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2014 DIGILAW 574 (KAR)

Praveen Gupta v. C. L. Seshadri

2014-06-09

K.L.MANJUNATH, RAVI MALIMATH

body2014
Judgment : 1. RFA 900 of 2005 is filed by the appellant, who was the first defendant m OS No No.4964 of 1999, on the file of I Additional City Civil & Sessions Judge, Bangalore. Respondents 1 to 4 in this appeal were the plaintiffs and respondents 5 to 9 were the other defendants in the suit. 2. The appellant herein is challenging the legality and correctness of the judgment and decree dated 16-7-2005 passed in OS No 4964 of 1999, wherein the court below has passed a decree directing the appellant herein to vacate and hand over possession of the suit schedule property within 60 days from the date of judgment and further decreed and ordered that there shall be an enquiry as contemplated under Order XX Rule 12 CPC. The trial court further decreed the suit of the plaintiffs, directing the defendants to pay Rs. 60,000/-with interest at the rate of 12% p.a. and further directed that the defendants shall pay a sum of Rs. 1,00.000/- per month from January 1999 to May 1999 and Rs. 3,00.000/'-per month from June 1999 till the date of delivery of possession of the suit schedule property as tentative damages. 3. The suit schedule property is an immovable property situated in the centre of Bangalore city located very near to city railway station and Kempegowda bus station, adjoining to the circle known as K G Circle, bearing No 325, 5th Main, Gandhinagar, Bangalore-9, which is popularly known as Gupta market. 4. RFA Cross Objection No 36 of 2012 is filed by the plaintiffs in the suit, being not satisfied with the judgment and decree passed by the trial court in their favour with a request to direct the defendants to pa;/ damages at the rate of Rs. 10,00,000/-per month as mesne profits, without directing the trial court to hold an enquiry as contemplated under Order XX Rule 12 CPC. Therefore, the appeal and the cross-objection are heard together. 5. For the sake of convenience, the parties would be referred to as per their status in the trial court. 6. We hare heard Sri Yoga Narasimha, learned senior counsel appearing for the appellant and Sri Arun Kumar, learned counsel for the contesting respondents-plaintiffs. 7. Therefore, the appeal and the cross-objection are heard together. 5. For the sake of convenience, the parties would be referred to as per their status in the trial court. 6. We hare heard Sri Yoga Narasimha, learned senior counsel appearing for the appellant and Sri Arun Kumar, learned counsel for the contesting respondents-plaintiffs. 7. At the outset, the learned counsel for the parties fairly submit that though the entire judgment and decree passed by the trial court is called in question, in view of the subsequent developments, the decree granted by the trial court directing the respondents to deliver vacant possession of the suit schedule property need not be considered, since the contesting respondents-plaintiffs have already sold the property to a third party and the third party has taken possession of the suit schedule property. 8. It is further submitted by the learned counsel for the parties that what is to be considered in the appeal and cross-objection is only in regard to the jurisdiction and power of the trial court in directing the defendants to pay a sum of Rs 3,00,000/-per month as tentative damages, pending consideration of the enquiry to be held in terms of the provisions of Order XX Rule 12 CPC and whether the fixation of Rs 3,00,000/-per month as tentative amount is on the lower side and requires to be enhanced to Rs 10,00,000/-, as requested by the cross-objectors. 9. The admitted facts in this case are that: The suit schedule property was owned by one C L Iyengar, who leased the property under a registered deed dated 1-4-1960 in favour of Smt Vidyavathi Devi, who was the mother of defendants, for a period of 27 years commencing from 1-4- 1960. Under the lease deed, Vidyavathi Devi was permitted to put up commercial buildings on the property and was required to handover the entire existing buildings as it is after the expiry of the lease period for a consideration of Rs 1,25,000/-. It was further contended that after the expiry of lease period, the property was reverted to the plaintiffs and their father C L Iyengar. Subsequent, a fresh lease deed came to be executed by the plaintiffs and their father on one part as lessors, in favour of the Smt Vidyavathi Devi, mother of defendants, on 22-12-1973 for a period of 32 years, which period also expired on 31-8-2005. 10. Subsequent, a fresh lease deed came to be executed by the plaintiffs and their father on one part as lessors, in favour of the Smt Vidyavathi Devi, mother of defendants, on 22-12-1973 for a period of 32 years, which period also expired on 31-8-2005. 