Karnataka High Court

Mrs A. Irudaya Seelie Fatima vs Smt P Rathna Kumari on 3 January, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                      RSA No. 276 of 2019




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 3RD DAY OF JANUARY, 2024

                                         BEFORE
                          THE HON'BLE MR JUSTICE M.G.S. KAMAL
                    REGULAR SECOND APPEAL NO. 276 OF 2019 (POS)
                   BETWEEN:

                      MRS A. IRUDAYA SEELIE FATIMA
                      W/O C.K. RADHAKRISHNAN,
                      AGED ABOUT 67 YEARS,
                      R/AT A5, BHARATH NAGAR,
                      B.E.M.L. NAGAR POST,
                      K.G.F.-563 115.

                                                                ...APPELLANT
                   (BY SRI. M.B. CHANDRA CHOODA , ADVOCATE)

                   AND:

                      SMT. P. RATHNA KUMARI
                      W/O P SURESH,
                      AGED ABOUT 43 YEARS,
                      R/AT NO.31, SHABARISH NIVAS,
Digitally signed      5TH CROSS, H & P NAGAR,
by SUMA B N
                      K.G.F.-563 115.
Location: High                                                ...RESPONDENT
Court of
Karnataka          (BY SRI. N.M. THEERTHEGOWDA, ADVOCATE)

                        THE RSA IS FILED UNDER SECTION 100 OF CPC,
                   AGAINST THE JUDGMENT AND DECREE DATED 29.11.2018
                   PASSED IN RA.NO.14/2018 ON THE FILE OF ADDITIONAL
                   SENIOR CIVIL JUDGE AND JMFC, K.G.F, REVERSING THE
                   JUDGMENT AND DECREE DATED 23.10.2017 PASSED IN
                   O.S.NO.643/2011 ON THE FILE OF THE PRINCIPAL CIVIL
                   JUDGE AND ADDITIONAL JMFC, K.G.F.

                        THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                   DAY, THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2024:KHC:331
                                           RSA No. 276 of 2019




                         JUDGMENT

This regular second appeal is filed by the plaintiff

aggrieved by the Judgment and order dated 29.11.2018

passed in R.A.No.14/2018 on the file of Additional Senior

Civil Judge and JMFC, KGF, by which the first appellate

court while allowing the said appeal set aside the

Judgment and decree dated 23.10.2017 passed in

O.S.No.643/2011 on the file of Principal Civil Judge and

Additional JMFC, KGF (hereinafter referred to as `Trial

Court') and consequently dismissed the suit of the plaintiff.

2. The above suit was filed by the appellant/plaintiff

seeking relief of Judgment and decree directing

respondent/defendant to hand over vacant possession of

the suit schedule property and for arrears of rent of

Rs.60,000/- and mesne profit at the rate Rs.2,000/- per

month till delivery of possession.

3. It is the case of the plaintiff that she is the

absolute owner of the suit schedule property and that the

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defendant was inducted as a tenant into the schedule

property in terms of an agreement of lease dated

10.07.2007 for a period of eleven months. That the

defendant had agreed to pay Rs.5,000/- as rent within

15th of every month. That the said agreement was

extended periodically and the last extension was from

08.06.2009 to 08.05.2010. Thereafter there was no

further extension. The last rent paid by the defendant was

Rs.6,000/- per month from 10.05.2010 to 09.02.2011.

Thereafter the defendant did not pay the monthly rents.

Plaintiff caused issue of notice on 28.09.2011 calling upon

the defendant to pay the rent and/or vacate and hand

over possession of the property. Plaintiff also filed a

compliant before the jurisdictional police. That the

defendant was neither using the schedule property nor

was paying the rents and as there were number of thefts

in the locality plaintiff had put a separate lock to the said

property. Since defendant did not comply with the

demand made in the notice, plaintiff filed the suit for the

above reliefs.

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4. Defendant in her written statement denied the

plaint averments and also questioned the maintainability

of the suit. It is contended that the plaintiff has forcibly

locked the building during the month of February 2011

preventing the defendant from having access to the

schedule property. It is contended that the plaintiff

restrained the defendant without allowing her to enter into

the schedule property. That the plaintiff is holding the

possession of the property from February 2011 till date

and the filing of the suit for relief of possession and

arrears of rents and damages is false, frivolous. Hence,

sought for dismissal of the suit.

5. Trial court framed the issues, recorded the

evidence and on appreciation of the evidence decreed the

suit as sought for by its Judgment and decree dated

23.10.2017. Being aggrieved by the same, defendant filed

a regular appeal in R.A.No.14/2018. The first appellate

court on re-appreciating the evidence, allowed the appeal

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and dismissed the suit. Being aggrieved by the same,

plaintiff has preferred this second appeal.

