Parvathamma vs K.N. Madhusudan

A.N. Venugopal Gowda, J—The petitioner, as the plaintiff, filed O.S. No. 8217/2009 in the City Civil Court, Bengaluru against the respondent/defendant, to pass a decree of ejectment in respect of the southern side of commercial premises bearing No. 30, Ground Floor, situated at I Cross, Aswathnagar, RMV II Stage, Bengaluru -94. The defendant/respondent has filed written statement vide Annexure-C. Issues were raised and after commencement of the trial and the closure of plaintiffs case, defendant has delivered possession of the suit premises on 16/2/2012.

On 11/12/2012, I.A. No. 6 was filed by the plaintiff, under Order 6 Rule 17 r/w Section 151 CPC, to permit the amendment of the plaint i.e., to incorporate the proposed pleading with regard to the defendant being in arrears of rent and the need to pass a decree for realization of the arrears amounting to Rs. 6,80,698/- found due after deduction of Rs. 2,40,000/- paid as security deposit. The Trial Court having dismissed I.A. No. 6 by an order dated 26/10/2013, this petition was filed to quash the order as at Annexure-F and grant the consequential relief.

Heard Sri. H.T. Nataraja, learned advocate for the petitioner and Sri. Satish G. Raikar, learned advocate for respondent and perused the petition.

In the suit, apart from the decree for ejectment, the plaintiff claimed payment of Rs. 2,000/- per day as damages from the date of suit, for the defendant having remained in occupation of the plaint schedule premises unauthorisedly i.e., after termination of the tenancy by issue of notice dated 2/9/2009. The accumulated arrears of rent, if any, was not claimed in the suit. Plaintiff has deposed as PW-1 and was cross-examined in full on 15/12/2011. The defendant has delivered key of the suit premises and the physical possession thereof on 16/2/2012. As a consequence, the first prayer in the suit with regard to the liability of the defendant to deliver vacant possession of the suit premises has come to an end. What has remained for consideration is the liability or otherwise of payment of Rs. 2,000/- per day, being the damages for remaining in possession of the premises after the expiry of the period shown in the tenancy termination notice dated 2/9/2009.

On the date I.A. No. 6 was filed i.e., on 11/12/2012, trial of the suit had commenced. Plaintiff had got herself examined and cross-examined in full. Hence proviso under Rule 17 of Order 6 CPC is attracted. There is lack of diligence on the part of the plaintiff, in making the claim as was attempted to be made in I.A. No. 6. The proposed facts/claim was well within the knowledge of the plaintiff i.e., when the suit was instituted or prior to the commencement of trial. No claim to pass decree with regard to arrears of rent was prayed. The amendment proposed is not relevant to decide the lis, now surviving in O.S. No. 8217/2009. In the circumstances, the decision of the Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another, AIR 2009 SC 1433 : (2009) 1 JT 302 : (2009) 154 PLR 490 : (2009) 1 SCALE 202 : (2009) 2 SCC 409 : (2009) 12 Vat Reporter 2524 : (2009) AIRSCW 899 : (2009) 1 Supreme 238 , squarely applies. Consequently the Trial Court is justified in dismissing I.A. No. 6 vide order dated 26/10/2013 as at Annexure-F. The impugned order, in the facts and circumstances of the case, is neither perverse nor illegal to interfere in exercise of power under Article 227 of the Constitution of India.

In the result, petition being devoid of merit is dismissed.

However, learned Trial Judge is directed to decide the suit with regard to the claim for payment of damages at the rate of Rs. 2,000/- per day for the alleged unauthorized occupation of the suit premises, after expiry of the period indicated in the termination notice dated 2/9/2009, with expedition and within a period of three months from the next hearing date of the suit. Needless to observe that the defence of the defendant to the said claim remains intact.