Karnataka High Court
M/S P Hastimal And Sons vs Sri P Tejraj Sharma on 9 October, 2023
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.122 OF 2021
CONNECTED WITH
RFA CROB NO.6 OF 2021
IN REGULAR FIRST APPEAL NO.122 OF 2021
BETWEEN:
M/S P. HASTIMAL AND SONS
(WRONGLY SHOWN IN THE CAUSE TITLE TO THE PLAINT
AS M/S. HASTHIMAL AND SONS)
A PARTNERSHIP FIRM HAVING
ITS BUSINESS AT NO.30,
D.S. LANE, CHICKPETE CROSS,
BENGALURU - 560 053.
REPRESENTED BY ITS PARTNERS
A. SRI. TEJRAJ JAIN,
S/O. LATE P.HASTIMAL JAIN,
AGED ABOUT 65 YEARS
B. SRI. NIRMAL KUMAR
S/O. LATE P.HASTIMAL JAIN,
AGED ABOUT 58 YEARS
BOTH ARE R/AT NO.30,
D.S. LANE, CHICKPETE CROSS
BENGALURU - 560 053 ... APPELLANTS
(BY SRI RAJESWARA P.N., ADVOCATE)
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AND:
SRI. P. TEJRAJ SHARMA SUBSTITUTED VIDE
ORDER DATED 12.09.2023 BY
SMT. SANTOSH SHARMA
W/O. SRI SUNIL SHARMA
AGED ABOUT 44 YEARS
RESIDING AT NO.3281
TIPPU SULTAN PALACE ROAD
FORT
BENGALURU - 560 002. ... RESPONDENT
(BY SRI KIRAN S. JAVALI, SENIOR ADVOCATE
FOR SRI CHANDRASHEKARA K., ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, FILED AGAINST THE JUDGMENT
AND DECREE DATED 8.1.2020 PASSED IN
O.S.NO.9833/2007 ON THE FILE OF THE LX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY
DECREEING THE SUIT FOR EJECTMENT.
IN RFA CROB NO.6 OF 2021
BETWEEN:
SRI. P. TEJRAJ SHARMA SUBSTITUTED VIDE
ORDER DATED 12.09.2023 BY
SMT. SANTOSH SHARMA
W/O. SUNIL SHARMA
AGED ABOUT 44 YEARS
R/AT NO.3281,
TIPPU SULTAN PALACE ROAD, FORT
BENGALURU - 560 002 ... CROSS OBJECTOR
(BY SRI. KIRAN S. JAVALI, SENIOR ADVOCATE
FOR SRI K. CHANDRASHEKARA, ADVOCATE)
3
AND:
1 . M/S HASTHIMAL AND SONS
A PARTNERSHIP FIRM
HAVING ITS BUSINESS AT NO.30
D.S. LANE, CHICKPET CROSS
BANGALORE - 560 002
REP. BY ITS PARTNERS
(A) TEJRAJ JAIN
S/O. LATE P HASTHIMAL JAIN
(B) NIRMAL KUMAR
S/O. LATE P HASTHIMAL JAIN
BOTH RESIDING AT NO.30
D.S. LANE, CHICKPET CROSS
BANGALORE - 560 002
... RESPONDENTS
(BY SRI. RAJESHWARA P.N., ADVOCATE)
THIS RFA CROB IN RFA IS FILED UNDER SECTION
41 RULE 22 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 8.1.2020 PASSED IN O.S.NO.9833/2007
ON THE FILE OF THE LX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE
SUIT FOR EJECTMENT.
THESE REGULAR FIRST APPEAL AND RFA CROB.
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
3.10.2023 THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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JUDGMENT
This appeal is filed by the appellants under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') to set aside the judgment and decree passed by the LX Additional City Civil and Sessions Judge, Bengaluru in O.S.No.9833/2007 dated 08.01.2020.
2. The appellants are defendants and the respondent is the plaintiff before the Trial Court and later the plaintiff said to be sold the property to the third party applicant and inserted as respondent in this appeal.
