Sri Datta Murthy vs Sri B R Prakash
2021 Latest Caselaw 3439 Kant

                             1          CRP NO.201 OF 2021




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7th DAY OF OCTOBER, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

               CRP NO.201 OF 2021 (SC)

BETWEEN:

SRI. DATTA MURTHY
S/O SRI. SANJEEVAIAH
AGED ABOUT 73 YEARS
NO.8, KANAKANAPALYA
9TH MAIN, 2ND BLOCK, JAYANAGAR
BENGALURU-560 011

AND ALSO IN OCCUPATION OF
SHOP NO.5 OD NO.650/1 NEW NO.1
4TH BLOCK, 10TH 'D' MAIN, JAYANAGAR
BENGALURU-560 011.
                                         ...PETITIONER
(BY SRI. SHANKARANARAYANA RAO.B.V, ADVOCATE-VC)

AND:

1.   SRI. B.R. PRAKASH
     S/O LATE B RAMA RAO
     AGED ABOUT 63 YEARS

2.   SMT. GEETHA PRAKASH
     W/O SRI. B.R. PRAKASH
     AGED ABOUT 60 YEARS

     BOTH 1 & 2 ARE RESIDING AT
     NO.1, 1ST MAIN ROAD, N.R. COLONY
     BENGALURU-560019

     BOTH 1 & 2 ARE REPRESENTED
                               2            CRP NO.201 OF 2021




     BY THEIR GPA HOLDER
     SRI. AMITH PRAKASH
     AGED ABOUT 28 YEARS
     S/O SRI. B.R. PRAKASH
     NO.1 IST MAIN ROAD N R COLONY
     BENGALURU-560 010

3.   MR. AHMED ALIAS GANESHA
     AGED ABOUT 25 YEARS
     S/O NOT KNOWN TO THE PETITIONER
     SHOP NO.3 OLD NO.650/1 NEW NO.1
     4TH BLOCK 10TH D MAIN JAYANAGAR
     BENGALURU-560 011

                                             ... RESPONDENTS

(BY SRI. C.V. SRINIVASA, ADVOCATE FOR R1 AND R2-PH)

     THIS CRP IS FILED UNDER SECTION 18 OF THE
KARNATAKA SMALL CAUSES COURT ACT, 1964, AGAINST THE
JUDGMENT DATED 20.07.2021 PASSED IN SC.NO.585/2019 ON
THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE,
BENGALURU, DECREEING THE SUIT FOR EJECTMENT.

     THIS CRP COMING ON FOR orders AND HAVING BEEN
RESERVED FOR ORDERS ON 31.08.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                              ORDER

1. The Petitioner is before this Court seeking for the

following reliefs:

i. Call for the entire records in S.C.No.585/2019 on the file of the XXI Additional Small Causes & Additional MACT., Bengaluru (SCCH-23)

ii. Set aside the Order/Decree dated 20.07.2021 in S.C. No.585/2019, passed by the XXI 3 CRP NO.201 OF 2021

Additional Small Causes & Additional MACT., Bengaluru (SCCH-23).

iii. Grant such other and further relief/s which may be deemed fit and appropriate in the facts and circumstance of the case and in the interest of justice and equity.

2. S.C. No.585/2019 filed by the respondent herein

before the XXI Addl. Small Causes and Addl. MACT

(SCH-23) in respect of shop bearing No.3, which is

part of Old No.650/1, New No.1, IV Block, 10th 'D'

Main, Jayanagar, Bengaluru- 560 011 seeking for

eviction of the Petitioner.

3. The Petitioner appeared before the trial Court and

filed his written statement contending that there is

no jural relationship between the petitioner and

respondents No.2 and 3 to give a cause of action to

institute the suit. In response to the legal notice

dated 25.01.2019 issued by respondents No.1 and 2,

the Petitioner had called upon respondents No.1 and

2 to furnish authenticated copies of the documents

relied upon in the said legal notice. Instead of 4 CRP NO.201 OF 2021

complying with the same, respondents No.1 and 2

advised the Petitioner to obtain the certified copies of

the said documents. It is contended that there is no

attornment of tenancy in any manner required.

