Sri Vikram Chugh vs Smt Usha Prabhakar
2023 Latest Caselaw 5101 Kant

                                                   -1-
                                                         NC: 2023:KHC:26852
                                                             RFA No. 96 of 2017




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 1ST DAY OF AUGUST, 2023

                                                BEFORE
                                 THE HON'BLE MR JUSTICE K.NATARAJAN
                              REGULAR FIRST APPEAL NO. 96 OF 2017 (RES)

                       BETWEEN:

                       1.    SRI VIKRAM CHUGH
                             AGED ABOUT 50 YEARS
                             S/O. SRI M.R. CHUGH
                             CHAMUNDESHWARI ENTERPRISES
                             NO.16, NEW NO.16/2, (1/C),
                             BANGALORE - 560 020.
                                                                   ...APPELLANT
                       (BY SRI. S.C. VENKATESH., ADVOCATE)
                       AND:

                       1.    SMT USHA PRABHAKAR
                             W/O M. PRABHAKAR,
                             AGED ABOUT 58 YEARS,
                             RESIDING AT NO.196, 7TH MAIN,
                             4TH BLOCK, JAYANAGAR,
Digitally signed by
                             BANGALORE - 560 011.
BHAVANI BAI G
Location: High Court
                                                                  ...RESPONDENT
of Karnataka
                       (BY SRI. GANGADHARA AITHAL S., ADVOCATE)

                            THIS RFA IS FILED UNDER SECTION 96 READ WITH
                       ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND
                       DECREE DATED 16.11.2016 PASSED IN OS NO.3162/2015 ON
                       THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS
                       JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR
                       EJECTMENT.

                           THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
                       COURT DELIVERED THE FOLLOWING:
                                -2-
                                        NC: 2023:KHC:26852
                                            RFA No. 96 of 2017




                          JUDGMENT

This appeal is filed by the appellant-defendant under

Section 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

dated 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/- 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

NC: 2023:KHC:26852 RFA No. 96 of 2017

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 09.03.2015

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/- and

taken further contention that the defendant invested

Rs.22,00,000/- 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 Section 106 of T.P. Act?

2. Whether the defendants prove that suit is bad for non-joinder and mis-joinder of parties?

NC: 2023:KHC:26852 RFA No. 96 of 2017

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/-?

4. Whether the defendant further proves that he has invested sum of Rs.22,00,000/- 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.

NC: 2023:KHC:26852 RFA No. 96 of 2017

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.

NC: 2023:KHC:26852 RFA No. 96 of 2017

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/- for

repairing the Schedule premises. The learned counsel for the

appellant also brought to the notice of this Court that in the

NC: 2023:KHC:26852 RFA No. 96 of 2017

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

NC: 2023:KHC:26852 RFA No. 96 of 2017

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 dated 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.

NC: 2023:KHC:26852 RFA No. 96 of 2017

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/- 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 21.08.2023

without any fresh notice.

Sd/-

JUDGE

GBB