Sri. Bernard Vinneth Vs Sri. Arjun Patyam Ramgopal

SRI. ARJUN PATYAM RAMGOPAL S/O PATYAM RAMGOPAL AGED ABOUT 47 YEARS R/AT FLAT NO.3B, REGENCY HAMSA APARTMENTS, NO. 10, LLOYD ROAD, COOKE TOWN BENGALURU - 560 005.

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…RESPONDENT

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(BY SMT. S VIDYA., ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.43

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RULE 1(R) OF THE CPC, AGAINST THE ORDER DT. 11.08.2025 PASSED ON I.A.NO. 3 IN O.S.NO. 3082/2024 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING IA NO.III FILED U/O.39 RULE 9 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2026:KHC:30503 MFA No. 8350 of 2025

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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Heard learned counsel for the appellant.

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This appeal is preferred by defendant No.4 in O.S.No.3082/2024 aggrieved by the impugned order dated 11.08.2025 passed on I.A.No.3 filed under Order 39 Rule 9 of CPC (it is to be mentioned as 'Order 39 Rule 10 of CPC').

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Parties shall be referred to as defendant No.4-

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appellant herein and the plaintiff-respondent herein.

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Brief facts of the case are as under:

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The suit came to be filed by the plaintiff against defendants Nos.1 to 3 for ejectment of the suit schedule property. During the course of the suit proceedings, an application came to be filed to implead the appellant-defendant No.4, which came to be allowed and defendant No.4 came to be impleaded and an amendment was carried out on 28.03.2025. On 29.04.2025, defendant No.4 came to be represented through a counsel by filing vakalat and on 29.04.2025, the matter got adjourned to 18.06.2025. On 02.05.2025, the

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plaintiff filed two applications, one application to prepone the matter from 18.06.2025 and another application under Order 39 Rule 9 of CPC. Thereafter, the matter was adjourned for filing objections to the said application. Again when the matter was called out on 18.06.2025, to the regular date which it was adjourned, at request of learned counsel for the defendants, time was granted and again when the matter was called out on 28.06.2025, due to the absence of defendant No.4 and his counsel, objections to I.A.Nos.2 and 3 were taken as 'NIL'; amendment to the plaint was permitted to be carried out and the matter was posted on 04.07.2025. On which date, the application filed by the plaintiff was heard and as there was no representation by defendant No.4, the matter was posted for 'Orders' on 21.07.2025. On the said date, the matter was again adjourned to 11.08.2025. On which date, an order came to be passed allowing the application-I.A.No.3 filed under Order 39 Rule 9 of CPC. It is this application, which is questioned in this appeal.

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It is vehement contention of learned counsel Sri. Kalyan.R., for the appellant that the impugned order

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passed by the trial Court is illegal, arbitrary and the same is not sustainable for the reason that the trial Court has not provided suitable opportunity to the appellant-defendant No.4 to defend the case, file objections and to address arguments on the said application. It is further contended that initially the suit came to be filed against defendant Nos.1 to 3 by the plaintiff as defendant Nos.1 to 3 had entered into a lease agreement and at that time, there was absolutely no mention about this defendant No.4. Subsequently, defendant No.4 was impleaded and pursuant to the impleadment, no reasonable opportunity was given to defendant No.4 to file objections, address arguments and defend his case. It is further contended by learned counsel that the suit itself is not maintainable against defendant No.4 as the plaintiff and defendant No.4 do not have any jural relationship of landlord and tenant. The appellantdefendant No.4 has entered into a lease agreement with defendant Nos.1 to 3 and he has no obligation to pay any rent to the plaintiff but only to defendant Nos.1 to 3, which he has done regularly. There is no opportunity given to defendant No.4 to file his written statement or objections to the application.

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Hence, the trial Court has committed an error in not providing suitable opportunity.

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It is also contended that the suit would not be

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maintainable as no notice under Section 106 of the Transfer of Property Act has been issued to defendant No.4. There is no cause of action as against defendant No.4. The trial Court has ignored to look into these aspects and has proceeded further to pass the impugned order, which is arbitrary and illegal and the same is liable to be set aside. On these grounds, learned counsel for the appellant-defendant No.4 contends that when there is no jural relationship between the appellant-defendant No.4 and the respondent-plaintiff, the question of passing any interim order for payment of arrears of rent would not arise and the same is not sustainable.

