Karnataka High Court

Devakaran S/O Laxminarayan Agarwal ... vs The Bijapur District Co.Operative ... on 3 July, 2024

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                                                     NC: 2024:KHC-K:4537
                                                      RSA No. 200101 of 2021




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                              DATED THIS THE 3RD DAY OF JULY, 2024

                                            BEFORE

                          THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

                         REGULAR SECOND APPEAL NO.200101/2021(POSS)

                   BETWEEN:

                        DEVAKARAN S/O LAXMINARAYAN AGARWAL
                        SINCE DECEASED BY LRS

                   1.   SMT. PUSHPADEVI
                        W/O DEVAKARAN AGARWAL
                        AGE: 67 YEARS,
                        OCC: H.H. WORK AND BUSINESS
                        R/O. VIJAYAPURA.

                   2.   SMT. ASHOK S/O DEVAKARAN AGARWAL
                        AGE: 46 YEARS, OCC: BUSINESS,
                        R/O. MATEWARI SWEET MART,
Digitally signed        IN FRONT OF CENTRAL BUS STAND,
by SUMITRA
SHERIGAR                VIJAYAPURA AND
Location: HIGH          VIVEK NAGAR EAST,
COURT OF
KARNATAKA               VIJAYAPRUA.

                   3.   SUNIL S/O DEVAKARAN AGARWAL
                        AGE: 45 YEARS, OCC: BUSINESS

                   4.   DEEPAK S/O DEVAKARAN AGARWAL
                        AGE: 40 YEARS, OCC: BUSINESS

                   5.   ASHA W/O ARUN MAHAJAN
                        AGE: 48 YEARS, OCC: H.H. WORK,
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                                     NC: 2024:KHC-K:4537
                                       RSA No. 200101 of 2021




    ALL RESIDENTS OF VIVEK NAGAR EAST,
    VIJAYAPURA.
                                                  ...APPELLANTS
(BY SRI VIKRAM VIJAY KUMAR, ADVOCATE)

AND:

THE BIJAPUR DISTRICT CO.OPERATIVE
UNION LTD.,
OPPSITE TO CENTRAL BUS STAND,
VIJAYAPURA,
BY ITS CHIEF EXECUTIVE OFFICER-586101.

                                                 ...RESPONDENT

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE IN R.A. NO.81/2016 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM AT VIJAYAPURA DATED
06.08.2020 AND JUDGMENT AND DECREE OF THE TRIAL
COURT DATED 20.08.2016 IN O.S. NO.278/2011 PASSED BY
THE PRL. CIVIL JUDGE AT VIJAYAPURA AFTER CALLING FOR
THE LOWER COURT RECORDS AND DISMISS THE SUIT.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Against the concurrent findings of facts of the Courts

below the defendants are before this Court in the regular

second appeal.

2. Parties herein are referred to as per their ranking

before the trial Court for the sake of convenience.

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3. Suit property is shop Nos. 2 and 3 measuring 10' x

15' out of CTS No.12/A/1B of Ward No.VI of Vijayapur City.

The plaint avers that CTS No.12 was belonging to the

Government of Karnataka and in the year 1970 the Deputy

Commissioner of Bijapur District, had granted it in favour of the

plaintiff by order dated 14.04.1970. It is stated that the area

granted in favour of the plaintiff has now been re-numbered as

CTS NO.12/A/1B and the property which was granted to the

plaintiff situated is in front of the Central Bus-Stand and the

plaintiff has constructed a building. It is stated that the suit

property was let out in favour of the defendant on 09.10.2006

for a period of 2 1/2 years and he was running a sweet mart by

name and style as "Mateshwari Sweet Mart". It is further

stated that as per the agreement, the defendant was to pay

Rs.1,50,000/- towards deposit and said amount was to be

returned to the defendant on vacating the premises after expiry

of 2 ½ years. The plaintiff issued notice requesting the

defendant to vacate and handover the possession of the suit

property on 31.08.2009. The defendant having not paid rent

regular as agreed, he was regular defaulter and the plaintiff

NC: 2024:KHC-K:4537

having no other option then to seek for vacating and handover

possession of the respective premises.

4. On the notice, the defendant appeared and filed his

written statement, interalia contending that the original

defendant is residing in suit property since 1977 and he is

running business. It is stated that there is no cause of action

for the plaintiff to file suit for possession. During the pendency

of the suit, the defendant expired and his legal representatives

brought on record.

5. The trial Court on the basis of the pleadings, framed

the following issues:

"1. Whether the plaintiff Union Ltd., proves that the jural relationship of lessee and lessor in between plaintiff's and union and defendant in respect of suit property?

2. Whether the plaintiff's union has illegally terminated the tenancy of the defendant in respect of suit property as required under the law?

3. Whether the plaintiff union is entitled for the possession of the suit property?

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4. What order or decree?

Additional issue:

Whether the suit is barred U/s 118 of Karnataka Co-Operative societies Act 1959?"

