Karnataka High Court
Sri N Srinivasan vs Sri C K Vijayaraghava on 21 February, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:7306
RFA No. 1784 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 1784 OF 2016 (MON)
BETWEEN:
SRI N SRINIVASAN
S/O NEELA KRISHNAN
M/S ROPPA ENGINEERING
WORKS INDUSTRIES
1257/A, AVINASH ROAD
PEELAMEDU, COIMBATORE - 641 004.
...APPELLANT
(BY SRI. VARUN NAIR VIVEK, FOR
SMT. UDITA RAMESH.,ADVOCATE)
AND:
1. SR C K VIJAYARAGHAVA REDDY
S/O C M KRISHNA REDDY
NO. 58, INDUSTRIAL SUBRUB
Digitally signed
YESHWANTHPUR
by HEMALATHA BENGALURU - 560 022.
A
Location: High
Court of 2. SRI SHARAD M SHAH
Karnataka PARTNER OF M/S ESSEN METAL
PRESSING WORKS
AND MANAGING PARTNER OF
M/S MOHANLAL & SONS
NO. 34, PATHAKWADI
TAWAVALA BUILDING
MUMBAI - 400 002.
3. M/S PRECISION METAL
PRESSING WORKS
REP. BY ITS PARTNERS
APPELLAHNTS 1 & 2 ARE
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NC: 2024:KHC:7306
RFA No. 1784 of 2016
PRESENTLY FUNCTIONING AT
C/O M/S MOHANLAL & SONS
NO. 34, PATHKWADI
TAWAVALA BUILDING
MUMBAI - 400 002.
4. M/S ESSEN METAL PRESSING WORKS
REP BY ITS PARTNERS
APPELLANTS 1 & 2 ARE PRESENTLY
C/O M/S MOHANLAL & SONS
NO. 34, PATHKWADI
TAWAVALA BUILDING
MUMBAI - 400 002.
...RESPONDENTS
(BY SRI. S KRISHNASWAMY.,ADVOCATE FOR R1:
R2,R3 & R4 ARE SERVED & UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
27.02.2015 PASSED IN OS NO.197/2008 ON THE FILE OF THE
XXX ADDL. CITY CIVIL JUDGE, BENGALURU CITY. DECREEING
THE SUIT FOR RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 96 r/w. Order 41 of CPC is filed by the appellant-defendant No.4 challenging the judgment and decree dated 27.02.2015, passed by the XXX Additional City Civil Judge, Bengaluru, in O.S.No.197/2008, whereby the suit has been decreed for a sum of Rs.5,08,302/- with interest at 12% p.a. directing -3- NC: 2024:KHC:7306 RFA No. 1784 of 2016 the defendant Nos.3 and 4 to jointly and severally pay the decreetal amount within a month from the date of the judgment.
2. For the sake of convenience, the parties are referred to as per their rankings before the trial court.
3. The brief facts of the case are that the plaintiff had let out schedule 'A' property in favour of defendant No.1 and also let out schedule 'B' property in favour of defendant No.2. Since the defendant Nos.1 and 2 committed default in payment of rentals of the suit schedule premises, the plaintiff terminated the tenancy. But the defendant Nos.1 and 2 have not vacated the schedule premises. Therefore, the plaintiff filed O.S.No.171/1999 against defendant Nos.1, 3 and 4 and filed O.S.No.172/1999 against defendant Nos.2, 3 and 4 for ejectment and delivery of possession of suit schedule property. On 23.06.2000, the Trial Court decreed the said suits and directed the defendants in O.S.No.172/1999 to pay arrears of Rs.31,200/- since January 1998 till -4- NC: 2024:KHC:7306 RFA No. 1784 of 2016 10.12.1998. Thereafter, execution petitions have been filed in Ex.Nos.1464/2001 and 1463/2001 by the plaintiff for delivery of possession and the court ordered delivery of possession of the property by breaking open the lock and on 22.11.2001 possession of the property was handed over to the plaintiff. Since there are heavy machineries of 50 tons inside the premises, which were not removed, remained in the custody of the plaintiff. As per the directions of the court, the said machineries were auctioned and till the properties were auctioned, they were stored in the schedule premises. To protect the machineries and other products, the plaintiff paid some money. To recover the same, plaintiff filed a suit in O.S.No.197/2008 for recovery of amount of Rs.5,08,302/-, which includes the arrears of rent, damages, electricity bill with 18% interest.
4. On service of summons, defendant Nos. 1 and 2 have been placed ex-parte, defendant Nos. 3 and 4 entered appearance through advocate, defendant No.4 -5- NC: 2024:KHC:7306 RFA No. 1784 of 2016 filed written statement denying the averments of the plaint as false and he has specifically pleaded that he has not succeeded to the estate of the deceased Neela Krishnan and he has also taken a specific contention that he is not aware about the suit claim and the suit is barred by time.
5. On the basis of the pleadings of the parties, the trial court framed the following issues:
"(1) Whether the plaintiff proves the liability of defendant to pay a sum of Rs.5,08,302/- being arrears of rent, replacement of damage doors and repairing floors due to acid leak, electricity bill paid and repairing the premises as detailed in para 9 of the plaint?
(2) Whether 4th defendant proves, the demand of the plaintiff is barred by time?
(3) Whether plaintiff is entitled to decree for a sum of Rs.5,08,302/- against defendant No.1 to 4 as prayed for?
(4) What order or decree?-6-
NC: 2024:KHC:7306 RFA No. 1784 of 2016
6. To prove the case, plaintiff examined himself as PW1 and marked documents as Exs. P1 to P10. The defendants have neither examined any witness nor marked any documents. On the basis of the oral and documentary evidence, the trial court answered issue No.1 in the affirmative, issue Nos. 2 and 3 in the negative and decreed the suit for payment of Rs.5,08,302/- with 12% interest directing defendant Nos. 3 and 4 to pay the decreetal amount jointly and severally within a month fro the date of the judgment. Being aggrieved by the same, defendant No.4 is before this Court.
