Bhojaraj S/O Narayan Basawa vs Suresh S/O Amanna Raikar
2022 Latest Caselaw 3276 Kant

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              IN THE HIGH COURT OF KARNATAKA
                                                        R
                      DHARWAD BENCH

          DATED THIS THE 25TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    C.R.P.NO.100034/2021
BETWEEN:
1.     BHOJARAJ S/O. NARAYAN BASAWA,
       AGE:46 YEARS, OCC: BUSINESS,
       R/O. PLOT NO.125-126,
       BILAGI LAYOUT, KESHWAPUR,
       HUBBALLI-580023.

2.     RAJKUMAR S/O. NARAYAN BASAWA
       AGE:46 YEARS, OCC: BUSINESS,
       R/O. PLOT NO.125-126,
       BILAGI LAYOUT, KESHWAPUR,
       HUBBALLI-580023.
                                             ...PETITIONERS
(BY SRI.D.M.KULKARNI, ADVOCATE)

AND
SURESH S/O. AMANNA RAIKAR,
AGE: 64 YEARS, OCC: BUSINESS,
R/O. NEAR CBT, DHARMADAS CHAWL,
BHANDIWADBASE, HUBBALI
                                            ... RESPONDENT
(BY SRI. SUNIL S DESAI, ADV.,)

       THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.04.2021
PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND
J.M.F.C., HUBBALLI IN S.C.NO.68/2019 AND ALLOW THE PETITION
AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQUITY.
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      THIS CRP HAVING BEEN RESERVED ON 21.01.2022 COMING
ON FOR PRONOUNCEMENT OF ORDER, THIS COURT PASSED THE
FOLLOWING:
                            ORDER

The captioned civil revision petition is filed by the

plaintiffs feeling aggrieved by the dismissal of suit by Small

Cause Court.

2. Facts leading to the case are as under:

3. The present petitioners, who are plaintiffs, filed

ejectment suit seeking relief of possession and also mesne

profits @ Rs.5,000/- per month from the date of suit till

respondent-defendant hands over actual possession of the

suit property to the plaintiffs. The petitioners claim that they

are the absolute owners of a commercial shop with red tile

roofed building in a ground floor and first floor bearing CTS

No.3560/1B of CTS Ward No.1, measuring north-south 11

feet and east-west 17 feet with extra gallery. The petitioners

claim that they are owners of suit schedule property having

purchased the same along with adjacent properties from its

previous owner viz., Smt. Sushila @ Tukkubai W/o.

Vishwanathsa Chavan and others through a registered sale

deed dated 07.07.2017. The petitioners also contended that

the purchase was communicated to the defendant and on

account of attornment, respondent-defendant was directed to

pay monthly rent of Rs.145/- per month to the petitioners.

The petitioners-plaintiffs pleaded in the plaint that the

respondent-defendant has failed to pay the rent regularly. It

was also contended that since the property purchased by the

petitioners is in dilapidated condition and unfit for

occupation, the petitioners were issued with a legal notice

from HDMC authorities to handover the possession and were

directed to vacate the occupants and co-operate for

demolition of the building. The petitioners also claim that the

tenancy of the respondent-defendant came to an end by

afflux of time and in this background, the petitioners

requested the respondent-defendant to pay the rents and

handover the vacant possession. However respondent-

defendant has neither paid the arrears of rent nor has he

vacated the premises. Hence, petitioners issued notice to the

respondent-defendant to vacate the shop premises. Inspite

of issuance of notice, the respondent-defendant did not

vacate the shop premises and therefore, left with no other

alternative, the petitioners filed a suit before the Small Cause

Court seeking possession of the property in question.

4. The respondent-defendant, on receipt of

summons, appeared before the Small Cause Court and

stoutly denied the entire averments made in the plaint by

filing a written statement. The respondent-defendant has

disputed the relationship of landlord and tenant between him

and the petitioners. He also disputed the ownership of

petitioners over the suit schedule premises. The respondent-

defendant has also contended that unless the petitioners

establish their title over the suit property, the present suit for

possession is not maintainable. The respondent-defendant

also claims that the termination of tenancy is illegal. The

respondent-defendant also seriously disputed the attornment

of tenancy as alleged by the petitioners.

