Karnataka High Court
M/S Narayana Swamy And Sons vs Shri K T Rajashekar on 20 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 2627
M.F.A.No.7414/2015 C/w
W.P.No.22495/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.7414/2015
C/w
WRIT PETITION NO.22495/2015 (GM-CPC)
BETWEEN:
M/S.NARAYANA SWAMY & SONS
A PARTNERSHIP FIRM
NO.33 (NEW NO.20)
VANIVILAS ROAD
BASAVANAGUDI
BENGALURU- 560 004
REP. BY ITS MANAGING PARTNER
MR.N.VENKATESH ...APPELLANT/
...PETITIONER
(COMMON)
(BY SRI ASHOK.B.PATIL, ADVOCATE)
AND:
SHRI K.T.RAJASHEKAR
S/O. K.TIMMEGOWDA
AGED ABOUT 71 YEARS
R/AT NO.321, TIPPU SULTAN
PALACE ROAD (T.S.P. ROAD)
OPP. BANGALORE MEDICAL COLLEGE
KALASIPALYAM, BENGALURU- 560 002
PROPRIETOR OF S.R.S.TRAVELS ...RESPONDENT
(COMMON)
(BY SRI Y.V.PARTHASARATHY, ADVOCATE)
MFA NO.7414/2015 IS FILED UNDER SECTION 104
READ WITH ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET
ASIDE THE ORDER DATED 07.09.2015 PASSED BY 42nd
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU
M.F.A.No.7414/2015 C/w
W.P.No.22495/2015
2
CITY (CCH-No.43) ON I.A.NO.4 FILED UNDER ORDER XXXIX
RULES 1 AND 2 OF CPC IN O.S.NO.2840/2014.
W.P.NO.22495/2015 IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 22.04.2015 (ANNEXURE-L) PASSED BY 42nd
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU
CITY (CCH-No.43) ON I.A.NO.2 FILED UNDER ORDER VIII
RULE 1 OF CPC IN O.S.NO.2840/2014.
MFA AND WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 02.12.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT/ORDER THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff in O.S.No.2840/2014 on the file of 42nd Additional City Civil and Sessions Judge, Bengaluru City (CCH-43) is the petitioner in Writ Petition No.22495/2015 and the appellant in M.F.A.No.7414/2015.
2. In the writ petition, he is seeking quashing of the order dated 22.04.2015 (Annexure-L) passed by the trial Court on I.A.No.2. In the appeal, he has challenged the order dated 07.09.2015 passed by the trial Court on I.A.No.4.
3. By the order Annexure-L the trial Court allowed I.A.2 filed by the defendant, condoned the delay M.F.A.No.7414/2015 C/w W.P.No.22495/2015 3 in filing the written statement and received the written statement.
4. By the order dated 07.09.2015, the trial Court dismissed I.A.No.4 filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC, seeking temporary injunction against the defendant to restrain him from putting up any construction on the suit schedule properties.
5. Respondent in both these cases is the defendant before the trial Court. For the purpose of convenience, the parties will be henceforth referred to with their ranks before the trial Court.
Brief facts of the case:
6. Subject matter of the suit was the land bearing Survey Nos.6/1 and 6/2 measuring 4 acres 18.14 guntas and a shed thereon. The said property is shown as plaint 'A' schedule property. Plaint 'B' schedule property is a portion measuring 13,500 square feet carved out of plaint 'A' schedule property. There is no dispute with regard to the identity of the properties.
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7. Plaint schedule properties belong to the plaintiff partnership firm called "M/s.Narayana Swamy & Sons". Mr.N.Venkatesh represents the plaintiff as its Managing partner. M.N.Kumaraswamy, M.N.Vishwanath are the sons and Smt.Leelavathi is wife of B.M.Narayana Swamy. B.M.Narayana Swamy was the Managing Partner of the plaintiff firm. He died on 26.07.2008.
8. B.M.Narayana Swamy during his life time on 01.01.2008 entered into an agreement of licence with the defendant in respect of 'B' schedule property for a term of 11 months for the purpose of parking the buses of the defendant.
9. The defendant is running travel service called "S.R.S. Travels", which is his proprietary concern. The agreed licence fee in the said agreement was Rs.1,35,000/- p.a. for the open land and Rs.12,000/- p.a. for the shed thereon exclusive of electricity and water supply charges.
10. After the death of B.M.Narayana Swamy, the partnership firm was reconstituted on 26.11.2012, M.F.A.No.7414/2015 C/w W.P.No.22495/2015 5 whereunder Smt.Leelavathi wife of B.M.Narayana Swamy, G.Kumara Swamy and N.Venkatesh, the sons became the partners. The said partnership deed states that reconstituted partnership firm shall be deemed to have commenced with effect from 26.07.2008 i.e. from the date of death of B.M.Narayana Swamy.
11. Such being the facts, the plaintiff issued notice dated 16.12.2013 revoking the licence issued in favour of the defendant and calling upon him to desist from using the suit schedule properties and directing him to vacate the properties. It was also alleged in the notice that defendant is using 'A' schedule property though licence was only for 'B' schedule property and he has committed default in payment of licence fee etc.
12. The plaintiff filed O.S.No.2840/2014 against the defendant on 09.04.2014 for ejectment, for perpetual injunction, recovery of arrears of licence fee and damages, etc. On service of summons, the defendant appeared before the Court on 03.06.2014. Despite the Court vide order dated 03.07.2014 M.F.A.No.7414/2015 C/w W.P.No.22495/2015 6 extending the time on his application to file written statement, he did not file the written statement up to 09.09.2014. On 09.09.2014, the trial Court recorded that the written statement of defendant was not filed and posted the matter for evidence.
13. On 06.12.2014 the defendant filed I.A.No.2 seeking to recall the order dated 09.09.2014 and receive his written statement filed along with the said application. The application was opposed by the plaintiff. The trial Court by order dated 22.04.2015 allowed I.A.No.2 and received the written statement.
14. Challenging the order dated 22.04.2015 allowing I.A.No.2, the plaintiff is before this Court in Writ Petition No.22495/2015 (GM-CPC) mentioned above. This Court on 03.06.2015 granted interim stay of the order of the trial Court passed on I.A.No.2 and issued notice to the defendant.
15. On 17.08.2015, the plaintiff filed I.A.No.1/2015 in Writ Petition No.22495/2015 (GM-CPC) M.F.A.No.7414/2015 C/w W.P.No.22495/2015 7 seeking interim direction against the defendant not to put up construction on 'A' Schedule property. On 19.08.2015, the plaintiff filed memo along with some documents before this Court reporting that the defendant is proceeding with the construction. On the same day, this Court disposed of I.A.No.1/2015 in the writ petition reserving liberty to the plaintiff to seek redressal of his grievance by filing necessary application before the trial Court and ordered that the parties shall maintain status quo till the defendant filing the objection statement to the application the plaintiff proposes to file before the trial Court.
16. Accordingly, the plaintiff filed I.A.No.4 in O.S.No.2840/2014 before the trial Court seeking temporary injunction against the defendant restraining him from putting up construction on schedule 'A' property. The defendant filed his statement of objections to the said application. The trial Court on hearing the parties dismissed the application vide order M.F.A.No.7414/2015 C/w W.P.No.22495/2015 8 dated 07.09.2015. The said order is challenged before this Court in M.F.A.No.7414/2015.
17. In Writ Petition No.22495/2015 (GM-CPC), the plaintiff has filed I.A.No.2/2015 under Order XXXIX Rule 2A read with Section 151 CPC and Article 227 of the Constitution of India alleging that the defendant has put up structure on the suit schedule properties in violation of the status quo order of this Court, therefore, he shall be dealt with and punished for willful disobedience of the order of this Court. The defendant opposed the said application by filing statement of objections.
18. This Court vide order dated 04.01.2016 directed the trial Court to record evidence of the parties on I.A.No.2/2015 and resubmit the records along with the evidence recorded by it for consideration of I.A.No.2/2015. Accordingly, the trial Court recorded the evidence on I.A.No.2/2015 and submitted the same to this Court. Thus I.A.No.2/2015 is pending for consideration.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 9
19. In M.F.A.No.7414/2015, this Court on 15.10.2015 directed the defendant not to put up construction on the suit schedule properties till next hearing date and that order was extended from time to time.
20. In M.F.A.No.7414/2015, the plaintiff filed I.A.No.1/2019 under Order XXXIX Rule 2-A read with Section 151 CPC alleging that the defendant has willfully violated the interim order granted in the appeal, therefore, to punish him for such disobedience and for attachment of his property. On the same day, the plaintiff also filed I.A.No.2/2019 under Order XXXIX Rules 1 & 2 CPC seeking injunction against the defendant from putting up further construction on the application 'A' schedule property alleging that on dismissal of injunction application by the trial Court, the defendant has taken up construction for embedding fuel tanks underground. The defendant has filed objections to both the applications. The plaintiff also filed memo dated 31.10.2019 seeking permission to produce some M.F.A.No.7414/2015 C/w W.P.No.22495/2015 10 photographs to substantiate his allegations under I.A.Nos.1 and 2 of 2019.
21. Records reveal that on 02.03.2017, the plaintiff's Counsel filed memo in M.F.A.No.7414/2015 for listing the writ petition along with the appeal. On the basis of such memo, both these matters were connected and were being posted thereafter together for consideration. In the light of such order, these matters are being considered together.
In W.P.No.22495/2015:
22. Plaintiff filed O.S.No.2840/2014 as aforesaid on 09.04.2014. As per the postal acknowledgement Annexure-D, the suit summons was served on the defendant on 30.04.2014. Annexure-E the endorsement of process server shows that he served the suit summons on the defendant on 20.05.2014. The defendant appeared in the case on 03.06.2014. He did not file the written statement within 30 days from the date of service of summons.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 11
23. On 03.07.2014, the defendant filed an application under Section 148 read with Section 94(e) and Section 151 CPC seeking extension of time for filing the written statement. That was opposed by the plaintiff. However, the trial Court allowed the said application. Then the matter was adjourned from time to time up to 09.09.2014 and no written statement was filed. On 09.09.2014, the trial Court rejected the prayer of the defendant for adjournment to file written statement and recorded that the written statement of the defendant was not filed and posted the matter for plaintiff's evidence.
