Karnataka High Court
A.M. Mallegowda S/O. Late Muthige Gowda vs Kariyappa Gowda S/O. Devegowda on 20 April, 2006
Equivalent citations: 2006(4)KARLJ623, 2006 (4) AIR KAR R 345
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
Page 0436
1. This is a writ petition filed by the petitioner under Articles 226 & 227 of the Constitution of India praying to issue a writ of certiorari to quash the order dated 28.2.2004 passed in R.R. No. 72/1999 on the file of the II Addl, District Judge, Mysore which order has arisen out of the order dated 27.1.1999 passed in H.R.C. No. 170/1993 on the file of the IV Addl. I Civil Judge (Jr. Dn), Mysore as per Annexure-B.
2. The case of the petitioner in brief is that the respondent herein is the owner of the premises namely, Door No. 120, 6th Min, Jayalakshmipuram, Mysore. The writ petitioner herein is a tenant under the respondent. Therefore, the respondent-owner has filed an eviction petition under Section 21(1)(h) and (p) of the Karnataka Rent Act, 1999 on the ground of personal use and occupation for himself and his son. The said premises was let out on a monthly rent of Rs. 800/- commencing from the first of each calendar month. It is the case of respondent-landlord that the writ petitioner has filed HRC. No. 23/1982 against his tenant Sri T. Sathyanarayana for eviction in respect of the premises bearing No. 32, Nazarbad, Mysore, which came to be allowed evicting his tenant Sri Sathyanarayana. The said Sathyanarayana has preferred R.R.P. No. 64/1998 before the II Addl. District Judge, Mysore, and the said premises was vacant as on the data of filing of HRC. No. 170/1993 by the respondent. The petitioner herein who happens to be a tenant has taken a contention that he had entered into an agreement of sale with the respondent on 23.3.1979 for a total consideration of Rs. 1,15,000/- out of which he had paid Rs. 50,000/- as advance. At the time of transaction, the petition schedule premises was the subject-matter of mortgage in favour of M/s. vani vilas Mohalla House Building society to the tune of Rs. 24,705-10ps and the landlord undertook that he will discharge the said loan and he agreed to hand over all the original documents in his favour. So, on the basis of the oral and documentary evidence placed on record, the 4th Addl. I Civil Judge (Jr. Dn), Mysore, found that the eviction petition filed by the landlord-respondent herein under Section 21(1)(h) and (p) was allowed and the petitioner-tenant namely the present writ petitioner was directed to deliver the vacant possession of the premises No. 120 to the respondent within three months, which order has been challenged by the very petitioner before the District Judge and the District Judge held that the revision petition is not maintainable and Rent Revision Petition was dismissed by the District Judge. AS against the said order of dismissal, the petitioner has come up with this writ petition.
Page 0437
3. Heard the arguments of the learned Counsel Sri O. Shivaram Bhat for the petitioner and Sri S.N. Bhat for the respondent. During the course of arguments, the respondent herein produced the copy of the plaint in O.S. No. 827/2005 which was pending on the file of the 4th Addl. civil Judge, Mysore and the written statement filed by the defendant-writ petitioner and also the certified copy of the judgment passed on 31.3.2006. During the course of arguments, learned Counsel for the petitioner contended that there is no relationship of landlord and tenant. Both the trial Court as well as the learned District Judge have not determined the rent payable to the respondent-landlord, if any. Therefore, the learned District judge who has dismissed the revision petition as not maintainable is not correct and, in fact, the trial Court has not at all determined the rent payable by the present petitioner. It is further contended that under Section 43 of the Karnataka Rent Act the rent is to be determined by the Court. Therefore, the respondent herein took up a contention that the trial Court ought to have determined the rent payable including the arrears of rent. The writ petitioner was put in possession of the petition schedule premises only on the basis of the agreement of sale. It is submitted that the first revisional Court dismissed the revision petition holding that the revision petition is not maintainable but not on merits and also without considering the orders of the trial court. The order of the trial court for eviction was passed only under Section 21(1)(h)(p) and no order has been passed under Section 21(1)(a) of the K.R.C. Act. Therefore, the order of dismissal passed by the District Judge on technical grounds but not on merits. It is further submitted that the District Judge in paragraph 8 of the judgment has clearly mentioned that no application has been filed under Section 21(1)(a) of the K.R.C. Act and rent has not been determined, and therefore there cannot be any order of eviction unless rent is determined. Therefore, the impugned order passed by the learned District Judge when the New Act came into force is incorrect.
4. In support of the aforesaid contentions, the learned Counsel for the petitioner has relied on the following decisions:
(a) 1974 (1) Kar.L.J., page 29 (Syed Akbar v. Rahimunnissa Begum Jan) wherein it has been held that the landlord is expected to prove the rent payable to him.
(b) I.L.R. 2005 Karnataka page 5182 (M.T. Narayanagowda v. Machamma) Wherein it has been held as follows:
What is material in a proceeding under the provisions of the Karnataka Rent Control Act is the existence of a relationship of Landlord and Tenant-when the relationship was specifically disputed, it was incumbent upon the learned Trial Judge to have given a categorical finding on such an issue-Though issue or point is not framed, the Trial Court should have indicated or answered this question -The order passed by the Trial Court is quashed as one lacking jurisdiction as there was no relationship of landlord and tenant.
