Karnataka High Court
Smt R Sujatha vs Smt K S Lakshmikanthamma on 5 June, 2023
Bench: H.P.Sandesh
-1-
CRP No. 276 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.276 OF 2023
BETWEEN:
SMT. R SUJATHA
W/O LATE KRISHNAPPA
AGED ABOUT 52 YEARS
R/AT No.1473, 2ND MAIN ROAD
MANORAYANAPALYA, R T NAGAR POST
BENGALURU-560032
...PETITIONER
(BY SRI ANJANEYA, ADVOCATE)
AND:
SMT K S LAKSHMIKANTHAMMA
W/O LAKSHMIPATHI
AGED ABOUT 50 YEARS
Digitally signed R/AT BI,42, 5TH CROSS
by SHARANYA T No.1473, 2ND MAIN ROAD
Location: HIGH
COURT OF MANORAYANAPALYA
KARNATAKA R.T. NAGAR POST
BENGALURU-560032
...RESPONDENT
(BY SRI SRINIVASA MURTHY S R, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 18 OF KARNATAKA
SMALL CAUSES COURTS ACT, 1964 AGAINST THE JUDGMENT
AND DECREE DATED 04.03.2023 PASSED IN S.C.NO.124/2020
ON THE FILE OF THE VII ADDITIONAL JUDGE AND ACMM,
COURT OF SMALL CAUSES, BENGALURU AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
-2-
CRP No. 276 of 2023
ORDER
This petition is filed challenging the judgment and
decree dated 04.03.2023 passed in S.C.NO.124/2020 on
the file of the VII Additional Judge and ACMM, Court of
Small Causes, Bengaluru.
2. This petition is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiff
before the Trial Court that the plaintiff is the absolute
owner of the entire property bearing No.42, 5th cross,
Manorayanapalya, R.T.Nagar post, Bengaluru. That on
14.02.2008, he has entered into rental agreement with the
defendant for a period of 11 months. Hence, the
defendant is a tenant under the plaintiff on monthly rent
of Rs.3,000/- and received the amount of Rs.25,000/- as
security deposit. After a lapse of 11 months, due to
cordial relationship, the arrangement went on till
termination of tenancy on 13.12.2019. The plaintiff had
CRP No. 276 of 2023
purchased the suit schedule premises from G Muniyappa
and his wife Smt. Rajeshwari as per registered sale deed
dated 18.11.2005. Then the khata was got entered in the
name of the plaintiff and she was paying taxes regularly.
The defendant become chronic defaulter in payment of
rent. The negotiation or conciliation did not yield any
result. The plaintiff issued a legal notice terminating her
tenancy and adjusting the security deposit towards arrears
of rent from 15.02.2017 to 13.12.2019. After receipt of
legal notice, the defendant sent the reply on 23.12.2019
wherein she had admitted the relationship of landlord and
tenant and denied an existence of rental agreement.
Further, the defendant is claiming fictitious ownership on
the schedule premises. After termination of tenancy, the
defendant is in unlawful possession over the same.
Hence, the suit was filed against the defendant.
4. In pursuance of suit summons, the defendant
appeared and filed the written statement denying the
averments of the plaint. It is contended that the defendant
CRP No. 276 of 2023
is the legal heir of Govindappa who is her grandfather.
Her grandfather had entered into lease agreement with
one Nagaraju for a period of 20 years and paid
Rs.5,00,000/-. But when the said Nagaraju failed to repay
the amount, the mother of the defendant had repaid it.
Thereby, the defendant is in possession of the suit
schedule property. There is no rental agreement in
between her and the plaintiff. The defendant is enjoying
the suit schedule property by virtue of hereditary. Hence,
the question of quit and vacating the suit schedule
property does not arise.
5. Based on the pleadings of the parties, the Trial
Court framed the issues and allowed the parties to lead
their evidence. In order to prove the case of the plaintiff,
SPA holder of the plaintiff got himself as PW1 and got
marked the documents at Ex.P1 to P15 and Ex.P16 was
confronted in the cross-examination of DW1. On the other
hand, the defendant examined herself as DW1 and got
marked the documents at Ex.D1 to D3. The Trial Court
CRP No. 276 of 2023
considering both oral and documentary evidence placed on
record allowed the suit of the plaintiff in coming to the
conclusion that the plaintiff has proved the landlord and
tenant relationship in between herself and the defendant
and the plaintiff proves that she had let the suit schedule
property to the defendant on monthly rent of Rs.3,000/-
and after the completion of lease period, the defendant
has not vacated the premises and hence, she had validly
terminated the tenancy of the defendant and directed the
defendant to quit and handover the vacant possession of
the suit schedule property to the plaintiff within two
months. Being aggrieved by the judgment and decree of
the Trial Court, the present revision petition is filed before
this Court.
