Karnataka High Court
Sri.Prabhat S/O Balakrishana Rai vs Sri.Vilas S/O Prashuram Anchi on 3 February, 2022
Bench: R Natarajpresided Byrnj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
MFA NO.104199/2019 (CPC)
BETWEEN:
Shri Prabhat S/o. Balakrishna Rai,
Age 49 years, Occ: Proprietor,
Atithi Bar and Restaurant,
Opp: Mali Petrol Pump, Vijayapur Road,
Jamkhandi, Dist.: Bagalkote-587 103.
... Appellant
(By Shri M.T. Bangi, advocate)
AND:
1. Shri Vilas S/o. Prashuram Anchi,
Age 63 years, Occ: Nil,
H.No.5080/23, Girish Nagar,
Jamkhandi, Dist.: Bagalkote-587 102.
2. Smt. Akkatai W/o. Parashuram Anchi,
Age 80 years, Occ: Household,
R/at H.No.5080/23, Girish Nagar,
Jamkhandi, Dist.: Bagalkote-587 102.
... Respondents
(By Shri Nabirasool Mamadapur, Shri Shrinivasreddy M.
& Shri Shahanawaz M. Advocate for R1 & R2)
This MFA is filed under Order 43 Rule 1(r) of the Code of Civil
Procedure, against the order dated 25.09.2019, passed in O.S.
No.128/2017 on the file of the Additional Senior Civil Judge,
Jamkhandi, partly allowing I.A. No.1 filed under Order 39 rule 10 of
CPC.
This appeal coming on for Orders regarding Hearing on
Interlocutory Application, this day, the Court delivered the following:
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JUDGMENT
This appeal is filed by the defendant in O.S.
No.128/2017 challenging the order dated 25.09.2019,
passed by the Additional Senior Civil Judge at Jamkhandi,
by which it directed the defendant to deposit a sum of
Rs.18,08,154/- towards arrears of rent for the period
October 2016 till 25th September 2019.
2. The respondents filed a suit for ejectment of the
appellant from the suit premises. They claimed that the
appellant was a tenant in terms of a lease agreement dated
01.04.2008 that was executed by the respondent No.2 and
two others in favour of the appellant and thereafter was
substituted by another lease agreement dated 01.07.2015
entered into between the plaintiffs and defendant. The
respondents claimed that the appellant is running a Bar and
Restaurant in the suit property. They claimed that the
appellant had agreed to pay monthly rent. However, due to
certain disputes between the respondents and other family
members, the appellant took advantage and was not
vacating the premises and therefore the plaintiffs were
constrained to terminate the tenancy and called upon the
appellant to quit and deliver the vacant possession.
3. The appellant did not dispute the fact that he
was a tenant in the suit premises. He claimed that the
brother of the plaintiff No.1 and the son of the plaintiff No.2
had already filed a suit in O.S. No.4/2007 for partition and
separate possession of his share. He contended that in the
said suit, it was claimed that a gift deed executed by
respondent No.1 in favour of respondent No.2 in respect of
the suit property was null and void. He therefore contended
that the present suit for ejectment was not tenable.
4. The respondent Nos.1 and 2 filed an application
under Order XXXIX Rule 10 of the Code of Civil Procedure
for a direction to the appellant to deposit the arrears of rent
of Rs.18,08,154/-. This was opposed by the appellant, who
contended that he had paid certain amount of rent to the
erstwhile partners and that he was entitled for a set off of
such rent lawfully paid. However, the appellant did not
produce any documents to show that he had paid the rent.
5. Be that as it may, the Trial Court after
considering the mutual claim of the parties, allowed the
application and directed the appellant herein to deposit a
sum of Rs.18,08,154/-.
6. Being aggrieved by the aforesaid order, the
present appeal is filed.
7. Learned counsel for the appellant submitted that
since he had paid the rent in respect of the suit premises to
the erstwhile partners, he is entitled for suitable deductions
and unless there was a proper adjudication of the arrears of
rent, the trial Court must not have directed the appellant to
deposit the arrears of rent. He further submitted that there
was a dispute pending between the plaintiff and the brother
of the plaintiff No.1 and therefore the suit for ejectment was
not maintainable without arraying the brother of plaintiff
No.1. He also submitted that any payment of rent to the
respondents would expose the appellant to further claim by
the brother of respondent No.1.
8. Learned counsel for the respondents on the other
hand contended that since the appellant had admitted that
he was a tenant in the premises and there was no dispute
regarding the rate of rent, the appellant was bound to
deposit the arrears of rent as quantified by the Trial Court.
9. I have considered the submissions made by the
learned counsel for the parties.
10. It is undisputed that the appellant was a tenant,
who had agreed to pay rent at the rate of Rs.95,166/-. The
appellant cannot exploit a litigation pending between the
respondents and their family members to deny or deprive
the benefit of rent in respect of the suit premises. However,
if the appellant is able to demonstrate that he had paid the
rent to the erstwhile partners legitimately, he is entitled to
claim set off. But until there is affirmative evidence of that
fact, the appellant is bound to deposit the arrears of rent.
11. In that view of the matter, the order passed by
the Trial Court does not warrant any interference. Hence,
this appeal is dismissed. The appellant is directed to deposit
the arrears of rent after deducting the amounts deposited
before this Court within three months from today and also
continue to deposit the monthly rent accrued during the
pendency of the suit. The Trial Court shall not release the
amount so deposited to the plaintiffs, but shall deposit it in
an interest earning Fixed Deposit. However, if the
respondents are able to convince the Court in O.S.
No.4/2017, they may obtain appropriate orders from the
said Court for release of the amount of rent deposited.
Sd/-
JUDGE
Vnp*