6. In order to substantiate their claim, plaintiff -

Bijapur District Co-Operative Union Ltd., examined its Chief-

Executive Officer as PW1 was examined and 9 documents at

Exs.P1 to P9 were marked. On the other hand, defendant

examined himself as DW1, two witnesses as DWs.2 and 3 and

got marked documents at Exs.D1 to D9.

7. On the basis of the pleadings, oral and

documentary evidence, the trial Court held that the plaintiff has

proved the relationship of lessee and lessor between the

plaintiff and the defendant and that the plaintiff has proved that

they have legally terminated the tenancy of the defendants as

required under law.

8. By the judgment and decree the suit of the plaintiff

was decreed directing the defendants to vacate and handover

the vacant possession of the suit property - shop Nos.2 and 3

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out of CTS/A/1B of Ward No.VI of Vijayapur City to the plaintiff

within three months' period from the date of judgment.

9. Aggrieved the defendants preferred an appeal

before the first Appellate Court. The first Appellate Court while

re-appreciating and re-considering the entire oral and

documentary evidence affirmed with the judgment and decree

of the trial Court.

10. Aggrieved, the legal representatives of the

defendant are before this Court in the second regular appeal.

11. Heard learned counsel for the appellant Sri Vikram

Vijay Kumar and perused the records.

12. Learned counsel for the appellant submits that the

plinth area of each shop is less than 14 Sq.Mts., and as per

Section 2 Sub-Clause (3)(g) of the Rent Act, the Rent Act is

applicable to the non-residential premises excluding the

premises having a plinth area not exceeding 14 Sq. Mtrs., used

for commercial purpose and when the premises which is a non-

residential one and if its plinth area is less than 14 Sq. Mtrs.,

the Rent Act of 1999 is applicable.

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13. Learned counsel would further submit that the

plaintiff ought to have filed an eviction petition for evicting the

defendant from suit schedule premises by filing a petition under

the provisions of the Rent Act and he could not have

terminated the tenancy by issuing of notice under Section 106

of the Transfer of Property Act, 1908 (Hereinafter referred to

'the Act' for short) and as such, the very suit of the plaintiff is

not maintainable. Stating this, the learned counsel submits

that there arises a substantial question of law for consideration

in the present appeal.

14. The plaintiff - Bijapur District Co-Operative Union

Ltd., terminated the tenancy of all its tenants and called upon

them to vacate and handover the possession of their respective

premises and one such tenant is the appellant herein. The

appellant herein was the defendant before the trial Court, filed

his written statement denying the very establishment of the

plaintiff - Society and contended that the suit of the plaintiff is

not maintainable as per Section 70 of the Co-Operative

Societies Act. The defendant contended that there is no cause

of action to file the suit and sought for dismissal of the suit.

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15. The trial Court considering Exs.P2 and 6, the

notices of the termination issued by the plaintiff in respect of

the suit property under Section 106 of the Act, has held that

the defendant was the tenant and his tenancy has been

terminated in accordance with law. Insofar as the contention of

the defendant about maintainability of the suit is concerned,

stating that the Court had no jurisdiction to entertain the suit

as the suit is barred under Sections 70 and 118 of the

Karnataka Co-Operative Societies Act the trial Court held that

as it does not touch the constitution of the society or any

dispute touching the constitution of the society or dispute

between members of the society and admittedly the defendant

not being member or an employee of the plaintiff's society the

suit of the plaintiff is very well maintainable and does not bar

the suit of the plaintiff and by its judgment and decree directed

the defendants to hand over the vacant possession to the

plaintiff.

16. The first appellate Court being last fact finding

Court has re-appreciated the oral and documentary evidence

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available on record independently and noting the rent paid

receipts produced by the defendants at Ex.P2 as the period of

lease which expired in February 2009 the plaintiff has issued

notice of termination of tenancy and in spite of the compliance

of Section 106 of the Act, held that the defendant has failed to

prove that he is entitled to continue the possession of the suit

property and confirmed the judgment and decree of the trial

Court.

17. The contention of the appellant that the suit shop is

less than 14 Sq. Mtrs., and as per Section 2 of Sub-Clause 3(g)

of the Karnataka Rent Act, 1999, the premises being not

residential one and its plinth area being less than 14 Sq. Mtrs.,

the applicability of Rent Act, 1999, raised for the first time

before this Court. There is no single whisper in the written

statement regarding the applicability of the Karnataka Rent Act,

1999, if such a plea was raised by the defendant, the said

aspect would have fallen for consideration before the Courts

below, have failed to do so. The Apex Court in the case of

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Hero Vinoth (Minor) v. Seshammal1, at Para No.23 of its

decision has held as under:

"23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See :Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179]."

(2006) 5 SCC 545

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18. There arises no substantial question of law for

consideration under Section 100 of CPC. The manner in which

the Courts below have analyzed the entire oral and

documentary evidence, this Court is of the considered view that

there is no illegality or perversity to be considered by this

Court.

19. Accordingly, this Court pass the following: