Karnataka High Court
M/S Aero Club vs Smt. Shobha Channabasavaiah on 10 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.49433-49434/2017(GM-CPC)
BETWEEN:
M/S AERO CLUB,
A PARTNERSHIP FIRM,
HAVING ITS REGISTERED OFFICE AT:
NO.867, KAROL BAGH,
NEW DELHI-110005.
REPRESNETED BY ITS AUTHORIZED SIGNATORY,
SRI.SUDHAKAR. ... PETITIONER
(BY SRI VENKATESHA T. S., ADVOCATE)
AND:
SMT. SHOBHA CHANNABASAVAIAH,
W/O.CHANNABASAVAIAH,
AGED ABOUT 45 YEARS,
R/AT. NO.533, 2ND "A" CROSS,
3RD BLOCK, 3RD STAGE,
BASAVESHWARANAGAR,
BANGALORE-560079. ... RESPONDENT
(BY SRI NAGHABUSHANA C.M., ADVOCATE FOR
SRI S. RAJENDRA, ADVOCATE FOR C/R)
...
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDERS DATED 19.8.2017 PASSED ON I.A.X VIDE
ANNEXURE-B AND 25.10.2017 PASSED ON I.A. NO.IX VIDE
ANNEXURE-A FILED UNDER ORDER VI RULE 17 OF CPC IN
O.S.NO. 7258/2010 PENDING ON THE FILE OF XXXV
2
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-36).
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Writ Petition No.49433/2017 is filed by the defendant against the order dated 25th October, 2017 on I.A.IX made in O.S.No.7258/2010 allowing the application filed by the plaintiff under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure , 1908 with costs of Rs.3,000/-.
2. The respondent, who is the plaintiff before the trial Court filed a suit for ejectment directing the defendant, its agent and servants or any person/s claiming under or through the defendant to vacate and hand over the vacant possession of the schedule property to her; to pay her a sum of Rs.83,36,796/- towards arrears of rent/damages, Service Taxes and 3 Electricity Charges together with interest thereon at the Bank's lending rate of 12% per annum from the date of suit till the date of payment; and also future damages of Rs.8,42,700/- per month from the date of the suit till delivery of possession of the suit schedule property to her together with Service Tax thereon at 10.3% or such rate as may be specified in that regard by the concerned authorities from time to time and also to pay a sum of Rs.8,400/- per month towards proportionate minimum electricity charges from the date of the suit till the defendant vacates and hands over the vacant possession of the suit schedule property to her.
3. It is the case of the plaintiff that the defendant is the tenant under her in respect of South Eastern portion in the Ground floor and Mezzanine floor measuring total super built up area of 3,350 sq. ft. in the building bearing Municipal No.654 situated at 100 ft. road, Binnamangala I Stage, Indiranagar, Bangalore- 4 560 038 which is morefully described in the schedule to the plaint. Accordingly, the plaintiff executed a registered lease deed dated 28.1.2008 in favour of the defendant for a non-residential purpose of running its business of selling clothes, hosieries, sports garments, shoes, leather and products of woodland brand in the name and style of 'WOODLANDS'. consequently, the defendant occupied the schedule premises on 1.2.2008 on a monthly rent which commenced from the first day of each calendar month and expired on the last day of same month and the rent for the previous month was payable on or before the 5th of every succeeding month.
4. It is further contended that the defendant has not paid arrears of rent, damages, service taxes, electrical charges, etc., and thereby it is due and liable to pay a sum of Rs.83,36,796/- as detailed at para-14 in the plaint and therefore, she has filed the suit for the relief sought for.
