Rathnakar Putran vs R.L. D''Souza and Others

Budihal R.B., J.—1. Heard the arguments of learned counsel appearing for the writ petitioner-defendant and also learned counsel appearing for respondents- plaintiffs.

The writ petition is filed by the defendant-writ petitioner requesting this Court to set aside the order dated 04.08.2015 passed in Misc. Case No. 34/2015 on the file of Principal District Judge, Dakshina Kannada, Mangaluru and consequently to allow the petition in Misc. Case No. 34/2015 which order is produced as per Annexure-A.

Learned counsel appearing for the writ petitioner-defendant during the course of his arguments made the submission that there was a lease agreement between petitioner and defendants in respect of petition premises. It is also the contention of learned counsel that as per the terms and conditions of the lease deed, the writ petitioner was having option in renewal of the said lease. It is also his submission that however, the respondent filed the suit in O.S. No. 239/2014 seeking possession of the suit property from the writ petitioner-defendant. Prior to the suit, there was a quit notice which was properly replied by the writ petitioner.

It is also his contention that subsequently, he filed the written statement in the said suit taking the contention about the renewal clause in his favour. So also writ petitioner also filed another suit subsequently in O.S. No. 22/2015 for the enforcement of the renewal clause in the said lease deed and also for setting aside the quit notice issued by the respondent-plaintiff. Learned counsel submitted that subsequently writ petitioner-defendant filed the application under Section 24 of C.P.C. seeking transfer and requested the Court that both suits be tried by one Court in order to conflicting decision in the matter. He also made the submission that both the suits are in between the same parties in respect of suit premises hence, it is his contention that to do justice to the parties it was necessary for the said Court to allow the transfer petition and made over both the suits to one Court. Learned counsel submitted that the said Court wrongly rejected the application. Hence, it is his contention that the writ petitioner is having case in his favour. Hence, it is submitted that the writ petition be allowed, the order be set aside and the application filed by the writ petitioner be allowed by transferring both the suits to one Court as requested in the application. In support of his contention, learned counsel appearing for the writ petitioner-defendant relied upon the decision of Hon''ble Supreme Court in the case of M/s. Gupte Cardiac Care Centre and Hospital reported in , AIR 2004 SC 1687 and draw the attention of this Court relevant paragraph No. 9, which reads as under:

"9. On the facts averred in the two plaints filed by the two parties before two different Courts, it is clear that the parties are substantially the same. Jaypee Rewa have alleged and Willard India or Chitivalasa Jute Mills do not deny that Chitivalasa Jute Mills is nothing but a Division of Willard India Limited. The fact remains that the cause of action alleged in the two plaints refers to the same period and the same transactions, i.e., the supply of jute bags between the period 7-1-1992 and 31-12-1993. What is the cause of action alleged by one party as foundation for the relief prayed for and the decree sought for in one case is the ground of defence in the other case. The issues arising for decision would be substantially common. Almost the same set of oral and documentary evidence would be needed to be adduced for the purpose of determining the issues of facts and law arising for decision in the two suits before two different Courts. Thus, there will be duplication of recording of evidence, if separate trials are held. The two Courts would be writing two judgments. The possibility that the two Courts may record finding inconsistent with each other and conflicting decrees may come to be passed cannot be ruled out."

He also relied upon another decision of Hon''ble Supreme Court in the case of M/s. Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care Pvt. Ltd., reported in , AIR 2004 SC 2339 and draws the attention of this Court relevant paragraph No. 4, which reads as under:

"4. It has not been disputed at the Bar that the two suits arise out of the same transaction. Cause of action of one party arrayed as plaintiff would be its defence in the suit where it is arrayed as defendant. Though there are two plaintiffs and two defendants in the suit at Nashik while there is only one plaintiff and one defendant in the suit at Delhi but there is substantial identity of the parties in the two suits. The issues arising for decision would necessarily be the same. Only one of the two suits can be decreed. The decree in one suit in favour of the plaintiff in that suit would entail the dismissal of the other suit. It cannot, therefore, be denied that the two suits deserve to be heard and tried in one Court. That would avoid the possibility of any conflicting decrees coming into existence. And certainly the duplication of evidence, oral and documentary both, would be avoided. The parties and the Courts would save their time and energy which would needlessly be wasted twice over."

