113/2006 on the file of the City Civil Court for declaration to declare that judgment and decree passed in SC.No.2183/2003 by the Chief Judge, Court of Small Causes as null and void and not binding on the plaintiff and also sought for relief of permanent injunction to restrain the first defendant i.e.. first respondent herein from executing the judgment and decree dated 07.07.2006 passed in SC.No.2183/2003. 5. On service of notice defendants have entered appearance and first defendant alone has filed the written statement denying the plaint averments. On the basis of the pleadings of the parties the following issues were framed by the trial court: 1. Whether plaintiff proves that he is tenant in the suit schedule property? 2. Whether plaintiff proves that the judgment and decree dated 7.7.2006 in SC.No.2183/2003 passed by Small Causes Court is null and void and not binding of him? 3. Whether plaintiff is entitle for the relief of permanent injunction from executing the judgment and decree in SC.No.2183/2003? 4. Whether 1st defendant proves that suit is not properly valued and the court fee paid is not sufficient? 5. What order or decree the parties are entitled to? 6. Plaintiff in support of his contentions raised in the plaint got himself examined as PW.1 and got marked Exs.P1 to P70. The first defendant got herself examined as DW-1 and has got marked Exs.D1 to D8. On considering the arguments advanced and evidence tendered by the parties, trial court by its judgment. and decree dated 11.10.2007 has dismissed the suit. It is this judgment and decree which is assailed in the present appeal. 7. Heard Sri. The first defendant got herself examined as DW-1 and has got marked Exs.D1 to D8. On considering the arguments advanced and evidence tendered by the parties, trial court by its judgment. and decree dated 11.10.2007 has dismissed the suit. It is this judgment and decree which is assailed in the present appeal. 7. Heard Sri. S. Subramanya, learned Counsel appearing for the appellant and Sri. K. Shivaji Rao, learned Counsel appearing for first respondent caveator. The suit against the second respondent herein having been dismissed by order dated 19.07.2007 by trial court and plaintiff i.e., appellant herein having not taken steps to get the suit restored against the 2nd respondent/defendant issuing notice to respondent in this appeal does not arise. 8. It is the contention of the learned Counsel for appellant that judgment and decree of trial court is erroneous on the ground that trial court at Paragraph 12 of its judgment has taken into consideration the age of the plaintiff as the sole criteria for dismissing the suit and this is not in consonance with the pleadings of parties and no issue having been framed in this regard and on account of the non-framing of the issue the plaintiff was unable to demonstrate as to how that finding of trial court is erroueous and hence submits that judgment and decree passed by trial court is required to be set aside. He would also submit that first and second defendants have colluded amongst themselves and obtained a collusive decree and plaintiff/appellant was the tenant under the first respondent and contends that documents produced by the plaintiff would establish this fact which has been ignored by trial court without any reason and accordingly submits that judgment and decree passed by trial court is required to be set aside. He would elaborate his submission to contended that non-challenging the order of rejection of an application filed by appellant herein under Order 1 Rule 10(2) of Code of Civil Procedure in SC.No.2183/2003 does not preclude the appellant/plaintiff from questioning the said judgment and decree passed in an independent suit inasmuch as under Section 105 of Code of Civil Procedure a right to the plaintiff is available to question such order and accordingly he submits that judgment and decree of trial court is required to be set aside and appeal is to be allowed. 9. Per contra Sri. 9. Per contra Sri. Shivaji Rao, learned Counsel appearing for first respondent by supporting the judgment and decree passed by trial court would draw the attention of the Court to the fact that prior to initiating the ejectment proceedings against the second respondent herein a notice was issued by the plaintiff i.e., first respondent herein in the year 2002 and in reply to the same the second respondent herein has not taken up a plea that plaintiff was the tenant or that he (2nd respondent) was only working as a Manager in the said firm i.e., M/s. Manoranjan Enterprises which was located in the suit schedule premises. He would also submit that present appellant is none other than the brother of the second defendant who was the tenant of the suit schedule property and in order to scuttle the judgment and decree of ejectment passed in the suit SC No. 2183/2003 both the brothers have devised the suit in question and requests the Court to confirm the judgment and decree passed by trial court. He would also bring to the notice of the Court the written statement filed by second respondent herein in SC. No.2183/2003 to demonstrate that there was no plea raised by the defendant therein i.e., second respondent herein to contend that be was not the tenant of the suit schedule property. On the other hand second respondent has contended that he is the tenant of the suit schedule property and it is only at the stage of evidence for the first time before trial court while filing affidavit in Lieu of examination-in-chief this plea was raised and this plea has been rightly negatived by trial court. He would also submit that when application for impleading filed by the present appellant under Order 1, Rule 10(2) of Code of Civil Procedure came to be dismissed on 26.06.2006 he ought to have challenged the said order which got merged with the decree passed in SC. No. 2183/2003 by making appropriate application for seeking leave of the Court to challenge the said judgment and decree as not binding on him is not filed and having not done so appellant cannot file this suit for declaring the judgment and decree passed in SC.No.2183/2003 as null and void and not binding. On these grounds he supports the judgment and decree passed by trial court and prays for dismissal of the appeal. 