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2010 DIGILAW 1155 (KAR)

P. N. Venugopala Gupta v. C. Saila Kumari

2010-11-08

ANAND BYRAREDDY

body2010
JUDGMENT ANAND BYARAREDDY, J.—Heard the learned counsel for the appellant. 2. The appellant was the defendant in a suit for ejectment before the trial Court. The suit was contested by the defendant who raised a plea that the Court did not have jurisdiction as the property let out measured more than fourteen square metres in terms of Section 2(3)(g) of the Karnataka Rent Act, 1999. As it is being used for non-residential and commercial purpose the provisions of the Karnataka Rent Act did not apply and that the suit was filed after terminating the tenancy in terms of Section 106 of the Transfer of Property Act, 1882. The trial Court found that the suit property measures 30 feet x 12 feet, that is more than 14 square metres and, therefore, the provisions of the Rent Act is not applicable and invocation of Section 106 of the Transfer of Property Act was in order. Insofar as the other issues, the burden of proving which was placed on the plaintiff, stood established and accordingly, the suit was decreed in favour of the respondent herein. The same was challenged by way of an appeal before the lower appellate Court. The lower appellate Court in turn having affirmed the judgment of the trial Court, the present appeal is filed. 3. The primary contention of the learned counsel for the appellant is that the suit was incompetent as it was filed by the plaintiffs who did not have the right over the entire suit property and were claiming portions of the same under two distinct Wills under testamentary dispositions in their respective favour and, therefore, the suit could not have been entertained. This is sought to be pressed as a substantial question of law. However, the ownership of the said plaintiffs is not denied. The only contention is that when the plaintiffs held only portions of the suit property, they could not have filed the suit for ejectment without their being common interest in respect of both items of properties. Order 1, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) reads as follows: “1. The only contention is that when the plaintiffs held only portions of the suit property, they could not have filed the suit for ejectment without their being common interest in respect of both items of properties. Order 1, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) reads as follows: “1. Who may be joined as plaintiffs.—All persons may be joined in one suit as plaintiffs where,— (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise.” From a reading of Order 1, Rule 1 of CPC there was no infirmity in the suit having been brought by the plaintiffs in the form that it was filed and it was in accordance with Order 1, Rule 1 of CPC. Therefore, the substantial question of law sought to be canvassed would not arise for consideration. The trial Court has held that arrears of rent up to the date of the suit were to be paid to the plaintiffs and the same has been deposited from time to time in Court. Insofar as the damages for use and occupation are concerned, the trial Court had ordered for holding an enquiry under Order 20, Rule 12 of Code of Civil Procedure, 1908 that the same is yet to be determined. In this view of the matter, there being no substantial question of law that would arise for consideration, the appeal would have to be rejected at the threshold. 4. However, on a fervent plea by the learned counsel for the appellant that some time be granted to the appellant to make alternative arrangement as he has well past seventy years of age and, therefore, requires some reasonable time to relocate himself elsewhere and he requests two years time to quit and deliver vacant possession of the premises. 5. 4. However, on a fervent plea by the learned counsel for the appellant that some time be granted to the appellant to make alternative arrangement as he has well past seventy years of age and, therefore, requires some reasonable time to relocate himself elsewhere and he requests two years time to quit and deliver vacant possession of the premises. 5. Learned Senior Counsel Shri Ramdas, appearing for the learned counsel for the respondent would raise serious objections to any such relief being conferred when the appeal is to be rejected and would submit that even if time is to be granted to the appellant to quit and deliver vacant possession of the premises, granting time as prayed for would be wholly unreasonable and would seriously prejudice the respondent who had to battle the proceedings for over a decade and, therefore, would submit that grant of any such relief would be beyond the power of this Court sitting in second appeal and especially when the appeal is being rejected. 6. However, in the interest of justice, it would be just to grant reasonable time to the appellant to quit and deliver vacant possession of the premises. Having regard to the fact that the premises in question are non-residential premises, the appellant is granted six months’ time to quit and deliver vacant possession of the premises and the appellant shall, therefore, quit and deliver possession on or before 31st of May 2011. This, however, shall be subject to the determination of the damages payable for use and occupation including the extended period during which period the appellant continues in occupation of the premises. 7. The appeal is accordingly rejected. The judgments and decrees of the lower appellate Court and the trial Court are affirmed subject to the extended period during which the appellant shall continue in occupation of the premises. The appellant shall file an affidavit that he would quit and deliver vacant possession of the premises on or before 31st May 2011 and shall abide by the determination of the damages for use and occupation including the period during which he would continue in such occupation. The appellant shall file an affidavit in this regard within a period of four weeks. The respondents are at liberty to initiate proceedings for determination of the mesne profits notwithstanding that the appellant continues in occupation of the premises till 31st May, 2011. The appellant shall file an affidavit in this regard within a period of four weeks. The respondents are at liberty to initiate proceedings for determination of the mesne profits notwithstanding that the appellant continues in occupation of the premises till 31st May, 2011. The amount in deposit may be withdrawn by the respondents without prejudice to their claims for further sums as damages for use and occupation of the premises.