5
5. The defendant filed its written statement admitting the relationship of landlady and tenant disputing the damages. It was further contended that at the time of settlement of the terms of the lease and execution of the registered deed, it was specifically agreed that no security deposit would be paid and accordingly, no clause was incorporated in the registered deed and a sum of Rs.1,12,50,000/- was paid to the plaintiff to meet her financial commitments incurred in the construction as explained by the plaintiff. It was also contended that the plaintiff, who borrowed the sum is liable to refund the same along with interest as per the banking lending norms with interest calculated at the rate of 12%. Therefore, the defendant sought to dismiss the suit with a direction to the plaintiff to refund the amounts and sums due liable from the plaintiff to the defendant, in the interest of justice. Therefore, he sought for dismissal of the suit. 6
6. When the matter was posted for the plaintiff's evidence, at that stage, plaintiff filed an application under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure seeking to amend the plaint by replacing amount mentioned in para-14 at 11th line from 'Rs.83,36,796/-' to Rs.1,13,17,180/-; to add 'along with interest at the rate of 18% per annum' in para-14, 13th line after 'arrears of rent'; to add 'along with interest at the rate of 18% per annum' in para-14, 13th line after 'Service Taxes', damages amount to Rs.26,38,521/- etc., contending that while preparing the plaint and filing the suit by inadvertence and miscalculation, she missed out calculation of interest payable on the delayed payment of rents and damages due by the defendant. Likewise the interest payable on the delayed payment of the service tax was also missed out. These amounts being substantial in nature, required to be included in the pleading column as well as in the prayer column and 7 that the proposed amendment would neither change the nature of the suit nor introduce a new case. It is to be noted that she had issued notice on 10.6.2010 to the defendant demanding interest on the rents and other dues which notice is already produced before the Court at the first instance itself. Therefore, she sought to allow the application.
7. The said application was resisted by the defendant by filing objections denying the entire averments made and contended that the application is not maintainable since it is barred by limitation. It was further contended that at the time of filing of the suit, the suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and in the event of not claiming, it shall be presumed as the said claim has been relinquished. Even otherwise the Lease Deed dated 28.1.2008 does not whisper about the payment of interest. The claim 8 with regard to interest on the delayed payments of rents and damages due, payable by the defendant was denied contending that the application be dismissed and that it would not cause any harm or hardship to the plaintiff and on contrary, if the application was allowed, it would change the nature of the suit itself and therefore, sought for dismissal of the application.
8. The trial Court considering the application and objections, by the impugned order dated 25th October, 2017 allowed the application for amendment as prayed for. Hence the present writ petition by the defendant.
9. I have heard the learned Counsel for the parties to the lis.
10. Sri T.S. Venkatesha, learned Counsel for the petitioner vehemently contended that the impugned order passed by the trial Court allowing the application for amendment is erroneous and contrary to the 9 material on record. He would further contend that the amendment sought for is after a lapse of more than seven years and hence, it is barred by limitation under the provisions of Article 25 of the Limitation Act. The claim with regard to interest, if any, has to be claimed within three years from the date when the interest becomes due in view of the provisions of Article 25 of the Limitation Act. Therefore, the very application filed by the plaintiff is barred by limitation and is liable to be rejected. He would further contend that when the plaintiff has not claimed interest and damages at the time of filing of the suit, subsequent claim by way of filing an application for amendment of the plaint is hit by the provisions of Order II Rule 2 of the Code of Civil Procedure. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
10
11. Per Contra, Sri C.M. Naghabushana for Sri S. Rajendra, learned Counsel for the respondent-plaintiff sought to justify the impugned order and contended that the suit filed is for ejectment and for recovery of arrears of rent, damages and other consequential relief on 18.10.2010. The application for amendment of the plaint was filed on 19.8.2017 stating that by inadvertence and miscalculation, she has miscalculated the interest payable on the delayed payment of rents and damages due payable by the defendant which is on the same set of facts. This fact of missing out the interest payable on delayed payment would not amount to barred by limitation. The plaintiff is not claiming any new amount and it is in continuation of the original proceedings. The interest is on the basis of the damages claimed and the same was stated in the notice issued which is not in dispute. This is not a new case which is now sought to be made out. Therefore the amendment would not in any way change the nature of 11 the suit or will not prejudice the case of the defendant to putforth its case by filing additional written statement. The trial Court considering the entire material on record, has rightly allowed the application for amendment and this Court cannot interfere with the same in exercise of powers under Article 227 of the Constitution of India. Accordingly, he sought to dismiss the writ petition.
