Karnataka High Court
The Bagalkot Division Central Co Op vs Smt Bhagirathibai on 23 August, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 23rd DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
R.S.A. No.5353/2008
Between:
1. The Bagalkot Division Central
Co-Operative Wholesale stores ltd.,
M.G. Road, Bagalkot,
By its Secretary.
2. Sri. Chandrashekharappa
Siddappa Jigajinni, Age: 58 years,
Occ: President of appellant No.1
Resident of Bagalkot.
...APPELLANTS
(By Sri.H.R.Bentur, Adv.,)
And:
1. Smt. Bhagirathibai Mahantappa
Nidagundi, Age: Major,
Occ: Business.
2. Sri. Gurupadappa Mahantappa
Nidagundi, Age: 51 years,
Occ: Business and Agriculture,
Since deceased by his LR's.
2A. Smt. Shanta W/o. Gurupadappa
Nidagundi, Age: 55 years,
2
Occ: Household work.
2B. Smt. Varsha W/o. V. Hebballi,
Age: 34 years,
Occ: Household work.
2C. Smt. Veena W/o. Prakash
Tippannavar, Age: 31 years,
Occ: Household work.
2D. Smt. Vijayalaxmi W/o. Rajiva
Jamkhandi, Age: 28 years,
Occ: Household work.
2E. Sri. Vijaya S/o. Gurupadappa
Nidagundi, Age: 26 years,
Occ: Business,
Resident of Bagalkot.
3. Sri. Suresh Mahantappa
Nidagundi, Age: 48 years,
Occ: Business,
Resident of Bagalkot.
...RESPONDENTS
(By Sri.Jagadish Patil, Adv., for C/R1 to R3)
This appeal is filed under Section 100 of CPC against
the judgment and decree dated 18.11.2008 passed in R.A.
No.42/2006 on the file of the President Officer, Fast Track
Court No.II, Bagalkot, allowing the appeal and setting aside
the judgment and decree dated 18.9.2006 passed in O.S.
No.199/2001 on the file of the Prl. Civil Judge (Sr.Dn.),
Bagalkot etc.,
This appeal coming on for admission this day, the
Court delivered the following:
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JUDGMENT
This second appeal is filed by the defendants in O.S. No.199/2001, assailing the judgment and decree passed in R.A. No.42/2005 dated 18.11.2008, passed by the Fast Track Court No.II, Bagalkot allowing the appeal by setting aside the judgment and decree in O.S.No.199/2001 dated 18.9.2006, passed by the Prl. Civil Judge (Sr.Dn.), Bagalkot.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
3. The respondents herein filed the suit seeking vacant possession of the schedule premises and sought an injunction restraining the defendants from subletting the premises, for damages and for mesne profits.
4. It is the case of the plaintiffs that they are the owners of the suit schedule premises consisting of building and godown bearing CTS Nos.289/1 and 289/2 of Ward No.8, Bagalkot Town, Dist: Bagalkot. Plaintiff No.1 is authorised to collect the rent from Defendant No.1. The lease period was initially from the year 1972 for a period of ten 4 years. After the expiry of the lease period, defendant No.1 continued to be the tenant on a monthly rent of Rs.3,000/-. That defendant No.1 committed default in payment of rent from October 2000 leading to arrears of rent. Therefore, a legal notice was got issued by the plaintiffs on 17.4.2011 to which the defendant issued an untenable reply. That defendant No.1 has continued to be a defaulter and therefore the suit for seeking the possession and other reliefs was filed.
