Karnataka High Court
Smt Kamala Bai vs M/S Kabadi Leasing Company on 30 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.07.2025
Pronounced on :30.07.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30th DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CIVIL REVISION PETITION No.403 OF 2025
BETWEEN:
SMT.KAMALA BAI
W/O SRI NAHARMAL SURANA
AGED 69 YEARS,
NO.39, ANCHEPET,
R.T.STREET CROSS,
BENGALURU - 560 053.
AND ALSO AT:
SMT. KAMALA BAI,
W/O SRI NAHARMAL SURANA,
AGED 69 YEARS,
SHOP NO.2, NO.41 (OLD NO.38)
DEWANKHAN LANE, CHICKPET CROSS,
BENGALURU - 560 053.
... PETITIONER
(BY SRI H.J.SANGHVI, ADVOCATE)
AND:
M/S. KABADI LEASING COMPANY
A FAMILY CONCERN, HAVING REGISTERED
OFFICE AT NO.74,
2
RANGASWAMY TEMPLE STREET,
BENGALURU - 560 053
REPRESENTED BY ITS MANAGER,
MR.K.S.RAGHUNATH,
S/O LATE KABADI SHANKARSA
MAJOR IN AGE.
... RESPONDENT
(BY SRI H.S.SOMANATH, ADVOCATE FOR C/RESPONDENT)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18
OF THE KARNATAKA SMALL CAUSES COURTS ACT, 1964, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.02.2025
PASSED BY THE XXI ADDITIONAL SMALL CAUSES JUDGE & ACJM,
MEMBER-MACT, BENGALURU (SCCH:23) IN S.C.NO.955/2021,
THEREBY DIRECTING THE PETITIONER TO VACATE AND HANDOVER
THE VACANT POSSESSION OF THE SCHEDULE SHOP PREMISES TO
THE RESPONDENT WITHIN 2 MONTHS AND SUMMON THE TRIAL
COURT RECORD AND ALLOW THE CRP.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.07.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/defendant/tenant is before this Court calling
question an order dated 13-02-2025 passed by the XXI Additional
Small Causes Judge, Bengaluru in S.C.No.955 of 2021 directing the
petitioner to vacate the schedule shop premises and deliver vacant
possession thereof.
2. Heard Sri H.J. Sanghvi, learned counsel appearing for the
petitioner and Sri H.S. Somanath, learned counsel appearing for the
respondent.
3. Facts, in brief, germane are as follows:-
The suit schedule shop is said to belong to a family concern
represented by one of the family members who will be hereinafter
referred to as the plaintiff. The plaintiff is the absolute owner of
Municipal No.41 situated in Dewankhan lane, Chickpet Cross,
Bengaluru. The defendant comes as a tenant under the plaintiff in
the plaint schedule shop No.2 measuring 175 sq. ft. The schedule
shop was said to be a joint family property of the plaintiff and the
khatha and other revenue records stand in the name of the plaintiff.
Therefore, he was entitled to enter into an agreement of lease or
tenancy of the suit schedule shop. It was let out to the present
petitioner/defendant on 03-10-1989 in terms of a lease deed. By
efflux of time, the lease stood expired and on a mutual
understanding of tenancy, it is said to have been continued on a
particular quantum of rent.
3.1. The petitioner is said to be paying monthly rent of
₹14,540/- as on date. After expiry of the lease, it is the averment,
that the plaintiff had several times requested the defendant to
vacate the premises and hand over vacant possession owing to his
family requirements. On failing to comply with the request, a legal
notice is caused on the defendant on 21-09-2021 seeking delivery
of vacant possession of the suit schedule shop. Despite legal
notice, it appears, the petitioner did not vacate the shop and,
therefore, the respondent/plaintiff institutes a suit for ejectment.
The suit comes to be decreed in favour of the plaintiff directing the
tenant to vacate and deliver vacant possession of the shop
premises. The tenant/defendant in the suit is before this Court
calling in question the said order.
