Karnataka High Court
Smt Hajira Bi vs Smt Sangeetha Bagrecha on 16 November, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.1670 OF 2017
BETWEEN:
1 . SMT HAJIRA BI
W/O LATE V V SHAIK KUTTY
AGED ABOUT 68 YEARS
R/O NO.18, PIPELINE ROAD
SARAKKI GATE
J P NAGAR
BENGALURU-560076.
2 . ASHRAF PASHA
S/O LATE V V SHAIK KUTTY
AGED ABOUT 54 YEARS
R/O NO.11, II CROSS
UMARBAGH LAYOUT
J. P. NAGAR
BENGALURU-560078.
3 . ASLAM PASHA
S/O LATE V V SHAIK KUTTY
AGED ABOUT 52 YEARS
R/O NO.11, II CROSS
UMBARBAGH LAYOUT
J. P. NAGAR
BENGALURU-560078.
4 . ANJUM PASHA
S/O LATE V V SHAIK KUTTY
AGED ABOUT 50 YEARS
2
R/O NO.18, PIPELINE ROAD
SARAKKI GATE, J P NAGAR
BENGALURU-560076.
5 . ASIM PASHA
S/O LATE V V SHAIK KUTTY
AGED ABOUT 40 YEARS
R/O NO.18, PIPELINE ROAD
SARAKKI GATE, J P NAGAR
BENGALURU-560076.
6 . AYESHA SIDDIQUE
D/O LATE V V SHAIK KUTTY
AGED ABOUT 46 YEARS
NO.208, I MAIN ROAD
UMBARBAGH LAYOUT
J P NAGAR
BENGALURU-560078.
7 . ASMA
D/O LATE V V SHAIK KUTTY
AGED ABOUT 42 YEARS
4TH CROSS,
NEAR RAM MANDIR
YELECHENAHALLI
BENGALURU-560078
8 . UME SALMA KHAN
D/O LATE V V SHAIK KUTTY
AGED ABOUT 38 YEARS
NO.208, I MAIN ROAD
UMARBAGH LAYOUT
J P NAGAR
BENGALURU-560078
...APPELLANTS
(BY SRI. M A HIMAYUN, ADVOCATE )
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AND:
1. SMT. SANGEETHA BAGRECHA
W/O RAMESH KUMARA
AGED ABOUT 47 YEARS
2. SMT MONICA
W/O SURESH KUMAR
AGED ABOUT 45 YEARS
3. SMT SANGEETHA
W/O MUKESH KUMAR
AGED ABOUT 43 YEARS
RESPONDENTS No.1 TO 3 ARE RESIDING
AT No.100/8
BULL TEMPLE ROAD
BENGALURU - 560 019.
4. RAMESH K SHETTY
S/O SHETTY
AGED ABOUT 55 YEARS
PROPRIETOR OF R S LUNCH HOME
NO.44(PORTION) & 44/6
LALBAGH MAIN ROAD
BENGALURU-560027.
....RESPONDENTS
(BY SRI. P.D. SURANA, ADVOCATE FOR R1 TO R3
SRI. K. PRASAD HEGDE, ADVOCATE FOR R4)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.07.2017 PASSED IN
OS NO.9561/2007 ON THE FILE OF THE X ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT
FOR EJECTMENT.
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THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri M.A.Humayun, learned counsel for the appellants, Sri P.D.Surana, learned counsel for respondent Nos.1 to 3 and Sri K.Prasad Hegde, learned counsel for respondent No.4.
2. This appeal is filed by the defendants, challenging the judgment and decree passed in O.S.No.9561/2007 dated 18.07.2017 on the file of the X Additional City Civil and Sessions Judge, Bangalore, whereby the appellants/defendants are directed to vacate the suit schedule properties and hand over the vacant possession of the same to the plaintiffs within three months from the date of judgment.
3. Parties are referred to as plaintiffs and defendants as per the rankings before the trial court for the sake of convenience.
