Karnataka High Court
Sri.Surendran R vs Sri.Thomas K Joseph on 8 December, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.11617/2022 (GM-CPC)
BETWEEN :
SRI.SURENDRAN R
AGED ABOUT 43 YEARS
S/O LATE G RAJANNA
R/AT NO.51, GROUND FLOOR
PRAKRUTHI LAYOUT
5TH CROSS
HENNUR, KALYAN NAGAR
BANGALORE-560043.
... PETITIONER
(BY SRI. SHIVAKUMAR D A, ADVOCATE)
AND :
SRI.THOMAS K JOSEPH
AGED ABOUT 69 YEARS
S/O LATE GEORGE JOSEPH
R/AT FLAT NO.103
CHINAR RESIDENCY
152/2/2 WHEELER ROAD
FRAZER TOWN
BANGALORE-560076.
... RESPONDENT
(SRI. K. NARAYANA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ENTIRE IMPUGNED DATED 22.04.2022 UNDER
ANNX-A IN SO FAR AS IT RELATES TO IA.NO. 13 IN
O.S.NO.4460/2017 FOR PAYMENT OF THE ALLEGED
2
ARREARS OF RENT OF RS.3,99,000/- CLAIMED BY THE
RESPONDENT AGAINST THE PETITIONER.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is by the defendant in O.S.No.4460/2017 on the file of the XXII Additional City Civil and Sessions Judge, Bengaluru [for short, 'the civil Court']. The petitioner has impugned the civil Court's order dated 22.04.2022, and the civil Court by this order has allowed the respondent-plaintiff's application [IA No.13] directing the petitioner to pay arrears of rent in a sum of `3,99,000/- while also allowing the petitioner's application [IA No.14] for restoration of electricity connection to the residential premises which is the suit schedule property.
2. This Court on 01.07.2022 has granted interim order staying the operation of the civil Court's order on the condition that a sum of `1,50,000/- shall 3 be deposited within three weeks. This amount is in deposit with the registry, and the respondent has filed an application IA No.3/2022 for withdrawal of the amount in deposit. The petitioner has also filed an application [IA No.2/2022] for initiation of contempt proceedings against the respondent for failure to restore the electricity supply. The learned counsels for the parties are heard for disposal of the petition as also the applications.
3. Sri Shivakumar D.A., the learned counsel for the petitioner, submits that the civil Court could not have directed the petitioner to deposit the arrears of rent when the jural relationship between the petitioner and the respondent is disputed. In support of this contention, he argues that the petitioner is inducted as a tenant in the residential premises viz., the subject property by Sri Dominic Antony Dixon in consideration of payment of `5,50,000/- and the respondent has 4 purchased the property from Sri.Dominic Antony Dixon in the year 2011 but letter of attornment is issued in the year 2017. These circumstances justify the petitioner's denial of jural relationship.
4. Sri Shivakumar D.A next argues that the respondent claims for arrears of rent from the date of sale till the date of application, but the suit is commenced in the year 2017. Even if there is any liability to pay rents, it cannot be from the date of the sale. In support of the application for restoration of electricity supply, the learned counsel submits that notwithstanding the civil Court's order as also this Court's order, the respondent has not taken any measures. Therefore, this Court must pass suitable orders.
5. Sri K.Narayana, the learned counsel for the respondent, submits that with the undisputed fact that the petitioner is inducted by Sri Dominic Antony Dixon 5 from whom the respondent has purchased the property, there would be attornment of tenancy by operation of law. The respondent is currently aged more than 70 years, and he has not received any rent from the petitioner in the last ten years. Therefore, the civil Court is justified in directing the petitioner to deposit indisputable rental arrears.
6. As regards the assertion that the respondent has not restored the electricity supply, Sri K.Narayana submits that the subject premises is one of the two premises in the building; that there is a common electricity meter and the respondent has addressed a letter to the authorities for restoration of electricity supply which was essentially disconnected because of the petitioner's failure to pay the electricity charge; that the respondent has instructed him to place on record that electricity supply is restored to the subject 6 premises and there cannot be any reason for disruption in the electricity connection because of the respondent.
7. The rival submissions as also the reasons assigned by the civil Court are considered in the light of the following further claims. The respondent asserts that the petitioner is liable to pay monthly rent of `3,500/- as finalized by the previous vendor and only a sum of `30,000/- is paid as security deposit, and the petitioner, who stoutly denies this assertion, contends that `5,50,000/- is paid as interest of refundable deposit. However, the question whether the petitioner has paid `30,000/- or `5,50,000/- as interest of refundable deposit is a matter for trial and this Court cannot intervene on this controversy at this stage.
8. The civil Court has also observed that whether `5,50,000/- has been paid as refundable deposit is a matter for enquiry. However, the civil Court has given credence to the respondent's case that the 7 petitioner is inducted on the assurance to pay a rent at the rate of `3,500/- and as such, arrears would be `3,99,000/-. If the petitioner succeeds in establishing that he is inducted or continued in tenancy as against the payment of `5,50,000/-, he would be entitled for appropriate relief at the time of final adjudication, but the petitioner cannot continue to be in possession of the subject property without paying any amount. In the facts and circumstances of the case, if the petitioner is not called upon to deposit any amount, that would be placing a premium on the defense irrespective of whether it is substantiated or not. In this Court's view, that would be visiting unreasonable hardship on the respondent who, in any event, cannot claim any rent for the period beyond three years prior to the date of application.
9. In these circumstances, this Court is of the considered view that the petition must be disposed of 8 modifying the impugned order restricting the petitioner's obligation to pay a sum of `1,50,000/- in deposit but on the condition that if it is shown that the petitioner, because of the payment of `5,50,000/-, the respondent is not entitled to receive any rent, there shall be appropriate orders for repayment of this amount of Rs.1,50,000/- with interest at the rate of 6% per annum.
10. The two categorical assertions on behalf of the respondent are that the electricity connection is restored and that there cannot be disruption only to the subject premises when there are two other premises in the building. It is also asserted that the respondent has communicated his no objection for restoration of the electricity supply. Therefore, there is no reason for orders in this regard at this point of time. The respondent's suit is for ejectment but has prevailed over five years, and there must be direction to the civil Court 9 to decide the suit in an expeditious manner. Hence, the following:
ORDER [a] The petition is allowed in part and the impugned order dated 22.04.2022 in O.S.No.4460/2017 on the file of the XXII Additional City Civil and Sessions Judge, Bangalore stands modified restricting the petitioner's liability, until the final decision in the suit, to pay a sum of `1,50,000/-. As such, the amount in deposit with this registry shall be released to the respondent subject to identity.
[b] The petitioner shall be entitled for appropriate orders as part of the final adjudication for refund in the event he is able to demonstrate that he is inducted as tenant as against payment of `5,50,000/- as interest refundable deposit. In that event 10 the respondent shall return this amount along with interest at the rate of 6% per annum from the date of receipt till the date of payment.
[c] The civil Court shall decide the suit as expeditiously as possible but within an outer limit of seven [7] months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE SA/-
Ct:sr