Sri. D S Nagaraj vs Sri. M S Nagabhushana
2023 Latest Caselaw 2680 Kant

                                              -1-
                                                          CRP No. 99 of 2020




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 29TH DAY OF MAY, 2023

                                             BEFORE

                               THE HON'BLE MR JUSTICE H.P.SANDESH

                              CIVIL REVISION PETITION NO.99 OF 2020

                   BETWEEN:

                   SRI D.S. NAGARAJ,
                   S/O LATE SHANTHAMALLAPPA,
                   AGED ABOUT 61 YEARS,
                   R/AT NO.206, 2ND FLOOR,
                   SANVIL APARTMENTS,
                   6TH AND 7TH CROSS,
                   50FT ROAD, BALAJI NAGAR,
                   MALLATHAHALLI EXTENSION,
                   BANGALORE-560 056.
                                                                  ...PETITIONER

                            (BY SRI SOMASHEKHARAIAH R.P., ADVOCATE)

                   AND:
Digitally signed
by SHARANYA T      1.     SRI M.S. NAGABHUSHANA,
Location: HIGH            S/O M.N. SATHYANARAYANA RAO,
COURT OF                  AGED ABOUT 61 YEARS.
KARNATAKA

                   2.     SMT. LALIHTA,
                          W/O M.S. NAGABHUSHANA,
                          AGED ABOUT 53 YEARS.

                          BOTH ARE R/AT NO.12 AND 13,
                          BALAJINAGAR,
                          MALLATHAHALLI EXTENSION,
                          BENGALURU-560 056.
                                                              ...RESPONDENTS

                                 (BY SRI K.P. BHUVAN, ADVOCATE)
                              -2-
                                         CRP No. 99 of 2020




     THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT AGAINST THE JUDGMENT AND DECREE
DATED 27.09.2019 PASSED IN SC.NO.1988/2016 ON THE FILE
OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU PARTLY DECREEING THE SUIT FOR EJECTMENT.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:

                         ORDER

This matter is listed for admission. Heard the learned

counsel for the petitioner and the learned counsel for the

respondents.

2. This revision petition is filed praying this Court

to set aside the judgment and decree dated 27.09.2019,

passed in S.C.No.1988/2016 on the file of the XVIII

Additional Judge, Court of Small Causes, Bengaluru.

3. The factual matrix of the case of the plaintiffs

before the Trial Court is that the defendant is a tenant

under the plaintiffs in respect of the suit schedule property.

The defendant approached the plaintiffs and requested

them to let out the suit schedule premises on rental basis.

After mutual discussions between the plaintiffs and the

defendant, the rent was fixed at the rate of Rs.2,500/- per

CRP No. 99 of 2020

month and the maintenance charges of Rs.2,600/- which

includes, lift, cleaning, security, generator and other

facilities and the defendant had agreed to pay the security

deposit amount of Rs.9,00,000/-. Accordingly, the

plaintiffs and the defendant have entered into a rental

agreement on 12.05.2014 for a period of eleven months

only. On the date of execution of the rental agreement,

the defendant has paid a sum of Rs.9,00,000/- to the

plaintiffs and the plaintiffs have received and acknowledged

the same. As per the terms and conditions of the said

rental agreement, the security deposit amount is

refundable by the plaintiffs to the defendant at the time of

vacating the schedule premises by the defendant and

further the said security deposit amount shall not carry any

interest. The original of the rental agreement is in the

custody of the defendant and a copy of the same is with

the plaintiffs.

4. The plaintiffs contend that after the expiry of

eleven months, in terms of the rental agreement, the

defendant approached and requested the plaintiffs to

CRP No. 99 of 2020

extend the time for further two years, but unfortunately on

18.06.2015, the defendant sent a letter informing the

plaintiffs that he has vacated the schedule premises on

20.05.2015 and further requested the plaintiffs to refund

the security deposit amount of Rs.9,00,000/-. The

plaintiffs further submit that as per the request of the

defendant, the plaintiffs have issued four post dated

cheques in favour of the defendant towards the repayment

of the security deposit amount of Rs.9,00,000/-. Further,

the plaintiffs specifically instructed the defendant that the

cheques shall not be presented before the bank for

realization without the prior intimation to the plaintiffs and

further stated that the plaintiffs are intending to receive the

cash amount and repay the said security deposit in the

form of cash and take back the said cheques. Accordingly,

on 26.07.2015, the plaintiffs have received cash of

Rs.5,00,000/- and paid to the defendant by way of cash

before the witnesses and also deducted a sum of

Rs.80,000/- towards the arrears of monthly rents along

with painting charges in a sum of Rs.15,000/- and

CRP No. 99 of 2020

maintenance charges of Rs.10,000/-, totally in a sum of

Rs.6,05,000/- as on 26.07.2015 and as on 26.07.2015, the

plaintiffs have to pay the balance amount of Rs.2,95,000/-

only to the defendant. The defendant has received and

acknowledged the said sum. Inspite of the legal notice, the

defendant did not quit and vacate the suit schedule

premises as stated in the legal notice and is still in

occupation of the suit schedule property and hence, the

defendant is liable to pay the monthly rent, enhanced rate

of rent and maintenance charges from 26.07.2015 to till

date.

