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2023 DIGILAW 801 (KAR)

Syed Humayun v. S. G. Jayagopal

2023-06-23

H.P.SANDESH

body2023
ORDER : This revision petition is filed challenging the order passed by the Trial Court in H.R.C.No.16/2008 dated 01.10.2013 allowing the petition filed under Section 27(2), (a) and (r) of the Karnataka Rent Act, 1999 directing the petitioner herein to quit and vacate the premises within one month from the date of the order and also directed to pay Rs.41,000/-computing the rent at the rate of Rs.1,000/-per month from 17.07.2007 to 17.11.2007 and the rents accrued thereafter within one month from the date of the order. The revision petitioner has also challenged the order of dismissal passed by the Rent Revision Court in R.R.No.69/2013 dated 30.09.2015 confirming the order of the Trial Court granting 90 days time to vacate the premises from the date of the said order. 2. The factual matrix of the case of the respondent-landlord before the Trial Court is that he had purchased the petition schedule premises from previous owner Smt. Rani Balu G. At the time of purchase, the respondent therein was residing in the petition schedule premises as tenant. After purchase, the vendor of the petitioner issued the letter of attornement dated 09.12.2004 and since then, the respondent is continuing as a tenant of the schedule premises under the petitioner. The tenancy is oral tenancy and the rate of rent is Rs.1,000/-per month. The petitioner issued the legal notice dated 23.11.2007 calling upon the respondent to pay the arrears of rent, the respondent not paid the rents. The petitioner is a retired railway employee and he required the schedule premises for his bonafide use and occupation. The petitioner wants to accommodate his son, who is married and unemployed. 3. In pursuance of the petition, the respondent appeared before the Court and filed the written statement denying all the averments made in the eviction petition and contend that, Smt. Rani Balu G. borrowed a sum of Rs.1,40,000/-by agreeing to mortgage the schedule premises to the respondent and put the respondent in possession of the schedule premises and she also executed the mortgage agreement dated 22.03.2003 in favour of the respondent. Subsequent to that, Smt. Rani Balu G., by agreeing to sell the schedule premises for Rs.5,60,000/-, received Rs.2,75,000/-as part consideration. In this regard, public notice is also issued and the petitioner knowing all these aspects, filed this petition. Subsequent to that, Smt. Rani Balu G., by agreeing to sell the schedule premises for Rs.5,60,000/-, received Rs.2,75,000/-as part consideration. In this regard, public notice is also issued and the petitioner knowing all these aspects, filed this petition. It is also contended that the respondent filed the suit in O.S.No.174/2008 for specific performance of the contract. 4. Having taken note of the pleadings of the parties, the Trial Court allowed the petitioner to prove his case and hence, the petitioner examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents as Exs.P1 to P7. The Court, by order dated 16.01.2013 allowed the petition and the respondent challenged the said order by filing Rent Revision No.10/2003 and the Court was pleased to allow the revision petition and remanded the matter with a direction to dispose of the same in accordance with law by giving an opportunity to the respondent to cross-examine the petitioner and permit him to lead evidence. Accordingly, after remand, the petitioner was subjected for further cross-examination. The respondent got examined himself as R.W.1 and got marked the documents as Exs.R1 to R9. 5. The Trial Court, having considered both oral and documentary evidence placed on record, answered the points for consideration as affirmative, in coming to the conclusion that there exists jural relationship and the petitioner also proved the fact that schedule premises is required for his bonafide use and occupation and also comes to the conclusion that the respondent is in arrears of rent and not paid the rent, inspite of legal notice being issued and allowed the petition filed under Section 27(2), (a) and (r) of the Karnataka Rent Act, 1999. The same was challenged before the Rent Revision Court which is numbered as R.R.No.69/2013 and the Rent Revision Court, on appreciation of both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court. Hence, the present petition is filed before this Court. 6. The main contention of the learned counsel appearing for the revision petitioner before this Court is that both the Courts committed an error and the Trial Court failed to note that the petitioner has been in possession of the schedule premises on the basis of the agreement of sale dated 24.04.2004. 