Allowed

Sri. T G Babu v. Sri. a Bhaskar

Karnataka HC5 Dec 2023RFA/2062/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the recurring appeal against an ejectment decree. The court set aside the trial court's dismissal of the counter claim due to non-payment of court fee, remitted the matter for fresh adjudication, and directed refunds of court fees paid.

What did the court decide?

Impugned judgment and decree set aside; counter claim rejection set aside; matter remitted to Trial Court; appellant to pay court fee by 03.01.2024; refunds granted.

Sri. T G Babu Vs Sri. a Bhaskar — Partition | Karnataka HC (2023)

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 2062 OF 2023 (EJE)

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BETWEEN:

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SRI. T G BABU S/O LATE T R GOPAL, AGED ABOUT 47 YEARS, R/AT 735, 1ST ‘F’ CROSS ROAD, 15TH MAIN ROAD, BASAVESHWARA NAGAR, 4^TH BLOCK, 3^RD STAGE, WEST OF CHORD ROAD, BENGALURU-560079

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…APPELLANT

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(BY SRI. MANJUNATH R P., ADVOCATE)

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. A. BHASKAR S/O APPAJI, AGED ABOUT 38 YEARS, R/AT NO.57, 3RD CROSS, MG ROAD, NEAR SHANKARA MATA, WEST OF CHORD ROAD, BENGALURU-560086

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…RESPONDENT (BY SRI. RAJESH A., ADVOCATE FOR CAVEATOR RESPONDENT)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2023

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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PASSED IN OS NO.3602/2021 ON THE FILE OF LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., PARTLY DECREEING THE SUIT FOR EJECTMENT AND ETC.,

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the impugned judgment and decree dated 14.08.2023 passed in O.S.No.3602/2021 by the LXVI Additional City Civil and Sessions Judge, Bengaluru City (hereinafter referred to as the ‘Trial Court’ for short). In the said suit, the respondent was the plaintiff while the appellant was the defendant. The said suit was instituted by the respondent-plaintiff for ejectment of the appellant-defendant from the suit schedule immovable property and for other reliefs. In the said suit, in addition to contesting the claim of the plaintiff by filing the written statement, the appellant-defendant also put forth a counter claim for declaration that the sale deed dated 23.12.2020 said to have been executed by the appellant-defendant in favour of the respondent-plaintiff was null and void on account of being vitiated by fraud, misrepresentation, coercion etc.

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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Heard Sri Manjunath R.P., learned Counsel for the appellant and Sri Rajesh A., learned Counsel for the respondent and perused the material on record.

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A perusal of the material on record indicates that the respondent-plaintiff instituted the aforesaid suit against the appellant-defendant inter alia contending that the appellantdefendant was a tenant under the respondent-plaintiff in relation to the suit schedule immovable property. As stated earlier, the appellant-defendant not only contested the suit denying the jural relationship of landlord and tenant between him and the respondent, the appellant-defendant also put forth a counter claim seeking declaration that the sale deed said to have been executed by the appellant in favour of the respondent on 23.12.2020 was null and void and obtained by fraud, coercion, misrepresentation etc. It is seen that since the appellant-defendant did not pay requisite Court Fee on the counter claim, the Trial Court passed an order dated 03.12.2022 rejecting the counter claim under Order VII Rules 11(b) and 11(c) of the Code of Civil Procedure. In pursuance of rejection of the counter claim of the appellant-defendant for declaration and other reliefs, the suit of the plaintiff was proceeded with by the Trial Court, which recorded the evidence of the plaintiff

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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(PW-1), who got marked the documentary evidence at Exs.P1 to P7. The Trial Court framed the following:

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ISSUES:

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1. Whether plaintiff proves that the suit schedule premises was rented to the defendant for residential purpose on monthly rent of Rs.15,000/- for period of 3 months from 23.12.2020 to 22.03.2021?

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2. Whether the plaintiff further proves that the tenancy was terminated by issuing notice dated 24.06.2021?

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3. Whether the plaintiff further proves that the defendant is liable to pay sum of Rs.15,000/- per month by way of damages for the use and occupation of the premises from the date of the completion of period of tenancy to the plaintiff?

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4. Whether the plaintiff further proves that the defendant is in arrears of the rent sum of Rs.30,000/-?

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5. Whether the plaintiff is entitled for possession of suit schedule premises?

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6. What order or decree?