6. The learned counsel for the revision petitioner
would vehemently contend that the Trial Court failed to
take note of the fact that the suit was filed against the
wrong person i.e., the deceased defendant who was not
the tenant of the suit premises. The Trial Court failed to
CRP No. 276 of 2023
follow the order passed by this Court in
W.P.No.21522/2022 and though the copy was produced
before the Court on 04.03.2023 along with the memo, an
opportunity was not given. The Trial Court also failed to
appreciate the IA which was filed for further chief of
defendant and seeking permission to produce the original
documents and opportunity has not been given to argue
the matter. Based on Ex.P16 which is the Xerox copy of
the rent agreement, the Trial Court committed an error in
answering the points as affirmative. The Trial Court also
failed to consider that the defendant has not lead his
further chief and also did not allow him to produce the
additional original documents and the same is pending for
consideration and there is no rent agreement between the
petitioner and the respondent. The Trial Court passed an
order based on Ex.P16 which is a created document and
erroneously comes to the conclusion that the same is
admitted. The counsel also submits that this Court has
passed an order in W.P.No.21522/2022 on 23.02.2023
and the submission of the counsel noted that applications
CRP No. 276 of 2023
have been filed to recall the defendant to lead further
evidence and an application is also filed seeking production
of documents. Hence, this Court observed that it is
needless to state that pending applications have to be
considered and orders to be passed. The stage of the case
may have to be re-opened considering the observations
made herein and dispose off the suit expeditiously. The
counsel would vehemently contend that the Trial Court has
not given an opportunity to lead further chief.
7. Per contra, the learned counsel for the
respondent would vehemently submits that this Court can
see the order sheet which is produced along with the
revision petition before this Court. The counsel would
vehemently contend that the evidence of plaintiff was
closed in the month of February 2022 and posted the
matter for further cross of PW1 on 08.02.2022 but the
defendant has not cross-examined the witness and
ultimately, on 14.03.2022 filed an affidavit and documents
which are annexed along with the affidavit and he was
CRP No. 276 of 2023
examined in part and posted the case for further chief on
29.03.2022 and he was examined further in chief and the
documents at Ex.D1 to D3 marked and again took time for
further chief and further chief was deferred and posted the
matter on 24.05.2022. On that day, DW1 was absent and
again further chief was deferred on account of his
absence. On the next date also he was absent and not
appeared before the Court on several dates and hence, it
is taken as no further chief. DW1 was further cross-
examined on 27.07.2022 and confronted the document
and the same was marked as Ex.P16. On the next date, an
application was filed before the Court to expunge the
admission of DW1 and the said application was heard and
an order has been passed rejecting the said application.
And again defendant was absent and he has not tendered
for cross-examination on 29.10.2022. On the next of
hearing, when the case was set down for arguments, an
application was filed to recall the matter for cross-
examination and the said application is allowed on cost of
Rs.200/- and the case was set down for further cross of
CRP No. 276 of 2023
PW1. On the next date of hearing, DW1 was present and
cross-examined PW1 and hence, posted the matter for
arguments. On 23.11.2022, the defendant filed an
application under Section 151 of CPC along with the
documents and the said documents were allowed and one
more application was filed under Section 151 to lead
further defendant's evidence when the case was set down
for arguments and the said application was dismissed and
posted the matter for arguments. After hearing the
matter posted the same for judgment. When the case was
set down for the judgment, the counsel again filed a
memo along with the affidavit stating that writ petition is
filed and ultimately, writ petition was disposed off and the
copy of the same is produced before the Court. The Trial
Court having considered the same comes to the conclusion
that no application is filed by the defendant and
pronounced the judgment on merits. The counsel referring
the order sheet vehemently contends that though
sufficient opportunity was given to the petitioner herein for
chief examination and cross-examination, he has not
- 10 -
CRP No. 276 of 2023
tendered for the same within the time instead of that he
used to file one or the other applications at each stage and
he was cross-examined in part. Thus, the Court has to
take note of the conduct of the petitioner herein hence,
there is no grounds to grant another opportunity in
prosecuting the matter.
8. Having heard the learned counsel for the parties
and also on perusal of the material on record it discloses
that the very contention of the plaintiff/respondent that in
the year 2008 he entered into the rent agreement with the
petitioner herein wherein the defendant had agreed to pay
monthly rent of Rs.3,000/-. It is also the case of the
plaintiff that the rent agreement is for a period of 11
months and the same was continued. But, from the year
2017 to 2019, the petitioner herein did not pay the rent.