Page 0438
5. On the other hand, learned Counsel for the respondent submitted that both the Trial Court as well as the learned District Judge are right in passing the order of eviction and dismissing the revision petition. It is the specific case of the respondent-landlord that the petitioner was a tenant on an initial rent of Rs. 500/- per month and the tenancy commenced from the 1st of each calendar month i.e. from 1.3.1989 and the rent has been enhanced from Rs. 500/- to Rs. 800/- per month. Since the petitioner has not paid the arrears of rent, the respondent-landlord filed O.S. No. 827/2005 and the present writ petitioner has been arrayed as a defendant in the said suit and he has denied the averments in the plaint contending that there is no jural relationship of landlord and tenant and he is not liable to pay the alleged arrears of rent of Rs. 28,800/- and he started residing in the said premises on the basis of an agreement of sale entered into between him and the respondent and the same has been totally denied. Since the very landlord has filed a suit for recovery of the arrears of rent, both the Courts-below have rightly come to the conclusion that even though the petitioner having his own house i.e. door No. 31 which was vacated by the tenant sathyanarayana on the basis of the order of eviction passed in HRC. No. 23/82. Therefore, there is a jural relationship of landlord and tenant and the petitioner is having sufficient property including the aforesaid house and the petitioner himself examined the respondent-landlord in HRC. No. 23/1982 filed by him against Sri Sathyanarayana wherein it was elicited from the respondent Karigowda that the petitioner is a tenant in door No. 126. Previously the rent was Rs. 500/- per month and now the rent is Rs. 800/-per month. Therefore, when the petitioner himself got examined the respondent-landlord in that H.R.C. 23/1982 filed by him, the relationship of landlord and tenant has been admitted. Therefore, the Courts-below have rightly held that there is jural relationship of landlord and tenant and that the writ petition is not at all maintainable and liable to be dismissed.
6. Having heard the arguments, now it is to be seen whether the finding recorded by both the Courts-below is illegal and incorrect? On a perusal of the impugned order under challenge, it is clear that the petitioner herein who has started living in the house of the respondent initially on a monthly rent of Rs. 500/-, subsequently rent was enhanced to Rs. 800/- per month. When the petitioner himself got examined the respondent in HRC. No. 23/1982 filed by him against sathyanarayana and he got elicited from the mouth of the respondent about his occupation of premises on a monthly rent of Rs. 500/-subsequently enhanced to Rs. 800/-, now the petitioner has contended before the Trial Court in HRC. No. 170/1993 that he has entered into an agreement of sale with the respondent and by paying earnest money of Rs. 1,50,000/- out of which he has paid Rs. 50,000/- towards advance, therefore, there is no relationship of landlord and tenant between him and the respondent appears to be totally incorrect. The Trial Court by relying on the evidence of the respondent in HRC. No. 23/1982 as well as the evidence recorded by the Trial Court in HRC. No. 170/1993 rightly recorded Page 0439 the finding that there is a jural relationship between the respondent and the present petitioner as landlord and tenant and the Trial Court while disposing of HRC. No. 170/1993 has also held that the petitioner though set up a defence that he was not a tenant, he was residing in the said house on the basis of agreement of sale entered into but now the petitioner has not filed a suit for specific performance immediately after alleged agreement of sale entered into with the respondent and admittedly he has not paid arrears of rent and the respondent herein being the landlord had filed eviction petition on the ground of personal use and occupation and this fact has also been proved before the Trial court. More over, the petitioner herein being the tenant before the Trial Court has not produced any evidence to show that the petition schedule premises namely premises No. 120 is not suitable for the landlord, for residential purposes. This fact has also been considered. When once the material on record clearly discloses that there is a jural relationship which has been admitted by examining the petitioner in HRC. No. 23/1982 filed against sathyanarayana, the contention now taken by the petitioner that there is no relationship between the petitioner and respondent is totally incorrect and does not hold water. Regarding jural relationship of landlord and tenant has been proved by the respondent. With regard to determination of rent mare denial with regard to monthly rent does not support the case of the petitioner. Learned District Judge has clearly held that even after filing the H.R.C. petition, the petitioner failed to deposit the rent as agreed by him. So also, he has not filed any suit for specific performance. In view of the facts and circumstances of the case, the writ petition filed by the petitioner contending that the Trial court has not determined the rent payable and the jural relationship does not hold water. More over, the respondent filed a suit O.S. No. 827/2005 for recovery of arrears of rent against the tenant which came to be decreed itself proves that the petitioner has not deposited the arrears of rent and the copy of the agreement of sale has not been produced either before the trial Court or before the District judge. Therefore, the writ petition fails.
7. In view of the facts and circumstances of the case when both the courts have recorded a concurrent finding that there is a jural relationship between the petitioner and the respondent and the respondent has already approached the Civil Court and filed a suit for recovery of arrears of rent and the petitioner herein was a defendant in the civil court and who took same contentions what he has taken before the Trial Court at Mysore. Therefore, it is not proper on the part of this Court to interfere with the concurrent finding recorded by the Trial court as there is no illegality or incorrectness and non-appreciation of evidence. Hence, the writ petition is liable to be dismissed.
Accordingly, the writ petition is dismissed. However, the petitioner is directed to deliver the vacant possession of the petition schedule premises within three months from the date of this order.