4. The learned counsel appearing for the petitioner would
contend that there is no privity of contract between the petitioner
and the present plaintiff. It was a contract with the father of the
plaintiff late Kabadi Shankar Sa and would inter alia contend that
the petitioner is ready and willing to vacate the suit schedule shop if
the deposit of ₹10/- lakhs that is made is returned to the petitioner.
Several other legal contentions that were projected before the
concerned Court are reiterated before this Court. On a query, the
learned counsel would submit that if the petitioner has to vacate
the premises, she requires two to three years, as she is running the
business in the shop.
5. Per contra, the learned counsel appearing for the
respondent would vehemently refute the submissions in contending
that the concerned Court has, on elaborate consideration of the
evidence, held that the petitioner cannot continue in the shop
premises, by framing appropriate issues and answering them. He
would submit that the fact remains that the defendant/tenant has
been in the premises since 1989 and now she cannot contend that
the son of the original signatory to the lease deed cannot maintain
the petition or there is no privity of contract between the petitioner
and the respondent. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The facts are not in dispute. The link in the chain of events
are a matter of record. The parties to the lis are now wanting to
project what was projected before the concerned Court in
reiteration of the same. The contentions so advanced by the
defendant, the present petitioner are as follows:
".... .... ....
3. After service of suit summons the defendant has
appeared before the Court though her counsel and filed written
statement. Wherein she denied the entire plaint contents. She
has also denied the jural relationship of land lord and tenant
between the plaintiff and defendant. She contended that the suit
of the plaintiff's is not maintainable either on law of on facts.
Further contended that there was no cause of action. The
plaintiff has not issued any notice for termination. The schedule
premises is less than 14 sq. feet, hence this Court has no
Jurisdiction. He further contended that the real and lawful
tenant was M/s Prakash Sales Corporation, represented by its
Proprietor Sri. Naharmal, who obtained the schedule shop
premises on 10.10.1989 by paying advance sum of Rs.25,000/-
by way of cheque in favour of Kabadi Leasing Company. The
said tenant M/S. Prakash Sales Corporation had paid security
deposit of Rs.40,000/- by cash to M/s Kabadi Leasing Company.
And they were paying monthly rent of Rs.1600/- by cheque. The
real tenant M/s Prakash Sale Corporation also paid a goodwill
sum of Rs.10,00,000/- on 06.09.2010. M/s. Prakash Sales
Corporation requested the plaintiff to accept the Kamala Bai as
Additional tenant in respect of Schedule shop and M/s Kabadi
Leasing Company received advance of Rs.1,00,000/- from the
defendant by cheque drawn on Karur Vysya Bank Limited, dated
06.09.2010 towards advance and the defendant started paying
rent of Rs.2,500/- from 01.09.2010. M/s. Prakash Sales
Corporation and Kamala Bai had been paying rent separately.
They were independent tenants. Defendant on request of
plaintiff enhanced the rent to Rs.2,875 on 01.04.2014 and
3300/- on 01.04.2017...."
The contention of the learned counsel for the petitioner was that
there was no jural relationship of land lord and tenant between the
petitioner and the respondent. The further contention is that there
was no cause of action for causing a legal notice upon the tenant.
He would submit that the petitioner had paid a goodwill of
₹10,00,000/- on 06-09-2010 and had requested the plaintiff to
accept the petitioner as an additional tenant in respect of the
schedule shop. A cheque of ₹1,00,000/- was thus paid by the
petitioner apart from the aforesaid goodwill of ₹10,00,000/-. The
learned counsel for the petitioner would reiterate that the said
goodwill if paid back, the petitioner would vacate the premises.
There is no document produced before the concerned Court or
before this Court evidencing the fact of payment of ₹10,00,000/- as
goodwill. What is found is payment by way of a cheque for
₹1,00,000/-. On the basis of the pleadings, the concerned Court
frames the following issues:
".... .... ....
4. On the basis of the pleadings, the following points arise
for my consideration is that:
1. Whether the plaintiff proves that there is a
landlord and tenant relationship between the
plaintiff and defendant?
