Karnataka High Court
Abdul Rasheed S/O Mohammed Meeransab vs Srinivas S/O Kashinath Rao on 1 February, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL No.200122/2015
Between:
Abdul Rasheed
S/o Mohammed Meeransab,
Age: 47 years, Occ: Tailor,
R/o Sedam,
Dist: Gulbarga - 585 222.
... Appellant
(By Smt. Hema L. Kulkarni, Advocate)
And:
Srinivas S/o Kashinath Rao
Age: 73 years,
Occ: Retd. District Judge,
R/o: Judiciary Layout,
Yelahanka, Bangalore,
Now at H.No.2-10-87,
Cinema Road, Sedam,
Dist: Gulbarga - 585 222.
...Respondent
(By Sri B.D. Hangarki, Sri S.B. Hangarki &
Sri K.B. Hangarki, Advocates)
2
This Regular Second Appeal is filed under Section 100
of CPC, against the judgment and decree dated: 02.01.2015
passed in R.A.1/2014 on the file of the Senior Civil Judge at
Sedam, dismissing the appeal and confirming the judgment
and decree dated 16.11.2013 passed in O.S.No.58/2008 on
the file of the Senior Civil Judge at Sedam.
This appeal coming on for orders this day, the Court
delivered the following:
JUDGMENT
The above appeal has been admitted to consider the following substantial question of law:
"Whether the Trial Court and the First Appellate Court have committed any serious legal error in not considering the relevant materials produced before the Court by the plaintiff and in appreciating the evidence on record with regard to the interference by the defendant and wrongly dismissed the suit of the plaintiff?"
2. Appellant is the plaintiff in O.S.No.58/2008. Said suit was filed for perpetual injunction against respondent - defendant to protect his alleged lawful possession as a tenant of suit shop bearing No.2-10- 86/1 contending inter alia that he is in possession of 3 the said property since 1994 and is carrying on his business in tailoring under the name and style of "New Star" and had been paying rents to the landlord who inducted him namely, Sri Satish Kumar regularly. Rent receipts, electricity bills and certified copy of complaint lodged before the jurisdictional police also came to be produced. It was also contended by plaintiff that defendant is no way concerned either with the plaintiff or with the suit property and he is trying to interfere with his lawful possession and apprehending forcible dispossession, suit in question came to be filed.
3. Respondent on service of suit summons appeared and filed written statement, admitted lawful possession of appellant over suit property. However, it was specifically denied that appellant is not tenant of alleged Satish Kumar and it was contended that suit in question is filed in collusion with Satish Kumar to set up ownership of the property in favour of Satish Kumar. 4 It was further contended by the defendant that he is the owner of suit property and plaintiff is his tenant and eight documents were produced which were got marked as Exs.D1 to D8 and by relying upon them, defendant sought for dismissal of the suit.
4. Trial Court on the basis of the pleadings of parties formulated following issues for its adjudication:
"1. Whether the plaintiffs prove that, he is in lawful possession over the suit schedule property as on the date of suit?
2. Whether the plaintiff further proves that, the defendant is illegally trying to interfere with the possession of the plaintiff over the suit property?
3. Whether the plaintiff is entitled the relief as sought for?
4. What order or decree?"
5. On appreciation of evidence, trial Court held that plaintiff is in lawful possession of suit property and he is running his tailoring business in suit schedule property and has established his possession. However, on the issue of an alleged threat to dispossess him 5 forcibly by defendant, trial Court has found that there has been no attempt made by the defendant to dispossess the plaintiff illegally and that too with the assistance of goondas as alleged by the plaintiff by relying upon Ex.P36 namely police complaint. It was not alleged by the plaintiff that defendant was attempting to dispossess him with the assistance of goondas. It was also noticed by the trial Court while appreciating evidence of PW-1 that in his cross- examination he had admitted that Monday was a weekly holiday for the business run by the plaintiff and cause of action which had been pleaded by plaintiff in the plaint as indicated being 10.03.2008 which incidentally happened to be a Monday, it was held by the trial Court that there was no cause of action for the suit. On these grounds amongst others, as succinctly discussed by the trial Court in paragraphs-16 and 17 it arrived at a conclusion that plaintiff had utterly failed to prove that defendant had attempted to interfere with plaintiff's 6 peaceful possession and enjoyment of suit property. Trial Court while discussing issue No.3 which related to the relief to which plaintiff was entitled for, has recorded a finding that plaintiff was more keen on attempting to depict one Mr. Satish Kumar as the owner of the suit property rather than asserting his possession to the suit property and thereby seeking for perpetual injunction not to dispossess without due process of law. Trial Court also noticed that suit filed by Sri Satish Kumar in O.S.No.17/2008 was instituted on 03.04.2008 and immediately thereafter that is on 05.04.2008 suit in question has been instituted by the plaintiff which would only indicate that it is at the instance of Satish Kumar and with the sole intention of assisting and helping said Satish Kumar same has been filed. Further finding has also been recorded on appreciation of evidence that plaintiff has filed the suit without there being any cause of action in the suit and based on illusory cause of action and at the behest and instance 7 of Satish Kumar. As such suit in question came to be dismissed.