5. In response to the said suit, defendant No.2 filed a written statement which has been adopted by defendant No.1. The defendants have denied the averments in the plaint but have admitted that the plaintiffs are the owners of suit premises. They have also admitted that the plaintiff No.1 is authorised to collect the rent from defendant No.1. They denied that they were in arrears of rent from October 2000 as alleged. They admitted the issuance of the legal notice to which they stated that a suitable reply was given. They stated that they had not caused any damage to the suit premises and they had not made any material alternations. 5 That the plaintiffs demanded a monthly rent of Rs.6,000/- from the month of June 2001 which they declined to pay. They denied that the suit premises was required for the use of the family members of plaintiff Nos.2 and 3. They contended that the plaintiffs had other properties which could be utilised. It was also stated one of the daughters of Mahantappa Nidagundi the husband of plaintiff No.1 had filed O.S. No.102/2002, on the file of the Additional Civil Judge (Sr.Dn.) Bagalkot praying for partition and separate possession of her share in the properties owned by her father including the suit schedule premises. Therefore, until the rights of the parties were decided in the said suit the present suit seeking possession could not be continued.
6. That as per the lease agreement dated 28.4.1972, the tenancy was for a period of ten years but was continued even after the lapse of the agreement. That they had paid the entire arrears of rent till March 2002 and when they were about to pay the rent for the month of April 2002, they received a legal notice issued on behalf of one Vijayakumar Ganiger who is plaintiff in O.S. No.102/2002 asking the 6 defendants not to pay any rent to plaintiffs with regard to the suit premises. Therefore, they did not pay the rents to the plaintiffs. That defendant No.1 is defendant No.8 in O.S. No.102/2002. That the plaintiffs do not require for the suit premises to the personal occupation. On the contrary, defendant No.1 as a Society which is running a 'Janata Bazar' and rendering services to the public at large. If they are ordered to be vacated, then there would be much hardship and inconvenience to the public. That suitable accommodation like the suit premises is not available in Bagalkot as the city itself is submerged. That they have not caused any damage nor they have changed the nature of the suit premises. They are not liable to any mesne profits or damages claimed by the plaintiffs. That they have not violated any terms of lease agreement. Therefore, they have sought for dismissal of the suit.
7. On the basis of the aforesaid pleadings, the trial Court framed the following issues for its consideration: 7
ISSUES
1. Whether the plaintiffs prove that they are entitled for possession of the suit schedule properties from the defendants?
2. Whether the plaintiffs are entitled for the mesne profits at the rate of Rs.9,000/- and Rs.5,000/- as damages from the defendants on the suit property?
3. Whether the defendants prove that the plaintiffs are not entitled to proceed with the suit unless the rights of the parties are decided in O.S. No.102/2002 pending on the file of the I Addl. Civil Judge (Sr.Dn.), Bagalkot whichis filed by one of the daugher of the deceased Mahantappa Nidagundi?
4. Whether suit is bad for non-joinder of necessary parties?
5. To what order or decree?
8. In support of their case, the plaintiffs examined PW.1 who is plaintiff No.3 and produced seven documents which were marked as Exs.P1 to P7 while the defendants 8 examined DW.1 and produced eleven documents which were marked as Exs.D1 to D11. On the basis of the said evidence, the trial court answered issue Nos.1 and 2 in the negative and issue Nos.3 and 4 in the affirmative and dismissed the suit with costs. Being aggrieved by the dismissal of the suit the plaintiffs filed R.A.No.42/2005 before the first appellate Court. After hearing both sides it formulated the following points for its consideration.
1. Whether the suit of the plaintiffs is not maintainable for non-joinder of 4 daughters of late Mahantappa Nidagundi?
2. Whether the impugned judgment and decree under challenge are erroneous to interfer by this court?
3. What order?
It answered point No.1 in the negative and point No.2 in the affirmative and allowed the appeal. Being aggrieved by the said judgment and decree the defendants have preferred this second appeal.
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9. I have heard the learned counsel for the appellants and learned counsel for the respondents.
10. It is contended on behalf of the appellants that the plaint filed by plaintiffs was signed by only plaintiff No.3. If plaintiff No.1 was authorised to collect the rent then in the absence of the plaint being signed by plaintiff No.1 and there being no verification of the plaint by plaintiff No.1, the plaint itself was defective. The suit was rightly dismissed by the trial Court. It was contended that the defendants had paid all arrears of rent by making the payment to the plaintiff No.1 and also depositing it in O.S. No.102/2002. Therefore, they were not defaulters. It was next contended that the plaintiffs do not require the suit premises for their occupation. The trial Court was therefore right in dismissing the suit but the first appellate court has erroneously allowed the appeal. She therefore contended that substantial questions of law arise in this appeal calling for the intervention of this Court.