Though it is contended that respondents No.1 and 2

have become owners in the year 2005, they could

not have issued the legal notice after 14 years, i.e.

on 25.1.2019, and that Petitioner is in default of

payment of rentals. It was further denied that the

petition had sub-let a portion of the shop on daily

rental of Rs.300/- per day. It is contended that the

Petitioner could not lead his evidence in the matter

due to his ill health and for other reasons beyond his

control.

4. Accepting the evidence, both oral and documentary

produced by respondents No.1 and 2, the trial Court

decreed the suit directing the Petitioner to handover

the suit schedule property in favour of respondents

No.1 and 2 within one month from the date of the

order and as also make payment of arrears of rent of 5 CRP NO.201 OF 2021

Rs.16,200/-. Since defendant No.2 had no

independent right, it was held that he had no right to

squat over the suit schedule property and his

tenancy was also duly terminated. The trial Court

also directed an inquiry into mesne profits under

Order 20 Rule 12 of CPC. It is aggrieved by the

same that the Petitioner is before this Court.

5. Sri.B.V.Shankarnarayana Rao, learned counsel for

the Petitioner, would contend that:

5.1. The impugned Judgment is opposed to

principles of natural justice. The Court has

only relied upon the oral and documentary

evidence of respondents No.1 and 2; the

Petitioner was not provided with an adequate

opportunity. There is no finding recorded by

the trial court as regards the validity and

veracity of the said documents.

                               6                 CRP NO.201 OF 2021




5.2.   The   trial     Court       has    not    considered     the

objection of the Petitioner herein that there

was no jural relationship between the

petitioner and respondents No.1 and 2 to give

rise to a cause of action to institute the suit.

5.3. There is no attornment of tenancy, and that

the legal notice issued after a period of 14

years from the date on which respondents

No.1 and 2 became owners is not permissible.

5.4. The trial court ought to have appreciated the

comparative hardship inasmuch as the

Petitioner if were to be evicted; the Petitioner

would be thrown out of the premises causing

tremendous inconvenience to the Petitioner

and on this basis, he submits that the

Judgment and decree passed by the trial Court

is required to be set aside.

7 CRP NO.201 OF 2021

6. Per contra, Sri.C.V.Srinivas, who has entered an

appearance for the respondents by filing caveat, has

filed an objection to the petition, and relying on the

same, he submits that

6.1. The Judgment and decree impugned in the

present proceedings is proper and correct and

does not require any interference at the hands

of this Court.

6.2. Vacant site bearing No.650 situated at IV

block, 10th Main, Jayanagar, Bangalore had

been allotted to Sathyanarayana on

24.09.1959, who agreed to sell the same to

Sri.G.S.Ramaswamy and had executed a sale

deed on 22.04.1981 in favour of

Sri.S.G.Ramaswamy who had constructed

seven shops in the year 1973, which were

assessed to municipal taxes which were paid

by said G.S.Ramaswamy.

                            8               CRP NO.201 OF 2021




6.3.   One      Duttamurthy              had         approached

       G.S.Ramaswamy           to    let out   one     shop   on

       lease/rent    for   his      business   activities,    and

       hence,       G.S.Ramaswamy had executed an

agreement in respect of shop No.3 out of the

said seven shops. G.S.Ramaswamy expired on

11.06.1988, leaving behind nine legal heirs.

Said Duttamurthy became the tenant under

the nine legal heirs of G.S.Ramaswamy.

6.4. Nine legal representatives of G.S.Ramaswamy

sold the property in favour of B.R.Prakash,

B.R.Krishna Prasad, Geetha Prakash, Smitha

Krishna Prasad on 26.11.1992, and a notice

came to be issued attorning the tenancy on

26.11.1992. Consequently, Duttamurthy

became a tenant under the aforesaid persons

who released their shares in favour of

respondents No.1 and 2 through a registered

release deed dated 19.04.2005. Consequently, 9 CRP NO.201 OF 2021

the Petitioner became a tenant only under

respondents No.1 and 2. The tenancy having

already been attorned in favour of nine

persons, a mere release would not amount to

creating of a fresh tenancy inasmuch as it is by

way of release complete rights in the property

vested with respondents No.1 and 2.