6. Being aggrieved by the same, defendant filed first appeal in R.A.No.1/2014 by reiterating the grounds urged in the appeal memorandum and relying upon the evidence. The lower appellate Court on re-appreciation of entire evidence has come to a conclusion that the trial Court has discussed the entire evidence threadbare and even on re-appreciation of evidence the finding arrived at by the trial Court does not call for interference and it does not suffer from any infirmity either in law or on facts and as such it has arrived at a conclusion that appeal is devoid of merit and accordingly dismissed the same.
7. Re-substantial question of law:
In fact this Court could have at the threshold itself dismissed this appeal by answering substantial question of law in the negative that is in favour of 8 respondent and against the appellant, solely on the ground that defendant has filed the suit for possession in O.S.No.10/2009 whereunder defendant had sought for ejectment of present appellant - plaintiff from suit schedule property. To put it differently, it can be said that apprehension expressed by plaintiff in the suit, which was to the effect that defendant therein namely respondent herein is attempting to dispossess the plaintiff from the suit schedule property and without due process of law has virtually got spent itself or in other words the apprehension of the plaintiff had been allayed. The apprehension of plaintiff has been allayed by virtue of suit for ejectment having been filed by defendant. However, on account of persistence argument of the learned counsel appearing for appellant contending that still cause of action survives for plaintiff to proceed with this appeal and also in the light of substantial question of law having been formulated, 9 same is being adjudicated and being answered hereunder.
8. Since the facts have been discussed in detail, this Court would not embark up on dwelling these aspects yet again as it would be burdensome on the record.
9. The pleadings of parties as discussed by both the Courts below would disclose that on the one hand the plaintiff contended before the trial Court that he is not a tenant under the defendant but he is a tenant in the suit schedule property under one Sri Satish Kumar. It was also alleged by plaintiff that defendant claiming to be the owner of the suit property was attempting to dispossess him forcibly and without due process of law. In this background trial Court had examined as to whether the fear expressed by the appellant - plaintiff is genuine or otherwise and while examining the issue of cause of action in the suit which was pleaded in the plaint as 10.03.2008, it came to be noticed by both the 10 Courts that PW-1 in his cross-examination had clearly admitted that Monday is a weekly holiday for his business and on said date he would close down the shop where his business is being run. 10th March, 2008 happens to be Monday, as such, the plea of plaintiff that on that day defendant attempted to interfere with his alleged possession was fraught with fallacy or it was held by trial Court as a false plea. Hence, trial Court had arrived at a conclusion that cause of action alleged by the plaintiff is illusory make believe for the purpose of filing the suit in question. It was also noticed by the Courts below that alleged Satish Kumar whom the plaintiff contended to be the owner of the suit property had filed a suit in O.S.No.17/2008 on the file of Senior Civil Judge, Sedam against the defendant herein for the relief of possession of the suit property and the said suit was filed on 03.04.2008 and immediately after two days that is on 05.04.2008 the present suit has been filed and probably at the instance of Satish Kumar and in 11 collusion with the said Satish Kumar present suit in question had been filed.
10. It is also noticed by the trial Court and rightly so that alleged rent receipts which came to be produced by the plaintiff are concocted and fabricated receipts since it was not accompanied by original lease agreement alleged to have been executed by Satish Kumar in favour of the plaintiff. It is also noticed by the trial Court that rent receipts which were produced and marked as Exs.P-1 to P-12 are all typed and amounts are varying and there is no consistency. No attempt has been made by the plaintiff to examine said Satish Kumar in the present suit who had also staked his claim as owner of the suit property.
