IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.152 OF 2019 BETWEEN SRI SHAIK AHMED S/O LATE SHAIK MASTAN AGED ABOUT 68 YEARS, D/B/AT NO.46 OLD BAMBOO BAZAR ROAD, NOW MIR OBAIDULLA ROAD SHIVAJI NAGAR, BANGALORE-560051. ... PETITIONER (BY SRI. MOHAMED NASIRUDDIN, ADVOCATE) AND SRI MOHAMMED ZIAULLA MADANI S/O LATE MOHAMMED ANWAR AGED ABOUT 60 YEARS, RESIDING AT NO.10 ‘B’ NO, 1ST STREET CHANDINI CHOWK ROAD CROSS BANGALORE-560001. ... RESPONDENT (BY SRI. VIJAYA KRISHNA BHAT M, ADVOCATE FOR C/R) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURTS ACT, 1964 AGAINST THE JUDGMENT AND DECREE DATED: 07.01.2019 PASSED IN S.C.No.673/2017 ON THE FILE OF THE XIX ADDL. SMALL CAUSES JUDGE, BANGALORE PARTLY DECREEING THE SUIT FOR EJECTMENT AND DAMAGES.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court under Section 18 of the Karnataka Small Cause Courts Act, 1964, assailing the order dated 07-1-2019 passed in S.C.No.673/2017 on the file of the XIX Additional Small Causes Judge, Bangalore, wherein the petitioner-defendant is directed to quit, vacate and handover vacant possession of suit premises to the plaintiff-respondent within three months from the date of decree.
2. The petitioner herein is tenant and respondent is landlord of the suit schedule premises. The respondent-landlord filed suit for ejectment and for damages at Rs.10,000/- per month. The defendant is tenant under plaintiff on monthly rent of Rs.4,000/-. It is stated that the plaintiff requires the premises to demolish the same, as it is in dilapidated condition and to reconstruct to accommodate his son to start business. Hence, tenancy was terminated by issuing quit notice dated 08-3-2017. Notice sent through RPAD was returned with postal shara as ‘not claimed’. As the defendant failed to vacate the premises, his possession became unauthorized and as such, he is liable to pay damages at Rs.10,000/- per month till he vacates the premises. Hence, the suit was filed.
3. The petitioner-defendant resisted the suit by filing written statement contending that the suit is not maintainable as the suit premises in less than 150 square feet and he is in possession of premises on the basis of part performance of oral agreement for sale by paying entire sale consideration of Rs.4,00,000/- through two cheques and cash. It is also stated that the suit is liable to be dismissed for non-compliance of Section 106 of Transfer of Property Act, as notice is not served on him.
4. The plaintiff examined himself as PW-1 and got marked documents Ex.P1 to P9 and the defendant examined himself as DW-1. No documents were marked in support of the case of defendant.
5. The trial Court based on the material on record, under impugned judgment directed the defendant- petitioner to quit, vacate and handover vacant possession of suit premises to the plaintiff-respondent within three months from the date of decree and observed that there shall be separate enquiry as per under Order 20 Rule 12 of CPC for damages/mesne profits. Aggrieved by the said judgment, the petitioner-defendant is before this Court in this revision petition.
6. Heard the learned counsel for the petitioner- tenant and learned counsel for the respondent- landlord. Perused the petition papers.
7. Learned counsel for the petitioner submits that the tenant had denied the rent receipts issued to him on payment of rent, which is produced before the Court. He further contended that there was no proper notice issued to tenant with regard to vacating premises. It is his further submission that the tenant continued to be in possession of the suit schedule property on the basis of part performance of oral agreement and he had paid entire sale consideration of Rs.4,00,000/- through two cheques and cash. As such, from the date of oral sale agreement i.e., from the year 2002, the defendant has not paid any rent and continued to be in possession as a purchaser. Learned counsel for the petitioner further submits that no reasons are forthcoming for allowing the suit and the judgment passed by the trial Court is cryptic.
8. Per contra, learned counsel for the respondent- landlord submits that the petitioner-defendant has not disputed the tenant-landlord relationship. He further contended that the petitioner was paying rent through cash for which the respondent used to issue rent receipts. Learned counsel points out paragraph No.17 of the judgment, wherein the trial Court has noted that defendant in his cross-examination has stated that he paid last rent in the year 2012. Thus, prays for dismissal of the revision petition.
