Karnataka High Court
Sri Datta Murthy vs Sri B R Prakash on 7 October, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
1 CRP NO.201 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRP NO.201 OF 2021 (SC)
BETWEEN:
SRI. DATTA MURTHY
S/O SRI. SANJEEVAIAH
AGED ABOUT 73 YEARS
NO.8, KANAKANAPALYA
9TH MAIN, 2ND BLOCK, JAYANAGAR
BENGALURU-560 011
AND ALSO IN OCCUPATION OF
SHOP NO.5 OD NO.650/1 NEW NO.1
4TH BLOCK, 10TH 'D' MAIN, JAYANAGAR
BENGALURU-560 011.
...PETITIONER
(BY SRI. SHANKARANARAYANA RAO.B.V, ADVOCATE-VC)
AND:
1. SRI. B.R. PRAKASH
S/O LATE B RAMA RAO
AGED ABOUT 63 YEARS
2. SMT. GEETHA PRAKASH
W/O SRI. B.R. PRAKASH
AGED ABOUT 60 YEARS
BOTH 1 & 2 ARE RESIDING AT
NO.1, 1ST MAIN ROAD, N.R. COLONY
BENGALURU-560019
BOTH 1 & 2 ARE REPRESENTED
2 CRP NO.201 OF 2021
BY THEIR GPA HOLDER
SRI. AMITH PRAKASH
AGED ABOUT 28 YEARS
S/O SRI. B.R. PRAKASH
NO.1 IST MAIN ROAD N R COLONY
BENGALURU-560 010
3. MR. AHMED ALIAS GANESHA
AGED ABOUT 25 YEARS
S/O NOT KNOWN TO THE PETITIONER
SHOP NO.3 OLD NO.650/1 NEW NO.1
4TH BLOCK 10TH D MAIN JAYANAGAR
BENGALURU-560 011
... RESPONDENTS
(BY SRI. C.V. SRINIVASA, ADVOCATE FOR R1 AND R2-PH)
THIS CRP IS FILED UNDER SECTION 18 OF THE
KARNATAKA SMALL CAUSES COURT ACT, 1964, AGAINST THE
JUDGMENT DATED 20.07.2021 PASSED IN SC.NO.585/2019 ON
THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE,
BENGALURU, DECREEING THE SUIT FOR EJECTMENT.
THIS CRP COMING ON FOR orders AND HAVING BEEN
RESERVED FOR ORDERS ON 31.08.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for the following reliefs:
i. Call for the entire records in S.C.No.585/2019 on the file of the XXI Additional Small Causes & Additional MACT., Bengaluru (SCCH-23) ii. Set aside the Order/Decree dated 20.07.2021 in S.C. No.585/2019, passed by the XXI 3 CRP NO.201 OF 2021 Additional Small Causes & Additional MACT., Bengaluru (SCCH-23).
iii. Grant such other and further relief/s which may be deemed fit and appropriate in the facts and circumstance of the case and in the interest of justice and equity.
2. S.C. No.585/2019 filed by the respondent herein before the XXI Addl. Small Causes and Addl. MACT (SCH-23) in respect of shop bearing No.3, which is part of Old No.650/1, New No.1, IV Block, 10th 'D' Main, Jayanagar, Bengaluru- 560 011 seeking for eviction of the Petitioner.
3. The Petitioner appeared before the trial Court and filed his written statement contending that there is no jural relationship between the petitioner and respondents No.2 and 3 to give a cause of action to institute the suit. In response to the legal notice dated 25.01.2019 issued by respondents No.1 and 2, the Petitioner had called upon respondents No.1 and 2 to furnish authenticated copies of the documents relied upon in the said legal notice. Instead of 4 CRP NO.201 OF 2021 complying with the same, respondents No.1 and 2 advised the Petitioner to obtain the certified copies of the said documents. It is contended that there is no attornment of tenancy in any manner required. Though it is contended that respondents No.1 and 2 have become owners in the year 2005, they could not have issued the legal notice after 14 years, i.e. on 25.1.2019, and that Petitioner is in default of payment of rentals. It was further denied that the petition had sub-let a portion of the shop on daily rental of Rs.300/- per day. It is contended that the Petitioner could not lead his evidence in the matter due to his ill health and for other reasons beyond his control.
4. Accepting the evidence, both oral and documentary produced by respondents No.1 and 2, the trial Court decreed the suit directing the Petitioner to handover the suit schedule property in favour of respondents No.1 and 2 within one month from the date of the order and as also make payment of arrears of rent of 5 CRP NO.201 OF 2021 Rs.16,200/-. Since defendant No.2 had no independent right, it was held that he had no right to squat over the suit schedule property and his tenancy was also duly terminated. The trial Court also directed an inquiry into mesne profits under Order 20 Rule 12 of CPC. It is aggrieved by the same that the Petitioner is before this Court.
