CIVIL CASE REPORT

Before the Hon’ble court of

THE SMALL CAUSES JUDGE at BANGALORE

O.S. No. 242/ 2017

Between:
Mr SRINIVAS D KABADI,
Aged about 45 years,
S/o Dr Dwarakanath H. Kabadi
Resident of no 80, 1-main,
5th cross, R M.V. 2 stage,
Bangalore-560094…………………………………………………………………. PLAINTIFF

And:

Mr. RAICHAND SETHIA

Aged about 55 years,
S/o Mr. Dhanchand Sethia
Shop #36, A.S. Char Street,
Chickpet, Bangalore-560053.

C/o. Sethia Creations Pvt Ltd.,

No.242-243, 3nt Floor, M.P. Plaza, O.T. Pet
Bangalore-560 053………………………………………………………………. DEFENDANT

Facts in Brief:
The Plaintiff and the defendant, are both the residents of Bangalore. The dispute in this case is
regarding a said property that has been in possession of the defendant as a tenant since 1999. The
said property was then owned by the father of the plaintiff, who was also the karta of an HUF.
The ownership of the scheduled property has later in 2016 said to be changed through partition.
The plaintiff, being one of the coparceners claims to be the owner of the scheduled property, post
partition. The plaintiff also, unsatisfied by the tenancy, complained of irregular payments and
uncooperative behaviour of the defendant to him. Which later led the plaintiff to serve a legal
notice to evacuate the premises. Non-compliance by the defendant to adhere to the demands
raised by the plaintiff in the legal notice provoked the plaintiff to initiate legal proceedings.
Hence, the suit.
The plaintiff in the suit pleads for ejection, evacuation and payments of mense profit and other
damages by the defendant. On the other hand, the defendant dismisses most of the claims of the
plaintiff, and counter claims to dismiss the suit on the grounds of it being false and frivolous.
Though the suit stood accepted under the jurisdiction of the Hon’ble Court of The Small Causes
Judges, Bangalore, the defendant continues to have other claims, alleging the plaintiff to not be
the right owner and also claims there to be mis-joinder/non-joinder of parties to the suit. Past a
lot of stages, the suit is currently at the stage of cross-examination to assess the measurement of
the schedule property.

