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Karnataka High Court · body

2010 DIGILAW 450 (KAR)

SREE COMPUTECH, BANGALORE v. K. B. KRISHNA

2010-04-01

ARAVIND KUMAR

body2010
ORDER 1. The order passed by the Small Causes Judge, Bangalore in HRC No. 386 of 2008 dismissing LA. No. 3 filed under Section 43 of the Kamataka Rent Act, 1999, dated 16-12-2009 is questioned in this revision petition by the respondent-tenant. 2. The parties are referred to as per their ranks in the Court below: 3. The petitioner instituted an eviction petition originally in S.C. No. 483 of 2007 and same came to be withdrawn. Subsequently, a suit for ejectment was filed in O.S. No. 7972 of 2007. The said suit also came to be withdrawn. Thereafter wards present HRC No. 386 of 2008 was filed under Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999 (hereinafter referred to as 'Act' for the sake of brevity) in respect of the premises bearing No. 23 (old No. 1) measuring East-West 30 x 9 ft.; North-South 21 x 3 ft. 4. On service of notice the respondent-tenant appeared before the Trial Court and filed objections to the said petition. 5. At the outset the respondent denied the relationship of landlord and tenant. It was contended before the Court below that property originally belonged to Sri Dhondale Maharaja Sa and on his demise it was succeeded to by his wife and daughter namely Smt. Dhondale Saraswathi Bai (wife) and Smt. Lakshmidevi (daughter). On the death of Smt. Lakshmidevi Intestate the said property devolved upon her three sons and eight daughters and thus claim of the petitioner on the basis of gift deed dated 8-9-2004 said to have been executed by Dhondale Saraswathi Bai in favour of petitioner does not confer any title on the petitioner and as such jural relationship of landlord and tenant came be denied. It was also contended that brother of petitioner i.e., K.P. Premananda had filed a suit O.S. No. 7411 of 2004 for partition in respect of entire property described in gift deed dated 8-9-2004 and as such there is a dispute regarding title to schedule premises and accordingly it was contended eviction petition was not maintainable. It was also contended at no point of time rents were paid by the respondent to the petitioner. 6. It was also contended at no point of time rents were paid by the respondent to the petitioner. 6. During the pendency of the proceedings an interlocutory application namely I.A. No.3 was filed by respondent under Section 43 of the Karnataka Rent Act, 1999 praying for stay of proceedings in HRC No. 386 of 2008 and to direct the petitioner to approach Competent Civil Court for declaration of his right. In the affidavit filed in support of the said application averments made in the statement of objections were reiterated. The said application was resisted by the petitioner by filing objection statement contending gift deed executed by his grandmother in his favour on 8-9-2004 is not challenged and there was no order or any decree passed against petitioner in respect of said gift deed and suit O.S. No. 7411 of 2004 said to have been filed by the brother of the petitioner for partition was by suppression of facts and on this ground amongst others petitioner sought for dismissal of the application. 7. On considering rival contentions Court below by its order dated 1612-2009 dismissed the interlocutory application 3 which is now questioned by the respondent in this revision petition. 8. I have heard Sri N.J. Ramesh, learned Counsel appearing for the revision petitioner and Sri Channabasaiah, learned Counsel appearing for the respondent. 9. Sri N.J. Ramesh would admit that issue regarding the execution of gift deed, no doubt cannot be resolved by the Small Causes Court but while considering issue regarding jural relationship, the Court of Small Causes or Rent Court can incidentally look into the same. He would also contend that Small Causes Court can go into title incidentally while considering the issue of existence of jural relationship of landlord and tenant or otherwise. He would submit that alleged gift deed executed by Dhondale Saraswathi Bai under gift deed dated 8-9-2004 in favour of Sri K.B. Krishna, the petitioner before Trial Court is void at the inception inasmuch as it is joint family property and co-parceners cannot have an independent right to alienate or gift away the property without consent of other coparceners. He would submit that Section 43 of the Rent Act is a protection given to the tenants and it is to be read as a beneficial provision for the tenant. He would submit that Section 43 of the Rent Act is a protection given to the tenants and it is to be read as a beneficial provision for the tenant. 