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2022 DIGILAW 262 (KAR)

Bhojaraj S/o Narayan Basawa v. Suresh S/o Amanna Raikar

2022-02-25

SACHIN SHANKAR MAGADUM

body2022
ORDER : 1. The captioned civil revision petition is filed by the plaintiffs feeling aggrieved by the dismissal of suit by Small Cause Court. 2. Facts leading to the case are as under. 3. The present petitioners, who are plaintiffs, filed ejectment suit seeking relief of possession and also mesne profits @ Rs. 5,000/- per month from the date of suit till respondent-defendant hands over actual possession of the suit property to the plaintiffs. The petitioners claim that they are the absolute owners of a commercial shop with red tile roofed building in a ground floor and first floor bearing CTS No. 3560/1B of CTS Ward No. 1, measuring north-south 11 feet and east-west 17 feet with extra gallery. The petitioners claim that they are owners of suit schedule property having purchased the same along with adjacent properties from its previous owner viz. Smt. Sushila @ Tukkubai W/o Vishwanathsa Chavan and others through a registered sale deed dated 07.07.2017. The petitioners also contended that the purchase was communicated to the defendant and on account of attornment, respondent-defendant was directed to pay monthly rent of Rs. 145/- per month to the petitioners. The petitioners-plaintiffs pleaded in the plaint that the respondent-defendant has failed to pay the rent regularly. It was also contended that since the property purchased by the petitioners is in dilapidated condition and unfit for occupation, the petitioners were issued with a legal notice from HDMC authorities to handover the possession and were directed to vacate the occupants and co-operate for demolition of the building. The petitioners also claim that the tenancy of the respondent-defendant came to an end by afflux of time and in this background, the petitioners requested the respondent-defendant to pay the rents and handover the vacant possession. However respondent-defendant has neither paid the arrears of rent nor has he vacated the premises. Hence, petitioners issued notice to the respondent-defendant to vacate the shop premises. Inspite of issuance of notice, the respondent-defendant did not vacate the shop premises and therefore, left with no other alternative, the petitioners filed a suit before the Small Cause Court seeking possession of the property in question. 4. The respondent-defendant, on receipt of summons, appeared before the Small Cause Court and stoutly denied the entire averments made in the plaint by filing a written statement. The respondent-defendant has disputed the relationship of landlord and tenant between him and the petitioners. 4. The respondent-defendant, on receipt of summons, appeared before the Small Cause Court and stoutly denied the entire averments made in the plaint by filing a written statement. The respondent-defendant has disputed the relationship of landlord and tenant between him and the petitioners. He also disputed the ownership of petitioners over the suit schedule premises. The respondent-defendant has also contended that unless the petitioners establish their title over the suit property, the present suit for possession is not maintainable. The respondent-defendant also claims that the termination of tenancy is illegal. The respondent-defendant also seriously disputed the attornment of tenancy as alleged by the petitioners. 5. In order to substantiate their claim, the petitioner No. 2 examined himself as PW-1 and relied on documents vide Ex.P1 to Ex.P5. By way of rebuttal evidence, respondent-defendant examined himself as DW-1 and relied on documentary evidence vide Ex.D1 to Ex.D3. The Small Cause Court, on appreciation of oral and documentary evidence, has answered point No. 1 in negative by holding that the petitioners-plaintiffs have failed to prove that there is a relationship of landlord and tenant between the petitioners and respondent-defendant. The Small Cause Court has recorded a finding that the petitioners have failed to establish their title over the suit property and therefore, has come to the conclusion that Point No. 2 and 3 would not survive for consideration. The Small Cause Court having examined the material on record was of the view that the burden was on the petitioners to prove their title over the suit property. The Small Cause Court was of the view that the lease deed produced by the petitioners at Ex.P2 would not establish the title of the petitioners over the suit property. The Court below was of the view that to establish their title, the petitioners were required to produce title documents and the title cannot be ascertained only by examining the property register card vide Ex.P1 and the lease deed vide Ex.P2. 6. The learned counsel for petitioners has filed an application before this Court under Section 151 read with Order XLI Rule 27 of CPC and sought leave of this Court to produce certified copy of the sale deed dated 07.07.2017 executed by erstwhile owners of the suit property. 6. The learned counsel for petitioners has filed an application before this Court under Section 151 read with Order XLI Rule 27 of CPC and sought leave of this Court to produce certified copy of the sale deed dated 07.07.2017 executed by erstwhile owners of the suit property. Placing reliance on additional evidence, learned counsel for petitioners would submit to this Court that the property was originally owned by Shardabai W/o Krishnasa Dharmdas and she gifted the suit property in favour of Smt. Sushila @ Tukkubai W/o Vishwanathsa Chavan, Rajeev @ Rajesh S/o Vishwanathsa Chavan, Sanjeev @ Sanju S/o Vishwanathsa Chavan, Manoj S/o Vishwanathsa Chavan and Laxmikanth S/o Vishwanathsa Chavan who in turn have sold the suit property to the present petitioners-plaintiffs under a registered sale deed dated 07.07.2017. Placing reliance on additional evidence, the learned counsel appearing for petitioners would submit to this Court that the additional evidence is very much essential for rendering substantial justice to the parties. He would further submit that though the present proceedings are admittedly revision proceedings, however to do substantial justice, he requests this Court to accept additional evidence by exercising inherent powers. 