11. Per contra, learned counsel for the respondents while supporting the judgment and decree of the first 10 appellate Court contended that the trial Court was not right in dismissing the suit on the premise that the plaintiff Nos.1 and 2 had not signed the plaint and therefore, the plaint was defective and hence, the suit itself was not maintainable. He contended that even if plaintiff Nos.1 and 2 had not signed the plaint, the same was not an incurable defect but an irregularity which could have been cured if the trial Court had brought it to the notice of the plaintiffs they would have ensured that plaintiff Nos.1 and 2 also signed the plaint but that could not result in the dismissal of the suit. He also contended that the defendants have admitted that they were in arrears of rents since they have stated that they were depositing the rents in O.S. No.102/2002 rather than making the payments to plaintiff No1. Since it was plaintiff No.1 only who was authorised to collect the rents therefore, the suit was rightly decreed by the first appellate Court. It was also stated that in terms of Exs.P7, plaintiff No.1 only was authorised to collect the rents and therefore she was entitled to file the suit that the other persons who have succeeded to the suit premises are her children and there 11 was no objection from any of her children with regard to the filing of the suit. He placed reliance on a decision of the Apex Court in AIR 1977 Supreme Court 1599 to contend that if one of the co-heirs is collecting the rents representing all the co-heirs then the suit could be filed by the said co-heir who is collecting the rent and for all practical purposes, the person collecting the rents would be the landlord of the premises. He therefore contended that no substantial question of law arises in this appeal and hence the appeal may be dismissed.
12. From the material on record, it is noted that the suit schedule premises is a non-residential premise. It was initially let out under a lease deed executed in the year 1972 by the husband of plaintiff No.1- for a period of ten years. On the expiry of the lease agreement, the defendants have been continued in the said premise and they are running a 'Janata Bazar'. Defendant No.1 is a co-operative wholesale entity and the suit premise is used for the sale of various goods and articles. There is also no dispute that the rent for the suit premises Rs.3,000/- per month. The initial point to 12 be considered is as to whether the trial Court was right and that the first appellate Court was not right with regard to the non-signing of the plaint by plaintiff Nos.1 and 2 in dismissing the suit and in allowing the appeal respectively.
13. I have perused the original plaint. It is noted that plaintiff No.3 only has signed the plaint. The verification no doubt states that it is verified on behalf of the plaintiff No.3 as well as on behalf of plaintiff Nos.1 and 2. The fact however, remains that plaintiff Nos.1 and 2 have not signed the plaint. Order 6 Rule 14 of C.P.C. reads as follows:
14. Pleading to be signed- Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause; unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
On a reading of the said Rule along with the proviso it becomes clear that in the absence of a party or for any other 13 good cause, the plaint can be signed by any person duly authorised to sign the same. Therefore, the proviso itself permits the signing of the plaint by a person who is duly authorised to do so and it need not be signed by the party himself or herself. However, in the instant case, two of plaintiffs i.e. plaintiff Nos.1 and 2 have not signed the plaint at all. The signature of plaintiff No.3 is not on behalf of any authorisation of plaintiff Nos.1 and 2. The verification however states that the plaint is verified on behalf of plaintiff Nos.1 and 2 also. In these circumstances, point to be considered whether the plaint itself was defective and therefore the suit was not maintainable. In an analogous situation were there was a defect in the signing of the memorandum of appeal, the Apex Court has said that the said defect or deficiency would not invalidate the memorandum of appeal and the said deficiency can be subsequently rectified by the party suo motu on the Court granting permission to rectify it or on the direction of the Court. In this context, the Apex Court has held that any defect in signing the memorandum of appeal or any defect in 14 the authority of person signing the memorandum of appeal, or omission to file vakalatnama executed by the appellant along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and signing of the memorandum of appeal or the presentation thereof before appellate Court was with knowledge and authority of appellant. Such omission or defect being one relatable to procedure, can subsequently be corrected. It is the duty of the office to verify whether the memorandum of appeal was signed by the appellant or his authorised agent or pleader holding appropriate Vakalatnama. If the office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely be reason of such defect, without giving an opportunity to the appellant to rectify it. In the context of order 6 Rule 14 of CPC, the Apex Court observed as follows:
16. An analogous provision is to be found in Order Rulr 14 CPC which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognised that if a plaint is not signed by the plaintiff or his duly authorised agent 15 due to any bonafide error, the defect can be permitted to be rectified either by the trial Court at any time before judgment, or even by the appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing.