3. The rank of the parties before the Trial Court is retained for the sake of convenience.
4. RFA CROB No.6/2021 is filed under Section XLI Rule 22 of the CPC by the plaintiff claiming the arrears of rent which was rejected by the Trial Court.
5. The case of the plaintiff before the Trial Court is that the plaintiff filed the suit for ejectment against the 5 defendant contending that the plaintiff was the owner of the property bearing No.30, D.S.Lane, Chickpete cross, Bengaluru consisting of ground and three upper floors measuring: East to West - 12 feet North to South - 42 feet East : Property of Deeveeraman West : Property No.28 North : Ananda Bhavan premises South : D S Lane, (hereinafter referred to as 'suit schedule property')
6. The defendant is a partnership firm was inducted as tenant by the predecessor in title and subsequently, a mortgage deed was also executed by the previous owner. The defendant has continued in the possession as a mortgagee. The mortgage in respect of suit schedule property has been redeemed on 20.03.2000 as duly confirmed by the Hon'ble Supreme Court in Civil Appeal No.3008/2001 dated 04.10.2007. Consequent to 6 the redemption and in accordance with the terms of the mortgage deed, the defendant continued in possession as a tenant.
7. It is further alleged that the defendant is in possession of the suit schedule property as a tenant without any lease term and monthly basis and the last paid monthly rent was Rs.499/- per month. The plaintiff issued the notice on 16.11.2007 by terminating the tenancy as the tenancy was expired on 21.12.2007. Thereafter, the defendant continued in possession as unauthorised use and occupation. The defendant has arrears of rent of Rs.46,407/- liable to pay by way of damages/mesne profit until delivery of the possession. The cause of action arose for filing of the suit dated 21.12.2007, hence, the plaintiff filed the suit for ejectment directing the defendant to quit and vacate the suit schedule property and to pay arrears of rent of Rs.46,407/- and for mesne profits. 7
8. The defendant appeared and filed written statement contending that the suit filed by the plaintiff is frivolous which is suppression of material facts and the suit was pre-matured. It is contended that O.S.No.1977/1988 filed by the plaintiff for redemption of mortgage and O.S.No.2290/1988 filed by the defendants against the plaintiff for specific performance of contract as he is having first option of purchase of suit schedule property pending in Court Hall No.3 which was suppressed by the plaintiff. He further contended that the suit filed by the plaintiff for redemption of mortgage prior to expiry of mortgage period. When the mortgage was redeemed, no decree is granted, mortgage money was not paid and appropriate document was not executed, therefore, status of the defendants as tenant does not arise and further denied the termination of tenancy and contended that when the mortgage itself is not redeemed, the question of paying rent and arrears of rent does not arise.
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9. The defendant further contended that the suit is liable to be dismissed for want of cause of action as suit was filed based upon the judgment of the Hon'ble Supreme Court, wherein, the interlocutory order passed by the Trial Court by rejecting the application under Order XII Rule 6 of CPC has been dismissed and in the CRP, the High Court allowed and decreed the suit which was set aside by the Hon'ble Supreme Court, therefore, the question of redemption of the mortgage does not arise. There is no findings or any decree passed by the Court for redemption of mortgage, hence, prayed for dismissing the suit.
10. Based upon the pleadings, the Trial Court framed the following issues:
"1. Whether the description of the suit schedule property is not proper?
2. Whether the plaintiff prove that the defendants are in possession of the suit schedule property as tenant without any lease term and on monthly basis?9