DATE Stages COURT OBSERVATION/ORDERS

29/11/2016 Issued legal notice
04/02/2017 Filed plaint
13-02-2017 Issue of Summons Court Issued Summons to the Defendant
Summons not Matter Adjourned
14-03-2017
served
Counsel files vakalath for defendant. For WS of
05-04-2017 Summons served
defendant. 
Defendant filed IA u/s 148 of CPC praying to extend time
21-04-2017 Summons served
to file WS. Heard, satisfied. IA is allowed. 
Defendant pray time for WS, but no sufficient reason
12-06-2017 Evidence
given. Hence, WS of defendant taken as not filed.
Defendant filed IA u/s 151 of CPC praying to permit him
to file WS by recalling the order. Plaintiff orally objected.
19-07-2017 Evidence
Heard, IA is allowed on cost of Rs.200/-. WS of defendant
taken on record.
The witness in this examination was the plaintiff (PW1)
produced the following documents: Certified copy of
22-08-2017 Evidence partition deed, Uttara Patra, Khatha Certificate, Khatha
Extract, Lease agreement, Copy of legal notice, Postal
receipts and acknowledgements.
Further examination of produced documents by the
02-11-2017 Evidence
plaintiff, i.e. Attornment Letter and Tax Receipts.
14-12-2017 Evidence Cross Examination of PW1.
Defendant filed IA u/s 33 and 35 of Karnataka Stamp
08-01-2018 Hearing
Act.
14-02-2018 Hearing Plaintiff filed objection to I.A. Heard, plaintiff of I.A.
Counsel for defendant submitted that they do not press
17-02-2018 Summons on I.A. filed U/o.33 and 35 of Stamp Act, and submitted
that defendant file one more application. Heard both
 parties, perusal of order sheet, present application came
to be filed on 08.01.2018 and for adjournments has been
given to permit I.A. Now heard counsel for defendant
submit that he has not press on said I.A. Having regard
to the material of adjournments submitted granted in
their regard. The I.A. filed U/s.33 and 35 of Karnataka
Stamp Act stands withdraw on cost of Rs.250/-.
Defendant prays time. 
Defendant filed I.A. U/Sec.33 and 35 of Karnataka Stamp
24-02-2018 Summons Act, 1957 r/w Order 8 Rule 8 of CPC to imposed loan
agreement dtd.04.08.2017. For objection to I.A.
Plaintiff filed objection to I.A. U/Sec. and 35 of Stamp
15-03-2018 Summons
Act. To hear on I.A.
Both parties pray time. To hear on I.A. and for
04-04-2018 Hearing
settlement.
Defendant filed I.A. U/o.17 Rule 1 r/w. Sec.151 of CPC
26-04-2018 Hearing seeking adjournment. Heard, satisfied. For settlement or
to Arguments on I.A.
Heard both parties. For order on I.A. U/Sec.33, 35 of
Karnataka Stamp Act. Interim Application filed by
defendant U/Sec.33 and 35 of Karnataka Stamp Act 1957
20-06-2018 Orders
r/w. Order 13 Rule 8 of CPC is hereby rejected with cost
of Rs.350/- to be paid to the plaintiff. Call on for cross
examination of PW1 by 17.07.2018.
CRP NO.363/2018 filed before Hon’ble High Court.
Defendant filed I.A. U/o.17 Rule 1 of CPC praying to
grant adjournment. Heard both parties I.A. is allowed on
10-08-2018 Evidence
cost of Rs.200/-. Since there is no stay granted by Hon’ble
Appellate court, defendant is directed to cross examine
PW1 on next date. Call on for cross examination of PW1.
PW1 is present. Defendant prays time, but no sufficient
reasons given. Hence cross examination of PW1 taken as
06-09-2018 Evidence
nil. Plaintiff submitted his side evidence as closed. For
D/E.
Defendant files I.A. U/o.11 Rule 14 r/w Sec.151 of CPC.
25-09-2018 Evidence
For objection to I.A.
Plaintiff files objection to I.A. To hear both parties on
03-10-2018 Evidence
I.A. U/o.11 Rule 14 of CPC.
Heard both parties on IA for order. I.A. filed by
22-11-2018 Orders defendant U/o.11 Rule 14 r/w. Sec.151 of CPC is hereby
rejected with costs. For defendant evidence, call finally.
Defendant filed memo stating that he has filed CRP
03-12-2018 Evidence before Hon’ble High Court of Karnataka on 28.11.2018
an order passed on I.A. dtd.,28.11.2018. For defendant
 evidence is adjourned on cost of Rs.200/-, call finally.
Defendant files I.A. U/o.17 Rule 1 and 2 of CPC seeking
13-12-2018 Evidence adjournment. Heard, perused, satisfied. I.A. is allowed on
cost of Rs.200/-.
Counsel for defendant prays time for evidence, but not
21-12-2018 Arguments sufficient reasons given. Hence defendant evidence as nil.
For Arguments.
Defendant files I.A. U/Sec.151 of CPC and I.A. U/o.18
Rule 17 of CPC praying to permit him to cross examine
07-01-2019 Arguments
PW1 and for defence evidence. Plaintiff prays time for
objection. For objection to I.A.
Plaintiff orally objected to the application. Heard,
perused. Taking in to consideration application,
objection and materials on record. I.A. is allowed on cost
09-01-2019 Evidence