6.5. Recognizing and said release of ownership in

favour of respondents No.1 and 2, the

Petitioner continued to make payments rentals

until the year 2001 when he became a

defaulter, and he stopped making payment of

the rentals despite making use of the aforesaid

shop.

6.6. It is in this background that after persistent

follow-up not yielding any result that the legal

notice 25.01.2019 was issued, receipt of which

is not disputed by the Petitioner.

10 CRP NO.201 OF 2021

6.7. By virtue of the said notice, tenancy came to

be terminated, and as such, the Petitioner was

bound to surrender the vacant physical

possession of the scheduled premises on the

forenoon of 14.02.2019, which not having

been done S.C.No.585/2019 was filed which was

contested by the Petitioner.

6.8. The Petitioner having filed objection and

contesting the matter, as also cross-examining

respondents No.1 and 2, the Petitioner did not

choose to lead evidence but chose to submit

final arguments. After hearing the parties, the

impugned order has been passed. Thus, he

submits that there is no violation of principles

of natural justice as sought to be contended by

the Petitioner inasmuch as the proceedings

were conducted over a period of 2 years 3

months during which time, the Petitioner could

have always sought for recalling of the order 11 CRP NO.201 OF 2021

and leading the evidence having chosen not to

do so, the Petitioner cannot now claim any

benefit of his own wrongs.

6.9. The trial Court has appreciated all evidence

which have been produced by respondents

No.1 and 2 in a proper and correct perspective.

The tenancy having been admitted and rentals

having been paid, the Petitioner has taken a

are not owners of the property, and a tenant

cannot be heard or allowed to take up such a

contention.

6.10. After the decree was passed, the Petitioner

filed Misc. Petition No.11/2020 before the trial

Court under Order 9 rule 13 of CPC, which

came to be dismissed by the trial Court by a

well-reasoned order dated 3.04.2021,

thereafter respondents No.1 and 2 have filed 12 CRP NO.201 OF 2021

Execution Petition in Ex.Petition No.473/2020

seeking for issuance of a delivery warrant.

6.11. When such delivery warrant was sought to be

executed on 7.4.2021, the henchman

threatened the court official and GPA holder of

respondents No.1 and 2. Hence delivery

warrant was returned with a shara seeking for

police protection. Therefore, a further

application had been filed by respondents No.1

and 2 seeking for such police protection.

6.12. It is in that background that the Petitioner

had filed a caveat petition in Caveat Petition

No.4884/2021 in the CRP jurisdiction, had filed

MFA No.1827/2021. The said MFA came to be

dismissed and thereafter, the present CRP

No.201/2021 has been filed. All the above

facts establishes that the petitioner-tenant is

seeking to abuse the process of this Court and 13 CRP NO.201 OF 2021

therefore, there is no equitable consideration

required to be given to the Petitioner and this

Court ought to dismiss the above petition there

being no ground which has been made out in

the said matter.

6.13. In this regard, Sri.C.V.Srinivasa, learned

counsel for the Petitioner, relies upon the

following decisions:

6.14. Debasish Sinha -v- Sreejib Sinha &

others- [Special Leave to Appeal (C)

No.4148/2020, more particularly the

observations in paragraph 2 is reproduced

hereunder for easy reference:

"2. We are not satisfied with merely dismissing the special leave petition as some signal must be sent to discourage this nature of litigation. We , thus while dismissing the SLP impose the following directions :

1) The execution be satisfied within a period of 15 days from this order being placed before the trial Court.

14 CRP NO.201 OF 2021

2) Damages be computed by the executing Court at the market rates against the Petitioner from the date of filing the objection i.e. 26.03.2010 till possession is taken and this process be completed within a period of three months.

3) The Petitioner for wastage of judicial time and for dragging on the proceedings be burdened with costs of Rs. 1 lakh to be paid to the respondent within the same period of three months.

