Karnataka High Court
Smt. Dolli Bai vs Shri K.G. Umashankara on 3 September, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
C.R.P.No.299/2014
BETWEEN:
SMT DOLLI BAI
D/O SHRI N.R.SOLANKI
AGED ABOUT 60 YEARS,
W/O LATE SHRI HEMARAM CHOWDARY
RESIDING AT "ASHOK SADA",
2ND FLOOR, ADINARAYANASWAMY
TEMPLE STREET, COTTONPET,
BANGALORE - 560 055
ALSO AT
C/O HAKSA ELECTRO CONTROL
NO.20/1-2, GOWDAR COMPLEX,
A.M.LANE, CHICKPET,
B.V.K.IYENGAR ROAD CROSS,
BANGALORE - 560 053
REP. BY SPA HOLDER AND
SON SHRI ASHOK KUMAR CHOWDARY
...PETITIONER
(BY SRI SHYAM KOUNDINYA A.S.,ADVOCATE)
AND:
1. SHRI K.G.UMASHANKARA
AGED ABOUT 35 YEARS,
S/O LATE SHRI K.GANGADHARSA
2. SHRI K.G.KISHORE KUMAR
AGED ABOUT 25 YEARS,
S/O LATE SHRI K.GANGADHARSA
BOTH RESIDING AT NO.8,
3RD FLOOR, A.M.LANE,
2ND CROSS, B.V.K. IYENGAR ROAD,
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BANGALORE - 560 053
3. M/S. MAYA PLATES
NO.8, GROUND FLOOR,
A.M.LANE, 2ND CROSS,
B.V.K. IYENGAR ROAD CROSS,
CHICKPET, BANGALORE - 560 053
... RESPONDENTS
(BY SRI SOMNATH H.S., ADV. FOR R-1 AND R-2)
THIS CRP IS FILED UNDER SECTION 18 OF SMALL
CAUSE COURT ACT, AGAINST THE JUDGMENT AND
DECREE DATED 9.7.2014 PASSED IN S.C.NO.950/2013 ON
THE FILE OF THE MEMBER, MACT & XX ASCJ,
BANGALORE, DECREEING THE SUIT FOR POSSESSIN.
THIS CRP COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Shyam Koundinya, learned counsel appearing for revision petitioner and Sri H.S.Somnath, learned counsel appearing for respondent Nos.1 and 2. Perused the judgment and decree passed by XX Addl. Small Causes Judge, Bangalore, dated 09.07.2014 in S.C.No.950/2013 and also records secured from trial court. By consent of learned Advocates appearing for parties Revision Petition is taken up for final disposal.
2. Revision petitioner, who was first defendant before trial court has challenged the judgment and 3 decree passed by trial Court in this revision petition. By judgment and decree of the trial Court, defendants have been directed to quit, vacate and handover vacant possession of suit schedule property to plaintiffs within one month from the date of order. It is the contention of Sri Shyam Koundinya that trial Court committed a serious error in not construing the fact that there was a serious dispute with regard to jural relationship between plaintiffs and defendants and he contends that plaintiffs have been guilty of suppression of facts namely, they did not state before trial Court as to how building situated in the suit schedule property came into existence, which was undisputedly built by plaintiff's husband and on account of non-disclosure of material fact, plaintiffs ought to have been non suited. It is also contended that as per Agreement - Ex.D-2 revision petitioner is the owner of building situated in the suit schedule property and said building having been built by revision petitioner - first defendant, respondents - plaintiffs ought to have filed suit for possession before Civil Court and suit for ejectment 4 before Small Cause Court was not maintainable as there was no relationship of landlord and tenant.
3. It is also contended by Sri Shyam Koundinya, learned counsel appearing for petitioner that until and unless accounts were settled between the parties, namely, amounts expended by revision petitioner's husband for putting up the construction in suit schedule property, being settled as agreed to under Agreement - Ex.D-2, plaintiffs would not get a right to recover possession of suit schedule property from revision petitioner and on account of plaintiffs having not settled the account of first defendant, present suit for ejectment was not maintainable. He would submit that trial court has misread and misinterpreted the contents of Agreement - Ex.D-2 and revision petitioner's husband has constructed the building in suit schedule property and as such, he would be entitled to continue in possession of suit schedule property unless dispossessed under due process of law namely, by filing a suit for possession before Civil Court and for this proposition he relies upon the judgment of Hon'ble Apex 5 Court in the case of BISHAN DAS AND OTHERS vs. STATE OF PUNJAB AND OTHERS reported in AIR 1961 SC 1570. He would also buttress his arguments by relying upon the following judgments:
(i) AIR 1990 MADRAS 251:
M/S. PARK VIEW ENTERPRISES AND OTHERS vs. STAET OF TAMIL NADU AND OTHERS
(ii) AIR (38) 1951 BOMBAY 205:
LAXMIPAT SINGHANIA vs. LARSEN AND
TOUBRO LTD.,
On these grounds, he seeks for setting aside the judgment and decree passed by the trial court and prays for dismissal of ejectment suit.