9.1 Elaborating his submissions he would contend that admittedly the property originally belonged to Sri Dhondale Maharaja Sa and on his demise had devolved upon his wife and daughter and after the demise of his wife i.e., Dhondale Saraswathi Bai it had devolved on Smt. Lakshmidevi (daughter) and her children and on her demise it had devolved on Class I heirs of Lakshmidevi namely the sons and daughters of Smt. Lakshmidevi and thus he would contend that gift deed executed by Smt. Saraswathi Bai in favour of the petitioner is void. 9.2 He would also submit that when a plea is put forward with regard to a document on which basis the petitioner claims ownership and is assailed as void or enforceable the Rent Court is empowered to look into the same and adjudicate thereupon for deciding the issue of jural relationship. He would also submit that when an eviction petition is filed against the tenant he can raise a plea with regard to non-payment of rent to the said petitioner on the ground that it does not belong to him. He contends that when a bona fide defence is taken in the statement of objections or a plea is advanced with regard to jural relationship, the Rent Court should layoff its hands and direct the parties to get their rights adjudicated by a Competent Civil Court. Accordingly, he seeks for allowing of the revision petition and for setting aside the order dated 16-12-2009 passed on I.A. No.3 by the Court of Small Causes. 10. In respect of his submission he relies upon the following judgments: (1) Life Insurana Corporation of India v India Automobiles and Company and Others1; (ii) Dr. Ranbir Singh v Asharfi Lal2; (iii) K C. Laxmana v K. C. Chandrappa Gowda and Another3; (iv) Pavitri Devi and Another v Darbari Singh and Others4; (v) Joseph Kantharaj and Another v Attharunnisa Begum S.5; (vi) R. Shariff and Others v A. Mohammed Noor and Another6. 11. Per contra, Sri Channabasaiah, learned Counsel appearing for the petitioner-landlord would contend that at outset tenant does not have a vested right to question the title of the petitioner-landlord. 11. Per contra, Sri Channabasaiah, learned Counsel appearing for the petitioner-landlord would contend that at outset tenant does not have a vested right to question the title of the petitioner-landlord. He would submit that admittedly there is a registered gift deed executed by the petitioner's grandmother which was preceded by an oral partition and on account of the minority of the petitioner at that point of time gift deed could not be executed. He would bring to the notice of the Court, the gift deed produced before this Court as also before the Trial Court namely at page 2 to demonstrate and contend that Sri KB. Pre man and a and Sri KB. Gopalakrishna i.e., brothers of the petitioner were also given in gift by their grandmother Smt. Saraswathi Bai portions of adjacent and abutting property to the petition schedule premises and having obtained and acted upon the said gift deed they cannot now contend that present gift deed executed by their grandmother in favour of the petitioner as null and void and as such contends that suit namely O.S. No. 7411 of 2004 filed by Sri KB. Premananda for partition challenging the gift deed executed by Smt. Saraswathi Bai in favour of the petitioner is being defended appropriately and hence respondent cannot contend or take a plea that petitioner does not have a right or that he is not a tenant of the petition schedule premises. 11.1 He would also bring to the notice of the Court that mother of the petitioner Smt. Lakshmidevi was a witness to the said gift deed dated 8-9-2004 and at no point of time brothers have questioned the said gift deed and admittedly the daughters are not parties to the suit in O.S. No.7411 of 2004 and as such plea of tenant regarding jural relationship should not be entertained. He would also contend that it is admitted by the respondent-tenant that he was a tenant under Smt. Saraswathi Bai and by virtue of the gift deed he has succeeded and as such the revision petition is liable to be dismissed. 11.2 In support of his submissions he would rely upon the following decisions: (i) Kamalakanta Mohapatra and Others v Pratap Chandra Mohapatra and Others1; (ii) Dr. David Paul v Karunakar M. Shetty and Another2; (iii) FGP Limited v Saleh Hooseini Doctor and Another3; (iv) G. Kaluram v K.G. Shivashankar4. 11.2 In support of his submissions he would rely upon the following decisions: (i) Kamalakanta Mohapatra and Others v Pratap Chandra Mohapatra and Others1; (ii) Dr. David Paul v Karunakar M. Shetty and Another2; (iii) FGP Limited v Saleh Hooseini Doctor and Another3; (iv) G. Kaluram v K.G. Shivashankar4. 