2. Whether the plaintiff proves that they have
terminated the tenancy of the defendant?
3. Whether the plaintiff is entitled for the relief
of ejectment?
4. What order or decree?"
The concerned Court answers the aforesaid issues by the following
reasons:
".... .... ....
REASONS
8. Point No.1 and 2: Since these issues are inter
connected with each other, in order to avoid repetition of facts
and discussions they are taken up together for common
discussion.
9. The plaintiff's has knocked the doors of justice with a
prayer to direct the defendant quit and surrender the vacant
possession of the plaint schedule property and such other
reliefs.
10. It is the specific case of the plaintiff's that it is family
concern and they were the owners of the suit schedule property.
They had let out the Schedule shop i.e., suit premises to the
defendant on 03.10.1989. As per the agreement i.e., lease deed
the rent was fixed for Rs.1,050/- per month. Time to time it had
been extended and now the defendant had been giving rent for
Rs.14,540/- p.m. The rent agreement was expired on long back.
The plaintiff's required the suit schedule premises, so they
requested the defendant to vacate the premises and handed
over the premises to plaintiff. But the defendant had not
vacated the premises. Hence, he issued legal notice to the
defendant on 21.09.2021, but it was returned as No Such
Person. Even after the repeated request and also service of
notice, the defendant has failed to vacate the plaint schedule
premises without having any efficacious remedy plaintiff's have
filed the suit.
11. In order to substantiate the above said contentions
the plaintiff 's Manager stepped into the witness box and filed
affidavit in lieu of oral examination-in-chief and examined as
PW1 by reiterating the plaint averments and marked Ex.P1 to
Ex.P8a. Ex.P1 is Authorization letter. It discloses that the
Plaintiff's family concern issued the said letter and authorized
one of the family member to represent the present case. Ex.P2
is the Original lease deed dated 03.10.1989. It discloses that
the plaintiff M/S Kabadi leasing company and defendant had
entered into a lease deed and agreed that the lease period was
5 years and monthly rent was Rs.1,050/- subject to enhance the
rent of 15% after the expiry of period if both parties intended to
continue. The rent could be paid on or within 10th of every
month and also other conditions. Ex.P3 is receipt for the
payment of advance for Rs.25,000/-. Ex.P4 is the office copy of
legal notice dated 21.09.2021 as contemplated U/S.106 of
Transfer of Property Act. Ex.P5 and 6 are the postal receipts.
Ex.P7 is Envelope which returned as No such person. Ex.P7a is
the legal notice. Ex.P8 is the another envelope which returned
as No Such person. Ex.P8a is the legal notice. These documents
clearly reveals that the plaintiff issued quit notice to the
defendant through registered post to the address of shop i.e.,
suit schedule premises and her home address. But both
returned as No Such person. In order to falsify the contentions
of the plaintiff and to substantiate the case of the defendant,
the defendant counsel has cross-examined PW1 at length.
12. On the other hand, it is the case of the defendant that
there was no Jural relationship of land lord and tenant between
the plaintiff and defendant. One M/s Prakash Sales Corporation
was the main tenant under the plaintiff and the defendant
entered as tenant on 06.09.2010. The plaintiff not made M/s
Prakash Sales Corporation as party to the suit, therefore it is
bad for mis-joinder and non-joinder of the necessary parties.
Further he has not issued legal notice and tenancy was not
terminated. Hence, prayed to dismiss the suit.
13. In order to substantiate the contentions the
defendant examined her power of attorney holder as DW.1, the
GPA holder of defendant stepped into the witness box and filed
his affidavit-in-lieu of examination-in-chief examined as DW.1
by reiterating the written statement and he got marked Ex.D1
to 31 documents. Ex.D1 is the GPA executed by defendant in
favour of DW.1 to proceed the case and give evidence in her
favour. Ex.D2 is the Advance paid Receipt, it discloses that the
defendant paid Rs.1,00,000/- to the plaintiff through Demand
Draft. Ex.D3 is the Bank statement of defendant. Ex.D4 to 17
are the statement of profit and loss account from 2011 to 2024
of defendant and Ex.P18 to 31 are the profit and loss account
from 2011 to 2024 of Sri.Naharmal who is the husband of
defendant. The plaintiff counsel has cross examined the DW.1 at
length.
14. The plaintiff being the 'Dominus Litis' to their case as
per S.101 to 103 of Indian Evidence Act, the burden is on the
plaintiff to prove their case. As per legal maxim "Actori
Incumbit Onus Probandi" the plaintiff is burdened to prove
the plaint allegations with oral and documentary evidence. Let
us analyze the rival contentions in the light of oral and
documentary evidence.
15. Before discussing on factual matrix of the case on
hand it is necessary to discuss on the point of jurisdiction of this
Court, because the defendant in his written statement
contended that this Court has no jurisdiction as the
measurement of the suit premises is less than 14 sq. feet. He
ought to have file this case under Rent Control Act, filed before
this Court under section 106 of Transfer of Property Act. He has
also not issued any quit notice etc.
16. On perusal of documents placed by the plaintiff and
defendant and evidence of both, it is an admitted fact that that
the suit schedule premises is measuring 175 sq. feet and it is
non-residential premises and as per the agreement the rent was
Rs.1,050/- p.m., as on the date of agreement dated
03.10.1989. Thereafter, the rent was enhanced, as per plaintiff
the present rent is Rs.14,500/- p.m. Accordingly as per the
defendant present rent is Rs.2876/- and Rs. 3,300/- which total
comes to Rs.6,176/- As per Sec.2(3)(g) & (e) of Rent Act,
whether the Rent Act, is applicable or not be decided. Therefore,
more clarification of Sec.2(3)(g) and 2(3)(e) is extracted as
under:
Sec.2. Application of the Act:
(1)xxxxx
(2)xxxxx
(3) Nothing contained in this Act shall apply.
(a)xxxx
(b)xxxx
(c)xxxx
(d)xxxx
(e) to any premises, deemed rent on the date of
commencement of this Act or the standard rent of
which exceeds.
(i) three thousand five hundred rupees per month in
any area referred to in Part A of the First Schedule;
and
(ii) Two thousand rupees per month in any other area.
Explanation:-'Deemed rent on the date of
commencement of this Act' shall be the rent
calculated in the manner provided in Section 7,
together with revision, if any, as provided in
Section 9 and decreased in the case of premises
constructed after the commencement of this Act at
the same rate as the rate enhancement stipulated
in the Third Schedule to reflect the position on the
date of commencement of this Act;
(g) to any premises used for non-residential purpose
but excluding premises having a plinth area of not
exceeding fourteenth square meters used for
commercial purpose;
17. On plain reading of the above provisions Sec.2(3)
spells out that this very act does not apply if it falls under
clauses (a) to (h). In the present suit the petitioner is paying
rent of more than Rs.5,000/-. Therefore the Rent Act is not
applicable which falls under the T.P.Act and the very premises is
used for non-residential purpose and it is using for commercial
purpose. The area is also exceeds 14 sq. meter. 14 square
meter is equals to 150.695 square feet. But the area is
admittedly 175 square feet. Therefore, the suit is not coming
under the Rent Control Act. Even it is within 14 square meter,
only on that point it cannot be decided that Rent Act, is
applicable. Because Sec.2(3)(g) clearly discloses that if rent
exceeds Rs.3,500/- this act is not applicable. Admittedly in the
case on hand the respondent/defendant is paying more that
Rs.3,500/- p.m. Therefore Rent Act 1999 is not applicable. Since
the case of the defendant falls under clause (e) or (g), the
exceptions provided under (g) cannot be taken into account to
defeat the purpose of exceptions.
18. The more instance given to if the premises is
excluded from applicability of Rent Act in clause (e) it cannot be
defeated by relying on the exceptions provisions in clause (g) on
the ground that the premises is use for commercial purpose and
plinth area and does not exceeds 14 sq. meters. By applying the
same the suit is maintainable in this court.
19. During the argument the learned advocate for
defendant vehemently argued that the plaintiff M/S Kabadi
Leasing company is not owner of the suit premises, the PW.1 in
his cross-examination admitted that it is owned by individual by
name one Kabadi Shankar Sa. Hence, title is disputed,
therefore, as per section 16 of Small Cause Court, Act, this case
is not maintainable. So, he sought for dismiss.
20. On careful reading of the pleadings and evidence it
appears that the suit premises is belongs to Hindu Undivided
Family property of Kabadi's family. They have firm in the name
of M/s Kabadi Leasing Company and let out the shops under
lease. The family members are the partners of the said Leasing
Company. K.S. Ranghunath being Manager and partner and
family member represent the suit. The DW.1 in his cross-
examination admitted that his family is tenant under the plaintiff
company. Therefore, the defendant being a tenant has no locus-
standy to dispute the title of the suit schedule premises. It is
relevant note here that in such circumstances the plaintiff has to
prove only relationship of landlord and tenant. Even the co-
owner of HUF has right to recover the possession as well as
arrears of rent if any. In this regard the defendant relied on the
decisions of AIR 1988 Bom 142, ILR Karnataka 3464, AIR 1982
SC 1213 and AIR 1988 SC 1772. I have gone through the above
decisions. The facts and circumstances of the above cases and
the present case is very different. In the above cases the
tenants disputed the very sale deed of the plaintiff therein. In
the present case the defendant has not denied the sale deed of
Kabadi family. She has not disputed that the suit premises is not
belongs to Kabadi family. She disputed that the suit premises
standing in the name of one Shankar Sa Kabadi but the plaintiff
company is not owner. It is relevant to note that said Shanka Sa
Kabadi is also one of the member and partner of M/s Kabadi
Leasing Company and admittedly it is HUF property. Therefore,
the decisions relied by the defendant are not at all applicable to
the present case. Hence, the contention of the defendant that
suit is not maintainable under section 16 of the Small Cause Act,
does not holds any water.
21. Let us discuss about the factual matrix of the case,
the issue no.1 is relating as to the existence of jural
relationships between the plaintiff and defendant herein. In the
present case on hand the defendant contended that the main
tenant was M/s Prakash Sales Corporation, not the defendant.
The defendant entered as tenant on 06.09.2010. But in this
regard no documents placed by the defendant. On the contrary
the plaintiff has produced the Ex.P1 which is original rent
agreement. As per Ex.P1 the defendant is the tenant. The DW.1
in his cross-examination admitted the said Ex.P1. It is relevant
to note here that the DW.1 categorically admitted that their
family was the tenant and plaintiff was the landlord. The DW.1
in his cross examination stated that they have running business
in the suit premises in the name of M/S Prakash Sales
Corporation. His mother and father are also partners of the
Prakash Sales Corporation. They have been also running the
business. He further admitted that his father Naharmal had
taken the suit premises for rent in the name of his mother by
name Kamalabai i.e., defendant. For more clarification the
relevant para of the cross of DW.1 is extracted as under:
ಾ ಾ ಆ ೋ ೇ ೆ. ಅ ಪ ಾ ಮತು ಾನು ಾ ಾರ ಾಡು ೇ ೆ.