4. Per contra, Sri H.S.Somnath, learned counsel appearing for respondent Nos.1 and 2, would support the judgment and decree passed by the trial court and would contend that revision petitioner who had filed the written statement before trial court and has admitted the jural relationship and as such, he cannot contend contrary to his own admission made in the written statement. He would also draw the attention of Court to the grounds urged in the present 6 revision petition, particularly ground No.4(n) to contend that revision petitioner himself has admitted that last paid rent to respondent Nos.1 and 2 was @ Rs.7,500/- per month and as such, he cannot now dispute the jural relationship. He would also submit that D.W.1, who has been examined on behalf of revision petitioner before trial court as a Special Power of Attorney Holder, had no personal knowledge about the entire transaction, which resulted in execution of Ex.D-2 and no amount of evidence tendered by said witness namely, D.W.1 with regard to Ex.D-2 can be considered by this Court. Hence, he prays for dismissal of revision petition.
5. Having heard the learned Advocates appearing for the parties and on perusal of judgment and decree passed by the trial court, as also records secured from trial court, I am of the considered view that following points would arise for my consideration:
(i) Whether judgment and decree of
ejectment passed by the trial Court
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suffers from any material irregularity or illegality calling for exercise of revisional jurisdiction by this Court?
(ii) What order?
6. This is a revision petition filed under Section 18 of the Small Causes Court Act, 1964. Revisional jurisdiction under Section 18 of Small Causes Court Act, 1964 is not as vide as appellate jurisdiction under Section 96 of Code of Civil Procedure. In a revision under Section 18, the Court is not required to act as court of appeal, which necessarily means that finding of fact arrived at by the inferior court or tribunal, would be binding on the revisional Court. The scope of jurisdiction under Section 18 is not same, as if rehearing by way of appeal and this Section does not entitle the Court to interfere with a finding of fact simply on the ground that revisional Court can take a different view of the matter on materials available on record. However, if an order is passed without evidence or without proper application of mind, this Court under 8 revisional jurisdiction can interfere, since such a decree would not be in accordance with law. In a given case, if the Court which passed the order, had no jurisdiction or where the court based its evidence, which should not have been admitted or in cases where the unsuccessful party was not given proper opportunity of being heard, then exercise of revisional jurisdiction would be called for as otherwise not.
7. Keeping these contours in mind, I proceed to adjudicate the points formulated hereinabove, after narrating the facts in brief, which has led to filing of present revision petition. Parties are referred to as per ranks in the trial court.
BRIEF BACKGROUND OF THE CASE:
8. Plaintiffs instituted a suit for ejectment of defendants from suit schedule property contending interalia that defendants are tenant under plaintiffs and at the time of inception of tenancy, first defendant had paid a sum of Rs.50,000/- towards security deposit and was paying a monthly rent of Rs.3,000/- and after 9 enhancement, present rent that was being paid is Rs.7,500/- per month. It was also contended that second defendant is running a business under the name and style of "Maya Plates" and said premises is required for their bonafide use and occupation. It was also specifically contended that second defendant has no sort of tenancy rights over the suit schedule premises. Despite demands made to defendants to vacate suit schedule property having not fructified, legal notice came to be issued which was duly received and replied and on account of non-compliance of legitimate demand made in the legal notice, suit in question for ejectment of defendants is filed.
9. On service of suit summons, defendants appeared and first defendant filed her written statement denying the averments made in the plaint except to the extent of express admission found in the written statement. Second defendant was also represented by the same learned Advocate and a memo came to be filed by learned counsel appearing for second defendant on 10 28.11.2013 adopting the written statement filed by the first defendant.
10. On the basis of pleadings of parties, trial court formulated following points for its determination:
(i) Whether plaintiff proves that they are the absolute owners of suit schedule premises and defendants are the tenants?
(ii) Whether plaintiffs have terminated the tenancy of defendants?
(iii) Whether plaintiff is entitled for reliefs?
(iv) What Order and decree?