5. Sri.B.V.Shankarnarayana Rao, learned counsel for the Petitioner, would contend that:
5.1. The impugned Judgment is opposed to principles of natural justice. The Court has only relied upon the oral and documentary evidence of respondents No.1 and 2; the Petitioner was not provided with an adequate opportunity. There is no finding recorded by the trial court as regards the validity and veracity of the said documents.6 CRP NO.201 OF 2021
5.2. The trial Court has not considered the objection of the Petitioner herein that there was no jural relationship between the petitioner and respondents No.1 and 2 to give rise to a cause of action to institute the suit. 5.3. There is no attornment of tenancy, and that the legal notice issued after a period of 14 years from the date on which respondents No.1 and 2 became owners is not permissible. 5.4. The trial court ought to have appreciated the comparative hardship inasmuch as the Petitioner if were to be evicted; the Petitioner would be thrown out of the premises causing tremendous inconvenience to the Petitioner and on this basis, he submits that the Judgment and decree passed by the trial Court is required to be set aside.7 CRP NO.201 OF 2021
6. Per contra, Sri.C.V.Srinivas, who has entered an appearance for the respondents by filing caveat, has filed an objection to the petition, and relying on the same, he submits that
6.1. The Judgment and decree impugned in the present proceedings is proper and correct and does not require any interference at the hands of this Court.
6.2. Vacant site bearing No.650 situated at IV block, 10th Main, Jayanagar, Bangalore had been allotted to Sathyanarayana on 24.09.1959, who agreed to sell the same to Sri.G.S.Ramaswamy and had executed a sale deed on 22.04.1981 in favour of Sri.S.G.Ramaswamy who had constructed seven shops in the year 1973, which were assessed to municipal taxes which were paid by said G.S.Ramaswamy.
8 CRP NO.201 OF 20216.3. One Duttamurthy had approached G.S.Ramaswamy to let out one shop on lease/rent for his business activities, and hence, G.S.Ramaswamy had executed an agreement in respect of shop No.3 out of the said seven shops. G.S.Ramaswamy expired on 11.06.1988, leaving behind nine legal heirs. Said Duttamurthy became the tenant under the nine legal heirs of G.S.Ramaswamy. 6.4. Nine legal representatives of G.S.Ramaswamy sold the property in favour of B.R.Prakash, B.R.Krishna Prasad, Geetha Prakash, Smitha Krishna Prasad on 26.11.1992, and a notice came to be issued attorning the tenancy on 26.11.1992. Consequently, Duttamurthy became a tenant under the aforesaid persons who released their shares in favour of respondents No.1 and 2 through a registered release deed dated 19.04.2005. Consequently, 9 CRP NO.201 OF 2021 the Petitioner became a tenant only under respondents No.1 and 2. The tenancy having already been attorned in favour of nine persons, a mere release would not amount to creating of a fresh tenancy inasmuch as it is by way of release complete rights in the property vested with respondents No.1 and 2. 6.5. Recognizing and said release of ownership in favour of respondents No.1 and 2, the Petitioner continued to make payments rentals until the year 2001 when he became a defaulter, and he stopped making payment of the rentals despite making use of the aforesaid shop.
6.6. It is in this background that after persistent follow-up not yielding any result that the legal notice 25.01.2019 was issued, receipt of which is not disputed by the Petitioner.
10 CRP NO.201 OF 20216.7. By virtue of the said notice, tenancy came to be terminated, and as such, the Petitioner was bound to surrender the vacant physical possession of the scheduled premises on the forenoon of 14.02.2019, which not having been done S.C.No.585/2019 was filed which was contested by the Petitioner.
6.8. The Petitioner having filed objection and contesting the matter, as also cross-examining respondents No.1 and 2, the Petitioner did not choose to lead evidence but chose to submit final arguments. After hearing the parties, the impugned order has been passed. Thus, he submits that there is no violation of principles of natural justice as sought to be contended by the Petitioner inasmuch as the proceedings were conducted over a period of 2 years 3 months during which time, the Petitioner could have always sought for recalling of the order 11 CRP NO.201 OF 2021 and leading the evidence having chosen not to do so, the Petitioner cannot now claim any benefit of his own wrongs.
6.9. The trial Court has appreciated all evidence which have been produced by respondents No.1 and 2 in a proper and correct perspective. The tenancy having been admitted and rentals having been paid, the Petitioner has taken a dishonest stand that respondents. No.1 and 2 are not owners of the property, and a tenant cannot be heard or allowed to take up such a contention.