Per contra, learned counsel appearing for the respondents-plaintiffs during the course of his argument made the submission that so far as the contention of other side that there was a renewal clause in favour of the writ petitioner-defendant for getting the lease renewed in his favour is not correct but on the contrary, the said clause is for the option of the lessor himself whether to renew or not to renew further lease after expiry of the original period. Learned counsel also made the submission that before filing the suit, he has signed the quit notice to the defendants and subsequently the suit was filed on 26.02.2014 seeking possession of the schedule premises. Learned counsel further made the submission that the conduct of the writ petitioner-defendant is most important in this case to come to a conclusion whether he has filed the said application with bonafide intention or malafide intention to drag on the proceedings. He submitted that on 11.02.2014, the written statement has not filed. However, by seeking permission of the Court subsequently the writ petitioner-defendant filed the written statement on 06.01.2015 i.e. after one year. Counsel submitted that the issues were framed in the suit and the plaintiffs'' evidence was recorded. Subsequently the matter was posted for recording the evidence on 16.04.2015 and 22.04.2015. Even then, the defendant was not ready to lead his evidence but there afterwards the defendant-writ petitioner come up with subsequent suit in O.S. No. 22/2015. Hence, learned counsel submitted that looking to the conduct of the defendant-writ petitioner throughout the proceedings in the earlier suit filed by the respondent-plaintiff which clearly goes to show that with malafide intention to drag on the proceedings he has filed the application. Counsel also submitted that earlier also he has filed the application seeking stay of the suit filed by the respondents-plaintiffs and later come up for the present application. Hence, counsel submitted that in view of the conduct of the writ petitioner-defendant, it is very clear that the learned counsel relied upon the decision reported in , 1996 AIHC 1317 in the case of Smt. Saraswati Bai V. Acharya Ved Bhushan and draw the attention of this Court to paragraph No. 12 of the said judgment, which reads as under:

"12. The entire background discloses that the intention of the petitioner is to delay the matter as long as possible. The modus operandi adopted by the petitioner is sufficient to hold that the petitioner has not approached the Court with clean hands. The petitioner has taken the Courts for a ride and designed to achieve her objective of getting the case transferred from that Court to another Court without there being any substance in her request for transfer. Therefore, in my view, this is a fit case where the Courts shall not entertain and encourage this type of malicious application seeking transfer of a particular case from one Court to another Court."

Hence, he submitted that there is no merits in the writ petition. The trial Court has exercised his judicious manner and ultimately rejected the said application. Learned counsel for the respondent-plaintiff also relied upon the decision of Hon''ble Supreme Court in the case of Sadhana Lodh V. National Insurance Co. Ltd., and Another reported in , 2003 (3) SCC 524 and draw the attention to paragraph No. 7 of the said judgment, which reads as under:

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising and supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."

Hence, he submitted that there are no grounds made by the writ petitioner to interfere into the discretionary order passed by the trial Court. Hence, submitted to reject the writ petition.

I have perused the grounds urged in the writ petition and order passed by the Court below on the transfer application filed under Section 24 of C.P.C. so also, perused the contention of the parties before the trial Court and the impugned order passed by the trial Court.

Looking to the reasons adopted by the trial Court, the trial Court in detail narrated the events that took place in the said suit chronologically and ultimately, the trial Court held that looking to the conduct of the petitioner in the said transfer petition it clearly goes to show that he has not approached the Court with clean hands and the application was filed mainly with an intention to drag on the proceedings.

Looking to the chain of events that have been taken place so also, the dates which are material after appearance in the said suit till the date of filing of this transfer petition, they clearly goes to show that the observations made by the trial Court in its order that it is not bonafide exercise on the part of the petitioner is supported by the materials. Therefore, the decisions relied upon by the learned counsel in the writ petition which are referred above and the principles enunciated in the said decisions will not come to the aid and assistance of the writ petitioner in view of his conduct which is prima-facie goes to show that there was only with an intention to drag on the proceedings as far as possible. If really it was the bonafide intention, the same could have been filed after receiving quit notice or immediately after receiving the suit summons in the suit filed by the respondent-plaintiff.

Considering the factual aspects of the matter and looking to the scope while exercising the powers under Articles 227 of the Constitution, unless there is any illegality in the order of the trial Court, this Court will not interfere in the said order. The same is hereby rejected.