24. On 09.01.2015, when the matter was set down for plaintiff's evidence, defendant's Counsel submitted that he has filed application (I.A.No.2) for leave to file written statement along with the written statement in the Registry. The plaintiff opposed the said application. The trial Court by impugned order as per Annexure-L dated 22.04.2015 allowed the said application and permitted the defendant to file the M.F.A.No.7414/2015 C/w W.P.No.22495/2015 12 written statement on payment of cost of Rs.1000/-. The legality of that order is challenged in the writ petition.
25. Annexure-H is the copy of I.A.No.2 filed under Order VIII Rule 1 r/w Section 94(e) and Section 151 CPC in the suit. Annexure-J is the copy of the statement of objections filed by the plaintiff to I.A.No.2.
26. In para 3 of the affidavit filed in support of I.A.No.2, the reasons assigned to explain the delay were as follows:
"3. I respectfully submit that after going through the plaint averments, my advocate asked me to furnish him certain papers and clarifications relating to the claim of the plaintiff. I was able to search, locate and obtain documents and furnished the same to my Advocate. After discussing with my Advocate, the Written Statement is prepared and the same is filed now."
(Emphasis supplied)
27. Thus, according to the defendant the reason for delay was his Advocate's request to him to furnish him certain papers and clarifications and his inability to search, locate and obtain the documents.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 13
28. The plaintiff seriously opposed the said application and contended that the application is malafide. The plaintiff contended that on filing the suit, the defendant tampered the other partner of the firm and created certain documents to spin a defence for himself, therefore, application was liable to be dismissed.
29. Sri Ashok.B.Patil, learned Counsel for the plaintiff seeks to assail the impugned order of the trial Court on the following grounds:
(i) Delay was not three months as stated by the trial Court, but it was 227 days;
(ii) The documents allegedly secured by the defendant were not the documents which were in existence before filing of the suit or within 90 days therefrom. But they were manipulated tampering one of the partners of the partnership firm to spin the defence of the defendant. Such ground cannot be said to be the ground for searching and securing the document but was an oblique motive to harass the plaintiff;
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 14
(iii) The Court can extend the time beyond 90 days only on exceptional ground. But no such exceptional ground was made out in the case on hand;&
(iv) The judgment of the Hon'ble Supreme Court relied upon by the trial Court does not state that in any circumstances the delay shall be condoned and the trial Court has misinterpreted the said judgment.
30. In support of his contentions, he relied upon the following judgments:
1. Kailash v. Nanhku1
2. R.N.Jadi & Brothers v. Subhashchandra2
3. M/s.Aditya Hotels (P) Ltd. V.Bombay Swadeshi Stores Ltd.3
4. Mohammed Yusuf v. Faij Mohammad4
31. Per contra, Sri Y.V.Parthasarathy, learned Counsel for the defendant seeks to support the impugned order of the trial Court on the following grounds:
(i) Defendant was required to collect the documents. Therefore, there was delay in filing the 1 2005 AIR SCW 2346 2 (2007) 6 SCC 420 3 2007 AIR SCW 2311 4 2009 AIR SCW 601 M.F.A.No.7414/2015 C/w W.P.No.22495/2015 15 written statement and the trial Court rightly accepted that;
(ii) Party shall not be prevented from contesting the suit and he shall be given fair trial. Since the Court had extended the time earlier up to 09.09.2014, the delay if any has to be computed only from 09.09.2014;
(iii) The trial Court compensated the delay by imposing costs and that was drawn by the plaintiff.
Therefore, plaintiff is estopped from challenging the order.
32. In support of his contentions, he relied upon the following judgments:
1. Zolba v. Keshao5
2. S.G.Narayana Swamy v. Ramakrishnappa6
3. Sajid Ali v. Smt.Shakila Begum7
4. Vikramaditya Bhartia v. DDA8 Reg: Maintainability of the petition by bar of estoppel :
33. Defendant's Counsel contended that plaintiff has drawn the cost awarded while allowing I.A.No.2. But 5 (2008) 11 SCC 769 6 ILR 2003 KAR 2205 7 2014 SCC Online Kar 6241 8 2011 SCC Online Del 3761 M.F.A.No.7414/2015 C/w W.P.No.22495/2015 16 the plaintiff's Counsel disputed the same. Therefore, it was for the defendant to substantiate the contention of the withdrawal of the cost so deposited. Nothing was produced to show that costs deposited were withdrawn. Therefore, the judgment relied upon in that regard is not applicable and objections regarding estoppel are unsustainable.
Reg: Sustainability of the order impugned in the writ petition:
34. Order VIII Rule 1 CPC provides for filing the written statement which reads as follows:
"1. Written Statement.─ The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons".
(Emphasis supplied)
35. Reading of the above provision makes it clear that the defendant has to file the written M.F.A.No.7414/2015 C/w W.P.No.22495/2015 17 statement within thirty days from the date of service of summons on him. Beyond that Court can extend that period up to 90 days. He can file the written statement only if the Court extends the time.
