A.M.J. DAYALRAJ Vs. PARISH PRIEST

JUDGEMENT

(1.) The appellant/defendant in SC.No.15681/2011 on the file of the XVII Additional Judge, Court of Small Causes, Mayohall Court, Bangalore is before this Court challenging the order dtd. 24/8/2012 by which Order the trial Court has dismissed the application filed by the defendant under Sec. 340 of Code of Criminal Procedure.

(2.) The substance of the application filed under Sec. 340 of Code of Criminal Procedure which is supported by the affidavit of A.M.J. Dayalraj is that he is the tenant of the suit schedule property on monthly rent of Rs.65.00. He had been regularly paying the rent every month up to October 2010. Thereafter, plaintiff refused to receive the rent from November 2010. But the plaintiff issued a notice dtd. 6/7/2011, falsely alleging arrears of rent. Therefore, he sent a reply notice on 13/7/2011 through his lawyer along with the cheque for Rs.585.00 towards the rent from November 2005 to July 2011. The plaintiff encashed the cheque and also issued a rent receipt for the said payment of rent for the stipulated period. In spite of having received the entire rent, plaintiff, knowingly, made a dishonest and false claim of arrears of rent due in a sum of Rs.5,135.00 for 79 months. Further, it is stated that on 30/7/2011 he has sent a cheque bearing No.686575 for a sum of Rs.585.00 towards the rent from November 2010 to July 2011. The plaintiff encashed the said cheque and issued rent receipt for the same on 12/9/2011. Thereafter, during the pendency of the suit on 2/2/2012 he has paid rent for the month of Augusts 2011 to February 2012 by cheque bearing No.686577 for a sum of Rs.455.00 before this Court. Plaintiff has issued rent receipt for the same but, he is falsely claiming that the rent is not paid. Hence, the plaintiff is dishonestly making false claim of arrears of rent. Further, on 6/7/2012 he has paid rent for the months of March 2012 to July 2012 by cheque bearing No.489323 for a sum of Rs.390.00 drawn on Canara Bank, Cunningham Road Branch, before this Court. There is no arrears of rent whatsoever and the claim is false. The entire rent is paid up-to-date. Plaintiff is guilty of making false claim in his plaint and is giving false evidence in his affidavit that, in spite of receiving the rent up to 20/2/2012, deliberately made false and dishonest claim in the suit. Plaintiff is guilty of perjury and is liable for prosecution under Ss. 193 and 209 of Indian Penal Code. On all these grounds sought to allow the application.

(3.) The plaintiff has filed his written objections contending that the application filed by the defendant under Sec. 340 of Code of Criminal Procedure is liable to be dismissed as it is not maintainable either in law or on facts. In civil proceedings and in summary proceedings, there is no provision to file application under the provisions of Code of Criminal Procedure. On this ground also the application is liable to be dismissed with exemplary costs. Further, it is submitted that defendant has made a false statement in the affidavit attached to the application under Sec. 340 of Cr.P.C. Hence, the application is liable to be dismissed on said count also. Though it is contended that the defendant is due of rents from November 2005 to July 2012 amounting of Rs.5,265.00 for a period of 81 months, whereas, it is admitted that following are the payments made by the defendant: <FRM>JUDGEMENT_35_LAWS(KAR)12_2023_1.html</FRM>