Dismissed

B Gokuldas Pai v. Maharashtra Apex Corporation Ltd.

Karnataka HC5 Oct 2020WP/25627/2015

Case brief

AI extract

What is this about?

This Writ Petition challenged an order dismissing an application to implead a tenant under Order 1 Rule 10(2) of CPC. The High Court held the lower court correctly dismissed the application as the impleader was the tenant named in the trial suit. The petition was dismissed for abuse of process, with additional costs imposed.

What did the court decide?

The Writ Petition was dismissed as not maintainable for abuse of process.

B Gokuldas Pai Vs Maharashtra Apex… — Civil Procedure and Limitation | Karnataka HC (2020)

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W.P. No.25627 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION No.25627 OF 2015 (GM-CPC)

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BETWEEN:

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B. GOKULDAS PAI AGED ABOUT 81 YEARS S/O LATE BRAHMAVARA PADMANABHA PAI R/O BRAHMAVARA CHANTHAR VILLAGE UDUPI TALUK ... PETITIONER

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(BY SRI. SAMPAT ANAND SHETTY, ADVOCATE-THROUGH VC)

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AND:

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MAHARASHTRA APEX CORPORATION LTD BY ITS MANAGING DIRECTOR SYNDICATE HOUSE MANIPAL-576119 ... RESPONDENT

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(BY SRI. K. PRASAD HEGDE, ADVOCATE-THROUGH VC)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 23.04.2015 VIDE ANNEXURE-A PASSED BY THE LEARNED CIVIL JUDGE (SR. JUDGE) UDUPI IN R.A.NO.23/2006 ON I.A. NO.III WHEREBY THE LEARNED JUDGE ILLEGALLY, ARBITRARILY AND MECHANICALLY DISMISSED THE APPLICATION AND CONSEQUENTLY DIRECT THE COURT BELOW TO ALLOW THE SAID APPLICATION AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING:

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W.P. No.25627 OF 2015

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ORDER

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The petitioner is before this Court seeking for setting aside the order dated 23.4.2015 passed by the Civil Judge (Sr. Judge), Udupi in R.A. No.23/2006 on Interlocutory Application No.3 (I.A-3) which is filed under Order 1 Rule 10(2) of Code of Civil Procedure, 1908 (‘CPC’ for short).

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IA-3 being an application under Order 1 Rule 10(2) of CPC was filed in RA No.23/2006 for impleading one M/s Kalpana Cloth Store, represented by its partners as a respondent to the said proceedings on the ground that the said Kalpana Cloth Store is the actual tenant under the plaintiff i.e. the opponent respondent in RA No.23/2006 and it is on this basis it was contended that the tenant making payment of actual rentals is a necessary and proper party to the Suit and in the absence of such a party, the proceedings could not be adjudicated effectively.

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W.P. No.25627 OF 2015

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The application came to be objected to by the opponent respondent contending that the issue as regards impleading of the new defendant would introduce a new relief, which is not permitted, more so by defendant who was unsuccessful in defending the suit before the trial Court. The First Appellate Court vide its order dated 23.4.2015 dismissed the said application holding that the application is filed in Regular Appeal, the applicant being the appellant who is defendant in the suit, the trial Court held that the plaintiff-respondent is the master of the suit, the defendant can only take the defence as regards any necessary party not being impleaded but cannot seek for such a party to be impleaded in the suit and dismissed the same by imposing cost of Rs.1000/-.

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Sri.Sampath Anand Shetty, learned counsel for the petitioner would submit that the trial Court has not followed the necessary mandate and procedure prescribed under Order 1 Rule 10(2) of CPC inasmuch as the order passed by the First Appellate Court is not in accordance with law, the reading of the said order indicates non application of mind, the applicant-petitioner

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W.P. No.25627 OF 2015

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was entitled to a reasoned order on the application filed by the petitioner and there being no reasons attributed, the order as passed is liable to be set-aside and IA needs to be allowed.

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Per contra, Sri.Prasad Hegde, learned counsel for the respondent would submit that the present application is one filed only to delay and protract the matter inasmuch as the rental agreement between the petitioner and the respondent was entered into in the year 1979, the proceedings for ejectment against the petitioner was filed in the year 2003 vide suit in O.S.No.10/2003. The said suit came to be decreed in favour of the respondentplaintiff on 31.03.2006. R.A. No.23/2006 was filed challenging the said decree on 29.05.2006 and the said R.A. No.23/2006 is pending from 2006 till now, when the application under Order I Rule 10(2) viz., IA-3 was filed on 13.3.2015 to delay and protract the matter.

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Sri.Prasad, learned counsel further submits that by doing so, the petitioner has been successful in delaying the implementation of the decree for a period of more than

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W.P. No.25627 OF 2015

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five years. The application has been filed only to sidetrack the issues and as such, the first Appellate Court having appreciated the matter in a proper and required manner has dismissed the same, which does not require any interference.