6.10. After the decree was passed, the Petitioner filed Misc. Petition No.11/2020 before the trial Court under Order 9 rule 13 of CPC, which came to be dismissed by the trial Court by a well-reasoned order dated 3.04.2021, thereafter respondents No.1 and 2 have filed 12 CRP NO.201 OF 2021 Execution Petition in Ex.Petition No.473/2020 seeking for issuance of a delivery warrant. 6.11. When such delivery warrant was sought to be executed on 7.4.2021, the henchman threatened the court official and GPA holder of respondents No.1 and 2. Hence delivery warrant was returned with a shara seeking for police protection. Therefore, a further application had been filed by respondents No.1 and 2 seeking for such police protection. 6.12. It is in that background that the Petitioner knowing fully well that respondents No.1 and 2 had filed a caveat petition in Caveat Petition No.4884/2021 in the CRP jurisdiction, had filed MFA No.1827/2021. The said MFA came to be dismissed and thereafter, the present CRP No.201/2021 has been filed. All the above facts establishes that the petitioner-tenant is seeking to abuse the process of this Court and 13 CRP NO.201 OF 2021 therefore, there is no equitable consideration required to be given to the Petitioner and this Court ought to dismiss the above petition there being no ground which has been made out in the said matter.
6.13. In this regard, Sri.C.V.Srinivasa, learned counsel for the Petitioner, relies upon the following decisions:
6.14. Debasish Sinha -v- Sreejib Sinha & others- [Special Leave to Appeal (C) No.4148/2020, more particularly the observations in paragraph 2 is reproduced hereunder for easy reference:
"2. We are not satisfied with merely dismissing the special leave petition as some signal must be sent to discourage this nature of litigation. We , thus while dismissing the SLP impose the following directions :
1) The execution be satisfied within a period of 15 days from this order being placed before the trial Court.14 CRP NO.201 OF 2021
2) Damages be computed by the executing Court at the market rates against the Petitioner from the date of filing the objection i.e. 26.03.2010 till possession is taken and this process be completed within a period of three months.
3) The Petitioner for wastage of judicial time and for dragging on the proceedings be burdened with costs of Rs. 1 lakh to be paid to the respondent within the same period of three months.
The special leave petition is dismissed in terms aforesaid."
6.15. The decision of the Hon'ble Apex Court in Civil Appeal No. 7988/2004 between M/s Atma Ram Properties -v- Federal Motors Pvt. Ltd., wherein it has been held thus:
"Ordinarily this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. Landlord- tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation 15 CRP NO.201 OF 2021 and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not loose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant."
6.16. The decision of the Apex Court in the case of Anar Devi (Smt.) -v- Nathu Ram [(1994) 4 SCC 250] more particularly paragraph 13 thereof which is reproduced hereunder for easy reference :
13. This Court in Sri Rain Pasricha v.
Jagannath AIR (1976) SC 2355, has also ruled that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd3, when had occasion to examine the contention based oil the words 'at the beginning of the tenancy' in Section 1 16 of the Evidence Act, pronounced that they do not give a round for a person already in possession of land becoming tenant of another, to 16 CRP NO.201 OF 2021 contend that there is no estoppel against his denying his subsequent lessor's title. Ever since, the accepted position is that Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground.
6.17. On the above grounds, he submits that the Civil Revision Petition is required to be dismissed.
7. At this stage, Sri.B.V.Shankarnarayana Rao, learned counsel for the Petitioner, submits that if an adequate time period is granted to the Petitioner, the Petitioner would vacate the premises. He submits that the Petitioner has been in possession for more than 40 years, and therefore, he seeks three years time to vacate the premises.
17 CRP NO.201 OF 2021
8. Sri.C.V.Srinivass, learned counsel for the respondents would submit that:
8.1. The Petitioner has acted in a malafide manner, and that the Petitioner has even questioned the ownership of the respondents. 8.2. The Petitioner has continued to delay the proceedings on one ground or the other. The delay being occasioned by the Petitioner only to gain the benefit of retention of the premises, the relationship between the Petitioner and respondents have become very strained, there is no trust between the parties.
Respondents No.1 and 2 owners do not wish to grant any further extension of time, and as such, on instructions, he submits that this Court may proceed to pass necessary orders.
9. Heard Sri.Shankaranarayana Rao.B.V, learned counsel for the Petitioner and Sri.C.V.Srinivasa, 18 CRP NO.201 OF 2021 learned counsel for respondents No.1 and 2. Perused papers.
10. A short question that arises for consideration of this Court is, whether the Petitioner has made out any case for interference with the reasoned order passed by a trial Court in S.C.No.585/2019 dated 20.11.2021?
11. The grounds urged by the Petitioner is that the Petitioner was not afforded a reasonable opportunity to contest the matter and therefore, there is a violation of principles of natural justice and that respondents are not the owners of the properties, and the jural relationship has been questioned.