11.3 He would contend that the revision petition itself is not maintainable for the reasons that the rents have not been deposited before this Court as required under Section 45 and on account of nonpayment of the rent, the revision petition is liable to be rejected and in support of his submission he relies upon the decision of Saleem v Syed Yousuff and Others5. 12. In reply Sri N.J. Ramesh would contend that subsequent to execution of gift deed. Smt. Saraswathi Bai has executed a Will wherein the property given to KB. Krishna under the gift deed is bequeathed in favour of K.B. Premananda and other portions to KB. Krishna and Lakshmidevi and on demise of Smt. Lakshmidevi, her share would go to Sri K.B. Krishna and as such he would contend that there is a cloud on the title to the petition schedule premises and petitioner does not have an independent right to file and prosecute the eviction petition. It is also contended that it is not the case of the petitioner that he has filed eviction petition as a co-owner and in view of this fact petitioner has to be directed to work out his remedies in a Civil Court for adjudication of his right. He would also submit that pressing into Section 116 of the Indian Evidence Act, 1872 to contend that once a person is admitted as a tenant will not be estopped from contending that he is not a tenant under a person who derives the title from the original landlord under whom the tenant was inducted and in respect of his submission he relies upon the decision of Chhotey Lal Shukla (since deceased) Santosh Kumar Shukla alias Munna, son of late Sri Chhotey Lal Shukla v IX Additional District Judge and Ashok Kumar Raghubanshi Son of Gannoo Singh6, at para 8 and also the decision of the Hon'ble Supreme Court in the case of Subhash Chandra v Mohammad Shariff and Others7. 13. 13. Having heard the learned Counsel for the parties, the following points arise for my consideration: (i) Whether revision petition is not maintainable for non-deposit of rent as required under Section 45 of the Karnataka Rent Act, 1999? (ii) Whether the application I.A. No.3 filed under Section 43 of the Karnataka Rent Act, 1999 is required to be allowed or dismissed? (iii) Whether the order passed by the Court below in dismissing the application I.A. No.3 is to be confirmed, modified or set aside? (iv) What order? 14. Point Nos. 1 and 2 formulated hereinabove being interlinked with each other is taken up for consideration before this Court. 15. Re: Point No. 1.-Sri N.J. Ramesh, learned Advocate for revision petitioner has produced a photocopy of demand draft dated 2-8-2007 for Rs. 11,180/- drawn on State Bank of India in favour of Registrar, Court of Small Causes, Bangalore to contend that arrears of rent had been deposited in earlier proceedings. This fact is not seriously disputed by Sri Channabasaiah, learned Counsel appearing for respondent-landlord and in fact he admits about deposit. Hence, Point No. 1 is answered in favour of revision petitioner by holding that revision petition is maintainable in view of rent having been deposited. 16. Sri N.J. Ramesh has made a valiant effort to persuade this Court to contend that Rent Court is clothed with the jurisdiction to incidentally delve upon to ascertain the title of the property as to whether it belongs to the petitioner or not is to be examined with reference to the pleadings of the parties. It is no doubt true at the first instance the respondent-tenant has raised a plea with regard to denial of jural relationship of landlord and tenant. In the affidavit supporting the application filed under Section 43 of the averments made in the statement of objections have been reiterated as to how the petitioner and his family members are litigating in a Civil Court in respect of the suit property and other adjacent properties and it is elaborately stated both in the statement of objections as well as the affidavit supporting the application (I.A No.3). The judgments relied upon by the learned Counsel for the petitioner Sri N.J. Ramesh in this regard is required to be examined as to whether they would have any application to the facts of the present case and if so to what extent. The judgments relied upon by the learned Counsel for the petitioner Sri N.J. Ramesh in this regard is required to be examined as to whether they would have any application to the facts of the present case and if so to what extent. Hence the decision relied upon by the learned Counsel is analysed as follows.