10. Before the expiry of the lease period, the suit came to be filed, on the ground that the defendants have committed breach of conditions of second lease dated 22-12-] 973, by terminating the tenancy of the defendants, seeking possession of the suit schedule property and claiming arrears of rent and also for damages from the date of suit till date of handing over possession of the property at the rate of Rs 10,00,000/- per month. 11. The suit was resisted by the defendants, contending that there is no breach of lease and that the termination of lease is bad in law. it was further contended that the suit of the plaintiffs is not maintainable, since the defendants' mother Vidyavathi Devi had a right to sublet the property in terms of the lease deed and that the sub-lessees are in possession of the suit schedule property. It was further contended that the suit filed by the plaintiffs is not maintainable in the absence of the sub-lessees made as parties to the suit. It was denied that the defendants are liable to pay damages at the rate of Rs 10,00,000/'- per month, as claimed by the plaintiffs. 12. Based on the above pleadings of the parties, the trial court framed the following issues for its consideration: 1. Whether the plaintiffs prove the termination of tenancy in accordance with law? 2. Whether the plaintiffs prove that they are entitled for damages of Rs. 3 lakhs for the months of January 1999 to May 1999? 3. Whether the plaintiffs prove that they are entitled for damages of Rs. 10 lakhs per month from the date of suit till the date of delivery of vacant possession of suit premises? 4. Whether the plaintiffs prove that they are entitled for an order for enquiry into mesne profit? 5. Whether the plaintiffs prove that the defendant is in arrears of rent of Rs.60,000/-from February 1998 to December 1998? 6. Whether the defendants prove that they have paid the rents in taxes upto date in respect of plaint schedule property? 7. Whether the suit is bad of non-joinder of sub tenants? 8. 5. Whether the plaintiffs prove that the defendant is in arrears of rent of Rs.60,000/-from February 1998 to December 1998? 6. Whether the defendants prove that they have paid the rents in taxes upto date in respect of plaint schedule property? 7. Whether the suit is bad of non-joinder of sub tenants? 8. To what order or decree? 13. In order to prove their respective contentions, on behalf of the plaintiffs, first plaintiff C L Seshadri got himself examined as PW1 and he relied upon ExP 1 to 16. On behalf of the defendants, one Praveen Gupta has been examined as DW1 and he relied on ExD1 to 6. The trial court, after considering the entire evidence let in by the parties, answered issues 1, 4 and 5 in the affirmative, issue No 2 partly affirmative, issues 3, 6 and 7 in the negative and consequently the suit came to be decreed in part, as stated supra. 14. Sri Yoga Narasimha, learned senior counsel appearing for the appellant submits that when the plaintiffs have sought for an enquiry under Order XX Rule 12 CPC, unless and until such an enquiry is held and a full-dressed trial is conducted under Order XX Rule 12 CPC, the trial court would not get any power or jurisdiction to determine the damages as tentative damages at the rate of Rs 3,00.000/- per month. According to him, the procedure followed by the trial court is perverse and liable to be set aside and the same is without jurisdiction. He alternatively submits that even if this court holds that such a power is vested with the court below, there was no basis or justification for the trial court to determine the damages at the rate of Rs 3,00,000/- per month. He farther submits that in terms of the lease deed, what was required to be handed over by the defendants [lessees] is only a symbolic possession by calling upon the sub-lessees to attorn the tenancy in favour of the landlords. He further submits that in view of the prayer made by the plaintiffs, the cross-objection filed by the plaintiffs is liable to be rejected. He further submits that in view of the prayer made by the plaintiffs, the cross-objection filed by the plaintiffs is liable to be rejected. According to him, when the prayer of the plaintiffs was to hold an enquiry as contemplated under Order XX Rule 12 CPC, the court below has no power to fix any amount as tentative damages pending enquiry under Order XX Rule 12 CPC. He further submits that viewed from any angle, the cross-objection is liable to be dismissed, since, the cross-objection is hopelessly barred by time. According to him, the appeal was filed in the year 2005 and the cross-objection came to be filed only in the year 2012 and that the cause shown in the application filed under Section 5 of the Limitation Act to condone the delay does not constitute sufficient cause to condone the delay. He, therefore, requests the court to allow the appeal and dismiss the cross-objection. 