IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2374/2018 (POS) BETWEEN:
M/S PETRO ENGINEERING & SPECIALITIES PVT. LTD., A COMPANY HAVING ITS REGISTERED OFFICE AT NARAYANA SMRITI NO.446, B1/A, SHANIWARPET PUNE – 411 030 REPRESENTED BY ITS MANAGING DIRECTOR RAJKUMAR S/O A.L.SUBRAMANI AGED ABOUT 58 YEARS R/AT NO.354/B, 4TH MAIN GOKULAM II STAGE MYSORE – 570 001 …APPELLANT (BY SRI VASANTHAPPA, ADV.) AND:
SRI P.DALJITRAM CHOWDARY S/O SRI P.PRABHURAM AGED ABOUT 34 YEARS R/AT NO.2645/5, II MAIN TEMPLE ROAD VANIVILASPURAM MOHALLA MYSORE – 570 001 …RESPONDENT (BY SRI SRINIVAS RAGHAVAN, SENIOR COUNSEL FOR SRI P.CHINNAPPA, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 23.10.2018 PASSED IN R.A.NO.214/2013 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.02.2013 PASSED IN O.S.NO.1207/2007 ON THE FILE OF THE COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the defendant arises out of judgment and decree dated 23.10.2018 passed by the II Additional District Judge, Mysore, in R.A.No.214/2013. By the impugned judgment and decree, the first appellate court has confirmed the judgment and decree dated 1.2.2013 passed by the Principal Judge, Small Causes Court and Senior civil Judge, Mysore in O.S.No.1207/2007 for ejectment of the present appellant.
2. The subject matter of the suit was the property bearing industrial sheds No.C-125 and 126 situated at Yadavagiri Industrial Estate, Mysore.
3. Respondent was the owner of the said property. Respondent and appellant/M/s.Petro Engineering and Specialities Products (Pvt) Ltd. entered into lease agreement Ex.P11 in respect of the said property on 6.8.1998 on a monthly rent of `15,000/-.
4. The lease agreement purported to be for a term of five years commencing from 1.10.1998. On 1.6.1999, the appellant entered into an agreement of sale with the respondent as per Ex.P1 agreeing to purchase the property for a consideration of `32,50,000/-.
5. Ex.P1 was a document admitted by both the parties. Covenants-3 and 4 of the said agreement were to the effect that vendor and purchasers have to complete the sale transaction on or before 30.4.2001. As per the agreement, the purchaser was continued as tenant under the vendor.
6. The appellant filed O.S.No.226/2007 against the respondent for specific performance of Ex.P1 the agreement of sale. Whereas, the respondent serving the quit notice Ex.D11 dated 3.5.2007 on the appellant on 5.5.2007, filed O.S.No.1207/2007 against the appellant for ejectment and mesne profits.
7. After pleadings were completed, the trial court consolidated both the suits and recorded common evidence.
8. The defence of the appellant was that on entering into agreement of sale, its character of lessee was transformed into that of prospective purchaser and therefore, there was no jural relationship to maintain suit for ejectment. It was further contended that its possession is protected under Section 53A of the Transfer of Property Act.
9. On recording the evidence, the trial court heard both parties. By the common judgment dated 1.2.2013, the trial court dismissed the suit of the appellant for specific performance and decreed the suit of the respondent for ejectment and mesne profits holding that the appellant failed to perform its part of contract, therefore, it was not entitled for specific performance. It was further held that having regard to the covenant Nos.3 and 4 of the agreement of sale, the appellant continued to be the lessee and its character did not merge into that of the prospective purchaser. The trial court held that the lease termination notice issued by the landlord was valid.
10. The appellant challenged the judgment and decree in O.S.No.1207/2007 before the II Addl.District Court, Mysuru, in R.A.No.214/2013. The first appellate court by the impugned judgment and decree dismissed the appeal and confirmed the judgment and decree of the trial court concurring with the reasonings and findings of the trial court regarding jural relationship and validity of termination notice.
11. Sri.Vasanthappa, learned Counsel for the appellant submits that appellant A.L.Subramani was not the Managing Director of the appellant Company and therefore, there was no jural relationship and the quit notice issued in his name was invalid. He further submits that having regard to that, the decree of ejectment passed by both the courts below are unsustainable and these aspects are the substantial questions of law in the case.
12. Per contra, Sri.Srinivas Raghavan, learned Senior Counsel appearing for Sri.Chinnappa the counsel on record for the respondent submits that nowhere before the courts below, the appellant raised the question of competence of A.L.Subramani to represent the appellant Company or the validity of the quit notice on such ground. Referring to the evidence of PW-1/Subramani, he submits that the question of his competence to represent the Corporation or the jural relationship raised is totally a new plea raised for the first time in the second appeal and there are no grounds to admit the appeal.
13. This being the second appeal under Section 100 CPC, to admit the appeal for hearing, the appellant has to make out a substantial question of law. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 has held that on the questions of facts, the first appellate court is the last court unless it is shown that the judgment of the courts below suffer perversity. It was further held that, all questions of laws are not the substantial questions of law. It was held that to be a question of law ‘involving in the case’, there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It was held that an entirely new point raised for the first time before the High Court is not a substantial question of law involved in the case unless it goes to the root of the matter.
14. The copies of the judgments of the courts below and the copies of the pleadings and the records made available by the respective counsel for perusal of this court show that the agreement of lease was in favour of the appellant Company, which was represented by its Directors. In the written statement, the defendant did not contend that Subramani was not the Director of the appellant Company at the time of termination of tenancy or at the time of filing of the suit. In fact, he himself filed a suit for specific performance.
15. The only contention raised in the written statement regarding the jural relationship was that in view of the agreement of sale, the character of the appellant is transformed from that of lessee to the prospective purchaser. In fact he specifically raised the contention of his possession being protected under Section 53A of the T.P.Act as a prospective purchaser. That itself goes to show that he pleaded on behalf of the Company that his possession is protected, etc.
16. As already pointed out, Ex.P1 the sale agreement was an admitted document and the covenants therein stated that the lessee shall continue to be the lessee and the sale agreement shall be concluded by 30.4.2001. Having regard to that, the courts below were justified in holding that there existed the jural relationship of landlord and tenant between the plaintiff and the defendant.
17. So far as the termination of the tenancy, the courts below held that since Ex.P11 the lease agreement was an unregistered document, that has to be construed for a month to month tenancy and therefore, termination notice Ex.D11 is in accordance with Section 106 of the T.P.Act.
18. The courts below have rendered the impugned judgment and decree on sound appreciation of the pleadings and evidence of the parties. This Court does not find any substantial question of law to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of disposal of the appeal, I.A.No.1/2018 does not survive and disposed of accordingly.
Sd/- JUDGE KNM/-