Mr. Joseph Kevin Selvadoray vs Sri. Gerald Roche
2021 Latest Caselaw 1285 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JANUARY, 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                M.F.A.NO.343 OF 2021(CPC)
BETWEEN
MR. JOSEPH KEVIN SELVADORAY
S/O. LAET. J E SELVADORAY,
R/AT FLAT NO. 1 B LAZARUS ENCLAVE,
15 CAMPBELL ROAD, AUSTIN TOWN,
BENGALURU 560057
                                                ...APPELLANT
(BY SMT. VIJETHA.R.NAIK, ADVOCATE)
AND

1.     SRI. GERALD ROCHE
       S/O. GABRIEL NERI ROCHE,
       R/AT FLAT NO. 701,
       DIVINE PARADISE, IC COLONY ROAD,
       BORIVALI WEST,
       MUMBAI 400103

2.     MRS. SHABANA B S
       W/O. MR. KEVIN SELVADORAY,
       R/AT FLAT NO. C-1,
       NILUGAL HOMES 2, 230/A,
       6TH CROSS, S G BED LAYOUT,
       4TH BLOCK, KORAMANGALA,
       BENGALURU 560 034.
                                            ...RESPONDENTS
(BY SRI PRADEEP NAYAK, ADVOCATE)
       THIS APPEAL IS FILED UNDER ORDER 43 RULE L1(r) OF
CPC, AGAISNT THE ORDER DATED: 20.11.2020 PASSED ON I.A.NO.
1 IN O.S.NO. 665/2020 ON THE FILE OF THE VIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE CCH-15, BENGALURU ALLOWING THE
I.A.NO. 1 FILED UNDER ORDER 39 RULES 10 R/W SECTION 151 OF
CPC.
                               2



     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal by defendant No.1 in O.S.No.665/2020 is

directed against the impugned order dated 20.11.2020 passed

by the VIII Additional City Civil and Sessions Judge,

Bengaluru, whereby the application, I.A.No.I filed by the

plaintiff under Order XXXIX Rule 10 read with Section 151 of

CPC was allowed by the trial Court.

2. Heard learned counsel for the appellant and

learned counsel for respondent No.1 and perused the material

on record.

3. Since no relief is claimed against respondent

No.2, notice to respondent No.2 is dispensed with.

4. The material on record indicates that it is not in

dispute that respondent No.1-plaintiff instituted the aforesaid

suit for eviction of the defendants from the suit schedule

properties, payment of arrears of rent, damages and other

reliefs. In the said suit, the appellant herein was arrayed as

defendant no.1 while his wife Mrs.Shabana B.S., was arrayed

as defendant No.2. Before the trial Court, it was the specific

contention of the plaintiff that the suit schedule house

premises was leased out in favour of both the defendants

under a document that was in fact a lease deed but styled as

"Leave and Licence Agreement" dated 07.04.2018 on a

monthly rent of Rs.37,000/-. It was contented that apart from

the fact that the defendants committed default in payment of

rent, the period of lease had expired and plaintiff having

terminated the lease by issuing statutory notice, the instant

suit was instituted seeking the aforesaid reliefs.

5. The appellant as well as the 2nd defendant

contested the suit inter alia contending that the aforesaid

document dated 07.04.2018 executed between the plaintiff

and defendants was only a "Leave and Licence Agreement"

and not "Lease Deed" and consequently, the provisions of the

Transfer of Property Act being not applicable to suit schedule

premises, the question of appellant paying arrears of rent or

any relief being granted in favour of the plaintiff does not arise

and consequently, they sought for dismissal of the said suit. It

was also contended that prior to institution of the suit itself, the

appellant had vacated the house on account of marital

differences between himself and defendant No.2 and since

appellant was residing elsewhere, he was not liable to pay any

rent in favour of the plaintiff on this ground also. After hearing

learned counsel for the parties, the trial Court passed the

impugned order allowing I.A.No.I, aggrieved by which, the

appellant is before this Court by way of the present appeal.

