Karnataka High Court
Sri Mohammed Rafi vs Sri Nagaraj B.M. on 9 September, 2015
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
C.R.P.No. 322/2015
BETWEEN
SRI MOHAMMED RAFI
S/O ABDUL RAZA
AGED ABOUT 46 YEARS
KGN ENGINEERING WORKS
NO.34, MUNGOWDA LAYOUT
2ND CROSS, HEBBAL KEMPAPURA
BANGALORE 560024. ... PETITIONER
(By Sri.DHANARAJ H.S., ADV.)
AND
1. SRI NAGARAJ B.M.
S/O LATE MAYANNA GOWDA
AGED ABOUT 49 YEARS
R/AT NO.22/2, 17TH CROSS
AGRAHARA DASARAHALLI
BENGALURU 560079
SRI SIRAJUDDIN S/O MOHAMMED FAKRUDDIN
SINCE DEAD REPRESENTED BY HIS LRS
2. SMT.NOORJA
W/O LATE SIRAJUDDIN
AGED ABOUT 56 YEARS
3. SMT NAIZA S.
D/O LATE SIRAJUDDIN
AGED ABOUT 29 YEARS
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4. SRI S MOHISIN KAMAL
S/O LATE SIRAJUDDIN
AGED ABOUT 25 YEARS
2 TO 4 ARE R/AT NO.30/1,
1ST MAIN ROAD, KEMPAIAH BLOCK
JAYANAGAR
BANGALORE 560006 ... RESPONDENTS
(By Sri.M.RAMAKRISHNA, ADV. FOR
Sri M.T.NANAIAH ASSTS., FOR C/R1)
THIS CRP FILED UNDER SEC.18 OF THE SMALL CAUSES
CORT ACT. JUDGMENT AND DECREE DATED 06.04.2015 PASSED
IN S.C.NO.2364/2011 ON THE FILE OF THE XII ADDL.SMALL
CAUSES AT BANGALORE (SCCH-8), DECREEING THE SUIT FOR
EJECTMENT, VACANT POSSESSION AND DAMAGES.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This revision petition is filed challenging the judgment and decree passed by the Court of Small Causes, Bangalore on 06.04.2015 directing the 1st defendant - petitioner herein to quit and deliver vacant possession of the suit schedule premises and to pay arrears of rent of Rs.31,750/- to the plaintiff apart from damages in a sum of Rs.950/- per month from the date of suit till the date of handing over vacant possession of the premises.
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2. Plaintiff herein had earlier filed HRC No.316/2007 on the file of the Small Causes Judge, Bangalore seeking eviction of the tenant - revision petitioner herein. But, the said petition was withdrawn on 12.12.2008 with liberty to institute a fresh suit. Accordingly, the landlord - defendant No.1 herein filed O.S.No.1020/2009 before the City Civil Court, Bangalore. The said suit was transferred to the Small Causes Court on 07.07.2011. Before the Small Causes Court, parties have led evidence and the Court below has passed the order under challenge directing ejectment of the tenant along with other reliefs as referred to above.
3. The main contention urged by the learned counsel for the petitioner is that jural relationship of landlord and tenant had been disputed; there were disputes pending with regard to the property in question between the 1st defendant and the 2nd defendant; 2nd defendant denied the title and ownership of the 1st defendant over the suit property, therefore, the Small Causes Court was in error in decreeing the suit. The 2nd contention urged by the leaned counsel for the petitioner - tenant is that Court below has misdirected itself in holding that there were arrears of rent at Rs.31,750/- payable by the 4 revision petitioner to the plaintiff. It is contended that advance amount paid by the tenant has been ignored while directing payment of damages at Rs.950 per month.
4. Learned counsel for the respondent supports the findings recorded by the Court below and submits that having regard to the fact that the HRC petition had been filed way back in the year 2007 and in view of the admission made by the 1st defendant by filing objections in the HRC petition regarding the existence of relationship of landlord and tenant, it was not open for the revision petitioner to contend to the contrary.
5. Having heard the learned counsel for both parties and on careful consideration of the entire materials on record, I find from the discussions made by the Court below in paragraph Nos. 20 to 23 of the judgment under challenge that in HRC No.316/2007 filed by the very plaintiff against the very revision petitioner, the revision petitioner - tenant had filed objections admitting the relationship of landlord and tenant between himself and the plaintiff - respondent No.1 herein. In addition, plaintiff has produced original sale deed at Ex.P.1 to show that he purchased the suit schedule property during the year 2006. Therefore, findings recorded by the Court below regarding the 5 existence of relationship of landlord and tenant cannot be found fault with as it is based on the admission made by the 1st defendant - revision petitioner.
6. Insofar as arrears of rent of Rs.31,750/- ordered to be paid by the revision petitioner to the plaintiff, as can be found from the discussion made on point No.3 raised by the Court below this amount has been awarded as arrears of rent as on 31.12.2006. The present suit was filed in the year 2011. Even if the date of filing of the earlier suit in O.S.No.1020/2009 is taken into consideration, arrears could be claimed only for a period of 3 years prior thereto and not more than that as such claim would be barred by time. In the instant case, the arrears are claimed and allowed up to 31.12.2006. Therefore, to this extent, the judgment and decree passed by the Court below cannot be sustained.
7. Hence, the judgment and decree insofar as it pertains to the direction to defendant No.1 - revision petitioner herein to pay arrears of rent of Rs.31,750/- has to be set aside. As regards payment of damages of Rs.950/- per month from the date of suit till handing over vacant possession of the suit schedule premises, the same cannot be found fault with as 6 defendant No.1 - revision petitioner is required to account for the same having occupied the premises during the pendency of the suit.
8. Accordingly, the revision petition is partly allowed. The judgment and decree passed by the Court below is confirmed only insofar as it pertains to ejectment and payment of damages. As regards payment of arrears of rent of Rs.31,750/- the judgment and decree is set aside. It is made clear that out of the advance amount in the hands of the landlord - defendant No.1, damages have to be adjusted and if anything remains over and above, the defendant has to pay the same otherwise the decree can be executed in accordance with law. If the possession of the property has been already taken over by the decree holder as submitted by him, then, execution of the decree for possession would not arise. However, it is made clear that if any other coercive step has been taken in the execution proceeding for recovery of arrears, in view of the judgment now passed such steps cannot be proceeded with, as the decree as modified now requires to be satisfied.
Sd/-
JUDGE VP