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4. Brief facts which are utmost necessary for the disposal of the present appeal are as under:
A suit for ejectment came to be filed by the plaintiffs contending that the plaintiffs have purchased the suit property under different sale deeds dated 23.03.1995, 24.03.1995 and 20.09.1995 and since then, the plaintiffs are the joint owners of the suit property. It is further contended that defendant No.1-Sri V.V.Shaik Kutty was a tenant of the suit premises on monthly rent of Rs.200/-. It is further contended by the plaintiffs that when Sri V.V.Shaik Kutty sublet the suit schedule property, the plaintiffs were constrained to file an eviction petition under the provisions of the Rent Control Act. Later on, by virtue of the amendment brought to the Rent Control Act, the present suit is filed seeking for ejectment of the defendants from the suit schedule property. After the death of Sri V.V.Shaik Kutty-
defendant No.1, his legal representatives have been proceeded with the eviction petition and Sri Ramesh K. Shetty, who is the sub-lessee also made as a party to the 6 suit by issuing appropriate notice under Section 106 of the Transfer of Property Act, 1882.
5. On receipt of the suit summons, defendant No.1 appeared through counsel, but did not choose to contest the suit. The legal representatives on record have also not contested the suit.
The sublessee, who is defendant No.2 filed a written statement denying the plaint averments in toto, including the existence of a landlord-tenant relationship. He also contended that he is a tenant under defendant No.1. Now under the legal representatives of defendant No.1 in the said building, the plaintiffs have not terminated his tenancy by issuing proper notice to him. Therefore, he sought for dismissal of the suit.
6. Based on the rival contentions of the parties, trial court framed following issues:
1) Whether the plaintiffs prove that there is jural relationship between them and first defendant?7
2) Whether plaintiffs prove that there is valid termination of tenancy of the first defendant?
3) Whether plaintiffs prove that first defendant has sublet the premises to the second defendant without plaintiffs'?
4) Whether second defendant proves that he is in settled possession of the suit premises since last more than 5 years and that he is regularly paying the rents in respect of suit property?
5) Whether plaintiffs are entitled for the relief of ejectment against the defendants?
6) Whether the suit as brought is
maintainable.?
7) To what order or decree, the parteis are entitled to?
7. In order to prove the case of the plaintiffs, the power of attorney holder of the plaintiffs by name Sri Utsavlal filed an affidavit in lieu of his examination-in- chief and he was examined as PW.1. In support of the plaint averments, he relied on 24 documents which were exhibited 8 and marked as Exs.P.1 to P.24 comprising of special power of attorney, certified copy of final order in HRC No.1401/96, copy of legal notice, postal acknowledgment of defendant No.1, returned postal cover, reply notice, certificate of posting, certified copies of the sale deeds executed by different persons in favour of plaintiff, khatha certificate, tax paid receipt, another khatha certificate, tax paid receipt, sanctioned plan, copy of the petition filed by defendant No.1 against present plaintiffs' in HRC No.10327/96, copy of the objections in the said HRC No.10327/96, two court notices received in the said case, copy of the RO for deposit of rent by first defendant in said HRC 10327/96.
8. On behalf of the defendants, defendant No1.(a) - Smt.Hajira Bi is examined as DW.1 and no documents are produced on behalf of the defendants. For reasons best known to defendant No.2, he did not choose to examine himself as a witness.
9. On conclusion of the trial, the learned trial Judge considered the material on record in view of the rival 9 contentions of the parties and decreed the suit of the plaintiffs and directed the defendants to deliver vacant possession of the suit schedule property to the plaintiffs within three months from the date of judgment, i.e., on 18.07.2017.
10. Being aggrieved by the said judgment and decree, the legal representatives of defendant No.1 alone have preferred the present appeal on the following grounds:
• It is submitted that the judgment and decree of the Court below is unsustainable in law and thus the same is liable to be set aside.
It is submitted that the Court below erred in law in non-suiting the appellants, in view of lack of inherent want of jurisdiction.
The judgment and decree is one without jurisdiction.
At the outset, it is submitted there was a preliminary objections as to the jurisdiction of the Court and maintainability of the suit. The objection raised by the appellants as to the jurisdiction of the Civil Court is one of 10 inherent want of jurisdiction and the same should have been therefore, examined by the Court below before deciding the merits of the case.
