Karnataka High Court
Lakshminarayana Sony S/O Chandran vs C Basha S/O Ebrahim on 11 April, 2008
Equivalent citations: 2008 (4) AIR KANT HCR 390, 2008 A I H C 2989, (2009) 1 KANT LJ 673, (2008) 2 RENCR 410, (2009) 2 RENTLR 134, (2009) 3 ICC 774
Author: K.Ramanna
Bench: K.Ramanna
IN THE HIGH COURT OF KARNATAKA AT BANGALGRE DATED THIS THE 11™ DAY OF APRIL 200 BETWEEN: 1, LAKSHMINARAYANA SONY, S/O.CHANDRAN, AGED ABOUT 47 YRS, R/AT.NO.32, | ANCHEPET, BASAVANAGUDI STREET, BANGALORE-SS. : 2. VENKATARAMANACHAPI, S/O.LATE. KRISHNAIAH, AGED ABOUT 70 YRS, R/AT.NO.32, BASAVA TEMPLE STREET, ANCHEPST, i" BARGALORE ~ 53. . PETITIONERS eye art 'M.S.VARADARAJAN, ADV.) Cc. BAaHA, -. 8/0. EBRANIM, AGED ABOUT 50 YRS, --R/ATNO.4, . "BASAVANAGUDI STREET, _- PARK ROAD, "" ANCHEPET, _~ BANGALORE-53. . RESPONDENT
(BY SRI S.CHENNARAYA REDDY, ADV.) Sdetehnr = 3 & to 24-03-2003 amounting to Rs. 74,000/- at Rs.1 000; per herein filed the eviction Petition against the petitionsrs herein ; under Sec 27 [2] [al [f] and [h] af the Karnaisks Rent Control Act, 1961. During the pendency of the eviction yeticion before the lower court Karnataka Reni Act 1999 came to be passed and the said petition came to be considered ander the now Act. The case of the reapcndent hercin is that he is the absolute owner of the petition schedule premises having acquired the same under the reyintered sate deed dated 25-01- 1997 from its previous owner one Sci. Diwakar son of late Venkatachala.
That the petitionsr no.1 1 herein is the tenant under the vendor of the reepousient on no rent no interest basis and the petitioner has 'paid Rs. 2,50,000/- to the vendor of the . respondent as fixed deposit, that the term of lease is 3 % years and after the termination of the said period if the petitioner os 'ro. 1 intends to continue in the petition schedule premises he oo _ required pay to the landlord monthly rent of Rs.1,000/-.
-- 'That after purchase of the petition schedule property by the also chalienging in this revision the carlier interlocutory onters dated 21-02-2002 and 08-04-2003 passed by the tried court. |
6. Heard the arguments and period the roconds, the points that arise for my consideration are;
a] Whether the petitioners Can. 'again "be Permitted to question in this revision petition the interlocutory orders dated 21-02: '2602 and 08-04- 2003 when the said orders had already been challenged iy the petitioners befor: this court which have bern. dismissed -- and have since attained foakity ? ani : :
| 'b] Whether he 'order of the trial court is incorrect, ilegel and perverse ? If 90, whether it requires to be interfexed with ?
og "Admittedly the petition schedule premises is resicential in nature and that the respondent has purchased _ the same from its previous owner one Diwakar. According to a the respondent, the petitioner No.1 is the tenant under his : "vendor in respect of the petition schedule premises, as such : _ subsequent to its purchase by the respondent, he became a oe tenant under him by operation of law. But it is the contention an re \ of eee ee monet + c of the petitioner No.1 that he is in possession of the petit schedule premises under an agreement of sale snd that tirre exist no relationship of tenant and. jendlord betwern haiaself and the respondent or hia vendor at ny point of time. It io his further case that initially he was inducted into petition schedule premises by the vendor o of the, respondent under an unregistered agreement which was marked at Ex.P7, there is no dispute with regard to the suid Ex.P.7. According to the petitioners the same is a mortgag: egreement but according to the respondent the said agecment was only a lease deed wherein it is specifically meistioned that after termination of the lease period of 3 % veers commencing from 03-02-1993, the Petitiowcr if intended to continue in the petition schedule premises he ¢ has to pay monthly rent of Rs.1,000/-. Therefore "the « counsc! for the respondent heavily relied on that document and argued that the petitioner no.1 is a tenant under him.
