IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2563/2018 BETWEEN:
SRI D.S.JAGADHEESH S/O LATE SANNAIAH AGED 60 YEARS BAKERY AND SWEET STALL SRI GANAPATHI DEVASTHANA COMPLEX B.M.ROAD, KUSHALANAGARA SOMWARAPETE TALUK KODAGU DISTRICT – 571 234 …APPELLANT (BY SRI YASHODHAR HEGDE, ADVOCATE FOR SRI AJAY J. NANDALIKE, ADVOCATE FOR M/S PRAGATI LAW CHAMBERS) AND:
1. SRI MAHAGANAPATHI DEVARU (VIGHRAHA) SRI MAHAGANAPATHI DEVASTHANA F.M.KARIYAPPA CIRCLE KUSHALNAGAR – 571 234 2. SREE MAHAGANPATHI DEVASTHANA SEVA SAMITHI (R) 4TH BLOCK, F.M.KARIYAPPA CIRCLE KUSHALNAGAR, SOMWARPETE TALUK KODAGU DISTRICT – 571 234 RESPONDENT NO.1 & 2 ARE REPRESENTED BY ITS TRESURER MR.M.K.DINESH S/O LATE M.J.KALAPPA AGED ABOUT 49 YEARS R/AT MULLUSOGE VILLAGE SOMWARPET TALUK KODAGU DISTRICT …RESPONDENTS (BY SRI BALAJI RAGHUNATHAN, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 R/W ORDER XLII RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:10.10.2018 PASSED IN R.A.NO.19/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SOMWARPETE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:03.03.2018 PASSED IN O.S.NO.103/2013 ON THE FILE OF THE CIVIL JUDGE AND JMFC., KUSHALNAGAR.
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 the common judgment and decree dated 10.10.2018 passed by the Senior Civil Judge at Somawarapete in Regular Appeal No.19/2018 and connected matters.
2. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellant along with other connected appeals and confirmed the judgment and decree dated 03.03.2018 passed by the Civil Judge & J.M.F.C., Kushalnagar in O.S.No.103/2013 and connected matters. By the said judgment and decree, the Trial Court had decreed the suit of the plaintiffs for ejectment.
3. The respondents were plaintiff Nos.1 and 2 and the appellant was defendant in O.S.No.103/2013. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.
4. Subject matter of the suit was shop No.7, which was part and parcel of Sri Ganapathi Devasthana Complex, B.M.Road, Kushalanagar, carved out of Sy.No.89/2 of Kushalangar town.
5. The defendant was the tenant of the said property since 1.6.1994 on a monthly rent of Rs.400/- excluding the other charges like electricity and water charges. By mutual consent of the parties, said rent was increased to Rs.825/- per month w.e.f. 1.6.2005. Admittedly, on 10.4.2013 the plaintiffs issued notice terminating the tenancy of the defendant and calling upon him to handover the vacant possession of the property. Defendant issued reply notice contending that the term of his lease is extended by compromise between the parties and declined to vacate the property.
6. The entire commercial complex belongs to plaintiff No.1 Sri Mahaganapathi Devasthana Trust and plaintiff No.2 was the trustee of the said Trust. There were in all 11 tenements in the said complex. Along with the termination of tenancy of the defendant, tenancy of other 10 tenants were also terminated.
7. Plaintiff filed suit for ejectment in respect of all 11 tenements, which were registered in O.S.Nos.96/2013 to 104/2013, 106/2013 and 107/2013. All the cases were consolidated and common evidence was recorded.
8. The trial court on hearing the parties by common judgment and decree dated 3.3.2018 decreed the suits holding that there is no dispute with regard to jural relationship and that tenancy was terminated under valid notices.
9. Aggrieved defendant filed R.A.No.19/2018 before the Senior Civil Judge at Somawarapete. The other tenants also filed appeals challenging the common judgment and decree of the trial court. The said appeals were registered in R.A.Nos.15/2018 to 25/2018. On hearing the parties by the impugned judgment and decree, the first appellate court dismissed the appeals and confirmed the judgment and decree of the trial court.
10. Sri.Yashodhar Hegde, learned Counsel for the appellant – defendant submits that the impugned judgment and decrees of the courts below are unsustainable on the ground that the decrees of the courts below are vague and that after issuing termination notice, the landlord accepted the rents thereby there is waiver of the termination notice.