6. The main contention of the learned counsel appearing for the revision petitioner before this Court is that both the Courts committed an error and the Trial Court failed to note that the petitioner has been in possession of the schedule premises on the basis of the agreement of sale dated 24.04.2004. Previously, the petitioner and his mother were in possession of the schedule premises by virtue of the agreement to mortgage dated 22.03.2003 executed by Smt. Rani Balu G. It is contended that, nothing was produced by the respondent to show that there exists jural relationship of landlord and tenant between the petitioner and the respondent. Both the Trial Court and the Rent Revision Court have failed to take into consideration said crucial aspect of the matter. The counsel would vehemently contend that the respondent has not produced any receipt or acknowledgement for payment of rent. There is no document of lease or any other document to prove the case of alleged tenancy between the petitioner and Smt. Rani Balu G. The counsel also would vehemently contend that though the Trial Court passed an order dated 13.10.2011 stating that the I.A. under Section 45 would be considered at the time of final disposal, the same was not considered at all at the time of final disposal and the same was not considered in proper perspective by the Rent Revision Court. It is contended that the Rent Revision Court committed an error in coming to the conclusion that agreement of sale is not produced by the petitioner and failed to note that Ex.R8 is the sale agreement relied upon by the petitioner. The mortgage agreement is also produced in R.R.No.10/2013 and the same is also part of the records and the same has not been considered. It is contended that both the Courts committed an error and failed to note that in Ex.P1-sale deed dated 17.07.2004, it is stated that one Khattunnissa, mother of one Syed Hussain is the tenant in possession of the schedule premises and the Trial Court failed to consider both mortgage deed as well as agreement of sale and committed an error. Hence, it requires interference. 7. The learned counsel for the petitioner, in support of his argument, relied upon the judgment of this Court in JOSEPH KANTHARAJ AND ANR. VS. Hence, it requires interference. 7. The learned counsel for the petitioner, in support of his argument, relied upon the judgment of this Court in JOSEPH KANTHARAJ AND ANR. VS. ATTHARUNNISA BEGUM S. reported in 2010 AIR SCW 1411 and brought to notice of this Court Para No.7, wherein this Court held that, it is not disputed that the first appellant had filed a suit for specific performance in O.S.No.2089/1999 and the same is pending. The first appellant has contended that he has not paid any rent from the date of agreement (11.06.1997) as he was permitted to continue in possession of the suit premises in part performance of the agreement of sale. No acknowledgement in writing by the appellant that he is the tenant after 11.06.1997, nor any receipt or document to establish that any rent was paid by the first appellant to the respondent, was produced. In these circumstances, having regard to the provisions of Section 43 of the new Act, the Trial Court was justified in holding that the eviction petition should be deferred till the decision in the suit for specific performance. 8. The counsel also relied upon the order of this Court in MR. M. SHANTHILAL JAIN VS. MR. M. UGAMRAJ JAIN in H.R.R.P.NO.47/2013 dated 05.03.2015 and brought to notice of this Court Para No.10, wherein discussed with regard to Section 43 of the Act and also Para Nos.11 and 12, wherein it is held that the rent Court being the Court with limited jurisdiction cannot go into that question and it has to be decided by a Civil Court of competent jurisdiction. 9. The counsel also relied upon the judgment of this Court in R.SHARIFF AND ORS. VS. A. MOHAMMED NOOR AND ANR. reported in ILR 2004 KAR 1546 and brought to notice of this Court Para No.14, wherein also it is discussed with regard to Section 43 of the Karnataka Rent Act and so also brought to notice of this Court Para No.15, wherein it is observed that, if there is a bonafide dispute between the parties as to the existence of such relationship between the parties, the Court exercising special jurisdiction under Section 8 of the Act, cannot decide that question; nor can the Court proceed with the petition for eviction on the basis that such relationship exists between the parties. The counsel also brought to notice of this Court Para No.17, wherein it is observed that the applications maintained by the respondents in the Trial Court for deferring the eviction proceedings until the title is decided cannot be said to be either frivolous or to drag on the proceedings. 