10. On these grounds he supports the judgment and decree passed by trial court and prays for dismissal of the appeal. 10. Having heard the learned Advocates appearing for parties and after having perused the Judgment and decree passed by trial court as also the lower court records and on scrutiny of evidence following points arise for my consideration: (1) Whether the suit filed by the appellant herein in O.S.No.7113/2006 could have been prosecuted inspite there being no challenge to the order passed in SC.No.2183/2003 dated 26.06.2006 dismissing the application of the appellant filed under Order 1, Rule 10(2) of Code Civil Procedure? (2) Whether the judgment and decree passed in O.S.No.7113/2006 by the 24th Additional City Civil Judge. Bangalore dated 12.10.2007 is requires to be confirmed, reversed or modified? (3) What Order? 11. Re Point No. 1 Though Sri Shivji Rao, learned Counsel for the first respondent while supporting the judgment and decree passed by the trial court has taken up a legal plea as to maintainability of the suit itself, this court has formulated the above point No.1 for consideration. In order to appreciate the said contention it would be necessary to extract Section 9 of Code of Civil Procedure which reads as under: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. (Explanation I). A suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the decision of question as to religious rites or ceremonies (Explanation II,) – For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” 12. The suit O.S.No.7113/2006 has been filed by the plaintiff claiming to be a tenant of the suit schedule property under 1st respondent herein and it is contended that judgment and decree passed in SC.No.2183/2003 dated 07.07.2006 is not binding on him and to declare the said judgment and decree as null and void. The suit O.S.No.7113/2006 has been filed by the plaintiff claiming to be a tenant of the suit schedule property under 1st respondent herein and it is contended that judgment and decree passed in SC.No.2183/2003 dated 07.07.2006 is not binding on him and to declare the said judgment and decree as null and void. The Civil Courts have jurisdiction to try all suits of civil nature except the suit which either expressly or impliedly are barred and admittedly the declaration that has been sought for by the appellant is not barred either under explanation 1 or 11 section 9. 13. It is a fact that appellant filed an application under Order 1 Rule 10(2) of Code of Civil Procedure to get himself impleaded in the suit SC.No.2183/2003 on the ground that he has got interest and right to contest the suit on the premises that he is a tenant of the suit schedule property. The said application having been dismissed by trial court on 26.06.2006 would not preclude the plaintiff to independently contest, agitate and demonstrate as to how the said decree is not binding on him irrespective of the order having been passed by trial court rejecting his application for impleading, inasmuch as declaration sought for is of civil nature which plaintiff claims for Such a declaration and can be urged in a Civil Court. Even otherwise under Section 105 of Code Civil Procedure the plaintiff is entitled to challenge any order which affects the final decision by raising it as a ground and this is precisely what has been done by the appellant in his Suit OS.No.7113/2006. In view of same this Court is inclined to answer question No.I formulated herein above in favour of the appellant and against the first respondent. 14. Re Point No.2: The contention of the appellant is that he had been inducted to the suit schedule property by the father of the first defendant (first respondent herein) and he was paying the rents in respect of suit schedule property during the life time of Sri. Jagannatha Rao and thereafterwards on execution of the gift deed by Sri Jagannatha Rao in favour of his daughter Smt. Sandhya E. Rao it was being paid to her. Jagannatha Rao and thereafterwards on execution of the gift deed by Sri Jagannatha Rao in favour of his daughter Smt. Sandhya E. Rao it was being paid to her. In order to examine this claim trial court on the basis of the material records made available by the respective parties has scrutinized, analysed and came to a conclusion that said claim is a hollow claim. The reasoning of the trial court is at Paragraph 12 of the judgment. The said finding reads as under “12. The learned Counsel for the 1st defendant in his arguments submitted that in the compliance affidavit filed after injunction was granted has given his age as 40 years in the year 2006 and therefore the age of the plaintiff in the year 1980 was hardly 14 years, and therefore, the say of the plaintiff that he had taken the suit schedule property from the father of 1st defendant before then year 1980 cannot be believed. I find substance in the arguments of learned counsel for 1st defendant. The plaintiff in the compliance affidavit has specifically stated his age as 40 years in the year 2006. Plaintiff has cleverly avoided to give his age either in the plaint or in the plaint or in the affidavit evidence and also when he was examined in court. Anyhow if the age mentioned in the affidavit filed by the plaintiff in the suit is believed then in the year 1980 the plaintiff was hardly aged about 14 years. Therefore, the say of plaintiff that he was a tenant before the suit schedule property was gifted to the plaintiff by U Jagannath Rao Cannot be believed in the fact the plaintiff has admitted in his cross-examination that he has no document to show as to when exactly he took the suit schedule property on lease from U. Jagannath Rao. Plaintiff has produced some receipts claiming that those receipts are issued by the 1st defendant. Most of the receipts are not signed by the 1st defendant and plaintiff himself has stated that those receipts are signed by father of 1st defendant but the same is not proved. 