Smt. Swaroopa Charabuddi v. Mr. Medikonda Kiran Peter John

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD FRIDAY, THE TWENTY NINETH DAY OF DECEMBER TWO THOUSAND AND TWENTYTHREE :PRESENT:

THE HONOURABLE SRI JUSTICE T.VINOD KUMAR CIVIL REVISION PETITION NO: 2957 OF 2023 Petition Under Article 227 constitution of lndia aggrieved by the Order dated 11.09.2023 made in l.A. No. 623 of 2O23 in O.S. No. 59 of 2021 on the file of the Court of the Principal District and Sessions Judge Cum-Family Court, Medhchal-Malkajgiri District, At Malkajgiri Between:

Smt. Swaroopa Charabuddi, W/o. Ananda Reddy, Aged about 56 years, Occ. Business, No. 7-134121'l, Sri Krishna Sai Colony, Near Balaji Function Hall, Malkajgiri, Mechal-Malkajgiri District ... Petitioner/Petitioner/Defandant AND

1. Mr. Medikonda Kiran Peter John, S/o. M.Peter John, Aged about 52 years, Occ. Business, NRl, R/o. 40, Back Street, Philipsburg, St.Martin. Presently Rl/o. Plot No. 319, Phase - ll, Saket Colony, Kapra, Medchal-Malkajgiri District.

2. Mrs. Medikonda Glory,, Wo. M. Kiran Peter, Aged about 46 years, Occ. Business, NRl, Rl/o. 40, Back Street, Philipsburg, St.Martin. Presently Rl/o. Plot No. 319, Phase - ll, Saket Colony, Kapra, Medchal-Malkajgiri District. ... Respondents/Respondents/Plaintiffs 1A NO: 'f OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of further proceedings in O.S.No.59 of 2021 on the file of the Court of the Principal District and Sessions Judge-Cum-Family Court, Medhchal-Malkajgiri District, At Malkajgiri.

Counsel for the Petitioner : Sri Srinivasa Rao Putluri Counsel for the Respondents : Sri Bommineni Vivekananda The Court made the following : ORDER

.I'III] HON'BLE SRIJUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No. 2957 of 2023 ORDIiII 1.

'l'his Civil Revision Petition is filed aggrieved by the order datcd I I .09.2023 in I.A.No. 623 of 2023 in O.S.No. 59 of 2021 of the Plincipal District and Sessions Judge - cum - Family Court at Matkaigiri, Medchal-Malkajgiri District, AS being illegal and contraf)r to settled principles of [aw.

2.

Hcald learned counsel lor the petitioner and perused the record 3.

'[hc respondents herein is the plaintiff in the suit filed for eviction and recovery of arrears of rcnts. I-he petitioner herein being thc sole defendant in the suit filed the underlying inte lltrc trror'1, application under section 24 of the Code of Civil Proccdurc, 1908 (for short 'the Code, 1908') seeking to transfer the suit to thc commercial cour1.

4.

'l'lrc 'l'rial Court on hearing the parties dismissed the application on the ground that the said application was filed as an

after-thought after the petitioner's defence was str-ucl< off. Aggrieved by the same the instant revision is preferred. 5.

Learned counsel for the petitioner herein cont.end\ r.har the Court below ought to have allowed the application sincc the disputes in the main suit were essentially commercial irr n:rtrrrc. lt is further contended that since the question of jurisdictro r .tocs to the root of the issue, the fact that the petitioner's t.lclincc r.vas struck olf does not bar the petitioner fron-r raising ths s,1i,,,- pls2_ Alternately, it is contended that striking ofl defcrrcc ir .:a:c of failure to pay rents is not mandatory under the provisions ol'the Rent Contlol Act, therefore, the fact that the petitioncr..r ric li,nce was struck ofT had no relevance to adjudicate an aplrli.,,tr..lt.l to transfer the suit.

6.

I have taken note of the submissions made.

7.

A perusal of the record indicates, that along rvirlr tir.. ntain suit the respondents herein had filed an interlocutory al.ri.rti6ngion numbered as [.A.No. 359 of 2021 undcr Ordcr 15 Rrrlc :. ol'rhc Code, 1908 seeking deposit of monthly rents. The saicl :r1.irtiqn1i6n wa5 allowed vide order dated, 28.12.2021 dirccting thc 1.r.ri116n".

hercin rir clcposit monthly rents from Aprrl,202l to December, 2021 at rhe agreed tariff rate failing which the petitioner's defence would be struck off.

8.

Ilre pctitioner herein aggrieved by the said order had prell'r'r.crl C.R.P.No. 122 of 2022 before this Courr. After hearing the nrattcr on admission this Court vide order dated I1.03.2022 whilu y.r lirting stay ol the impugned order had directed the petilitinrr.hcrein to pay the municipal taxes within four (4) weeks fronr thc date of the order, faiting which the interirn stay would stanci vacatcd. This Court had fufther directed the respondents hercirr ro cooperate with the petitioner to obtain the TIN number and rcncw his license to run the restaurant. By the said order this Court hacl also clarified that the municipal taxes paid by the petitiorcl hcrcin would be adjusted towards arrears of rents 9.

