Karnataka High Court
M/S Family Health Providers Private ... vs Mr G A Srinath on 20 June, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 11092 OF 2022(GM-CPC)
BETWEEN:
1. M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
DOOR NO.91, 4TH MAIN ROAD, M K EXTENSION
BENGALURU-560054
AND INTERALIA HAVING ITS PLACE OF BUSINESS
AT NO.423/2, 1ST MAIN, 1ST STAGE
1ST PHASE, GOKULA
BENGALURU-560054
REPRESENTED BY ITS DIRECTOR
DR CHALDIGANAHALI MUNIKRISHNA PARAMESHWARA
2. DR CHALDIGANAHALLI MUNIKRISHNA PARAMESHWARA
DIRECTOR
M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
DOOR NO.91, 4TH MAIN ROAD
M K EXTENSION, BENGALURU-560054
...PETITIONERS
(BY SRI.PRASHANTH KUMAR D, ADVOCATE)
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AND:
1. MR G A SRINATH
S/O MR G ADI MURTY
AGED ABOUT 58 YEARS
R/A NO.1493, 27TH CROSS, 24TH MAIN
BANASHANKARI IIND STAGE
BENGALURU-560070
2. MRS G A YESHODA
W/O LATE K THAMMAIAH
D/O MR G ADI MURTHY
AGED ABOUT 63 YEARS
R/A NO.786, 20TH CROSS, 19TH MAIN
BANASHANKARI IIND STAGE
BENGALURU-560070
3. MR BHASKAR RAJENDRA PRASAD VALLURI
DIRECTOR
M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
R/A NO.20, 4TH MAIN, 1ST CROSS ROAD,
MATHIKERE EXTENSION, BENGALURU-560054
4. MR BHARGAVI MUNIYAPPA
DIRECTOR
M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
R/A NO.159, 10TH CROSS, 2ND MAIN
RMV 2ND STAGE, DOLLARS COLONY
BENGALURU-560094
5. MR PRASHANTH JANGAMKOTE VARADARAJU
DIRECTOR
M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
R/A NO.38/2, 2ND MAIN ROAD
MADIWALA NEW EXTENSION
BENGALURU-560068
6. MR KOTTAPALLI NARAYANASWAMY VENUGOPAL
DIRECTOR
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M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
R/A JC ROAD, NEW BUILDING
PAVAN NURSING HOSPITAL
SRINIVASAPUR-563135
7. MRS SUNAGAHALLI JAYARAM ANURADHA
DIRECTOR
M/S FAMILY HEALTH PROVIDERS PRIVATE LIMITED
R/A NO.3815, 100 FEET ROAD
ASHOK NAGAR, MANDYA-571401
...RESPONDENTS
(BY SRI.VIVEK ANAND ANTHONY, ADVOCATE FOR C/R1 & 2)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD.6.4.2022 ANNEXURE-A PASSED BY THE XXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE BANGALORE (CCH-6) HOLDING
CONCURRENT CHARGE OF THE COURT OF THE XXXI ADDITIONAL
CITY CIVL AND SESSIONS JUDGE (CCH-14) ON IA NO.2 AND 3 IN
O.S.NO.3256/2016 AND CONSEQUENTLY ALLOW IA NO.2
ANNEXURE-H AND IA NO.3 ANNEXURE-J IN O.S.NO.3256/2016.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed questioning the order of the learned Judge passed on I.A.Nos.2 and 3 in O.S.No.3256/2016, wherein the prayer sought by the petitioners/defendants to recall the order dated 18.11.2016 4 and consequently, permit the petitioners to file written statement is rejected by the Trial Court.
2. The respondents/plaintiff Nos.1 and 2 have instituted an ejectment suit in O.S.No.3256/2016. The respondents/plaintiffs have specifically contended that they have leased the suit schedule property in favour of petitioners/defendants under registered lease deed dated 17.02.2010. At para 6 of the plaint, the respondents/plaintiffs have also specifically admitted that lease period is for 29 years 11 months. The plaintiffs have further contended that petitioners have agreed to pay rent at the rate of Rs.1,00,000/- with increase in the rent at the rate of 6% every 3 years. The plaintiffs grievance is that the present petitioners/defendants are chronic defaulters in paying the monthly rent. It is specifically alleged at para 10 of the plaint that the present petitioners with effect from 01.06.2011 have committed default and have not paid the monthly rent. The respondents/plaintiffs have also claimed that on several 5 occasions, the cheques issued by the present petitioners/defendants were dishonoured for want of sufficient funds. On these set of grounds, ejectment suit is filed.