• Sufficient it to submit that, respondent Ns.1 to 3 initiated proceedings under the Rent Control Act, 1961 without furnishing the description of the subject matter of the dispute. The Karnataka Rent Control Act 1961 was repealed, and the Karnataka Rent Act 1999 came in to force, and, by virtue of section 70 (2) (c) of the Karnataka Rent Act 1999, the proceedings in H R C No.1401 /1996 came to be abated.
Thereafter, Respondents No 1 to 3 initiated proceedings before the Small Causes Court and the Small Causes Court took cognizance of the case and decreed the suit on 20-12-2006. As against the order of the Small Causes Court, civil revision petition was filed in CRP 152/2007. It is submitted that, the Hon'ble High Court relying upon the decision of the Division Bench, reported in ILR 2007 KAR 3309 (Sarojamma Vs. K M Venkatesh), was pleased to dispose of the Civil Revision Petition on 31-08-2007, and, 11 the matter was remitted back to Small Causes Court Bangalore, with a direction to return the plaint to the plaintiff to present it before the appropriate court, But, it is noticed that plaintiffs have filed a fresh suit before the City Civil Court in the year 2007 basing on the same cause of action.
• As matter stood, during the pendency of the suit, in the year 2011, the Hon'Ble High Court of Karnataka dealing with the question relating to the cognizance of the suits for ejectment in respect of which Karnataka Rent Act 1999 are not applicable and also interpreting sub clause (b) clause 4 of Schedule to Karnataka Small Causes Courts Act, in Abdul Wajid Vs. A.S.Onkarappa's, held that the Courts of Small Causes have jurisdiction to take cognizance of not only a bare suit for ejectment but also a suit for ejectment with a prayer for recovery of mesne profits or damages in respect of the premises to which Karnataka Rent Act 1999 is not applicable. The declaration of the law and the conclusion of the full Bench in Abdul Wajid Vs A S Onkarappa's case reported in 12 ILR 2011 Karnataka page 299 is that the suits for ejectment with or without prayer for rent, mesne profits or damages, pending before the Civil Courts, either upon the re-presentation of plaints pursuant to decision in Sarojammas case or presented afresh after Sarojammas case the value of the subject matter of which is within the pecuniary limits of the Small Causes shall be transferred to the Courts of small causes which on receipt of such records shall proceed from the stage at which they were pending before the Civil and dispose them of in accordance with law.
• It is therefore, submitted, that the present Court lacks jurisdiction to try the present suit because of the inability to entertain arises from the existence of another Court with an exclusive and preferential jurisdiction.
• It is further submitted that whereby a subsequent decision, the law is altered; the court is bound to take into consideration of the same that is change in law before passing a decree. Therefore, the court 13 below could not have in the circumstances of the case decreed the suit. Hence, the judgment and decree is unsustainable and bad in law. Therefore, it is submitted, that, the court below has erred in not taking into consideration of the subsequent declaration of the law relating to the jurisdiction • Assuming, but not conceding that, the Civil Court, has/d the jurisdiction to try the suit, the court below has miserably failed to appreciate the following important legal aspects involved in the matter.
a) The question relating to jurisdiction of the Court has not been put in issue.
b) Non-compliance of section 106 of T P Act, therefore, whole proceedings are vitiated.
c) A fresh suit for ejectment based on identical cause of action is also not maintainable.
d) The power of Attorney has no power to conduct the proceedings. Further, the power of attorney holder has been examined on behalf of plaintiffs as PW.1.14
This is also opposed to the ruling of the Apex court reported in 2013 -12 S.C. C 64.
e) The court below has proceeded on an assumption that there is no defence by defendant No.1.
• It is submitted that initially, the Court was pleased to frame 7 issues, but the Court below has not dealt with the issues.
Instead, the Court below, thereafter, was pleased to formulate 4 questions in order to reach a logical conclusion.
• The question relating to jurisdiction of the Court depends upon the allegation made in the plaint. Further, plaintiffs have valued the subject of matter of the suit at Rs.