"Though seid document is an unregistered document the same _ _ possession of the petitioners. Moreover as the said document is already admitted in evidence without objection the same can be looked into without any hesitation. On careful scrutiny of the said document it is clear that the said document was named only ss Agreement and though appears to be a . mortgage deed, the same is a lease deed entered into. between the parties 'on no rent and no interest busis" and that there is no intention expressed in the said agreement by the cxccutor of the said agreement expressing his intentiva to keep the petition schedule property aa security to the amount received from the petitioner. It is "necessary fo quote 'a paragraph {page.2 paragraph no.3] 9 oF. the seid agreement to understand the real nature of the said document which reads as under:
"It is atatrd the 'schedule premises is being let out to one Smt.Shyla Skade during the ycar 1990 and from her an advance of Rs, 90,000/- has been taken and now she has vacated the schedule premises and in order to pay her the advance __ weceived from her, the first party {vendor of the _. Tesponilewt herein] was made up his mind to lease : out the schedule premises to the second party . herein [petitioner no.1 here] on taking a sum of Rs. 2,50,000/- from the second party herein [petitioner no. 1 herein] the second party [petitioner _no.1 herein] has come forward to pay the said . #mount of Rs. 2,50,000/- to the first party [vendor _ of the respondent herein] subject to leasing out the schedule premises for a period of 3 years and 6 months"
410. tt the respondent. In the absence of any separate lease decd or understanding between the parties as rightly hei by the cout below, the parties position and the nature of posecasion of :
petitioner no.1 will be ascertained from the original | entered into between the petitioner no.1 and vendor of the respondent by which the petitioner 20, 1 was 2 inducted into the petition schedule property, which provided for payment of consideration by the petitioner . 'no.1 to "the landlord § at Rs. 1,000/- per month, By selying on the decision reported in AIR 2003 sc 4149, in case of R, KANTHIMATHI AND OTHER Vs MRS. BEATRICE x. AVIER wherein it is held that "Surrender of lease- Agreement of Sale between lessor and lessec-Relationship of landicrd and tenant ceases to exist once said agreement is | "entered and portion of sale consideration is accepted by seller ; Jandlon-Subsequent sending back of said ation by landlord aa) tenant-Does not revive their old relationship of "landlord and tenant-Hence, eviction petition on ground of _ willful default-Is not maintainable-Landlord had remedy of _ 7 specific performance", it is argued by the counsel for the
- petitioners that on entering into an agreement of sale with the anne vendor of the respondent, the carr relationship of lat kd and tenant if any, existed in between the vendor of the deemed to have been revived on execution of sale deed by the vendor of the respondent in favour of respondent. Hence he contended that he was not a tenant under the apondent. On the other hand counsel for the respondent submitted that the very fact of execution of agrevaent of sale by the vendor of the _ Fespondent in favour of the petitioner no.1 is in dispute and unless the said iact is proved by him before the court wherein he filed a suit for apecific performance, he continuous to be a mann Bs decision 'The facta involved in the ahove said decision ar _totally diferent from the facts involved in the case on hand. In a the said case even after cancellation of agreement of sale made im favour of tenant by the landlord, the title of the property continuous to be with the same person, as such unless the _ said cancellation is proved to be valid and legal, as held by the hon'ble supreme court it cannot be said that, i cancellation of agreement of sale the earlier retin on te mid agreoment of sale i in depute 'Mena fan ite the petition schedule premises b= 26 changed it's haud and the person with whom the petitioner 0.1 has entered into an agreement of sale had no sight over the petition schedule premises as on the date of filing of fac exccutiom petition by the respondent. As svch if any personal right has been acquired by the petitioner ss0.1 agsinst the vendor of respondent, on the basis of the said agremrat of sak, to seek execution of registered, sale deed in his favour, the said right cannot be exercised sgainst the respondent nor he can deny the right of the mapoudent te seck his eviction. Thus on execution of the | sale dee! by the vendor of the respondent in favour of the "respondent what remains betwcen the petitioners and the me petition schedule premises is the original lease deed entered Os : into between the petitioner no.1 and the earst while owner. The
-- : subsequent sale agreement entered into by the petitioner no. 1 i ae Pam cel . & with the vendor of the respondent, does not affect, the right 'to enjoy the property and to seck eviction of petitioner m0. | by ibe | respondent who has got a registered sal: deed in ins fowour Therefore the possession of the Petitioner no. 1 over the prtition schedule premises is to be asccitained only from the said original Jeane agreement wherein at page No.4, paragraph No. 6 it reads as follows: . mo . .
