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2012 DIGILAW 480 (KAR)

Sha Chandrakanth Uttamchand & Co. v. Sharadamma

2012-06-11

H.G.RAMESH

body2012
ORDER H.G. RAMESH, J. (Oral)—This revision petition by the defendants (tenants) is directed against the judgment dated 01/12/2011. By the impugned judgment, the trial Court has decreed the suit for ejectment filed by the respondent (widow) by directing the petitioners/tenants to quit and vacate the suit schedule shop premises measuring 22½ ft. × 17 ft., within three months. The trial Court has also directed for an enquiry under Order 20, Rule 12 of the CPC for determination of mesne profits. 2. I have heard the learned counsel appearing for the appellants/tenants and the learned counsel appearing for the respondent/landlord. 3. Learned counsel appearing for the petitioners in support of the Revision Petition urged the following contentions: (i) that the trial Court has erred in law in holding that there was jural relationship of landlord and tenant between the parties; (ii) that there was no proper termination of tenancy as contemplated under Sec. 106 of the Transfer of Property Act, 1882; (iii) the trial Court is not justified in not impleading the wife of Amichand, the original tenant, as a party to the proceeding and, therefore, the impugned judgment is vitiated. 4. However, learned counsel appearing for the respondent/landlord, by referring to the reasoning of the trial Court, submitted that all the above contentions are properly considered by the trial Court and hence the Revision Petition is devoid of merit and is liable to be dismissed. He has specifically referred to the following reasoning of the trial Court: “12. It is a simple suit filed by the plaintiff against the defendant for ejectment. The question that is to be considered in a suit for ejectment whether the quit notice issued by the plaintiff is in accordance with law. Absolutely there is no dispute with regard to the issuance of the notice by the plaintiff and compliance of Section 106 of TP Act. Para 9 of the written statement reads that “plaintiff got issued legal notice dated 10.11.2008 terminating the tenancy and the same came to be served on the defendants are all admitted as true.” Even during the course of cross-examination no single question was put to P.W.1 disputing the very issuance of the notice under Section 106 of TP Act. Para 9 of the written statement reads that “plaintiff got issued legal notice dated 10.11.2008 terminating the tenancy and the same came to be served on the defendants are all admitted as true.” Even during the course of cross-examination no single question was put to P.W.1 disputing the very issuance of the notice under Section 106 of TP Act. Under such circumstances, when there is no dispute with regard to the issuance of the notice under Section 106 of TP Act, according to me plaintiff has complied with provisions of Section of 106 TP Act. 13. The contention raised by the defendant reveals that defendant has not disputed the relationship of the plaintiff with that of the defendants. However, it is contended by the defendant in the course of evidence that defendant No. 1 is a firm by name M/s. Chandrakanth Uttamachand and company and defendant No. 1 is not represented by any person. Admittedly the plaint averment reveals that defendant No. 1 is a firm but the same is not represented by any person. However, in the plaint averments in para 3 has clearly stated that aforesaid two persons being the father and son have taken schedule premises for the purpose of carrying on the business in cloth under the name and style of M/s. Sha Chandrakanth Uttamchand & Co. and both of them were carrying on the business. The defendants have not disputed that the relationship. Under such circumstances the contention raised by the defendants cannot be taken into consideration. It is also contended by the defendant that the wife of Amichand, i.e., Tulasi Bai was not impleaded in this case. But when the plaintiff claims that defendant No. 2 to 6 are the sons of the deceased Amitchand, according to me question of impleading wife of deceased Amitchand do not arise for consideration at all. It is also contended by the defendant that defendants are paying rent of Rs. 2,500/- and produced Exs. D.1 to D.12. On the other hand plaintiff contends that defendants were paying rent of Rs. 5,000/-. Even Ex.P.13 reflects that defendants have paid rent of Rs. 5,000/- on 4 occasions, i.e., for the month of April 2009 to December 2009. Under such circumstances, the contention raised by the defendants that they were only paying Rs. 2,500/- do not arise for consideration. On the other hand plaintiff contends that defendants were paying rent of Rs. 5,000/-. Even Ex.P.13 reflects that defendants have paid rent of Rs. 5,000/- on 4 occasions, i.e., for the month of April 2009 to December 2009. Under such circumstances, the contention raised by the defendants that they were only paying Rs. 2,500/- do not arise for consideration. Looking to the defence taken by the defendants it is clear that defendants have admitted the relationship and also paying rent to the plaintiff and also taking into consideration the quit notice issued by the plaintiff, I am of the view that plaintiff has complied with the Section 106 of TP Act ..............................” (Underlining supplied) 5. Issuance of Notice of termination of tenancy on 10.11.2008, terminating the tenancy with effect from 30.11.2008, was admitted by the petitioners/tenants as it is specifically stated in the written statement as follows: “ ....................plaintiff got issued legal notice dated 10.11.2008 terminating the tenancy and the same came to be served on the defendants are all admitted as true.” 6. Notice of termination of tenancy is dated 10.11.2008. The suit (earlier O.S. No. 249/2009) was filed on 27.06.2009 . Hence, I find absolutely no legal infirmity in the termination of tenancy and it is in accordance with Section 106 of the Transfer of Property Act, 1882. 7. In my opinion, non-impleading of the wife of the deceased Amichand has not resulted in any prejudice to her as the petitioners who are all her sons were impleaded as defendant Nos. 2 to 6 and they had effectively contested the proceeding before the trial Court. 8. As could be seen from the impugned judgment, the relationship of landlord and tenant is admitted by the petitioners. 9. In view of the above, all the three contentions are devoid of merit and are accordingly rejected. There is no merit in the Revision Petition. The Revision Petition is accordingly dismissed. 10. At this stage, learned Counsel for the petitioners pray for time to vacate the suit premises. The suit was filed in the year 2009. The trial Court had granted three months’ time to vacate the premises. Learned counsel appearing for the respondent/landlord fairly submits that three more months’ time may be granted to vacate the premises. 10. At this stage, learned Counsel for the petitioners pray for time to vacate the suit premises. The suit was filed in the year 2009. The trial Court had granted three months’ time to vacate the premises. Learned counsel appearing for the respondent/landlord fairly submits that three more months’ time may be granted to vacate the premises. Accordingly, three months’ time from today, is granted to the petitioners to voluntarily vacate and to deliver vacant possession of the suit premises to the respondent. In view of dismissal of the Revision Petition, I.A. No. 1/2012 filed for grant of interim stay also stands dismissed. Revision Petition dismissed.