Karnataka High Court
Praveen Kumar S/O Udayaraj And Udayaraj ... vs Ramesh Chand Bamboli S/O Ganeshmal on 30 May, 2007
Equivalent citations: 2008 (1) AIR KAR R 519
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. Both these revision petitions are filed by the petitioners under Section 46(1) of the Karnataka Rent Act, 1999, challenging the order passed by the 9th and 19th Addl. Small Causes Judge, Bangalore, in HRC. Nos. 3/2005 and 4/2005.
2. The main grounds urged by the petitioners in HRRP. 492/2006 is that the finding recorded by the trial Court that there is no relationship of landlord and tenant between them is totally incorrect and perverse. The respondent has admitted the tenancy under the deceased mother of the first petitioner. The Court below has totally failed and ignored to consider the lease deed executed by late Pistabai in favour of the respondent. The trial Court has not provided sufficient opportunity for leading oral evidence in HRC.4/2005 filed by this petitioner against the very same respondent in respect of another land. There also the respondent had raised similar contentions disputing the relationship of landlord and tenant, But the Court below held that there is a relationship of landlord and tenant and that itself is sufficient to hold that there is a relationship of landlord and tenant. Therefore, the finding recorded in HRC.3/2005 that there is no relationship of landlord and tenant between the petitioner and respondent is liable to be set aside by allowing the revision petition.
3. The grounds urged in HRRP. 504/2006 is that the petitioner No. 1 is none other than the son of the 2nd petitioner born through been brought on record as her legal the petitioners' heir in HRC. Nos. 49/97 and 50/97. The said petitions were dismissed for default The 2nd petitioner gifted the petition schedule properties to his son 1st petitioner. The respondent is a chronic defaulter in payment of rent and the respondent is in arrears of rent from 1.7.1996. The schedule premises is required for the petitioners own use and therefore, they filed the eviction petitions HRC.3 and 4 of 2005 and that they are entitled to recover the arrears of rent from the respondent and the lease deed has been produced by the petitioner in both the cases and the trial Court has failed to take into account the same and has wrongly come to the conclusion and passed the order in HRC.4/2005 holding that the 1st petitioner is entitled to get the rent of Rs. 250/- only from December 2000 till today even though the eviction petition has been filed for recovery of arrears of rent on 1.7.1996. Hence, these revision petitions.
4. Heard the arguments of the learned Counsel for the revision petitioners and the learned Counsel for the respondent in both the cases.
5. During the course of arguments, learned Counsel for the revision petitioners in HRRP. 504/96 contended that during the pendency of the eviction petition in HRC.4/2005 they filed an application before the trial Court to direct the respondent to pay the arrears of rent to the tune of Rs. 29,500/- i.e., at the rate of Rs. 250/- p.m. from 1.7.1996 to 31.3.2006. It is contended that the petitioners are none other than the legal heirs of the deceased Pistabai, who was the landlady in respect of both the petition schedule premises. It is also contended that the deceased Pistabai had filed HRC.49 and 50 of 1997 against the very respondent for non payment of arrears of rent. So, after the death of Piste Bai, petitioner No. 2/Udayaraj filed an application under Order 22 Rule 3 CPC in HRC.49 and 50 of 1997 and came on record as the legal heir. But, unfortunately the said application was dismissed and therefore, he has challenged the same before this Court in HRRP.407 and 408/98 and this Court heard both sides and allowed the I.A. filed by the petitioner and he was brought on record. However, it is submitted that the said eviction petitions came to be dismissed for default. It is contended that in the said HRC petition, the very respondent has admitted the relationship of landlord and tenant. When once he has admitted the jural relationship of landlord and tenant, the petitioner is not expected to prove the same once again and that the respondent is estopped from taking a different contention in the subsequent proceedings. Therefore, the trial Court has ignored the documents produced by the petitioners before it and has come to a wrong conclusion that by virtue of the gift deed, petitioner No. 1 is entitled to collect the arrears of rent only from 14.2.2000 as per Ex.P.2. It is further contended that petitioner No. 2 is entitled to collect the rent from the respondent from 1.7.1996 as the legal heir of late. Pistabai. It is also contended that the second petitioner being the father of the petitioner stated that he has no objection to pay the arrears of rent to his son. The petitioners being the legal heirs are entitled to claim and collect the arrears of rent from 1.7.1996 but not from the date of execution of the gift deed. It is also argued that the respondent is expected to pay the arrears of rent from 1.7.1996. Hence, the finding recorded by the trail Court on I.A.II in HRC.4/2005 is liable to be set aside and the application filed by the petitioners are liable to be allowed in full. It is further contended that the respondent has not challenged the orders passed in I.A.II in HRC.4/2005 and therefore, when once he has not challenged the order with regard to the relationship of landlord and tenant, he cannot now contend that there is no relationship of landlord and tenant in HRC.3/2005. Therefore, the orders passed by the trial Court in both the cases are erroneous, incorrect, illegal and the same are liable to be set aside.