15. On the other hand, Sri Arun Kumar, learned counsel for the contesting respondents, submits that none of the grounds urged by the learned counsel for the appellant are tenable, because, in the plaint, the plaintiffs have clearly requested the court to determine the damages at the rate of Rs 10,00,000/- per month or in the alternative to hold an enquiry under Order XX Rule 12 CPC. He further submits that sufficient material was placed before the trial court by way of documentary evidence through PW1 to show that the cross-objectors were entitled to claim damages at the rate of Rs 10,00,000/-per month. He further submits that though the court has power to conduct an enquiry under Order XX Rule 12 CPC, since sufficient materials were placed before the court below to determine the damages without directing the parties to lead evidence under Order XX Rule 12 CPC, the trial court instead of giving finality to the proceedings, has erroneously directed the parties to lead evidence under Order XX Rule 12 CPC. He alternatively submits that the court has power to fix any amount as tentative damage and in this case a sum of Rs 3,00,000/- has been fixed in view of the suggestion made by the learned counsel for the defendants while cross- examining PW1 Therefore, if the court-below thought it fit to protect the interest of the plaintiffs and to mitigate the hardship by directing the defendants to pay a tentative amount subject to the outcome of the proceedings under Order XX Rule 12 CPC, it cannot be challenged on the ground of jurisdiction of the court. According to him, when the defendants were squatting on the property of the plaintiffs even after termination of the tenancy, considering the income of the defendants derived from the sub-lessees and the location of the property, situated in the centre of the Bangalore city, and based on the suggestion made by the learned counsel for the defendants, in order to protect the interests of the plaintiffs, if the court below, exercising its discretionary power, has determined the amount of Rs 3,00,000/- as tentative damage, it cannot be contended that the court below has committed an error. According to him, considering the background of the case, location of the property and actual earnings from the property made by the defendants and also based on the suggestion made by the learned counsel for the defendants, the amount fixed cannot be termed as erroneous. He, therefore, requests the courts to dismiss the appeal and allow the cross- objection. 16. Having heard the learned counsel for the parties, we have to consider the following points in this appeal: a) Whether the court below has discretionary power to determine tentative damages payable by the defendants pending enquiry under Order XX Rule 12 CPC? b) Whether the amount determined by the court below at the rate of Rs 3,00,000/- per month is to be interfered with in this appeal or in the cross-objection. 17. b) Whether the amount determined by the court below at the rate of Rs 3,00,000/- per month is to be interfered with in this appeal or in the cross-objection. 17. We have seen the prayer on the plaint, In the plaint, the plaintiffs requested the trial court to direct the defendants to hand over the physical possession of the suit schedule property and to pay damages at the rate of Rs 3,00,000/- per month to the plaintiffs for their illegal and unauthorized occupation of the suit schedule property for the months of January to May 1999 and also to pay damages at the rate of Rs 10,00,000/- from the date of filing of the suit till delivery of possession or direct an enquiry under the provisions of Order XX Rule 12 CPC and also to direct the defendants to pay Rs 60,000/- towards arrears of rent for the period February to May 1998. 18. There is no enabling provisions, either under Code of Civil Procedure, 1908 or under the Transfer of Property Act, 1882, to a person who is in unauthorized occupation of a property to pay tentative damages or tentative rent during the pendency of the suit from the date of suit till delivery of possession. However, the court has power to determine such damages based on the issues and evidence let in by the parties. Similarly, there is a provision for the trial court to hold an enquiry under Order XX Rule 12 CPC. In the instant case, PW1 has produced several documents to show how the plaintiffs are entitled to claim damages at the rate of Rs 10,00,000/-per month from the date of suit till the date of delivery of possession. The suit was instituted in the year 1999 and it was decreed in the year 2005. PW1 has been cross-examined. While cross-examining PW1, learned counsel who appeared for the defendants in the trial court has made a suggestion to the following effect: It is incorrect to suggest that as of now if the property is let out, it will fetch a sum of Rs 3,00,000/- per month. ... This suggestion was made to PW1, since PW1 had claimed damages at the rate of Rs 10,00,000/-per month. ... This suggestion was made to PW1, since PW1 had claimed damages at the rate of Rs 10,00,000/-per month. In other words, if the suggestion of the counsel for the defendants is taken into account, even according to the counsel, as on that date, if the property had been let out, it would have fetched a minimum of Rs 3,00,000/-per