5. In order to substantiate their claim, the petitioner

No.2 examined himself as PW1 and relied on documents vide

Ex.P1 to Ex.P5. By way of rebuttal evidence, respondent-

defendant examined himself as DW1 and relied on

documentary evidence vide Ex.D1 to Ex.D3. The Small Cause

Court, on appreciation of oral and documentary evidence,

has answered point No.1 in negative by holding that the

petitioners-plaintiffs have failed to prove that there is a

relationship of landlord and tenant between the petitioners

and respondent-defendant. The Small Cause Court has

recorded a finding that the petitioners have failed to establish

their title over the suit property and therefore, has come to

the conclusion that point No.2 and 3 would not survive for

consideration. The Small Cause Court having examined the

material on record was of the view that the burden was on

the petitioners to prove their title over the suit property. The

Small Cause Court was of the view that the lease deed

produced by the petitioners at Ex.P2 would not establish the

title of the petitioners over the suit property. The Court

below was of the view that to establish their title, the

petitioners were required to produce title documents and the

title cannot be ascertained only by examining the property

register card vide Ex.P1 and the lease deed vide Ex.P2.

6. The learned counsel for petitioners has filed an

application before this Court under Section 151 read with

Order XLI Rule 27 of CPC and sought leave of this Court to

produce certified copy of the sale deed dated 07.07.2017

executed by erstwhile owners of the suit property. Placing

reliance on additional evidence, learned counsel for

petitioners would submit to this Court that the property was

originally owned by Shardabai W/o. Krishnasa Dharmdas and

she gifted the suit property in favour of Smt. Sushila @

Tukkubai W/o. Vishwanathsa Chavan, Rajeev @ Rajesh

S/o.Vishwanathsa Chavan, Sanjeev @ Sanju S/o.

Vishwanathsa Chavan, Manoj S/o. Vishwanathsa Chavan and

Laxmikanth S/o.Vishwanathsa Chavan who in turn have sold

the suit property to the present petitioners-plaintiffs under a

registered sale deed dated 07.07.2017. Placing reliance on

additional evidence, the learned counsel appearing for

petitioners would submit to this Court that the additional

evidence is very much essential for rendering substantial

justice to the parties. He would further submit that though

the present proceedings are admittedly revision proceedings,

however to do substantial justice, he requests this Court to

accept additional evidence by exercising inherent powers.

7. To buttress his arguments he has placed reliance

on the judgment of the Hon'ble Apex Court in the case of

Hindustan Petroleum Corporation Limited v. Dilbahar

Singh1 and also the judgment rendered by the Co-ordinate

Bench of this Court in the case of Poornaprajna Education

Centre, Belur v. Puspha2. By relying on these two

judgments, he would submit to this Court that the additional

evidence has to be taken into consideration and if the same

is admitted on record, the findings of the Small Cause Court

are not at all sustainable and therefore, he would request

this Court to consider additional evidence placed on record by

the petitioners herein.

8. Per contra, learned counsel appearing for

respondent-defendant would vehemently argue and counter

arguments canvassed by the counsel appearing for the

petitioners. He would submit to this Court that this Court in

exercise of its inherent powers under Section 151 of CPC,

cannot permit the petitioners to rely on additional evidence,

particularly, when petitioners have approached the Court

(2014) 9 Supreme Court Cases 78

2002 (5) Kar.L.J. 161.

invoking revisional jurisdiction. To buttress his arguments

and in support of his contentions, he would place reliance on

the judgment rendered by this Court in the case of Harilal v.

Ismailsab3. Placing reliance on the said judgment, he would

submit to this Court that it is a well settled principle of law

that the revisional jurisdiction is distinct from appellate

jurisdiction. Under the Code of Civil Procedure, the revision

jurisdiction of High Court is to be exercised within the

meaning and scope of Section 115 of CPC. Therefore, relying

on the said judgment, he would submit to this Court that in

the present revision petition, this Court cannot convert itself

to an appellate court and receive additional evidence.

