Fixopan Management Pvt. Ltd. and ors. Vs. the New India Assurances Company Ltd. - Court Judgment

Excerpt:
[ a.n. venugopala gowda j.] these writ petitions are filed under articles 226 and 227 of constitution of india, praying to quash the impugned order dated 18.10.2010 passed on i.a.nos. 9 to 11 in o.s.no.2847/2006 on the file of the city civil judge, bangalore vide annexure - f. these petitions coming on for preliminary hearing in 'b' group this day, the court made the followingthe court: in this application under chapter xiiia of the rules on the original side of this court, the plaintiff seeks a decree for eviction. the plaintiffs case is that one guha trust estate was the erstwhile owner of the property in question at ganesh chandra avenue which was subsequently sold to one mangal finance limited and mangal finance limited, in turn, sold the property in or about the last week of may, 1996 to the three plaintiffs. the plaintiffs claim to be companies under a common management and equally entitled to the premises. the plaintiffs rely on an unregistered deed of lease executed in the year 1991 between guha trust estate and the defendant. the tenure under the unregistered document was to be with effect from the year 1985 and the lessor apparently granted a lease with effect from 1985 for a period of 21 years in respect of the immovable property under the occupation of the defendant. the case made out in the plaint is that the period of the lease expired by efflux of time in december, 2006 and the defendant has remained in wrongful use and occupation of the premises thereafter. no other case has been made out in the plaint. it is averred on behalf of the defendant in the affidavit filed to the chapter xiiia application that the plaintiffs title is in question. the defendant says that the plaintiffs have not produced any document of title relating to the premises and notwithstanding the alleged adornment of the tenancy in favor of the plaintiffs and the defendant tendering rent for a substantial period of time to the plaintiffs, unless the plaintiffs establish their title in respect of the property in question, they would not be entitled to maintain the suit. in any event, it is contended on behalf of the defendant that at least a triable issue is raised that would entitle the defendant to carry the defense to the trial. the other, and more important, ground that is raised is under section 107 of the transfer of property act. the defendant says that the document executed in 1991 with effect from 1985 is an unregistered document and cannot be looked into. the defendant says that there is a monthly tenancy which has been created between the owners of the premises in question and the defendant. the defendant asserts that the plaintiffs cannot rely on the unregistered document of 1991 in support of its case that the lease has expired by efflux of time. substantial questions arise which would be required to be assessed at a more perpetrated trial than is possible by way of affidavit evidence. the defendant has raised friable issues both as to the plaintiffs title, notwithstanding section 116 of the evidence act, and the right of the plaintiff to proceed on the basis of the unregistered document of 1991 for seeking eviction of the defendant upon expiry of the tenure reserved there under. in proceedings under chapter xiiia of the rules on the original side of this court, the defendant does not have to make out a full-proof defence nor does the defendant have to establish the likelihood of the defense succeeding at the trial. all that is required of the defendant to resist the decree that is sought in summary proceedings is to show an arguable case that could be carried to trial. the defendant has succeeded in presenting an arguable case. g.a.no.1344 of 2008 is dismissed. there will be no order as to costs. the defendant will have leave to file its written statement by september 30, 2010, subject to payment of costs assessed at 300 gm to the plaintiff. in default of the written statement being filed within such time, the plaintiff will be entitled to proceed as in an undefended suit. if the written statement is filed within the time permitted, documents should be discovered within ten weeks after the reopening following the puja vacation; inspection forthwith thereupon and the plaintiff will have liberty to seek an early listing of the suit six months hence. urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.

Judgment:
The Court: In this application under Chapter XIIIA of the Rules on the Original Side of this Court, the plaintiff seeks a decree for eviction.

The plaintiffs case is that one Guha Trust Estate was the erstwhile owner of the property in question at Ganesh Chandra Avenue which was subsequently sold to one Mangal Finance Limited and Mangal Finance Limited, in turn, sold the property in or about the last week of May, 1996 to the three plaintiffs. The plaintiffs claim to be companies under a common management and equally entitled to the premises.

The plaintiffs rely on an unregistered deed of lease executed in the year 1991 between Guha Trust Estate and the defendant. The tenure under the unregistered document was to be with effect from the year 1985 and the lessor apparently granted a lease with effect from 1985 for a period of 21 years in respect of the immovable property under the occupation of the defendant. The case made out in the plaint is that the period of the lease expired by efflux of time in December, 2006 and the defendant has remained in wrongful use and occupation of the premises thereafter.

No other case has been made out in the plaint. It is averred on behalf of the defendant in the affidavit filed to the Chapter XIIIA application that the plaintiffs title is in question. The defendant says that the plaintiffs have not produced any document of title relating to the premises and notwithstanding the alleged adornment of the tenancy in favor of the plaintiffs and the defendant tendering rent for a substantial period of time to the plaintiffs, unless the plaintiffs establish their title in respect of the property in question, they would not be entitled to maintain the suit. In any event, it is contended on behalf of the defendant that at least a triable issue is raised that would entitle the defendant to carry the defense to the trial.

The other, and more important, ground that is raised is under Section 107 of the Transfer of Property Act. The defendant says that the document executed in 1991 with effect from 1985 is an unregistered document and cannot be looked into. The defendant says that there is a monthly tenancy which has been created between the owners of the premises in question and the defendant.

The defendant asserts that the plaintiffs cannot rely on the unregistered document of 1991 in support of its case that the lease has expired by efflux of time. Substantial questions arise which would be required to be assessed at a more perpetrated trial than is possible by way of affidavit evidence.

The defendant has raised friable issues both as to the plaintiffs title, notwithstanding Section 116 of the Evidence Act, and the right of the plaintiff to proceed on the basis of the unregistered document of 1991 for seeking eviction of the defendant upon expiry of the tenure reserved there under. In proceedings under Chapter XIIIA of the Rules on the Original Side of this Court, the defendant does not have to make out a full-proof defence nor does the defendant have to establish the likelihood of the defense succeeding at the trial.

All that is required of the defendant to resist the decree that is sought in summary proceedings is to show an arguable case that could be carried to trial. The defendant has succeeded in presenting an arguable case. G.A.No.1344 of 2008 is dismissed. There will be no order as to costs.

The defendant will have leave to file its written statement by September 30, 2010, subject to payment of costs assessed at 300 GM to the plaintiff. In default of the written statement being filed within such time, the plaintiff will be entitled to proceed as in an undefended suit.

If the written statement is filed within the time permitted, documents should be discovered within ten weeks after the reopening following the puja vacation; inspection forthwith thereupon and the plaintiff will have liberty to seek an early listing of the suit six months hence.

Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.