Karnataka High Court

Sri. Sode Vadiraja Mutt vs Sri. Raviraja Hebbar on 5 February, 2025

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                                                         NC: 2025:KHC:5267
                                                       WP No. 5650 of 2020




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 5TH DAY OF FEBRUARY, 2025

                                          BEFORE
                 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                    WRIT PETITION NO. 5650 OF 2020 (GM-CPC)
               BETWEEN:

                    SRI. SODE VADIRAJA MUTT
                    CAR STREET, UDUPI-576 101,
                    REPRESENTED BY ITS
                    POWER OF ATTORNEY HOLDER
                    AND HEAD AND MATADHIPATHI,
                    SRI SRI VISHWAVALLABHA THEERTHA SWAMIER,
                    SON OF K. VEDAVYASA BHAT,
                    AGED ABOUT 41 YEARS,
                    CAR STREET, UDUPI-576 101.
                                                               ...PETITIONER
               (BY SRI. MADHUKAR M. DESHPANDE, ADVOCATE)

               AND:

                    SRI. RAVIRAJA HEBBAR
                    AGED BY MAJOR,
                    S/O. LATE S.K.MANJAPPA HEBBAR,
Digitally signed    UNTOORKATTE POST,
by MEGHA
MOHAN               HASSUR VILLAGE,
                    THIRTHAHALLI TALUK,
Location:
HIGH COURT          SHIMOGA DISTRICT-577 432
OF                                                           ...RESPONDENT
KARNATAKA        (BY SRI. KESHAVA BHAT A., ADVOCATE)

                    THIS WP IS FILED UNDER ARTICLE 227 OF THE
               CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
               DATED 12.06.2019 PASSED BY II ADDL. CIVIL JUDGE AND JMFC,
               UDUPI IN O.S.NO.81/2014 (ANNEXURE-E) ON IA NO.1.

                     THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
               DAY, ORDER WAS MADE THEREIN AS UNDER:

               CORAM:     HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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                                                  NC: 2025:KHC:5267
                                             WP No. 5650 of 2020




                          ORAL ORDER

Aggrieved by the order passed in I.A.No.I in

O.S.No.81/2019 dated 12.06.2019 by the II Additional Civil

Judge and JMFC, Udupi, the petitioner is before this Court.

2. I.A.No.I is filed by the defendant to accept the security

furnished and lieu of making and decree for ejectment pass an

order relieving the defendant against leased forfeiture of the

lease in the ends of justice and equity. The petitioner/plaintiff

has filed the suit seeking a decree in favour of the plaintiff and

against the defendant directing her to surrender vacant

possession of the plaint A schedule property in favour of the

plaintiff, a decree directing the defendants to pay plaintiff a

sum of Rs.4,266.67 as detailed in schedule B of the plaint and

directing the defendant to pay the plaintiff future mesne profits

from 01.02.2014 till delivery of vacant possession of the plaint

property at Rs.200 per month or at such rate to be determined

by the Court after holding necessary enquiry and also to pay

the plaintiff cost of lawyer's registered notice dated

09.03.2012.

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3. In the suit, the present I.A.No.I came to be filed by the

defendant to accept the security furnished and lieu of making

and decree for ejectment pass an order relieving the defendant

against leased forfeiture of the lease in the ends of justice and

equity. The trial Court had allowed the application and had

observed that the document clearly establishes that since 1970,

the father of the defendant was in possession of the suit

schedule property. After the death of his father, the defendant

continued to be in possession of the property till today and

further document reveals that till 2007 the defendant has made

the payment of rent. From 2007 onwards, the defendant was

due of payment of rent. Admittedly, the suit is filed on

07.02.2014 and the summons to the defendant was served on

19.03.2014 and the defendant appeared on 03.04.2014. In the

meanwhile, the defendant has made the payment on

26.02.2014 through DD.No.114198 and the same was sent to

the plaintiff Mutt. Further, the document discloses that on

10.03.2014, the plaintiff Mutt has returned the DD by saying

that they have already filed suit against the defendant in

O.S.No.81/2014. The trial Court had observed that according to

Section 114 of TP Act, if at all the lessee has made a payment

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together with interest and his full cost of the suit or give

security before 1st hearing, the lessee shall hold the property

leased as if the forfeiture had not occurred. Since the defendant

has already paid the amount which was due by him along with

security bond, his right has to be protected under Section 114

of TP Act and he shall be continued as a lessee in the suit

schedule property and accordingly allowed the application.