11. Second plaintiff got himself examined as P.W.1 and in all produced six documents and got them marked as Exs.P-1 to P-6. On behalf of defendants, son of first defendant was examined as D.W.1 and one more witness was also examined on behalf of defendants as D.W.2.11
FINDINGS OF TRIAL COURT:
12. In all defendants produced four documents and got them marked as Exs.D-1 to D-4 (a). Trial court on consideration of pleadings and after evaluation and appreciation of evidence, both oral and documentary held that facts admitted are not required to be proved and in the written statement first defendant had admitted the payment of rent as per lease agreement dated 20.11.1998 and as such, there existed jural relationship between parties. Trial court after noticing the contents of Ex.D-2, arrived at a conclusion that defendants have taken untenable and baseless contention merely, entered upon a vague entry made in Ex.D-2 and non existence of agreement of sale and it has also been held that defendants on the one hand admit that they are the tenants and paid rents and on the other hand, they have taken contrary defence that they are not the owners of property and as such, it held that defendants have not come to Court with clear defence. Trial court has also found that D.W.1 who is the son of first defendant and Special Power of Attorney 12 Holder on her behalf had no personal knowledge about the transaction that had taken place between husband of first defendant and plaintiffs, which had culminated in execution of agreement Ex.D-2 and as such, it held that D.W.1 was not personally present when Ex.D-2 was executed and he was also not aware about his father having received goodwill and advance amounts for the first and second floors, since he was a minor at that time, which transactions though within the knowledge, first defendant and on her instructions, written statement having been prepared, she had not entered the witness box. It is also held that when D.W.1 admit the contents of written statement are true and correct, he cannot state in his evidence contrary to said plea.
On these grounds, amongst others as indicated in the judgment in question, suit came to be decreed. RE: POINT NO.1:
13. There is no dispute to the fact that vacant land in suit schedule property originally belonged to plaintiff's father late Sri. K.Gangadharsa. It is also not 13 in dispute that there were certain transactions between the husband of first defendant and plaintiff's father, which ultimately culminated in execution of agreement of lease dated 20.11.1998 between wife and children of late Gangadharsa and husband of first defendant, which Agreement came to be marked as Ex.D-2. Since learned Advocates appearing for both the parties have strongly relied upon this deed (Ex.D-2), I am of the considered view that such of those clauses which are pressed into service apart from others, which may have a bearing for determination, requires to be extracted.
Hence they are extracted hereinbelow:
"WHEREAS the Lessor being the absolute owners of the schedule property have paid upto date tax to the property and are in possession and enjoyment of the same all along and the Lessors are at liberty to let-out or lease or long lease or lease of land for putting up of construction to any party. Hence the Lessors have decided to lease the property to Lessee to demolish the existing structure and to put up new construction over the same.
WHEREAS Late K.Gangadharasa had received a sum of Rs.2,00,000/- (two lakhs only) on 19.07.1993 from the Lessee of this agreement and a sum of Rs.4,01,000/- (four lakhs one thousand only) through an agreement of sale dated:- 19.07.1993 totally 14 a sum of Rs.6,01,000/- (six lakhs one thousand only). And no interest or principal is paid to the Lessee nor the agreements are honoured.
WHEREAS the first part Lessor are not in a position to repay the amount have decided that the schedule property be leased to the Lessee for the purpose of demolition and reconstruction so that the Lessors will pay the amount received from the Lessee and also interest to the said amount and also the cost of construction which will be borne by the Lessee."
1. That the Lessors shall deliver and handover the vacant possession of the schedule property to the Lessee with in one month or as and when the Lessee make arrangements for a house to the Lessors any where in Bangalore at his costs by paying advance and rent by him only. The rent to the said house shall be paid by the Lessee till the ground floor is rented and rent is paid to Lessors.
2. The Lessors shall xxxxxxxxxxxx demolition and re-construction.
3. The Lessee by obtaining xxxxxxx corporation at his costs.
4. After construction of ground floor the same shall be leased out by the Lessee in the name of Lessors and the good will and advance received by the Lessee shall be adjusted towards the loan amount, but the rent shall be paid to Lessors only. Like wise as and when the upper floors are constructed the same procedure shall be adopted between the parties.
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5. The building construction xxxxxxx No further floors shall be constructed.
6. If the Lessee fails to xxxxxxxx Lessors stands forefeitted.
7. If the Lessee stops xxxxxxxx which shall be born by the Lessee.
8. The advance and good will shall be received by the Lessee from the construction and the rent shall be received by the Lessors. The advance so received will be carry forwarded to Lessors from Lessee and it is the Lessors who shall return the advance as and when the tenant vacates.
