Sri Manjunath Moolya vs St. Antony''s Charity Institutes

A.N. Venugopala Gowda, J.—Respondent is the plaintiff and the petitioner is the 4th defendant in O.S.No. 385/2004 pending on the file of Civil Judge, Mangalore, D.K. Suit was instituted on 23.07.2004 to pass a decree directing the defendants to deliver vacant possession of the plaint schedule premises and for grant of consequential relief''s. Suit has been contested by filing written statement. Six issues having been framed, subsequently, on 03.07.2008, four additional issues were raised. Parties have adduced evidence. The petitioner/4th defendant filed I.A.21 on 02.07.2012 under S. 151 of CPC read with S. 2(3)(ii) of Karnataka Rent Act, 1999, to refer the matter for decision of the Divisional Commissioner, to consider whether the plaintiff - institution is a charitable institution or not. The said application having been dismissed by the learned Trial Judge on 18.07.2012, this writ petition has been filed. Sri Y. Rajendra. Prasad Shetty, learned advocate appearing for the petitioner contended that the impugned order is irrational and illegal. He submitted that the contention of the petitioner being that the plaintiff is not a charitable institution and the provisions of the Rent Act is not applicable, it is necessary for the Trial Court to make a reference to the Divisional Commissioner to submit a finding with regard to the status of the plaintiff-institution, i.e., whether it is a charitable institution or not. Learned counsel submitted that the learned Trial Judge has not considered I.A.21 in the correct perspective and hence, the impugned order warrants interference.

Sri Cyril Prasad Pais, learned advocate appearing for the respondent, on the other hand supported the view taken on I.A.21 by the Trial Court.

The suit has been filed for recovery of vacant possession of the plaint schedule premises. An application filed by defendant No. 4 to appoint a Court Commissioner to measure the plinth area was rejected on 26.06.2012. W.P. No. 23621/2012 filed against the said order was dismissed by an order dated 05.03.2013. Second additional issue raised on 03.07.2008 is with regard to the status of the plaintiff. Burden of proof in that regard has been placed on the plaintiff. If the plaintiff fails to establish its case and prove the issues, the burden of which has been casted on it, the suit will have to be necessarily dismissed. The Divisional Commissioner has not been conferred with any power to adjudicate and decide the status of the respondent-institution. The Trial Court can certainly record a finding whether the plaintiff before it is a charitable institution or not and whether the 4th defendant is a protected tenant under the provisions of the Rent Act. In the said view of the matter, I.A.21 filed being devoid of merit has rightly been rejected.

There is no merit in this petition and hence is dismissed. However, the Trial Court is directed to decide the suit in accordance with law, uninfluenced by the view which it has taken on I.A.21, expeditiously and within four months from the next hearing date of the suit.

No costs.