IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.117 OF 2019 (SC) BETWEEN:
SRI R.VISHWANATH, S/O.LATE V.RAGHUNATH, MAJOR, ADVOCATE, R/AT NO.14/80, 1 & 2ND FLOOR, 12TH MAIN, 2ND BLOCK, NEAR ESI HOSPITAL, RAJAJINAGAR, BENGALURU – 560010. …PETITIONER (BY SRI.R.VISHWANATH, PARTY-IN-PERSON) AND:
SMT.INDRANI SREENIVAS, W/O B.R.SREENIVAS, AGED ABOUT 55 YEARS, R/AT NO.619/B, 2ND BLOCK, 36TH CROSS, RAJAJINAGAR, BENGALURU – 560016. ...RESPONDENT (BY SRI.M.SREENIVASA, ADVOCATE) **** THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF KARNATAKA SMALL CAUSES COURT ACT AGAINST THE ORDER DATED 15.02.2019 PASSED ON IA IN SC.NO.707/2017 ON THE FILE OF THE II ADDL. JUDGE AND 28TH ACMM COURT OF SMALL CAUSES, BENGALURU REJECTING THE APLLICATION UNDER SECTION 151 OF CPC., TO DISMISS THE SUIT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though this petition is listed for admission, with the consent of both sides, the matter is heard on merits.
2. The petitioner is before this Court seeking to set aside the impugned order dated 15.02.2019 passed on I.A. filed under Section 151 CPC.
3. The facts briefly stated are that the petitioner is the defendant before the Small Causes Court, Bengaluru, in the suit filed for ejectment. It is stated that the petitioner is the tenant of the suit property and the cause of action arouse on 28.02.2017 when the respondent-landlord issued legal notice and the same was received by the petitioner on 03.03.2017. Thereafter, the respondent/plaintiff has received rent of Rs.40,000/- for the period from September to December 2017 through demand draft and for the period from January 2018, he has filed a memo dated 23.10.2018 for adjusting the advance amount and he has also paid a sum of Rs.5,000/- through pay order, which was received by the respondent/plaintiff before the Court. Thus, in view of the ratio laid down in the decision reported in AIR 2015 KAR 128 in the case of M/s.Auto World vs. K.V.Sathyavati, the receipt of rent amounts to waiver of quit notice. As such, the suit would not be maintainable. The respondent-landlord had filed objection to the said application before the trial Court. On hearing the parties, the trial Court rejected the application filed under Section 151 CPC. Being aggrieved by the said order, the petitioner/defendant has filed this revision petition.
4. Reiterating the contentions made in the petition, the petitioner, who appeared in person, has submitted that the impugned order is contrary to the law and facts of the case, thus, it has resulted in miscarriage of justice.
5. Per contra, counsel for the respondent has submitted that earlier an application under Order VII Rule 11 (a) and (d) of CPC was also filed by the petitioner/defendant, which came to be rejected. Subsequently, the petitioner has filed another application. Thus, there are no valid grounds to set aside the impugned order passed on I.A. under Section 151 of CPC.
6. In view of the rival contentions, the only question that arise for consideration is whether there are valid grounds to interfere with the impugned order.
7. The main contention of the petitioner is that in view of the decision reported in AIR 2015 KAR 128 and the acceptance of the rent by the respondent- landlord, the suit is liable to be dismissed.
8. As could be seen from the impugned order, the petitioner/defendant has deposited the rent as directed by this Court in the order dated 14.02.2018 passed in CRP No.377/2017. There is no satisfactory record to show that the petitioner-tenant has tendered rent and the same was voluntarily accepted by the respondent-landlord with an intention to continue him as tenant.
9. Section 112 of the Transfer of Property Act, 1882, reads as under:
112. Waiver of forfeiture.—A forfeiture under section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting: Provided that the lessor is aware that the forfeiture has been incurred: Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.
10. In view of the aforesaid Section, where rent is accepted after the institution of the suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver. Thus, in my humble opinion the decision relied upon by the petitioner is not aptly applicable to the facts of the present case.
11. For the foregoing reasons, there are no valid grounds to set aside the impugned order. Accordingly, the revision petition is dismissed.
Sd/-
JUDGE BSR