2400/- as being the annual rental value of the suit schedule property. But it is noticed that in the instant case, the respondents have not furnished any particulars about the subject matter of the dispute throughout the proceedings; that is the exact/correct measurement of the premises/property. Therefore, the court below has erred in decreeing the suit in the 15 absence important material evidence on record.
11. Reiterating the grounds urged in the appeal memorandum, Sri M.A.Himayun, learned counsel for the appellants contended that the trial Court failed to properly appreciate the material on record and decreed the suit, which has resulted in miscarriage of justice. He also argued that the termination notice was not properly served on the appellants and the said aspect of the matter is not properly appreciated by the learned trial Judge.
12. Per contra, Sri P.D.Surana, learned counsel for the contesting respondent Nos.1 to 3 contended that the trial Court has rightly appreciated the material evidence on record and has rightly decreed the suit and sought for dismissal of the appeal.
13. Respondent No.4, who is defendant No.2 in the trial Court, is represented by Sri K.Prasad Hegde, learned counsel contended that the Court may pass suitable orders 16 having regard to the written statement filed by respondent No.4 before the trial Court.
14. In view of the rival contentions, this Court perused the material on record.
15. The ownership of the plaintiffs is not in dispute. Admittedly, Sri V.V.Shaik Kutty became the tenant of the suit property under the plaintiffs on a monthly rent of Rs.200/-. The eviction petition filed by the plaintiffs was terminated on account of passing of the Karnataka Rent Act, 1999. Thereafter, the present suit for ejectment came to be filed by issuing appropriate notice under the provisions of the Transfer of Property Act, 1882.
16. The relationship is not in dispute, as the legal representatives of defendant No.1 did not choose to contest the suit by filing a written statement. Defendant No. 2, who is the subtenant of the suit property alone filed the written statement denying the relationship and the validity of the notice issued under the Transfer of Property Act, 1882. 17
17. The trial Court answered the issue No.4 in negative, the said issue where defendant No.2 was required to consider his case that he is in settled position of the suit premises and therefore, he must be protected with the possession of the suit property. All other issues were held in favour of the plaintiffs.
18. It is pertinent to note that defendant No.2 did not chose to file any appeal against the impugned judgment. On the contrary, even though he is represented as a party- respondent in this appeal, he did not choose to file cross- objections in this appeal. The legal representatives of defendant No.1 are the appellants in this case. They did not contest the suit in the trial Court. Therefore, this Court is of the considered opinion that they cannot have any hardship, whatsoever, especially when they have sublet the property in favour of respondent No.4. As such, the grounds urged in the appeal cannot be countenanced in law and therefore, the appeal does not require further consideration by admitting the appeal.
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19. However, Sri P.D.Surana, learned counsel for respondent Nos.1 to 3 submitted to the Court that the rents are not paid from the year 2007. Sri M.A.Himayun, learned counsel for the appellants however submits that the rents were paid in cash. In the trial Court, there is neither any discussion as to the mesne profits nor any order is passed. The plaintiffs have not filed any appeal against denying the mesne profits nor filed any cross-objection. Further, there is no acknowledgment for having paid the rents in cash. Accordingly, no case is made out for admitting the appeal for further consideration. Hence, pass the following:
ORDER i. Admission declined. The appeal is dismissed.
ii. Taking note of the fact that the appellants have already sublet the premises to respondent No.4, the question of payment of rent is also an issue.
iii. Time is granted up to 31.12.2023 to vacate the suit property by the appellants 19 and to hand over the same to the plaintiffs-respondent Nos.1 to 3.
iv. It is also made clear that the appellants are directed to pay or deposit the rent at the rate of Rs.200/- per month from 01.01.2015 till 31.12.2023 and arrears of rent to be paid within a period of three months from the date of this order and continue to pay the regular monthly rents.
v. In this regard, all the appellants shall file an undertaking affidavit within two weeks from today.
vi. In the event of non-filing of the undertaking affidavit in terms of the order of this Court, respondent Nos.1 to 3 are entitled to execute the decree of the trial Court foregoing time granted by this Court in this order.
Sd/-
JUDGE ssb