Sri. G Venkatesh vs Smt. R. Mahalakshmi
2021 Latest Caselaw 84 Kant

                            1

     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]
                               2


     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

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

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.

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.

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