9. Heard the learned counsel for the petitioners-

plaintiffs and the learned counsel appearing for the

respondent-defendant.

10. The present petitioners claim that they have

acquired valid right and title over the suit property pursuant

to registered sale deed dated 07.07.2017 executed by the

erstwhile owners and therefore, they claim that respondent-

Kar.L.J. 1979 Page 1201

defendant continued to be as a tenant under them. The

respondent-defendant however has denied the title of the

present petitioners herein. Merely because there is denial of

title, that cannot be a ground to reject the claim of the

petitioners, who are seeking possession on the ground that

they have terminated the tenancy of the respondent-

defendant by issuing notice under section 106 of the Transfer

of Property Act. The Small Cause Court merely on the ground

that the title document is not produced, has proceeded to

record a finding that the petitioners have failed to prove their

title over the suit premises. The petitioners claim that the

original copy of the registered sale deed could not be

produced as the same is pledged with the bank and as such,

they could not produce the document. However petitioners

claim that other documents were produced before the Court.

11. The petitioners have acquired right and title and

intend to produce a certified copy of the sale deed, which

obviously respondent-defendant cannot dispute. The

respondent-defendant has not produced any document to

demonstrate that he has independent right than that of the

petitioners herein. Respondent-defendant has placed reliance

on the judgment rendered by this Court in the case of

Harilal (supra) and strongly objects to take cognizance of

additional evidence. If petitioners have acquired title

pursuant to registered sale deed dated 07.07.2017 by

purchasing the suit property by its erstwhile owners, I am of

the view that additional evidence is essential for doing

substantial justice between the parties and therefore, I am of

the view that it is well within the power of revisional Court to

entertain additional evidence by exercising its inherent

powers. This Court would also place reliance on the latest

judgment rendered by the Co-ordinate Bench of this Court in

the case of Eshwarappa v. Dasappa4 in Civil Revision

Petition No.216 of 2016 (SC) decided on 13.2.2019. In the

said case, this Court was of the view that even revisional

Court in deserving cases can accept additional evidence to

effectively adjudicate the controversy between the parties.

12. Similar view is expressed by the Co-ordinate

Bench of this Court in catena of judgments. In HRRP

MANU/KA/9063/2019

No.50/2018 (EVI) in the case of Srinivas Reddy v. Laxmi5

the Co-ordinate Bench of this Court while entertaining

revision petition entertained additional evidence, which was

in the form of certified copy of the sale deed and allowed the

application and consequently took the additional evidence on

record and thereafter proceeded to decide the case. Similar

view also finds place in the judgment rendered by the Co-

ordinate Bench of this Court in the case of Mohammed

Nasarulla Sheriff v. Azra Shameem and others6 in HRRP

No.651/2003 decided on 20.09.2008. The Punjab and

Haryana High Court in the case of Mahavir Jain Shoe Store

v. Gian Chand Loomba and others7 while entertaining

revision has held that the provisions under Order XLI Rule 27

of CPC primarily are meant for the appellate court but its

operation can be stretched even to the revisional jurisdiction

by adopting the principles. If all these judgments cited supra

are looked into, I am of the view that the latest judgments

which are cited by this Court supra are latter in point of time

and therefore, the judgments cited by the counsel appearing

MANU/KA/4895/2021

2009(5) Kar.L.J.516

(2000) 124 (1) PLR35

for respondent-defendant that revisional court has no power

to look into the additional evidence cannot be accepted in the

light of the principles discussed supra.

