Karnataka High Court
Smt. Mahina Sultana vs Sri Syed Mustaffa on 10 December, 2020
Author: B.M.Shyam Prasad
Bench: B. M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CRP NO.274/2020 (CPC)
BETWEEN :
SMT. MAHINA SULTANA
W/O MIHAMMED SIRAJ JAFFAR
AGED ABOUT 35 YEARS
RESIDING AT NO.15
3RD MAIN ROAD, GANGANAGAR EXTENSION
GANGANAGAR,
BENGALURU - 32. ... PETITIONER
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
AND :
SRI SYED MUSTAFFA
S/O SYED SAJJADULLA
AGED ABOUT 51 YEARS
R/AT 1ST FLOOR
1ST C MAIN ROAD, BINNY MILLS ROAD
GANGANAGAR EXTENSION ... RESPONDENT
BENGALURU - 560 032.
(BY SRI K.NIRANJAN AND
SMT.RADHA D, ADVOCATES )
THIS CRP IS FILED UNDER ORDER 43 RULE 1 OF CPC AGAINST
THE ORDER DATED 14.02.2020 PASSED ON I.A NO. 7 IN O.S NO.
6448/2017 ON THE FILE OF THEN CITY CIVIL AND SESSIONS JUDGE,
BENGALURU REJECTING IA NO.7 FILED U/O 47 RULE 1 OF CPC.
2
2
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is the plaintiff in OS No.6448/2017 on the file of V Additional City Civil and Sessions Judge Bengaluru (for short, 'the Civil Court'), has filed this petition impugning the order dated 14.2.2020. The civil Court by the impugned order has rejected the application in IA.7. This application in IA.7 is filed by the petitioner under Order 47 Rule 1 of Code of Civil Procedure, 1908 (for short, 'the CPC') for review of the order dated 5.8.2019 on IA.5 which is preceded by the order dated 23.8.2018 on IA.2. The suit in OS No.6448/2017 is a suit for ejectment by the petitioner against the respondent.
2. The applications in IA.2 and IA.5 are filed by the petitioner; the first application is filed for direction to the respondent to deposit monthly rent and this application is 3 3 allowed by the order dated 23.8.2018 directing the respondent to deposit monthly rent at Rs.20,000/- for the period between November 2016 and March 2018 in a sum of Rs.3,60,000/-with a further direction to pay similar amounts for the subsequent months till the disposal of the suit. After this order dated 23.8.2018, the petitioner has filed IA.5 under Section 151 of CPC to strikeout the respondent's written statement for non-compliance with the order dated 23.8.2018. This application is taken up for consideration along with other applications pending as of that day, and the civil Court has allowed this application (IA.5) by order dated 5.8.2019 in the following terms:
"It is made clear that, the defendant shall comply the orders passed by this Court on I.A.No.II dated 23/08/2018, within 15 days, subject to the condition that, plaintiff shall furnish copy of relevant lease deed."4 4
The petitioner being aggrieved by the condition that the petitioner shall file relevant lease deed has preferred the present application viz. IA.7 for review/modification, which is rejected by the impugned order.
3. The petitioner's case is that the petitioner has inducted the respondent as a tenant of the subject property in the month of June 2016 because the respondent wanted to relocate from the premises which he had taken on lease from the petitioner's mother. The respondent occupied such premises on 22.7.2016 and paid rents only till October 2016, but ever since he defaulted. The respondent contested the suit asserting that the petitioner's father, Sri Ziaullah Khan had let-out the premises to the respondent after collecting security deposit of Rs.10,00,000/- and they had in fact executed agreement dated 06.06.2016 in this regard. But this agreement is misplaced and the present proceedings are started taking advantage of the same. In the pleadings, there 5 5 is a reference to filing of complaints before the jurisdictional police and exchange of legal notices. As regards the lease deed/agreement, the petitioner's specific case is that the respondent was inducted for short period to conclude in the month of April 2020 and as such, no lease deed was executed.
4. It is after consideration of these rival submissions that the civil Court has, while allowing IA.2, directed the respondent to pay a sum of Rs.20,000/- for the period between November 2016 to March 2018 with further direction to pay for the subsequent months. It is obvious from the records that the respondent did not comply with this order, and when a request for striking-out of the defence is made on such ground with filing of IA.5, a condition is imposed that the written statement could be struck off if the petitioner furnishes copy of the lease deed. This would be contrary to the circumstances of the case, including the assertion as 6 6 regards non-execution of the lease deed. This condition would therefore be onerous. The civil Court has refused to entertain the application for modification of the onerous condition on the ground that the application is filed belatedly beyond the stipulated period of 30 days. It is seen that the application - IA.3 is disposed of on 5.8.2019 and the present application is filed on 6.9.2019 with specific assertion as regards exclusion of time taken for securing details.
5. In the facts and circumstances of the case, rejection of IA.7 on the ground that it is filed beyond limitation period is wholly erroneous and imposition of onerous condition would also be impressible in law. As such the petition is allowed setting aside the impugned order dated 14.2.2020 on IA.7 in O.S.No.6448/2017 by the V Additional City Civil and Sessions Judge, Bengaluru modifying the order dated 5.8.2019 insofar as the condition that requires the petitioner to produce a copy of the lease deed. The petitioner 7 7 shall be at liberty to make necessary request with the Civil Court for striking out of the defence in terms of the order dated 5.8.2019 without producing a copy of the lease deed, which to begin with does not exist even according to the petitioner.
SD/-
JUDGE SA/-
Ct:rs