IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE G.NARENDAR HRRP NO.96/2016 (EVI) BETWEEN SRI VENUGOPAL, SINCE DEAD BY LR SMT. PADMA @ PADMAMMA W/O LATE VENUGOPAL, AGED ABOUT 63 YEARS, R/A NO.9, 2ND FLOOR, 3RD MAIN, MALLIGE THOTA, BEHIND PRASANNA THEATER, CHOLURU PALYA, MAGADI ROAD, BENGALURU-560023.
... PETITIONER (BY SRI. NAGENDRA SHETTY, ADV.) AND 1. SMT. C.VASANTHA, W/O GOVINDASWAMY, D/O LATE M.CHINNAPPA REDDY, AGED ABOUT 61 YEARS, 2. SMT. SUSHEELA, W/O SRI. P.BABU, D/O LATE M.CHINNAPPA REDDY, AGED ABOUT 49 YEARS, BOTH RESPONDENTS ARE R/AT NO.80, P & T COLONY, CHOLURU PALYA, MAGADI ROAD, BENGALURU-560023.
... RESPONDENTS (SRI. S.P.SATHISH, ADVOCATE FOR C/R-1 AND R-2.) THIS HRRP IS FILED UNDER SEC.46(1) OF KARNATAKA RENT ACT., AGAINST THE ORDER DATED 16.09.2016 PASSED IN HRC NO.75/2015 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, ALLOWING THE PETITION FILED UNDER SEC.27(2)(R) OF KARNATAKA RENT ACT., FOR EVICTION.
THIS PETITION COMING ON FOR ‘ADMISSION’ THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner.
2. The petitioner is before this court being aggrieved by the order of the Trial Court passed in HRC 75/2015 allowing the petition filed under Section 27(2)( r ) of the Karnataka Rent Act, 1999 seeking eviction of the respondent, i.e., the petitioner herein, since deceased and represented by his wife Smt.Padma.
3. The parties are referred to by the nomenclature before the Trial Court.
4. The facts in brief are that the petition schedule premises came to be gifted to the petitioners under gift deed dated 19.4.2014. That the gift deed was executed by their father who was examined as PW2. Pursuant to the execution of the gift deed, their father orally attorned the tenancy in their favour and the respondent tenant was made known of the fact and that thereafter he continued paying rents to the petitioners. That as they were in requirement of the schedule premises for their own use, they requested him to quit and deliver possession to them and as the respondent tenant failed to deliver vacant possession of the schedule premises, a legal notice dated 2.5.2015 came to be issued terminating the tenancy and the same came to be served upon the respondent/tenant who got issued an untenable reply.
The respondent was put on notice stating that the continued possession would result in a claim for mesne profit in view of the fact that continuation is rendered illegal pursuant to issuance of legal notice. Hence, on the above facts and circumstances the petitioners prayed for an order of eviction.
The respondent/tenant contended that the petitioners are strangers to him and that they are not owners of the petition schedule premises and that he had not been put in possession and that the owner of the schedule premises was one Varadaraju and that the said Varadaraju let out the petition schedule premises to the respondent nine years back on a monthly rent of Rs.2,000/- and that presently he is paying at the rate of Rs.3,000/- and that he is regularly paying rents and the said Varadaraju is issuing rent receipts for each payment evidenced in a small book which is in the custody of the respondent. The respondent has denied the jural relationship between the petitioners and the respondent though he admits that he is only a tenant in respect of the petition schedule premises.
It is further contended that he has paid a security deposit of Rs.25,000/- which is refundable at the time of eviction and that the said deposit was made with the said Varadaraju who has been examined as RW2. It is relevant to note at this stage itself that the said RW2 is none other than the brother of the petitioners/Land lady. He admits receipt of notice and effecting of reply notice but denied the jural relationship.
In the court below the petitioners got examined PW1 who is one of the petitioners and PW2 who is none other than their father and donor, who executed and conveyed the petition schedule premises in favour of the petitioners and PW3, one Subramani who has attested the gift deed executed by PW2. They also got marked exhibits P1 to P5.
The respondent/tenant examined himself as RW1 and got examined RW2 and the father-in-law of RW2 as RW3.
The trial Court after appreciation of the material on record and the respective depositions, admissions and cross examinations has concluded in favour of the petitioners. To arrive at the said conclusion, the Trial Court has relied upon the admission of RW2, the alleged land lord, who has admitted that PW2 is his father and deposed in favour of the petitioners. The Trial Court has further rendered a categorical finding based on the admission of RW1, who has admitted that he has not produced any document to demonstrate that Varadaraju is the owner of the petition schedule premises or to demonstrate the contention that the petition schedule premises was built by RW3 i.e. the father-in-law of RW2, the alleged land lord.