Aggrieved thereby, the Mutt is before this Court.

4. Learned counsel appearing for the petitioner/Mutt

submits that he has sought for ejectment and also other reliefs

against the defendant. Just because the manner in which the

order is passed, it appears that the entire suit proceedings are

terminated. He submits that unless and until the Court decides

all the issues and the relief that is sought and the detailed

finding is given by the Court it cannot be held that the suit

proceedings are terminated. Learned counsel for the petitioner

has relied on para No.15, 16, 17 of the judgment of the Hon'ble

Apex Court in case of Suresh Shah Vs. Hipad Technology

India Private Limited1 which reads thus:

(2021) 1 SCC 529

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"15. A perusal of the provisions indicate the manner in which the determination of lease would occur, which also includes determination by forfeiture due to the acts of the lessee/tenant in breaking the express condition agreed between the parties or provided in law. The breach and the consequent forfeiture could also be with respect to non-payment of rent. In such circumstance where the lease is determined by forfeiture and the lessor sues to eject the lessee and, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, Section 114 of the TP Act provides that the Court instead of passing a decree for ejectment may pass an order relieving the lessee against the forfeiture due to which the lessee will be entitled to hold the property leased as if the forfeiture had not occurred. Under Section 114-A of the TP Act a condition for issue of notice prior to filing suit of ejectment is provided so as to enable the lessee to remedy the breach. No doubt the said provisions provide certain protection to the lessee/tenant before being ejected from the leased property. In our considered view, the same cannot be construed as a statutory protection nor as a hard and fast rule in all cases to waive the forfeiture. It is a provision enabling exercise of equitable jurisdiction in appropriate cases as a matter of discretion.

16. This position has been adverted to by the Supreme Court in one of its earliest decision in the case of Namdeo Lokman Lodhi V. Narmadabai (AIR 1953 SC 228) as under:

"30. The argument of Mr.Daphtary that there was no real discretion in the court and relief could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of Lords in Hyman v. Rose."

"31. With great respect we think that the observations cited above contain sound principles of law. We are, therefore, unable to accede to the contention of Mr.Daphtary that though Section 114 of the Transfer of Property Act confers a discretion on the court, that discretion except in cases where third party interests intervene must always be exercised in favour of the tenant irrespective of the conduct of the tenant."

17. Such equitable protection does not mean that the disputes relating to those aspects between the

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landlord and the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the circumstance stated in the provision. In our view, when the disputes arise between the landlord and tenant with regard to determination of lease under the TP Act, the landlord to secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However, if the parties in the contract of lease or in such other manner have agreed upon the alternate mode of dispute resolution through arbitration the landlord would be entitled to invoke the arbitration clause and make a claim before the learned Arbitrator. Even in such proceedings, if the circumstances as contained in Section 114 and 114-A of TP Act arise, it could be brought up before the learned Arbitrator who would take note of the same and act in accordance with the law qua passing the award. In other words, if in the arbitration proceedings the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express condition for payment of rent or such other breach and in such proceedings the tenant pays or tenders the rent to the lessor or remedies such other breach, it would be open for the Arbitrator to take note of Section 114 and 114- A of the TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion."

5. Learned counsel appearing for the respondent/

defendant submits that when the plaintiff has paid the entire

amount for the entire period of lease, the plaintiff cannot have

any objection and even in case the defendant is evicted, he has

to again induct another person into possession of the property.

In such case, the continuation of the proceedings against the

defendant will not serve any purpose.

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6. Having heard the learned counsels on either side,

perused the entire material on record. The plaintiff/Mutt has

filed the suit for possession and also sought for other reliefs.

The defendant has come forward to deposit the amount and by

order impugned, the same was allowed by the Court. Even in

that case, the Court still has to decide the other reliefs that are

sought in the suit. Accordingly, this Court is passing the

following:

ORDER

i. The writ petition is disposed off with an observation that even after allowing the defendant to deposit the amount still the Court has to decide the other reliefs sought in the suit on the merits of it.