6. A perusal of the impugned order will indicate that

after considering the pleadings of the parties, the trial Court

framed the following points for consideration.

"6. On the basis of the above facts, the following Points arise for my consideration-

(1) Whether the plaintiff has got prima facie case in this favour?

(2) In whose favour balance of convenience lies?

(3) Who will be put to irreparable loss?

      (4)    What order?"




      7.     While     dealing   with   the    said   points   for

consideration, the trial Court has not only adverted to the rival

contentions put forth by both sides but also came to the

conclusion that the appellant and defendant No.2 had

undertaken to pay the sum of Rs.37,000/- per month as

agreed between the parties in the aforesaid undisputed

document dated 07.04.2018. The trial Court also noticed that

notwithstanding the fact that there is a dispute as to whether

the transaction was a 'lease' or 'leave and licence', in the light

of the undisputed fact that the appellant was liable to pay a

sum of Rs.18,500/- towards his 1/2 share of the liability out of

total sum of Rs.37,000/- as agreed in the said document, the

appellant had committed willful default in making payment in

favour of the plaintiff and consequently, the trial Court

proceeded to allow the application filed by the plaintiff.

8. In this context, it is relevant to extract the

reasoning and findings recorded by the trial Court as under:

"12. Further, as admitted by both the parties, from March, 2019, defendants have not

paid the rent to the plaintiff, second defendant is the wife of the first defendant No.1 and 2, defendant No.2 has filed 0.S.No.82/2019 before the Principal, Family Court, Bengaluru, seeking injunction to restrain the Defendant No.1 in the present suit to restrain him from dispossessing her from matrimonial home. Even the defendants have admitted about the non payment of rent to plaintiff from March, 2019 and defendant No.2 continuing in possession of the suit schedule property and dispute between the defendant No.1 & 2 and consequently filing the petition by first defendant against the second defendant seeking separation. Further, plaintiffs contention is that non payment of rent from March, 2019 and non extension of lease period resulted for the present suit. Only question ·to be decided now is about the plaintiffs entitlement for directions to defendants to deposit monthly rent in the Court.

13. During arguments, learned counsel for the plaintiff has argued that when the plaintiffs title over the suit property and defendant's possession over the same as tenant is admitted, amount of rent is also admitted as

Rs. 37,000/- p.m. defendants No. 1 & 2 are liable to deposit the said amount in the Court, merely because there is dispute between the defendants No.1 & 2 in a martial relationship, they can not refuse to pay the rent to landlord, even the wife is also liable to pay the rent, In support of his said argument, he has relied upon the following Judgments;

1. 2005 (3) SCC 313 (B.P.

Achala Anand Vs. Appi Reddy & another.

2. 2016 SCC Online Delhi 1930 (Anukriti Dubey Vs. Partha Kansa Bank.)

3. 1982 SCC Online Bombay 152 (Chandrakanth Shankarrao Deshmukh Vs. Haribhau Tukaramji Kathane and Others)

4. 1994 SCC Online Delhi 342 (M/s. Jwala Pershad Ashok Ashok Kumar Chapra H.U.F and Anr. Vs - Nath tubes Pvt.Ltd., and Others.)

5. ILR 1997 (2) Delhi 100 (Sh.

Surjit Singh. Vs. Sh.H.NPahilaj (Deceased) Represented through his legal Representatives).

6. 2002 SCC Online Delhi 1280 (Hardeep Kumar Vs. Kelvin Industries Ltd.,)

7. 2008 (102) DRJ 234 (Sanjay Gupta - Vs- Catton Industries Exposition Ltd.,)

8. 2014 SCC Online Delhi 391 (Mahendra Sharma Vs Mr.Babu Lal and others).

9. 2015 SCC Online Bom 3188 (Selvel Publicity Consultants Pvt. Ltd., - Vs. Altaf-ul-Rahim, 2015.