9. The rent for ground, first and IInd floors in total shall be in & around Rs.11,000/- (Eleven thousand only) per month. While leasing the properties both the parties shall have a mutual talks and only after it, the property shall be leased.
10. All the works of construction xxxxxxxx by the Lessee only.
12. After the completion of entire construction there will be no dues between the parties in any aspect.
12. if the Lessors intends to occupy the property they shall also pay goodwill and advance at the prevailing rate and can obtain any portion of their choice except ground floor and Ist preference shall be given to Lessors only."
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14. Perusal of contents of this document Ex.D-2 would clearly indicate that plaintiffs as well as husband of first defendant were at ad-idem on the issues indicated therein. It is specifically clear and explicitly understood between the parties that relationship is that of lessor and lessee. It is agreed between the parties namely, husband of first defendant is the lessee and father of plaintiffs is the lessor. It requires to be noticed that on account of financial distress in which plaintiffs were placed, they agreed and permitted first defendant's husband to demolish the building in existence in the suit schedule property and permitted him to put up a building consisting of ground, first, second and third floor at his cost and it was also agreed between the parties that after construction of ground, first floor same would be leased out by the lessee namely, husband of first defendant in the name of lessors and goodwill and advance would be received by the lessee and adjusted towards the amounts lessee claims to have been paid to the father of plaintiffs namely lessor. It is also agreed under the clause 4 which is extracted 17 hereinabove that rent shall be paid to lessors by the lessee even in respect of ground floor if occupied by him. It was also agreed between the parties that same procedure will be adopted in respect of upper floors, which have been constructed by the lessee.
15. It requires to be noticed that parties were also at ad-idem with regard to quantum of rent that would be paid by lessee (husband of first defendant) as could be seen from Clause 9 of the agreement, whereunder it was agreed between them that rent for ground, first and second floor in total would be paid at Rs.11,000/- per month. It has been agreed between parties that after completion of entire construction there will be no dues between them in any aspect, as is clear from Clause 12, which reads as under:
"12. After the completion of entire construction there will be no dues between the parties in any aspect."
16. In fact, lessee having expended the amounts to put up the construction was clever enough to insulate himself from being burdened financially, as 18 could be seen from Clause 12 of page 5, which would clearly indicate that in the event of lessors intending to occupy the property they were also required to pay goodwill and advance at the prevailing rate except ground floor and it was agreed that first preference will be given to lessors (plaintiffs). In this factual background, written statement filed by defendants is required to be considered. In the cross examination dated 29.03.2014 D.W.1 has categorically admitted that written statement came to be drafted on instruction from first defendant and its contents are true and correct. As such, it can be held that defendants do not dispute the averments made in the written statement. At paragraph 5 of the written statement, defendants have admitted that they have been paying present monthly rent of Rs.7,500/- to the plaintiffs in respect of ground floor though they were required to pay Rs.11,000/- for the entire building, as per lease agreement dated 20.11.1998. Their admission in the written statement reads as under:
"5. Referring to para 5 of the plaint, it is true that the defendants are paying 19 present monthly rent of Rs.7,500/- for the schedule premises even though this defendant's husband suppose to payable Rs.11,000/- per month for the entire ground, first and second floors as per lease agreement dated 20.11.1998."
(Emphasis supplied)
17. Defendants having admitted the relationship of landlord and tenant both under the lease agreement dated 20.11.1998 - Ex.D-2 and also in their written statement at paragraph 5 as noticed hereinabove are now estopped from contending contrary to their admission. In this regard, Section 116 of the Evidence Act can be looked up to hold that defendants are estopped to contend that plaintiff, who is claiming to be the landlord, is not the real landlord. In view of clear admission on the part of first defendant, she cannot be heard to contend that there is no jural relationship of landlord and tenant. As such, contention of Sri Shyam Koundinya, learned counsel for petitioner that there exists a serious dispute with regard to jural relationship between the parties cannot be accepted and said contention stands rejected.
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18. It is because of these precise reasons trial court has taken notice of Section 58 of Evidence Act to arrive at a conclusion that it amounts to an admission and facts admitted need not be proved. The admission of first defendant can be found in the documentary evidence available on record i.e., Ex.D-2 with regard to jural relationship and admission in the pleading can be found in paragraph 5 of written statement filed by first defendant, which also came to be adopted by second defendant as discussed herein above. Hence, contention of Sri Shyam Koundinya, learned counsel appearing for petitioner cannot be accepted for this reason also and it stands rejected.
