IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.340/2013 BETWEEN:
SMT.VIJAYASHREE PUNJA WIFE OF SRI BALA KRISHNA PUNJA AGED ABOUT 55 YEARS OCC:BUSINESS & HOUSEWIFE RESIDING AT BHARATHI NAGAR BAJAI, MANGALORE – 575 004.
…APPELLANT (BY SRI Y RAJENDRA PRASAD SHETTY AND SRI. L.S.CHIKKANNA GOUDAR, ADVOCATES) AND:
SMT.ROHINI RAMACHANDRA WIFE OF SRI P RAMACHANDRA AGED ABOUT 50 YEARS OCCUPATION:HOUSEWIFE RESIDING AT 4-12 DANDUKERI HOUSE YAYYADI PADAVU MANGALORE – 575 008.
...RESPONDENT (BY SRI S SRIVATSA, SENIOR COUNSEL FOR SRI SANHOSH GOGI, ADVOCATE FOR M/S. GOGI AND GOGI) THIS RSA IS FILED UNDER ORDER 42 RULES 1 AND 2 READ WITH SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:3.1.2013 PASSED IN R.A.No.123/2010 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 27.7.2010 PASSED IN OS.No.309/2006 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (JR.DN.) & JMFC, MANGALORE, D.K.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal by the defendant/appellant is directed against the judgment and decree dated 03-01-2013 passed in R.A.No.123/2010 by the learned Principal Senior Civil Judge and CJM, Mangalore, wherein the appeal preferred by the defendant came to be dismissed and thereby confirmed the judgment and decree dated 27.07.2010 passed in OS No.309/2006 by the I Additional Civil Judge (Jr.Dn) & JMFC, Mangalore, D.K.
2. In order to avoid confusion and overlapping, the parties are referred with reference to their respective status and ranking before the trial court.
3. The learned trial Judge had decreed the suit filed by the plaintiff in O.S.No.309/2006 with cost of Rs.500/-, directed the defendant to pay Rs.2,500/- being the arrears of rent to the plaintiff and further directed to vacate the schedule premises within three months from the date of order and reserved liberty to the plaintiff to initiate proceeding for an enquiry under Order 20 Rule 12 CPC.
4. Brief facts of the case are as under:
Plaintiff, Rohini Ramachandra filed original suit in O.S.No.309/2006 before the trial Judge for a direction to the defendant to the arrears of rents of Rs.2,500/- and to vacate the schedule premises and to pay the mesne profit of Rs.500/- per day and etc. It is a suit based on termination of tenancy. Plaintiff Rohini Ramachandra terminated the tenancy and sought for possession of suit premises. It is stated therein that originally, one Ramachandra, husband of plaintiff had let out the schedule premises to the defendant on a monthly rental of Rs.2,500/- for running a Bar and Restaurant. The relationship between the parties appears to have become strained and plaintiff’s husband got issued legal notice to the defendant communicating termination of tenancy on 20-01-2006 in respect of suit schedule property and also demanding the arrears of rent as per Ex.P1 and it was replied on 20-03-2006 as per Ex.P3. The defendant failed to vacate the schedule premises as undertook by her and in the meantime, plaintiff’s husband had settled the schedule premises in favour of the plaintiff as per Settlement Deed dated 24-03-2006 registered as document No.7366/2005-06 as such she is the present landlord of the schedule premises. It is also stated that, defendant was liable to pay the rents and instead of complying the demand made by the plaintiff, defendant has sent a reply on 20.5.2006 raising all types of false frivolous contentions.
5. Upon service of notice, defendant appeared and filed written statement denying the plaint averments made and contended that she has paid rents upto 20.10.1997. Plaintiff’s husband had borrowed from her husband an amount of Rs.7,50,000/- on 25.8.1997 and agreed to repay the same within one month and entered into a Memorandum of Understanding on 20.10.1997, wherein it is stated that the said Ramachandra owed an amount of Rs.7,50,000/- to the defendant Vijayashree Punja and in this connection a Promissory note was executed by Ramachandra in favour of Laxmi Finance Corporation and it was in this connection, the defendant claim that a Memorandum of Understanding was entered into between the defendant and plaintiff and in case of default in repayment of Rs.7,50,000/- by the plaintiff, the said amount of Rs.7,50,000/- was to be treated as sale consideration. Plaintiff’s husband Ramachandra gifted the schedule property to her and she issued the notice of termination of tenancy and suit for eviction came to be filed against the defendant and also for arrears of rent of Rs.2,500/- was demanded.
6. The learned trial Judge was accommodated with the oral evidence of PW-1 and DW-1 and documentary evidence of Exs.P1 to P5 and Ex.D1 to D6. The learned trial Judge decreed the suit with cost of Rs.500/- as stated above. Defendant preferred Regular Appeal before the learned Principal Senior Civil Judge and CJM, Mangalore, in R.A.No.123/2010 and that came to be dismissed. Against which, this appeal is filed by the defendant before this court.
