Karnataka High Court
Sri. H C Nagarajiah vs St. Michaels Convent Karwar on 27 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRP No. 100149 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100149 OF 2023
BETWEEN:
SRI H. C. NAGARAJIAH, PROPRIETOR,
SEABIRD TRANSPORTS,
SHOP NO 1, ST MICHAEL'S
COMMERCIAL COMPLEX,
KARWAR.
...PETITIONER
(BY SRI SRINIVAS B. NAIK AND
SMT. RUKMINI PATIL, ADVOCATES)
AND:
1. ST. MICHAEL'S CONVENT KARWAR,
REPRESENTED BY SR MARY FRANCINE
OF ST MICHAEL'S KARWAR - 581 301.
Digitally
signed by V N 2. SMT. SHOBHA W/O ARUP AGRANAYAK,
BADIGER
Location: High R/O HOSALI, ANGADI POST,
Court of
Karnataka KARWAR TALUKA - 581 301.
...RESPONDENTS
(R1 AND R2 ARE SERVED)
THIS CRP IS FILED UNDER SEC. 115 OF CPC, 1908, PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED
03.08.2023 PASSED IN SMC NO. 08/2020 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, KARWAR AT UTTARA KANNADA AND CONSEQUENTLY
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CRP No. 100149 of 2023
DISMISS THE SUIT OF 1ST RESPONDENT IN THE ENDS OF JUSTICE
AND EQUITY AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner who was
defendant No.2 before the Trial Court, aggrieved by the
judgment and order dated 03.08.2023 passed in SMC
No.08/2020 on the file of Additional Senior Civil Judge and
JMFC, Karwar, Uttara Kannada (for short, hereinafter
referred to as 'Trial Court'), by which the Trial Court while
decreeing the suit filed by the plaintiff-respondent No.1
herein directed the petitioner and respondent No.2 herein
who are the defendant Nos.2 and 1 respectively in the said
suit to vacate and hand over the vacant possession of the
suit schedule premises to the plaintiff within two months
from the date of order. The Trial Court also directed the
defendant Nos.1 and 2 to pay the arrears of rent of
Rs.72,000/- to the plaintiff within two weeks.
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2. Parties are referred to by their rank in the suit
before the Trial Court.
3. The plaintiff in the said suit claims to be the
owner of a shop bearing No.1 measuring 10x18.6 bearing
CMC building No.431/1A and 431/1/C in Survey No.1383
B2 village Baad III (Kone), (for short, hereinafter referred
to as 'the suit schedule premises).
4. It is the case of the plaintiff that; defendant
No.1 was the tenant and defendant No.2 was the sub
tenant. That in terms of agreement dated 15.08.1991
plaintiff had inducted the defendant No.1 as a tenant
initially on a monthly rent of Rs.1,200/- with deposit of
Rs.80,000/-. The monthly rent was enhanced to Rs.2000/-
per month and the same was required to be deposited into
the savings bank account. Defendant No.1 failed to
pay/deposit the said amount. That defendant No.1
unauthorizedly and without prior consent of the plaintiff
had sublet and inducted the defendant No.2 into the
schedule premises. That the defendant No.2 without the
permission of the plaintiff made alteration to the said
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shop. The last rent paid by the defendant No.1 was in the
month of July-1997. That the plaintiff is running a reputed
educational institution and the schedule premises is
required for its bona-fide use. As such a notice dated
01.09.2020 was issue to the defendants to which the
defendants issued vague and evasive reply, as such the
suit was filed for relief as sought for.
5. On service of summons, defendant No.1 filed
written statement denying claim of the plaintiff and also
disputing the jurisdiction of the Court. It is contended that
the defendant No.1 was the proprietor of one "Agranayak
Enterprises" and taken the schedule promises for business
purpose by executing unregistered lease deed dated
31.08.1991 and the defendant No.1 had agreed to pay
rent of Rs.1,200/- per month. That due to the threat of
forceful dispossession, defendant No.1 had filed the suit in
O.S.No.114/1992 and obtained an order of injunction
against illegal dispossession by the plaintiff that the lease
has not been extended for over twenty-three years and
the plaintiff has not collected the rent amount either, as
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such the defendant No.1 acquired absolute ownership by
adverse possession as his possession has been un-
interrupted and continuous. That the defendant No.2 has
been permitted to occupy the said premises to run it's
business on a leave and license agreement basis and that
the requirement of the plaintiff is unjustified. Hence,
sought for dismissal of the suit.
