Karnataka High Court

Mohammed Bhadruddin vs Smt. Sasikala on 22 February, 2022

Bench: R. Nataraj

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE R.NATARAJ

 HOUSE RENT REVISION PETITION NO.35 OF 2019

BETWEEN:

MOHAMMED BHADRUDDIN
S/O LATE MOHAMMED RIYAZUDDIN,
AGED ABOUT 65 YEARS,
R/AT NO.14, I CROSS,
P AND T LAYOUT, BSA ROAD,
PILLANA GARDEN III STAGE,
BENGALURU-560045
ALSO AT-
CITIZEN CHICKEN CENTRE,
NO.792, 2ND CROSS,
POOJAPPA LAYOUT,
KAMMANHALLI MAIN ROAD,
RAMASWAMYPALYA,
BENGALURU-560033
                                         ...PETITIONER
(BY SRI. MANIVANNAN G., ADVOCATE)

AND:

SMT. SASIKALA
W/O MR.ILAVENDEN P,
AGED ABOUT 61 YEARS,
R/AT FLAT NO.309,
DS MAX-SILVER NEST APARTMENT
VIDYARNAYAPURA POST,
BENGALURU-560097.
ALSO AT-
HOUSE NO 792, 2ND CROSS
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POOJAPPA LAYOUT,
KAMMANAHALLI MAIN ROAD,
RAMASWAMYPALYA,
BENGALURU-560033
                                            ...RESPONDENT

(BY SRI. S.M.SREERAMA REDDY, ADVOCATE FOR C/R)

      THIS HRRP IS FILED UNDER SECTION 46 OF KARNATAKA
RENT ACT, AGAINST THE ORDER DATED 25.09.2019 PASSED IN
HRC NO.80/2018 ON THE FILE OF THE CHIEF JUDGE, COURT OF
SMALL CAUSES, BANGALORE, ALLOWING THE PETITION FILED
UNDER SECTION 27(2) (r) OF KARNATAKA RENT ACT, 1999 FOR
EVICTION AND ETC.

      THIS HRRP HAVING BEEN HEARD AND RESERVED ON
23.11.2021 COMING ON FOR 'PRONOUNCEMENT OF ORDERS'
THIS DAY, THE COURT PASSED THE FOLLOWING:

                         ORDER

This House Rent Revision Petition by the tenant is

filed under Section 46 of Karnataka Rent Act, 1999

(henceforth referred as 'the Act'), challenging an Order

dated 25.09.2019 passed by the Chief Judge, Court of

Small Causes, Bangalore (henceforth referred to as 'Trial

Court') in HRC No.80/2018, by which the petitioner was

ordered to be evicted from the petition premises for the

bona fide use and occupation of the respondent.

2. A petition under Section 27(2)(r) of the Act

was filed by the respondent herein contending that the

petitioner herein was a tenant in respect of the commercial

shop premises measuring East to West 12 feet and North

to South 10 feet on a monthly rent of `3,000/- in terms of

a lease agreement dated 01.06.2007. It was claimed that

the petitioner had stopped paying the monthly rent from

June 2013 by which time, the monthly rent was to be

`6,000/- after enhancing it as per the agreement. The

plaintiff had earlier filed a suit for ejectment in

O.S.No.8619/2001 which was returned for proper

presentation before the proper forum. The respondent

claimed that the petitioner had entered to an agreement of

sale dated 26.11.2012 to purchase the A schedule

property, but failed to perform his part of the contract. The

respondent, therefore, cancelled the agreement of sale and

forfeited the advance sale consideration. The respondent

alleged that the petitioner had carried out alteration in the

B schedule property without her consent and without

paying the monthly rent. The respondent claimed that she

and her husband were senior citizens and therefore were

in need of the suit property for their immediate need, use

and occupation. Hence, they issued a notice dated

26.10.2018 calling upon the petitioner to quit and deliver

vacant possession. Though the petitioner received it on

27.10.2018, he did not comply with the demand.

Therefore, they sought for eviction of the petitioner.

3. The petitioner opposed the eviction petition

and disputed the jural relationship of land lord and tenant.