5. Inspite of receipt of the above said amount, the

defendant with an oblique intention in order to cheat the

plaintiffs, did not choose to return the post dated cheques

to the plaintiffs. Thereafter, the plaintiffs got issued a legal

notice to the defendant calling upon the defendant to

return the four cheques and also to quit, vacate and

handover the vacant possession of the suit schedule

premises. After receipt of the legal notice, the defendant

issued untenable reply to the notice on 07.09.2015 to the

CRP No. 99 of 2020

plaintiffs. Subsequently, on 26.10.2015, the plaintiffs

issued a rejoinder notice to the defendant and the same

was also received by the defendant. The plaintiffs further

submits that inspite of the specific instruction made by the

plaintiffs with the defendant through legal notice, the

defendant having the custody of the above said cheques

with a malafide and oblique intention to get wrongful gain

and cause wrongful loss of the plaintiffs, presented the said

cheques without informing the plaintiffs and got bounced

the said cheques. Thereafter, the defendant filed private

complaints against the plaintiffs. After contesting the said

cases by plaintiff No.1 and the defendant, the Court was

pleased to pass the final order dated 09.11.2016. As per

the said order, the plaintiff No.1 is liable to pay only a sum

of Rs.3,00,000/- towards the fine amount in respect of all

the four cases, out of which a sum of Rs.2,96,000/- has to

be paid to the defendant in respect of the above said

cheques as compensation. It is the case of the plaintiffs

that subsequently the plaintiffs got issued a legal notice

dated 07.10.2016 calling upon the defendant to quit,

CRP No. 99 of 2020

vacate and handover the vacant premises of the suit

schedule premises. After receiving the said notice, the

defendant issued an untenable reply dated 09.11.2016 and

he did not vacate the suit schedule premises and also ever

since the date of inception of the tenancy till this day, the

defendant has not paid the monthly rents, maintenance

charges to the plaintiffs. Hence, suit is filed seeking an

order of eviction as well as to pay the amount of Rs.2,500/-

per month as rent till handing over the vacant possession

of the schedule premises.

6. The defendant in pursuance of the suit summons

appeared and filed the written statement contending that

the premises was let out for mortgage after negotiations

and discussion and no rent was agreed and he collected an

amount of Rs.9,00,000/- on 18.04.2014 and delivered the

vacant possession of the schedule premises to the

defendant. The lease period agreed was for two years

from the date of the deed. The plaintiffs also

acknowledged the amount of Rs.9,00,000/- in terms of the

said deed. He had agreed to refund the amount on expiry

CRP No. 99 of 2020

of the lease period. The plaintiffs got executed the alleged

rental agreement dated 12.05.2014 and got the signature

of the defendant on the pretext that he wants to declare it

to the Income Tax Department. As per the said

agreement, it was not acted upon in respect of the recitals

regarding rental payments and also the plaintiff had never

demanded for payment of rent, since there was no

agreement for payment of rent. The defendant also

contended that he wanted to vacate the schedule premises

under unavoidable circumstances that his son's college is

shifted during that period and accordingly he has intimated

to plaintiff No.1 that he would vacate and handover the

schedule premises to the plaintiffs and requested the

plaintiffs to refund the entire amount of Rs.9,00,000/-.

Accordingly, plaintiff No.1 issued four cheques to the tune

of Rs.9,00,000/-. When the cheques were presented, the

cheques were dishonoured. Hence, the demand was made

to pay the cheque amount and also the plaintiffs have not

made any demand to the defendant, but false contention

was taken that he has paid the cash amount of

CRP No. 99 of 2020

Rs.5,00,000/-. It is also contended that the plaintiffs are

not entitled for any damages as claimed and prayed the

Court to dismiss the same.

7. The plaintiffs in order to prove their case

examined plaintiff No.1 as P.W.1 and got marked the

documents at Exs.P.1 to 13. The defendant neither chose

to cross-examine P.W.1 nor lead any evidence. The Trial

Court having considered the material available on record,

directed the defendant to quit, vacate and handover the

possession of the suit schedule premise to the plaintiffs

within two months from the date of the order. Being

aggrieved by the said judgment and decree, the present

petition is filed by the defendant before this Court.