6. This court by order dated 03.01.2020 framed the

following substantial questions of law:

1. Whether the first Appellate Court was justified in ignoring the admitted fact that the defendant had locked the main door of the rented premises which is situated on the first floor and all the material which are lying in the rented premises belonged to the defendant and she had failed to pay the rents?

2. Whether the First Appellate Court was justified in arriving at a conclusion that the plaintiff was in possession of the property simply because she had put a lock on the gate of the premises and not on the main door of the rented premises which is situated on the first floor?

3. Whether the first Appellate Court erred in dismissing the suit filed by the plaintiff and reversing the judgment of the trial Court when the prayer in the suit was for eviction of the defendant from the rented premises and for payment of arrears and damages?

7. Sri.M.B.Chandrachooda, learned counsel

appearing for the appellant reiterating the grounds urged

in the memorandum of appeal submits that the first

appellate court was in error in not appreciating the fact

that the defendant did not deliver the vacant possession of

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the premises until orders were passed by this Court. He

refers to memos filed by the defendant before the

Executing Court delivering the suit schedule property and

thus submits that the said memos would justify the claim

of the plaintiff of defendant not delivering the possession

of the schedule property upto 16.12.2021. Thus, he

submits that plaintiff is entitled for arrears of rents and

damages from the date of expiry of the lease that is

February 2011 till delivery of possession as above. He

submits that the first appellate court grossly erred in not

appreciating the fact that the plaintiff was constrained to

lock the schedule property to protect it from theft being

committed in the surrounding areas and the same could

not have been construed as plaintiff being in possession of

the schedule property.

8. Sri.N.M.Theerthegowda, learned counsel

appearing for respondent/defendant on the other hand

submits that soon after the expiry of the lease the plaintiff

had locked the premises restraining the defendant from

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using the schedule property. Since the defendant was

prevented from having any access to the schedule

property, the question of payment of arrears of rent would

not arise.

9. Heard and perused the records.

10. There is no dispute of the fact that plaintiff had

locked the schedule property from the month of February

2011. The first appellant court at paragraphs 19 and 20 of

the Judgment has taken note of the admission of PW-1

wherein PW-1 has categorically admitted on and from June

2011 she had locked outside door (main entrance) of the

schedule property, and the lock and the key was with her

even as on the day of leading evidence. It is also

admitted that defendant was residing half a kilometer

away from the schedule property. The witness has also

admitted that she has not given any notice to defendant

before locking the schedule property.

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11. The aforesaid categoric admission on the part of

the plaintiff would leave no doubt that the plaintiff had

locked the building, thereby defendant was prevented

from having any access to the schedule property and using

the same. While the defendant was forcibly prevented

from using the schedule property on account of the

unilateral act of the plaintiff, plaintiff cannot be heard to

say that the defendant was liable to pay the rentals. It is

necessary to note the memos filed by the defendant

before the Executing Court on 15.03.2021 and

16.12.2021.

Memo dated 15.03.2021 reads as under:

"The JDR above named most humbly begs to submit that as per the orders of the Hon'ble High Court of Karnataka, the JDR is ready and willing to handover the possession and to comply the orders but the DHR had placed the locks over the suit schedule property and hence JDR is unable to open the locks and to shift her belongings from the schedule property and hence the JDR had reported the same to the Hon'ble High Court and the Hon'ble High Court had directed the DHR, as per the order dated 26.02.2020 and the JDR is ready to remove all her belongings from the schedule properties, if the locks are removed /opened by the DHR. Hence the JDR prays this "Hon'ble Court to

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pass necessary directions to the DHR for removing the lock and be pleased to pass necessary orders in the interest of justice, equity and law".

Memo dated 16.12.2021 reads as under:

"The undersigned prays that the Two Keys produced before this Hon'ble Court by the Court Commissioner from that one Key of the outside Door cannot be used and from that key the said door was not opened and the said Key has become defunct and another key of the inside room was opened through the said key and the said inside premises key may be handed over to the counsel of the Decree Holder. Hence this Memo".

12. From the contents of the aforesaid memos what

emanates is though a formal handing over of the key by

the defendant to the plaintiff was made, the defendant

was admittedly not allowed to have access to the schedule

property. From the facts on record it can be inferred that

the defendant was prevented from even having access to

the schedule property. The reasons assigned by the

plaintiff and accepted by the trial court that the

commission of theft in the locality prompted the plaintiff to

lock the schedule premises cannot be a justifiable ground

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