3. The present petitioners though tendered appearance by filing Vakalath, however, have not chosen to file written statement within the stipulated period under the amended provisions of Order 8 Rule 1 of CPC. The explanation offered by the petitioners is that the matter was referred to mediation to enable the parties to work out amicable settlement. The petitioners claim that several round of negotiations were held between the petitioners/defendants and respondents/plaintiffs. By the time the matter was sent back to the Court as negotiations were not fruitful, the delay had already incurred and therefore, application is filed under Section 151 of CPC requesting the Court to permit the petitioners to file written statement.
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4. The learned Judge having examined the rival contentions has proceeded to reject the application on the premise that there is inordinate delay of 1216 days and the same is not properly explained. Therefore, learned Judge has declined to grant permission to the petitioners to contest the proceedings by filing written statement. The learned Judge has also taken note of the fact that the matter was in fact set down for arguments on many occasions and the matter was also posted for judgment twice. On these set of reasonings, learned Judge has rejected the applications.
5. Feeling aggrieved by the said order, the petitioners/defendants are before this Court.
6. The respondents/plaintiffs have sought delivery of suit premises on the premise that the petitioners/defendants are chronic defaulters. However, at para 6 of the plaint, the respondents/plaintiffs admit that the period stipulated under the registered lease deed is 29 years 11 months. The 7 ejectment suit is filed alleging that there is default. These allegations are countered by the petitioners/defendants. on the contrary, the petitioners claim that in fact there is excess payment.
7. It is in this background, this Court directed both the parties to submit memo of calculations. Both the parties have placed on record the memo of calculations. On perusal of the memo of calculations, the petitioners/defendants claim that respondents/plaintiffs are in fact holding excess money with them. As per the memo of calculations, the petitioners/defendants claim that there is excess deposit to the tune of Rs.8,00,000/-. While respondents/plaintiffs claim that petitioners/defendants, after all deductions, on account of some payment made, are still due to the tune of Rs.38,96,958/-. The respondents/plaintiffs have also placed on record statement of accounts. There is total mismatch in regard to memo of calculations submitted by the tenant and landlord.
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8. Be that as it may. Though this Court cannot venture into holding a roving enquiry as to whether there is any amount due, the question that has to be examined by this Court is whether the learned Judge was justified in declining to exercise discretion vested with the Court under Order 8 Rule 1 of CPC.
9. The material on record would clearly indicate that there is some laxness on the part of the defendants in not filing written statement within the stipulated period. But there is no dispute that the parties did opt for mediation and this fact is not seriously disputed by the respondents/plaintiffs. If these significant details are taken into consideration, though there is inordinate delay of 1216 days, but having regard to the facts and circumstances of the case, this Court is of the view that substantial time was spent to work out amicable settlement and probably some valuable time was also lost by the petitioners to work out settlement.
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10. The petitioners/defendants are asserting possessory rights based on a registered lease deed and the tenure is almost 29 years 11 months. Therefore, if petitioners defence is struck off and if they are denied an opportunity to contest the proceedings by filing written statement that would in all probability lead to miscarriage of justice. Of course, the respondents/plaintiffs would be put to some inconvenience on account of some negligence on the part of the petitioners/defendants in not filing written statement within the stipulated period, but that in itself would not constitute a ground and would not constitute a reason to decline an opportunity to petitioners/defendants to contest the suit.
11. Having regard to the fact that the petitioners/defendants are asserting possessory rights based on registered lease deed, to balance equities and also in the interest of justice, I deem it fit to interfere with the order under challenge. However, petitioners have to be put to some 10 terms for having dragged the respondents/plaintiffs to this Court on account of their fault in not filing written statement well within time. Therefore, I am of the view that the petitioners have to be saddled with some costs. This Court is also of the view that the learned Judge, if an application is filed by the respondents/plaintiffs, shall also examine the payment of arrears by the petitioners/defendants. The respondents/plaintiffs are claiming huge arrears which is to the tune of Rs.38,96,958/-. Therefore, pending consideration of suit, the learned Judge shall also examine as to whether there are any arrears of rent.
12. With these observations, I pass the following:
ORDER
(i) The writ petition is allowed;
(ii) The order dated 06.04.2022 passed on I.A.Nos.2 and 3 in O.S.No.3256/2016 is set aside;
(iii) The written statement filed along with the application is taken on record subject to petitioners/defendants paying cost of Rs.25,000/-11
to the respondents/plaintiffs on the next date of hearing;
(iv) The memo of calculations submitted by the rival parties which are placed on record shall be remitted to the Trial Court after retaining photocopy of the same;
(v) All contentions are kept open.
Sd/-
JUDGE CA