11. The lower appellate Court while re-appreciating the evidence has found that there were employees working in plaintiff's tailoring shop and to prove that on the date when allegedly defendant threatened the 12 plaintiff to dispossess there were employees working in the shop according to plaintiff. Hence, nothing prevented the plaintiff to examine any one of the employees to prove the alleged interference. This exercise was not undertaken by the plaintiff.
12. The alleged dispossession of another tenant in the same building by name Vishwanath was also sought to be projected by the plaintiff to contend that in the same manner he was also being dispossessed, said plea remained as a plea without proof. Said Viswhanath was not examined in the instant case though plaintiff very heavily relied upon Ex.P-35 which is a FIR registered by the jurisdictional police against defendant based on the complaint filed by said Vishwanath. Non-examination of author of the complaint Ex.P-34 and no further steps having been taken by said Vishwanath who was alleged to have been dispossessed illegally, trial Court as well as the lower appellate Court have rightly come to a 13 conclusion that plaintiff in order to make believe an existence of cause of action had pleaded in the plaint that cause of action for suit arose on 10.03.2008 and 28.03.2008 without disclosing either in the plaint or in the evidence as to the nature of incident that took place on these two dates which gave rise to cause of action for filling the suit. As such, Courts below have rightly arrived at a conclusion that though plaintiff is in possession of suit property had failed to establish alleged interference by defendant as a ground to dismiss the suit.
13. For the reasons afore stated, this Court is of the considered view that trial Court as well as the lower appellate Court have rightly appreciated and re- appreciated the evidence and there is no infirmity whatsoever in the finding so recorded and the suit/appeal have been rightly dismissed. Hence, question of law is answered in the negative. 14
14. Incidentally, this Court will have to examine as to whether the plaintiff is to be mulcted with costs or not, since costs has to follow cause. Plaintiff is not claiming any title over the suit property. He is claiming right to be continued in the suit shop premises as a tenant and he has contended that he is a tenant under Satish Kumar and not under present defendant. During the pendency of the suit, DW-1 got himself further examined namely he tendered further examination-in- chief on 20.06.2009 and 12.08.2010 on which dates he has produced certified copy of order sheet of O.S.No.10/2009 Ex.D-12 and copy of written statement in O.S.No.10/2009 marked as Ex.D-16. The said written statement was filed by present plaintiff seeking for dismissal of the suit filed by the plaintiff therein that is defendant herein for possession of the suit property whereunder it was contended that on account of interse dispute with regard to title to the suit property the suit in O.S.No.10/2009 came to be dismissed. Atleast at 15 that stage the plaintiff knew that defendant herein had filed a suit for possession in O.S.No.10/2009 and plaintiff herein had already appeared and filed his written statement and had been defending the said suit, and at that juncture itself the present suit could have been disposed of in the light of defendant having filed a suit for possession against the plaintiff as the cause of action for suit in question (assuming for a movement that cause of action existed) did not survive for consideration since the apprehension of the plaintiff in the present suit in question in O.S.No.58/2008 was that the defendant was attempting to dispossess him without due process of law. In other words, the apprehension of plaintiff was allayed by defendant himself, since he had filed a suit for possession in O.S.No.10/2009 against plaintiff. This step was not taken by the plaintiff but on the other hand he had persistently pursued his alleged grievance not only before the trial Court but before the lower appellate 16 Court by challenging the judgment and decree passed in O.S.No.58/2008 by filing an appeal in R.A.No.1/2014 and has been continuing the same in the present second appeal. This would only indicate that plaintiff being fully aware of the fact that defendant had taken steps to evict or eject him from the suit schedule property in the manner known to law, yet pursued his grievance before the Courts which was not necessary or called for. It would only indicate that plaintiff was intending to keep the lis or litigation pending. Hence, this Court is of the considered view that plaintiff is to be mulcted with costs namely compensatory costs payable to respondent-defendant. Hence, the following order:
(a) Second appeal is hereby dismissed by answering substantial question of law against appellant and in favour of respondent with costs.
(b) Appellant-plaintiff shall pay costs of Rs.5,000/- (Rupees Five thousand Only) 17 to respondent-defendant within one month from the date of this judgment failing which the respondent-defendant would be at liberty to file execution petition to recover the said amount by treating the same as a money decree.
Ordered accordingly.
Registry is directed to take steps to re-transmit the records to the jurisdictional Courts.
In view of appeal having been disposed of on merits, I.A.No.1/2016 does not survive for consideration.
Sd/-
JUDGE swk