Karnataka High Court
Devakaran S/O Laxminarayan Agarwal ... vs The Bijapur District Co.Operative ... on 3 July, 2024
-1-
NC: 2024:KHC-K:4537
RSA No. 200101 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.200101/2021(POSS)
BETWEEN:
DEVAKARAN S/O LAXMINARAYAN AGARWAL
SINCE DECEASED BY LRS
1. SMT. PUSHPADEVI
W/O DEVAKARAN AGARWAL
AGE: 67 YEARS,
OCC: H.H. WORK AND BUSINESS
R/O. VIJAYAPURA.
2. SMT. ASHOK S/O DEVAKARAN AGARWAL
AGE: 46 YEARS, OCC: BUSINESS,
R/O. MATEWARI SWEET MART,
Digitally signed IN FRONT OF CENTRAL BUS STAND,
by SUMITRA
SHERIGAR VIJAYAPURA AND
Location: HIGH VIVEK NAGAR EAST,
COURT OF
KARNATAKA VIJAYAPRUA.
3. SUNIL S/O DEVAKARAN AGARWAL
AGE: 45 YEARS, OCC: BUSINESS
4. DEEPAK S/O DEVAKARAN AGARWAL
AGE: 40 YEARS, OCC: BUSINESS
5. ASHA W/O ARUN MAHAJAN
AGE: 48 YEARS, OCC: H.H. WORK,
-2-
NC: 2024:KHC-K:4537
RSA No. 200101 of 2021
ALL RESIDENTS OF VIVEK NAGAR EAST,
VIJAYAPURA.
...APPELLANTS
(BY SRI VIKRAM VIJAY KUMAR, ADVOCATE)
AND:
THE BIJAPUR DISTRICT CO.OPERATIVE
UNION LTD.,
OPPSITE TO CENTRAL BUS STAND,
VIJAYAPURA,
BY ITS CHIEF EXECUTIVE OFFICER-586101.
...RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE IN R.A. NO.81/2016 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM AT VIJAYAPURA DATED
06.08.2020 AND JUDGMENT AND DECREE OF THE TRIAL
COURT DATED 20.08.2016 IN O.S. NO.278/2011 PASSED BY
THE PRL. CIVIL JUDGE AT VIJAYAPURA AFTER CALLING FOR
THE LOWER COURT RECORDS AND DISMISS THE SUIT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Against the concurrent findings of facts of the Courts below the defendants are before this Court in the regular second appeal.
2. Parties herein are referred to as per their ranking before the trial Court for the sake of convenience. -3-
NC: 2024:KHC-K:4537 RSA No. 200101 of 2021
3. Suit property is shop Nos. 2 and 3 measuring 10' x 15' out of CTS No.12/A/1B of Ward No.VI of Vijayapur City. The plaint avers that CTS No.12 was belonging to the Government of Karnataka and in the year 1970 the Deputy Commissioner of Bijapur District, had granted it in favour of the plaintiff by order dated 14.04.1970. It is stated that the area granted in favour of the plaintiff has now been re-numbered as CTS NO.12/A/1B and the property which was granted to the plaintiff situated is in front of the Central Bus-Stand and the plaintiff has constructed a building. It is stated that the suit property was let out in favour of the defendant on 09.10.2006 for a period of 2 1/2 years and he was running a sweet mart by name and style as "Mateshwari Sweet Mart". It is further stated that as per the agreement, the defendant was to pay Rs.1,50,000/- towards deposit and said amount was to be returned to the defendant on vacating the premises after expiry of 2 ½ years. The plaintiff issued notice requesting the defendant to vacate and handover the possession of the suit property on 31.08.2009. The defendant having not paid rent regular as agreed, he was regular defaulter and the plaintiff -4- NC: 2024:KHC-K:4537 RSA No. 200101 of 2021 having no other option then to seek for vacating and handover possession of the respective premises.
4. On the notice, the defendant appeared and filed his written statement, interalia contending that the original defendant is residing in suit property since 1977 and he is running business. It is stated that there is no cause of action for the plaintiff to file suit for possession. During the pendency of the suit, the defendant expired and his legal representatives brought on record.
5. The trial Court on the basis of the pleadings, framed the following issues:
"1. Whether the plaintiff Union Ltd., proves that the jural relationship of lessee and lessor in between plaintiff's and union and defendant in respect of suit property?
2. Whether the plaintiff's union has illegally terminated the tenancy of the defendant in respect of suit property as required under the law?
3. Whether the plaintiff union is entitled for the possession of the suit property?-5-
NC: 2024:KHC-K:4537 RSA No. 200101 of 2021
4. What order or decree?
Additional issue:
Whether the suit is barred U/s 118 of Karnataka Co-Operative societies Act 1959?"
6. In order to substantiate their claim, plaintiff - Bijapur District Co-Operative Union Ltd., examined its Chief- Executive Officer as PW1 was examined and 9 documents at Exs.P1 to P9 were marked. On the other hand, defendant examined himself as DW1, two witnesses as DWs.2 and 3 and got marked documents at Exs.D1 to D9.
