Karnataka High Court
B. Bhujang Shetty vs Bijapur District Co-Operative on 6 February, 2024
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RSA No. 200048 of 2020
C/W RSA No. 200049 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200048 OF 2020
C/W
REGULAR SECOND APPEAL NO.200049 OF 2020 (RES)
IN RSA NO.200048 OF 2020:
BETWEEN:
B. BHUJANG SHETTY,
AGE: 70 YEARS,
OCC: HOTEL BUSINESS,
R/O HOTEL GODAWARI,
OPP: CENTRAL BUS-STAND, VIJAYAPUR,
AS WELL AS "KRISHNA NIVAS",
BEHIND KSRTC WORKSHOP,
VISHAL NAGAR, DIST: VIJAYAPUR.
Digitally signed
by ...APPELLANT
LUCYGRACE
Location: HIGH
COURT OF
KARNATAKA
(BY SRI AJAYKUMAR ASHOK KUMAR, ADVOCATE FOR
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE)
AND:
BIJAPUR DISTRICT CO-OPERATIVE UNION LTD.,
OPP: CENTRAL BUS-STAND, DIST: VIJAYAPUR,
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER-586 101.
...RESPONDENT
(BY SRI. SHIVAKUMAR R. TENGLI, ADVOCATE)
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RSA No. 200048 of 2020
C/W RSA No. 200049 of 2020
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 30.08.2016 PASSED IN
O.S.NO.272/2011 BY THE PRL. CIVIL JUDGE, VIJAYAPUR AND
VIDE JUDGMENT AND DECREE DATED 20.11.2019 PASSED IN
R.A.NO.89/2016 BY THE III ADDL. SENIOR CIVIL JUDGE &
JMFC, VIJAYAPUR AND CONSEQUENTLY DISMISS THE SUIT OF
THE PLAINTIFFS.
IN RSA NO.200049 OF 2020:
BETWEEN:
B. BHUJANG SHETTY,
AGE: 70 YEARS,
OCC: HOTEL BUSINESS,
R/O HOTEL GODAWARI,
OPP: CENTRAL BUS STAND, VIJAYAPUR,
AS WELL AS "KRISHNA NIVAS",
BEHIND KSRTC WORKSHOP,
VISHAL NAGAR,
DIST: VIJAYAPUR.
...APPELLANT
(BY SRI. AJAYKUMAR ASHOK KUMAR, ADVOCATE FOR
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE)
AND:
BIJAPUR DISTRICT CO-OPERATIVE UNION LTD.,
OPP: CENTRAL BUS-STAND,
DIST: VIJAYAPUR-586 101,
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER.
...RESPONDENT
(BY SRI. SHIVAKUMAR R. TENGLI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 30.08.2016 PASSED IN
O.S.NO.274/2011 BY THE PRINCIPAL CIVIL JUDGE, VIJAYAPUR
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RSA No. 200048 of 2020
C/W RSA No. 200049 of 2020
AND THE JUDGMENT AND DECREE DATED 20.11.2019 PASSED
IN R.A.NO.88/2016 BY THE III ADDL. SENIOR CIVIL JUDGE &
JMFC, VIJAYAPUR AND CONSEQUENTLY DISMISS THE SUIT OF
THE PLAINTIFF.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are preferred by the defendant/
appellant, challenging the judgment and decree dated
20.11.2019 in R.A. Nos.88/2016 and 89/2016 on the file
of III Addl. Senior Civil Judge and JMFC, Vijaypur (for
short 'First Appellate Court), confirming the judgment and
decree dated 30.08.2016 in O.S. Nos.272/2011 and
274/2011 on the file of Principal Civil Judge, Vijayapur,
decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, the premises
in question was allotted in favour of the plaintiff-Union by
the Government and thereafter, the premises was let out
to the defendant on 01.02.2006 to run business as per the
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lease agreement dated 05.01.2006 for a period of two and
half years (from 01.02.2006 to 31.07.2008) on monthly
rent and the defendant has paid the initial deposit with the
plaintiff-Union. After the efflux of time, the plaintiff-Union
requested the defendant to vacate the suit property, as
the plaintiff-Union intends to utilize the premises for its
administration. In the meanwhile, the plaintiff has issued
notice to the defendant, terminating the tenancy made in
favour of the defendant. Since the defendant fails to
vacate the premises in question, the plaintiff has filed O.S.