13. If the judgments, which are cited by this Court

are taken into consideration, what emerges is that the High

Court while exercising the revisional jurisdiction under

section 115 of CPC has to accept the facts of the case as they

are and find out as to whether the decision contains any

errors of law or legal infirmities, which can be corrected or

removed and if the record does not disclose any such error or

infirmity, it has no jurisdiction to interfere with the order

under challenge. What would emerge from the underlying

principles is that the revisional court cannot add new and

subsequent events to the record. If these principles are

examined in the context of the present case on hand, this

Court would find that the petitioners did not intend to add

new or subsequent events. The petitioners in the present

case have sought leave of this Court to produce certified

copy of the sale deed dated 07.07.2017 executed by

erstwhile owners of the suit property and the purchase was

communicated to the defendant and on account of

attornment of tenancy, respondent-defendant was directed

to pay monthly rent. I do not find any new facts or any new

subsequent events, which are sought to be incorporated or

pleaded by way of additional evidence. Therefore, the

additional evidence, which is sought to be produced by the

petitioner, is just a copy of the sale deed, which can be

accepted in the revision proceedings.

14. In the present case on hand, the petitioner is

asserting and claiming ejectment based on title and the

respondent-defendant admittedly does not have any

independent right in the suit property. The judgments cited

supra which are latter in point of time, clearly indicate that

the procedural technicalities should not come in the way of

justice. From this analogy, it can be stated that additional

evidence can be received even in revisional proceedings. The

only limitation where the authority of revisional court has

certain restrictions while exercising revisional jurisdiction is,

the revisional Court should not trench upon the powers which

are expressly reserved by the Act or by the Rules to other

authorities or to ignore the limitations inherent in the

exercise of revisional powers. By admitting additional

evidence, I am of the firm view that this Court has not at all

encroached upon the Appellate jurisdiction vested with the

power of receiving additional evidence under Order XLI Rule

27 of CPC.

15. This Court has to bear in mind that in a given set

of facts, there are compelling reasons and the additional

evidence has to be received so as to minimize the litigation.

There should not be any difficulty in applying the same

principle to the litigation which comes to court under the

provisions of Small Cause Courts Act. If a narrow view is

taken to the effect that the revisional courts cannot entertain

the application under Order XLI Rule 27 of CPC, it will result

in defeating the valuable rights of the parties. Law cannot be

static and its interpretation has to be dynamic. Therefore,

this Court is of the view that the present case on hand,

warrants indulgence at the hands of this Court though arising

out of a revision petition filed under section 115 of CPC. I am

of the firm view that in the present case on hand, the

additional evidence deserves to be taken on record.

16. In the present case on hand, the petitioners have

acquired valid right and title over the suit property and

therefore, have filed ejectment suit. The respondent-

defendant has disputed the title. Merely because respondent-

defendant disputes the title that does not oust the

jurisdiction of Small Cause Court in examining whether there

is valid termination of tenancy. The petitioners under the

bonafide impression that documents placed during trial would

be sufficient, have proceeded with the suit. However, the

Small Cause Court has come to the conclusion that no title

documents are produced. If petitioners have acquired valid

right and title, they cannot be non-suited and delivery of

possession cannot be denied on the ground that title

documents are not produced. If such recourse is adopted, the

petitioners, who are the owners of the suit property would

lose their valuable rights in the property and this would result

in wrongful gain to the respondent-defendant, who is just a

tenant under the petitioners. Therefore, to do substantial

justice, this Court is of the view that the additional evidence

is very much essential and this Court is bound to take

cognizance of the additional evidence. It appears that the

petitioners under the bonafide impression that copy of the

lease deed and property tax extract would suffice to seek

possession might not have chosen to produce copy of the

sale deed. The reasons assigned while producing additional

evidence appears to be probable and quite satisfactory.

Therefore, I am of the view that the additional evidence

deserves to be admitted on record.

17. While exercising revisional jurisdiction, this Court

cannot substitute its decision, which is not permissible under

law. In that view of the matter, I am of the view that this is a

fit case to remit the matter to the Court below with a

direction to consider additional evidence and thereafter

proceed to pass appropriate orders after affording

opportunity of hearing to both the parties. Since both the

parties are represented by their respective counsel, they are

directed to appear before the Small Cause Court on

15.03.2022 without expecting further notice.

18. The petitioner is seeking possession on the

ground that respondent's-defendant's tenancy is terminated.

Therefore, the Small Cause Court is hereby directed to

dispose off the suit within a period of three months from the

date of receipt of records.

19. In view of disposal of the petition, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE yan