7. To buttress his arguments he has placed reliance on the judgment of the Hon’ble Apex Court in the case of Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78 and also the judgment rendered by the Co-ordinate Bench of this Court in the case of Poornaprajna Education Centre, Belur vs. Puspha, 2002 (5) Kar. L.J. 161. By relying on these two judgments, he would submit to this Court that the additional evidence has to be taken into consideration and if the same is admitted on record, the findings of the Small Cause Court are not at all sustainable and therefore, he would request this Court to consider additional evidence placed on record by the petitioners herein. 8. Per contra, learned counsel appearing for respondent-defendant would vehemently argue and counter arguments canvassed by the counsel appearing for the petitioners. He would submit to this Court that this Court in exercise of its inherent powers under Section 151 of CPC, cannot permit the petitioners to rely on additional evidence, particularly, when petitioners have approached the Court invoking revisional jurisdiction. To buttress his arguments and in support of his contentions, he would place reliance on the judgment rendered by this Court in the case of Harilal vs. Ismailsab, 1979 Kar. To buttress his arguments and in support of his contentions, he would place reliance on the judgment rendered by this Court in the case of Harilal vs. Ismailsab, 1979 Kar. L.J. 1201. Placing reliance on the said judgment, he would submit to this Court that it is a well settled principle of law that the revisional jurisdiction is distinct from appellate jurisdiction. Under the Code of Civil Procedure, the revision jurisdiction of High Court is to be exercised within the meaning and scope of Section 115 of CPC. Therefore, relying on the said judgment, he would submit to this Court that in the present revision petition, this Court cannot convert itself to an appellate court and receive additional evidence. 9. Heard the learned counsel for the petitioners-plaintiffs and the learned counsel appearing for the respondent-defendant. 10. The present petitioners claim that they have acquired valid right and title over the suit property pursuant to registered sale deed dated 07.07.2017 executed by the erstwhile owners and therefore, they claim that respondent- defendant continued to be as a tenant under them. The respondent-defendant however has denied the title of the present petitioners herein. Merely because there is denial of title, that cannot be a ground to reject the claim of the petitioners, who are seeking possession on the ground that they have terminated the tenancy of the respondent-defendant by issuing notice under section 106 of the Transfer of Property Act. The Small Cause Court merely on the ground that the title document is not produced, has proceeded to record a finding that the petitioners have failed to prove their title over the suit premises. The petitioners claim that the original copy of the registered sale deed could not be produced as the same is pledged with the bank and as such, they could not produce the document. However petitioners claim that other documents were produced before the Court. 11. The petitioners have acquired right and title and intend to produce a certified copy of the sale deed, which obviously respondent-defendant cannot dispute. The respondent- defendant has not produced any document to demonstrate that he has independent right than that of the petitioners herein. Respondent-defendant has placed reliance on the judgment rendered by this Court in the case of Harilal (supra) and strongly objects to take cognizance of additional evidence. The respondent- defendant has not produced any document to demonstrate that he has independent right than that of the petitioners herein. Respondent-defendant has placed reliance on the judgment rendered by this Court in the case of Harilal (supra) and strongly objects to take cognizance of additional evidence. If petitioners have acquired title pursuant to registered sale deed dated 07.07.2017 by purchasing the suit property by its erstwhile owners, I am of the view that additional evidence is essential for doing substantial justice between the parties and therefore, I am of the view that it is well within the power of revisional Court to entertain additional evidence by exercising its inherent powers. This Court would also place reliance on the latest judgment rendered by the Co-ordinate Bench of this Court in the case of Eshwarappa vs. Dasappa, MANU/KA/9063/2019 in Civil Revision Petition No. 216 of 2016 (SC) decided on 13.2.2019. In the said case, this Court was of the view that even revisional Court in deserving cases can accept additional evidence to effectively adjudicate the controversy between the parties. 12. Similar view is expressed by the Co-ordinate Bench of this Court in catena of judgments. In HRRP No. 50/2018 (EVI) in the case of Srinivas Reddy vs. Laxmi, MANU/KA/4895/2021 the Co-ordinate Bench of this Court while entertaining revision petition entertained additional evidence, which was in the form of certified copy of the sale deed and allowed the application and consequently took the additional evidence on record and thereafter proceeded to decide the case. Similar view also finds place in the judgment rendered by the Coordinate Bench of this Court in the case of Mohammed Nasarulla Sheriff vs. Azra Shameem and Others, 2009 (5) Kar. L.J. 516 in HRRP No. 651/2003 decided on 20.09.2008. The Punjab and Haryana High Court in the case of Mahavir Jain Shoe Store vs. Gian Chand Loomba and Others, 2000 (1) PLR 35 while entertaining revision has held that the provisions under Order XLI Rule 27 of CPC primarily are meant for the appellate court but its operation can be stretched even to the revisional jurisdiction by adopting the principles. If all these judgments cited supra are looked into, I am of the view that the latest judgments which are cited by this Court supra are latter in point of time and therefore, the judgments cited by the counsel appearing for respondent-defendant that revisional court has no power to look into the additional evidence cannot be accepted in the light of the principles discussed supra. 