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Learned counsel for defendant No.4 further contends that while entering into the lease deed with defendant Nos.1 to 3, defendant No.4 has paid rent free security deposit of Rs.10,00,000/-. It is also contended that the plaintiff had authorized defendant Nos.1 to 3 to sublet the premises. When this being the facts of the case, the plaintiff, having suppressed

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all these materials, has filed an application under Order 39 Rule

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9 of CPC and has obtained an order where no opportunity was provided to defendant No.4. Hence, he contends that the plaintiff has not made out any good ground to allow the application for payment of arrears of rent by defendant No.4 to the plaintiff. Subsequently, he seeks to allow his appeal and dismiss the application filed by the plaintiff as against defendant No.4.

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Per contra , learned counsel representing the respondent-plaintiff contends that there is no illegality or perversity in the order passed by the trial Court. It is no doubt true that initially the suit for ejectment was filed against defendant Nos.1 to 3, who are the original tenants of the plaintiff, for a direction to quit and deliver vacant possession of the suit schedule property. It is also no doubt true that in the rental agreement provided to defendant Nos.1 to 3, there was a provision made for sublease and once the plaintiff came to know about the sublease made by defendant Nos.1 to 3 in favour of defendant No.4, he made an application to implead the said defendant before the trial Court proceedings. It is also

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contended by learned counsel that the notice was issued under Section 106 of the TP Act to defendant No.4 as well. Pursuant to inclusion of defendant No.4 in the suit proceedings, opportunity was granted, which was not availed by defendant No.4.

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Thereafter, despite calling out, defendant No.4 did

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not appear and no representation either through the counsel or the party and the matter was posted for addressing arguments and on which day also, there was no representation for defendant No.4 or for that matter any of the defendants. When the matter was posted for orders, though it was not pronounced on 21.07.2025, still no application was made and again the matter was adjourned to 11.08.2024. On which date, the trial Court passed the order on the said application allowing

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the application for payment of arrears of rent. Therefore, learned counsel contends that opportunities were granted by the trial Court for objections to be filed and for addressing arguments, which were not availed and since it is a suit for ejectment and the plaintiff is relying upon the rental incomes for his subsistence, defendant Nos.1 to 3 or for that matter

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defendant No.4 cannot occupy the premises without paying the rent. On these grounds, she seeks to dismiss the appeal and sustain the order of the trial Court.

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I have heard learned counsel for the appellant and learned counsel for the respondent.

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Apparently, there is no dispute to the fact that the plaintiff is the owner of the suit schedule property and the defendant Nos.1 to 3 had initially taken the premises on rent from the plaintiff. It is also not in dispute that defendant No.4 is in possession of the suit schedule property on lease and has paid the security deposit amount of Rs.10,00,000/- to defendant Nos.1 to 3. Therefore, defendant No.4 was very much aware of the fact that defendant Nos.1 to 3 are the tenants of the plaintiff with the permission to sublease the premises and accordingly, defendant No.4 had taken the premises on sublease from defendant Nos.1 to 3. The application that is filed came to be allowed by the trial Court upon consideration of the opportunity that was given to defendant No.4 as defendant No.4 had appeared before the Court, filed vakalat through the counsel, but did not bother to

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file objection to the application neither written statement. The matter was adjourned thereafter and even on the next date of hearing i.e., on 28.06.2025, the order sheet reflects that defendant No.4 and the counsel remained absent and having found no representation, the matter was adjourned for amendment and posted on 04.07.2025 for arguments. On which date, it is seen that there is no representation and no arguments addressed by the counsel for defendant No.4 and it was posted for 'Orders' on 21.07.2025. It is seen that even on 21.07.2025, the Court has not passed orders. On which date at least, defendant No.4 could have appeared, filed an application to recall the order and seek for addressing arguments or filing objections, which has not been done. Therefore, it is very apparent and clear that defendant No.4 is protracting the proceedings for filing objections or non-payment of rent that was sought for by the plaintiff.

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Having considered the application for payment of rent and this Court having found that there is no dispute with regard to the ownership of the plaintiff over the suit schedule property and defendant Nos.1 to 3 being the tenants of the

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plaintiff having sublet the premises to defendant No.4, which is

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not in dispute, I do not find any good ground made out by defendant No.4 for not complying with the order and there being any illegality or perversity or arbitrariness in the said order passed by the trial Court on I.A.No.3.

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