Vivek G Suvarna vs Dilshad Begum on 29 November, 2022

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Karnataka High Court

Vivek G Suvarna vs Dilshad Begum on 29 November, 2022

Bench: B. M. Shyam Prasad

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 29TH DAY OF NOVEMBER 2022
                            BEFORE
        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

          WRIT PETITION NO.8519/2022 (GM-CPC)
BETWEEN :

VIVEK G SUVARNA
AGED ABOUT 30 YEARS,
S/O GOVINDA T SUVARNA
R/AT SHRISHANISHWARAKRIPA
KOTHATHATTU PADUKERE-576221
KUNDAPURA TALUK
UDUPI DISTRICT.
                                ... PETITIONER
(BY SRI. CHANDRANATH ARIGA K, ADVOCATE)
AND :

DILSHAD BEGUM
AGED ABOUT 48 YEARS,
W/O MOHAMMED SADIQE
R/AT NIAAM HOUSE AGRAHARA ROAD
YENAGUDDE
KATAPADI-574105
UDUPI TALUK AND DISTRICT
REPRESENTED BY HER GPA HOLER
MOHAMMED NAYEEM
AGED ABOUT 51 YEARS
S/O LATE SHEIK AMEER SAHED
R/AT YENAGUDDE VILLAGE
KATAPADY UDUPI TALUK AND DISTRICT.
                                ... RESPONDENT
(BY SRI. MARI GOWDA, ADVOCATE)
                                 2



     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE    ORDER    DATED      14.01.2022  PASSED   IN
O.S.NO.37/2019 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC UDUPI ANNEXURE-F.

     THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

This petition is by the defendant in O.S.No.37/2019 on the file of the Principal Civil Judge and JMFC, Udupi (for short, 'the civil Court'). The petitioner has impugned the civil Court's order dated 14.01.2022, and the civil Court has rejected the petitioner's application (IA No.5) filed under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (CPC) to frame additional Issues.

The respondent's suit in O.S.No.37/2019 is for petitioner's ejectment from the subject property asserting jural relationship of landlord and tenancy. The petitioner has resisted the suit denying the respondent's title to the property. In the light of the 3 rival pleadings, the civil Court has framed multiple Issues including the Issue that requires the respondent to prove due termination of the lease agreement in favour of the petitioner. The petitioner thereafter has filed application under Order XIV Rule 5 read with Section 151 of CPC for framing as many as 6 Issues1:

The civil Court has reasoned why the application should not be allowed and has referred to Issue No.32 as also 1 The Issues proposed are

1. Whether the plaintiff proves that, she is the absolute owner of plaint schedule shop room.

2. Whether the defendant proves that the suit is hit by Order 2 Rule 3 of CPC.

3. Whether the defendant proves that, the suit is bad for non-compliance of mandatory provisions of T.P.Act.

4. Whether the suit is not maintainable for non-compliance of Order 7 Rule 3 of CPC.

5. Whether the defendant proves that, the agreement for lease deed is invalid as it is not stamped properly as per Karnataka Stamp Act.

6. Whether the defendant proves that, the suit is not properly valued and court fee paid by the plaintiff is insufficient?".

2 Issue No. 3

Whether the defendant proves that, the suit is bad for non-compliance of mandatory provisions of T.P.Act. 4 the petitioner's defense that the lease deed relied upon by the respondent is not valid.

Sri Chandranath Ariga K., the learned counsel for the petitioner relying upon the petitioner's defense, submits that the respondent is not the absolute owner of the subject property and that the civil Court is not justified in its conclusion that the petitioner has admitted the respondent's ownership of the property and therefore an Issue3 in this regard will not be necessary.

The petitioner's grievance that the additional Issues must be framed, including the Issue on the respondent's title to the subject property, is examined in the light of the settled propositions that the respondent, as the plaintiff, would be dominus litus and if the 3 Whether the plaintiff proves that, she is the absolute owner of plaint schedule shop room.

respondent is to succeed in the suit for ejectment, he will have to succeed in establishing the jural relationship of landlord and tenant. The civil Court, while answering Issue No.3 and whether the there is due determination of tenancy, will have to necessarily examine the question of jural relationship of the landlord and the tenant. The Issue on ownership of the subject property would be outside the scope of the suit and cannot be considered. Though the petition must be disposed of as there is no reason for rejection of the application, this Court must observe that the petitioner cannot be prejudiced by the civil Court's observation that the petitioner does not deny the respondent's title to the subject property.

The petition stands disposed of accordingly.

Sd/-

JUDGE SA/-

Ct:sr

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