LADIES TOUCH A PROPRIETORY CONCERN REP. BY ITS PROPRIETRIX, SHAMA AREZOUMAND (SIDDIQUI) W/O GHASEM AREZOUMAND Vs. SAFINA HOTEL LTD. A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, 1956 REP. BY ITS MANAGING DIRECTOR, HAJI ABDUL SATTAR SAIT

JUDGEMENT

(1.) IN this writ petition, petitioner is challenging the order dated 10.03.2010 passed by the learned Addl. City Civil Judge, Bangalore City, rejecting the applications filed under Order XVIII Rule 7 CPC and under Section 151 CPC, praying to re open the trial and recall PW -1 for further cross -examination.

(2.) PETITIONER herein is the defendant before the Trial Court. The suit is filed by the plaintiff -respondent seeking mandatory injunction for ejectment of the defendant on the ground that the defendant was inducted into the suit schedule premises as a licensee. The evidence of the parties was completed and the matter was posted for arguments. At that stage, on an earlier occasion an application was made for recalling PW -1 for cross - examination. An application was also filed under Order XI Rule 14 seeking a direction to the plaintiff to produce the sanctioned plan of the schedule property. The said application was allowed or. 21.06.2008. The plaintiff, pursuant to the direction issued, produced the xerox copy of the plan and thereafter PW -1 was cross -examined. However, PW -1 was discharged on a subsequent date. But, on an application filed by the defendant, PW -1 was again recalled for further cross -examination. It is thereafter that the matter was taken up for hearing on the main matter and the argument of the plaintiff was heard. When the defendant was to argue the matter, the present application is filed seeking to recall PW -1 for further cross -examination with regard to the sanctioned plan and also regarding the measurement of the suit schedule property.

(3.) LEARNED Counsel for the petitioner Sri Shekhar Shetty contends that in the light of the defence taken by the petitioner in the written statement at paragraph 4A that the schedule property measures less than 14 sq. mtrs. and the monthly rental is Rs. 2.000/ - and hence the provisions of the Karnataka Rent Act, 1999 are applicable and the Civil Court had no jurisdiction to entertain the suit, it was necessary for the defendant to further cross -examine PW -1 with reference to the measurement of the sanctioned plan and therefore, the court below was not right and justified in rejecting the application. He points out that the question whether the defendant is occupying the premises as a licensee or lessee is not the sole question and the maintainability of the suit in case it is held that the petitioner is not occupying the premises as a licensee assumes significance for several other factors.