10. The counsel also relied upon the judgment of this Court in SHRI DYNESHWAR KHIRU GHADI VS. SMT. RAMAKKA reported in 2018 (3) KCCR 2169 and brought to notice of this Court Para Nos.5 and 6, wherein this Court has discussed with regard to Order XLI, Rule 27 of C.P.C. for acceptance of additional evidence in accordance with law. 11. The counsel also relied upon the judgment of this Court in AYESHA BEGUM VS. SHAHZADI reported in ILR 2003 KAR 4255, wherein this Court has discussed with regard to the object of Section 43 and observed that the object sought to be achieved by the provision is to eschew all cases in which there is a dispute as to the existence of relationship of landlord and tenant. It is also observed that the High Court sitting in revision under Section 115 of C.P.C. can take cognizance of the findings recorded by the Courts below to give a direction under Section 43 of the Act and the counsel also referred Para Nos.5, 6 and 7 of the judgment. 12. The counsel also relied upon the judgment of this Court in PRATAPSINGH AND OTHERS V. JAIBUNNISA BEGUM AND ANOTHER reported in AIR 1989 KAR 70 , wherein this Court has observed that, when relevant materials prima facie supports the plea, the plea can be allowed to be raised in revision within judicial discretion of High Court and brought to notice of this Court Para Nos.16 and 19 of the judgment. 13. The counsel also relied upon the judgment of this Court in VEERA VAHANA UDYOG PVT. LTD., REP. BY ITS M.D. VS. THE KARNATAKA STATE ROAD TRANSPORT CORPORATION, REP. BY MANAGING DIRECTOR AND OTHERS reported in ILR 2010 KAR 507 and brought to notice of this Court Para Nos.42 and 43, wherein also discussed with regard to consideration of application at the earliest point of time and contend that the application filed under Section 43 was not considered by the Trial Court. 14. The counsel also relied upon the judgment of this Court in M.T. NARAYANAGOWDA VS. SMT. 14. The counsel also relied upon the judgment of this Court in M.T. NARAYANAGOWDA VS. SMT. MACHAMMA reported in ILR 2005 KAR 182 and brought to notice of this Court Para Nos.9, 12 and 13, wherein it is observed that, if the relationship had continued as between the erstwhile owner and the person in possession, as a landlord and tenant, and at such time the sale takes place, then only the subsequent purchaser also steps into the shoes of the erstwhile owner and the relationship can be said to have continued. 15. The counsel also relied upon the order of this Court in DRAKSHAYANI VS. MACHENDRANATH in H.R.R.P.NO.100015/2015 dated 27.03.2017, wherein this Court in Para No.15 discussed with regard to the pendency of the suit based on the sale agreement. 16. The counsel, referring these judgments would contend that, both the Trial Court as well as the Rent Revision Court committed an error in ordering for eviction of the petitioner and also to pay the arrears of rent and failed to consider both oral and documentary evidence placed on record. 17. Per contra, learned counsel for the respondents would vehemently contend that, in the sale deed which is marked as Ex.P1 itself, it is stated that this petitioner and his mother were the tenants. The counsel would vehemently contend that, earlier there was a mortgage agreement and the same is not produced before the Court and tenancy is attorned at the time of execution of the sale deed and subsequently, the landlord also issued legal notice calling upon the petitioner to pay the rent and the same is marked as Ex.P3 and no reply was given and the said notice was disputed only in R.A.No.37/2018 and not in the earlier proceedings. The counsel also would vehemently contend that suit for specific performance is filed only after filing of eviction petition and fake sale agreement was created and based on the said fake sale agreement, suit was filed questioning the mortgage agreement allegedly executed and the same is also not stamped and produced before the Trial Court. Hence, the very contention of the petitioner that both the Courts committed an error cannot be accepted. The counsel also produced the brief written statement on behalf of the respondents, wherein it is stated with regard to the materials relied upon by the Trial Court as well as the Rent Revision Court. 18. Hence, the very contention of the petitioner that both the Courts committed an error cannot be accepted. The counsel also produced the brief written statement on behalf of the respondents, wherein it is stated with regard to the materials relied upon by the Trial Court as well as the Rent Revision Court. 