9. Having heard learned counsel for the parties and on perusal of the petition papers, the only question which arises for consideration is as to whether the judgment of the trial Court requires interference, in the facts and circumstances of the case. The answer to the said question is in negative for the reasons stated below:
The petitioner-tenant would not dispute that he was tenant under respondent-landlord since the year 1996 and he admits the tenant-landlord relationship. But the case of the petitioner-tenant is that he has entered into an oral sale agreement with respondent- landlord in the year 2002 by paying entire sale consideration of Rs.4,00,000/- through two cheques and cash. Thus, he is in possession of the premises as a purchaser. But the petitioner-tenant has not produced any material to show that he has paid the entire sale consideration of Rs.4,00,000/-. Even though he states that he has paid Rs.4,00,000/- through two cheques and cash, he has neither produced any documents nor bank statement before the court towards payment of sale consideration made to the respondent-landlord. In the absence of any material to substantiate the payment made by the petitioner-tenant in favour of the respondent-landlord, the contention of tenant cannot be accepted. Moreover, the petitioner-tenant stated that he had not paid any rent to the plaintiff from the year 2002 i.e., after oral sale agreement. But in his cross- examination, admitted that he had paid last rent to the plaintiff in the year 2012. Thus, the tenant admitted that he had paid the rent up to 2012. Hence, petitioner’s contention that he is in occupation as purchaser fails.
Section 111 of the Transfer of Property Act, 1882 provides for determination of lease. Clause (e) and (f) would be relevant for the facts of the present case. Clause (e) provides for express surrender in case the lessee yields up his interest under the lease to the lessor, by mutual agreement. Clause (f) provides for implied surrender. The petitioner/defendant has failed to prove that on entering into oral agreement intention was to determine lease/tenancy. There is no evidence or material to indicate that there was oral agreement and parties intended to surrender the tenancy. The oral evidence would indicate that tenancy continued and the plaintiff received last rent in 2012. Moreover, the plaintiff has failed to prove oral agreement. Further, the story of oral agreement to sell cannot be believed as the defendant kept quite since the alleged oral agreement in the year 2002, failed to raise little finger during the life time of mother of the plaintiff or till the passing of impugned judgment. The defendant has not sought for specific performance either from plaintiff or from his mother during her life time.
The next contention advanced by the petitioner- tenant is that he was not served with quit notice and on the said ground, the suit is not maintainable. The other contention raised by the petitioner is that in the judgment of the trial Court is cryptic and no reasons are forthcoming.
10. It is the case of the respondent-landlord that the notice was issued to the petitioner-tenant and the said notice returned with postal shara as ‘not claimed’. The petitioner-tenant would not dispute the correctness of the address on the cover. If the address on the cover is correct and the notice returned with postal shara as ‘not claimed’, then it is to be presumed that service of notice is sufficient. The trial Court at paragraph No.23 of the judgment has dealt with the contention raised by the petitioner with regard to non-service of notice and has held that in view of Section 27 of General Clauses Act and Section 114 of Evidence Act, once the notice is sent by registered post to the correct address and returned with postal shara as ‘not claimed’, would be of sufficient service.
11. On going through the judgment, I am of the view that the trial Court in its judgment has assigned sufficient reasons to allow the suit. Each and every one of the contention of the petitioner has been dealt with by the trial Court. The contention with regard to oral sale agreement is dealt with by the trial Court at paragraph Nos.12, 15 & 16 of the judgment. With regard to payment of rent, the trial Court has dealt with at Paragraph No.17 of the judgment. With regard to the contention of non-service of notice, the trial Court has elaborated and discussed the same in paragraph Nos.22, 23 & 24 of the judgment. Hence, the contention that impugned judgment is cryptic is liable to be rejected. Therefore, I am of the opinion that petitioner-tenant has not made out any good ground to interfere with the judgment passed by the trial Court.
Accordingly, civil revision petition is rejected.
The learned counsel for the petitioner prays for some time to vacate and handover vacant possession.
Taking note of the fact that the petitioner-tenant was required to quit, vacate and handover vacant possession of suit premises to the plaintiff-respondent within three months from the date of decree, but as already more than seven months have expired, the petitioner is granted two months time to vacate and handover vacant possession of the suit schedule premises. The petitioner shall file an affidavit, undertaking to vacate suit schedule premises on or before two months from today.
One week time is granted to file the undertaking affidavit.
Sd/- JUDGE SMJ