12. As regards the first contention urged by Sri.Shankarnarayan Rao, it is clear that the Petitioner had filed his objections in the proceedings and had also cross-examined PW-1. Thereafter the Petitioner chose not to lead his evidence or produce 19 CRP NO.201 OF 2021 any documents. Thus, the Petitioner chose to rely upon and restrict himself to the examination-in-chief and cross-examination of PW-1. It is the risk that the Petitioner had chosen to take. It is only after the Petitioner failed in the said risk and decree of eviction had been passed that the Petitioner chose to file an application under Order 9 Rule 13 of CPC to recall the Judgment and permit the Petitioner to lead evidence which also came to be refused on the ground that the Petitioner had not made out any particular ground for allowing the same inasmuch as the Petitioner having cross-examined PW-1 and thereafter the matter being adjourned on several dates and finally the matter being heard and Judgment passed, the Petitioner having addressed his arguments, it could not be said that there was no opportunity which was afforded to him.
13. I am in agreement with the said reasoning by the trial Court inasmuch as the Petitioner had enough 20 CRP NO.201 OF 2021 and more opportunity to contest the matter. A litigant who chooses not to lead evidence and goes on with submitting his arguments cannot at a later point of time, having failed in such endeavor, contend that principles of natural justice have been violated. If at all the Petitioner wanted to lead his evidence, he could have done so at any point of time after the cross-examination of PW-1 was completed and before the arguments were taken up. This having not been done and the matter being adjourned for over two years and the Petitioner has derived benefits of such proceedings inasmuch as the Petitioner has continued to be in occupation of the premises by delaying the matter.
14. A perusal of the order sheet in S.C.No.585/2018 indicates that respondents No.1 and 2 filed their evidence affidavit on 25.10.2019, thereafter the evidence was led, and documents marked on 11.11.2019 when there is a dispute about a 21 CRP NO.201 OF 2021 particular document which was objected to by defendant No.1, as such arguments were heard on the same and orders passed allowing respondents No.1 and 2 to mark the document viz., the photocopy of the letter of attornment, the same was marked on 27.11.2019, respondents No.1 and 2 closed their side.
15. The matter was posted for cross-examination when numerous adjournments were taken; in fact even cost was imposed, thereafter the Petitioner sought for time stating that they would seek to arrive at a settlement in the matter which settlement was not arrived at, again the matter came to be adjourned for cross-examination of PW-1 for which purpose, in total 15 adjournments were granted and thereafter plaintiffs' evidence was closed and the matter posted to defendant's evidence.
16. It is at this stage, on 5.2.2021, the Petitioner filed an application for recall of the witness, which came to 22 CRP NO.201 OF 2021 be allowed on a cost of Rs.300/- and subsequently, the witness was cross-examined on 15.02.2021.
17. On 1.03.2021, the Petitioner sought for time to lead evidence, and the matter came to be adjourned on three occasions at the said stage, but no evidence was lead, the matter was posted for arguments, on 3.4.2021 the learned counsel for Respondents addressed his arguments, the Petitioner sought for adjournment and on 9.4.2021 the Petitioner addressed his arguments and submitted certain decisions he sought to rely upon when the matter was adjourned on two occasions for further arguments. Arguments were finally heard and Judgment pronounced.
18. Thus, it cannot be said that the Petitioner has not been given adequate opportunity; in fact the Petitioner has before this Court made false submission as regards violation of principles of natural justice inasmuch as it is the Petitioner who 23 CRP NO.201 OF 2021 has sought for numerous adjournments and continues to squat on the property.
19. In between the Petitioner had also sought time to arrive at an amicable resolution and or settlement of the matter, thereby indicating that the Petitioner himself had recognized the respondents as owners of the property and he wanted to come to an amicable resolution.
20. It is in the above background, the second contention of the Petitioner cannot now be accepted that respondents No.1 and 2 are not the owners of the property and or that there is no jural relationship between the petitioner and respondents No.1 and 2. The letter of attornment which was objected to be marked and subsequently which came to be marked as Ex.P50 would also establish such an attornment, and now the tenant cannot contend that owner is not the owner and that there is no jural relationship. This kind of contention is completely malafide and so 24 CRP NO.201 OF 2021 taken up only for the purpose of delaying the matter and for no further reason.
21. In view of the same, I find no reason to interfere with the well-reasoned order passed by the trial Court, the above Civil Revision Petition is dismissed. However, time period of one month granted by the trial Court to vacate the premises is extended by another period of one month from today, the order having been pronounced in the presence of the counsel for Petitioner, the period of 30 days would commence from today.
22. The Petitioner is directed to hand over the vacant possession of the subject premises by 7.11.2021. As directed by the trial Court, an inquiry into mesne profits shall be held in accordance with law.
23. There being completely malafide stand taken and false submissions having been made on facts costs of Rs. 10,000 are imposed on the Petitioner to be 25 CRP NO.201 OF 2021 paid to the Respondents withing 15 days from today, i.e., on or before 21.10.2021.
24. The Civil Revision Petition is dismissed.
Sd/-
JUDGE ln