18. The learned counsel for the respondents, in support of his argument, relied upon the judgment of the Apex Court in JOSEPH KANTHARAJ AND ANOTHER VS. ATTHARUNNISA BEGUM S. reported in (2010) 2 SCC 619 , wherein the landlord and tenant relationship was discussed in detail and brought to notice of this Court Para No.10 with regard to Section 43 of the new Act, wherein it is observed with regard to word of caution and the Courts dealing with summary proceedings against tenants under the Rent Acts for eviction, should be wary of the defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the Court is satisfied prima facie that the agreement is genuine and defence is bonafide, it should not defer the proceedings for eviction under the Rent Acts. The counsel for the respondents referring this judgment would vehemently contend that suit for specific performance was dismissed and the same was challenged in R.A.No.37/2018 and the same was dismissed and R.S.A. is pending before the Court and hence, eviction proceedings should not be deferred. 19. The counsel also relied upon the judgment of this Court in K. AMARNATH VS. SMT. PUTTAMMA reported in ILR 1999 KAR 4634 and would contend that, in this judgment also, it is observed that, if any document is rejected as inadmissible, an endorsement has to be made as prescribed under Order XIII, Rule 6 of C.P.C. But, in the case on hand, though it is contended that there is a mortgage deed, the same is not marked and the same is inadmissible since, stamp duty is not paid. Hence, it is contended that both the Courts have taken note of the material available on record and not committed any error. 20. Hence, it is contended that both the Courts have taken note of the material available on record and not committed any error. 20. Having heard the learned counsel for the petitioner and learned counsel for the respondents, the point that would arise for consideration of this Court is: (1) Whether the Trial Court as well as the Rent Revision Court have committed an error as contended by the learned counsel for the petitioner and whether it requires interference of this Court? (2) What order? Point No.(1) 21. The main contention of the learned counsel for the petitioner before this Court is that both the Courts committed an error in not considering that petitioner has been in possession of the schedule premises on the basis of agreement of sale dated 24.04.2004. Having considered this contention, the document of Ex.R8 is the agreement of sale and the same is marked and having perused the said agreement of sale, it is seen that no such averment is made that petitioner has been put in possession of the schedule premises based on the agreement of sale and the same has been considered by the Trial Court as well as the Rent Revision Court. 22. It is also the contention of the learned counsel for the petitioner in ground No.(ii) of the revision petition that, previously, the petitioner and his mother were in possession of the schedule premises by virtue of the agreement to mortgage dated 22.03.2003 executed by Smt. Rani Balu G. In order to prove the said factum also, the document of agreement of mortgage was not produced before the Trial Court and hence, the said contention also cannot be accepted and unless the document is produced to prove that the petitioner and his mother were in possession of the schedule premises as mortgagee, the said contention also cannot be accepted. 23. On the other hand, it has to be noted that Smt. Rani Balu G. herself had executed a sale deed in favour of the landlord. It is also important to note that, in Ex.P1-sale deed, there is a reference that this petitioner and his mother are the tenants in the schedule premises and no dispute with regard to the fact that there is an averment in the sale deed itself. It is also important to note that, in Ex.P1-sale deed, there is a reference that this petitioner and his mother are the tenants in the schedule premises and no dispute with regard to the fact that there is an averment in the sale deed itself. It is also important to note that, a notice was issued by the landlord after purchasing the property, calling upon the petitioner herein to pay the rent and the same is also served on the petitioner herein and no reply was given and no explanation is given as to why the reply was not given, if really, the petitioner is a tenant in respect of the petition schedule premises. Apart from that, it is the claim of the petitioner that he is in possession of the schedule premises by virtue of the agreement to mortgage dated 22.03.2003 but, no such document is produced before the Court and the fact that he himself and his mother were in possession is not disputed and their owner, while executing the sale deed mentioned that they are the tenants and there is no explanation on the part of the petitioner for not giving any reply and non-payment of rent. 24. It is also settled law that, if no document evidencing the fact of tenancy is given and if it is an oral tenancy, the same has to be