8. The main contention of the learned counsel for

the petitioner is that the plaintiffs have filed frivolous suit

demanding the rent for ten months. It is contended that it

was a mortgage transaction and no such rent was agreed

to pay. The learned counsel submits that it is only a

mortgage and hence the question of relationship of tenant

and owner was not there and inspite of it, the Trial Court

- 10 -

CRP No. 99 of 2020

committed an error. The learned counsel for the petitioner

submits that the learned counsel on record on behalf of the

defendant though filed the written statement, he did not

contest the matter and whenever the party approached the

counsel, he told that whenever his presence is required, he

is going to intimate him and ultimately order was passed

and execution petition was filed and possession was taken.

The learned counsel submits that the Trial Court has given

a finding that he is a tenant and now also filed a separate

suit for recovery of the amount and if this finding is not set

aside, it goes against him and hence this Court has to set

aside the order.

9. Per contra, the learned counsel for the

respondents submits that though the defendant was

represented through counsel and filed the written

statement, he did not choose to cross-examine P.W.1 and

also not led any evidence. The learned counsel submits

that even after the judgment and decree, he did not vacate

the premises and hence execution petition was filed and

notice was served on him and he did not vacate and hence

- 11 -

CRP No. 99 of 2020

warrant was also issued and the same was not executed

and hence took the police protection and got evicted and

got the order enforced in accordance with law. Now, the

defendant cannot contend that no opportunity was given

and question of remanding the matter does not arise.

10. Having heard the learned counsel for the

petitioner and the learned counsel for the respondents and

also on perusal of the material available on record, there is

no dispute that in the ejectment suit, notice was ordered

and the defendant represented through the counsel and he

also filed the written statement setting up the defence that

it was a mortgage and not rental agreement. The records

discloses that after the filing of the written statement, the

learned counsel for the defendant did not cross-examine

P.W.1 and also not led any evidence before the Trial Court.

The Trial Court having considered both oral and

documentary evidence placed on record comes to the

conclusion that the evidence of P.W.1 is not challenged and

hence answered point No.1 in the affirmative in coming to

the conclusion that the plaintiffs have established the

- 12 -

CRP No. 99 of 2020

relationship between the parties and terminated the

tenancy and it requires separate enquiry for damages from

the defendant as sought and comes to the conclusion that

the plaintiffs are entitled for vacant premises from the

hands of the defendant. Now, the learned counsel for the

petitioner contends that the learned counsel on record did

not participate and assist the petitioner in conducting the

case and he came to know about the same during the

execution proceedings after the eviction. The learned

counsel for the petitioner submits that due to the

negligence on the part of the learned counsel on record,

the petitioner should not suffer. Admittedly, the possession

was delivered in favour of the plaintiffs. The learned

counsel contends that the belongings of the petitioner

herein also not handed over to him.

11. The learned counsel for the respondents submits

that delivery warrant was executed through the court

process and Ameen came and handed over the possession

by drawing the mahazar and in this proceedings, the Court

cannot decide the issue with regard to the belongings which

- 13 -

CRP No. 99 of 2020

have not been handed over to him. The learned counsel

submits that already they have filed a separate suit for

arrears of rent and damages. The learned counsel for the

petitioner also not disputes the same, but contends that

the finding given by the Trial Court goes against him, if it is

not set aside. This Court cannot set aside the order passed

by the Trial Court whenever the petitioner approaches this

Court. The fact that he has been served with summons

and engaged a counsel is not in dispute. If there are any

lapses on the part of the counsel, he has to approach the

appropriate forum against the counsel. The question of

once again remanding the matter does not arise. The suit

is for ejection of the petitioner and the Trial Court passed

the order directing him to quit and vacate the premises

within two months and no order has been passed with

regard to the rent or damages and it is held that it requires

separate enquiry for damages as per Order XX Rule 12 of

CPC. When such being the finding of the Trial Court, the

very contention of the learned counsel for the petitioner

cannot be accepted and the matter cannot be remanded on

- 14 -

CRP No. 99 of 2020

his whims and fancies. The petition was filed in 2016 and

the order was passed in 2019 after three years. Though

the petitioner made an allegation against the counsel that

he did not inform anything, but what made the petitioner in

not appearing before the Trial Court and why he kept quiet,

there is no explanation. The learned counsel submits that

the learned counsel on record instructed him that whenever

his presence is required he has to appear. The said

submission cannot be accepted in a revision petition. The

scope of revision is very limited and the Trial Court

considering the material on record passed the order and

possession has already been taken. The other grounds

which have been urged before this Court cannot be

entertained and admittedly, one more suit is filed by the

respondents for the recovery of rent. All those grounds

which have been urged before this Court can be urged

before the Trial Court.

12. In view of the discussions made above, I pass

the following:

- 15 -

CRP No. 99 of 2020

ORDER The petition is dismissed.

Sd/-

JUDGE

MD