3. Whether the suit has no cause of action?
4. Whether the court fee paid is not proper?
5. Whether the suit is barred by the provisions of Specific Relief Act and the provision of Transfer of Property Act?
6. Whether this Court has no jurisdiction over the subject matter of the suit?
7. Whether the plaintiff has validly terminated the tenancy of the defendants by notice dated 16.11.2007?
8. Whether the plaintiff is entitled to the relief claimed?
9. What order or decree?"
11. To prove the case of the plaintiff, the plaintiff himself examined as PW.1 and got marked 4 documents. The defendant not examined any witness on his behalf except marking Exs.D.1 to D.9 in the cross examination of PW.1. After hearing the arguments, the Trial Court answered Issue Nos.1, 3 to 6 in the 'Negative' and Issue 10 Nos.2 and 7 in the 'Affirmative' and partly decreed the suit by granting decree by directing the defendant to evict from the suit schedule property within three months. However, rejected the prayer of the plaintiff for arrears of rent and mesne profits, being aggrieved with the decree of eviction, the defendants filed an appeal in RFA No.122/2021, whereas, the plaintiff filed Cross Objection No.6/2021 for rejection of arrears of rent and mesne profits.
12. The learned counsel for the appellants has strenuously contended that the suit for redemption filed by the original owner in O.S.No.1977/1988 is still pending and the defendants also instituted a suit against the plaintiff for enforcing the pre-emption right and those suits were suppressed by the plaintiff and filed ejectment suit which is not sustainable. The plaintiff misrepresented and suppressed the fact and the suit filed by the plaintiff came to be dismissed. A memo was filed for restoration, that is also dismissed for non prosecution. A Regular First Appeal also filed by the plaintiff which also got dismissed. 11 Therefore, he has contended that there is no decree either preliminary or final decree passed in O.S.No.1977/1988. The application filed by the plaintiff under Order XII Rule 6 of CPC has been dismissed and in the CRP, the High Court decreed the suit which was set aside by the Hon'ble Supreme Court in Civil Appeal No.3008/2001, therefore, when the suit for mortgage is pending, it was not decided and pre-emption right in the mortgage deed also exists. Such being the case, the defendant cannot be termed as tenant, therefore, the judgment and decree passed by the Trial Court is not sustainable, hence, prayed for allowing the appeal and to set aside the judgment and decree of the Trial Court for ejectment.
13. Per contra, the learned Senior counsel for the respondent has strenuously contended that the decree passed under Order XII Rule 6 of CPC for special provisions, it was decided by the Hon'ble Supreme Court and direction was issued by the Hon'ble Supreme Court for filing the suit for ejectment for eviction and decided the 12 suit for mortgage, such being the case, once the Hon'ble Supreme Court decided the said issue, the original suit in O.S.No.1977/1988 is not continued and it is already become infructuous in view of judgment of the High Court as well as the Hon'ble Supreme Court. Therefore, he has contended that the suit for ejectment is maintainable and the defendant is enjoying the property with a meager rent of Rs.499/- per month for four floored building. The Trial Court committed error in rejecting the mesne profit and damages, though rightly decreed the suit. Therefore, prayed for dismissing the appeal and allowing the cross objection to grant arrears of rent of Rs.46,407/- and after the termination of tenancy, the appellants have to pay the damages/mesne profits.
14. Having heard the arguments and perused the records, the points that arise for my consideration are:
"1) Whether the judgment of the Hon'ble Supreme Court in Civil Appeal No.3008/2001 dated 04.10.2007 for 13 setting aside the judgment passed by the High Court in CRP No.2020/2000 only in so far as the decree for possession and not for a decree of redemption of mortgage?
2) Whether the suit for ejectment is maintainable in view of the judgment of the Hon'ble Supreme Court in Civil Appeal No.3008/2001?
3) Whether the plaintiff is entitled for arrears of rent of Rs.46,407/- and mesne profits as claimed by the plaintiff in the cross objection ?
4) Whether the judgment and decree passed by the Trial Court call for interference?"
