Karnataka High Court
Smt. S. Usha Kiran vs Smt. Asha Kiran on 1 August, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:26757
CRP No. 160 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
CIVIL REVISION PETITION NO. 160 OF 2023
BETWEEN:
SMT. S. USHA KIRAN
W/O CHANDRASHEKAR
AGED ABOUT 64 YEARS
NO.197/2, 2ND CROSS
DATTATREYANAGAR, KEMPEGOWDA NAGAR
BENGALURU-560019
ALSO AT R/A NO.36, IST CROSS
D SOUZA NAGAR, BSK III STAGE
HOSAKEREHALLI, BENGALURU-560085
...PETITIONER
(BY SRI. SANDEEP K.,ADVOCATE)
AND:
1. SMT. ASHA KIRAN
W/O LATE N GOPALAKRISHNA
Digitally signed AGED ABOUT 58 YEARS
by
DHANALAKSHMI WORKING AT
MURTHY KARNATAKA STATE FINANCIAL CORPORATION
Location: High KSFC BHAVANA, NO.1/1
Court of THIMMAIAH ROAD
Karnataka BENGALURU-560052
2. SRI MANU VIKRAM
S/O LATE M GOPALAKRISHNA
AGED ABOUT 38 YEARS
R/A NO.49/A, 1ST CROSS
SWAMY VIVEKANANDA ROAD
BSK III STAGE, HOSAKEREHALLI
BENGALURU-560085.
...RESPONDENTS
-2-
NC: 2023:KHC:26757
CRP No. 160 of 2023
(BY SRI. B.P.KIRAN KUMAR, ADVOCATE FOR
SRI. SHIVAKUMAR P.,ADVOCATE FOR R1 & R2)
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 04.01.2023
PASSES IN SC. NO.697/2021 ON THE FILE OF THE XIV
ADDITIONAL SMALL CAUSES JUDGE, AND ACMM, BENGAURU.
DECREEING THE SUIT FOR EJECTMENT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Even though the matter is posted for admission, with
the consent of the learned counsel for the parties, the
matter is taken up for hearing.
2. This petition is filed by the petitioner-defendant
under Section 18 of the Small Causes Courts Act
challenging the judgment and decree dated 4.1.2023
passed by the Court of the Small Causes Judge, Bengaluru
in S.C.No.697/2021.
3. For the sake of convenience, the parties are referred
to as per their ranking before the Trial Court.
4. Brief facts of the case of the plaintiffs is that they are
the owners of property bearing No.5/1, 2nd Main Road,
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CRP No. 160 of 2023
Dattatreya Extension, Kempegowda Nagara, Bangalore,
more fully described in the suit schedule property. Since
the defendant is in illegal possession of the said property,
the plaintiffs filed the suit for ejectment against the
defendant to quit, vacate and handover the vacant
possession of the suit schedule property.
5. After service of summons, the defendant appeared
and filed written statement and denied the plaint
averments. She also filed a counter claim contending that
she had paid a sum of Rs.540,000/- as advance amount to
the plaintiff's mother. Hence, she sought for return of the
said amount.
6. On the basis of the pleadings of the parties, the Trial
Court has framed the following issues:
a) Whether the plaintiffs prove that the defendant is
the unauthorized occupant in the suit schedule
property?
b) Whether the defendant is entitled for counter
claim of Rs.540,000/- from the plaintiffs?
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CRP No. 160 of 2023
c) Whether the plaintiffs are entitled for the relief as
sought in the plaint?
d) What order or decree?
7. To prove the case, the plaintiffs have examined
plaintiff No.1 as PW-1 and produced and marked 8
documents. The defendant has examined herself as DW-1
and produced 7 documents. On appreciation of the oral
and documentary evidence, the Trial Court has answered
issue Nos.1 and 3 in the affirmative and issue No.2
answered accordingly and consequently, allowed the suit
filed by the plaintiffs and rejected the counter claim of the
defendant. Being aggrieved by the same, the defendant is
before this Court.
8. The learned counsel for the petitioner-defendant has
contended that the grievance of the petitioner is only in
respect of rejection of the counter claim. He contended
that even though the Trial Court has answered issue No.2
and has given a finding that 'this court has no pecuniary
jurisdiction to entertain the counter claim of the
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CRP No. 160 of 2023
defendant. The defendant has right to adjudicate her
counter claim in accordance with in law in the proper court
of law.', but in the operative portion, it has rejected the
counter claim filed by the defendant. Hence, he sought for
allowing the petition.
9. The learned counsel for the respondents-plaintiffs
has contended that the Trial Court after considering the
evidence of the parties and documents produced has
rightly answered issue No.1 in the affirmative. In respect
of issue No.2 is concerned, the Trial Court has held that
the Small Causes Court has no pecuniary jurisdiction to
entertain the counter claim and hence reserved liberty to
the defendant to approach the proper court. Hence, he has
no objection for modification of the impugned judgment in
respect of rejection of counter claim.
10. Heard the learned counsel for the parties and
perused the judgment and decree of the Trial Court.
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11. After hearing the learned counsel for the parties, the
point that arises for consideration in this petition is only
with regard to rejection of the counter claim filed by the
defendant.
12. The Trial Court has framed issue No.2 as 'Whether
the defendant is entitled for counter claim of Rs.540,000/-
from the plaintiffs?'. While answering the said issue, the
Trial Court has given a finding that 'this court has no
pecuniary jurisdiction to entertain the counter claim of the
defendant. The defendant has right to adjudicate her
counter claim in accordance with in law in the proper court
of law.' But in the operative portion of the judgment, the
Trial Court has rejected the counter claim of the
defendant.
13. Under the circumstances, I am of the opinion that
only in respect of rejection of the counter claim by the
Trial Court, the impugned judgment requires to be
modified.
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14. Hence, I pass the following order:
a) The appeal is disposed of.
b) The judgment and decree dated 4.1.2023 passed
by the Court of the Small Causes Judge,
Bengaluru in S.C.No.697/2021 is modified only
in respect of rejection of the counter claim filed
by the defendant.
c) Liberty is reserved to the petitioner-defendant to
approach the competent legal forum to
adjudicate her rights, if law permits.
In view of disposal of petition, all pending I.As., if
any, do not survive for consideration and hence, the same
are dismissed.
Sd/-
JUDGE
DM