19. Yet another factor which requires to be noticed by this Court is: D.W.1, who is the son of first defendant had entered the witness box. Undisputedly, as on the date of execution of Agreement - Ex.D-2, he was a minor and he was not personally aware as to what transpired between the parties namely, husband of first defendant and plaintiffs. As such, his evidence 21 with regard to contents of Agreement - Ex.D-2 can only be considered as hear-say evidence and as such, no value can be attached to his evidence. As such, trial court has also discarded his evidence with regard to Ex.D-2, on which he has spoken about and no infirmity can be found in this regard.
20. Now turning my attention to the judgments relied upon by Sri Shyam Koundinya, learned counsel for appearing for petitioner, it requires to be noticed that Hon'ble Apex Court in the case of BISHAN DAS AND OTHERS VS. STATE OF PUNJAB AND OTHERS reported in AIR 1961 SC 1570 referred to supra was examining as to whether the State and its authorities by executive order take possession of a immoveable property without due process of law and it is in this background, point formulated came to be answered and held such action of the State requires to be frowned upon and was also held in the facts and circumstances of said case that Dharamshala which was built by the petitioner's father therein was not taken over by the State under due process of law, but by use of mighty 22 force of the State. Hence, a writ came to be issued against the state. However, we are not placed in the said situation in this case. Defendant's husband in the instant case had undisputedly put up construction in the suit schedule property pursuant to Ex.D.2 and it was admitted by him that he is a lessee and had continued to pay rents to the lessor i.e., plaintiffs even after construction of such building. It is also available on record that lease relating to first and second floors was being collected by plaintiffs at all points of time. In the light of above stated undisputed facts, I am of the considered view that judgment of Bishan Das's case referred to by revision petitioner would not come to his rescue. There cannot be any dispute with regard to proposition laid down in two judgments relied upon. These two case relates to person having constructed the building having lien over the property, since lessor in those cases had obtained the property on long term lease from the lessor and had put up construction and leased out the buildings (portion) to tenants and had filed suit before the High Court (in original jurisdiction). 23 Pleas was set up by the defendants therein, that Civil Suit was not maintainable in view of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had come into force. In this background, the word "Landlord" defined under the Act, came to be interpreted and suits filed came to be dismissed as not maintainable. There cannot be any dispute on the law laid down thereunder. In the instant case the parties to the lis had agreed under the lease agreement dated 20.11.1998, which came to be marked as Ex.D-2, that on completion of construction of building by the first defendant, plaintiffs would be entitle to collect the rents as lessor-owner and in pursuance to said contractual understanding between the parties, first defendant had recognized plaintiffs as his landlord by paying rents and as such, it has to be held that there existed a jural relationship of landlord and tenant between the parties.
21. Overwhelming evidence available on record would clearly indicate that there is relationship of landlord and tenant between plaintiffs and first defendant. Second defendant having adopted the 24 written statement filed by first defendant and not having challenged the judgment and decree passed by trial Court, he cannot stand on a better footing than that of first defendant. Hence, point No.1 formulated hereinabove deserves to be answered against revision petitioner i.e., in the negative and in favour of respondents 1 and 2.
22. In the normal circumstances, this Court would have examined the prayer of learned counsel for revision petitioner for granting sufficient time to quit, deliver and handover vacant possession. However, in view of a stand taken by the revision petitioner before trial court on the one hand admitting the tenancy and at the same time contending that there is no jural relationship and admittedly revision petitioner having parted possession of suit schedule premises to third respondent in the year 1998 itself, I do not find any good ground to grant any time to revision petitioner. Hence, said prayer made by Sri Shyam Koundinya, learned counsel for petitioner stands rejected. 25 RE. POINT NO.2:
23. For the reasons aforestated, I proceed to pass the following:
ORDER
(i) Revision petition is hereby dismissed with costs.
(ii) Judgment and decree passed by XX Addl. Small Causes Judge, Bangalore, dated 09.07.2014 in S.C.No.950/2013, is hereby affirmed.
(iii) Revision petitioner to pay cost of Rs.10,000/- to respondents 1 and 2 within two weeks from today and file an affidavit for having paid the costs.
In the event of such affidavit not being filed, registry is directed to issue certificate to respondents 1 and 2 to enable them to recover the costs from petitioner by filing a execution petition, as if it were a decree.
(iv) Amount in deposit (rents) is ordered to
be paid by registry forthwith to
respondents 1 and 2 on proper
identification.
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(v) Registry to retransmit the trial Court records forthwith.
Sd/-
JUDGE DR