36. The material portion of the reasoning of the trial Court for allowing the application is in para 12 of the impugned order Annexure-L which reads as follows:
"12. . . . . . . . . . . . . . . . . . . Beyond 90 days there is no power to the court to accept the written statement. But this view has been liberalized by the subsequent decisions, wherein the Hon'ble Supreme Court held that even delay of 3 years can be condoned if there are sufficient grounds to accept the written statement. In the present case, the learned counsel for the plaintiff vehemently argued that the defendant has not shown sufficient ground to accept the written statement, hence same cannot be accepted. Anyhow, on perusal of the records, the defendant has shown the ground that in securing the documents there is delay in filing the written statement. Hence, said delay can be condoned by imposing cost. The right of the defendant cannot be curtailed. No doubt, M.F.A.No.7414/2015 C/w W.P.No.22495/2015 18 opportunity is having to the defendant to file the written statement, but only on some procedural aspects this opportunity cannot be curtailed. Hence, no harm would be caused if the defendant is permitted to file the written statement. Anyhow, in this regard, some cost has been imposed. In the present case there is no abnormal delay. The delay is of about 3 months. Hence, if the same is condoned the defendant has get an opportunity to show his defence. Hence, written statement of the defendant is accepted by condoning the delay. ........................."
(Emphasis supplied)
37. Though both Counsel relied upon several judgments regarding power of the Court to extend the time beyond 90 days, out of them, judgments in Kailash's case and R.N.Jadi's case referred to supra were rendered by larger Bench.
38. The question that had fallen for consideration in those judgments was whether the Court has power to extend the time to file written statement beyond 90 days having regard to Order VIII Rule 1 CPC.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 19
39. In both the judgments it was held that, Order VIII Rule 1 CPC relating the time to file written statement within 90 days is only directory. It was held that if the Court finds exceptional reasons, it can permit filing of the written statement beyond 90 days. The same judgments were followed in the other judgments relied upon by the parties. Therefore, this Court does not find it necessary to refer to other judgments relied upon by both Counsel.
40. What could be the exceptional circumstances was enlisted by the Hon'ble Supreme Court in para-38 of the judgment in Kailash's case, as follows:
"38. . . . . the defendant may have fallen sick, unable to move; may be he is lying unconscious. Also, person entrusted with the job of presenting a written statement, complete in all respects and on his way to the court, may meet with an accident. The illustrations can be multiplied. . . . . . . ."
(emphasis supplied) M.F.A.No.7414/2015 C/w W.P.No.22495/2015 20
41. Therefore, the only question that arises for consideration is whether defendant had any exceptional reason to file written statement beyond the prescribed period?
42. It is to be noted that in the affidavit, the defendant did not mention which were the documents required to be searched, secured and obtained and when ultimately they were searched, secured and obtained. Though while considering such application, written statement need not be looked into, to know which were the documents defendant referred to, it is relevant to look into the written statement and the documents produced by the defendant along with the written statement.
43. The defendant contended that original licence deed dated 01.01.2008 was substituted by another licence deed dated 01.12.2008 allegedly executed by Smt.Leelavathi widow of B.M.Narayana Swamy. That was a disputed document.
44. M.Venkatesh, the Managing partner issued notice dated 16.12.2013 revoking licence. That was M.F.A.No.7414/2015 C/w W.P.No.22495/2015 21 served on the defendant on 17.12.2013. No reply was issued to the said notice up to 09.04.2014 i.e. the date of filing of the suit. On 30.04.2014, the summons was served on the defendant under registered post acknowledgement due. On 20.05.2014, the summons on the defendant was served through process server. Defendant appeared in the case on 03.06.2014.
45. On 03.07.2014, the defendant filed application for extension of time to file the written statement. In the affidavit filed in support of the said application, he specifically states as follows:
"I submit that after going through the plaint averments, my advocate has asked me to obtain certain papers and documents relating to the suit schedule property and the claim made in the plaint. These are said to be very necessary to prepare and file my written statement. I submit that I am in the process of procuring them. This may take about three to four weeks. . . . . . . . . . ."
(emphasis supplied)
46. As already noted till 09.09.2014, he did not file the written statement. I.A.No.2 was filed on 06.12.2014. In the meantime on 01.11.2014, the M.F.A.No.7414/2015 C/w W.P.No.22495/2015 22 defendant's Counsel issued reply notice to the plaintiff's Counsel as per Annexure-O, where under for the first time, it was contended that the termination notice dated 16.12.2013 issued by the plaintiff was withdrawn by another partner G.Kumaraswamy. Even in that reply notice, date of the said letter of Kumaraswsamy was not mentioned.
47. In the written statement it was contended that on 19.11.2014, G.Kumaraswamy representing the firm has executed lease deed for 10 years and therefore, it was contended that the suit is not maintainable.
48. Under such circumstances, there is much force in the contention of the plaintiff's Counsel that the time was gained only to procure the documents to generate a defence and not for searching and securing the documents as alleged in the affidavit filed in support of the application. The conduct of the defendant in the proceedings which will be discussed in the later part of this order is highly deprecable.