6. In support of all these contentions, learned Counsel for the revision petitioner brought to the notice of this Court the objection filed by the respondent in both the revision petitions which discloses that the respondent has clearly admitted with regard to the relationship of landlord and tenant in respect of the petition schedule premises i.e. a godown. Therefore, he prays for allowing both the revision petitions.
7. On the other hand, learned Counsel for the respondent contended that the first petitioner has become the owner of the property from 14.2.2000. Therefore, the trial Court has rightly allowed LA. No. II in HRC.4/2005 filed by the petitioners partly directing the respondent to pay arrears of rent from 14.2.2000 till December 2004. The revision petitioners are not entitled to file eviction petition on the ground that the respondent has not paid the rent from 1,7.1996 onwards. As on that date the first petitioner was not the owner of the petition schedule premises. Therefore, the order passed by the trial Court in HRCNo.4/2005 is in accordance with law which does not require any interference. In HRC. No. 3/2005 the trial Court rightly observed that no documentary evidence is placed by the petitioner to substantiate that late Pista Bai died during the pendency of the earlier eviction petition. The question of claiming arrears of rent by the petitioners will arise-only subsequent to the death of Pista Bai and the petitioners have no right to claim arrears of rent for the period prior to her death. It is contended that the trial Court is right in dismissing I.A. No. 1 and allowing LA. No. II filed in HRC. No. 3/2005. While arguing the case, learned Counsel for the respondent submitted that by virtue of the Will executed by late Smt. Pista Bai in favour of second petitioner, second petitioner has not filed any eviction petition but he executed a Gift Deed in favour of the first petitioner on 14.2.2000. Therefore, both the revision petitioners are not entitled to claim arrears of rent from 1.7.1996. It is contended by the learned Counsel for the respondent that since there is a serious dispute with regard to the jurat relationship of landlord and tenant, no documentary evidence is produced before the Court to prove the said relationship. Therefore, the Court-below in HRC.3/2005 has rightly rejected I.A. No. I filed by the petitioner seeking direction of Court for payment of arrears of rent and also rightly allowed IA. No. II filed by the respondent for stopping further proceedings as there is no relationship of landlord and tenant between the parties. In support of this contention, learned Counsel for the respondent relied on the following decisions:
(a) 2005(4) KCCR 2530 (Y. Abdula Kunhi and Anr. v. B. Ibrahim) wherein it has been held as follows:
The relationship of landlord and tenant is sine qua non for maintaining an eviction petition-Section 43 of the Act indicates that when the Court is unable to prima facie come to the conclusion that there exists a relationship of landlord and tenant and if the dispute is a serious one and requires further examination, it is only the Civil Court, which can have jurisdiction and not the Court under the Act.