6. Defendant No.2 in his written statement
admitted that the defendant No.1 was the tenant of the
schedule premises. It is further contended that the
defendant No.2 was never the sub-tenant but he was
regular tenant having taken the schedule premises directly
from the plaintiff paying monthly rent of Rs.1,200/- and
since the said monthly rent was enhanced to Rs.2,000/-,
and in view of loss during Covid-19 he was not able to pay
the monthly rents to the plaintiff. Hence, sought for
dismissal of the suit.
7. Considering the pleading of the parties, the
Trial Court framed the following points for consideration:
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"1. Whether the plaintiff proves that, the
relationship of plaintiff and defendants is land
and lord and tenant?
2. Whether the plaintiff proves that she is
entitle vacant possession of schedule premises?
3. Whether the plaintiff is entitle arrears
of rent in respect to suit schedule premises?
4. Whether the plaintiff is entitle mesne
profit?
5. Whether plaintiff is entitle relief as
sought for?"
8. Plaintiff examined himself as PW.1 and another
witness has been examined as PW.2 and exhibited
eighteen documents marked as Ex.P.1 to P.18. On the
other hand, defendant Nos.1 & 2 are examined as DW1 &
DW2 and have not produced any documents. The trial
Court, on appreciation of the pleadings and evidence
answered point Nos.1, 2 & 5 in the affirmative and point
Nos.3 & 4 partly in the affirmative and consequently
decreed the suit with costs. Aggrieved by the same,
defendant No.2 is before this Court.
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9. Learned counsel appearing for the petitioner -
defendant No.2 reiterating the grounds urged in the
memorandum of petition submits that, the reason for
non-payment of rent is financial constraints being faced by
the petitioner-defendant No.2 on account of Covid-19
pandemic. It is further submitted that the contention of
defendant No.2 being a sub-tenant is unjustified as the
plaintiff has received the cheque for Rs.60,000/- on
01.08.2019 from defendant No.2 and the said cheque has
been encashed. The said act on the part of the plaintiff
would amounts to acceptance of the rents. That, the
petitioner - defendant No.2 is utilizing the schedule
premises for the bonafide use of the business, which is
only the source for his livelihood, hence, sought for
allowing of the petition and setting aside the impugned
judgment and award.
10. Heard. Perused the records.
11. Admitted facts of the matter is that the plaintiff
/ respondent No.1 herein is the absolute owner of the
schedule premises. Though respondent No.2 herein who
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was defendant No.1 before the trial Court had set up a
plea of adverse possession, the same has been negated by
the Trial Court and the defendant No.1 has not challenged
the said finding and the conclusion arrived at by the Trial
Court. As such the said aspect of the matter need not be
gone into.
12. The defendant No.2 - the petitioner herein does
not dispute the jural relationship between plaintiff and
himself, though plaintiff/respondent No.1 has claimed that
the defendant No.2 to be a sub-tenant.
13. The only issue therefore requires to be
considered in this petition is as to whether the trial Court
was justified in passing the impugned judgment and
order?
14. Admittedly, plaintiff issued notice calling upon
defendants to vacate and hand over the schedule premises
as defendant No.1 had failed to pay the rents as agreed
upon. There is also no dispute of the fact that the
petitioner herein who was defendant No.2 before the Trial
Court was inducted into the premises by defendant No.1,
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and he has also not paid the rent purportedly on account
of Covid-19 pandemic.
15. The Trial Court on consideration of the evidence
on record has come to the conclusion that the petitioner-
defendant No.2 herein was indeed a sub-tenant and since
it is proved and admitted by both defendant Nos.1 & 2 of
they not having paid the rents to the plaintiff, has come to
the conclusion that defendant No.1 as well as defendant
No.2 the sub-tenant were not entitled to continue in the
said premises and were liable to pay the arrears as well.
16. In view of the aforesaid admitted factual aspect
of the matter, no infirmity or illegality in the order
impugned is made out warranting interference at the
hands of this Court. Accordingly the petition is dismissed
and the order of the trial Court is confirmed.
17. The petitioner was directed to deposit the
arrears of rents and the same is stated to have been
deposited before this Court. The Registry shall transfer the
same amount to the trial Court payable to
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plaintiff/respondent No.1. The Registry shall send a copy
of this order to plaintiff/respondent No.1.
SD/-
JUDGE
SMM & VNP*/CT-ASC
