Karnataka High Court
Sri D Logan vs Smt Radha V on 22 October, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
RFA NO.361/2016 (INJ)
BETWEEN
SRI D LOGAN
S/O LATE DURAISWAMY REDDY
AGED ABOUT 60 YEARS
R/AT NO.17, 7TH MAIN
80 FEET ROAD, H.R.B.R.
LAYOUT, II BLOCK
KALYAN NAGAR
BANGALORE-560 043 ... APPELLANT
(BY SRI. SURENDRA KUMAR N., ADV.)
AND
SMT RADHA V
W/O V. PURANDHARA NAIDU
AGED ABOUT 36 YEARS
R/AT NO.133, 2ND FLOOR
3RD CROSS, NEAR SRIRAMA TEMPLE
COX TOWN, JEEVANAHALLI
BANGALORE-560 005 ... RESPONDENT
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
16.01.2016 PASSED IN OS.NO.8088/2010 ON THE FILE
OF THE XX ADDL. CITY CIVIL AND SESSIONS JUDGE
BENGALURU, DECREEING THE SUIT FOR PERMANENT
INJUNCTION.
2
THIS RFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the defendant in OS No.8088/2010 challenging the judgment and decree dated 16.1.2016 passed by the XX Addl. City Civil & Sessions Judge (CCH-32), Bengaluru City.
2. I have heard the arguments of the learned counsel for the appellant. Perused the records.
3. Though respondent was served with notice, she remained absent and no representation.
4. The brief factual matrix that emanate from the records are that:
The plaintiff Smt. Radha V. (respondent herein) has filed a suit for permanent injunction restraining the defendant (appellant herein) from dispossessing the plaintiff from the suit schedule premises. The said suit was contested by the defendant by filing written statement and also by filing a Counter Claim. 3
5. The suit of the plaintiff was based on the facts that, the plaintiff is a tenant under the defendant on a monthly rent of Rs.7,900/- and an advance of Rs.1,50,000/- on the basis of the Rent Agreement entered into between the parties dated 21.10.2009. The plaintiff has stated that he has taken up the Schedule premises on rent to run a Restaurant, by availing loan of Rs.5 lakhs from Bank of India and invested more than Rs.8 lakhs to the Schedule premises. The plaintiff has been paying rents regularly to the defendant. In spite of that, the defendant has made attempts to evict the plaintiff without due process of law, and therefore, the plaintiff was constrained to file a suit against the defendant.
6. The defendant, who made appearance before the trial Court has admitted the relationship with the plaintiff and also the Rent Agreement dated 21.10.2009. However, he denied that he at any time interfered with the possession of the plaintiff over the suit schedule premises. But, he has stated that, the plaintiff is not paying rents regularly and that the period of Rent 4 Agreement has been expired and in spite of that, the plaintiff has not vacated the premises and therefore, on that ground, the defendant pleaded for dismissal of the suit.
7. On the basis of the contentious pleadings between the parties, the trial Court has proceeded to frame the following issues:
(1) Whether the plaintiff is in lawful possession and enjoyment of the suit property?
(2) Whether the plaintiff proves the alleged interference of the defendant is true?
(3) Whether defendant is entitle for the relief as claimed in the counter claim?
(4) Whether defendant is entitled for vacant possession of the premises.
(5) What order or decree?
8. The plaintiff in order to establish her contention, examined herself as PW-1 and got marked documents Exs.P1 to P6. The defendant also examined as DW-1 and got marked Exs. D1 to D5. The trial Court 5 answering issue Nos.1 to 3 in the Affirmative, Issue No.4 in the Negative, has decreed the suit restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule premises. However, no reasons have been assigned so far as issue No.4 is concerned. Therefore, particularly, the defendant is before this court challenging the said act of the trial Court in not providing any reasons to give finding on issue No.4 in the Negative.
9. The learned counsel for the appellant strenuously contends before this court that, the plaintiff before the trial Court has not paid the rents regularly and in fact, he has violated the conditions of the lease agreement and even after lapse of the lease period, the plaintiff has not vacated the premises.
10. It is the further contention of the learned counsel for the appellant/defendant (owner) before this court is that he has filed a detailed Counter Claim for eviction of the plaintiff from the suit schedule premises. There is no dispute between the parties with regard to their relationship. The defendant is legally entitled for 6 eviction of the plaintiff from the suit schedule premises. The defendant has also paid court fee along with the counter claim. It is the bounden duty on the part of the court to give reasons for giving Negative finding on the issues framed, casting burden on the defendant. The defendant has led evidence in this regard and got marked several documents. Therefore, the trial Court ought to have given reasons for answering issue No.4, which has not been done by the trial Court. Therefore, he prays this court to allow the appeal and set aside the judgment and decree passed by the trial Court and consequently, allow the counter claim of the defendant.