The special leave petition is dismissed in terms aforesaid."

6.15. The decision of the Hon'ble Apex Court in Civil

Appeal No. 7988/2004 between M/s Atma

Ram Properties -v- Federal Motors Pvt.

Ltd., wherein it has been held thus:

"Ordinarily this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. Landlord- tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation 15 CRP NO.201 OF 2021

and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not loose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant."

6.16. The decision of the Apex Court in the case of

Anar Devi (Smt.) -v- Nathu Ram [(1994) 4

SCC 250] more particularly paragraph 13

thereof which is reproduced hereunder for easy

reference :

13. This Court in Sri Rain Pasricha v. Jagannath AIR (1976) SC 2355, has also ruled that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd3, when had occasion to examine the contention based oil the words 'at the beginning of the tenancy' in Section 1 16 of the Evidence Act, pronounced that they do not give a round for a person already in possession of land becoming tenant of another, to 16 CRP NO.201 OF 2021

contend that there is no estoppel against his denying his subsequent lessor's title. Ever since, the accepted position is that Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground.

6.17. On the above grounds, he submits that the

Civil Revision Petition is required to be

dismissed.

7. At this stage, Sri.B.V.Shankarnarayana Rao, learned

counsel for the Petitioner, submits that if an

adequate time period is granted to the Petitioner, the

Petitioner would vacate the premises. He submits

that the Petitioner has been in possession for more

than 40 years, and therefore, he seeks three years

time to vacate the premises.

                                 17              CRP NO.201 OF 2021




8.   Sri.C.V.Srinivass,        learned     counsel        for    the

     respondents would submit that:

8.1. The Petitioner has acted in a malafide manner,

and that the Petitioner has even questioned

the ownership of the respondents.

8.2. The Petitioner has continued to delay the

proceedings on one ground or the other. The

delay being occasioned by the Petitioner only

to gain the benefit of retention of the

premises, the relationship between the

Petitioner and respondents have become very

strained, there is no trust between the parties.

Respondents No.1 and 2 owners do not wish to

grant any further extension of time, and as

such, on instructions, he submits that this

Court may proceed to pass necessary orders.

9. Heard Sri.Shankaranarayana Rao.B.V, learned

counsel for the Petitioner and Sri.C.V.Srinivasa, 18 CRP NO.201 OF 2021

learned counsel for respondents No.1 and 2.

Perused papers.

10. A short question that arises for consideration of this

Court is, whether the Petitioner has made out any

case for interference with the reasoned order passed

by a trial Court in S.C.No.585/2019 dated

20.11.2021?

11. The grounds urged by the Petitioner is that the

Petitioner was not afforded a reasonable opportunity

to contest the matter and therefore, there is a

violation of principles of natural justice and that

respondents are not the owners of the properties,

and the jural relationship has been questioned.

12. As regards the first contention urged by

Sri.Shankarnarayan Rao, it is clear that the

Petitioner had filed his objections in the proceedings

and had also cross-examined PW-1. Thereafter the

Petitioner chose not to lead his evidence or produce 19 CRP NO.201 OF 2021

any documents. Thus, the Petitioner chose to rely

upon and restrict himself to the examination-in-chief

and cross-examination of PW-1. It is the risk that

the Petitioner had chosen to take. It is only after the

Petitioner failed in the said risk and decree of

eviction had been passed that the Petitioner chose to

file an application under Order 9 Rule 13 of CPC to

recall the Judgment and permit the Petitioner to lead

evidence which also came to be refused on the

ground that the Petitioner had not made out any

particular ground for allowing the same inasmuch as

the Petitioner having cross-examined PW-1 and

thereafter the matter being adjourned on several

dates and finally the matter being heard and

Judgment passed, the Petitioner having addressed

his arguments, it could not be said that there was

no opportunity which was afforded to him.

