Karnataka High Court
Mr Abdul Majeed vs Diocese Of Mangalore on 30 August, 2011
Author: H N Nagamohan Das
Bench: H N Nagamohan Das
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30° DAY OF AUGUST, 2021. >
BEFORE --
THE HON'BLE MR. JUSTICE HN. NAGAMOHAN DASs-
R.S.A.No. 1828/2011 | 7.
BETWEEN: | |
Mr. Abdul Majeed,
S/o.late Moiddin, -
Aged about 61 years,
R/a.Bijai New Roath
Bijai Post, Mangalore-
575 004, carrying on
business at Doo ro
No. 18-12-1398)". >
Near Kodivalbyic -
Post Office: Kodiyalbyle.
Mangalore-575 003. 6 Appellant
"By Sri Yashwanth Sajjan Gowda, Adv.)
"AND:
Diocese of. Mangalore,
- A religious and charitable
. inetitution. represented by its
Bishop Rev. Dr.Aloysius
~ Paul Souza. son of late
Mathias D'Souza,
. Rfa. Bishop's House,
». Kodialbyle, Mangalore-
575 O03, represented by his
General Power of Attorney
Holder and Estate Manager of
Diocese of Mangalore
Rey. Father Peter Francis
Fernandes, s/o.Cashmir
Fernandes, r/a.Bishop's House, rs
Kodialbail. Mangalore-575 O03. Respondent |
(By M/s.Cyril Prasad Pais Associates, Advs.) _
This RSA filed under section" 100 of ope, against
the judgment and deeree.dated 27.6, 2911 passed in
R.A.No.82/2010 on the fie of the 7 Addi.Senior Civil
Judge, Mangalore and ete, . . Be
court deliv cred t thre Totti :
Jub GME ME i WE
This. oS Q peal . . directed against the
judgment "and deeree' dated 24,4,2010 in
7 0.5.No.528/2006 passed by the learned Civil Judge
bir fn), Mangal ui Wr é and confirmed by the judgment and
decree dated 27.6.2011 in RA No.82/2010 passed by
: the learned 'tt Additional Senior Civil Judge, Mangalore.
2. . Appellant is the defendant and respondent is the
"+ ~
'olaintiff before the Trial Court. In this judgment for
convenience the parties are referred to their status
before the trial Court.
3. tis the case of the plaintiff that the defendant is
the tenant in the plaint schedule premises ona iment hy
rent of Rs. 180/- and the tenancy commences on ys of
each English Calendar.». The plaintiff got "issued a
lawyers notice on 20.6.2006 terminating the tenancy of
defendant and' cating upon him to quit and deliver the
vacant possess ion. of the 'plait schedule property and
also to pay mesne prolits Since the defendant failed to
comply wi ih the detnand-made in the plaintiff lawver's
notice, he filed Os No.523 {2006 for ejectment and
. 7 meene profits, | The defendant entered appearance
before the : Trial Court and filed written statement
'interalia -colitending thai there is no relationship of
"andiord 'and tenant. The suit brought out by the
plaintiff is not maintainable. The defendant is protected
"cunder the provisions of the Karnataka Rent Act.
Court has no pecuniary jurisdiction. There is. re
arrears of rent and the defendant is not liable tO pay the:, -
mesne profit. On the basis of pleadings, the Trial Court.
framed the following issues for its consideration:
i. Whether the plaintiff proves that it isa.
religious or charitable institution? |
2) Whether the. plaintiff proves the
landiord and tenant relationship as
alleged in the plaint? -- Bae
3) Whether the plaintiff ~ proves the
termination ob tenancy is valid?
4) Whether the defendant proves that he
. is pretected. under the provisions of
Karnataka Rent Act as alleged in par
No. 1G of the written statement?
Bp Whether the defendant proves that the
_* .., plaintiff has not properly valued the
_relief in the suit and court fee paid is
~ tnsuilicient?
. Whether the defendant proves that this
. Court bas no pecuniary jurisdiction to
"entertain the present suit?
sommané .
-- 7; Whether the plaintiff is errtitled for the
arrears ol rent, mesne profits, interest
anc vacant possession of suit schedule
premises as claimed in the plaint?
8) What order or decree'?
4. Before the Trial Court, plaintiff examined one
ae 6
Defendant has not adduced any. evidence, 'The Triai
Court is having its ju risdiction 'and. con sequently
decreed the suit of the plaintiff. Being aggrieved by the
judgment and decree of the Trial Court, the defendant
filed an appeal in RA. 'No.82/201 0. : The ls Appellate
Court on reap preciation-of the entire material on record
: Lo . _ ,
confirmed the. judgment of the Trial Court and
dismissed the appeal. Hence. this second appeal.
a. Though the matter is listed for admission, the
. same is heard on merits by consent of learned
Advocates: en both the side and perused the appeal
-papers, --
6H. Both the courts below held that there is
"relationship of landlord and tenant between the parties.
By applying Section 106 of Transfer of Property Ac,
ae
both the courts below held that the tenaney is du
that the defendant is liable to evict from the plaint
schedule property. This Colicurrent dnding of. the
courts below is supported by the evidence on record. |
find no justifiable reason lo interfere with the judgments
of the courts below. I see no substantial question of law
that arises for consideration-in this appeal.
6. At this stages. "learned counsel for the
defendant/appellant-praya for two years time to vacate
the plait schedule premises. On the other hand,
7 leaimed courisel for the respondent/plaintiff submits
that" a reasonable time of six months be granted.
'Having regaid to the length of litigation, the nature of
"business availa bility of alternative accommodation and
WA a rdshi p that is to be caused to the
"defendant/appellant. | am of the considered opinion
that grant of one year time will meet the ends of justice.
Accordingly, the following :
ORDER
i} The appeal is hereby dismissed."
ii) The appellant/defendant is granted one year time from. today to quit and deliver the vacant possession of the plaint schedule premises to the defenidant/appellant herein without driving him to file execution petition. |
iii) Appellant /deiendant shail pay the entire arrears "of rent, the mesne: profits and. continue to pay the current mesite profits as' determined by the Trial Court 8 and when the same. fall due till he quits and deliver _ the vacant possession of the plaint schedule premises. Vv) Appellant/defendant shall not carry on any jllega or immoral activity nor alter the nature and character of, the plaint schedule premises in any manner.
vi) To the above effect. the appeliant/defendant shall fle an undertaking by way of affidavit within two weeks from today.
Bkm.