17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismssal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defect substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
i. where the statute prescribing the procedure, also prescribes specifically the consequences of non-compliance;
ii. where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii. where the non-compliance or violation is proved to be deliberate or mischievous;
iv. where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.16
v. In case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.
14. The observations made by the Apex Court with regard to defect in the signing of the memorandum of appeal are squarely applicable to a defect in the signing of the plaint in the instant case. It is not a case where the defect would result in the dismissal of the suit for non-compliance of a procedural requirement or when a procedural defect having been notified the same not having been subsequently rectified or that the non compliance in the signing of the plaint is deliberate or mischievous or something which would go to the root of the matter such as an issue concerning the jurisdiction of a Court or the merits of the case. Therefore, the non-compliance of the procedural requirement in the instant case does not come within the scope of the well-recognised exception stated above. In that view of the matter while registering the suit the trial court ought to have brought it to the notice of the plaintiffs the non signing of the plaint by plaintiff Nos.1 and 2 and if there had been subsequently no 17 rectification then in that event, the suit could have been dismissed as having been defectively filed. Such an action has not been taken in the instant case, the same would not result in dismissal of the suit on the ground of a defective plaint. Definitely that could not have been the reason assigned after the evidence had been let in and the parties went to trial on contested issues. Therefore, there is no substance in the contention of the appellant that on account of their being defect in the plaint the suit was not maintainable.
15. As far as the issue with regard to arrears of rent is concerned, the defendants have admitted that there were arrears of rent and that the arrears were paid subsequently and that pursuant to the legal notice issued prior to the institution of O.S. No.102/2002, the defendants discontinued payment of rents to the plaintiffs from the month of April 2002 onwards but that they have been depositing the rents in O.S. No.102/2002. This fact makes it apparent that the defendants have been defaulters in the payment of rent and that they have defaulted in paying the rent to the plaintiff No.1. The deposit of rent in O.S. 18 No.102/2002 is not the same thing as making payment of the rents to plaintiff No.1 who is the person authorised to collect the rents. Therefore, default in making the payment of rents by defendants is established.
16. That apart, after expiry of the lease agreement, the tenancy has been continued on a month to month basis.
Rs.3,000/- is the monthly rent. The plaintiffs who are the landlords and particularly plaintiff No.1 who is authorised to collect the rent is empowered to seek possession of the suit premises for their own use or occupation by terminating the tenancy. The termination of the tenancy is Ex.P5 which is the legal notice. Though all the sons and daughters along with plaintiff No.1 who is the widow of Mahantappa Nidagundi have succeeded to the property in terms of Ex.P7, plaintiff No.1 only was authorised to collect the rents. She was therefore entitled and empowered to file the suit seeking possession of the suit premises. It was not mandatory for the other persons to also join the plaintiffs herein to file the suit seeking possession though they may be co heirs. Plaintiff No.1 for all practical purposes is the landlord and 19 therefore, was entitled to institute the proceedings seeking possession. The first appellate Court has assigned valid reasons to reverse the judgment and decree of the trial court. The same would not call for any interference in this appeal. No substantial question of law arises in this appeal. The appeal is dismissed. Parties to bear their own costs.
In view of the dismissal of the appeal, I.A. No.1/2012 for stay would not survive for consideration.
Sd/-
JUDGE BS