Karnataka High Court
Mrs. Jacintha Mary D Souza vs Aysha Moosa Haji on 29 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:29983
HRRP No. 10 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
HOUSE RENT REV. PETITION No. 10 OF 2021 (EVI)
BETWEEN:
MRS. JACINTHA MARY D'SOUZA,
D/O ANTONY D'SOUZA,
AGED ABOUT 47 YEARS,
R/A 14-3-240(A), MANAR COMPLEX
BALMATTA NEW ROAD,
MANGALURU - 575 002.
...PETITIONER
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)
AND:
AYSHA MOOSA HAJI,
W/O LATE A.M. MOOSA HAJI,
(SINCE DEAD)
1. A.M. MOHAMMED SHAFI,
S/O LATE A.M. MOOSA HAJI,
Digitally AGED 62 YEARS,
signed by R/AT NO. 1112, BARTON CENTER,
MALATESH
KC M.G. ROAD, BENGALRU
AND ALSO AT: SEECO MAHAL,
Location:
HIGH KAPRIGUDDA, FALNIR,
COURT OF MANGALURU - 575 001.
KARNATAKA
2. MRS. A.M. SAFIYA,
AGED 60 YEARS,
D/O LATE A.M. MOOSA HAJI
AND W/O A.K. KUNHALI,
R/AT SHABNAM, THANA,
KANNUR, KERALA STATE - 670 012.
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HRRP No. 10 of 2021
3. MRS. A.M. UMMALI,
AGED ABOUT 58 YEARS,
D/O LATE A.M. MOOSA HAJI
AND W/O MOHAMOOD,
4. MR. A.M. ABDUL NASIR,
AGED ABOUT 56 YEARS,
S/O LATE A.M. MOOSA HAJI,
5. MRS. TAHIRA,
AGED ABOUT 54 YEARS,
D/O LATE A.M. MOOSA HAJI
AND W/O B. ABDULLA KUNHI,
6. MRS. HAJIRA,
AGED 52 YEARS,
D/O LATE A.M. MOOSA HAJI,
AND W/O C. MAHIN,
7. MR. A.M. ASHRAF,
AGED 48 YEARS,
S/O LATE A.M. MOOSA HAJI
8. MRS. A.M. NASEERA,
AGED 45 YEARS,
D/O LATE A.M. MOOSA HAJI
AND W/O C. RAFEEQ,
9. MR. A.M. JAFFAR ALI,
AGED 36 YEARS,
S/O LATE A.M. MOOSA HAJI,
NO.3 TO 9 ARE ALL RESIDING AT
MOOLAYIL, THEKKIL FERRY POST,
KASARGOD TALUK AND DISTRICT,
KERALA STATE - 671 121.
...RESPONDENTS
(BY SRI. ANIKETH, ADVOCATE FOR
SRI. B.S. SACHIN, ADVOCATE FOR R7, R2 TO R9;
VIDE ORDER DATED 21.02.2024 NOTICE TO R1 IS HELD
SUFFICIENT;
R7 IS GPA HOLDER FOR R2 TO R6, R8, R9)
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HRRP No. 10 of 2021
THIS HRRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.10.2020
PASSED IN R.R.No.2/2012 ON THE FILE OF THE II ADDL.
DISTRICT JUDGE, D.K. MANGALURU, DISMISSING THE
REVISION PETITION AND CONFIRMING THE JUDGMENT AND
DECREE DATED 21.10.2011 PASSED IN H.R.C.No.37/2006 ON
THE FILE OF THE IST ADDITIONAL CIVIL JUDGE, MANGALORE,
D.K. ALLOWING THE PETITION FILED UNDER SECTION
27(2)(a) and 27(2)(r) FOR EVICTION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Cyril Prasad Pais, learned counsel for the
revision petitioner and Sri.Aniketh, learned counsel for
Sri.Sachin B.S., learned counsel for the respondent.
2. Tenant who suffered an order of eviction is in
the second revision challenging the order of learned Judge
in HRC No.37/2006 dated 21.10.2011 on the file of I Addl.
Civil Judge and JMFC, Mangalore, Dakshina Kannada
District.
3. Brief facts of the case which are utmost
necessary for disposal of the revision petition are as
under:
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3.1. Respondent herein claiming to be the landlord
of the premises bearing No.14-3-240(A) situated in
Commercial complex known as Manar Complex, Balmatta
New Road, Mangalore (herein after referred to as the
schedule property under Section 27(2)(a) and section
27(2)(r) of the Karnataka Rent Act, 1999.
3.2. Petitioner claims that she is the landlady and
respondent is a tenant and carrying on the partnership
business in the name and style of M/s. Manor Builders.
3.3. It is further contended that the said firm was
dissolved with effect from 30.12.2002 as per the
dissolution date and thereafter, respondent continued as a
tenant in the premises.
3.4. Petitioner further contended that the rate of
rent at inception was Rs.1,500/- per month up to
31.03.2003 and thereafter, monthly rent was enhanced to
Rs.1,650/- up to 31.03.2004 and thereafter, it was further
enhanced to Rs.1,815/- per month and once in two years,
there was an escalation clause of 10% of the original rent.
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3.5. It is further contended that respondent was
notified by a legal notice dated 01.02.2006 to clear the
arrears of rent and also to surrender the vacate position of
the premises as the petitioner wanted to commence the
business of her own.