of Rs.400/-. PW1 is present. Both parties pray time for
settlement. Call on for settlement or for cross
examination of PW1.
Both parties pray time for settlement. Call on for
21-01-2019 Settlement
settlement.
Settlement not arrived. PW1 is present. Defendant prays
04-02-2019 Evidence time for cross examination. For further cross
examination of PW1, call finally.
Plaintiff files objection to I.A. Defendant prays time for
19-02-2019 Evidence
Arguments on I.A. To hear on I.A. U/o.6 Rule 17 of CPC.
Heard Arguments of both parties on I.A. U/o.6 Rule 17 of
CPC. For orders on I.A. U/o.6 Rule 17 of CPC. I.A. filed
by the defendant U/o.6 Rule 17 r/w. Sec.151 of CPC is
23-02-2019 Orders
hereby rejected with compensatory cost of Rs.10,000/-
(Ten thousand only). / For cross examination of PW1,
call.
Defendant and counsel for defendant called out absent.
11-06-2019 Arguments Defendant had not complied the payment for cash. hence,
defendant evidence taken as nil.
IA filed U/sec.151 of CPC and U/o XVIII rule 17 of CPC
by defendant counsel. Seeking for reopen the case and
recall Pw-1 for further cross examination. However,
12-06-2019 Hearing plaintiff and counsel for plaintiff absent. Hence, call for
objection if any by Later plaintiff is present and counsel
submitted no objection. However, counsel for defendant
submitted CRP is pending.
Plaintiff counsel submitted PW1 present. Counsel for
defendant seeks time submitting many matters before the
20-06-2019 Evidence
High Court posted. However, it is opposed for plaintiff
counsel stating that they are not cross examining PW1
 since 2017 and matter has posted for Arguments.
However, counsel for plaintiff objected to post the matter
on 29.07.2019. Hence I.A. is allowed on cost of Rs.500/-.
Call on for cross of PW1 finally.
Arguments on merits. I.A. U/O.18 Rule 17 filed by
defendant and plaintiff counsel submits no objection.
05-07-2019 Evidence Hence I.A. U/o.18 Rule 17 of CPC is hereby allowed.
PW1 present and cross examined partly. Further cross of
PW1 by 15.07.2019.
There is no ground to adjourn further. Hence prayer of
counsel for defendant is rejected. Further cross
06-08-2019 Arguments
examination is taken as nil. Call for Arguments by
19.08.2019.
19-08-2019 Arguments Plaintiff counsel seeks time. Call for Arguments.
Counsel for plaintiff and defendant both absent.  Hence
23-09-2019 Arguments
matter is posted for Arguments as a last chance.
I.A. filed U/O.26 Rule 9 pf CPC by plaintiff counsel.
09-10-2019 Arguments Copy served to defendant. Counsel for defendant seeks
time to file objection. Hence call for objection to I.A.
08-11-2019 Objections Objection to I.A. filed. Counsel for plaintiff seeks time.
Heard Arguments on I.A. by counsel for petitioner.
18-12-2019 Arguments Respondent and counsel for respondent absent. Hence
call for Respondent Arguments
Counsel for respondent present seeking time to Argue
and submitted to file Written Arguments on I.A. Heard
21-12-2019 Hearing
matter stands posted for orders on I.A. filed U/O.26 Rule
9 of CPC.
In this regard the counsel for plaintiff has relied upon
citation reported in AIR 1988 Orissa-248 1wherein the
Hon’ble High Court of Orissa has held that where the
court considers that local investigation is proper and
requisite, it should not be declined. The application filed
22-01-2020 Orders
U/O.26 Rule 9 of CPC is hereby allowed. The
Commissioner shall be appointed for ascertaining the
actual measurement of schedule property. Call for
suggesting the name of neutral person for this cause by
10.02.2020
Plaintiff counsel filed memo stating that Assistant
Executive Engineer to appointed as commissioner.
Counsel for defendant seeks time to file objection to
25-02-2020 Objections
memo. However, defendant has filed I.A. U/P.11 Rule 14
of CPC r/w Sec.151 of CPC. Counsel for plaintiff filed a
memo copy taken by defendant. Defendant seeks time to
1
Mahendra Nalh v. Purnananda, AIR 1988 Orissa 248
 file objection to this memo as well. Therefore, call for
objection to memo and hearing on I.A. and defendant
counsel is also directed to suggest a name as
commissioner by next date
Issue Commissioner warrant to the concerned
02-03-2020 Summons
commissioner.
Both side counsel present, submitted Commissioner
warrant may be issued. Hence office is directed to Issue
02-09-2020 Hearing Commissioner Warrant if amount is deposited. Further it
is directed to issue notice to both sides and executed the
Commissioner warrant.
Court commissioner present, submitted he will file report
at filing counter. Defendant counsel present. Plaintiff
13-11-2020 Objections counsel reported in this early and sought time to file
