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2022 DIGILAW 249 (KAR)

Mohammed Bhadruddin v. Sasikala

2022-02-22

R.NATARAJ

body2022
ORDER 1. This House Rent Revision Petition by the tenant is filed under Section 46 of Karnataka Rent Act, 1999 (henceforth referred as 'the Act'), challenging an Order dated 25.09.2019 passed by the Chief Judge, Court of Small Causes, Bangalore (henceforth referred to as 'Trial Court') in HRC No.80/2018, by which the petitioner was ordered to be evicted from the petition premises for the bona fide use and occupation of the respondent. 2. A petition under Section 27(2)(r) of the Act was filed by the respondent herein contending that the petitioner herein was a tenant in respect of the commercial shop premises measuring East to West 12 feet and North to South 10 feet on a monthly rent of Rs. 3,000/- in terms of a lease agreement dated 01.06.2007. It was claimed that the petitioner had stopped paying the monthly rent from June 2013 by which time, the monthly rent was to be Rs. 6,000/- after enhancing it as per the agreement. The plaintiff had earlier filed a suit for ejectment in O.S.No.8619/2001 which was returned for proper presentation before the proper forum. The respondent claimed that the petitioner had entered to an agreement of sale dated 26.11.2012 to purchase the A schedule property, but failed to perform his part of the contract. The respondent, therefore, cancelled the agreement of sale and forfeited the advance sale consideration. The respondent alleged that the petitioner had carried out alteration in the B schedule property without her consent and without paying the monthly rent. The respondent claimed that she and her husband were senior citizens and therefore were in need of the suit property for their immediate need, use and occupation. Hence, they issued a notice dated 26.10.2018 calling upon the petitioner to quit and deliver vacant possession. Though the petitioner received it on 27.10.2018, he did not comply with the demand. Therefore, they sought for eviction of the petitioner. 3. The petitioner opposed the eviction petition and disputed the jural relationship of land lord and tenant. On the contrary, he claimed that he entered into the suit property as a tenant and later he entered into agreement of sale with the respondent to purchase the suit property and paid advance of Rs. 5,00,000/-. Therefore, he claimed that his status changed from being a tenant to an agreement holder in possession. On the contrary, he claimed that he entered into the suit property as a tenant and later he entered into agreement of sale with the respondent to purchase the suit property and paid advance of Rs. 5,00,000/-. Therefore, he claimed that his status changed from being a tenant to an agreement holder in possession. Thus, he claimed that he was not a defaulter in the payment of rent. He also denied that the agreement of sale was cancelled. Further, he alleged that he had paid a sum of Rs. 30,00,000/- for the purchase of the petition property. He also denied the bona fide need of the respondent and alleged that she had other properties where she could relocate. He claimed that he was always willing to perform his part of the contract and it was the respondent who was delaying. 4. Based on these rival contentions, the case was set down for trial. 5. The son of the respondent was examined as PW1, who marked documents as Exs.P1 to P10. The petitioner was not examined and he did not mark any documents. 6. The Trial Court after considering the evidence on record, held that the petitioner had admitted the tenancy. It also held that the respondent had proved her ownership of the suit property. It held that under the agreement of sale dated 26.08.2012 the possession of the property was to be delivered only after receipt of the remaining consideration. Therefore, it held that the jural relationship between the petitioner and respondent continued as landlady and tenant and there was no change of relationship. The Trial Court therefore, allowed the petition and directed the petitioner to quit and deliver vacant possession of the suit premises to the respondent. 7. Being aggrieved by the aforesaid order, the present revision petition is filed. 