considered on merits. No doubt, an application is filed under Section 43 of the Karnataka Rent Act, 1999 and the Trial Court, while considering the application made it clear that the same will be considered at the time of considering the matter on merits, that does not mean that application also to be considered along with main and the issue with regard to jural relationship between the parties was considered at the time of considering the main petition and also answered with regard to the said issue which was raised before the Court and given the finding that there was reference in the sale deed itself that this petitioner and his mother were the tenants and before executing the sale deed and attornement of tenancy, notice was also issued and subsequently, after purchase also, notice was issued in terms of Ex.P3 by the landlord. The Trial Court and the Rent Revision Court, having taken note of Exs.P1, P2 and P3 comes to the conclusion that there was an attornement of tenancy. The Trial Court and the Rent Revision Court, having taken note of Exs.P1, P2 and P3 comes to the conclusion that there was an attornement of tenancy. 25. It is also important to note that, when the revision petitioner himself is not disputing the fact that he was staying along with his mother in the schedule premises in terms of the agreement of mortgage dated 22.03.2003, the same is not placed before the Court and when the document clearly discloses that attornement of tenancy notice was issued and also the fact that the landlord has purchased the property, the attornement of tenancy is by operation of law and when the property was purchased by the landlord from whom this petitioner took the possession of the premises and when the landlord has stated that they are the tenants and the subsequent purchaser also issued notice to the petitioner, the very contention of the learned counsel for the petitioner that no landlord and tenant relationship is established cannot be accepted. The petitioner herein ought to have given reply, if he really disputes the landlord and tenant relationship and no such reply was given and after thought, a defence was taken that there is no jural relationship between the petitioner and the respondents. 26. No doubt, the learned counsel for the petitioners relied upon several judgments of this Court and the Apex Court, particularly, the judgment of the Apex Court in JOSEPH KANTHARAJ’s case, the Apex Court has discussed in detail with regard to establishment of relationship between the parties when there is a dispute and held that, eviction petition should be deferred till the decision in the suit for specific performance is taken. But, in the case on hand, it has to be noted that there are several material on record to prove the fact that attornement of tenancy and notice was issued by the landlord i.e., the erstwhile owner and the subsequent owner also issued the notice to the petitioner and the same has been acknowledged and no reply was given. But, in the case on hand, it has to be noted that there are several material on record to prove the fact that attornement of tenancy and notice was issued by the landlord i.e., the erstwhile owner and the subsequent owner also issued the notice to the petitioner and the same has been acknowledged and no reply was given. The petitioner had also filed the suit for specific performance, subsequent to filing of the eviction petition and admittedly, both the suit and the appeal filed by the revision petitioner was dismissed for the relief of specific performance and mere pendency of R.S.A. cannot be a ground to defer the eviction proceedings and the judgments which have been relied upon by the learned counsel for the petitioners with regard to Section 43 of the Karnataka Rent Act, 1999 having considered the facts and circumstances of the case are not applicable to the facts of the case on hand. In the case on hand, the document of Ex.P1-sale deed is produced with regard to the jural relationship is concerned, wherein it is categorically mentioned that the petitioner and his mother were tenants in respect of the schedule premises and no reply was given, when notice was issued to the petitioner. Hence, the very contention of the revision petitioner cannot be accepted. No doubt, when there is a dispute between the parties with regard to the jural relationship but, in the case on hand, the same was considered while considering the main petition, though an application is filed under Section 43 of the Karnataka Rent Act, 1999. 