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2023 DIGILAW 947 (KAR)

Vikram Chugh v. Usha Prabhakar

2023-08-01

K.NATARAJAN

body2023
JUDGMENT 1. This appeal is filed by the appellant-defendant under Sec. 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short 'CPC') for setting aside the judgment and decree passed by the I Additional City Civil and Sessions Judge, Bengaluru City (CCH-2) in O.S.No.3162/2015 dtd. 16/11/2016 directing the appellant-defendant to quit, vacate and deliver the vacant possession of the suit schedule premises within priority of 60 days from the date of the order. 2. Heard the learned counsel for the appellant and learned counsel for the respondent. 3. The rank of the parties before the Trial Court is retained for the sake of convenience. 4. The case of the plaintiff before the Trial Court is that the plaintiff is the owner of the suit schedule premises and the defendant is said to be the tenant under the plaintiff on a monthly rent for Rs.13, 500.00 per month excluding the water and electricity consumption charges and the rent shall be payable by way of cheque and the tenancy commences from 1st of every calendar month ending with the last day of the month. The plaintiff said to be in need of the suit premises for her own use and occupation, hence, she requested the defendant to vacate the schedule premises, but, the defendant failed to vacate the premises. Hence, the plaintiff constrained to issue legal notice of termination of tenancy on 9/3/2015 and thereafter, filed a ejectment suit. The defendant appeared through the counsel and filed written statement along with the counter claim under Order VIII Rule 1 read with Order VIII Rule 6(A) of CPC. Took various contentions and one of the contention is that the plaintiff agreed to sell the property to the defendant for valuable consideration for Rs.60, 00, 000.00 and taken further contention that the defendant invested Rs.22, 00, 000.00 for renovation of the building and thereby, prayed for counter claim. The Trial Court based upon the pleadings, framed 7 issues which are as under: "1. Whether the plaintiff proves that he has terminated the tenancy of the defendant by issuing a notice on 9/3/2015 as contemplated under Sec. 106 of T.P. Act? 2. Whether the defendants prove that suit is bad for non-joinder and mis-joinder of parties? 3. The Trial Court based upon the pleadings, framed 7 issues which are as under: "1. Whether the plaintiff proves that he has terminated the tenancy of the defendant by issuing a notice on 9/3/2015 as contemplated under Sec. 106 of T.P. Act? 2. Whether the defendants prove that suit is bad for non-joinder and mis-joinder of parties? 3. Whether the defendant proves that in the month of January 2013 plaintiff offered the suit schedule premises for a sale consideration of Rs.60, 00, 000.00? 4. Whether the defendant further proves that he has invested sum of Rs.22, 00, 000.00 for renovation of the suit premises? 5. Whether defendant proves that Court fee paid by the plaintiff is insufficient? 6. Whether the plaintiff is entitled for relief of ejectment, mesne profits as prayed? 7. What decree or order?" 5. In order to prove the contention, the plaintiff himself has examined as PW.1 through the GPA Holder who is said to be the husband of plaintiff and got marked 12 documents. The case is said to be deferred for cross examination on the ground of settlement, the defendant has not chosen to cross examine the PW.1. Finally, the Trial Court conclude the trial and passed the impugned judgment and decree which is under challenge. 6. Learned counsel for the appellant has strenuously contended that the Trial Court not at all given opportunity to cross examine PW.1 and also not given any opportunity to lead the evidence to prove Issue Nos.3 and 4 casted upon the defendant and the Trial Court without giving proper opportunity closed the evidence and proceeded with the judgment. Learned counsel further contended that he has taken wrong date, by that time, the Trial Court posted the case for judgment and passed the decree, therefore, prayed for setting aside the judgment and with a request to remand the matter for giving an opportunity to adduce the evidence on his behalf. 7. Per contra, learned counsel appearing for the plaintiff- respondent has supported the judgment and decree passed by the Trial Court and contended that the opportunity was given to the defendant but not chosen to use the opportunity and there was no document produced by the defendant to show there was agreement of sale between the parties. Hence, failed to prove the issues framed against the appellant. Hence, prayed for dismissing the appeal. 8. Hence, failed to prove the issues framed against the appellant. Hence, prayed for dismissing the appeal. 8. Upon hearing the arguments and on perusal of the records, the point that arises for my consideration are: "1) Whether the judgment and decree passed by the Trial Court required interference ? 2) Whether the matter required for remand back under Order 41 Rule 23 of CPC in view of adducing evidence on Issue Nos.3 and 4 ?" 9. Having heard the arguments and on perusal of the records, which reveals, of course, the PW.1 who is the GPA holder of the plaintiff filed affidavit evidence in support of the case of the plaintiff and filed 12 documents. It is not in dispute that the defendant is the tenant under the plaintiff on the Schedule premises under rental basis from 2004. The contention of the defendant is that in the year 2012, the defendant wants to quit the premises. However, there was an agreement between the parties to sell the property to the defendant and thereby, he has filed the counter claim in the suit. The further contention of the learned counsel for the defendant is that the defendant invested Rs.22, 00, 000.00 for repairing the Schedule premises. The learned counsel for the appellant also brought to the notice of this Court that in the letter issued by the plaintiff clearly reveals that the plaintiff permitted the defendant to make necessary repairs in the building and further contended that in order to prove the contention of the defendant on Issue Nos.3 and 4 framed by the Court, the matter required for remanding back to the Trial Court. Though the Trial Court passed the judgment and answered Issue No.1 in favour of the plaintiff, but looking to the Trial Court records, especially the evidence of PW.1, it was not at all controverted by the defendant counsel and the evidence of PW.1 reveals the cross examination was deferred due to the absence of the defendant counsel. Thereafter, there is no reference available in the Trial Court records or order sheet to show that an opportunity was given to the defendant for the purpose of cross examination and also given an opportunity for the defendant to lead the evidence on behalf of the defendant in order to prove the Issue Nos.3 and 4 which is framed by the Trial Court. Such being the case, the judgment of the Trial Court call for interference as there is no opportunity given to the defendant to cross examine the PW.1 and also to lead the evidence except filing the written statement and the counter claim. Of course, the defendant required to pay the court fee in the counter claim as far as it is like a suit by way of counter suit filed by the defendant. Such being the case, the defendant required to pay the court fee on the counter claim. However, there is no order passed by the Trial Court in respect of the payment of court fee and also in the judgment there is no reference for rejecting the counter claim of the defendant by the Trial Court. Such being the case, I am of the view, the judgment of the Trial Court is liable to be set aside and remitted back to the Trial Court. 10. Accordingly, I proceed to pass the following order: The appeal is allowed in part. The judgment and decree passed by the I Additional City Civil and Sessions Judge, Bengaluru City (CCH-2) in O.S.No.3162/2015 dtd. 16/11/2016 is hereby set aside. The matter is remitted back to the Trial Court under Order 41 Rule 23 of CPC with a direction that the Trial Court shall accord an opportunity to the defendant to cross examine PW.1 and also to lead the evidence on Issue Nos.3 and 4 after payment of the necessary court fee on the counter claim. The Trial Court is directed to dispose of the matter within six months from the date of receipt of the copy of the judgment. The plaintiff is directed to pay Rs.10, 000.00 as cost to the defendant. Office to send the copy of the judgment and TCR to the Trial Court, forthwith. Parties shall appear before the Trial Court on 21/8/2023 without any fresh notice.