13. I am in agreement with the said reasoning by the

trial Court inasmuch as the Petitioner had enough 20 CRP NO.201 OF 2021

and more opportunity to contest the matter. A

litigant who chooses not to lead evidence and goes

on with submitting his arguments cannot at a later

point of time, having failed in such endeavor,

contend that principles of natural justice have been

violated. If at all the Petitioner wanted to lead his

evidence, he could have done so at any point of time

after the cross-examination of PW-1 was completed

and before the arguments were taken up. This

having not been done and the matter being

adjourned for over two years and the Petitioner has

derived benefits of such proceedings inasmuch as

the Petitioner has continued to be in occupation of

the premises by delaying the matter.

14. A perusal of the order sheet in S.C.No.585/2018

indicates that respondents No.1 and 2 filed their

evidence affidavit on 25.10.2019, thereafter the

evidence was led, and documents marked on

11.11.2019 when there is a dispute about a 21 CRP NO.201 OF 2021

particular document which was objected to by

defendant No.1, as such arguments were heard on

the same and orders passed allowing respondents

No.1 and 2 to mark the document viz., the

photocopy of the letter of attornment, the same was

closed their side.

15. The matter was posted for cross-examination when

numerous adjournments were taken; in fact even

cost was imposed, thereafter the Petitioner sought

for time stating that they would seek to arrive at a

settlement in the matter which settlement was not

arrived at, again the matter came to be adjourned

for cross-examination of PW-1 for which purpose, in

total 15 adjournments were granted and thereafter

plaintiffs' evidence was closed and the matter posted

to defendant's evidence.

16. It is at this stage, on 5.2.2021, the Petitioner filed an

application for recall of the witness, which came to 22 CRP NO.201 OF 2021

be allowed on a cost of Rs.300/- and subsequently,

the witness was cross-examined on 15.02.2021.

17. On 1.03.2021, the Petitioner sought for time to lead

evidence, and the matter came to be adjourned on

three occasions at the said stage, but no evidence

was lead, the matter was posted for arguments, on

3.4.2021 the learned counsel for Respondents

addressed his arguments, the Petitioner sought for

adjournment and on 9.4.2021 the Petitioner

addressed his arguments and submitted certain

decisions he sought to rely upon when the matter

was adjourned on two occasions for further

arguments. Arguments were finally heard and

Judgment pronounced.

18. Thus, it cannot be said that the Petitioner has not

been given adequate opportunity; in fact the

Petitioner has before this Court made false

submission as regards violation of principles of

natural justice inasmuch as it is the Petitioner who 23 CRP NO.201 OF 2021

has sought for numerous adjournments and

continues to squat on the property.

19. In between the Petitioner had also sought time to

arrive at an amicable resolution and or settlement of

the matter, thereby indicating that the Petitioner

himself had recognized the respondents as owners of

the property and he wanted to come to an amicable

resolution.

20. It is in the above background, the second contention

of the Petitioner cannot now be accepted that

respondents No.1 and 2 are not the owners of the

property and or that there is no jural relationship

between the petitioner and respondents No.1 and 2.

The letter of attornment which was objected to be

marked and subsequently which came to be marked

as Ex.P50 would also establish such an attornment,

and now the tenant cannot contend that owner is not

the owner and that there is no jural relationship.

This kind of contention is completely malafide and so 24 CRP NO.201 OF 2021

taken up only for the purpose of delaying the matter

and for no further reason.

21. In view of the same, I find no reason to interfere

with the well-reasoned order passed by the trial

Court, the above Civil Revision Petition is dismissed.

However, time period of one month granted by the

trial Court to vacate the premises is extended by

another period of one month from today, the order

having been pronounced in the presence of the

counsel for Petitioner, the period of 30 days would

commence from today.

22. The Petitioner is directed to hand over the vacant

possession of the subject premises by 7.11.2021.

As directed by the trial Court, an inquiry into mesne

profits shall be held in accordance with law.

23. There being completely malafide stand taken and

false submissions having been made on facts costs

of Rs. 10,000 are imposed on the Petitioner to be 25 CRP NO.201 OF 2021

paid to the Respondents withing 15 days from today,

i.e., on or before 21.10.2021.

24. The Civil Revision Petition is dismissed.

Sd/-

JUDGE

ln