27. Having considered both oral and documentary evidence placed on record, I do not find any error committed by the Trial Court as well as the Rent Revision Court while considering the material on record. Learned counsel appearing for the respondents also relied upon the judgment of the Apex Court in JOSEPH KANTHARAJ’s case and the very same judgment was also relied upon by the learned counsel for the petitioner and in Para No.10 of the said judgment, the Apex Court has observed that the Courts dealing with summary proceedings against tenants under the Rent Acts for eviction, should be wary of the defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the Court is satisfied prima facie that the agreement is genuine and defence is bonafide, it should not defer the proceedings for eviction under the Rent Acts and the same is applicable to the facts of the case on hand since, there is a dispute with regard to the agreement of mortgage as well as agreement of sale and based on the agreement of sale, the suit was filed and the same was dismissed and the appeal was also dismissed and only R.S.A. is pending. Under such circumstances, the principles laid down in the said judgment are aptly applicable to the facts of the case on hand and in the judgment relied upon by the respondent, it is held that if the suit is pending, only the eviction proceedings can be deferred but, in the case on hand, already the suit as well as the appeal are dismissed. 28. It is also important to note that the alleged agreement of mortgage was not produced before the Court and only the document at Ex.R8-sale agreement is produced before the Court. The learned counsel for the petitioner would vehemently contend that possession was given based on the sale agreement. However, on perusal of the sale agreement, no such averment is made and it is specifically mentioned that, possession will be delivered at the time of executing the sale deed. When such being the factual aspects, if really the petitioner is put in possession of the schedule premises in view of the agreement of lease of the year 2003 itself, there would have been reference in the sale agreement which is marked as Ex.R8 that the petitioner and his mother are in possession of the property in terms of the agreement of mortgage of the year 2003 and the same is not found in the said agreement. 29. 29. Under the circumstances, the very contention of the petitioner that he and his mother were in possession of the schedule premises as lease holders cannot be accepted but, the fact is that they have admitted the possession not as tenants and prior to sale made by the erstwhile owner, legal notice was issued in terms of Exs.P2 and P3 by the landlord and the same was served on the petitioner herein and he has not given any reply and also not stated anything about he was not a tenant and the recitals of Ex.P1-sale deed is very clear that they are the tenants and the same is mentioned in the registered document itself. Hence, it cannot be contended that there is no jural relationship of landlord and tenant between the parties and both the Courts have considered the material on record and rightly comes to the conclusion that jural relationship between the parties has been established and relationship is also established by operation of law. 30. Further, in the order of eviction which has been passed, both the Courts have taken note of the contents of Ex.P3-legal notice, wherein the landlord specifically demanded for payment of arrears of rent and inspite of service of notice, neither reply was given nor the rent was paid. It is the claim of the landlord, who is a retired railway employee that he is in need of the premises, since he has to accommodate his married son, who is unemployed and the same has not been seriously disputed by the petitioner herein and both the Courts have invoked Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999. Apart from that, the Courts have also taken note of Section 27(2)(o) since the very jural relationship and title is disputed by the revision petitioner, based on the sale agreement and he was unsuccessful in both the suit as well as the appeal. Under such circumstances, I do not find any merit in this revision petition to reverse the findings of the Trial Court and both the Courts have given anxious consideration to both oral and documentary evidence placed on record. Under such circumstances, I do not find any merit in this revision petition to reverse the findings of the Trial Court and both the Courts have given anxious consideration to both oral and documentary evidence placed on record. Hence, I do not find any error committed by the Trial Court as well as the Rent Revision Court and the contention that without considering the I.A. filed under Section 43 of the Karnataka Rent Act, 1999, the main petition cannot be disposed of cannot be accepted.. Accordingly, I answer the point framed by this Court as ‘negative’. Point No.(2) 31. In view of the discussions made above, I pass the following: ORDER The revision petition is dismissed.