- (i) Life Insurance Corporation of India's case: In the said case a suit for arrears of rent was filed and it was held by the Hon'ble Supreme Court that it is open to the tenant under the general law to plead that no rent is payable in respect of the premises as it belongs to him. In fact a contention was taken up in the said proceedings that no rent is payable since the respondent himself claimed to be the owner of the property and when this plea was attempted to be taken it was scuttled by the Court below and at that point of time the Hon'ble Supreme Court held that such a plea can be raised and it cannot be taken away without a specific statutory provision. In fact their lordships have examined the said issue with reference to the Tamil Nadu Rent Control Act and compared the same with Delhi Rent Control Act, Section 50 to hold that Tamil Nadu Rent Control Act does not take away or narrow down the Civil Court jurisdiction as is in the case of Delhi Rent Control Act, Section 50. The said decision is inapplicable to the facts of the present case for the reason revision petitioner in the instant case does not claim that he is having an independent right or title to the property in question. What he wants to contend is that in respect of the inter se dispute amongst the family members he has not recognised the present revision petitioner as a tenant and at no point of time he has paid the rent to the present petitioner. However, he admits that he was a tenant under Smt. Saraswathi Bai i.e., Donor of petitioner and he was paying the rents to her and also thereafterwards to Smt. Lakshmidevi. In view of this submission, I am of the considered opinion that the judgment in Life Insurance Corporation's case is inapplicable to the facts and circumstances of the present case. (ii) Dr. In view of this submission, I am of the considered opinion that the judgment in Life Insurance Corporation's case is inapplicable to the facts and circumstances of the present case. (ii) Dr. Ranhir Singh's case: By drawing attention to para 9 Sri N.J. Ramesh would contend that in a suit for eviction based on relationship of landlord and tenant if admitted can be proceeded by the Rent Court and if disputed it is to adjudicate only as to whether the defendant is the tenant of the plaintiff or not and incidentally while considering or examining the said issue the Rent Court can go into the question of title and request this Court to apply the said principles to the facts of the present case. He would contend that gift itself being void and petitioner at no point of time having been recognised by the revision petitioner as the landlord, Court below was not justified in not allowing the I.A. No.3. He would contend that this issue ought to have been looked into and examined by the Court below and having not done so this Court is required to examine the said issue. (iii) K. C. Laxmana's case: Drawing attention to para 8 Sri N.J. Ramesh would contend that gift of coparcenery property by a Hindu father/karta to outsider/relative without consent of other coparceners is void. (iv) Pavitri Devi's case: He would contend that disposition intra vivos by gift of undivided share or interest in coparcenary property is void unless it is with consent of the coparceners or between the coparceners or in exceptional circumstances - Hence on death of the donor during pendency of partition suit/appeal filed by him against other coparceners, donee would not acquire any interest by devolution to represent the interest of the deceased in the suit/appeal. 17. There cannot be any dispute on the principles enunciated in the' three decisions referred to supra. However, it is to be noticed in the instant case that in the gift deed dated 8-9-2004 which is in question admittedly the grandmother of the petitioner has executed the gift of the petition schedule property whereunder petition schedule premises is gifted in favour of her grandson petitioner-Sri KB. Krishna. However, it is to be noticed in the instant case that in the gift deed dated 8-9-2004 which is in question admittedly the grandmother of the petitioner has executed the gift of the petition schedule property whereunder petition schedule premises is gifted in favour of her grandson petitioner-Sri KB. Krishna. It is seen from perusal of the gift deed that earlier there was a oral partition amongst parties under said oral partition three shares were allotted and thereafter wards gift was executed in favour of two persons namely KB. Premananda and KB. Gopalakrishna i.e., brothers of the petitioner which is in the year 1977 i.e., 27 years prior to the present gift deed. Admittedly said gift deed has been acted upon by these two persons and it is only when