13. If the judgments, which are cited by this Court are taken into consideration, what emerges is that the High Court while exercising the revisional jurisdiction under section 115 of CPC has to accept the facts of the case as they are and find out as to whether the decision contains any errors of law or legal infirmities, which can be corrected or removed and if the record does not disclose any such error or infirmity, it has no jurisdiction to interfere with the order under challenge. What would emerge from the underlying principles is that the revisional court cannot add new and subsequent events to the record. If these principles are examined in the context of the present case on hand, this Court would find that the petitioners did not intend to add new or subsequent events. The petitioners in the present case have sought leave of this Court to produce certified copy of the sale deed dated 07.07.2017 executed by erstwhile owners of the suit property and the purchase was communicated to the defendant and on account of attornment of tenancy, respondent-defendant was directed to pay monthly rent. I do not find any new facts or any new subsequent events, which are sought to be incorporated or pleaded by way of additional evidence. Therefore, the additional evidence, which is sought to be produced by the petitioner, is just a copy of the sale deed, which can be accepted in the revision proceedings. 14. In the present case on hand, the petitioner is asserting and claiming ejectment based on title and the respondent-defendant admittedly does not have any independent right in the suit property. The judgments cited supra which are latter in point of time, clearly indicate that the procedural technicalities should not come in the way of justice. From this analogy, it can be stated that additional evidence can be received even in revisional proceedings. The judgments cited supra which are latter in point of time, clearly indicate that the procedural technicalities should not come in the way of justice. From this analogy, it can be stated that additional evidence can be received even in revisional proceedings. The only limitation where the authority of revisional court has certain restrictions while exercising revisional jurisdiction is, the revisional Court should not trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore the limitations inherent in the exercise of revisional powers. By admitting additional evidence, I am of the firm view that this Court has not at all encroached upon the Appellate jurisdiction vested with the power of receiving additional evidence under Order XLI Rule 27 of CPC. 15. This Court has to bear in mind that in a given set of facts, there are compelling reasons and the additional evidence has to be received so as to minimize the litigation. There should not be any difficulty in applying the same principle to the litigation which comes to court under the provisions of Small Cause Courts Act. If a narrow view is taken to the effect that the revisional courts cannot entertain the application under Order XLI Rule 27 of CPC, it will result in defeating the valuable rights of the parties. Law cannot be static and its interpretation has to be dynamic. Therefore, this Court is of the view that the present case on hand, warrants indulgence at the hands of this Court though arising out of a revision petition filed under section 115 of CPC. I am of the firm view that in the present case on hand, the additional evidence deserves to be taken on record. 16. In the present case on hand, the petitioners have acquired valid right and title over the suit property and therefore, have filed ejectment suit. The respondent-defendant has disputed the title. Merely because respondent-defendant disputes the title that does not oust the jurisdiction of Small Cause Court in examining whether there is valid termination of tenancy. The petitioners under the bona-fide impression that documents placed during trial would be sufficient, have proceeded with the suit. However, the Small Cause Court has come to the conclusion that no title documents are produced. Merely because respondent-defendant disputes the title that does not oust the jurisdiction of Small Cause Court in examining whether there is valid termination of tenancy. The petitioners under the bona-fide impression that documents placed during trial would be sufficient, have proceeded with the suit. However, the Small Cause Court has come to the conclusion that no title documents are produced. If petitioners have acquired valid right and title, they cannot be non-suited and delivery of possession cannot be denied on the ground that title documents are not produced. If such recourse is adopted, the petitioners, who are the owners of the suit property would lose their valuable rights in the property and this would result in wrongful gain to the respondent-defendant, who is just a tenant under the petitioners. Therefore, to do substantial justice, this Court is of the view that the additional evidence is very much essential and this Court is bound to take cognizance of the additional evidence. It appears that the petitioners under the bona-fide impression that copy of the lease deed and property tax extract would suffice to seek possession might not have chosen to produce copy of the sale deed. The reasons assigned while producing additional evidence appears to be probable and quite satisfactory. Therefore, I am of the view that the additional evidence deserves to be admitted on record. 17. While exercising revisional jurisdiction, this Court cannot substitute its decision, which is not permissible under law. In that view of the matter, I am of the view that this is a fit case to remit the matter to the Court below with a direction to consider additional evidence and thereafter proceed to pass appropriate orders after affording opportunity of hearing to both the parties. Since both the parties are represented by their respective counsel, they are directed to appear before the Small Cause Court on 15.03.2022 without expecting further notice. 18. The petitioner is seeking possession on the ground that respondents-defendants tenancy is terminated. Therefore, the Small Cause Court is hereby directed to dispose off the suit within a period of three months from the date of receipt of records. 19. In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.