15. On considering the entire evidence on record and the pleadings, the following are some of the admitted facts as under:
i) It is not in dispute that the original owner of the suit schedule property has let out to the defendant for lease at the rate of Rs.499/- per month.14
ii) It is also an admitted fact that during subsistence of tenancy, the suit schedule property was mortgaged by the owner in favour of the defendant for 20 years by receiving Rs.45,000/- as mortgage amount.
iii) It is also an admitted fact that during the pendency of the mortgage, the original plaintiff purchased the suit schedule property and he has filed suit for redemption of mortgage in O.S.No.1977/1988 prior to expiry of the mortgage period of 20 years.
iv) It is also an admitted fact that during the pendency of O.S.No.1977/1988, the defendant filed written statement admitting the mortgage period for 20 years and also tenancy.
v) It is also an admitted fact that in the mortgage deed there is a clause that after expiry of the mortgage period, the mortgager become tenant/lessee automatically as he was tenant prior to the mortgage.
vi) It is also an admitted fact that during the pendency of O.S.No.1977/1988, the plaintiff 15 has filed interlocutory application under Order XII Rule 6 of CPC for decreeing the suit on the admitted facts.
vii) It is also an admitted fact that the Trial Court dismissed the application under Order XII Rule 6 of CPC.
viii) It is also an admitted fact that the plaintiff preferred Civil Revision Petition before the High Court which is numbered as CRP No.2020/2000 and the High Court decreed the suit by allowing the application of the plaintiff and directed the defendants to quit and vacate the premises and permitted the defendant to receive Rs.45,000/- which was mortgage amount deposited by the plaintiff.
ix) It is also an admitted fact that the defendants approached Hon'ble Supreme Court in Civil Appeal No.3008/2001 and the Hon'ble Supreme Court allowed the appeal filed by the defendants vide judgment dated 04.10.2007 and given liberty to the plaintiff to file suit or eviction proceedings to vacate the tenant. 16
16. In view of the liberty granted by the Hon'ble Supreme Court, the plaintiff filed the ejectment suit in O.S.No.9833/2007 which was partly decreed by the Trial Court. On this background of admitted fact in respect of the allowing appeal by the Hon'ble Supreme Court in Civil Appeal No.3008/2001 and granting liberty to the plaintiff to file ejectment suit, now under challenge by the defendants in this appeal.
17. Point No.1 - As stated above, whether the judgment passed by the Hon'ble Supreme Court in the Civil Appeal No.3008/2001 amounts to decree in the redemption suit filed by the plaintiff in O.S.No.1977/1988.
18. The learned counsel for the appellants has strenuously contended that there is no decree either preliminary or final decree in O.S.No.1977/1988 for redemption of mortgage. It is the application allowed by the High Court in CRP has been set aside by the Hon'ble Supreme Court, therefore, the original suit No.1977/1988 17 is still pending and not decided by the Court. The learned counsel also contended that the order passed by the High Court in CRP No.2020/2000 is not decreed as per the provisions under Order 34 Rules 7 and 8 of CPC.
19. On reading of the Order 34 which relates to the mortgages of immovable property and as per Rule 2, there must be preliminary decree in foreclosure suit and as per Rule 7, there must be preliminary decree in redemption suit and as per Rule 8, there must be final decree in redemption suit and the learned counsel for the appellants contended that there is no findings in the preliminary decree in respect of payment of mortgage amount, cost etc., and the appellants also claimed interest @ 1% on the mortgage amount, that was not decided and there is no decree for redemption, therefore, the suit for redemption is pending in O.S.No.1977/1988.
20. On the other hand, the learned Senior counsel for the respondent has contended that the decree was 18 passed under Order XII Rule 6 of CPC and the High Court already decreed the suit by allowing the application of the plaintiff and the Hon'ble Supreme Court has not set aside the decree but set aside the order of eviction on the ground that the defendants was continued to be in possession as a tenant even after expiry of the mortgage period and therefore, Order XII Rule 6 of CPC is altogether different in granting decree as per provision under Order 34 Rules 7 and 8 of CPC.