the gift was executed in the year 2004 in favour of the petitioner-KB. Krishna by his grandmother and thereafter wards came to be questioned by filing suit in O.S. No. 7411 of 2004 seeking partition of the property covered under the gift deed. That is a matter inter se between the petitioner and his brothers. The respondent-tenant in the instant case in the affidavit supporting the application filed under Section 43 has stated at para 5 to the following effect: "I. Further submit that, I was tenant under Smt. Dhondale Saraswathi Bai. I am in peaceful possession and enjoyment of the property without any interference or hindrance from anyone and after the death of the grandmother, all the legal heirs thereto were succeeded the property". 18. A perusal of the contents of the affidavit would explicitly reveal that intention of the respondent is to delay the payment of rent and also scuttle the eviction proceedings by putting up several technical pleas so as to protract the proceedings. The Court below in this background having examined the facts has rightly observed that if at all if there is any inter se dispute amongst the brothers it is for them to resolve and there cannot also be any dispute that petitioner is also one of the sharer (assuming that the plea of the respondent-tenant is accepted) and as such the respondent-tenant cannot be allowed to raise such a plea and even if allowed to raise and when examined it can be held that such plea is untenable both on facts and on law. Accordingly these three decisions referred to by the learned Counsel for the revision petitioner is inapplicable to the facts of the present case. 19. Yet another aspect which requires to be noticed by this Court is the fact that it is for the Civil Court to decide as to the execution of the gift about it being void or otherwise, since it is subject-matter required to be adjudicated in O.S. No. 7411 of 2004 and any discussion on this issue in this revision petition may prejudice the rights of parties and hence same is not delved upon by this Court. (v) Joseph Kantharaj's case: Sri N.J. Ramesh would contend that when there is a bona fide defence set up, the Rent Court if it finds that it is a prima facie defence it cannot brush aside the same and in support of this proposition this decision is relied upon by drawing the attention of the Court to para 10 of the observation made by their lordships which reads as under: ''Unless the Court is satisfied prima facie that the agreement is genuine and defence is bona fide, it should not defer the proceedings for eviction under the Rent Acts". In the said case the tenant resisted the eviction petition contending that he is not a tenant of the premises and was inducted as a tenant by Anthony Swamy who had entered into an agreement of sale on 11-6-1997 and on the said date paid consideration of Rs. 1,05,000/- and continued to be in possession free of rent in part performance of the agreement of the sale. Since this plea did not find favour before the Court below, Hon'ble Supreme Court held that when such a plea is raised with regard to the existence of a right of the tenant, it was incumbent upon the Court below to consider the said plea and it accordingly held that eviction proceedings is to be deferred, till the decision by the Civil Court in respect of O.S. No. 2089 of 1999 filed by the tenant for specific performance of the agreement of sale dated 11-6-1997 is disposed of. The principles enunciated in the said judgment there cannot be any second word about it. The principles enunciated in the said judgment there cannot be any second word about it. However, that was a case where the interest of the tenant got itself extinguished and blossomed itself into a larger interest as "purchaser" and in this background Hon'ble Supreme Court held relationship of landlord and tenant had seized on the admitted facts therein and the lesser interest had got blossomed itself into larger interest and in this background eviction proceedings was ordered to be deferred. However, in the instant case it is noticed that the respondent-tenant admits, agrees, concedes, accepts that he was a tenant under Saraswathi Bai and also accepts that he was paying the rents to Sri Lakshmidevi. But on eviction petition being filed has taken up plea that there are other persons also who are to be recognised as owners of the property and he is claiming to take protection of the suit as umbrella in O.S. No. 7411 of 2004 filed by the brother of the petitioner seeking for partition and other relief. This cannot be countenanced by this Court for the reason that there is no better title that is claimed by the respondent-tenant in the instant case other than the right of a tenant. As such the said judgment of the Hon'ble Supreme Court is in applicable to the facts and circumstances of the case. (vi) R. Shariffs case: This judgment has been set aside by the Hon'ble Supreme Court in SLP (C) Nos. 23370 to 23373 of 2004 in Civil Appeal Nos. 4871 to 4874 of 2005 by order dated 8-8-2005 and hence said judgment is not looked into or examined by this Court. 