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49. In fact, the defendant himself in his sworn statement went to the extent of saying that he has to procure the documents. The trial Court without appreciating these circumstances and applicability of the judgments relied upon by the defendant, in a single stroke said that the defendant has shown sufficient reasons and the delay of more than three years was condoned by the Hon'ble Supreme Court.
50. However, the trial Court failed to notice what was said about the exceptional reasons in the judgments of the larger bench of the Supreme Court in Kailash's case and R.N.Jadi's case referred to supra. The trial Court also did not take any pain to analyze whether the grounds urged constitute exceptional reasons or the like one as enlisted by the Hon'ble Supreme Court in Kailash's case and R.N.Jadi's case.
51. In Kailash's case referred to supra in para 41 of the judgment it was held that the extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing M.F.A.No.7414/2015 C/w W.P.No.22495/2015 24 by the Court regarding its satisfaction. It was further held that it must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice.
52. The facts of the case clearly show that the defendant delayed the filing of the written statement not for searching the documents, which were in existence but for manipulating the documents subsequent to the filing of the suit to generate a defence for him. That is not the exceptional reason or the like one contemplated by the Hon'ble Supreme Court in the above judgments or under the Proviso to Order VIII Rule 1 CPC.
53. Though, generally the Courts are lenient in giving liberty to the parties to defend their cases by filing the written statement, it is high time that unscrupulous parties shall not be encouraged to abuse M.F.A.No.7414/2015 C/w W.P.No.22495/2015 25 the process of Court to defeat the ends of justice. Having regard to the facts and circumstances of the case, permitting the defendant to file the written statement amounts to the court itself permitting the defendant to abuse the process of the court. Under the circumstances, the trial Court failed to exercise its function judiciously and the impugned order requires to be quashed.
Regarding sustainability of the order impugned in M.F.A.No.7414/2015:
54. As already pointed out, the suit was for possession of the suit schedule properties, for injunction, damages and recovery of arrears of licence fee etc. When the above writ petition was filed before this Court challenging the order of acceptance of the written statement, this Court on 03.06.2015 granted interim order of stay regarding receipt of the said written statement.
55. Further, on I.A.No.1/2015 filed by the plaintiff in the writ petition on 17.08.2015, this Court directed the defendant not to put up construction on 'A' M.F.A.No.7414/2015 C/w W.P.No.22495/2015 26 schedule property. On 19.08.2015, this Court directed the parties to maintain status quo and the plaintiff to file injunction application in the suit. Accordingly, the plaintiff filed I.A.No.4 in O.S.No.2840/2014 for temporary injunction restraining the defendant from putting up construction on 'A' schedule property alleging that the defendant is only a licensee and his licence is terminated and he has no right to put up construction.
56. The defendant in his statement of objections contended that the termination notice issued on 16.12.2013 was withdrawn on 10.02.2014 by G.Kumaraswamy another Managing Partner of the Partnership firm. He further contended that said G.Kumaraswamy entered into agreement of lease dated 19.11.2014 and Clause IV(7) of the said lease deed authorizes the defendant to put up structures specified therein on the property. Therefore, he contended that he has right to put up structures. He also contended that he had completed the construction by 18.08.2015 itself, therefore, the application has become infructuous.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 27
57. The trial Court by the impugned order dismissed the application assigning the following reasons:
(i) Plaintiff's challenge to the validity of the lease deed has to be decided at trial;
(ii) As per Clause IV (7) of the said lease deed the defendant has right to put up structures in the suit schedule properties;
(iii) The plaintiff has failed to place evidence to show that the lease deed is concocted one;
(iv) Though plaint 'B' schedule property measures only 13,500 square feet, the plaintiff sought injunction with regard to the entire 'A' schedule property which measures 4 acres 18.14 guntas.
(v) Letter of G.Kumaraswamy another Managing Partner shows that he has given permission to the defendant to carry out temporary work;
(vi) Whether the structures put up by the defendant are temporary or permanent has to be decided by full fledged trial;
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 28
(vii) The possession of the defendant is admitted. The construction is already completed, therefore, the application has become infructuous;
(viii) The plaintiff has failed to make out prima- facie case. Apparently there are disputes between the partners interse and they are trying to throw such disputes on the defendant.
58. Sri Ashok B.Patil, learned Counsel for the plaintiff assails the impugned order of the trial Court on the following grounds:
(i) Documents relied upon by the trial Court were the one produced along with the written statement. This Court in the writ petition had stayed the order receiving the written statement. Therefore, the trial Court was in error in relying on the written statement documents while disposing of I.A.No.4;
(ii) The lease agreement relied upon by the defendant was inadmissible in view of Section 49 of the Registration Act, 1908. The trial Court was in error in relying on such document for any purpose;
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 29
(iii) The trial Court while passing the impugned order failed to properly appreciate the contentions of the plaintiff regarding bar of Section 19(2)(g) of the Indian Partnership Act, 1932 regarding the power of the partner to alienate the property;
(iv) The plaintiff had not sought for any injunction regarding possession of the property. Therefore, the trial Court was in error in rejecting the injunction on the ground that possession is admitted; &
(v) The impugned order of the trial Court is arbitrary and perverse.