ಪ ಾ ಸಹ ಅಂಗ ಯ ಕು%ತು&ೊಳ() ಾ*ೆ, ಾನು ಸಹ ಕು%ತು&ೊಳ() ೇ ೆ: ನಹಮ+,
ಅವರು .ಾ /ೆ ೆ/ೆದು&ೊಂಡರು ಅಂತ 1ೇ% ೇ ೆ ಎಂದ*ೆ ಸ3. ನಹಮ+, ನನ4 ತಂ ೆ
ಅನು4ವ5ದು ಸ3. ಪ ಾ ನನ4 ಾ6 ಅನು4ವ5ದು ಸ3. ನಮ7 ತಂ ೆ .ಾ /ೆ ಪ8ೆಯು ಾಗ
ನನ4 ಾ6ಯ 1ೆಸ3ನ ಪ8ೆ ದರು ಎಂದ*ೆ ಸ3. ಕ*ಾರು ಪತ ನನ4 ಾ6 1ೆಸ3ನ ಇ ೆ
ಎಂದ*ೆ ಸ3. .ಾ /ೆ ೆ/ೆದು&ೊಳ() ಾಗ :ೆ; ಮೂಲಕ 25 - =ಾ>ರ ರೂ ಾ6 ಮುಂಗಡ
&ೊ?@ದರು ಎಂದ*ೆ ನನ4 ತಂ ೆ &ೊ?@ದರು. ¤.A.3 ರಂ ೆ Bಂಬರಹ ಸಹ &ೊ?@ರು ಾ*ೆ ಎಂದ*ೆ
ನನ/ೆ /ೊ ಲ.
ಗುD>, ನನ4 ತಂ ೆ ನನ4 ಾ6/ೆ &ೊ?@ರು ಾ*ೆ, ಎಷು@ 1ೇ/ೆ &ೊ?@ರು ಾ*ೆ
ನನ/ೆ /ೊ ಲ ಅದು ನನ4 ಪ ಾಣ ಪತ ದ ಇರುತ ೆ. ಮುಂಗಡ ಹಣ ಎಷು@ &ೊ?@ರು ಾ*ೆ
ನನ/ೆ /ೊ ಲ. ಪ &ಾG =ೇ¯ïì &ಾHೕ+*ೇಷI ಅದು ಾಲು ಾ3&ೆ ಸಂ=ೆJ ಆKರುತ ೆ,
ಅದನು4 ಾನು ಮತು ನನ4 ಸ1ೋದರರು ಾಲು ಾರರು ಇರು ೇ ೆ. ಪ &ಾG =ೇ,L
&ಾHೕ+*ೇಷI ಗೂ ನನ4 ತಂ ೆಗೂ ಸಂಬಂಧ ಇರುತ ೆ. ಅವರು ಅ ಬರು ಾ*ೆ
ಕು%ತು&ೊಳ() ಾ*ೆ, ವ ವ1ಾರ ೋ &ೊಳ() ಾ*ೆ. N.A.2 ಕ*ಾರು ಪತ 1ೊರತುಪ .ೇ*ೆ
ಕ*ಾರು ಪತ ಇರುವ5 ಲ. ಾನು &ೊ ೆಯ .ಾ3/ೆ 3-4 ವಷ+ದ Bಂ ೆ .ಾ /ೆ &ೊ?@ರು ೇ ೆ,
ಅ ಂದ ಇ ಯವ*ೆ/ೆ .ಾ /ೆ &ೊ?@ಲ. .ಾ /ೆ Oಾವ &ಾರಣ&ೆP &ೊ?@ಲ /ೊ ಲ.
ಾ ೕಕರು ಮತು ನನ4 ಾ6/ೆ QR ಅಂಡS ¸ÁÖ¤ØAT ಆKರುತ ೆ.
It clears that the defendant admitted the jural relation
ship between the plaintiff and herself.
