Kalmesh Deshpande vs Smt. Vijayakumari B. and Sri Krishnappa

A.S. Bopanna, J.—The petitioner herein is the first respondent in HRC No. 60/2005. The said petition was filed by the first respondent herein u/s 27(2)(r) read with Section 32(2)(a)(b) of the Karnataka Rent Act, 1999. The Court of Chief Judge of the Small Causes Court, Bangalore (hereinafter referred to as the ''Eviction Court'') allowed the petition and directed the petitioner herein to vacate and handover vacant possession of the suit schedule premises to the petitioner therein within one month from the date of the order. The petitioner herein claiming to be aggrieved by the order dated 7.7.2007 is before this Court assailing the same.

Heard Sri B.A. Raviraj, learned Counsel appearing for the petitioner and Sri Nandish Gowda, learned Counsel for the respondent

The case of the first respondent herein who was the petitioner before the Eviction Court is that she is the absolute owner of the petition schedule property and that the petitioner herein viz., the first respondent before the Eviction Court had requested her that, he wanted to put up a construction in the adjacent site belonging to him and during the said period, the 3uit schedule premises was required by him to stay. Accordingly, the first respondent herein is said to have agreed to give the same on rent of Rs. 1,000/- with an advance of Rs. 5,000/- for a period of six months commencing from 1.4.2004. It is further contended that the petitioner herein had paid rent upto September 2004 and thereafter though the first respondent herein had requested him to vacate and handover possession of the property, be has failed to do so and it is in that context the first respondent was before the Eviction Court

The petitioner herein who had appeared before the Eviction Court had disputed the very relationship of landlord and tenant between the petitioner and the first respondent. It was further contended that in the absence of such relationship, the petition itself was not maintainable. It was also contended that the petitioner herein in fact is the owner of the said premises and therefore the question of eviction would not arise.

In the light of the rival contentions, the Eviction Court framed two points for its consideration and the first point was comprehensive including the point relating to the relationship of landlord and tenant and also with regard to the bonafide requirement of the premises by the first respondent herein. The Eviction Court has thereafter come to the conclusion that the petitioner before it was the owner in respect of the petition schedule premises and the first respondent before it being the tenant is liable to be evicted and accordingly, the order was passed.

While assailing the said order, the learned Counsel for the petitioner would contend that the very order passed by the Eviction Court is one without jurisdiction inasmuch as the relationship of landlord and tenant has not been established by the petitioner before the Eviction Court In this regard, it is pointed out that the very manner of framing of point for consideration would indicate that the Eviction Court has misdirected itself since there is no clear finding with regard to the relationship. The rival contentions before the Eviction Court was with regard to the ownership of the property in question which was indicated in the schedule to the petition and even assuming for a moment that the petitioner herein had not established title to the property, that alone would not entitle the Eviction Court to conclude that he is a tenant under the petitioner before it and therefore the order passed by the Eviction Count is erroneous. It is further contended that apart from raising the contentions with regard to the maintainability of the petition, an application as provided u/s 43 of the Karnataka Rent Act and also an application under Order 7 Rule 11 of CPC had been filed before the Eviction Court. The Eviction Court without considering the said application had misdirected itself in answering the point raised against the petitioner therein and therefore the said order is not sustainable.

Learned Counsel for the first respondent would however contend that at the outset, the present petition itself has become infructuous inasmuch as the order which is impugned in this petition has already been executed and the possession of the premises has already been recovered by the first respondent herein. In this direction, the learned Counsel placed reliance on a judgment of the Division Bench of this Court in the case of Paramound Industries Vs. C.M. Malliga, . Apart from the contention with regard to the maintainability of the present petition, in view of the execution having already made, the learned Counsel would attempt to support and justify the order passed by the Eviction Court by contending that the Eviction Court has noticed the evidence tendered by the petitioner before it as PW. 1 who has stated with regard to the nature of the tenancy and the rent being paid and therefore, the Eviction Court was justified and as such in any event, the order does not call for interference.

In the light of the contentions urged, at the outset, it requires to be considered as to whether the present petition has become infructuous in view of the impugned order dated 7.7.2007 being already executed before the Execution Court and the possession being recovered. In this regard, it is to be noticed at the outset that the judgment relied on by the learned Counsel for the first respondent was rendered in a circumstance where the third parry was claiming right in respect of the property and in that circumstance, the Division Bench of this Court was considering as to whether it would be open to a person who is not made a party to an order of Eviction or a decree for possession to obstruct execution of such order of eviction or decree. In such circumstances, the nature of relief available to such third party was under consideration. In that circumstance, this Court was of the view that if obstruction is not offered in the Execution proceedings, the remedy would be available to such person to file such suit independent of the same.