Subsequently, when the matter was taken up on01.04.2022, this ('ourr noted that though the municipal taxes were paid by petitionrl on 20.03.2022, the TIN number could not be issued to the pctit ioner by the said date. Therefore, this Court while extcr)rliii!r the time granted vide ordel dated I1.03.2022 had

imposed a condition that the petitioner herein was ro prrl I,'.1't' of the total rents ordered, to the respondents directly. I lowcr cr . since the petitioner herein had faited to comply with thc abrrvc said conditional order, this Cotrt vide order dated 27.0,.1 ]i),-.-l had vacated the interim stay granted earlier.

10. Thereatier, the petitioner herein on 01.09.10:.1 lllcd a interlocutory application numbered as I.A.No. 1066 ol' l0l-', under Order 7 Rule I I of the Code, 1908 seeking rejection ol pllint. l'he said application rvas dismissed by the Court below v1.1, or (l( '. (lrted 19.01.2023. lt is not shown to this Court that thc pctiti,rr:,:r rrcrcin had initiated any further proceedings as against 11.,. r3i1l or-' lcr I l.

The petitioner's defence was then struck ofl br tltr: ('oLu-t below vide docket order dated 28.03.2023. It is to be ohsclr ctl that the petitioner herein had filed the underlying application sccking transfer ol the main suit on 17.04.2023 i.e., immediatcll :rlit'r' his application for rejection of plaint was dismissed.

12. Further. it is to be seen that the Court belorv had obscrved the petitioncr hcrein had not raised the plea of jurisdictron irr his written statement. Further, the impugned order crrtcr:or-icallv

recolds rhat the said plea was never raised until his defence was strucl( o l'l .

13. It r) pertinent to note the conduct of the petitioner herein in fr.rrlr, .,r'illlully disobeying the conditional order dated 01.04.2022, secot idh , litirrg the application under Order 7 Rule I I of the Code, l90ii on 01.09.2022, after the interim stay granted by this Court in C.R.['.No l22 of 2022 was vacated on 27.04.2022 and finally, in filinL,. the Lrnderlying application seeking transfer of the suit only alicl his :r;rplication for rejection of plaint had tailed. When the abovc conduct is considered in the light of the lact that rhe petitioncl herein had failed to raise the plea of jurisdiction at the verr ilrsL irtstance i.e., at the time of fiting his written statement, it is clcar thut the aforesaid speculative exercise was undertaken only with an irrtention to circumvent the order of the Court below direiiinr: Lhe petitioner to pay rents and to incidentally delay the proccedirrgs in the suit.

14. TIrc Strpreme Court in A. Shanmugam v. Ariya Kshatriyt Ru.jtt 1;tqlt' Vumsathu Madalaya Nandhavana puipalonti

Sangtmt, held that a wrongdoel or a litigant who take s Iris chances cannot be perrnitted to gain undue advantage by usirr-u 1!r, c,. I rrt aS a tool. The relevant observations are as under "338. A wrongdoer or in the prescnt context. a litisant rvho lal<cs his lhc rlrr I r oI ehanccs, cannot bc Dermitted to gain by delarring tacties. I! i! the iudicial svstem lo discourage undue cnrichment or draryin -. nf,'rrrluc advantage. bv usin the court as a tool. [n Kalabharati Advcrttsin-r ' IIlrrt;tttl Vimalnath Narichania [MANU/SC/0674/2010 : (2010) 9 SC(- ,1 i i il tras observed that courts should bc carcful in neutralizinc thc cffccl of conscquential orders oassed Dursuanl to interim ordcrs.

Such dircclir',ns atc neccssar) to check thc rising trend among the litigants to securc rclrcfs as art interinr rneasure and avoid adjudication of the case on rlerits lhrrs ths rcstitutionarl principle recognizcs and gives shape to the idea tlrai a,l'.rlrtrgcs securcd b1 a litigant, on account of ordcrs of court. at his behcs(. sl'r' !,! ,,'1 hc perpetuated; this rvould cncouragc the prolific or serial litigant. l(,,rit,rr:aclr couns time and again and defeat rights of otlrers - including Ull(l!'r r)Irrrll ol' public purposes undcrlying acquisition proceedings. Futlhctntrrri. the restitutionary principle requires that the advantage gained by the litiglrrt <lrotrld be suitabl)' ofIset, rn favour ofthe othet party." (cmP ho.s i t .t r r1'1tl i ul) In light of'the aloresaid discussion, this Court i5 lri il,, i icw 15.

that entertaining the present revision would enable t.hc 1;ctitlr",rrcr to indirectly do what he could not directly achieve. Thus, this ('ourt is of the view that the ordel' o[ the Court below in lc.i{-'r.ii!r] the interlocutoq, application does not call for interference hy tlris (-ourt in exercise of its powers under Afticle 227 of the Cor-rstitution of India.

'(zorz)s scc a:o I

16.

Accordingly, this Civil Revision petition is dismissed. l7 Consequently, miscellaneous petitions pending if any shall stand closcd SD/. T JAYASREE ASSISTANT BEGISTRAR V SECTION OFFICER To,

1. The Prl District and Sessions Judge_cum_Judge, Famity Court, Medchal_ Malkajgiri District, at Malkajgiri.

2. One CC to Sri Srinivasa Rao pufluri, Advocate [OPUC]

3. One CC to Sri Bommineni Vivekananda, Ad;;te fOpUCt

4. Two CD Copies.

YIR N //TRUE COPY// KMS -v

HIGH COURT TVK, J DATED: 2911212023 \ 1YtE STA r4:'

oo ) 21 I'IAH 202{ C) e+ * t O6'SPATCIic0

ORDER

CRP.No.2957 of 2023 DISMISSING OF THE CRP