22. On careful reading of the pleadings, oral and
documentary evidence it discloses that even in the written
statement the defendant denied the relationship between the
plaintiff about land lord and tenant, during the cross
examination DW.1 clearly admitted the jural relationship
between plaintiff and defendant. As per Ex.P2 the agreement
was standing in the name of defendant. It is also admitted that
the plaintiff's company is owner of the suit premises. The
plaintiff entered into an agreement of rent with defendant dated
03.10.1989. It is also an admitted fact that Rent was fixed for
Rs.1050/-. It is also admitted fact that the period was laps long
back and no further written agreements but on mutual consent
they continued the rent. It is also admitted fact that the
defendant has paid Rs.25,000/- as advance. Plaintiff also
admitted the same. He also admitted that he is ready to return
the same. The defendant further contended that she also paid
Rs.1,00,000/- to the plaintiff as advance. The plaintiff admitted
that he received an amount of Rs.1,00,000/- as per Ex.D1. But
the purpose of payment is disputed, both have failed to prove
the purpose of payment of Rs.1,00,000/-. According to the
defendant it is advance and according to the plaintiff it is arrears
rent. In the absence of the documents regarding purpose the
Court can not comes to the conclusion that it is arrears of rent
or it is advance. Hence, the defendant is at liberty to recover
advance amount of Rs.25,000/- after vacant the property if she
clears all the rent.
23. In the instant case on hand, the plaintiff had issued a
quit notice as per Ex.P4. Notice was issued to the defendant's
residential address as well as shop i.e. suit premises as per
Ex.P5 and 6. Ex.P7a and P8a also evident that the plaintiff
issued notice to the address of defendant's residence as well as
shop. But both have returned unserved. The defendant
contended that quit notice was not served to the defendant
hence, rent was not terminated. It is relevant to note that the
defendant has not denied the address given on Ex.P5,6 or Ex.7a
and 8a. Admittedly the defendant has been running business in
the suit premises, however even notice sent to that address it
was returned as no such person. It clears that the defendant
has managed to returned the notice unserved as no such
person. The defendant also not denied her residence address.
But it was also returned as no such person. As per Section 27 of
General Clauses Act, 1897, presumes that a document is
delivered by post when it is sent to the correct address by
registered post. This section applies when law or regulation
requires a document to be served by post. To applicable the
above section the document must be properly addressed, the
document must be posted by registered post and the service is
presumed go have taken place when the letter would have been
delivered in the ordinary course of business. In the present case
as per Ex.P4, P5 and 6 it clears that the document was properly
addressed, the defendant has not denied the address given in
the Ex.P5 and 6 which is also appeared on envelope cover
Ex.P7a and 8a. Both address are correct, one is home address
and another one is business address i.e., suit premises. And
both sent by registered post. Therefore, above section applied
to the case and it was presumed that notice served to the
defendant. But the defendant has not vacated or replied to the
notice. Further admittedly the plaintiff orally requested the
defendant to vacate the suit premises. But the defendant denied
to vacate.
24. It is borne out from Ex.P4 quit notice that tenancy of
the defendant has been duly terminated. Admittedly the
defendant not paid rent since 3 to 4 years. There is no genuine
reason to the defendant to continue the rent in suit premises.
The plaintiff need the suit premises. Even it is not needed to
them, as per the agreement admittedly the period of rent was
completed as such tenancy was terminated. Therefore, also the
defendant shall vacate the suit premises and handed over the
possession of suit premises to the plaintiff. The mandatory
notice which is sent as per Section 106 of Transfer of Property
Act has been presumed to served to the defendant. Further
more it could be culled out from the course of cross-examination
that the defendant had denied the necessity of the plaintiff to
get vacated the schedule property as the plaintiff is not in bona
fide need of schedule property. It is relevant to note that the
petition is not filed under Karnataka Rent Act, to prove the
bonafide need but it is filed invoking Sec.106 of Transfer of
Property. When such is the case the above said contention
urged by the defendant does not hold any water in the eye of
law. On assessing entire evidence in the light of oral and
documentary evidence and in the light of principles of law, the
preponderance of probability tilts more in favour of plaintiff
herein. Hence, this court answers Point No.1 and 2 in the
Affirmative.
25. Point No.3 : As discussed in point No.1 and 2, the
plaintiffs have succeeded in proving the landlord and tenant
relationship between plaintiff's and defendant and also plaintiff's
succeeded in proving the termination of tenancy by the
defendant in accordance with law. Hence, in such an event, this
Court find any reason to brush aside the legitimate claim of the
plaintiff's herein. The plaintiff's have successfully proved their
pleadings with the help of documentary and oral evidence. On
assessing entire evidence in the light of oral and documentary
evidence and in the beacon of light of principles of law, the
preponderance of probability tilts more in favour of plaintiff's
herein. Hence, I answer point No.3 in the Affirmative."