In the instant case, the facts are entirely different inasmuch as the petitioner herein was the first respondent before the Eviction Court In the proceedings itself, he has objected to the Eviction petition on the ground of maintainability and the question with regard to the relationship of landlord and tenant was answered against the petitioner herein. Against the said order, the petitioner herein is before this Court assailing the said order and as such it is only on disposal of this petition, the said eviction order dated 7.7.2007 would attain finality. Merely because the said order has been executed during the pendency of this petition, this Court cannot be precluded from considering the correctness or otherwise of the order passed by the Eviction Court In this regard, it would be appropriate to notice the decision of this Court in the case of Smt. Sanjeevamma and Others Vs. G. Krishna and Others, wherein this Court has categorically stated in a set of similar situation that the appeal or revision would have to be considered and disposed of on merits so that the parties would avail such remedy available to them. Therefore, keeping these aspects in view, I am of the opinion that the present petition does not become infructuous and the matter is to be considered on its merits.

Having come to the said conclusion, the pertinent point to be considered is as to Whether in the present facts, the Eviction Court could have passed an Eviction order dated 7.7.2007 when there was a serious dispute with regard to the jural relationship between the parties?

In this regard, as contended by the teamed Counsel for the petitioner herein, a perusal of the order passed by the Eviction Court would indicate that point No. 1 has been comprehensively framed by the Eviction Court Further the discussion made by the Eviction Court on this aspect of the matter would indicate that the Eviction Court has placed heavy reliance on the oral evidence of PW.1 viz., the general power of attorney holder of the petitioner who has stated regarding the tenancy and on the documents at Ex.P2 to P5 being the sale deeds under which the petitioner before it had purchased the property and also the revenue documents. That apart, the Eviction Court has referred to the documents relied on by the defendants in R series viz., the sale deed, the ratification deed, the RTCs and the other documents such as allotment order and electricity bills. While noticing the said two sets of documents, the Eviction Court has come to the conclusion that the documents relied on by the first respondent before it does not establish that the first respondent is the owner of the petition schedule property more particularly in view of the rectification deed coming into existence during the pendency of the proceedings. Having said so, the Eviction Court has proceeded to notice the sale deed under which the petitioner therein had purchased the property and since the same was the document which indicated right to the petition schedule property, the Eviction Court has come to the conclusion that the petitioner before it is the owner of the property in question. In the present facts, the said discussion made by the Eviction Court would indicate that the Eviction Court was proceeding as if it was deciding a title suit between the parties. In the instant case, even if the petitioner before the Eviction Court had established that she was the owner of the petition schedule property, to maintain a petition under the provisions of the Karnataka Rent Act, it was incumbent on the petitioner before the Eviction Court to prove that the first respondent was her tenant In this regard, a perusal of the judgment would indicate that apart from the evidence tendered by way of affidavit filed in lieu of oral evidence before the Eviction Court wherein the petitioner therein had contended that the first respondent before the Eviction Court was the tenant, there is no material whatsoever to indicate that the first respondent was the tenant When serious question with regard to the jural relationship touching upon the very jurisdiction of the Court was raised and a comprehensive finding on that aspect of the matter was required, the Eviction Court in my view has in fact missed the point It would get jurisdiction to entertain the petition only if the jural relationship is established. In the instant case, the same has not been done.

That apart, as noticed from the records, the applications u/s 43 of the Rent Act and under Order 7 Rule 11 of CPC filed by the first respondent before the Eviction Court are still pending on record and the same have not been disposed of. Therefore, in such a circumstance, where the eviction Court has not properly decided the question with regard to the jural relationship, more particularly, in view of the contention raised with regard to the jurisdiction, the order dated 7.7.2007 which is impugned in the present petition cannot be sustained.

Accordingly, the order dated 7.7.2007 is set aside. The matter is remitted to the Court of Chief Judge, Small Causes Court at Bangalore to restore HRC No. 60/05 on file and reconsider the question with regard to the jural relationship and prior to the same, it would be incumbent on the Eviction Court to decide the pending applications which have been referred to above and thereafter come to its own conclusion in the matter. All contentions of the parties are left open to be urged before the Eviction Court.

Since the parties are represented by their respective learned Counsel, they shall appear before the Eviction Court on 15.6.2009 as the first date of appearance and thereafter the Eviction Court shall regulate its proceedings and dispose of the matter as expeditiously as possible. The records received from the Eviction Court shall be remitted forthwith.

In terms of the above, the present petition stands disposed of. No order as to costs.