20. Insofar as the plea with regard to Section 116 of the Indian Evidence Act, 1872 and the decision relied upon in the case of Chlwtey, Lal Shukla by Sri N.J. Ramesh to contend that tenant is entitled to question the derivative title of the subsequent landlord it is to be noticed that in the said case tenant was inducted by Sri Mannoo Lal Kedar Nath and on account of his arrears of income tax the property came to be sold by the Income-tax Authorities to Sri Ashok Kumar Raghubanshi under sale deed dated 4-10-1985. However, the said sale deed was held to be void by the Civil Court since the auctioned proceedings was not properly conducted and hence the Revisional Court held that the sale deed on which basis the subsequent landlord claimed title and initiated eviction proceedings was declared to be void could not get a better title and as such the tenant therein was fully justified in questioning the derivative title of the subsequent purchaser. The said judgment would have no application to the instant case under any of the ground for the reasons that in the instant case the respondent-tenant does not deny that he had not been inducted by Smt. Saraswathi Bai and he also does not dispute the facts that (1) Sri KB. Krishna is the grandson of Smt. Saraswathi Bai and (2) even assuming that all other sons and the daughters of Smt. Lakshmidevi are entitled for any share even then the petitioner Will have a share in the property. As per Section 3(e) of the Kamataka Rent Act ''landlord means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant". The word 'entitled' used in the said section clothed the present petitioner to claim title to the property in question and as such it is to be held that their exists jural relationship of landlord and tenant and it is also to be noticed that during the pendency of the Small Causes Suit in S.C. No. 483 of 2007 a sum of Rs. 11,180/- has been deposited before the Court of Small Causes, Bangalore. 21. Though respondent Counsel is relying upon the decisions referred to supra, I am afraid the said judgments except the case of FGP Limited can be applicable to the facts of the present case. In the case of FGP Limited, it has been categorically held as follows.- "37. 11,180/- has been deposited before the Court of Small Causes, Bangalore. 21. Though respondent Counsel is relying upon the decisions referred to supra, I am afraid the said judgments except the case of FGP Limited can be applicable to the facts of the present case. In the case of FGP Limited, it has been categorically held as follows.- "37. It has been urged by the learned Counsel for the appellant that in the suit which has been filed by the respondents they have not asserted that they are filing it as co-owners but they have claimed that they are filing it as executors/executrix. So they cannot now meet the challenge of maintainability of the suit on the ground that it was filed by the respondents as co-owners. It is not possible to accept the aforesaid contention in the facts of this case. This Court is of the opinion that if the status of the respondents as co-owners of the property transpires clearly from the admitted facts of the case, they cannot be denuded by the said status at the instance of some objections by the tenants. Normally, a tenant's right to question the title of a landlord is very limited in view of the rule of law which is codified in Section 116 of the Indian Evidence Act". (emphasis supplied) It is also a complete answer to the plea of Section 116 of the Indian Evidence Act, raised by the petitioner. In these circumstances, I am of the considered opinion that the application filed under Section 43 was required to be dismissed. In these circumstances, I am of the considered opinion that order passed by the Court below in rejecting application under Section 43 of the Rent Act is justified and is based on sound principles and does not call for interference at the hands of this Court. Accordingly the revision petition is dismissed with cost of Rs. 1,000/- and the cost shall be deposited before the Court below before proceeding with the eviction petition and it shall be a condition precedent for proceeding with the matter.