Sri Vallil Ismail vs Shiek Dastagir
2022 Latest Caselaw 9196 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JUNE, 2022

                       BEFORE

       THE HON'BLE MS. JUSTICE JYOTI MULIMANI

      CIVIL REVISION PETITION NO.86 OF 2015

BETWEEN:
SRI VALLIL ISMAIL
S/O LATE A.MAMMOO,
AGED ABOUT 57 YEARS,
NO.31, 3RD FLOOR, SANGAM CIRCLE,
8TH MAIN ROAD, PADARAYANAPURA,
BANGALORE - 560 026.
AND THE R/O P.B.No.759,
GURFA FUJAIRAHUAE
REPRESENTED BY HIS GPA HOLDER
AND ELDER BROTHER
SRI V.MOHAMOOD
S/O LATE A.MAMMU,
AGED ABOUT 64 YEARS,
R/AT NO.31, 3RD FLOOR,
SANGAM CIRCLE, 8TH MAIN ROAD,
PADARAYANAPURA, BANGALORE - 560 026.
                                        ...PETITIONER

(BY SRI.K.S.CHANDRAHASA, ADVOCATE)

AND

1.    SHIEK DASTAGIR,
      FATHER NAME NOT KNOWN,
      AGED ABOUT 60 YEARS,
      WARD NO.34, 8TH MAIN,
      PADARAYANAPURA,
      BANGALORE - 560 026.

2.    LATHIF UR RAHMAN
      S/O FAZLUR UR RAHAM,
      AGED ABOUT 50 YEARS,
      CARRYING ON BUSINESS AT NO.31,
      GROUND FLOOR, 8TH MAIN,
                              2




     PADARAYANAPURA,
     BANGALORE - 560 026.                  ...RESPONDENTS

(R1 - HELD SUFFICIENT
      SRI.DILDAR SHIRALLI, ADVOCATE FOR R2 [ABSENT])

     THIS CRP IS FILED UNDER SECTION 18 OF THE

KARNATAKA SMALL CAUSE COURTS ACT, 1964.


     THIS CRP HAVING BEEN HEARD AND RESERVED FOR

ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS

DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

Sri.K.S.Chandrahasa., learned counsel for

petitioner has appeared in person.

2. There is no representation on behalf of

respondent No.2.

The order sheet depicts that the revision petition

was listed on 01.03.2021, 09.03.2021, 26.05.2022,

02.06.2022. On 02.06.2022, counsel for petitioner

argued the matter. Since there was no representation

on behalf of respondent No.2 it was ordered to be listed

on 03.06.2022 to hear counsel for respondent No.2. On

03.06.2022 also there was no representation on behalf

of respondent No.2 the Court heard the matter and

reserved for orders.

3. The parties are referred to as per their

rankings before the Trial Court.

4. The brief facts of the case are stated as under:

It is stated that the defendant is a monthly tenant

of the suit schedule property measuring 10 ft X 20 ft

situated in the ground floor of the building bearing

No.31. at 8th Main Road, Hospital Road,

Padarayanapura, Bangalore - 560026. The first

defendant is running a footwear shop under the name

and style "Selection Footwear". The tenancy of the first

defendant is month to month. The tenancy of the first

defendant commenced with a monthly rent of

Rs.1,600/- (Rupees One Thousand Six Hundred only)

and it has been enhanced to Rs.2,200/- (Rupees Two

Thousand Two Hundred only) since 01.04.2010. It is

stated that the first defendant became chronic defaulter

in the payment of rent after enhancement of rent. On

17.01.2011, the plaintiff sent a legal notice to the first

defendant both by RPAD as well as certificate of posting.

As on the date of the legal notice the first defendant

was liable to pay Rs.19,800/- (Rupees Nineteen

Thousand Eight Hundred only) towards arrears of rent.

It is stated that the first defendant very intelligently

accepted the legal notice sent by certificate of posting

and managed to return the notice sent by RPAD with a

shara "no such party in this address".