59. Sri Y.V.Parthasarathy, learned Counsel for the defendant seeks to support the impugned order on the following grounds:
(i) On the death of B.M.Narayana Swamy, Leelavathi executed fresh licence deed on 01.12.2008 and that authorized the defendant to carry out the temporary works;
(ii) Subsequently, G.Kumaraswamy one of the partners of the partnership firm withdrew the M.F.A.No.7414/2015 C/w W.P.No.22495/2015 30 termination notice issued and further executed the lease agreement in favour of the defendant for term of 10 years. Therefore, the defendant got interest in the property;
(iii) Clause IV (7) of the said lease deed authorized the defendant to put up temporary structures and also to put up rams with pits and erecting alignment machine and maintenance related machines etc. On that basis, the defendant was carrying out temporary work.
(iv) Whether said lease deed is valid and whether Section 19 of the Indian Partnership Act, 1932 applies to the lease deed were to be looked into after the full fledged trial. Therefore, the trial Court rightly held that the plaintiff has failed to make out prima-facie case and the order does not suffer any infirmity.
60. In the light of rival contentions, this Court has to examine whether the impugned order of the trial Court rejecting the application of the plaintiff for injunction suffers arbitrariness and perversity.
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61. While considering the application for grant of temporary injunction, the Court has to see whether the plaintiff satisfies the following three aspects:
(i) Prima facie case of right of the plaintiff;
(ii) Prima facie case of injury to such right of the plaintiff; &
(iii) In whose favour, the balance of convenience lies.
62. Relief of injunction available under Order XXXIX Rules 1 and 2 CPC is nothing but a relief in aid to the main relief that may be granted to the plaintiff in the suit. The plaintiff contends that the defendant was in possession of the property as licensee and his licence was terminated by notice dated 16.12.2013 by the plaintiff firm. Plaintiff issued notice through its Managing Partner N.Venkatesh. Thus, the plaintiff sought possession of the property.
63. The defendant did not dispute that he entered into possession of the property as licensee under the plaintiff firm. But he contended that on the M.F.A.No.7414/2015 C/w W.P.No.22495/2015 32 death of B.M.Narayana Swamy, the original Managing Partner, his wife Smt.Leelavathi executed another licence agreement dated 01.12.2008 which authorized him to construct toilets and bathroom for the use of the drivers, temporary zinc shed to store the tyres and tools for the operation of the buses. His other contention was that on 19.11.2014, G.Kumaraswamy the Managing Partner of the plaintiff firm has executed lease in favour of the defendant for a term of ten years and the Clause IV (7) of the said agreement authorized him to put up temporary structure. Therefore, he has right to put up the structures.
64. The plaintiff contended that the licence deed dated 01.12.2008 is concocted and the lease deed dated 19.11.2014 is invalid, in view of Section 49 of the Transfer of Property Act, 1882 and Section 19(2)(g) of the Indian Partnership Act, 1932. The plaintiff further contended that the said document was brought into existence to defeat the suit.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 33
65. When the earlier agreement was for 13500 square feet, lease was purported to be for an area of 3 acres 24 guntas. Though genuineness and validity of the licence deed dated 01.12.2008 and the lease deed dated 19.11.2014 and the letter of withdrawal of the termination notice were seriously disputed, the defendant did not place the affidavit of G.Kumaraswamy to substantiate the said contentions.
66. On the death of B.M.Narayana Swamy, as per the documents produced by the plaintiff, the plaintiff firm was reconstituted on 26.11.2012 with deemed clause of retrospective operation. Therefore, Smt.Leelavathi was not at all the partner of the plaintiff firm as on the date of the alleged execution of the alleged licence deed dated 01.12.2008.
67. The other ground for rejecting injunction was that G.Kumaraswamy one of the Managing Partner has executed 10 years term lease which contains a clause enabling the defendant to carry out the structural works M.F.A.No.7414/2015 C/w W.P.No.22495/2015 34 mentioned therein, and such lease deed binds the plaintiff's firm also.
68. The validity and the binding nature of such document was very seriously disputed relying on Section 49 of the Registration Act, 1908 and Section 19 of the Indian Partnership Act, 1932.
69. The lease deed set up by the defendant was admittedly unregistered one. Section 17 of the Registration Act, 1908 requires any such lease deed to be registered. Section 49 of the Registration Act, 1908 says that any document which is contrary to Section 17 of the Registration Act, 1908 does not affect any interest in the property. Therefore, the trial Court could not have looked into that document.
70. Section 19(1) and 19(2)(g) of the Indian Partnership Act, 1932 reads as follows:
"19. Implied authority of partner as agent of the firm.--(1) Subject to the provisions of Section 22, the act of a partner which is done to M.F.A.No.7414/2015 C/w W.P.No.22495/2015 35 carry on, in the usual way, business of the kind carried on by the firm, binds the firm.
The authority of a partner to bind the firm conferred by this section is called his "implied authority".
19(2) In the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to-
(a) . . . . . . . . .
