IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G.NIJAGANNAVAR CIVIL REVISION PETITION No.604/2018 (SC) BETWEEN:
SMT. DIMPLE AHUJA, W/O SRI.ASHOK AHUJA, AGED ABOUT 60 YEARS, NO.10, 2ND MAIN, KEMPANNA LAYOUT, SESHADRIPURAM, BENGALURU – 560 020.
REPRESENTED BY GPA HOLDER SRI.ASHOK AHUJA. ... PETITIONER (BY SRI: SUBRAHMANYA KAUSHIK R.S., ADVOCATE) AND:
KUM.POORNIMA M., D/O M.MALLESH, AGED ABOUT 42 YEARS, NO.5, POORNAPRASAD ROAD, BENGALURU – 560 001.
ALSO AT NO.397, GIRIDHANVI, 20TH CROSS, RAILWAY LAYOUT, VIJAYANAGARA 2ND STAGE, MYSURU – 570 016. ... RESPONDENT (RESPONDENT – SERVICE OF NOTICE HELD SUFFICIENT AS PER THE ORDER DATED 09.04.2019) ***** THIS PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURT ACT, 1964 AGAINST THE JUDGMENT AND DECREE DATED 29.09.2018 PASSED IN SC NO.765/2018 ON THE FILE OF THE II ADDL. JUDGE AND XXVIII, ACMM COURT OF SMALL CAUSES, BENGALURU DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS PETITION COMING ON FOR HEARING THIS DAY, COURT MADE THE FOLLOWING:
O R D E R This Revision Petition is filed by the petitioner – landlord for setting aside the judgment and decree passed in S.C No.765/2018 by the Court of Small Causes, (SCCH- 13) at Bengaluru and to direct the respondent to quit and deliver vacant possession of the schedule premises and to conduct inquiry under Order XX Rule 12 CPC regarding damages payable by the respondent/tenant till delivery of vacant possession of the schedule premises.
2. The facts leading to this revision petition are that:-
The petitioner being the landlord had filed a petition against the respondent –tenant seeking eviction and for recovery of arrears of rent and maintenance charges. Despite service of notice, the respondent/tenant did not appear before the Court. The petitioner –landlord led the evidence and produced documentary evidence.
On appreciation of oral and documentary evidence, the Small Cause Court decreed the plaintiff’s suit and held that the defendant is liable to pay a sum of Rs.1,10,000/- with interest at the rate of 6% p.a. to the plaintiff from the date of suit till realization. Aggrieved by the impugned judgment and decree for not granting relief of eviction claimed, the petitioner –landlord has preferred this petition.
The grounds urged in the Revision Petition are that even though the suit was filed for eviction of the tenant and for recovery of arrears of rent, the trial court has decreed the suit for recovery of a sum of Rs.1,10,000/- with interest only. The trial court has failed to consider the prayer for ejectment sought for by the petitioner. The trial judge has referred to the notice of termination issued by the petitioner, but has failed to grant the reliefs for eviction. Inspite of evidence being placed on record, the trial court has failed to pass the judgment and decree for eviction of the tenant which has resulted in miscarriage of justice.
The learned counsel for the petitioner would strenuously contend that the trial court has passed the judgment and decree only for recovery of arrears of rent instead of passing an order for eviction. There are specific pleadings for the ejectment of the tenant from the petition premises but the trial court has failed to appreciate the evidence placed on record. Thus, there are valid grounds for interference and to grant the reliefs the claimed by the revision petitioner.
In view of the submission of the learned counsel for the petitioner, the only question that requires to be answered whether the trial court has committed an error in passing the judgment and decree in disallowing the claim of the petitioner-landlord for rejectment of the tenant from the schedule premises.
On perusal of the pleadings, it is clear that the petitioner –landlord had filed a suit for rejectment directing the defendant to quit and deliver vacant possession of the schedule premises and for recovery of a sum of Rs.72,000/- towards arrears of rent of the petition schedule premises, Rs.28,000/- towards maintenance charges and Rs.10,000/- towards damages from the date of receipt of notice till the date of the suit. There are specific pleadings that the respondent –landlord is a tenant and she had committed default in payment of rents and has also failed to vacate the premises despite legal notice issued for termination of the tenancy. Thereafter, the petitioner –landlord has led the oral evidence and has got executed documents which are at Exs P1 to P8. The pleadings, oral and documentary evidence clearly goes to show that the petitioner is the landlord and the respondent is a tenant in occupation of the schedule premises, but unfortunately the trial court has lost sight of the pleadings and oral and documentary evidence placed on record.
The preamble of impugned judgment and order discloses the following information:-
Date of Institution of the suit, Nature of the suit (suit on pronote ) Suit for declaration and possession suit for injunction etc., : 2.6.2018 : Recovery of money The trial court has framed the following points for consideration:-
1. Whether the defendant is liable to pay a sum of Rs.1.10.000/- ?
2. What order or decree ?
Despite the specific pleadings in the plaint and the oral evidence led by the plaintiff, the trial court has come to the conclusion that the suit is one of recovery for arrears of rent and not for eviction. It is pertinent to note that the trial court has even referred to the legal notice and other documentary evidence. While discussing the evidence on point No.1, it has failed to take note of the reliefs sought for by the plaintiff. Thus it is evident that the trial court has committed an error in not granting the reliefs for eviction despite ample evidence being placed on record. Under these circumstances, this matter requires remanded to the trial court for consideration of the plaintiffs claim regarding eviction of the respondent – tenant from the premises.
For the foregoing reasons, the petition is allowed and the matter is remitted back to the Court of Small Causes (SCCH -13) at Bengaluru with a direction to consider the prayer of the plaintiff for delivery of vacant possession of the schedule premises. Once again notice shall be issued to the tenant – respondent and dispose of the case expeditiously.
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