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Heard Sri.Sampat Anand Shetty, learned counsel for the petitioner and Sri.K.Prasad Hegde, learned counsel for the respondent and perused papers.

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On the basis of the submissions made, the points that arise for determination of this Court are:

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i) Whether the order passed by the first Appellate Court is proper and correct ?

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ii) What order ?

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The defendant in the suit, who is an appellant in the R.A. who is the petitioner in the present petition is one Gokuldas Pai, who is stated to be aged about 89 years. He has filed IA-3 in R.A.No.23/2006 stating that one M/s Kalpana Cloth Store, represented by its partners viz., B.Vivek Pai, B.Ashok Pai, B.Ramakrishna Pai, all sons of Gokuldas Pai are required to be made parties to the said

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W.P. No.25627 OF 2015

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appeal since it is the said Kalpana cloth Store who is the tenant of the respondent. R.A. 23/2006 has been filed challenging the Judgment and decree in O.S.No.10/2003.

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In the said suit, the issues framed were as under:

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Whether G.P.A. dated 23.11.1990 executed by the plaintiff company in favour of K.Gopala Krishna Bat is valid?

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Whether the plaintiff proves that he is the absolute owner of the plaint schedule property?

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Whether the plaintiff proves that the defendant is the monthly tenant under him in respect of plaint A schedule property?

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whether the quit notice dated 15.10.02 is valid?

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whether the defendant proves that he has executed rent bond as kartha of his Hindu undivided family?

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Whether the defendant proves that plaintiff by his clear conduct and also by necessary implication recognized the monthly tenancy of M/s Kalpana Cloth Stores, partnership firm form April 1993 onwards?

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Whether the plaintiff proves that defendant is liable to pay mesne profits at the rate of Rs.3,500/-per month from 1-12-02?

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Whether the plaintiff is entitle for the plaint reliefs?

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What order or decree?

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The relevant issue for the purpose of consideration of this

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Court is issue No.6.

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W.P. No.25627 OF 2015

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By virtue of the said issue, it is clear that the petitioner had in the said suit raised the very same contention as regards Kalpana Cloth Store, a partnership firm being a tenant of the property. The said issue was answered in the negative by the trial Court. Thus, there is a finding after trial by the trial Court that Kalpana Cloth Store is not a tenant of the plaintiff in the said suit.

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In the above background, it is rather shocking that the tenant has filed an application under Order 1 Rule 10 of CPC seeking to implead the very same Kalpana Cloth Store and is now expecting a reasoned and detailed order on the said application. It is also to be taken note that the notice on the said application was directed to be issued by the First Appellate Court and was served. However, the noticees i.e. proposed respondents did not appear before the first Appellate Court. It is even more important for the reason that said noticees i.e. the partners of the alleged Kalpana Cloth Store are none other than the sons of the petitioner herein. That being the case, when the petitioner files an application to

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implead his sons, though his sons received the notice on application did not appear before the first Appellate Court and on dismissal of the said application, the applicant who is the petitioner herein now has filed the present petition. The manner in which the entire matter is being conducted would only lead to a conclusion that there has been gross abuse of process of Court by the defendant in O.S.No.10/2003, appellant in R.A. No.23/2006 and the petitioner in the present matter.

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As regards the contention that there had to be a detailed order which was to be passed on the application filed by the petitioner under Order 1 Rule 10(2) of CPC, a perusal of the order indicates that all the required factors have been considered by the first Appellate Court though in a short and crisp manner. The first Appellate Court by way of its order has specifically held that the appellant was a defendant in the suit. The Plaintiff is the master of the suit, the plaintiff has objected to the application, the first Appellate Court has also further held that the defendant only can take a defence that it is a necessary party but cannot seek for impleading third persons as party to the

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W.P. No.25627 OF 2015

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suit or the appeal. These reasons were sufficient for the first Appellate Court to come to a conclusion that the application is required to be dismissed and it has so dismissed the application by imposing cost of Rs.1,000/-. Thus, in view of the above, I am of the considered opinion that neither on facts/merits or on technicalities the writ petition is maintainable and therefore the writ petition would have to be dismissed. However, taking into consideration that the matter has been pending under the litigation from the year 2006 by such delaying tactics, I am of the considered opinion that a further cost of Rs.5000/- is required to be imposed on the petitioner.

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The pleadings before the first Appellate Court being complete, I would also request the first Appellate Court to dispose of the appeal as expeditiously as possible.

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Accordingly, the writ petition stands dismissed.

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Sd/JUDGE

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B Gokuldas Pai v. Maharashtra Apex Corporation Ltd.

Case brief

What is this about?

What did the court decide?

B Gokuldas Pai v. Maharashtra Apex Corporation Ltd.

Case brief

What is this about?

What did the court decide?

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