21. For the convenience, Order XII Rule 6 of CPC is referred as under:
"6. Judgment on admissions.-
(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.19
(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
22. On bare reading of the provision, which clearly defines, the Court can pass the judgment based upon the admissions without waiting for the determination of any other question between the parties. Therefore, once the defendant admitted the expiry of the redemption period and while filing the application by the plaintiff under Order XII Rule 6 of CPC, he has deposited the mortgage amount of Rs.45,000/- in the Court. Though the application was rejected by the Trial Court, but the High Court in the CRP has allowed the application and decreed the suit and directed the defendants to quit and vacate the premises by receiving Rs.45,000/- as mortgage amount, that means, the High Court has passed the decree and disposed of the redemption of mortgage suit in O.S.1977/1988. In view of allowing the CRP by the High Court in CRP No.2020/2000, 20 the suit for redemption has been disposed of by way of decree passed by the High Court. Thereby, the trial was terminated and suit was disposed by the High Court by decreeing the suit of the plaintiff under Order XII Rule 6 of CPC. The same was challenged by the defendant before the Hon'ble Supreme Court in Civil Appeal No.3008/2001. The Hon'ble Supreme Court though set aside the order of the High Court for eviction, order passed by the High Court and the Hon'ble Supreme Court has categorically held the defendants are in possession of suit schedule property as a tenant even prior to the mortgage deed and even after expiry of the mortgage period, the defendants will continue as a tenant automatically. Therefore, the Hon'ble Supreme Court set aside the order of the High Court regarding eviction order passed by the High Court but no where the Hon'ble Supreme Court has stated that the suit in O.S.1977/1988 shall be continued and to pass the judgment by Trial Court.
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23. The Hon'ble Supreme Court has gone into the merits of the case in detail by relying various decisions held at paragraph Nos.8, 9, 13 and 14 of the judgment which are as under:
"8. However, as regards the first point, we are of the opinion that the respondent did not have a right to possession automatically on a suit for redemption being decreed.
9. It may be noted that even before the mortgage deed was executed on 19.03.1980, the mortgagee was in actual physical possession as a tenant, and this possession continued with him as a mortgagee. Hence, when the mortgage was redeemed, it did not follow that the erstwhile mortgagee could be straight away evicted. When mortgage comes to an end, the appellant reverted as a tenant, particularly since there was a specific term in the mortgage deed that on redemption of the mortgage, the mortgagee will be a lessee as previous to the mortgage.
"13. In the present case, there was a specific term in the mortgage deed dated 19.03.1980 22 that on redemption of mortgage, the mortgagee shall become the lessee of the mortgager automatically as previous to the mortgage deed. Hence, there was clear intention between the parties that the tenancy will continue when the mortgage is redeemed. Hence, on this point, he cannot agree with the High Court. Accordingly, the impugned judgment is set aside on this point. The appeal is allowed.
14. It would, however, be open to the respondent to file a suit or proceeding for eviction of the appellant - tenant which will be decided on its own merits."
24. On bare reading of the judgment of Hon'ble Supreme Court especially paragraph Nos.8, 9 and 13 which clearly says that even if the redemption mortgage took place, the defendant will continue as a tenant automatically after the expiry of the mortgage period. On perusal of the judgment, the Hon'ble Supreme Court has not set aside the decree of redemption passed by the High 23 Court, but set aside only the order of directing the defendant to quit and vacate the possession.
25. The Hon'ble Supreme Court has categorically/consciously held that the respondent shall file suit for eviction to evict the tenant under the agreement between the parties prior to their mortgage agreement. The decree of High Court for redemption and decreeing the suit has not been set aside by the Hon'ble Supreme Court except setting aside the order of eviction and it has categorically held in the suit for mortgage and there cannot be automatic eviction, therefore, the contention of the appellants counsel cannot be acceptable that O.S.No.1977/1988 is still pending for consideration. On the other hand, the suit was already decreed by High Court and the said decree was not set aside by the Hon'ble Supreme Court and directed the plaintiff to file suit for eviction and the amount of Rs.45,000/- deposited by the plaintiff which was ordered by the High Court receivable by the defendant has not been set aside. Therefore, the 24 plaintiff has rightly filed memo before the Trial Court for dispose of the suit in view of the judgment of the High Court and Hon'ble Supreme Court. But the Trial Court mistaken the fact and rejected the memo, subsequently, that suit was dismissed for non prosecution in view of decreeing the suit for redemption by the High Court and the Hon'ble Supreme Court was not expressly set aside but is impliedly upheld the order of the High Court except for evicting the defendant. Therefore, I hold, the judgment passed by the Hon'ble Supreme Court is a decree for redemption of mortgage, accordingly, answered point No.1 in the 'Affirmative' in favour of the plaintiff .