It is averred that the plaintiff is gainfully employed

in a foreign country and his properties are managed by

his elder brother V.Mohammed who is the GPA holder of

the plaintiff. The tenancy of the first defendant is

terminated with effect from 15.02.2011, but the first

defendant has not vacated the property. The first

defendant is liable to pay mesne profits @ Rs.3,500/-

pm (Rupees Three Thousand Five Hundred only), and

interest @ 18% pa, on the arrears of rent. Therefore,

the plaintiff - initiated action against the first defendant

to quit, vacate and deliver the vacant possession of suit

schedule property, for payment of arrears of rent of

Rs.24,200/- (Rupees Twenty Four Thousand and Two

Hundred only) and mesne profits Rs.3,500/- (Rupees

Three Thousand Five Hundred only) from 01.03.2011 to

2011 amounting to Rs.28,000/- (Rupees Twenty Eight

Thousand only) and for payment damages @

Rs.3,500/-pm (Rupees Three Thousand Five Hundred

only), with interest @ 18% pa.

In pursuance of the summons, the first defendant

appeared before the Court through his counsel. He has

failed to file written statement. And hence, the case was

posted for evidence of plaintiff. At that stage, the

second defendant moved an application under Order I

Rule 10 CPC seeking for his impleadment in the suit.

After hearing the application on merit, Court allowed the

application and impleaded him as defendant No.2 by

making the original defendant as the defendant No.1.

Then, the plaint was amended and copy plaint was

served on the defendant No.2. Later, the second

defendant has filed written statement denying the case

of the plaintiff as false. He has contended that there

was no cause of action to file the suit. He contended

that he is in occupation of the suit schedule property

since 1994 and is carrying the business in footwear. The

plaintiff has received refundable security deposit of

Rs.1,00,000/- (Rupees One Lakh only) from him, that

he is regular in paying the rents. It is also contended

that the plaintiff has suppressed the true facts, has filed

the suit against the first defendant who has no right title

and interest over the property. Hence, he sought for

dismissal of the suit with exemplary cost.

The plaintiff was examined as PW1 and got

marked documents as Ex.P1 to 9. The second defendant

was examined as DW1 and got marked documents as

Ex.D1 to 4. The first defendant has not adduced any

evidence.

After the trial of action, the Court vide order

dated:10.11.2014 dismissed the suit. Hence, this Civil

Revision Petition is filed on several grounds as set out in

the Civil Revision Petition.

5. Learned counsel for petitioner has urged

several contentions.

6. Heard the contentions on behalf of petitioner

and perused the records with care.

7. The short point which requires consideration is

whether the Trial Court is justified in dismissing the suit?

8. The facts have been sufficiently stated.

It is not in dispute that the plaintiff filed the suit

seeking eviction of the first defendant i.e., Mr.Sheikh

Dastagir contending that he is the tenant in respect of one

shop (southern shop) of Ground floor of the building

bearing No.31 situated at 8th Main Road, Hospital Road,

Padarayanapura, Bangalore - 560026. A notice of

termination was issued to Mr.Sheikh Dastagir.

The termination notice is dated:17.01.2011. The

same is produced and marked as Ex.P.2. I have perused

the same with care.

In the notice, it is stated that Mr.Sheikh Dastagir., is

a chronic defaulter in the payment of rent as on

01.01.2011 and it was also intimated to him that he has

violated the terms of the oral lease. Hence, he was called

upon to quit and deliver the vacant possession of the

schedule premises by settling the arrears of rent within 15

days from the date of receipt of notice failing which

appropriate legal proceedings will be initiated for recovery

of rents and possession.

It is relevant to notice that the notice of termination

is with respect of one shop (southern shop) of Ground

floor of the building bearing No.31 situated at 8th Main

Road, Hospital Road, Padarayanapura, Bangalore-560026.

The notice was sent through certificate of positing as

well as through RPAD. The first defendant Mr.Sheikh

Dastagir accepted/ received the notice sent through

certificate of positing. The notice sent through RPAD was

returned with shara "no such party in this address". He did

not reply for the said notice.

Hence, plaintiff-initiated action against Mr.Sheikh

Dastagir. The Trial Court issued summons of petition to

Mr.Sheikh Dastagir through Court returnable by

17.12.2011. Notice to Mr.Sheikh Dastagir was served

personally. He appeared through advocate but he did not

file written statement.