(b) A.I.R. 1989 Patna 13 (Ram Tahal Modi v. Ratan Lal) wherein it has been held as follows:
Headnote (B):-Bihar Buildings Lease (Rent and Eviction) Control Act (4 of 1983), Sections 11(1)(d), 2(f)-Suit for eviction-Transfer of suit property during pendency of suit-Transferees added as plaintiffs-Defaults in payments of rents committed by tenants long before the transfer-Transferees not the landlords when default was committed-Transferees could not get any advantage of these defaults for evicting the tenants.
(c) (Rabbaiah Reddy and Ors. v. Udaya Chandra) wherein it has been held as follows:
Karnataka Rent Act, 1999-Section 27(2)(e) AND (r)- Eviction petition under-By the legal representative of the landlord-Jural relationship of landlord and tenant-Denial of-Failure of the petitioners to establish jural relationship-Finding of both the Courts below-Dismissal of eviction petition-Revision against-ON FACTS, HELD: Both the Courts below have specifically recorded a finding that there is a complicated dispute regarding the title of the petitioners. The Courts below have directed the parties of approach the competent Civil Court for declaration of their rights. Hence interference lay this Court not justifiable.
(d) (B. Shariff and Ors. v. A. Mohammed Noor and Anr.) wherein it has been held as follows:
When there is a serious dispute regarding the title of the property, the rent control Court is debarred from proceeding with the matter. The Court shall direct the parties to approach the Civil Court for adjudication of their rights. The Rent Control Court has to defer all further proceedings before it, till the final decision of the Civil Court in respect of declaration of title of the property.
Therefore it is submitted that the trial Court has rightly considered the entire material placed on record by both parties and came to the right conclusion in partly allowing I.A. NO. II filed by the petitioners in HRC No. 4/05 i.e. in HRRP. NO. 504/06 and also rightly allowed the IA.II filed by respondent in HRC. No. 3/2005 i.e. in HRRR No. 492/06 respectively.
8. Having heard the arguments of the learned Counsels for the parties, the questions that arise for consideration and determination are:
(a) Whether the finding recorded by the trial Court in HRC. No. 4/2005 is incorrect and illegal? If so, what order?"
(b) Whether the order of allowing of IA No. II filed by the petitioner in HRC. No. 3/2005 i.e. in HRRP. NO. 492/2006 is illegal and incorrect?
9. As could be seen from the material on record, deceased Pista Bai was the owner of the petition schedule premises in both cases and she entered into a lease agreement with the respondent. The shop premises in HRC.4/2005 was let out to the respondent on a monthly rent of Rs. 250/- whereas the petition schedule premises in HRC.3/2005 is a godown and the same was let out to the respondent at Rs. 451/- per month. During the lifetime of Smt. Pista Bai, she filed two eviction petitions against the very same respondents i.e., HRC. No. 49/97 and HRC. No. 50/1997 in the capacity of an absolute owner. The respondent was a chronic defaulter in payment of rent. The said eviction petitions were filed before the XVI Addl. Judge, Court of Small Causes, Bangalore. It is an admitted fact that during the lifetime of Smt. Pista Bai, she executed a Will in favour of second petitioner who is none other than her husband bequeathing both the petition schedule premises. During the pendency of the said earlier eviction petitions, Smt. Pista Bai died. Therefore, the second petitioner being her husband and legal heir filed an application under Order 22 Rule 3 C.P.C. before the trial Court. Unfortunately, that L.R. application came to be dismissed. The petitioner No. 2 has challenged the order of dismissal of his L.R. application before this Court in HRRP. Nos. 407 and 408/1998. This Court after considering the materials placed on record found that the trial Court has wrongly come to the conclusion in dismissing the I.A. II filed under Order 22 Rule 3 C.P.C. and allowed the revision petitions by setting aside the order passed by the trial Court and allowed the said IA. NO. II by permitting the petitioner No. 2 herein to come on record as the legal representative of the deceased landlord by amending the cause title. It is also an admitted fact that during the pendency of HRC.Nos. 407/98 and 408/98, the earlier eviction petitions were dismissed for non-prosecution