12. Having heard the learned Counsel for the parties, it is not in dispute that the suit was filed for ejecting and for recovery of arrears of rent/damages of Rs.83,36,796 contending that the defendant, who was tenant has not paid the rents regularly and though the suit was filed on 18.10.2010, the defendant has vacated and handed over the same to the landlady on 2.5.2010. Subsequently, the defendant has handed over the keys on 18.10.2011 and the arrears of rent has to be deducted from advance amount.
12
13. There is no dispute with regard to relationship of landlord and tenant between the plaintiff and respondent. The only dispute is in respect of arrears of rent/damages to be paid by the defendant as on the date of filing of the suit i.e., Rs.86,36,796/-. According to the defendant, it has paid up to date rent and nothing has to be paid. The same has to be adjudicated between the parties before the trial Court after adducing oral evidence and producing documentary evidence. The amendment sought by the plaintiff in I.A.IX under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure was only to replace the amount of Rs.83,36,796/- to Rs.1,13,17,180/- and instead of interest at 12%, she is claiming 18%. The amendment sought was mainly on the ground that at the time of preparing and filing the suit, by inadvertence and miscalculation, the plaintiff miscalculated the interest payable on the delayed payment of rents and damages 13 due payable by the defendant which is disputed by the defendant contending that the very application is barred by limitation.
14. The contention of the learned Counsel for the plaintiff cannot be accepted for the simple reason that the relationship of landlady and tenant is not in dispute. According to the plaintiff, the defendant has to pay arrears of rent of Rs.83,36,796/- on the date of filing of the suit since it has been wrongly calculated and therefore, she has stated that the due amount of rents and damages payable by the defendant is Rs.1,13,17,180/-. The same is disputed by the defendant stating that it is barred by limitation. Whether the claim made by the plaintiff by filing an application - I.A.IX under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure is barred by limitation or not has to be decided by the trial Court after adjudication between of parties. Mere allowing the 14 application for amendment does not amount to allowing the claim. Ultimately, the defendant is at liberty to file additional written statement, if any dispute arises on the enhanced claim made by the plaintiff by virtue of amendment including law of limitation raised, which has to be considered by the trial Court after considering the oral and documentary evidence by both the parties.
15. Mere amendment on the same set of facts and in view of admitting tenancy will not amount to deciding the claim of the plaintiff. Ultimately, the plaintiff has to establish her claim based on the oral and documentary evidence to be adduced and produced by both the parties. The trial Court considering the application and objections, by the impugned order has recorded a finding that further proposed amendment, if not allowed, it is the plaintiff, who will be put to great hardship and the question of granting or rejecting the interest on the due arrears of rent is discretion to the 15 Court. It is relevant to note that the burden is on the plaintiff to prove her contentions. The proposed amendment does not change the nature of the suit and there were no reasons to reject the application. However, the application was filed at the belated stage without considering the fact that the suit is pending since the year 2010. Therefore, the trial Court exercising the powers, allowed the application imposing costs of Rs.3,000/- for the delay in filing the application.
16. It is well settled law that the application for amendment can be allowed at any stage unless it prejudices the rights of either of the parties which cannot be compensated adequately in terms of money. The basic principles which emerge while taking into consideration while allowing or rejecting the application for proposed amendment sought in the present suit is whether the amendment sought is imperative for proper 16 and effective adjudication of the case? Whether application for amendment is bona fide or malafide? Refusing the amendment would in fact lead to injustice or lead to multiple litigation; whether the proposed amendment constitutionally or fundamentally changes the nature and character of the suit. Admittedly in the present case mere allowing the application will amount to allowing the claim of the suit and ultimately, it is for the trial Court to decide whether the plaintiff is entitled to the interest on the delayed payment of rents and damages by the defendant at the time of filing of suit after adjudication of the matter between the parties. The trial Court considering the entire material on record and exercising its power under Order VI Rule 17 of the Code of Civil Procedure has allowed the application and the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court under Article 227 of the Constitution of India.
