TOWN MUN COUNCIL HARIHAR Vs. MURKAL MAHALINGAPPA

JUDGEMENT

(1.) The appellant is the plaintiff the Town Municipal Council, Harihar. The respondent is the first defendant. The suit was filed for the recovery of Rs. 15,000 from the defendants who were three in number. The case of the plaintiff is that the building known as " Bharat Oil Mills Expeller Hall' situated in Harihar Town belonging to the Plaintiff-Municipal Council had beien taken on lease by the first defendant on 22-6-1961 for a period of one year agreeing to pay a rent of Rs.440 per month for running cinema shows in that building, that defendants 2 and 3 wena the sureties for the due performance of the tierms of the leapa by AIR. 1965 AP. 80.first defendant, that due to the default committed by the 1st defendant in the payment of rents, a deptraint warrant was issued, that the moveable prqperties belonging to the first defendant wexe attached and that they were also sold. A sum of Rs. 4963-40 had been paid by the first defendant in instalments towards the arrears of rent. By the sale of the movsable properties a sum of Rs.2605 had been realised and the same has been adjusted towards the arrears of rent. A sum of Rs.7568-40 was thus realised towards the arrears of rent upto 17-9-62. The first defendant was evicted by resort to HRC proceedings on 12-3-1966. A sum of Rs. 15,400 was alleged to be due towards the arrears of rent for the period from April 1963 to the end of March 1966, and giving up the claim for the period for which there was bar of limitation, the suit claim was confined to Rs. 15,000.

(2.) The first defendant admitted that he had taken the suit premises on lease at the rate of Rs.440 per month. He pleaded that the plaintiff forcibly removed the machinery and other articles installed in the suit premises by the first defendant even before the arrears accrued according to the terms of the lease and sold the same without resorting to the procedure prescribed under the law and without giving proper publicity to persons intending to bid at the auction. He also pleaded that goods worth more than Rs. 15,000 were sold for a paltry sum and the plaintiff is therefore accountable for the price of the goods illegally seized by the plaintiff. He also pleaded that if a proper account is taken, it will be found that the defendant is no,t liable to pay any sum to the plaintiff. He further pleaded that the action of the plaintiff in seizing the machinery prevented the first defendant from running his cinema business which resulted in loss to the first defendant and that the total loss incurred by the first defendant due to the illegal action of the plaintiff amounts to Rs.40,000. But this plea does not appear to have been pursued by the first defendant and is not material for the purposes of this appeal.

(3.) The trial Court decreed the suit against the first defendant for Rs. 13,416. It absolved defendants 2 and 3 of their liability. The first defendant appealed. In the lower appellate Court, I.A.-VII was filed by the first defendant under Or. 14, R.5 CPC. That application was allowed. Tow additional issues were raised and the trial Court was directed to record evidence on the said issues, to record a finding thereon and to submit the same to the lower appellate Court, The two issues relted to the total value of the moveables of the first defendant which were got attached by the plaintiff and got sold by it, and the question whether the total value of the same amounted to Rs. 15,000 as pleaded by the first defendant. The trial Court recorded its finding to the effect that the total value of the articles seized and sold was Rs.6070 and not Rs. 15,000 as stated by the first defendant in his written statement. Thereafter hearing the parties, the lower appellate Court came to the conclusion that the value of the moveables attached and sold was Rs. 12,200. Taking into consideration the advance which had been paid by the first defendant, i.e. Rs.l320, and the admitted amount which had already been received by the plaintiff towards the arrears of rent, namely, Rs. 4083-40, it came to the conclusion that the total amount which roust be, deemed to have been paid by the first defendant to the plaintiff-Municipal Council exceeded the amount claimed by the plaintiff. Accordingly, it reversed the decree of the trial Court and dismissed the suit.