With regard to the rent receipts and the rental agreement, the trial Court has relied upon the admissions of RWs 1 and 2 to discard the same on the premise that the same has come into existence after the initiation of the eviction proceedings.
The Trial Court has relied upon the following exhibits i.e. Ex.P1- gift deed, P2-katha extract, P3-katha certificate, P4-encumbrance certificate and the admission of the water connection standing in the name of the petitioners to conclude that the petitioners are owners and relied upon the provisions of Section 109 of the Transfer of Property Act to determine the fact of attornment of tenancy. It has rendered a categorical finding that no other material is placed to demonstrate the title in RW2- the brother of the petitioners. It has also relied upon admissions of RW1, RW2 and RW3 to conclude that a vacant site was purchased by PW2 and the construction was put up in the year 1983 by PW2 only. To render such a finding it has relied on the admission of RW2 who is none other than the son of PW2 and accordingly it has concluded that the respondent/tenant has failed to demonstrate his contention that there is no jural relationship and has endeavored to reject the application filed under Section 43 of the Karnataka Rent Act, 1999. It has relied on the deposition of PW3 to conclude that the tenancy in fact was created by PW2, father of petitioners, in that the respondent-tenant was inducted into the premises by none other than PW2. It has also relied on the depositions of PW3 to demonstrate the attornment of tenancy and has thus concluded that there existed a jural relationship between the parties.
That apart, the petitioner-the present revision petitioner, i.e. the respondent-tenant, has produced certain rent receipt which yet again relate to the period subsequent to the filing of the case by the land lord. It is seen that all the receipts are in the same hand writing and appears to have been written on the same day with the same pen. The said act of the respondent/tenant requires to be deprecated and is strongly disproved by this Court, as it tantamounts to manufacturing evidence. This is the conclusion, to which even a lay person would arrive. The fact that they are written/fabricated on the same day is apparent even to the naked eye.
It is apparent that the respondent-tenant has been making attempts to create/fabricate documents to disprove the contention of the petitioners regarding their bonafide requirement. The court below has also categorically held that the respondent/tenant has not disproved/rebutted the contention of the petitioners that they are in requirement of the petition schedule premises and thereafter was pleased to allow the petition by directing the respondent/tenant to quit, vacate and deliver vacant possession of the petition schedule premises to the petitioners within three months from the date of the order.
5. The order is passed on 16.9.2016 and almost a year has lapsed but till this date the respondent/tenant has not made any efforts to comply with the order of the Trial Court directing to evict and deliver vacant possession of the petition schedule premises within three months. The learned counsel for the petitioner herein is unable to demonstrate any material to contradict the reasonings assigned or point out any perversity in the appreciation of the material on record by the court below. The scope of exercise of power under the provisions of Section 115 is not to sit as court of appeal to re-appreciate the evidence. The impugned order is backed by sound reasonings and appreciation of evidence cannot in any manner be found fault with. In the considered opinion of this Court the well reasoned order does not warrant any interference.
6. On the other hand, this Court is of the opinion that the tenant has not played fair with the court. In fact, the respondent/tenant only appears to be a mere name lender and has set up a case on behalf of the alleged land lord Varadaraju who has claimed title in the property. There is no bonafides on the part of the respondent/tenant. Even otherwise it can be safely inferred that the tenant is trying to take undue advantage of the prevailing situation and to make hay when the sun shines.
7. It is an admitted fact that the revision petitioner i.e. the tenant has neither paid the rents to the land lord nor is any attempt been made to demonstrate the actual payment of rent i.e. an attempt to deposit the rent in a Court, which would have been normally due in the light of the alleged serious title dispute. Moreover, the petitioners- land lady have placed the documents of title by way of gift deed and the revenue documents like katha extracts and katha certificate to demonstrate their title. This alone is sufficient to demonstrate the malafide manner in which the respondent tenant has been conducting herself. It is apparent that he is acting at the behest of RW2 – brother of the present land lady. It is also an undisputed fact that RW2, the son of the original land lord had abandoned his father and has been living with his wife in the house of his mother-in-law, which fact has been admitted by him in the cross examination.
8. In the surrounding circumstances, this Court is of the considered opinion that no further time ought to be granted to the tenant who has approached this Court with unclean hands. Hence, this Court declines to exercise any discretionary power.
9. Accordingly, the petition stands dismissed with cost quantified at Rs.25,000/- payable by the petitioner herein/tenant to the respondents/land lord herein. In the event the petitioner/tenant voluntarily vacates and hands over possession within 60 days from today, the payment of costs shall stand waived, failing which the respondent Land lord is entitled to recover the same.
Cost to be deposited before this Court within a period of four weeks.
Sd/- JUDGE rs