month. Therefore, the trial court, based on this suggestion, has fixed the tentative amount at the rate of Rs 3,00,000/-per month till the enquiry is completed under Order XX Rule 12 CPC. 19. It is, no doubt, true that there is no express provision for the court to determine a tentative damage. But, considering the background of this case, since the suggestion was made by the counsel for the defendants that if the property had been let out, it would have fetched a sum of Rs 3,00,000/- per month as on the date of cross-examination of PW1, even though the plaintiffs have claimed damages at the rate of Rs 10,00,000/-per month, since the said amount has to be finally adjudicated alter a full-dressed trial under Order XX Rule 12 CPC, the trial court using its discretion, in order to mitigate the hardship to the plaintiffs, since the defendants were enjoying the property of the plaintiffs without paying any rent, has fixed the tentative damage. This court is of the opinion that such determination has to be accepted by this court, as the same would be subject to the final outcome in the enquiry to be held under Order XX Rule 12 CPC. We are also of the view that if the plaintiffs are able to show that they are entitled to mesne profits of more than Rs 3,00,000/- or Rs 10,00,000/-, as contended by them, the tentative amount paid by the defendants would be adjusted finally. However, if the plaintiffs fail to prove that they are entitled to the damages at the rate of Rs 10,00,000/-per month and if ultimately the damages to be determined is less than Rs 3,00,000/-, in such an event, the plaintiffs would have to return the excess amount so collected by them to the defendants with interest to be ordered in the final decree proceedings. Litigations take time to complete. Litigations take time to complete. Therefore the Court is invested with inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of process of the Court. Delaying the proceedings can also be considered as abuse of process of the Court. The legal rights of the parties require to be appropriately considered. However such a tentative assessment has to be based on some material. The lower Court has relied upon the available material. It has applied its mind while passing the order. It is under these circumstances that the trial Court has exercised its inherent power to pass an order to fix the damages tentatively. We have no hesitation to hold that the Court has inherent power to fix the damages tentatively. Therefore, in order to protect the interest of both parties, the court below has fixed the tentative damage at the rate of Rs 3,00,000/-per month and that it cannot be said that the court is without jurisdiction. The court while exercising its discretionary power, in order to protect the interests of the parties and to safeguard the property, shall always direct the parties to pay tentative damages. Therefore, we are of the view that no illegality or irregularity or error is committed by the trial court in determining the tentative damage. 20. In so far as the basis for fixing a sum of Rs 3,00,000/-per month as tentative damage by the trial court is concerned, as pointed out earlier, the learned counsel who appeared for the defendants in the suit had suggested to PW1 that at what rent would fetch had the suit schedule property was let out. Such a suggestion cannot be slightly ignored by courts while determining the damages. Be that as it may, it is ultimately for the trial court to determine the actual damages payable after a full- dressed trial under Order XX Rule 12 CPC. Hence both the points are answered accordingly. 21. In so far as the cross-objection is concerned, we do not see any merits, because, the trial court has not appreciated the entire evidence to fix the damages. Based on the suggestion of the defence counsel, the tentative damage is fixed. Amount of Rs 10,00,000/- claimed by the plaintiffs has to be arrived at when the enquiry is held under Order XX Rule 12 CPC. Based on the suggestion of the defence counsel, the tentative damage is fixed. Amount of Rs 10,00,000/- claimed by the plaintiffs has to be arrived at when the enquiry is held under Order XX Rule 12 CPC. Therefore, we do not see any merits in the cross-objection filed by the contesting respondents in the appeal. However, the contention of the learned counsel for die appellant that the cross-objection is barred by limitation cannot be accepted, since on a perusal of the entire records, we notice that though the appeal was filed m the year 2005, the same came to be dismissed for non-prosecution and it was restored only in 2010. Later, the appeal came to be admitted. Considering the date of admission of the appeal and the date of filing of the cross-objection, we are of the view that the delay in filing the cross-objection has to be condoned. Accordingly, we condone the delay. 22. In the result, the appeal and the cross-objections are dismissed. The judgment and decree of the trial court is confirmed. Parties to bear their costs.