Nos.272/2011 and 274/2011 before the Trial Court,
seeking relief of possession of the suit schedule property.
4. After service of notice, defendant entered
appearance and filed detailed written statement,
contending that the defendant is running business in the
premises in question. Therefore, sought for dismissal of
the suits on the ground that the defendant is paying the
monthly rent including enhancement of rent regularly and
deposit has been made with the plaintiff-Union.
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5. Based on the pleadings on record, the Trial
Court has framed issues for its consideration.
6. In order to substantiate their case, plaintiff-
Union has examined its officer as PW.1 and got marked
ten documents as Exs.P1 to P10 in O.S. No.272/2011 and
12 documents as Exs.P1 to P12 in O.S. No.274/2011. On
the other hand, defendant was examined himself as DW.1
and produced 73 documents as Exs.D1 to D73.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 30.08.2016,
decreed the suits and directed the defendant to hand over
the vacant possession of the premises in question to the
plaintiff-Union. Feeling aggrieved by the same, the
defendant has filed R.A. Nos.88/2016 and 89/2016 before
the First Appellate Court and the appeals were resisted by
the plaintiff-Union.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
20.11.2019, dismissed the appeals and as such, confirmed
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the judgment and decree passed by the Trial Court.
Feeling aggrieved by the same, the defendant has filed the
aforementioned Regular Second Appeals.
9. I have heard Smt. Ratna N. Shivayogimath,
learned counsel appearing for the appellant and
Sri Shivakumar R. Tengli, learned counsel appearing for
the caveator/respondent-Union.
10. It is the principal submission of the learned
counsel appearing for the appellant that, the appellant
herein has filed application under Order XLI Rule 27 R/w
Order II Rule 14 of CPC before the First Appellate Court,
seeking direction to the respondent-Union to produce the
passbook of S.B. Account as well as the statement under
the said account and though the said application was
allowed by the First Appellate Court, however, nothing is
stated in the impugned judgment and decree passed by
the First Appellate Court and therefore it is argued that, a
miscarriage of justice has been done by the First Appellate
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Court for having not considered the said application and
accordingly, sought for interference of this Court.
11. Having heard the learned counsel appearing for
the parties, it is not in dispute that, the premises in
question is belong to the plaintiff-Union and the same was
leased in favour of the defendant on 05.01.2006 for a
period of two and half years on monthly rent. Perusal of
the finding recorded by both the Courts below would
indicate that, the plaintiff-Union needs the premises in
question for its administration and accordingly, terminated
the tenancy of the defendant as per notice dated
31.08.2009. The only grievance raised by the defendant
was that, he was periodically making rent to the premises
in question and was running business in the said premises.
Having taken note of the factual aspects on record and the
finding recorded by the Trial Court at paragraph 34 of the
judgment, decreeing the suit of the plaintiff with a
direction to the defendant to vacate the premises in
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question, I am of the opinion that, the judgment and
decree of the Trial Court is just and proper.
12. Insofar as the argument advanced by the
learned counsel appearing for the appellant that the
application filed by the appellant under Order XLI Rule 27
of CPC has not been considered, perusal of the said
application would indicate that, the defendant has sought
for Bank statement insofar as the rent paid by the
defendant to the plaintiff-Union. Though the First Appellate
Court has considered the said application as per order
dated 21.03.2018 and the respondent herein was directed
to produce the passbook of the S.B. Account, however, the
same is not an essential factor to decide the lis between
the parties. In that view of the matter, as the said
application filed by the defendant has no bearing on
deciding the appeals on merits, I am of the view that, the
submission made by the learned counsel appearing for the
appellant cannot be accepted. Accordingly, the appellant
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has not made out a case for framing substantial question
of law as required under Section 100 of CPC.
13. In the result, the appeals fail and are
accordingly dismissed.
In view of dismissal of the appeals, I.A.1/2020 for
stay filed in both the appeals do not survive for
consideration and are accordingly dismissed.
Sd/-
JUDGE
LG