objection if report is filed. Hence call for objection to
commissioner report.
Plaintiff counsel filed memo stating that they do not have
05-12-2020 Hearing objection to commissioner report. Defendant counsel has
filed objection to C/R. Copy received by plaintiff counsel.
Commissioner present. Examined as CW1. Ex.C1 to C6
12-02-2021 Evidence
marked.
CW1 present. Cross examined fully by defendant
21-08-2021 Arguments
counsel. Plaintiff counsel submitted no cross.
Heard Arguments from plaintiff counsel and defendant
counsel. Hence call for Orders on I.A. by 04.09.2021.
Looking to the nature of work entrusted and the seniority
of the counsel who is appointed as Commissioner the
04-09-2021 Orders
plaintiff is hereby directed to deposit further Rs.10,000/-
as commissioner fee. On deposit by the plaintiff office is
hereby directed to release the amount in favour of the
commissioner.
Memo filed by plaintiff counsel stating that
CRP.363/2018 is allowed. For impounding the
documents. However certified copy of order sheet is not
produced. Counsel for plaintiff submitted that today the
stage is for further cross of PW1, which is not concerned
the CRP. However, it is to be necessary that if documents
29-09-2021 Evidence are impounded that parts should pay duty and penalty
and on that cross examination has to be permitted. Hence
at this stage cross is deferred. Counsel for defendant is
directed to produced certified copy of order and
thereafter to shall calculated duty and penalty if copy
furnished and then the cross examination shall be
continued. Hence call for produce certified copy of order.
 there is no representation from defendant and counsel
for defendant. Hence, I find no grounds to adjourn.
22-10-2021 Arguments
Hence further cross of PW1 taken as nil. Call for
Arguments on main petition by 02.11.2021
It is noticed that the Civil Revision petition preferred by
defendant challenging the order of this court dtd-
08.03.2019 imposing Rs.10,000.00 cost which is CRP
No.269/2018 is dismissed on 16.11.2021. Hence the
defendant shall also pay the cost of Rs.10,000.00 to the
20-11-2021 Orders plaintiff and then he shall proceed to cross-examine
P.W.1. in view of the CRP being dismissed and defendant
is directed to pay the cost, the application filed by
plaintiff under section 35B of CPC dtd-18.09.2021 does
not survive for consideration and hence the same is
dismissed.
As per the orders of Hon’ble High Court of Karnataka in
CRP.No.363/2018, the Hon’ble High Court of Karnataka
has ordered to impound the document, calculate the
deficit stamp duty and to direct the payment be made by
party relying on it. The document involved is Ex.P5, the
rent agreement dt:04.08.2017. The document is written
on stamp paper of 100 rupees. The rent involved is 33,000
per month. The annual rent comes to 3,96,000 rupees. As
per Article 30(a)(i)(a) of Karnataka Stamp Act, if the
lease is for less than 11 months, then the duty payable is
as per Article 12. Article 12 says that if the total amount
exceeds 1,000 rupees, then the stamp duty payable is for
24-01-2022 Hearing
first 1,000 rupees, 5 rupees per every hundred rupees and
exceeding the 1,000 rupees, for every 500 rupees 25
rupees. In this case the lease is for 11 months and it is this
provision which is applicable. So, considering the annual
rent i.e. 3,96,000 rupees. So, the duty comes to 19,800
rupees. The penalty of 10 times comes to 1,98,000 rupees.
Therefore, the duty and penalty together come to
2,17,800 rupees. Hence, acting U/Sec.33 of Karnataka
Stamp Act the document Ex.P5 is impounded. The
plaintiff is directed to pay the deficit stamp duty and
penalty. In view of SOP issued by Hon’ble High Court of
Karnataka dtd.,14.01.2022, the matter is adjourned.

YOUR OBSERVATION IN THIS CASE-

Number of Issues framed (observation of the court only in decided cases)

 1. Whether the plaintiff makes out grounds to all the application filed under Order 26
Rule 9 of CPC? - Affirmative.
2. Whether defendant makes out grounds to allow the applications filed U/Sec. 151 of
CPC and U/Order 18 Rule 17 of CPC to recall P.W.1 for cross-examination?
- Affirmative
3. What Order? - As per final order.

Applicable Statutes in the Case and the respective provisions.

1. Order 26 Rule 9 of Civil Procedure Code, 1908.
2. Order 18 Rule 17 of Civil Procedure Code, 1908.
3. Section 151 of Civil Procedure Code, 1908.

I undertake that the matter and the stages in the matter has been observed by me carefully and I
have understood the procedure in the mentioned case.

Date of submission: 05th Feb 2022

Name of the Student: Palak

Sem: 10th

Division: C

PRN: 17010324032

Place: Bangalore