7. On the basis of the pleadings, oral and documentary evidence, the trial Court held that the plaintiff has proved the relationship of lessee and lessor between the plaintiff and the defendant and that the plaintiff has proved that they have legally terminated the tenancy of the defendants as required under law.
8. By the judgment and decree the suit of the plaintiff was decreed directing the defendants to vacate and handover the vacant possession of the suit property - shop Nos.2 and 3 -6- NC: 2024:KHC-K:4537 RSA No. 200101 of 2021 out of CTS/A/1B of Ward No.VI of Vijayapur City to the plaintiff within three months' period from the date of judgment.
9. Aggrieved the defendants preferred an appeal before the first Appellate Court. The first Appellate Court while re-appreciating and re-considering the entire oral and documentary evidence affirmed with the judgment and decree of the trial Court.
10. Aggrieved, the legal representatives of the defendant are before this Court in the second regular appeal.
11. Heard learned counsel for the appellant Sri Vikram Vijay Kumar and perused the records.
12. Learned counsel for the appellant submits that the plinth area of each shop is less than 14 Sq.Mts., and as per Section 2 Sub-Clause (3)(g) of the Rent Act, the Rent Act is applicable to the non-residential premises excluding the premises having a plinth area not exceeding 14 Sq. Mtrs., used for commercial purpose and when the premises which is a non- residential one and if its plinth area is less than 14 Sq. Mtrs., the Rent Act of 1999 is applicable.
-7-
NC: 2024:KHC-K:4537 RSA No. 200101 of 2021
13. Learned counsel would further submit that the plaintiff ought to have filed an eviction petition for evicting the defendant from suit schedule premises by filing a petition under the provisions of the Rent Act and he could not have terminated the tenancy by issuing of notice under Section 106 of the Transfer of Property Act, 1908 (Hereinafter referred to 'the Act' for short) and as such, the very suit of the plaintiff is not maintainable. Stating this, the learned counsel submits that there arises a substantial question of law for consideration in the present appeal.
14. The plaintiff - Bijapur District Co-Operative Union Ltd., terminated the tenancy of all its tenants and called upon them to vacate and handover the possession of their respective premises and one such tenant is the appellant herein. The appellant herein was the defendant before the trial Court, filed his written statement denying the very establishment of the plaintiff - Society and contended that the suit of the plaintiff is not maintainable as per Section 70 of the Co-Operative Societies Act. The defendant contended that there is no cause of action to file the suit and sought for dismissal of the suit. -8-
NC: 2024:KHC-K:4537 RSA No. 200101 of 2021
15. The trial Court considering Exs.P2 and 6, the notices of the termination issued by the plaintiff in respect of the suit property under Section 106 of the Act, has held that the defendant was the tenant and his tenancy has been terminated in accordance with law. Insofar as the contention of the defendant about maintainability of the suit is concerned, stating that the Court had no jurisdiction to entertain the suit as the suit is barred under Sections 70 and 118 of the Karnataka Co-Operative Societies Act the trial Court held that as it does not touch the constitution of the society or any dispute touching the constitution of the society or dispute between members of the society and admittedly the defendant not being member or an employee of the plaintiff's society the suit of the plaintiff is very well maintainable and does not bar the suit of the plaintiff and by its judgment and decree directed the defendants to hand over the vacant possession to the plaintiff.
16. The first appellate Court being last fact finding Court has re-appreciated the oral and documentary evidence -9- NC: 2024:KHC-K:4537 RSA No. 200101 of 2021 available on record independently and noting the rent paid receipts produced by the defendants at Ex.P2 as the period of lease which expired in February 2009 the plaintiff has issued notice of termination of tenancy and in spite of the compliance of Section 106 of the Act, held that the defendant has failed to prove that he is entitled to continue the possession of the suit property and confirmed the judgment and decree of the trial Court.
17. The contention of the appellant that the suit shop is less than 14 Sq. Mtrs., and as per Section 2 of Sub-Clause 3(g) of the Karnataka Rent Act, 1999, the premises being not residential one and its plinth area being less than 14 Sq. Mtrs., the applicability of Rent Act, 1999, raised for the first time before this Court. There is no single whisper in the written statement regarding the applicability of the Karnataka Rent Act, 1999, if such a plea was raised by the defendant, the said aspect would have fallen for consideration before the Courts below, have failed to do so. The Apex Court in the case of
- 10 -
NC: 2024:KHC-K:4537 RSA No. 200101 of 2021 Hero Vinoth (Minor) v. Seshammal1, at Para No.23 of its decision has held as under:
"23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See :Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179]."1
(2006) 5 SCC 545
- 11 -
NC: 2024:KHC-K:4537 RSA No. 200101 of 2021
18. There arises no substantial question of law for consideration under Section 100 of CPC. The manner in which the Courts below have analyzed the entire oral and documentary evidence, this Court is of the considered view that there is no illegality or perversity to be considered by this Court.
19. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgment and decree of the Courts below stand confirmed.
Pending I.As., if any, does not survive for consideration.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 41 CT: VD