but this will not absolve the rights of the petitioners to file fresh eviction petitions against the respondent. Therefore, respondent No. 2 being a legatee under the Will executed a Gift Deed in favour of his son petitioner No. 1 who is also a legal heir of late Pista Bai. So in the capacity of a legal heir as well as owner of the property, the petitioners filed both HRC. Nos. 3/2005 and 4/2005 against the very same respondent. No doubt the application filed by the revision petitioners under Section 45(1) of the K.R. Act was partly allowed directing the respondent to pay the arrears of rent from 14.2.2000 up to date. As could be seen from the materials placed on record, when once the respondent admitted the relationship of landlord and tenant in the earlier proceedings i.e. in HRC. Nos. 49/97 and 50/97, he cannot now contend before the trial Court in HRC. 3/2005 that there is no relationship of landlord and tenant between the petitioners and the respondent. More over, the trial Court in HRC.4/2005 passed the order holding that there is a relationship of landlord and tenant and the respondent has not challenged the said order but the learned Small Causes Judge in HRC.3/2005 without considering the admissions made by the respondent in the objection statement filed in the earlier proceedings passed the order holding that there is no relationship of landlord and tenant between the parties. The revision petitioner No. 2 being a legatee under the Will executed a Gift Deed in favour of his son i.e. petitioner No. 1. The respondent being a tenant is bound to pay the arrears of rent. Petitioner is entitled to recover the arrears of rent in the capacity of a legal heir as well as owner of the premises. It is clear from the materials placed on record that after the death of Pista Bai on the basis of the Will a notice of attornment has been issued to the respondent by petitioner No. 2. Therefore, when once the respondent admits that earlier there was a lease deed entered into between him and deceased Smt. Pista Bai on 5.9.1977, now he cannot contend that there is no relationship of landlord and tenant between him and the petitioners. Therefore, the finding recorded by the trial Court that the respondent has raised a serious dispute with regard to the jural relationship of landlord and tenant which is to be adjudicated by the competent Civil Court is totally incorrect and illegal. More over, the Order Sheet maintained by the trial Court indicates that sufficient opportunity has not been given to the petitioners to put forth their arguments. Therefore, it could be said that the trial Court without considering the material placed on record and the lease deed produced came to the wrong conclusion in holding that there is no relationship of landlord and tenant between the parties and wrongly dismissed the application. More over, I.A. No. 1 filed by the respondent in HRC. No. 3/2005 that the petition schedule premises is a non-residential premises wherein he is carrying on commercial activities and it measures 14 Sq.Mts. The trial Court has not recorded its finding on this point and only on the ground that no documentary evidence has been placed to substantiate that Smt. Krishna Bai died during the pendency of the proceedings. On this Count alone the trial Court came to a wrong conclusion. But the Orders passed by this Court in HRRP. Nos. 407 and 408/1998 discloses that after the death of Smt. Pista Bai the petitioner No. 2, husband of Smt. Pista Bai filed an L.R. application without considering all these documents, came to the wrong conclusion in holding that there is no jural relationship of landlord and tenant.
10. Therefore, the Order passed by the trial Court in HRC. No. 3/2005 i.e. in HRRP. No. 492/06 on IA No. II is hereby set aside and the matter is remitted to the Tribunal for disposal in accordance with law, holding that there is a relationship of landlord and tenant between the parties.
11. Likewise, the Order passed by the trial Court in HRC. No. 4/2005 i.e. in HRRP 504/06 in partly allowing the application filed by the petitioners under Section 45 of the K.R. Act, 1999 is hereby modified and the petitioner No. 1 is entitled to receive the arrears of rent at the rate of Rs. 250/- per month from 1.7.1996 up to date and the respondent shall pay the monthly rent as and when they fall due in future. For the foregoing reasons, both the revision petitions are allowed.