11. On the basis of the above said contention of the appellant, the points that would arise for consideration of this court are:
(1) Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment and decree passed by the trial Court granting injunction in favour of the plaintiff?
(2) Whether the appellant has made out any reasonable or substantial ground to 7 interfere with the judgment of the trial Court on the ground that the trial Court has not given any reasons while answering issue No.4?
(3) What order?
12. On careful perusal of the averments made in the pleadings by the respective parties, it is evident that there is no dispute between the parties with regard to their relationship. The plaintiff is a tenant and defendant is a landlord of the suit schedule premises. The defendant has taken up the contention that he never interfered with the possession and enjoyment of the premises let out to the plaintiff. The plaintiff has stated that the defendant has been attempting to evict the plaintiff without due process of law, the apprehension of the plaintiff has been very well recognized and considered by the trial Court and granted an order of injunction.
13. The defendant has categorically stated in the counter claim with regard to the attitude of the plaintiff that the plaintiff has not paid the rent regularly and the plaintiff even after lapse of the agreement 8 period, did not voluntarily vacated the suit schedule premises and therefore, he sought for eviction of the suit schedule premises. It also indicates that there was an apprehension of dispossession by the defendant so far as the plaintiff is concerned. Therefore, though the defendant in a specific words has stated that he never interfered with the possession and enjoyment of the property by the plaintiff, but the circumstances show that the plaintiff had reasonable apprehension of dispossession at the hands of the defendant. Therefore, the trial Court has rightly granted an order of injunction, restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule premises. As I have said, the said order will be in force only till that point of time, the defendant takes appropriate steps for evicting plaintiff from the suit schedule property.
14. So far as the second Point formulated in this appeal is concerned, as rightly contended by the learned counsel for the appellant that the trial Court has not even discussed anything with regard to the counter 9 claim and not even stated about its jurisdiction to entertain the counter claim and grant the relief in favour of the plaintiff.
15. Of course, in the Counter Claim filed under Order VIII Rule 6(a) and (b) of the CPC, the defendant has made certain grounds for eviction by pleading that the plaintiff has not paid rents regularly and has not vacated the premises even after lapse of the lease period. Defendant has also contended in the Counter Claim that plaintiff had filed false suit alleging that the defendant is illegally trying to obtain possession without due process of law. He has also issued legal notice to the plaintiff for eviction and in spite of that, the plaintiff has not adhered to the terms of the lease agreement. Those conditions have not been considered by the trial Court and not even a single word has been spelt out by the trial court so as to answer issue No.4 in the Negative. Therefore, it is a finding without any reasons.
16. It is a well recognized principle of civil jurisprudence that when a counter claim is filed by paying the court fee, the defendant shall be treated as a 10 plaintiff. So far as the plaintiff is concerned, if he has filed any objection to the counter claim filed by the other side, the same shall be treated as written statement. It is also a well recognized principle of law that even if the plaintiff's suit is dismissed for any reason, the counter claim cannot be ignored, and it shall be dealt with, as if, a plaint is filed.
17. Regarding the counter claim is concerned, once the defendant pays the court fee on the counter claim, it becomes the responsibility of the court to deal with the counter claim in accordance with law by giving opportunity to the defendant as if, he has filed a suit. But that has not been done in this case. So far as this case is concerned, the trial Court has not even looked into the contentions taken up in the counter claim atleast in order to ascertain whether the said court has got any jurisdiction to entertain the Counter Claim and to grant the relief. Therefore, as rightly contended by the learned counsel, the trial Court has committed legal serious error in not considering the counter claim with reference to the relief sought for in the counter claim. 11 Therefore, I am of the opinion that the appellant has made out a good ground to interfere with the judgment passed by the trial Court so far as the counter claim is concerned.
Under the above said circumstances, the matter has to be remitted to the trial Court with a direction to the trial Court to consider the counter claim as if it is a plaint. Trial court has to ascertain whether it has got any jurisdiction to deal with the counter claim, and then pass orders in accordance with law.
Accordingly, the appeal is partly allowed. Findings in Issue No. 4 is set-aside. The matter stands remitted to the trial court to consider the claim of the defendant on the counter claim in accordance with law and pass appropriate orders within 6 months from the date of receipt of a copy of this judgment.
Sd/-
JUDGE PL*