Karnataka High Court
Nageshwarararao S/O ... vs The Manager And Anr on 24 February, 2023
Bench: Sreenivas Harish Kumar, T G Gowda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL No.6017 OF 2013
BETWEEN:
1. K.NAGESHWARARAO
S/O VENKATANARAYANA
AGE: 59 YEARS
OCC: BUSINESS
R/O JANGAMARAKALGUDI VILLAGE
TALUK - GANGAVATI
2. REDDY SOMANNA
S/O ACHANNA
AGE: 89 YEARS
OCC: AGRICULTURE
NOW SENIOR CITIZEN
R/O VENKATESHWARA CAMP
TALUK SINDHANUR
...APPELLANTS
(BY SRI SHIVAKMAR KALLOOR, ADVOCATE)
AND:
1. BRANCH MANAGER
CANARA BANK, NO.5-1-282/3/1A
2
OPP: GOVERNMENT HOSPITAL
P.B.NO.17, SINDHANUR
TALUK SINDHANUR
DISTRICT: RAICHUR-584 102
2. THE REGIONAL MANAGER
CANARA BANK REGIONAL OFFICE
TIRUMALA HONDA
GOSHALA ROAD
RAICHUR DISTRICT
RAICHUR - 584 101
3. CANARA BANK CIRCLE OFFICE
HUBBALLI, IMA BUILDING
BAILAPPANAVANAGAR
HUBBALLI
DISTRICT: DHARWAD-580029
...RESPONDENTS
(BY SRI V.N.MISKIN, ADVOCATE FOR R1;
R2 AND R3 ARE SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE OF THE LEARNED SENIOR CIVIL
JUDGE AND JMFC AT LINGASUGUR (SITTING AT
SINDHANUR) DATED 04.01.2013 PASSED IN
O.S.NO.27/2008, ETC.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED ON 10.02.2023 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, SREENIVAS HARISH
KUMAR J., DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by the plaintiffs in
O.S.No.27/2008 on the file of the Senior Civil
Judge and JMFC, Lingasugur (sitting at
Sindhanur).
2. The original respondents in the
appeal were the Manager, Syndicate Bank,
Sindhanur Branch and the Divisional Manager
of the Syndicate Bank, Divisional Office,
Bellary. After amalgamation of Syndicate Bank
with Canara Bank, the original respondents
were substituted by the Branch Manager of
Canara Bank, Sindhanur Branch, The Regional
Manager of Canara Bank, Raichur and the
Canara Bank, Circle Office, Hubballi.
3. The material facts pleaded in the suit
are as follows:
The plaintiffs brought the suit against the
original defendants for recovery of a sum of
Rs.70,11,000/- from them. The plaintiffs
stated that the premises bearing TMC No.5-1-
480 and 5-1-480/1 situated at Sindhanur was
purchased by them from K.Sheshagiri Rao.
The original owner K.Sheshagiri Rao had let
out the premises to the defendants in the year
1982-83 for a period of 10 years. The lease
agreement executed at the time stipulated that
the defendants should pay rent at the rate of
Rs.1.25 per sq.ft. for the carpet area 2928
sq.ft. There was another stipulation that the
rent should be enhanced at the rate of 25%
after lapse of 5 years till completion of the
lease period. After the plaintiffs purchased the
premises, they requested the defendants to
vacate the premises and handover its vacant
possession. But the defendants did not vacate
and also did not pay rent. Therefore the
plaintiffs filed a suit, O.S.No.218/2001 for
possession. The said suit was decreed on
18.06.2005 directing the defendants to hand
over the vacant possession to the plaintiffs.
They further stated that on the request of the
defendants they raised a construction in the
first floor. Since the defendants objected to
having the staircase on the south east corner,
the construction made by them in the first floor
had to be kept vacant as there was no
staircase to reach. For all these reasons the
plaintiffs clamed Rs.70,11,000/- with interest
at the rate of 18% per annum.
4. In the written statement, the
defendants denied the plaintiffs claim and took
up a specific contention that the suit was time
barred.
5. The trial court raised 9 issues and
then recorded the evidence of the witnesses
from either side parties.
6. Though the trial court answered issue
No.1 in affirmative and issue No.2 partly in
favour of the plaintiffs, ultimately the suit
came to be dismissed because of finding on
issue No.6 relating to limitation. The trial
court is of the opinion that the suit is time
barred. In this regard it is held by the trial
court that according to Articles 52 and 55 of
the Limitation Act, the plaintiffs should have
brought the suit within 3 years from the date
of breach of contract.
7. We have heard the arguments of Sri
Shivakumar Kalloor, learned counsel for the
appellants/plaintiffs and Sri V.N.Miskin,
learned counsel for the respondents /
defendants.