As things stood thus, one Mr.Lateef-Ur-Rahman son

of Fazlur-ur-Rahman moved an application under Order I

Rule 10 of CPC to come on record. In the affidavit he has

stated that he is the tenant under the plaintiff and

carrying on the business in footwear in the schedule

premises from 1994 and plaintiff has received a

refundable security deposit amount of Rs.1,00,000/-

(Rupees One Lakh only) from him and he has been paying

regularly rents in respect of the premises.

I have perused the order sheet with care. The order

sheet discloses that the Trial Court vide order

dated:24.07.2012 allowed the application and permitted

Mr.Lateef-Ur-Rahman to come on record. He was

impleaded as defendant No.2 in the suit. The second

defendant filed written statement. Even in the written

statement also he has contended that he is the tenant in

respect of suit schedule premises and he is paying rents.

A good deal of argument was canvassed by learned

counsel for petitioner on Section 106 of Transfer of

Property Act, to contend that the second defendant is not

the tenant with respect of suit schedule property and

hence, he is not entitled for a notice.

I have considered the submission made on behalf of

petitioner.

It is interesting to note that the suit was filed

seeking eviction of Mr.Sheikh Dastagir in respect of one

shop (southern shop) of Ground floor of the building

bearing No.31 situated at 8th Main Road, Hospital Road,

Padarayanapura, Bangalore - 560026. Though the second

defendant contended that he is the tenant with respect of

suit schedule property i.e., building No.31, but his

evidence depicts otherwise. In the evidence, he states that

the suit schedule premises is bearing No.31/2.

To substantiate his contention that he is a tenant,

the second defendant produced diaries which were marked

as Ex.D.1 to D3. The number of the building in the diary is

written as building No.31/2 and not the suit schedule

property.

The second defendant contended that he is the

tenant in respect of the suit schedule property, whereas

the documentary proof and the suggestions put to PW1

clearly goes to show that the second defendant is not the

tenant of the suit schedule property. It is also noticed that

the second defendant in his evidence i.e., in the cross

examination he has stated that he is the tenant of

premises No.31/2 and not the tenant of building No.31. As

already noted above, the diaries at Ex.D.1 to D3 and D4

relates to building No.31/2. However, the Trial Court relied

upon Ex.D.1 to D4 and erroneously concluded that the

second defendant is in occupation of the suit schedule

property and he is entitled for notice under Section 106 of

Transfer of Property Act.

In my considered view, the Trial Court has failed to

consider that the pleadings and the evidence adduced by

the second defendant are quite contrary and there is no

co-relation between pleading and proof. The second

defendant produces documents to show that he is the

tenant in respect of premises No.31/2. The material on

record show that the second defendant has nothing to do

with the suit schedule property, the Trial Court has erred

in concluding that he is entitled for a quit notice. The

findings of the Trial Court are not only erroneous but also

contrary to the evidence on record. I may venture to say

that the Trial Court has failed to have regard to relevant

considerations and disregarded relevant matters. In my

considered opinion, the order passed by the Trial Court is

unsustainable in law.

It is significant to note that the plaintiff is seeking

eviction of the first defendant in respect of the suit

schedule premises bearing No.31 and not in respect of

premises bearing No.31/2 and no relief is claimed as

against the second defendant.

9. Resultantly, the Civil Revision Petition is

allowed. The judgment and decree dated:10.11.2014

passed by the Court of the Small Causes at Bangalore in

S.C.No.3114/2011 is set aside. The suit is decreed. The

first defendant is hereby directed to quit and deliver the

vacant possession of the hop (southern shop) of Ground

floor of the building bearing No.31 situated at 8th Main

Road, Hospital Road, Padarayanapura, Bangalore - 560026

within one month from today.

The first defendant is directed to pay the arrears of

rent of Rs.24,200/- (Rupees Twenty Four Thousand Two

Hundred only) and mesne profit on the arrears of rent at

the rate of Rs.3,500/- (Rupees Three Thousand Five

Hundred only) from 01.03.2011 to 01.11.2011 of

Rs.28,000/- (Rupees Twenty Eight Thousand only), totally

amounting to Rs.52,200/- (Rupees Fifty Two Thousand

Two Hundred only).

The first defendant is directed to pay a sum of

Rs.3,500/- per month (Rupees Three Thousand Five

Hundred only) as damages to the plaintiff from the date of

suit till the vacant possession of the suit schedule property

is handed over to the plaintiff.

Sd/-

JUDGE TKN