26. In view of the findings at point No.2 holding that the judgment passed by the Hon'ble Supreme Court was for decree of redemption and as per the directions of the Hon'ble Supreme Court, the ejectment suit was filed by the plaintiff, hence, the suit is maintainable, accordingly, answered point No.2 in the 'Affirmative' in favour of the plaintiff.
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27. Point Nos.3 and 4 - Now coming to the case on merits, where the plaintiff filed the suit for ejectment prior to that, a notice has been issued and terminated the tenancy as per Section 106 of Transfer of Property Act, 1882 (for short 'T.P. Act') as per Ex.P.1-Legal Notice dated 16.11.2007 and on 22.12.2007, the suit came to be filed in the evidence of PW.1 except suggesting to contest the matter that the defendant on the ground that the redemption suit was not decreed and suit is pending, memo of the plaintiff was rejected in O.S.No.1977/1988 and recalling application was rejected which are all marked as Exs.D.1 to D.9. As I stated above, when the plaintiff is successful in getting the decree in the mortgage suit and as per the direction of the Hon'ble Supreme Court, the suit for ejectment was filed only for evicting the defendant from the suit schedule property, therefore, the contention of the defendants stating that he is staying in the suit schedule property as a mortgagee cannot be acceptable. On the other hand, immediately after the expiry of the 26 mortgage period in the year 2000, the defendants automatically become tenant as he was earlier to entering into the mortgage agreement. Therefore, by issuing the notice, the plaintiff terminated the tenancy under Ex.P.1. Therefore, after the termination, if the defendant continues in the possession, it amounts to illegal possession and he has to quit and vacate the suit schedule property. Therefore, the rent of Rs.499/- per month shall be payable by the defendant to the plaintiff from the date of expiry of the mortgage period which expires in the year 2000. However the suit was continued until decree passed by the High Court in CRP No.2020/2000 dated 12.02.2001 which was upheld by the Hon'ble Supreme Court in Crl.A.No.3008/2001 dated 4.10.2007. Therefore, the defendants shall be liable to pay arrears of rent from the year 2000 onwards after expiry of the mortgage period for 20 years till filing the suit on 22.12.2007 which amounts to Rs.46,407/- towards the arrears of rent and the same shall be payable by the defendants to the plaintiff. 27
28. Though the learned counsel for the appellants has contended that the appellants have already filed pre- emption suit which came to be dismissed and he has already filed appeal, but that ground cannot be considered in this appeal.
29. The Trial Court though rightly decreed the suit for eviction, but no reason assigned for rejecting the arrears of rent of Rs.46,407/- and the mesne profits, while passing the judgment as prayed by the plaintiff in the suit. Therefore, the plaintiff filed cross objection in CROB No.6/2021 against the rejection of arrears of rent and mesne profits which has to be calculated by filing execution proceedings by enquiry. Therefore, the judgment and decree passed by the Trial Court regarding passing of decree of eviction shall have to be upheld, however, the rejection of the arrears of rent and mesne profits shall be set aside and the plaintiff is entitled for arrears of rent and mesne profits.
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30. Accordingly, RFA No.122/2021 filed by the appellants/defendants is hereby dismissed.
RFA CROB No.6/2021 filed by the plaintiff is hereby allowed with cost.
The appellants/defendants are directed to pay Rs.46,407/- towards arrears of rent and thereafter, the defendants are liable to pay mesne profits.
The plaintiff is at liberty to file execution petition for recovery of the arrears of rent and mesne profits.
Draw decree accordingly.
Send the copy of the judgment and Trial Court Records to the Trial Court.
In view of disposal of the main appeal, pending I.As. do not survive for consideration and the same is disposed of.
Sd/-
JUDGE GBB