17
17. In so far as the contention raised by the learned Counsel for the petitioner that Order II Rule 2 of the Code of Civil Procedure applies only in respect of suits and not for amendment of application and with regard to Article 25 of the Limitation Act, it is always open for the defendant to file additional written statement including limitation and hence, it is for the trial Court to frame appropriate issue and proceed in accordance with law.
18. As rightly submitted by the learned Counsel for the defendant that the defendant has already filed counter claim and defendant will pay Court fee on the date of hearing before the trial Court. The said submission is placed on record.
19. With the above observations, writ petition No.49433/2017 is dismissed.
18ORDER IN W.P.No.49434/2017
W.P.No. 49434/2017 is filed against the order dated 19.8.2017 made in O.S.No.7258/2010 on I.A.X under Order VII Rule 14 of the Code of Civil Procedure for production of documents.
2. When the matter was posted for evidence, an application for amendment came to be filed by the plaintiff and the same was opposed. Subsequently, the trial Court considering the entire material on record, by the impugned order dated 25th October, 2017 allowed I.A.IX filed under Order VI Rule 17 of the Code of Civil Procedure which is the subject matter in the writ petition in W.P.No. 49433/2017 and the same was disposed of by a separate order passed by this Court.
3. Simultaneously the plaintiff also filed an I.A.X under Order VII Rule 14 of the Code of Civil Procedure for production of documents. When the matter was posted on 19.8.2017, learned Counsel for the 19 defendant-petitioner sought time. In view of Order XVII Rule 2 of the Code of Civil Procedure, the trial Court took that there is no objection to I.As.X and IX. Accordingly, the application- IA.X was allowed. Therefore, the present writ petition is filed.
4. I have heard the learned Counsel for the parties to the lis.
5. Sri T.S. Venkatesh, learned Counsel for the petitioner contended that the impugned order passed by the trial Court allowing the application - I.A.X filed under Order VII Rule 14 of the Code of Civil Procedure is erroneous and contrary to the material on record. He would further contend that the very impugned order passed by the trial Court is contrary to the provisions of Order XVII Rule 2 of the Code of Civil Procedure wherein inspite of the presence of the Counsel for the defendant and seeking time, the trial Court has not assigned any reasons and has taken that no objection was filed. 20 Consequently, the trial Court has allowed the application. Therefore the impugned order is not a speaking order. Therefore, he sought to quash the impugned order passed by the trial Court.
6. Sri Naghabushana. C.M. for Sri S. Rajendra, learned Counsel for the caveator/respondent/plaintiff sought to justify the impugned order and contended that inspite of granting time to the defendant to file objections, the defendant has not filed objections to the applications for amendment and for production of documents. Therefore, the trial Court had no other option, except to allow the application. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned Counsel for the parties, it is not in dispute that suit is filed for ejectment and for recovery of rents and damages. During the pendency of the proceedings, the plaintiff filed I.A.X under Order VII Rule 14 of the Code of Civil 21 Procedure for production of certain documents. Though sufficient time was granted to the defendant to file objections, except filing an application under Order II Rule 2 of the Code of Civil Procedure, the defendant has not filed any objections. Therefore, the trial Court allowed the application.
8. By reading the provisions of Order XVII Rule 2 of the Code of Civil Procedure, it clearly indicates that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
9. Admittedly, in the present case, when the matter was posted on 19.8.2017, Counsel for the defendant was present and sought time for filing objections. In all fairness, the trial Court should have granted time to the defendant to file objections, but the same has not been done. Only for that limited purpose 22 of giving an opportunity to the defendant to file objections to I.A.X, the matter has to be remitted to the trial Court for fresh consideration.
10. For the reasons stated above, writ petition No.49434/2017 is allowed. The impugned order dated 19.8.2017 made in O.S.No 7258/2010 on I.A.X filed under Order VII Rule 14 r/w Section 151 of the Code of Civil Procedure is quashed and the said application - I.A.X is allowed. The defendant is permitted to file objections on the next date of hearing before the trial Court, failing which the trial Court shall proceed further in accordance with law.
11. Taking into consideration, that the matter is of the year 2010 and we are in the year 2017, the trial Court is directed to expedite the suit itself in accordance with law.
Sd/-
Judge Nsu/-