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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The appellant-defendant cross-examined PW1 but did not adduce any oral or documentary evidence in order to establish his defence. After hearing the parties, the Trial Court came to the conclusion that respondent-plaintiff had not established the jural relationship of landlord and tenant between himself and the appellant-defendant. However, since the respondent-plaintiff had established his title to the suit schedule property, the Trial Court moulded the relief by treating the suit as one for possession and by directing the respondent-plaintiff to pay requisite ad valorem Court

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Fee under Section 29 of The Karnataka Court-Fee And Suits Valuation Act, 1958, and passed a decree for ejectment/possession accordingly in favour of the respondentplaintiff against the appellant-defendant, who is before this Court by way of the present appeal.

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In addition to reiterating the various contentions urged

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in the appeal and referring to the material on record, the learned Counsel for the appellant submits that due to financial difficulties and on account of bona fide reasons, unavoidable circumstances

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and sufficient cause, the appellant was unable to pay the requisite Court Fee on the counter claim put forth by him in the suit as a result of which, the said counter claim came to be rejected. It is

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6 - NC: 2023:KHC:43793 RFA No. 2062 of 2023

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submitted that the appellant is ready to pay the requisite Court fee of Rs.1,32,350/- on the counter claim if an opportunity is provided to him. It is further submitted that the Trial Court proceeded to uphold the claim of the plaintiff and decree the suit in his favour against the appellant-defendant by coming to the conclusion that the counter claim had already been rejected by the Trial Court. In this context, it is pointed out that adjudication of the counter claim would go to the root of the matter and would be relevant and germane for the purpose of adjudication of the claim of the plaintiff also and as such, it was necessary that the impugned judgment and decree is set aside and the matter is remitted back to the Trial Court for reconsideration afresh by permitting the appellant to pay the requisite Court fee and prosecute the counter claim on merits.

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Per contra, on instructions, learned Counsel for the respondent-plaintiff submits that he has no objection for the impugned judgment and decree to be set aside and the matter being remitted back to the Trial Court for reconsideration afresh subject to imposing certain terms and conditions upon the appellant-defendant to pay the requisite Court Fee within a stipulated time and by further directing the Trial Court to dispose of the suit as well as the counter claim within a stipulated timeframe.

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7 - NC: 2023:KHC:43793 RFA No. 2062 of 2023

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In view of the aforesaid facts and circumstances and in view of the specific submissions made on behalf of the appellantdefendant that he would pay the requisite Court Fee on the counter claim on a date to be fixed by this Court, I deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh in accordance with law.

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In the result, I pass the following:

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ORDER

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i) The appeal is allowed.

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ii) The impugned judgment and decree dated 14.08.2023 passed in O.S.No.3602/2021 by the LXVI Additional City Civil Judge, Bangalore, is hereby set aside.

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iii) The order dated 03.12.2022 rejecting the counter claim of the appellant-defendant is hereby set aside.

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iv) Matter is remitted back to the Trial Court for reconsideration afresh in accordance with law.

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v) The parties undertake to appear before the Trial Court on 3^rd January 2024 without awaiting further notice from the Trial Court.

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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vi) The appellant undertakes to pay the requisite Court Fee on the counter claim on 03.01.2024 without seeking any extension in this regard. It is needless to state that in the event, the appellant does not pay the requisite Court Fee on the counter claim on 03.01.2024, the counter claim shall stand rejected once again.

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vii) Immediately upon the appellant paying the requisite Court Fee on the counter claim before the Trial Court on 03.01.2024, the Trial Court shall provide an opportunity to the respondent-plaintiff to file his written statement/reply to the counter claim.

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viii) Immediately upon completion of the pleadings of both sides, the Trial Court shall frame additional issues and dispose of the suit in accordance with law within a period of six months from 03.01.2024.

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ix) Liberty is reserved in favour of the appellantdefendant to adduce oral and documentary evidence in support of his claim.

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x) Liberty is also reserved in favour of the respondentplaintiff to adduce additional oral and documentary evidence in support of his claim.

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NC: 2023:KHC:43793 RFA No. 2062 of 2023

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xi) All rival contentions between the parties in the suit as well as the counter claim are kept open and no opinion is expressed on the same.

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xii) The Registry of this Court is directed to refund the entire (100% Court Fee) paid on the memorandum of appeal by the appellant back to the appellant forthwith without any delay.

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xiii) Since the respondent-plaintiff paid an additional sum of Rs.67,800/- towards deficit Court Fee in the Trial Court pursuant to the impugned judgment and decree passed by the Trial Court, in view of setting aside of the impugned judgment and decree, the Registry of the Trial Court is directed to refund the entire additional Court Fee of Rs.67,800/- back to the respondent-plaintiff immediately upon receipt of a copy of this order.

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Sd/JUDGE

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JT/-

Sri. T G Babu v. Sri. a Bhaskar

Case brief

What is this about?

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Sri. T G Babu v. Sri. a Bhaskar

Case brief

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