The first party ic bound 'te return the amount of Re. 2,50,00G/- to the second party soon after the expiration of lease period ie., 3 years and 6 months. fn caze if the first party fails to return the said. amcunt of Rs.2,50.600/- to the second party after 3 years. and 6 months, from every month thereafter the first party has to pay a liquidated datrage of Rs: 1,000/- per month after 3 ee at sac onthe Sil the payment is made per contra if the second party fails to vacate the __sehedule premises after the tenure of lease then he _ hes io pay a damage of Rs. 1,000/- for every m month for use and occupation of the schedule a posession of the schedule premises.' . 1. Thus, in the absence of any separate lease | "agreement between the parties, the rent claimed by the me respondent on the basis of the said lease agreement entered 7 \ into between the petitioner no.1 and the vendor of the respondent appears to be reasonable and in accordance with law, as such the trial court has rightly accepted the cisim of the respondent which does not require any intexforence at the :
hands of this court. In case of SELVA UDDIN Ve. _NAGARAJL, reported in ILR 2004 KAR 4782 itis held that | [a] In view of transfer of ownership the transferee becomes the owner of the evuiatw-the tenant cannot dispuic the right of the transferee landlord to maintain an. eviction petition under the rent Act or to claiza reni. Jopament by the tenant is unnecessary to confer' validity to the transfer of the lessor's. rights-2ection 109 protects payment of rent by the tenent to the transferor without. totice of the transfer, as Sec 109 creates a statutory attornment. - oe eh See Ske} "LARD LORD"
s 'the transferee of a lessor is entitled to collect reut in ferms of the lease as of right and becomes landlord unider Sec 3fe] of the Act.
"Tue sbove definition signify that the transfer of interest ofthe landiod in favour of any other persom is not prohibited. | Thus } do not find any illegality or incorrectness in the said | . finding recorded by the court below.
12. The petitioner no.2 is stated to be a sub-tenant under petitioner no.1, but on appearance before the trial court the petitioner 1 end 2 are represented through commen law and father-in-law. But they bave 'not 'produced any ;
document to prove the same, However ly the lease agreement and the seid agreenent to sale cnicred with the vendor of the respondent is by the petitioner no.1 alone and he is the proper and interested person to anawer and defend the claim/ case of fie mspondeni, but interestingly throughout the proceedings before the court below, 'the petitioner no.1 has not appeared before the court below and it is the petitioner no.2 who prosecuted the whole 'proceedings before the trial court and had alone challenged some of the interlocutory orders "passed by the trial court, before this court It is to be noted 'that the petitioner no.2 is not the person with whom the vendor of the respondent entered into agreement of lease and the sale ve agreement, he is not the proper person to speak with regard i "the: leaise agreement and the agreement of sale, even in his a "cress examination he has clearly admitted that he does not
-- _ know anything about the said agreement of Kase and sale d 8 "
discharge obligation beyond time-Sub-tenant _ , has no 'locus standi' to question eviction -
under the Section.
13. Relying on the decision reported i m AIR 1981 sc 707 in case of KSHITISH CHANDRA BOSE Vs. COMMISSIONER oF RANCHI, wherein it is held that;
"Interiocutory onder, can be as illegal in appeal from final onder. Where the high court in zecoad appeal though not having jurisdiction - iLegaliy reversed the copcurrent finding of fact 'and ordered remand, the. aggrieved party can, in an appeal ic. the supreme court from the final order of the high ccurt after remand, ~ chellenge: even the first order of the high court making remand and all _ the 2 "proceedings taken. thereafter as a result of the legai order of remand. The first judgment of the high court ordering remand
-, thereafter would become void ab initio."
: it is argued by the counsel for the petitioners that they have got right to again challenge the interlocutory orders dated 22-12-
"2003 and 01-04-2003 in this revision.