1st defendant has denied her alleged signatures in the receipt produced and marked in the case. Hence no reliance can be placed on those documents. 15. The contention of the plaintiff is that he was inducted as a tenant prior to 1980. 1st defendant has denied her alleged signatures in the receipt produced and marked in the case. Hence no reliance can be placed on those documents. 15. The contention of the plaintiff is that he was inducted as a tenant prior to 1980. The exact date as to when he was inducted as a tenant is not stated and there is no plea putforth even by the plaintiff himself. In the said suit trial court has embarked upon a enquiry to ascertain the truth and to discreen the same it has looked into records produced by the parties. The plaintiff in the cause title of the plaint has stated his age as 40 years and if the say of the plaintiff that he was inducted prior to 1980 is to be accepted as primafacia acceptable evidence, the age of the plaintiff as on date of being inducted as tenant would be less than 14 years and his claim would be a false claim. Thus, trial court found that plaintiffs contention cannot be accepted as it is a hollow claim. 16. Though learned Counsel Sri. Subramanya would contend that mere mention of the age in the plaint cannot be taken as a basis cannot be accepted and it is required to be rejected for two reasons: 1) The suit filed by the plaintiff, contents of plaint are verified under Order 6 Rule 15 and contents of it are presumed to be true and correct. When plaintiff himself states that his age is 40 years as on the date of presenting the plaint i.e., on 7.8.2006 trial court was justified in taking age of the plaintiff as 14 years as on 1980 i.e., date on which he claims to have been inducted as tenant and by accepting plaint averments to be true. 2) While complying with the order of injunction the plaintiff has filed an affidavit before trial court on 09.08.2006 and even in the said affidavit of compliance has stated his age to be 40 years. 2) While complying with the order of injunction the plaintiff has filed an affidavit before trial court on 09.08.2006 and even in the said affidavit of compliance has stated his age to be 40 years. These two factors cannot be disbelieved or brushed aside for the simple reason, since it is the plaintiff who has stated as to what his age is and plaintiff after contending as such in his suit, trial court has rightly accepted and now to disbelieve the claim that as on the alleged date of induction as tenant to the suit schedule property he would not have been only 14 years cannot be accepted or believed. Hence, plaintiffs claim that he was inducted as a tenant to the suit schedule property in 1980 that too at the age of 14 years cannot be accepted. Though it is contended that no issue is framed in this regard this Court is of the considered view that it was not required to be framed as the reasoning of the Learned trial Judge was based on the basis of admitted pleadings and there was no scope of plaintiff explaining the same. Hence the contention of learned Counsel for appellant that there is no issue framed and there is no opportunity given to dispute this fact cannot be accepted by this Court. Accordingly the said contention is hereby rejected. 17. The evidence on record would reveal that plaintiff and second defendant are brothers. In the suit filed by the appellant before trial court i.e., O.S.No.7113/2006 it is stated by the appellant that he is the son of Sri. Pushpak Kumar. In the plaint he describes the father of the second defendants as Sri. Pawan Kumar and this clearly goes to show the modus operandi adopted by the plaintiff to mislead the Court. The only conclusion that is to be arrived at by this Court is that plaintiff has attempted to mislead the Court and this view is supported by another fact namely 2nd defendant in the suit i.e., Sri. Suresh Kumar in SC.No.2183/2003 has filed his affidavit by way of evidence in lieu of examination in chief. In the said affidavit Sri. Suresh Kumar has stated he is the son of Sri. Pushpak Kumar. This affidavit which is marked as Ex.D.8 in OS No.7113/2006 also reveals as to how the plaintiff has attempted to mislead the Court below. 18. Suresh Kumar in SC.No.2183/2003 has filed his affidavit by way of evidence in lieu of examination in chief. In the said affidavit Sri. Suresh Kumar has stated he is the son of Sri. Pushpak Kumar. This affidavit which is marked as Ex.D.8 in OS No.7113/2006 also reveals as to how the plaintiff has attempted to mislead the Court below. 18. Further in the cross-examination plaintiff himself admit that second defendant i.e., second respondent herein is his elder brother. In his own words the admission reads as under: “I have no document to show that I am the owner of Manoranjan Enterprises. It is true that second defendant is my elder brother.” In view of this fact also this Court has no other option but to arrive at a conclusion that present litigation is an engineered litigation by the brothers to scuttle and ensure that judgment and decree passed by competent Civil Court is not put into execution or the fruits of the decree is not allowed to do enjoyed by the first defendant. i.e., first respondent herein. Hence, this Court is of the considered view that very decree passed by Court gets frustrated and defeated if such attempts are allowed to go scot free and same cannot be eschewed by this Court and such gullible attempts requires to be curbed. In view of this fact the appeal not only deserves to be dismissed but it requires to be dismissed with costs. Re Point No. 3: In view of above observations, the following order is passed ORDER (i) The appeal is dismissed (ii) The judgment and decree passed by trial court in O.S.No.7113/2006 dated 12.10.2007 by the XXIV Additional City Civil Judge. Bangalore is hereby dismissed with costs of Rs.10,000/- payable by the appellant to the first respondent within a period of 4 weeks from the date of this order, failing which the first respondent would be entitled to recover the same by filing execution petition. (iii) Registry to draw the decree accordingly.