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2005 DIGILAW 856 (KAR)

S. KRISHANA SWAMY v. VANI PRASANNAKUMAR

2005-12-20

K.BHAKTHAVATSALA

body2005
ORDER The short question that arises for consideration is: Whether there exists landlord and tenant relationship between the petitioner and respondent herein? 2. The brief facts of the case leading to the filing of the revision petition may be stated as under: On 20-6-1993, the respondent deposited a sum of Rs. 1,60,000/- with petitioner's father and occupied the petition schedule premises for three years, as per the agreement for mortgage with possession (in short, 'the agreement') with a condition 'No Interest No Rent' basis. On 30-10-1996, the petitioner's father settled the premises under a registered deed of settlement in favour of the petitioner. Thereafter, the petitioner issued a legal notice to the respondent calling upon him to vacate and deliver vacant possession of the petition schedule premises in favour of the petitioner as the 3 years period expired on 19-6-1996, but in vain. Therefore, the petitioner filed an eviction petition in H.R.C. No. 578 of 2000 against the respondent under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (in short, 'the old Rent Act'). The respondent entered appearance through his Advocate and filed objections contending that the relationship between them is that of debtor and creditor and not landlord and tenant relationship, and the petitioner has no bona fide requirement of the premises. The petitioner got marked Exs. P. 1 to P. 3, during examination-in-chief, and the cross-examination of P.W. 1 was deferred. At this stage, the respondent filed an application under Section 151 of the Code of Civil Procedure contending that the petition is not maintainable as there is no jural relationship of landlord and tenant. The petitioner/landlord filed objections. The learned Trial Judge, after hearing arguments, answered the point in favour of the respondent holding that there is no jural relationship of landlord and tenant between them and therefore dismissed the eviction petition under Section 43 of the Karnataka Rent Act, 1999. This is impugned in this revision petition. 3. The learned Counsel appearing for the petitioner submitted that the impugned order is contrary to the decision of this Court rendered in Ramdhan Puri v Bankey Bihari Saran and Others1 and K Amarnath v Smt. Puttamma2. 4. This is impugned in this revision petition. 3. The learned Counsel appearing for the petitioner submitted that the impugned order is contrary to the decision of this Court rendered in Ramdhan Puri v Bankey Bihari Saran and Others1 and K Amarnath v Smt. Puttamma2. 4. On the other hand, the learned Counsel appearing for the respondent submitted that there is no illegality or infirmity in the impugned order and he has produced xerox copy of the agreement dated 20-6-1993 said to be executed between the petitioner's father/V.T. Srinivas Raghavachar and the respondent herein. 5. I have perused the xerox copy of the agreement made on 10 rupees stamp paper. The respondent has not produced the said agreement before the Trial Court and the same has not been admitted in evidence. The facts of the case on hand are identical to facts of the case in Amarnath, supra. It is held in Amarnath case as under: "24. In this case, the Trial Court, however, proceeded on the basis that irrespective of the fact that the landlord's title was not in dispute and the respondent did not claim ownership to the property and the mortgage claimed by the tenant was proved, and even though landlord clearly stated that respondent was the tenant, it was still necessary for the petitioner to prove by other evidence the existence of relationship of landlord and tenant. It is not possible for the landlord to produce any other evidence. It is for the tenant to prove the contrary, in the factual circumstances. To reiterate, where the petitioner's ownership/title is not disputed by the tenant, and where the respondent admits that he was inducted into the premises by the petitioner or his predecessor-in-title, and where petitioner gives evidence that he is the landlord and the respondent is the tenant, in the absence of any evidence to the contrary by the respondent showing that his/her possession is either as a mortgagee or as a licensee, the landlord's claim that the respondent is in possession as a tenant will have to be accepted by the Court. It, therefore, follows that the Trial Court committed a serious error in holding that the relationship of landlord and tenant is not established". 6. It, therefore, follows that the Trial Court committed a serious error in holding that the relationship of landlord and tenant is not established". 6. According to Section 3(n) of the Karnataka Rent Act "tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be payable. In reality the terms of the agreement are applicable to lease. It is pertinent to mention that merely because an amount is advanced and possession is delivered, the transaction will not become a mortgage, as mortgage contemplates the taking of a loan and delivering possession to secure payment of the loan. In the case on hand, the contention is that the landlord need not pay interest on the advance amount, and the tenant need not pay any rent, that is "No Interest No Rent" basis. His Lordship Sri Justice R.Y. Raveendran, as he then was, has observed in Amarnath case, in para 15 of the judgment as under: "... It is now common to enter into leases in consideration of money advanced with an understanding that no rent will be payable by the tenant and the landlord will not be liable to pay any interest on the advance (or deposit), and the advance (or deposit) shall be refunded on termination of lease against delivery of vacant possession of the leased premises. A variation of such leases is where the lease is for money advanced and a rent is specified and interest on advanc3 is specified and it is agreed that the interest on the advance amount shall be adjusted as rent. In such cases the advance is so worked out that the normal interest thereon will be equal to the market rent. Thus it is common to provide a deposit of Rs. 1,00,000/- in lieu of rent, where the market rent is about Rs. 1,000/- to Rs. 1,500P'. 7. In the instant case the respondent has deposited a sum of Rs. 1,60,000/- with the landlord. The ratio laid down in Amarnath case, is applicable on all the fours to the case on hand. 8. It is common knowledge that there are persons, like that of the petitioner/landlord and the respondent tenant, that is landlords those who want deposit in lieu of rent, and tenants those who do not want to pay rent but willing to deposit lieu of rent. 8. It is common knowledge that there are persons, like that of the petitioner/landlord and the respondent tenant, that is landlords those who want deposit in lieu of rent, and tenants those who do not want to pay rent but willing to deposit lieu of rent. Therefore, one cannot jump to a conclusion that it is a contract of mortgage and there exists relationship of debtor and creditor. This kind of contract is in vogue and plenty. In Amarnath case, the impugned order is that case was set aside fu1.d the case was remitted back to the Trial Court with a direction to decide the matter afresh in accordance with law. But in the instant case the respondent has not adduced any evidence. I am of the considered opinion that there exists landlord and tenant relationship between the parties, and Court below has jurisdiction to dispose the case. Hence, I answer the point for consideration in the affirmative. 9. For reasons stated above, the revision petition is allowed and the impugned order is set aside, and case is remanded to the Trial Court for disposal in accordance with law, within 3 months from 16-1-2006. The parties are directed to appear before the Court below on 16-1-2006 for further proceedings, without notice. No costs.