Karnataka High Court
P. Khaja Bee W/O Natwar @ Aslam, vs G. Pandurangappa S/O Ekambrappa on 18 August, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 18th Day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal No.5495 / 2011
Between:
P.Khaja Bee
W/o Natwar @ Aslam,
Aged 48 yrs, Occ: Business
R/o D.No.109, Ward No.XI
Pinjar Street, Bellary. .. Appellant
( By Sri B.Chidanand, Advocate )
And:
1. G.Pandurangappa
S/o Ekambrappa
67 yrs, Business,
C/o Bombay Dying Cloth Showroom
Car Street, Bellary.
2. Bellary City Corporation,
Bellary, rep.by its Commissioner
Bellary.
3. The Gulbarga Electricity Supply
Company Ltd., Rep.by its
Executive Engineer,
Gandhinagar, Bellary. .. Respondents
( By Sri P.S.Bendigeri, Advocate for R-1
and Sri Shivaraj Hiremath, Advocate for R-2 )
This Regular Second Appeal is filed under Section 100 of CPC
against the judgment and decree dated 31.1.2011 passed in
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R.A.No.2/2010 on the file of I Addl.Senior Civil Judge, Bellary, dismissing
the appeal by confirming the judgment dated 7.12.2009 passed in Decree
O.S.No.156/2008 on the file of the III Addl.Civil Judge (Jr.Dn.) Bellary,
partly decreeing the suit filed for eviction and injunction.
This Appeal coming on for orders this day, the Court delivered the
following:
JUDGMENT
This Second Appeal is by the defendant challenging the judgment passed by the I Addl.Senior Civil Judge, Bellary, in R.A.No.2/2010, dated 31.1.2011, confirming the judgment and decree passed by the learned III Addl.Civil Judge (Jr.Dn.), Bellary, in O.S.No.156/2008, dated 7.12.2009.
2. Plaintiff-respondent No.1 filed a suit for eviction of defendant from suit schedule property bearing No.109-A, Ward No.11, Pinjar Waadi, Jumma Masjid Street, Bellary and for consequential relief of mandatory injunction to disconnect the electricity connection. The suit premises was let out on monthly rent of Rs.2,500/-. Stating the defendant-tenant is in arrears of rents from April 2007, suit came to be filed under Section 106 of Transfer of Property Act. The grievance of the plaintiff is that house property was converted for 3 commercial purpose without consent and permission, it is an old building in a dilapidated condition which is good only for residential purpose and defendant is manufacturing bed by using 5 HP motor and hence damage is being caused to walls and roofs and he has got alternative accommodation at Door No.18, Ward No.11, measuring 10 x 20 ft. Stating that defendant had failed to pay arrears of electricity bill, that plaintiff is doing wholesale cloth business elsewhere and he requires the suit schedule property for the godown, suit came to be filed.
3. The suit was contested by defendant denying all the averments. He had also filed written statement. The trial Court having raised as many as eight issues for consideration, after enquiry, held that there exists relationship of landlord and tenant, defendant had renewed the licence and that suit is maintainable, decreed the suit thereby ordering the defendant to evict the suit schedule premises. Against this, defendant preferred R.A.No.2/2010. The lower Appellate Court by the impugned judgment, 4 confirmed the judgment and decree passed by the trial Court. Hence, this second appeal.
4. The learned counsel for the defendant-tenant submitted that the there is a substantial question law being raised before both the Courts below with regard to manufacturing activity being carried out by the defendant, the same has not been considered and the notice issued by the plaintiff as per Section 106 of T.P.Act is not in accordance with law and accordingly, sought to allow the appeal.
5. Having heard the learned counsel for respective parties, the substantial question of law that arise for consideration is as to "whether there is any justification for the appellant-defendant in seeking reversal of the order passed by both the Courts below on the ground that notice issued under Section 106 of Transfer of Property Act is not in accordance with law?".
6. Admittedly the suit schedule premises is converted into commercial premises. The defendant-tenant has enjoyed the premises for nearly 8 years after 5 commencement of litigation. Plaintiff sought possession of premises for shifting his business to the petition premises and also notice has been issued by the plaintiff as well as his predecessor. In the circumstances, it is to be said that there is compliance of requirement as per the T.P.Act. Hence, there is no scope of interference with the order passed by both the Courts below.
However, appellant-tenant is granted time till end of December 2015, subject to payment of rent of Rs.3,500/- from 1st September 2014 till December 2015 and also subject to payment of arrears of rent within eight weeks from today. The appellant shall file an undertaking in this regard within two weeks, failing which, plaintiff is at liberty to enforce the decree by filing Execution Petition.
Appeal is disposed of accordingly.
Sd / -
Judge bk/-