7. The learned counsel appearing for the appellant- defendant No.4 raised the following contentions:
(i) Firstly, he is not a party to the suits in O.S.Nos.171 and 172 of 1999. In his written statement, he has taken a specific contention that he has not succeeded the estate of the deceased Neela Krishnan. But, the trial court has not framed any issue on this aspect. Without deciding as to whether defendant No.4 is legally liable to pay the debt of -7- NC: 2024:KHC:7306 RFA No. 1784 of 2016 Neela Krishnan, the trial court erred in decreeing the suit and directing defendant Nos.3 and 4 to pay the decreetal amount.
(ii) Secondly, since defendant No.4 has not succeeded to the estate of the deceased Neela Krishnan, he cannot be made as a legal representative of the deceased Neela Krishnan. Without considering this aspect of the matter, the trial court erred in decreeing the suit. Hence, he sought for allowing the appeal.
8. The learned counsel appearing for the respondent/plaintiff raised the following contentions:
(i) Firstly, father of the appellant-defendant No.4 -
Neela Krishnan was a partner of defendant Nos. 1 and 2 - partnership firm. Deceased Neela Krishnan was a party to the suit in O.S.Nos.171 and 172 of 1999. The suit was decreed against the deceased Neela Krishnan and their partnership firm. As per Section 25 of the Indian Partnership Act, for the liability of the firm, every partner is liable jointly with all other partners and also severally. -8-
NC: 2024:KHC:7306 RFA No. 1784 of 2016 Admittedly, Neela Krishnan was a partner of defendant Nos. 1 and 2 - partnership firm and there was a decree against defendant Nos. 1 and 2 - partnership firm in O.S.Nos. 171 and 172 of 1999. Since Neela Krishnan died, defendant No.4, who is the son of the deceased Neela Krishnan, has succeeded to the estate of the deceased. Therefore, he has been made as a party in the present suit. The trial court, after considering the evidence of the parties and the materials available on record, has rightly decreed the suit against defendant Nos. 3 and 4.
(ii) Secondly, the appellant/defendant No.4 has not specifically denied that he has not succeeded to the estate of the deceased Neela Krishnan. Except filing the written statement, he has neither produced any documents nor entered into the witness box. Even though there is a vague denial in the written statement, that has not been proved by examining any witness. Therefore, the trial court had no other alternative but to pass a decree. Hence, he sought for dismissal of the suit. -9-
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9. Heard the learned counsel for the parties. Perused the judgment and decree and the original records.
10. The point that arises for consideration in this appeal is 'Whether the trial court is justified in decreeing the suit, without framing an issue, as to whether the appellant-defendant No.4 has succeeded to the estate of the deceased Neela Krishnan?
11. It is not in dispute that the plaintiff let out 'A' and 'B' schedule properties for rent in favour of defendant Nos. 1 and 2 - partnership firm. It is also not in dispute that Leela Krishnan was one of the partners of the firm. It is also not in dispute that the plaintiff filed a suit in O.S.Nos. 171 and 172 of 1999 against defendant Nos. 1 and 2 - partnership firm and also its partners, for ejectment. Since the suit was decreed on 23.06.2000, the execution petitions were filed in Ex.Nos.1464 and 1463 of 2001 by the plaintiff for delivery of the possession and in the said execution petitions, the court ordered for delivery of the possession of the property by breaking open the
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NC: 2024:KHC:7306 RFA No. 1784 of 2016 lock and on 22.11.2001, possession of the property was handed-over to the plaintiff. However, heavy machines of 50 tons inside the premises were not removed and have remained in the custody of the plaintiff, till the same was sold in public auction. The plaintiff spent money for watch and ward of the said machineries. To recover the said amount, the present suits are filed. At the time of filing the suit, the father of the appellant - Neela Krishnan was no more, he died on 10.09.2004. Hence, the suit is filed against his son, the appellant herein.
12. The appellant-defendant No.4 filed a written statement. Para 3 of the written statement is extracted below:
"Re. Plaint para 2: This defendant has nothing to do with the lease of the properties alleged to have been granted by the plaintiff to the 1st, 2nd and 3rd defendants. Without prejudice it is submitted that this defendant has not succeeded to the estate of his father late R.Neelakrishnan and hence is not answerable for the suit claim. Without prejudice it is further submitted that the late Neelakrishnan passed away on 10.09.2004 and
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NC: 2024:KHC:7306 RFA No. 1784 of 2016 hence the claim even if maintainable against this defendant is barred by time."
13. It is very clear from the above paragraph that he has taken a specific contention that he has not succeeded to the estate of his father late Neelakrishna. Even, learned counsel for the appellant before this Court has categorically submitted that the appellant has not succeeded to the estate of the deceased Neela Krishnan. The trial court, without framing any issue on this aspect, erred in decreeing the suit. Therefore, the matter requires to be remitted back to the trial court for fresh consideration. The point framed by this Court is answered accordingly.
14. In view of the above, I pass the following order:
(i) The appeal is allowed.
(ii) The judgment and decree dated 27.02.2015
passed by XXX Additional City Civil Judge, Bengaluru in O.S.No.197/2008 is set aside.
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NC: 2024:KHC:7306 RFA No. 1784 of 2016
(iii) The matter is remitted back to the trial court, with a direction to frame an additional issue and after giving opportunity to both the parties to adduce additional evidence and produce additional documents, re-consider the matter afresh, in accordance with law.
Sd/-
JUDGE CM List No.: 1 Sl No.: 60