3.6. There was no compliance to the callings of the
notice and therefore, eviction petition was filed.
4. Respondent entered appearance before the Trial
Court and filed detailed written objections.
5. It was contended that petitioner was harassing
the respondent in order to drive her out of the schedule
property one way or the other and used all illegal
methods. But ultimately failed in all those attempts and
has now created a false story of self occupation and
sought for dismissal of the revision petition.
6. She also contended that the landlord of the
premises is one A.M.M.Shafi, who is son of the petitioner
and he had issued a joint letter of attornment to the
respondent and it is stated that schedule premises has
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been allotted to A.M.M.Shafi and as such, petition filed by
the petitioner is not maintainable and sought for dismissal
of the revision petition.
7. On considering the rival contentions of the
parties, the Trial Court allowed the parties to prove their
case by placing necessary evidence.
8. In order to prove the case of the petitioner, one
A.M.Ashraf, the Power of Attorney Holder of the petitioner
was examined as P.W.1 and she placed on record six
documents which were exhibited and marked as Exs.P.1 to
Ex.P.6.
9. As against the evidence placed on record by the
petitioner, respondent got herself examined as R.W.1 and
nine witness viz., Govinda Bhat, Ramakrishna Bhat, N. A.
Mohammed Haji, Kunhamoo, Moideen Kutty Hajee,
Dinakar B., Nagaraj Bhagavath, Vaman B. K., Ramesh
Achar as R.W.1 to R.W.10 and placed on record twenty
nine documents which were exhibited and marked as
Ex.R.1 to Ex.R.29.
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10. Thereafter, learned Trial Judge heard the
parties and raised following points including the existence
of jural relationship between the petitioner and the
respondent:
1. Whether there exits jural relationship of
landlady and tenant between the petitioner and
the respondent?
2. Whether the petitioner proves that the
respondent is in arrears of rent from
01.10.2003 to 31.07.2006 to the total extent of
Rs.51,448/- along with interest at the rate of
18% p.a. as such liable to be evicted under
Section 27(2)(a) of Karnataka Rent Act, 1999?
3. Whether the petitioner further proves that she
requires the petition schedule premises for the
own use and occupation as averred in the
petition as such the respondent is liable to be
evicted under Section 27(2)(r) of Karnataka
Rent Act, 1999?
4. What order?
11. On cumulative consideration of the oral and
documentary evidence on record, in the light of the
principles of law enunciated in the decisions relied on by
both the parties, learned Trial Judge allowed the petition
as under:
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"The petition filed by the petitioner under
Section 27(2)(a) and Section 27(2)(r) for eviction
of the respondent is hereby allowed.
The respondent is directed to pay the arrears
of rentals from the date of 1st January 2005 till
the date of payment at the rate of Rs.1,650/- per
month within two months from the date of this
order and in default, the petitioner is at liberty to
recover the amount as per law.
The respondent is directed to vacate the
petition schedule premises and hand over the
vacant possession of the petition schedule
premises to the petitioner within four months
from the date of this order"
12. Being aggrieved by the same, respondent filed
a revision petition before the First Appellate Court in RRP
No.02/2012.
13. Learned Judge in the First Appellate Court after
securing the records, heard the parties in detail and vide
order dated 01.10.2020, dismissed the revision petition
and confirmed the order of the Trial Court.
14. Being further aggrieved by the same, revision
petitioner is before this Court, in this revision.
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15. Sri.Cyril Prasad Pais, learned counsel appearing
for the revision petitioner vehemently contended that
there is a serious dispute as to the very landlord and
relationship which has not been properly appreciated by
both the Courts and therefore, the eviction petition before
the Trial Court was not maintainable.
16. He further contended that the probative value
of the letter issued by A.M.M.Shafi marked at Ex.R.7 is
totally ignored by both the Courts and therefore, sought
for admitting the revision petition for further
consideration.
17. Per contra, Sri.Sanket, learned counsel for
Sri.B.S.Sachin, learned counsel for the respondent
supports the impugned orders.
18. Having heard the parties in detail, this Court
perused the material on record meticulously.
19. On such perusal of the material on record, it is
crystal clear that at the inception, the premises was leased
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to the partnership firm namely M/s. Manor Builders. Later
on there was dissolution of the firm and respondent
continued as the tenant.
20. The so called dispute as to the jural relationship
between the petitioner and respondent is not probabilised
by placing cogent evidence on record.
21. Any amount of oral evidence, placed on record
by the respondent, by examining nine witnesses on his
behalf, did not advance the case of the revision petitioner
to any extent.
22. If there is any dispute between the petitioner
and A.M.M.Shafi, it is for them to work out in a duly
constituted suit.
23. At any rate, the petitioner herein is only a
tenant and petitioner is no way connected with the internal
disputes between the parties if any.
24. Suffice to say that when there is a specific rent
agreement to lease between the petitioner and respondent
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vide Ex.P.3, further contentions raised by the tenant
cannot be countenanced in law dehors the document.
25. Subsequent rent agreement entered into by the
revision petitioner with A.M.M.Shafi will not quell the
probative value of Ex.P.3.
26. Accordingly, the grounds urged in the revision
petition are hardly sufficient to admit the revision petition
for further consideration.
27. Accordingly, the following:
ORDER
i. Revision petition is dismissed.
ii. Time is granted till 31.08.2024 to vacate the
premises subject to payment arrears of rent.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
