Shailaja vs M.C. Shivanna

B.S. Patil, J.—This revision petition is filed by defendant/tenant under Section 18 of the Karnataka Small Causes Courts Act challenging the legality and correctness of the judgment dated 15.09.2014 passed in S.C. No. 3179/2011 by the Small Causes Court, Bengaluru, thereby decreeing the suit filed by the plaintiff/landlord/respondent herein and directing the defendant to vacate and handover vacant possession of suit premises to the plaintiff within three months from the date of the judgment.

S.C. No. 3179/2011 was filed contending inter alia that defendant was the tenant of the premises bearing No. 3 (Old No. 3A) situated in the ground floor at Mariswamappa Lane, S.J.P. Road Cross, Bengaluru, measuring 38.5'' X 8.3''. According to plaintiff, he being owner of the property had leased the same in favour of the defendant on a monthly rental of Rs. 2,170/-. Plaintiff issued legal notice calling upon the defendant to vacate the premises. When defendant did not vacate, plaintiff terminated the tenancy followed by institution of the suit.

Defendant appeared and resisted the suit. She admitted relationship of landlord and tenant, but denied other plaint averments including the measurement of the suit premises. According to her, total measurement of the suit premises was less than 14 sq.mtrs., therefore, provisions of Karnataka Rent Act were applicable to the suit premises and suit filed for ejectment before the Small Causes Court was not maintainable. Both parties let in their evidence. For the plaintiff, his Power of Attorney was examined as P.W. 1. Exs. P1 to P9 were produced and marked. Defendant examined her Power of Attorney as D.W. 1 and produced Ex. D1 - authorization letter.

The Court below, on appreciation of evidence on record, has found that jural relationship of landlord and tenant was not disputed and stood established. As regards, measurement of the suit premises, Court below has placed reliance on Ex. P9 - reply given by the defendant to the legal notice issued by plaintiff, wherein she had stated that measurement of the premises was 21'' X 7''. The Court below has found that even if measurement as stated in the plaint was not taken and the measurement of the property as stated by the defendant in the reply to the legal notice is taken, the same would come to 147 sq.ft which was more than 14 sq. mtr. and therefore, suit was maintainable.

Insofar as contention urged by the defendant that plaintiff having not examined himself, evidence adduced by his Power of Attorney not based on his personal knowledge cannot be relied upon, indeed plaintiff sought for permission of the Court to adduce evidence through Power of Attorney which was resisted by the defendant, but the Court for reasons recorded passed an order permitting the plaintiff to adduce evidence through his Power of Attorney. The Court below has found that P.W. 1 has not stated anything that was not within his knowledge as a Power of Attorney holder and therefore, question of discarding his evidence did not arise and accordingly, contention of the defendant in this regard has been considered and rejected.

Learned counsel for the revision petitioner/defendant submits that even though in the reply given by the defendant to the legal notice as per Ex. P9, measurement of suit property had been mentioned by the defendant as 21'' X 7'', having regard to the stand taken by defendant in the written statement contending that actual measurement of the shop was 17.3'' X 7.3'', burden was on plaintiff to establish that the shop premises measured more than 14 sq. mtrs. In this regard, he takes me through the written statement and evidence of P.W. 1 and D.W. 1.

His next contention is that P.W. 1 has stated in his evidence that he had not measured the shop premises and therefore, he was not in a position to depose regarding actual measurement, hence, as P.W. 1 did not have personal knowledge about the measurement of shop premises and had not measured the shop, his evidence in that regard could not have been taken into consideration and therefore, the Court below was in error in decreeing the suit. He has placed reliance on the judgment of this Court in the case of Abdul Basheer and Another v. The State of Karnataka, rep. by its Chief Secretary & Others - ILR 2013 KAR 4435 . Reliance is also placed by him on the decision of the Allahabad High Court in the case of Smt. Indra Vs. Raj Bali Tiwari and others, to contend that jurisdiction of the Court regarding maintainability of a suit is determined on the allegations made in the plaint and the allegations or assertions made in the written statement cannot oust the jurisdiction or affect the maintainability of the suit.

Insofar as application filed by the plaintiff regarding appointment of Court Commissioner, counsel for the defendant/revision petitioner submits that such an application cannot be entertained at this stage. In this regard, he has placed reliance on the judgment in the case of Harilal v. Ismailsab - 1979(1) KAR.L.J. 277.

Learned counsel for the plaintiff/respondent has strongly supported the order under challenge and has contended that defendant has come up with false and baseless plea regarding measurement of the property having herself asserted in the reply to the legal notice that measurement of the property was 21'' X 7''. He also asserts that indeed measurement of the property is as shown in the plaint which will be far more than 14 sq. mtr. and hence, the suit filed was very much maintainable.

Upon hearing learned counsel for both parties and on careful perusal of entire materials on record, I find that in Ex. P9 - reply to the legal notice, defendant has specifically contended that total measurement of the premises in her occupation was 21'' X 7''. This stand is taken by rebutting the assertion made by the plaintiff in the legal notice that measurement of the property was 38.5'' X 8.3''. The Court below has proceeded on the basis that even if, as stated by the defendant herself in the reply to the notice, measurement of the property is taken as 21'' X 7'', the same would be 147 sq. ft. which would be more than 14 sq. mtr. and therefore, defence taken by the defendant regarding maintainability of the suit was baseless and unfounded. This reasoning of the Court below cannot be found fault with. The stand taken by the defendant regarding measurement when the contest between the parties started by issuing legal notice by the plaintiff cannot be brushed aside. Even if defendant has later on become wiser and has taken up a different contention in the written statement that measurement of the property was 17.3'' X 7.3'', that cannot have the effect of relieving her of the burden of proving actual measurement of the property. Had she not stated in the reply to the legal notice the actual measurement of the shop, then there would have been justification to call upon the plaintiff to lead evidence regarding measurement.

Secondly, the conduct of the defendant even before this Court in resisting the application filed by the plaintiff seeking appointment of Court Commissioner to measure the premises discloses that she does not want the truth to be ascertained. In the normal circumstances, if the measurement was less than 14 sq. mtr., defendant/revision petitioner would have readily agreed for measurement of the property by a Court Commissioner to be appointed by this Court. Be that as it may, plaintiff has shown by making specific averments in the plaint and also on the basis of the very reply to the legal notice given by the defendant vide Ex. P9 that the property measures more than 14 sq. mtr.

Insofar as evidence of P.W. 1, who is the Power of Attorney holder of the plaintiff, he has not stated anything which was within the special knowledge of the plaintiff and not within his personal knowledge. It has to be noticed here that Power of Attorney holder is none other than the son of the plaintiff. Reliance placed by the revision petitioner on the judgment, in the case of ABDUL BASHEER AND ANOTHER v. THE STATE OF KARNATAKA, REP. BY ITS CHIEF SECRETARY & OTHERS - ILR 2013 KAR 4435, wherein this Court has laid down that in case where serious allegation of fraud and forgery with reference to several documents and transactions had been made, General Power of Attorney holder would not be a right person to speak for the plaintiff with regard to such allegations and it was imperative for the plaintiff to tender evidence in support of his case as regards such documents and transactions that were within his personal knowledge, is not apposite to the facts of the present case.

Hence, I do not find any illegality in the order under challenge. Revision Petition being devoid of merit is dismissed. Three months time from the date of this order is granted to the revision petitioner to vacate and handover vacant possession of the shop premises to the plaintiff/respondent herein.