...........
(g) transfer immovable property
belonging to the firm . . ."
(Emphasis supplied)
71. From reading of the above provision, it becomes clear that unless usage or custom of trade to the contrary, the implied authority of a partner does not empower him to transfer the immovable property belonging to the firm. The defendant did not even plead that there was such custom or trade usage in the plaintiff firm to enable a partner to transfer the immovable property.
72. Lease is no doubt the transfer of immovable property of the firm. That being so, the implied authority G.Kumaraswamy, as contemplated under M.F.A.No.7414/2015 C/w W.P.No.22495/2015 36 Section 19 of the Indian Partnership Act, 1932 do not prima-facie extend to the act of transferring interest in the property. When the transfer itself does not bind the firm, the condition enabling the defendant to put up construction also does not prima-facie bind the firm. Still trial court says such legal issue shall be examined only at final hearing of the case.
73. Though there was such apparent legal bar under Section 49 of the Registration Act and Section 19 of the Partnership Act, the trial Court says that all those things have to be considered at the final stage which is patently illegal.
74. Apparently, the defendant was trying to take advantage of the differences between the partners for his benefit and was trying to fish in the troubled water. Plaintiff had sought possession of the property terminating the licence. When there was an apparent doubt regarding the legality and validity of the documents purportedly executed by G.Kumaraswamy, the irresistible conclusion is that the plaintiff has made out the prima-facie case of its right to seek possession.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 37 In such event, the defendant had no right to put up structures pending the suit. That was prejudicial to the plaintiff's interest and to the main relief sought by it. Therefore, the plaintiff had made out prima-facie case of injury to its right and the balance of convenience was also in favour of the plaintiff.
75. The trial Court without considering all these material aspects, even the questions of law proceeded to hold that the legal points were to be decided at the final stage. Such approach of the trial Court is apparently contrary to the letter and spirit of Order XXXIX Rules 1 and 2 CPC, arbitrary and perverse. Therefore, the impugned order of the trial Court requires to be reversed and the plaintiff is entitled to temporary injunction as prayed for.
Regarding I.A.No.2/2015 filed in the writ petition.
76. Writ Petitioner filed I.A.No.2/2015 claiming that the respondent violating the order of this court dated 19.08.2015 to maintain status quo proceeded with the construction, therefore, shall be punished under Order XXXIX Rule 2A CPC. In the statement of M.F.A.No.7414/2015 C/w W.P.No.22495/2015 38 objections, the respondent-defendant contends that he had completed the construction before 18.08.2015 itself, therefore, there is no violation of any order of this Court.
77. The order dated 19.08.2015 passed at 11.30 a.m. in the writ petition reads as follows:
"Learned Counsel for the petitioner has filed a memo with a photograph of the property in dispute where the construction is in progress and submits that the respondent is hurriedly proceeding with the construction of a diesel tank at the suit schedule property.
Learned Counsel for the respdt. submits that he is ready to argue the case at 2.30 PM.
However the respondent is directed to maintain status-quo as of now till disposal of this writ petition.
Call at 2.30 pm"
(emphasis supplied)
78. Further the order dated 19.08.2015 passed at 2.30 p.m. reads as follows:
"ORDERS ON I.A.NO.1/2015
Heard the learned Counsels appearing for both parties on I.A.No.1/2015.
It is ordered on I.A.No.1/2015 that the petitioner/plaintiff is at liberty to have redressal of M.F.A.No.7414/2015 C/w W.P.No.22495/2015 39 his grievance as mentioned in his I.A.No.1/2015 before the Trial Court. If such application is moved by the petitioner before the Trial Court, same shall be considered by the Trial Court by affording opportunity to the respondent/defendant and after hearing both the parties.
Sri.Ashok B.Patil, learned Counsel appearing for the petitioner submits that, he will file an application on 20.8.2015 to advance the case to 21.8.2015.
Sri.Y.V.Parthasarathy, learned Counsel for the respondent has taken notice of the said submission and his reply submission is, an opportunity may be provided to him to contest the proposed application by filing objection statement.
Accordingly, I.A.No.1/2015 stands disposed of. Any order to be passed by the Trial Court on considering the application and the objection statement of the respondent will be subject to the result of this Writ Petition.
Until the respondent files his objection statement to the application, the status quo shall be maintained on the petition schedule property.
The Trial Court shall consider the application as expeditiously as possible."
(emphasis supplied) M.F.A.No.7414/2015 C/w W.P.No.22495/2015 40
79. The respondent admits that he has put up construction on the suit site. His only contention is that he had completed construction by the evening of 18.08.2015. It is material to note that on 19.08.2015, the respondent did not submit before this Court that by that time he had already completed the construction. If really the construction was completed, in the ordinary and natural course, the respondent/defendant would have reported the same to this Court. He would not have invited the order of status quo and direction to go before the trial Court. Such course of action would have been futile exercise.
