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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.3938 OF 2020 (CPC)
BETWEEN:
SRI G. VENKATESH,
S/O. SRI M. GOPAL,
AGED ABOUT 47 YEARS,
R/AT NO.1483, GROUND FLOOR,
17TH 'A' MAIN, J.P. NAGAR 2ND PHASE,
BENGALURU - 560 078.
... APPELLANT
[BY SRI. MANJUNATH H., ADVOCATE
[PHYSICAL HEARING]
AND:
1. SMT. R. MAHALAKSHMI,
W/O. SRI H.R. YATHIRAJ,
AGED ABOUT 57 YEARS,
RESIDING AT NO.833,
16TH MAIN, 17TH CROSS,
BSK II STAGE,
BENGALURU 560 070
... RESPONDENT
[BY SRI A.G. RAVI KUMAR, ADVOCATE FOR C/R.[VIDEO
CONFERENCE]
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(D) OF CPC AGAINST THE
ORDER DATED 18.08.2020 PASSED IN MISC.NO.658/2018
ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE,
BENGALURU, CCH-28, DISMISSING THE PETITION FILED
UNDER ORDER 9 RULE 13 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the order dated 18.8.2020 passed by the XIV Additional City Civil Judge, Bengaluru in Misc. No.658/2018 by which the miscellaneous petition filed by the appellant herein under Order IX Rule 13 of CPC was rejected.
2. It is evident from the material on record that the respondent herein had filed O.S. No.7256/2014 for ejectment of the appellant herein from the suit property. The appellant failed to adduce his evidence consequent to which the suit in O.S. No.7256/2014 was decreed and the appellant was directed to quit and deliver the vacant possession of the suit property to the respondent. The appellant filed a miscellaneous petition under Order IX 3 Rule 13 of CPC belatedly and filed an application numbered as I.A. No.1 for condonation of delay in filing the miscellaneous petition contending that his wife was seriously ill and that she was hospitalized from 11.04.2018 to 16.04.2018 and from 21.06.2018 to 02.07.2018. The Court below condoned the delay in filing the miscellaneous petition on the aforesaid ground and took up the case on merits.
3. The Court below noted that though the appellant was given sufficient opportunity to cross examine the respondent's witness and though sufficient opportunity was given to the appellant to adduce his evidence, he failed to take advantage of the same. The Court below also noticed that the appellant had not explained the reasons for his absence before the Court on several dates of hearing. It is also noticed that on the dates when the case in O.S. No.7256/2014 was listed for cross examination of P.W.1 and to lead evidence of the appellant, neither he nor his wife were admitted in the hospital. Hence, it held that the 4 reasons assigned by the appellant for his absence from the Court was not sufficient. The Court below therefore rejected the Miscellaneous petition. Feeling aggrieved by the order of the Court below, the petitioner has filed this appeal.
4. Learned Counsel for the appellant submits that the Court below having once accepted the reasons for condonation of delay in filing the miscellaneous petition, could not have ignored the same for the purpose of considering the petition on merits.
5. Learned Counsel for the respondent submitted that the appellant is in arrears of Rs.8,22,800/- and that the appellant has been unnecessarily protracting the litigation on one or the other ground. The learned Counsel further submitted that the appellant may be directed to deposit the rent that has accrued during the pendency of the suit and which has not been paid by the appellant. 5
6. It is relevant to note that the suit in O.S. No.7256/2014 was filed for ejectment of the appellant from the suit property and not for arrears of rent. Therefore, it is clear that as on the date of filing of O.S. No.7256/2014, the appellant was not in arrears of rent. Insofar as the question as to whether the appellant has paid rent during the pendency of the suit or not, is a question of fact that has to be determined by the Court below. Since the Court below has decreed the suit not only for ejectment but also for mesne profits at the rate of Rs.15,435/- per month, the Court below ought to have granted opportunity to the appellant to establish the fact that he was not in arrears of rent. When once the Court below had accepted that the ground for condonation of delay as sufficient, it could not have taken a different view. Be that as it may, since there was a huge financial implication upon the appellant in the form of arrears of rent, the Court below must have given an opportunity. 6
7. In that view of the matter, the appeal is allowed in part and the impugned judgment and order is set aside. Consequently, the judgment and decree passed in O.S. No.7256/2014 is also set aside and the Court below is directed to record the evidence of the appellant herein on 28.1.2021 on which date the respondent shall cross examine the appellant. The Court below is requested to dispose of the suit by the end of March, 2021. In so far as the question regarding the arrears of rent, the same is left open to be considered by the Trial Court.
The appellant herein shall pay cost of Rs.10,000/- to the respondent on 28.1.2021 failing which he shall not be permitted to adduce evidence and the trial Court may dispose of the suit as per the available evidence on record.
In view of disposal of the appeal, all pending applications also stand disposed of.
Sd/-
JUDGE Cs