Khaleel vs R. Nigar Sultana

B.S. Patil, J.—This revision petition is filed under Section 18 of the Karnataka Small Cause Courts Act, 1964, challenging the judgment and decree passed by the Court of Small Causes, Bengaluru, thereby directing the revision petitioner - tenant to vacate and deliver vacant possession of the suit schedule premises to the plaintiff and to pay arrears of rent of Rs. 88,000/- to the plaintiff, within 60 days from the date of the order.

Jural relationship of landlord and tenant between the plaintiff and defendant is not in dispute. Parties are at variance with regard to the rate of rent payable. As per the plaintiff, the rate of rent payable was Rs. 8,000/- per month, whereas the assertion of the defendant is that the rent payable was only Rs. 800/- per month. Plaintiff has contended that on 08.06.2008, there was an agreement entered into between the plaintiff and the defendant, as per which the defendant occupied the premises as a tenant by paying advance amount of Rs. 80,000/- agreeing to pay monthly rent of Rs. 8,000/-. The premises as described in the petition schedule is a Flat bearing No. 402, 4th Floor, No. 63, Khazi Street, Basavanagudi, Bengaluru, consisting of two bedrooms, a hall, bathroom, etc., along with parking facility and other amenities.

The case of the plaintiff is that defendant was irregular in paying rents. He was in arrears of rent with effect from September 2010 upto the date of filing of the petition, which totally amounted to Rs. 88,000/-. Legal notice demanding arrears of rent and to quit and deliver vacant possession of the premises was issued by the plaintiff. Defendant replied refuting the assertions made in the legal notice and stated that monthly rent payable was only Rs. 800/- and not Rs. 8,000/- and that arrears of rent payable was only Rs. 56,000/- and not Rs. 88,000/-. In the written statement also, the same stand was taken by the defendant.

In support of her case, plaintiff examined herself as PW-1 and reiterated the plaint averments. She has produced and relied upon Exs. P-1 to P-8. Among the documents produced, Ex. P-5 is the complaint given by the defendant to the Sub-Inspector of Basavanagudi Police Station on 12.05.2009. In the said complaint, defendant has while alleging and attributing certain offences against the plaintiff, has stated that monthly rent payable in respect of the premises was Rs. 8,000/-. Plaintiff has also produced Ex. P-8 - rent receipt book and Exs. P-8(a) to 8(j) - carbon copies of the rent receipts given to the defendant.

Based on the aforesaid documents, the court below has come to the conclusion that monthly rent agreed between the parties was Rs. 8,000/- and not Rs. 800/-. In so far as termination of tenancy is concerned, the issue of legal notice terminating the tenancy and its receipt by the defendant are not in dispute. In fact, the legal notice issued and the reply are produced and marked in evidence. The court below has, therefore, recorded a finding that there was valid termination of tenancy in terms of Section 106 of the Transfer of Property Act, and that the rent agreed by and between parties was Rs. 8,000/- per month. It has also held that from September 2011 onwards, defendant did not pay any rent, and therefore, he was in arrears of rent in a sum of Rs. 88,000/-. Accordingly, the decree has been passed.

Counsel appearing for the revision petitioner contends that the complaint - Ex. P-5 was not given by the tenant and it does not bear his signature. Therefore, the court below was not right in placing reliance on the said document to hold that admittedly monthly rent was Rs. 8,000/-. He further points out that Exs. P-8(a) to P-8(j) - carbon copies of the rent receipts do not bear the signature of the defendant, and therefore, they cannot be made basis to hold that monthly rent was Rs. 8,000/-. It is his submission that burden was on the plaintiff to establish the rate of rent and due termination of tenancy. As he failed to discharge this burden, the suit was liable to be dismissed. In this regard, he has placed reliance on the decision of this Court in C.R.P. No. 164/1994 decided on 10.06.1998 in the case of M/s. Savitha Theatre, Bangalore & another v. Union of India.

Counsel appearing for the respondent supports the findings recorded by the court below.

Upon hearing the learned Counsel for both parties and on perusal of the pleadings, materials on record and the impugned judgment, I find that Ex. P-5 - complaint has been lodged by the defendant against the plaintiff. The complaint was registered with Basavanagudi police. The document produced before the Court being a authenticated document obtained from the police, corroborates Ex. P-8 - rent receipt book and Exs. P-8(a) to P-8(j) - carbon copies of rent receipts given by the plaintiff. In Ex. P-5 - defendant has admitted that he was paying Rs. 8,000/- rent per month. Plaintiff has discharged his burden of proving the rate of rent by producing the rent receipt book and the copies of rent receipts given to the defendant. The copies of the rent receipts will not contain the signature of the defendant, because he is only receiving the receipts for having paid the rents. The landlord has retained the carbon copy of the receipts issued to the defendant and has placed them before the court in proof of his assertion. Therefore, the contention urged by the Counsel for the defendant that rate of rent was only Rs. 800/- and not Rs. 8,000/- has not been established. Defendant has not produced any material to prove that rate of rent was Rs. 800/-. He could have produced the receipts which he was in possession, to show that rent was only Rs. 800/-. No effort is made by him in this regard to discharge his burden.

As rightly held by the court below, defendant did not pay any rent from the month of September 2011. Therefore, the direction issued to pay arrears of rent of Rs. 88,000/- cannot be found fault with.

In so far as termination of tenancy is concerned, as already held above, valid notice has been issued in terms of Section 106 of the Transfer of Property Act. Therefore, the tenancy between the parties has been terminated and the defendant was liable to be evicted from the premises. Hence, I do not find any illegality, irregularity or failure of justice in the findings recorded by the court below. The revision petition is, therefore, dismissed.

However, having regard to the facts and circumstances of the case, three months time from today is granted to the defendant to vacate and hand over vacant possession of the premises, on condition that he shall not induct any third party into the premises and continues to pay charges for the occupation of the premises at the rate of Rs. 8,000/- per month, without committing any default. Defendant is held entitled for refund of the advance amount of Rs. 80,000/- upon discharge of all the arrears to the plaintiff. The amount in deposit in a sum of Rs. 88,000/- shall be paid to the landlord-respondent herein.