80. In this context, this Court has to see the evidence adduced by the parties on this application. Ex.P5 was the respondent's/defendant's statement of objections to petitioner/plaintiff's I.A.No.1/2015 filed before this court in the writ petition. Para-K of Ex.P5 reads as follows:
(k) Without prejudice to the above contentions regarding maintainability of the Writ Petition and the I.A. this Respondent undertakes to remove the M.F.A.No.7414/2015 C/w W.P.No.22495/2015 41 work which he has undertaken to do, in the event of the Hon'ble court finally allowing the suit in question. In view of this undertaking also, question of passing any order on the present I.A. does not arise."
(Emphasis supplied)
81. If work was completed by that time, the respondent could have specifically stated in Ex.P5 that construction is already completed. Contrary to that, he states that he undertakes to remove the work which he has 'undertaken to do'. That implies that work was in half way and not completed. But contrary to that in Ex.P9, the statement of objections filed before the trial Court on 25.08.2015, he claims that the application has become infructuous and the work was completed by the evening of 18.08.2015.
82. DW.1 the respondent in his cross-
examination admits that he reads the documents before he puts his signature, he cannot say when digging shown in Ex.D3 to Ex.D5 were undertaken. Ex.D3 to Ex.D5 the photographs his own documents show that the pit was dug in the suit schedule properties for the M.F.A.No.7414/2015 C/w W.P.No.22495/2015 42 purpose of embedding fuel tanks when those photographs were taken. He says that the management has taken permission of the Bruhat Bengaluru Mahanagara Palike to dig pits. The purpose of construction undertaken was to install diesel tank underground. DW.1 says that he has not taken permission from the Fire Force Department, Karnataka Pollution Control Board and the Bruhat Bengaluru Mahanagara Palike to carry out the work.
83. The defendant/respondent neither examined the persons who were employed to execute the said work nor produced any document relating to the execution of the said work to show that said work was completed by the evening of 18.08.2015. These circumstances lead to the conclusion that when this court passed order on 19.08.2015, the construction was not completed and that was completed after the order dated 19.08.2015 in disobedience of the interim order.
84. It is not the case of the respondent that he was ignorant of the status quo order passed by this M.F.A.No.7414/2015 C/w W.P.No.22495/2015 43 court. Thus it is clear that the work was executed in willful disobedience of order of this court. Such conduct of the respondent also amounts to contempt of court. Having regard to the conduct of the respondent, he needs to be stringently punished in accordance with Order XXXIX Rule 2A CPC.
Reg: I.A.No.1/2019 in MFA No.7414/2015:
85. The appellant contends that in violation of the order of this court dated 15.10.2015, which was extended from time to time and finally until further orders, the respondent proceeded with the construction and put up structures, therefore, he shall be punished under Order XXXIX Rule 2A CPC. The respondent opposes the application contending that there was no such violation.
86. The matter requires an enquiry. The evidence of the parties has to be recorded on the above application. But for that purpose, the disposal of the above appeal need not be deferred. Even after the disposal of the appeal, I.A.No.1/2019 can be dealt with M.F.A.No.7414/2015 C/w W.P.No.22495/2015 44 by this court. Therefore, the matter requires to be referred to the trial court for recording the evidence on I.A.No.1/2019 and re-submission of the records thereafter.
For the aforesaid reasons, W.P.No.22495/2015 and M.F.A.No.7414/2015 and I.A.No.2/2015 in W.P.No.22495/2015 are hereby allowed with costs of Rs.1,00,000/-.
The order Annexure-L dated 22.04.2015 passed by the 42nd Additional City Civil and Sessions Judge, Bengaluru City (CCH-43), is hereby quashed.
I.A.No.2 filed by the defendant in the said suit is hereby dismissed with costs.
The respondent in W.P.No.22495/2015 is hereby held guilty of willful disobedience of order of this court dated 19.8.2015 passed in the said writ petition. Acting under Order XXXIX Rule 2A CPC, it is hereby ordered that the moveable properties of the respondent shall be M.F.A.No.7414/2015 C/w W.P.No.22495/2015 45 attached for a period of one year and he shall be detained in civil prison for a term of three months.
The impugned order dated 7.9.2015 on I.A.No.4 in O.S.No.2840/2015 passed by 42nd Additional City Civil and Sessions Judge, Bengaluru City (CCH-43), is hereby set aside. I.A.No.2 filed by the plaintiff in the said case is hereby allowed with costs. The defendant or anybody claiming through him are hereby restrained from putting up any construction on suit schedule 'A' property as prayed for.
I.A.No.1/2019 in MFA No.7414/2015 is hereby remitted to the trial court for recording the evidence on the same. The trial court shall give opportunity to both the parties to produce the documents and record their evidence and re-submit the records to this court within three months from the date of the receipt of the records. I.A.No.2/2019 shall be taken up for consideration after the trial court re-submitting the records.
M.F.A.No.7414/2015 C/w W.P.No.22495/2015 46 The Registry shall issue a free copy of this order to the respondent/defendant. Further, petitioner/ plaintiff shall take necessary steps for civil detention of respondent and attachment of his movable properties. Soon after taking such steps, Registry shall issue Warrants of detention and attachment of properties of the respondent.
Any other pending I.As. and the memo stood disposed of.
Sd/-
JUDGE KSR/KNM/-