Karnataka High Court
Smt. L J Malathi vs Smt. Mamatha on 3 April, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 3rd day of April, 2013
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Review Petition 862 / 2012 in RFA 1967 / 2010
Between
Smt L J Malathi, 42 yrs
W/o late Mukthar Ahmed
D/o Janardhan, R/o # 118
C/o Chennamma House
Chennamma Building
Chagaleti Beglur, Baglur P O
Bangalore North Petitioner
(By Sri P Vyasathirtha, Adv.)
And
Smt Mamatha W/o Suresh Kumar
# 993/B, Sait Palya
Patel Pillappa Garden
Hennur Main Road, Bangalore Respondent
(By Sri T S Srinivas, Adv.)
Review Petition is filed under S.114 r/w O 45 R 1, CPC praying to
review the order dated 20.7.2011 in RA 1967/2010 - annexure A and to set
aside the same.
2
Petition having been reserved for Orders on 12 th February, 2013, the
the Court made the following:
ORDER
The petitioner (defendant/appellant) is before this Court seeking to review the order passed by this Court on 20.7.2011 in RFA 1967/2010.
The tenant had come in appeal against the order of ejectment passed by the trial court in OS 27028/2007 on 1.10.2010 contending that there is no valid termination of tenancy and that the trial court had erred in passing an order of ejectment against the tenant and also the order of the trial court is without jurisdiction. After hearing the counsel representing the parties, this Court dismissed the appeal, however, granting 1 ½ years time to the appellant/tenant to vacate and hand over possession of the suit premises to the respondent. It is this order, the petitioner is again seeking to review.
Heard the counsel representing the parties.
According to the counsel for the review petitioner, respondent is not at all permitting and allowing the review petitioner to enter the shop and 3 she also has illegally removed the electricity connection. Although the review petitioner attempted to open her shop, she was forcibly prevented in doing so and unduly she has been harassed and threatened through her agents and antisocial elements. On 30.3.2002, unauthorisedly electricity supply was removed and in this regard, a complaint was lodged with the jurisdictional police also, regarding harassment and attempt to commit sexual assault, etc. The respondent has virtually made impossible for the review petitioner to carry out the business. Even in the contempt petition filed, there is a direction issued for restoration of power supply. Accordingly, on various grounds, contending that even the arrears of rent has been deposited, counsel has sought for allowing the review petition and to set aside the judgment and decree passed in RFA 1967/2010.
In support of his contention, counsel has relied upon the following decisions of the Apex Court and other High Courts regarding maintainability of the review petition.
AIR 2005 SC 592 - Board of Control for Cricket in India Vs Netaji Cricket Club 4 AIR 2001 SC 2316 - K Rajmouli Vs A V K N Swamy 2012(1) Civil L J 455 SC - Bakshi Dev Raj& Anr Vs Sudheer Kumar 2012(2) Civil LJ 35 - Mohammed Shafi Vs Abdul Wahid (dead) through LRs & Ors 2013 (1) Civil LJ 102 - Jotindar Kumar Singh @ Premjee &Anr Vs Sheojee Singh & Ors Per contra, counsel for the respondent submitted, review petitioner is a cantankerous lady and she is repeatedly harassing the respondent by filing frivolous complaints alleging sexual assault and atrocity, etc. The respondent is also a lady. To avoid respondent taking possession of the premises hectic efforts are made to file baseless complaints on false allegations. Further, due to non-payment of electricity charges BESCOM have removed the electricity connection. It is due to the act of the review petitioner herself in not making payment of electricity bills as well as she is a chronic defaulter in not making payment of rents and there is arrears of rent to the tune of Rs.76,000/-. The respondent is a subsequent purchaser. Even this Court in RFA has shown maximum leniency in giving 1 ½ years time to vacate and hand over vacant possession of the premises. The trial court 5 having got jurisdiction having regard to the plinth area, as the suit was maintainable, on service of notice as contemplated under S.106 of the Transfer of Property Act, held that there is valid termination of tenancy and passed an order of eviction by granting three months time. The review petitioner enjoyed time of more than two years from the date of order passed by this Court in RFA and she is dodging and resisting to vacate the premises on one or the other ground and the grounds made out by her are baseless and the review petitioner is also threatening and making all allegations to avoid the respondent from taking possession and accordingly, sought for dismissal of the review petition as being devoid of merits, also contending that the review petition itself is not maintainable and to allow the respondent to take possession of the premises as already execution petition is filed.
Learned counsel has relied upon the case of Pal Singh Vs Sunder Singh (Dead) by LRs & Ors - AIR 1989 SC 758 regarding the conduct of the tenant and the subsequent approach of the tenant recognising the purchaser as the landlord which estoppes the tenant from contending that 6 the purchaser has no right to file a suit for ejectment.
In the case on hand, review petitioner has raised several grounds for reviving the RFA and to set aside the order passed therein contending that the order passed by the trial court is not proper as well as for review of the order passed in RFA by this Court on 20.7.2011.
What is noticed is, in the order in RFA as well as the order passed by the trial court in the original suit, there is a finding that termination notice issued by the plaintiff under S.106 of the Transfer of Property Act is duly served terminating the tenancy, as a matter of requirement. So far as removal of electricity connection is concerned, the trial court has given a finding that as per the submission of the counsel for the respondent therein, it was for the default on the part of the review petitioner in not making payment and not at the instance of the landlord. Further, what is noted by the trial court on merits is, it has got jurisdiction to try the suit. According to the finding of the trial court and also as per the submission of the respondent's counsel, it is a commercial premise exceeding 14 sq. and 7 this has been admitted by the review petitioner as such, question of holding that civil court has no jurisdiction does not arise. The finding of the trial court with regard to due termination of tenancy and also with regard to maintainability of the suit cannot be interfered with having regard to the pleadings and evidence on record.
It is to be noticed, at the time of disposal, considering the fact that petitioner is a lady, maximum leniency was given to her by granting 1 ½ years time to vacate and hand over the premises. That apart, the review petitioner has sought for reviewing the order in RFA belatedly after 1 ½ years was granted and also having enjoyed the property. The say of the respondent's counsel is, only to harass the landlord, false complaints have been filed and she is not allowing the respondent to take possession of the premises. Even the review petitioner is not paying rentals properly. It is stated, a case of sexual assault has been filed. Rather, the landlord is a lady and question of sexual assault does not arise. Rather, these are all pleadings raised by the review petitioner, she being arrogant having no respect to the law. The order passed in RFA 1967/2010 on 20.7.2011does not call for 8 interference.
Petition is dismissed. However, another three months time has been granted to vacate and hand over vacant possession of the premises.
Sd/-
Judge an