4. On going through the said decision it is clear that the ws facts involved in the said case are different from the facts , _ involved in this case, in the instant case when once the petitioners have challenged the said onders carer befor: this court in H.R.R-P No. 203 and 480 of 2008 and allowed! the suid -- revision petitions to be dismissed by non complying the orders a "of this court inspite of giving sulficicnt time and opportunity, even the C.P filed by them alse came to be dismissed, More"
interestingly when the trial coust by its exder dated 21- 12-2002 dismissed the I.A filed by the petidoners under Section 43 of the K.R.Act with cost of Rs. 200/-: On the subsequent date of hearing i.c., 00 25-02-2008 the petitioners have paid the said cost and. prosecuted the eviction petition farther, admitting the onder of the tral count, therefore itis angued by the counsel for the respondent | 'that the subsequent filing of H.R.R.P . challenging the soid oner is not at all maintainable and when | once they have admitted the part of the order passed by the 'court below by paying the cost, they have no right to challenge | ! the other part of the said order and the filing of H.R.R.P as * suhsequently, is only with an intention to harass the respondent with ulterior motives. Accepting the version of the "..xespondent it could be said that the petitioners can not be allowed to challenge the said order even in the earlier H.R.R.P Further it is necessary to look into the provinions | of section 27 [2] fa] of the K.R.Act.
« 27 [2] [a] that the tenant hee nediher paid nor tendered the whole of the arrears of the rent and other charges legally recoveraiic icom him within two months from the dete on which a notice of demand for payment has been served on him by the landlord in the manner provided in Section 106 Oe Of Property Act HAB2 [Combe Act 4 of 1882}: -
Provid - cd that # tenant siall not be entitled to the benziit of service of notice by the landlord vader this clause where, having obtained such benefit once in reepect of any premises, he again mekes a default in the payment of rent and other ee eons ae Provided further that where in a , for eviction of a tenant on the ground specified in this: clause, the tenant is to be evicted, the court . sball make an order directing the tenant to vacate ~ the premises unless he pays to the landlord or | -. depesita into court within one month of the date of order, an amount calculated at the rate at which it was last paid, for the period for which the arrears . of rent and other charges were legally recoverable up to the end of the month previous to that in which payment or deposit is made;"
17. It is brought to the notice of this court thet the petitioners have not deposited before this comt 'the monthly 7 During the pendency of the revision petiion it is the duty of the revision petitioner to deposit the monthly seots as and when it fell duc. It is very settled Jaw that rents shou' be peid when ever it becomes duc, in saeny costs thie court had even said that mere payment is not enough it shouid be paid as and when it fell dve, 'but én the instnni case the revision petitioners after depositing the aricars of vent while preferring this revision have not deposited rents tina - accrued subsequent to filing of this revision petition.
a 18. At this stage of the discussion it is necessary to : make some observations with regard to the conduct of the petitioners ia 'approaching the court, the petitioners have not | approacied the court with clean hands even from the date of
- entering appearance in the eviction petition they have not shown any respect to the orders of the court, when the trial original agreement of lease dated 03-02-1993 they failed to eS <= 28 produce the same before the court below, in spite of specific order of the court below. So also at one point they aoceyt the interlocutory order of the trial court and. subsequently to suit : their convenience they proceed to chailenge the said orders. Bven they allowed the earlier revision peitions to be dismineed for non complying the specifir orders of this court and now have come before this coust challenging the very same orders to suite their convenience. 'The petitioners heve further failed to deposit beforc this ¢ court the e monthly rents that accrued during the pendency of this revision petition, as such, the petitioners have not arproacted this cowt with clean hands, The conduct of the petitioners throughout the proceedings before court | below aud before this court, deprive them of getting any orders | fiom this court in their favour. Hence viewed from any angle, | " do not fin goud reasons to interfere with the order passed by the court below and as such this revision petition fails.
19. Accordingly this revision petition is dismissed.
" However the petitioners are given time till 31-07-2008 to vacate . and deliver the vacant possession of the petition schedule premises to the respondent, undertaking to that effect the de e Y weeks from today. The petitioners shall deposit 8 the ei - rents which had fallen duc during the pendency uf this revision 7 petition within 6 wecks from today. "They shall also pay rents =e mepnirn nein went stata ee deposit before this court shall be zeleased tothe respondent On faihure of the Fetitioners to deposi: the said arrears of rents within 6 weeks from today or on their failure to pay rents regularly. to 'ihe yespondent as and when it fell due, the respondent is at itberty to excoute the order.