Hence, the rent was adjusted from the security deposit
paid by the petitioner herein. When the petitioner herein
did not comply with the terms of the rent agreement, the
respondent/plaintiff issued the legal notice and the
- 11 -
CRP No. 276 of 2023
petitioner/defendant gave untenable reply to the said
notice denying the relationship between them. The Trial
Court after considering both oral and documentary
evidence placed on record in paragraph 32 taken note of
the admission given by the defendant in the cross-
examination wherein the Xerox copy of the rental
agreement at Ex.P16 was confronted and the defendant
categorically admitted the signature found in Ex.P16. It is
the case of the defendant that property belongs to her
family and she is in hereditary occupation and in order to
substantiate her contention that the property was gifted in
favour of her mother, no document is placed before the
Trial Court except producing the document at Ex.D1 to D3.
The plaintiff also not dispute the fact that the defendant is
in occupation of premises as a tenant.
9. It is the specific case of the defendant that she
is in possession of the property being an owner as her
mother is the owner of the property. In order to
substantiate the same, no document is placed before the
- 12 -
CRP No. 276 of 2023
Court. It is also important note that an application was
filed before the Trial Court to expunge the admission given
in the cross-examination when the document is confronted
and the said application was also rejected. No doubt, the
petitioner has approached this Court filing a writ petition
and this Court also made an observation that if there is
any pending application, the same has to be considered
and an order has to be passed and stage can be reopened.
Having considered the entire order sheet it discloses that
when the case was set down for defendant's evidence, the
defendant/petitioner did not cooperate with the Trial
Court. Firstly, on three adjournments, she has not led any
evidence and on 4th time, she filed an affidavit and
produced some documents and she has been examined as
DW1 and further chief examination was deferred on three
occasions and on 04.06.2022, 01.07.2022 and
14.07.2022, DW1 was absent and ultimately, chief
examination of DW1 was taken as nil and posted the
matter for cross-examination of DW1. That on 27.07.2022,
he was cross-examined in part and the document at
- 13 -
CRP No. 276 of 2023
Ex.P16 was confronted and marked and thereafter, once
again he filed an application contending that Ex.P16 is not
binding and the same is null and void and the said
application was also dismissed on merits. Again on three
occasions, he was absent and once again, he filed an
application. Whatever applications were filed by the
defendant, they were allowed and he was not further
cross-examined since he was absent and no applications
were pending for consideration. Having taken note of the
order sheet it discloses that for a period of one year when
the case is set down for defendant's evidence, the
defendant did not assist the Trial Court to complete the
evidence and even his chief evidence was incomplete and
for the further cross-examination also he was absent and
one or the other applications were filed before the Court
and those applications were allowed by the Trial Court.
When such being the case, the very contention of the
petitioner's counsel that Trial Court has not given an
opportunity to lead the evidence cannot be accepted. The
Court has to take note of the conduct of the defendant
- 14 -
CRP No. 276 of 2023
wherein even though he was examined after dragging the
matter in chief evidence, he did not complete the same
hence, his further chief evidence was taken as nil.
Subsequently, he was cross-examined in part. The order
sheet goes against the contention of the revision
petitioner. The defendant did not utilize the opportunity
given by the Trial Court. Hence, the very contention that
no opportunity was given cannot be accepted.
10. The second aspect in the matter is that the
defendant claims that he is in possession of the property
by hereditary because her mother is the owner but in
order to substantiate her contention, no document is
produced. But the plaintiff produced the document of
sale deed of the year 2005 to show that she is the owner
of the suit schedule property and also produced the rental
agreement of the year 2008 to establish that the
defendant is the tenant under her. The defendant though
denied the relationship, in the cross-examination when the
document was confronted, the same was admitted and the
- 15 -
CRP No. 276 of 2023
signature also admitted. When such being the case, the
very contention of the petitioner that there is no jural
relationship between them cannot be accepted. It is also
the specific case of the plaintiff that though she entered
into an agreement in the year 2008 she paid the rent till
2017 and thereafter the defendant did not pay the rent
hence, out of the security deposit of Rs.25,000/-, the
arrears of rent was adjusted and termination notice was
given to the defendant but the defendant gave untenable
reply to the said notice denying the very jural relationship.
When there is a clear admission in terms of Ex.P16 which
was confronted with the witness, no doubt, the same is
marked. When the petitioner in the cross-examination
admitted the document and the counsel again disputing
the said document, does not arise. The Trial Court
considering all these materials available on record passed
an order taking note of the order sheet which clearly
discloses that an ample opportunity was given and the
principles of natural justice is also met. But the petitioner
is not co-operated with the Trial Court to consider the
- 16 -
CRP No. 276 of 2023
matter on merits instead of that the petitioner filed
unnecessary applications before the Court even to
expunge the admission given by DW1 in the cross-
examination when the document was confronted and the
said application also considered on merits and whenever
the applications were filed before the Trial Court, the same
were allowed without imposing the cost also. Hence, the
very allegation before this Court that no opportunity is
given cannot be accepted. Hence, I do not find any merit
in the revision petition.
11. In view of the discussions made above, I pass
the following:
ORDER
The revision petition is dismissed.
Sd/-
JUDGE
SN
