Writ Petition Nos. 13507, 13508 and 13509 of 2012. Case: Vasudeva Rao & Sons Vs Prathiba Devi. High Court of Karnataka (India)
| Case Number | Writ Petition Nos. 13507, 13508 and 13509 of 2012 |
| Counsel | For Appellant: Sri. P.D. Surana, Adv. and For Respondents: Sri. S. Sriranga, Sr. Adv. |
| Judges | N. Kumar, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order I Rule 13; Order II Rules 3, 7; Order VI Rule 5; Order VII Rules 10, 10A; Order XIV Rules 1, 2; Order XVII Rule 1; Sections 151, 21, 6, 9; Karnataka Court-fees and Suits Valuation Act, 1958 - Sections 41, 50; Karnataka Small Cause Courts Act, 1964 - Section 9 |
| Judgement Date | March 07, 2014 |
| Court | High Court of Karnataka (India) |
Order:
N. Kumar, J.
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These three writ petitions are preferred by the defendants challenging the order passed by the trial Court on an application filed under Order VII Rule 10 CPC for returning the plaint and directing the plaintiffs (three sisters) to present the same before the proper Court.
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The case of the plaintiffs in all the three suits is that, they are the absolute owners of a portion of the property bearing Original Municipal No. 20, New No. 32, Seshadri Road, Bangalore-560 009 having obtained the same under a registered partition deed dated" 09.02.1977; the portion allotted to the share of each of them has been assigned a new municipal number and the property owned by each of them is as described in the respective plaint schedule.' The first defendant is a partnership firm registered under the provisions of the Partnership Act, 1932 and it is represented by its Managing Partner Sri A Prabhakar Rao, the second defendant. The plaintiffs' leased vacant land to the first defendant firm under a registered lease deed dated 31.07.1978 and the lease was for a duration of 32 years. Under the lease deed, the first defendant was permitted to construct as one composite unit, multistoried building upon the schedule property belonging to them and accordingly, the first defendant constructed the building in accordance with the sanctioned plan obtained by them. It was agreed that, on the expiry of lease period on 31.07.2010, the first defendant shall quit and deliver the vacant possession of the schedule 'A' property together with all the constructions made thereon. The first defendant has put up construction consisting of Ground floor, Mezzanine floor plus five floors on the leased property and is running a lodging business therein under the name and style "Hotel Sheetal". The tenancy is a monthly tenancy commencing from 1st day of every month and ending on the last day of the said month. Initially, the rent was fixed at Rs. 200/- and it was increased from time to time as stipulated in the lease deed. The lease granted in favour of the first defendant expired by efflux of time on 31.07.2010. The plaintiffs being not desirous to continue the tenancy, issued notice dated 17.07.2010 terminating the tenancy of the first defendant and called upon the firm to quit and deliver the vacant possession of the schedule premises on 01.08.2010. On due service of notice, defendants sent reply dated 30.08.2010 refusing to vacate and hand over possession of the suit property to the plaintiffs.
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The plaintiffs claim that the built up area of the suit property is about 12,000/- square feet and it is situated in Anand Rao Circle, which is near the Railway Station and also Karnataka State Road Transport Corporation Bus Stand. As such its rent would be about 30/- per square at present and therefore, the defendants are liable to pay Rs. 3,60,000/- per month from 01.08.2010 till the date of handing over the possession with interest at 18% per annum. As on the date of suit, the defendants were liable to pay a sum of Rs. 7,20,000/-. Therefore, the plaintiffs filed the suits for ejectment; for a direction to the defendants to quit and deliver vacant possession of the schedule premises and to pay Rs. 7,20,000/- towards mesne profits and also to pay the sum of Rs. 3,600/- per month as future mesne profits and cost.
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The summons were duly served on the defendants, who after entering appearance did not file the written statement, but filed an application on 26.07.2011 under Order VII Rule 10 CPC read with Section 151 CPC for return of the plaint for presentation before the proper Court. In the affidavit filed in support of this application, the defendants denied the allegations made by the plaintiffs, in particular, the claim for future mesne profits. The defendants also contended that the Hon'ble High Court of Karnataka in Abdul Wajid Vs A Onkarappa reported in ILR 2011 KAR 229 has held that having regard to Section 9 of the Karnataka Small Causes Courts Act, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction and that the Court of Small Causes has jurisdiction to take cognizance of not only a suit for ejectment but also for recovery of mesne profits and damages. The plaintiffs have admitted that the last paid rent is Rs. 1,500/- per month and if the same is calculated for 12 months, it amounts to Rs. 18,000/- per year. As such City Civil Court, Bangalore has no jurisdiction to try the suit and the plaint should be returned for presentation before the proper Court.
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The plaintiffs filed their objection contending that the suit is maintainable. The defendants who are carrying on business in the schedule property intentionally evaded service of summons by colluding with the postal authorities; and were ultimately served by substituted service i.e., by way of affixture on 23.04.2011 and entered appearance in the suit on 27.06.2011 through their advocate and the matter was adjourned to 13.07.2011 and subsequently to 26.07.2011 for filing written statement. Instead of filing the written statement, the defendants have come up with a frivolous application for return of the plaint and the application is liable to be dismissed.
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The Trial Court upon consideration of the rival contentions has held, relying on the decision of the Full bench of this Court in Abdul Wajid Vs A.S. Onkarappa reported in ILR 2011 KAR 229 that...
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