14. On the other hand, counsel for the defendant N0.1 has argued that as already first defendant has vacated the suit schedule property, it is the second defendant who is in possession of the property and inspite having sufficient income from other properties, she failed to pay the rent or vacate the suit property, therefore first defendant is not liable for payment of rent. In support of his said argument, he has relied upon the following Judgment:

"FAO No. 386/2013 on the file of Hon'ble High Court of Delhi."

15. Counsel for the defendant No.2 has argued that, it is the defendant No.1 liable to pay rent and defendant No.2 being wife of the defendant No.1 and house wife, she has no obligation to pay rent.

16. On the perusal of the pleadings, documents and arguments of counsel for both the parties, it appears to me that there is no dispute about ownership and tenancy and also about the quantum of monthly rent. As can be seen from the Leave and Licence Agreement dated: 07.04.2018, if appears clearly that first defendant had agreed to pay monthly rent of Rs. 37, 000/- from 01.04.2018 to 28.02.2019, which goes to show that as agreed by the parties to the suit in the month of February, 2019, first defendant has paid rent of Rs. 37,000/- p.m.

17. With regard to liability of the defendants No.1 & 2 to pay the rent is concerned , though the first defendant has contended that already he has vacated the suit premises, since the first defendant has obtained the suit property for residence of himself, his

wife and children, if he wants to vacate the suit premises, he has to make arrangement for residence of his family members, take out of ht e furniture and his belongings out of the suit property and hand over the key to the plaintiff, then only it can be said that the first defendant has vacated the suit premises. Unless and until the defendant No.2 continues residing in the suit property , first defendant's liability to pay the rent continues to exists.

18. With regard to second defendant's liability to pay the rent is concerned, as admittedly second defendant being the wife the first defendant came in possession of the suit property as tenant along with her husband and now she continued to reside in the said property, hence as held by Hon'ble Supreme court in Judgment reported in 2005 (3) SCC 313, defendant No. 2 being the wife the defendant No,1 this being the suit for eviction of the tenant, tenancy rights and rights of occupation of defendant No.2 thereunder in are the same manner in which tenant i.e., husband could have done, but certainly would not bee on a footing higher or larger than that. Further, as

held by Hon'ble High Court of Bombay in 1982 SCC Online 152 (Chandrakanth Shankarrao Deshmuch Vs. Haribabu Tukaramji Kathane and ors.) In a suit by landlord against tenant for delivery of possession During pregnancy of such suit Court has jurisdiction to make an order requiring tenant to deposit or pay rent due or becoming due from him to the landlord called either compensation for use and occupation or rent depending upon whether tenancy is or is not terminated. Therefore here in the present suit, last paid rent was Rs. 37,000/- from March, 2019 till the disposal of the present suit, therefore, it is decided to allot the application filed by the plaintiff and direct the defendants No. 1 & 2 to pay compensation of Rs. 37, 000/- p.m. from March, 2019 till disposal of the suit in favour of landlord i.e., plaintiff or to deposit the same in the Court. Hence point No. 1 to 3 are answered as above."

9. Upon re-appreciation and re-valuation, I am of the

considered opinion that there is no illegality or infirmity in the

order passed by the trial Court warranting interference by this

Court in the present appeal.

10. Under these circumstances, I pass the following:

ORDER

i) Appeal is dismissed.

ii) The impugned order dated impugned order

dated 20.11.2020 in O.S.No.665/2020

passed by the VIII Additional City Civil and

Sessions Judge, Bengaluru impugned

order dated 20.11.2020 passed by the VIII

Additional City Civil and Sessions Judge,

Bengaluru is hereby affirmed.

iii) It is further made clear that nature and

character of the document dated

07.04.2018 is kept open/left open to be

decided by the trial court at the time of final

disposal of the suit.

iv) The trial court is directed to dispose of the

suit as expeditiously as possible and

preferably within a period of 6 months from

the date of receipt of copy of this order

without being influenced by the

observations and findings recorded by the

trial court in the impugned order.

Sd/-

JUDGE

Mds.