8. The learned counsel for the petitioner submits that the rate of rent was Rs. 6,000/- per month and therefore, the petition for eviction under provisions of the Rent Control Act was not maintainable. He also submitted that the Trial Court failed to consider the rights created under the agreement of sale dated 26.08.2012 and that the petitioner had paid a sum of Rs. 30,00,000/- as advance sale consideration and therefore, he contended that the relationship of the landlady and tenant came to an end on 26.08.2012 when the agreement was executed. He also submitted that the Trial Court failed to consider the rights created under the agreement of sale dated 26.08.2012 and that the petitioner had paid a sum of Rs. 30,00,000/- as advance sale consideration and therefore, he contended that the relationship of the landlady and tenant came to an end on 26.08.2012 when the agreement was executed. He also submitted that due to his hospitalization and treatment at Victoria hospital he was not able to defend the suit properly and prays that he may be granted opportunity to lead evidence in the matter. He also disputed the bona fide need of the landlady to occupy the premises as he claimed that the landlady had other premises which she could use for her need. 9. On the contrary, the learned counsel for the respondent submitted that the possession of the premises was never handed over under the agreement of sale and therefore, the relationship of landlady and tenant never came to an end. He contended that if the petitioner desired, he could have filed a suit for specific performance of the agreement but until then he was in possession as a tenant. He relied upon the Judgment of this Court in P.GANGADHARA PATIL vs. MADHAVARAO M.K. [ 2015 (4) KCCR 3329 ]. He also contended that the petitioner had not paid the agreed rent. He also did not challenge the jurisdiction of the Trial Court to pass an order of eviction and therefore, he cannot do so in the present revision petition. 10. I have considered the submissions made by the learned counsel for the parties. 11. It is evident from the statement of objections filed by the petitioner before the Trial Court that he was initially a tenant and thereafter entered into an agreement to purchase the petition property. Though the petitioner claimed that the relationship of landlady and tenant came to an end after the execution of the sale agreement yet, the petitioner did not produce the same before the Trial Court. However, a copy available on record which is though not marked, discloses that the possession of the property was never delivered under the agreement of sale. There is nothing on record to indicate that the petitioner and the respondent surrendered the tenancy rights at the time of entering into the agreement of sale. However, a copy available on record which is though not marked, discloses that the possession of the property was never delivered under the agreement of sale. There is nothing on record to indicate that the petitioner and the respondent surrendered the tenancy rights at the time of entering into the agreement of sale. If he did, then there must have been covenants to that effect in the agreement of sale. Therefore, there can neither be an express nor an implied surrender of lease by mere entering into agreement of sale. In this regard it is profitable to refer to a judgment of the Hon'ble Supreme Court in the case of H.K.SHARMA vs. RAM LAL [ 2019(4) SCC 153 ] wherein it was held: "33. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of the TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.1993. 34. A fortiori, the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21(1)(a) of the U.P. Act and seek the appellant's eviction from the suit house after determining the tenancy in question." 12. If that be so, the petitioner continued as a tenant in the petition premises. The contention that the monthly rent was Rs. 6,000/- and therefore, the Trial Court lacked jurisdiction to decide the case is raised for the first time in the revision petition. It is now well settled that objection regarding jurisdiction has to be raised at the earliest point in time and if the petitioner had not raised any objection before the Trial Court, he cannot do so now. In so far as the bona fide need and occupation of the petition premises, the petitioner was unable to rebut the presumption of bona fide use and occupation under Section 27(2)(r) of the Karnataka Rent Act, 1999 as he neither cross-examined the respondent nor entered the witness box. 13. The assertion of the petitioner that he was unwell and could not participate in the proceedings is inconsequential. 14. This Court in terms of an Order dated 30.03.2021, directed the petitioner herein to pay arrears of rent of Rs. 13. The assertion of the petitioner that he was unwell and could not participate in the proceedings is inconsequential. 14. This Court in terms of an Order dated 30.03.2021, directed the petitioner herein to pay arrears of rent of Rs. 6,29,966/- which is not paid by the petitioner herein. In that view of the matter, this revision petition lacks merit and the same is dismissed. The petitioner is granted three months' time to quit and deliver vacant possession of the petition premises.