7. This Court has framed the following substantial question of law on 10.4.2013:
Whether on the admitted facts of the case, the two courts below had erred in law in holding that there was landlord-tenant relationship between the parties?
8. The schedule premises consisted an area of 530 sq.ft. in non residential area, bearing Door No.2- 16-1388/5 in the first floor of ‘Tribuvan Commercial Complex’ situated at Bejai, Kodiailbail Village of Mangalore Town.
9. Learned counsel Sri.L.S.Chikkanna goudar, appearing for appellant would submit that there is no basic relationship of landlord and tenant and in the absence of jural relationship, the trial court and the first appellate court ought not have passed the decree for eviction as the status of the defendant had transformed from tenant to that of a purchaser and that either the previous landlord Ramachandra or the present landlady Rohini Ramachandra, wife of Ramachandra had no relation of ownership over the schedule premises.
10. Learned counsel Sri. S.Srivatsa, Senior Counsel for Sri. Santhosh Gogi for plaintiff/respondent would submit that the title of the property was with the husband of the plaintiff, however, it was settled to her by her husband under the registered settlement dated 24.03.2006 Ex.P3. The suit schedule premises is said to be a non residential premises and it is let out for running a Bar and Restaurant. Monthly rent agreed was Rs.2,500/- with deposit of Rs.1,50,000/-.
11. In the beginning, the relationship of landlord and tenant is between defendant and Ramachandra and it is not disputed. The tenancy of schedule premises is between the husband of the plaintiff and the defendant. However, in the later circumstances, defendant claims that the Memorandum of Understanding was entered into on 20.10.1997 where, it is stated that a demand promissory note dated 20.5.1997 (over written on whitener) was taken into consideration 12. On hearing the questions of law is reframed as under:
(i) Whether the tenancy was in force as on the date of termination of tenancy?
(ii) Whether the relationship of tenancy got merged taking away the jural relationship of landlord and tenant into purchaser and vendor?
13. It is claimed by the defendant that an amount of Rs.7,50,000/- was borrowed by the plaintiff’s husband Ramachandra and he was not in a position to pay back the amount with interest, because of which, defendant was absolved of payment of rents to the plaintiff’s husband and it is also stated that an amount of Rs.7,50,000/- was to be treated as the sale consideration for the schedule property. It is necessary to mention that the Memorandum of Understanding is denied by the plaintiff. The trial Court has given a finding that the promissory note is executed in favour of Laxmi Finance Corporation as per Ex.D2 on 25.8.1997 by Ramachandra, husband of the plaintiff. There is no explanation as to the link between defendant and Laxmi Finance Corporation. It is not forthcoming whether there is any legal proceedings initiated against the plaintiff’s husband Ramachandra by the said Laxmi Finance Corporation.
14. The learned counsel for the plaintiff states that no such proceedings are initiated. If such being the case, even a legal debt becomes barred by limitation. Legality or otherwise of the documents or limitation cannot be checked on the basis of memo.
15. With all these, even in case the property is agreed to be sold that right cannot be converted into the rights of a relationship of a tenant and landlord. The relief of specific performance is totally a distinct and different one. When the suit was filed on 02.06.2006 against the defendant by the plaintiff, it is nothing but denial of Memorandum of Understanding that was claimed by the defendant. The plaintiff has not filed any suit for specific performance, regard being had to the fact of denial of said Memorandum of Understanding executed by Ramachandra to the defendant. The defendant has tried her level best to retain the possession under one or other pretext by creating and imagining the relationship in the form of Memorandum of Understanding is of no avail. Moreover, the defendant herself does not have a stand on the said document. For all practical purposes, it is stated that the rents of the schedule property were not paid right from 2006 and again, that is not the domain of this Court to order for the arrears of rent as the suit is not meant for the same.
16. It is clear under the circumstance that the defendant who was tenant in the schedule property under the husband of the plaintiff and the jural relationship stood terminated. Further the defence or contentions of the defendant appears to be not probable in tandum and she is liable to vacate the schedule property and handover the possession of the same to the plaintiff within a reasonable period. There shall be a separate enquiry under order 20 Rule 12 CPC for ascertaining the mesne profits payable by the plaintiff from the date after the termination of tenancy. Accordingly, the substantial questions of law are answered and the impugned judgment and decree passed by the first appellate Court and the trial Court deserve to be confirmed by virtue of their sound reasoning and appeal deserves to be dismissed with cost of Rs.5,000/-.
17. In the result, I pass the following ORDER The appeal is dismissed with cost of Rs.5,000/-.
The judgment and decree dated 03-01-2013 passed in R.A.No.123/2010 by the learned Principal Senior Civil Judge and CJM, Mangalore, is hereby confirmed.
The defendant is directed to vacate the schedule premises and hand over the vacant possession of the same to the plaintiff on or before 8th June 2019.
A separate enquiry is ordered under Order 20 Rule CPC for mesne profits.
Sd/- JUDGE tsn*