On the aforesaid answers, the concerned Court passes the following
order:
"O R D E R
The suit filed by the plaintiff is hereby decreed with costs.
The defendant is hereby liable to vacate and surrender
the vacant possession of suit schedule premises to the
possession of plaintiff within 2 months from the date of this
order, failing which the plaintiff is entitled to execute the same
by filing separate application.
Office to draw the decree accordingly."
The order was direction to surrender vacant possession of the suit
schedule shop to the possession of the plaintiff within two months.
8. A perusal at the aforesaid order would in no way indicate
that the order suffers from non-application of mind or any
perversity. Entire evidence is taken note of. Not technical but
hyper technical pleas are projected before this Court by the tenant
who is asked to vacate. Vacating the premises is admitted, but the
petitioner seeks two years' time to vacate, to which the learned
counsel for the respondent/plaintiff is not agreeable for any time
beyond 6 months. With the said submission what would
unmistakably emerge is, the admission of tenancy by the petitioner.
If the petitioner is in the premises and the family concern is now
taken care of by the representative of the plaintiff who is the son of
the person who had entered into a lease with the tenant, the
petitioner cannot now contend that there is no jural relationship
between the petitioner/tenant and the landlord.
9. In this regard it is apposite to refer to the judgment of the
Apex Court in the case of KRISHNA SWAROOP AGARWAL V.
ARVIND KUMAR1 wherein the Apex Court holds as follows:
".... .... ....
16. In Ram Murti Devi v. Pushpa Devi16, this Court
discussed the scope of the power of revision in a case arising
out of the UP Urban Building (Regulation of Letting, Rent and
Eviction) Act, 1972, with reference to a case titled Hari
Shankar v. Rao Girdhari Lal Chowdhury17, which, in turn, cited
a case concerning the Provincial Small Cause Court Act of the
Bombay High Court, wherein Beaumont, CJ (as he then was)
held as under:
"4. The section does not enumerate the cases in
which the Court may interfere in revision, as does,
Section 115 of the Code of Civil Procedure, and I
certainly do not propose to attempt an exhaustive
definition of the circumstances which may justify
2025 SCC OnLine SC 1458
such interference; but instances which readily occur
to the mind are cases in which the Court which made
the order had no jurisdiction, or in which the Court
has based its decision on evidence which should not
have been admitted, or cases where the unsuccessful
party has not been given a proper opportunity of
being heard, or the burden of proof has been placed
on the wrong shoulders. Wherever the court comes to
the conclusion that the unsuccessful party has not
had a proper trial according to law, then the Court
can interfere. But, in my opinion, the Court ought not
to interfere merely because it thinks that possibly the
Judge who heard the case may have arrived at a
conclusion which the High Court would not have
arrived at."
Although, not an exhaustive list, we find that none
of the most basic criteria laid down therein, such as lack
of jurisdiction; the decision of the lower Court being
based on evidence that ought not to have been
admitted; lack of proper opportunity of hearing etc., to
have been met in this case. The impugned order does
not speak of any other reason or circumstance which
compelled the Court to exercise its power under
the CPC.
(Emphasis supplied)
The Apex Court, in the afore-quoted judgment holds that, if none of
the basic parameters, such as lack of jurisdiction, opportunity of
hearing or decision being passed on inadmissible evidence are met,
the power under CPC cannot be exercised by the Court, to set aside
the order.
10. There is no warrant of interference with the order passed
by the concerned Court. In the result, the petition deserves to be
rejected.
Accordingly, the Civil Revision Petition lacking in merit stands
rejected.
Consequently, I.A.No.1 of 2025 also stands disposed.
SD/-
(M.NAGAPRASANNA)
JUDGE
BKP
CT:MJ