8. It was the argument of Sri
Shivakumar Kalloor that the suit should not
have been dismissed on the ground of
limitation because in the earlier suit
O.S.No.218/2001 filed by the plaintiffs against
the defendants for possession of the premises,
liberty was given to the plaintiffs to recover
the agreed rate of rent from the defendants, if
any, due. In this view, the suit should not
have been dismissed. He further argued that
according to Order XX Rule 12 of CPC, arrears
of rent can be claimed independently and
therefore limitation period does not apply
whenever arrears of rent is claimed.
9. We have perused the records. Ex.P.1
is the certified copy of the judgment in
O.S.No.218/2001. It was a suit for recovery of
possession of the premises leased out to the
defendants. When the suit was decreed in
favour of the plaintiffs, it was observed by the
court that the plaintiffs were entitled to
recover the agreed rate of interest from the
defendants, if any, due. But the suit,
O.S.No.27/2008 filed by the plaintiffs was for
recovery of difference in rent with interest till
31.01.2008 and also rent for the first floor at
the rate of Rs.3.00 per sq.ft. Ex.P.9 is the
agreement that came into existence between
the plaintiffs and the original defendants.
Clause(1) of the agreement shows that monthly
rent was fixed @ Rs.1 . 25 per sq.ft. for a carpet
area of 2928 sq.ft. and a provision was made
for enhancement of rent @ 25% on Rs.1.25 for
the next 5 years. That means, for the first 5
years, the rate of monthly rent was @ Rs.1.25
per sq.ft. for carpet area of 2928 sq.ft. and for
the second 5 years, enhancement was given @
25% on Rs.1.25 per sq.ft. This is the
interpretation available if Ex.P.9 is read.
10. Sri Shivakumar Kalloor's argument
was that the court which decided
O.S.No.218/2001 actually permitted the
plaintiffs to recover the rent after the
defendants' tenancy was terminated and it was
not the interest that the court permitted to
recover. He also argued that interest alone
cannot be recovered because the defendants
were also due in arrears of rent which was to
be calculated on par with market rate.
Therefore the relief claimed in the suit
O.S.No.27/2008 was to recover difference in
rent and in fact the court below has also held
that the judgment in O.S.No.218/2001 would
not operate as res-judicata.
11. In our opinion the trial court has
wrongly interpreted Article 52. Article 55 is
also not applicable. The suit that the plaintiffs
brought was for arrears of rent which is
governed by Article 52 of the Limitation Act.
The suit is to be filed within 3 years from the
arrears become due.
12. We don't understand why the
plaintiffs did not claim arrears when they filed
a suit O.S.No.218/2001 for ejectment.
However because the court granted the
permission to institute another suit, and that
the defendants also did not challenge that
finding, it attained finality and the plaintiffs
could bring another suit for recovery of rent.
The trial court might be under the impression
that because the plaintiffs claimed arrears of
rent or difference in rent from 01.01.1992 to
31.08.2005, the suit should have been filed
within 3 years from 01.01.1992. We cannot
accept this finding. The suit was filed on
05.06.2008. Therefore, the rent preceding 3
years can be claimed, that means, the rent due
from 05.06.2005, till the defendants handed
over the possession to the plaintiffs can be
claimed. Even if Order XX Rule 12 CPC can be
applied, its sub clause (iii) of clause (c),
permits enquiry for rent for a period of three
years, and obviously in this case enquiry has to
be held for determining the rent recoverable
for a period of three years preceding the date
of suit. It is also on record that the plaintiffs
sold the property to one Harsha on
15.11.2006. Thus viewed, the suit is saved for
a period of three years preceding the date of
filing of the suit.
13. Though the trial court has answered
all the issues, we are of the opinion that it has
to determine the actual amount due to the
plaintiffs. Since the plaintiffs have stated that
the defendants occupation became illegal after
termination of tenancy, the trial court has to
give a finding whether the plaintiffs can claim
rent for use and occupation at a higher rate.
The trial court has to undertake this ordeal
based on the evidence available and also if
necessary by taking further evidence. For this
reason we find a case for remand under Order
41 Rule 23(A) CPC. Therefore the following:
ORDER
Appeal is allowed.
The judgment dated 04.01.2013
passed in O.S.No.27/2008 by the
Senior Civil Judge and JMFC,
Lingasugur (sitting at Sindhanur) is
set aside.
The matter stands remanded to
the trial court for fresh disposal in
accordance with law.
The parties are at liberty to
adduce further evidence, if
necessary.
The parties shall appear before
the trial court on 27.03.2023.
Since the case is remanded, the
appellants are entitled to refund of
court fee paid on the appeal in
accordance with Section 64 of the
Karnataka Court Fee and Suits
Valuation Act.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