On the contrary, he claimed that he entered into the suit

property as a tenant and later he entered into agreement

of sale with the respondent to purchase the suit property

and paid advance of `5,00,000/-. Therefore, he claimed

that his status changed from being a tenant to an

agreement holder in possession. Thus, he claimed that he

was not a defaulter in the payment of rent. He also denied

that the agreement of sale was cancelled. Further, he

alleged that he had paid a sum of `30,00,000/- for the

purchase of the petition property. He also denied the bona

fide need of the respondent and alleged that she had other

properties where she could relocate. He claimed that he

was always willing to perform his part of the contract and

it was the respondent who was delaying.

4. Based on these rival contentions, the case was

set down for trial.

5. The son of the respondent was examined as

PW1, who marked documents as Exs.P1 to P10. The

petitioner was not examined and he did not mark any

documents.

6. The Trial Court after considering the evidence

on record, held that the petitioner had admitted the

tenancy. It also held that the respondent had proved her

ownership of the suit property. It held that under the

agreement of sale dated 26.08.2012 the possession of the

property was to be delivered only after receipt of the

remaining consideration. Therefore, it held that the jural

relationship between the petitioner and respondent

continued as landlady and tenant and there was no change

of relationship. The Trial Court therefore, allowed the

petition and directed the petitioner to quit and deliver

vacant possession of the suit premises to the respondent.

7. Being aggrieved by the aforesaid order, the

present revision petition is filed.

8. The learned counsel for the petitioner submits

that the rate of rent was `6,000/- per month and

therefore, the petition for eviction under provisions of the

Rent Control Act was not maintainable. He also submitted

that the Trial Court failed to consider the rights created

under the agreement of sale dated 26.08.2012 and that

the petitioner had paid a sum of `30,00,000/- as advance

sale consideration and therefore, he contended that the

relationship of the landlady and tenant came to an end on

26.08.2012 when the agreement was executed. He also

submitted that due to his hospitalization and treatment at

Victoria hospital he was not able to defend the suit

properly and prays that he may be granted opportunity to

lead evidence in the matter. He also disputed the bona fide

need of the landlady to occupy the premises as he claimed

that the landlady had other premises which she could use

for her need.

9. On the contrary, the learned counsel for the

respondent submitted that the possession of the premises

was never handed over under the agreement of sale and

therefore, the relationship of landlady and tenant never

came to an end. He contended that if the petitioner

desired, he could have filed a suit for specific performance

of the agreement but until then he was in possession as a

tenant. He relied upon the Judgment of this Court in

P.GANGADHARA PATIL vs. MADHAVARAO M.K. [2015

(4) KCCR 3329]. He also contended that the petitioner

had not paid the agreed rent. He also did not challenge the

jurisdiction of the Trial Court to pass an order of eviction

and therefore, he cannot do so in the present revision

petition.

10. I have considered the submissions made by

the learned counsel for the parties.

11. It is evident from the statement of objections

filed by the petitioner before the Trial Court that he was

initially a tenant and thereafter entered into an agreement

to purchase the petition property. Though the petitioner

claimed that the relationship of landlady and tenant came

to an end after the execution of the sale agreement yet,

the petitioner did not produce the same before the Trial

Court. However, a copy available on record which is

though not marked, discloses that the possession of the

property was never delivered under the agreement of sale.

There is nothing on record to indicate that the petitioner

and the respondent surrendered the tenancy rights at the

time of entering into the agreement of sale. If he did, then

there must have been covenants to that effect in the

agreement of sale. Therefore, there can neither be an

express nor an implied surrender of lease by mere entering

into agreement of sale. In this regard it is profitable to

refer to a judgment of the Hon'ble Supreme Court in the

case of H.K.SHARMA vs. RAM LAL [2019(4) SCC 153]

wherein it was held:

"33. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of the TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.1993.

34. A fortiori, the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21(1)(a) of the U.P. Act and seek the appellant's eviction from the suit house after determining the tenancy in question."

12. If that be so, the petitioner continued as a

tenant in the petition premises. The contention that the

monthly rent was `6,000/- and therefore, the Trial Court

lacked jurisdiction to decide the case is raised for the first

time in the revision petition. It is now well settled that

objection regarding jurisdiction has to be raised at the

earliest point in time and if the petitioner had not raised

any objection before the Trial Court, he cannot do so now.

In so far as the bona fide need and occupation of the

petition premises, the petitioner was unable to rebut the

presumption of bona fide use and occupation under

Section 27(2)(r) of the Karnataka Rent Act, 1999 as he