According to him, these two aspects constitute the substantial questions of law.
11. Per contra, Sri.Balaji Raghunathan, learned Counsel for the respondents – plaintiffs submits that the clerical error in the decrees of the courts below is rectified by the courts below invoking Section 152 of the Code of Civil Procedure on the application of the plaintiff. Therefore, the question of decrees being invalid on such count does not survive at all.
12. So far as the waiver, relying on the judgments of the Supreme Court in Shanti Prasad Devi & Another –vs- Shankar Mahto and Others AIR 2005 SC 2905 and C.Albert Morris –vs- K.Chandrasekaran and Others (2006) 1 SCC 228, he submits that mere acceptance of the rent after service of termination notice without an intention to create a new tenancy, does not amount to waiver. He further submits that no such defence of waiver was taken before the courts below and no issue was framed, therefore, that does not become a substantial question of law.
13. He further submits that except the appellant, in three other matters, the tenants have handed over the possession to the plaintiffs and even the appellant has vacated and kept the premises under lock, but has not handed over the possession to the plaintiffs. Therefore, the appeal has become virtually infructuous.
14. This being a second appeal under Section 100 CPC can be admitted for hearing, only if it is shown that the matter involves a substantial question of law for consideration. On the question of facts, the first appellate court is the last court unless it is shown that the judgments of the courts below suffer perversity.
15. What is the substantial question of law and when High Court can interfere with the concurrent findings of the courts below was dealt with by the Hon’ble Supreme Court in the following judgments:
1. Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965;
2. Gurnam Singh (Dead) by LRs & Others –vs- Lehna Singh (Dead) by LRs. AIR 2019 SC 1441.
16. In Gurnam Singh’s case referred to supra, referring to its earlier decisions, the Hon’ble Supreme Court held that in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion to that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were contrary to the mandatory provisions of the applicable law, the judicial precedents laid by the Apex Court or based on inadmissible evidence or no evidence.
17. In the light of the aforesaid judgments, this Court has to see whether the impugned judgments and decrees of the courts below are contrary to the mandatory provisions of the applicable law, the judicial precedents laid down by the Apex Court or based on inadmissible evidence or no evidence.
18. In a suit for ejectment, the questions that arise for consideration are:
(i) jural relationship between the parties;
(ii) validity of the termination notice.
19. Defendant admitted the jural relationship.
He also admitted the service of termination notice. Though vaguely he said that the termination notice is invalid, he did not say on what count such termination notice is invalid. The notice was issued as contemplated under Section 106 of the Transfer of Property Act. The tenancy was month to month tenancy. It was not his case that the notice did not comply the period prescribed under Section 106 of the Transfer of Property Act.
20. The only contention of the defendant was that after issuance of the termination notice, before filing the suit, the plaintiffs accepted the rent paid by him, that amounts to waiver of notice, therefore, plaintiffs cannot claim possession or ejectment.
21. Section 113 of the Transfer of Property Act which deals with ‘waiver of notice to quit’ reads as follows:
“113. Waiver of notice to quit.-A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.”
22. Thus, it is very clear that waiver must be by a clear intention either express or implied. In this case, after termination of the tenancy, tenant continued to be tenant holding over. There was nothing to show that the plaintiffs accepted the notice with an intention to create new tenancy or renewal of the old tenancy.
23. The Hon’ble Supreme Court in Shanti Prasad Devi’s case (supra) and C.Albert Morris’s case (supra) held that mere acceptance of rent subsequent to quit notice itself would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. It was held that such acceptance cannot be said to be a conduct signifying ‘assent’ to the continuance of the lessee even after expiry of lease period or termination of tenancy.
24. First of all there was no plea of waiver invoking Section 113 of the T.P.Act. Secondly, no issue was framed on such point, no evidence was adduced regarding that. Therefore, for the first time before this court, the aspect of waiver does not become a substantial question of law.
25. There is no dispute that the decrees of the courts below are rectified to correct the accidental error. Therefore, that also does not become substantial question of law.
This Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of disposal of the appeal, I.A.No.1/2018 stood disposed of.
Sd/- JUDGE KNM/-