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CRP No. 99 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2023 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CIVIL REVISION PETITION NO.99 OF 2020 BETWEEN: SRI D.S. NAGARAJ, S/O LATE SHANTHAMALLAPPA, AGED ABOUT 61 YEARS, R/AT NO.206, 2ND FLOOR, SANVIL APARTMENTS, 6TH AND 7TH CROSS, 50FT ROAD, BALAJI NAGAR, MALLATHAHALLI EXTENSION, BANGALORE-560 056. …PETITIONER
(BY SRI SOMASHEKHARAIAH R.P., ADVOCATE)
AND: 1. SRI M.S. NAGABHUSHANA,
S/O M.N. SATHYANARAYANA RAO,
AGED ABOUT 61 YEARS.
SMT. LALIHTA,
W/O M.S. NAGABHUSHANA,
AGED ABOUT 53 YEARS.
BOTH ARE R/AT NO.12 AND 13,
BALAJINAGAR,
MALLATHAHALLI EXTENSION,
BENGALURU-560 056. …RESPONDENTS
(BY SRI K.P. BHUVAN, ADVOCATE)
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
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CRP No. 99 of 2020
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL CAUSES COURT ACT AGAINST THE JUDGMENT AND DECREE DATED 27.09.2019 PASSED IN SC.NO.1988/2016 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU PARTLY DECREEING THE SUIT FOR EJECTMENT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This matter is listed for admission. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
This revision petition is filed praying this Court to set aside the judgment and decree dated 27.09.2019, passed in S.C.No.1988/2016 on the file of the XVIII Additional Judge, Court of Small Causes, Bengaluru.
The factual matrix of the case of the plaintiffs before the Trial Court is that the defendant is a tenant under the plaintiffs in respect of the suit schedule property. The defendant approached the plaintiffs and requested them to let out the suit schedule premises on rental basis. After mutual discussions between the plaintiffs and the defendant, the rent was fixed at the rate of Rs.2,500/- per
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month and the maintenance charges of Rs.2,600/- which includes, lift, cleaning, security, generator and other facilities and the defendant had agreed to pay the security deposit amount of Rs.9,00,000/-. Accordingly, the plaintiffs and the defendant have entered into a rental agreement on 12.05.2014 for a period of eleven months only. On the date of execution of the rental agreement, the defendant has paid a sum of Rs.9,00,000/- to the plaintiffs and the plaintiffs have received and acknowledged the same. As per the terms and conditions of the said rental agreement, the security deposit amount is refundable by the plaintiffs to the defendant at the time of vacating the schedule premises by the defendant and further the said security deposit amount shall not carry any interest. The original of the rental agreement is in the custody of the defendant and a copy of the same is with the plaintiffs.
The plaintiffs contend that after the expiry of eleven months, in terms of the rental agreement, the defendant approached and requested the plaintiffs to
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extend the time for further two years, but unfortunately on 18.06.2015, the defendant sent a letter informing the plaintiffs that he has vacated the schedule premises on 20.05.2015 and further requested the plaintiffs to refund the security deposit amount of Rs.9,00,000/-. The plaintiffs further submit that as per the request of the defendant, the plaintiffs have issued four post dated cheques in favour of the defendant towards the repayment of the security deposit amount of Rs.9,00,000/-. Further, the plaintiffs specifically instructed the defendant that the cheques shall not be presented before the bank for realization without the prior intimation to the plaintiffs and further stated that the plaintiffs are intending to receive the cash amount and repay the said security deposit in the form of cash and take back the said cheques. Accordingly, on 26.07.2015, the plaintiffs have received cash of Rs.5,00,000/- and paid to the defendant by way of cash before the witnesses and also deducted a sum of Rs.80,000/- towards the arrears of monthly rents along with painting charges in a sum of Rs.15,000/- and
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maintenance charges of Rs.10,000/-, totally in a sum of Rs.6,05,000/- as on 26.07.2015 and as on 26.07.2015, the plaintiffs have to pay the balance amount of Rs.2,95,000/- only to the defendant. The defendant has received and acknowledged the said sum. Inspite of the legal notice, the defendant did not quit and vacate the suit schedule premises as stated in the legal notice and is still in occupation of the suit schedule property and hence, the defendant is liable to pay the monthly rent, enhanced rate of rent and maintenance charges from 26.07.2015 to till date.
Inspite of receipt of the above said amount, the defendant with an oblique intention in order to cheat the plaintiffs, did not choose to return the post dated cheques to the plaintiffs. Thereafter, the plaintiffs got issued a legal notice to the defendant calling upon the defendant to return the four cheques and also to quit, vacate and handover the vacant possession of the suit schedule premises. After receipt of the legal notice, the defendant issued untenable reply to the notice on 07.09.2015 to the
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plaintiffs. Subsequently, on 26.10.2015, the plaintiffs issued a rejoinder notice to the defendant and the same was also received by the defendant. The plaintiffs further submits that inspite of the specific instruction made by the plaintiffs with the defendant through legal notice, the defendant having the custody of the above said cheques with a malafide and oblique intention to get wrongful gain and cause wrongful loss of the plaintiffs, presented the said cheques without informing the plaintiffs and got bounced the said cheques. Thereafter, the defendant filed private complaints against the plaintiffs. After contesting the said cases by plaintiff No.1 and the defendant, the Court was pleased to pass the final order dated 09.11.2016. As per the said order, the plaintiff No.1 is liable to pay only a sum of Rs.3,00,000/- towards the fine amount in respect of all the four cases, out of which a sum of Rs.2,96,000/- has to be paid to the defendant in respect of the above said cheques as compensation. It is the case of the plaintiffs that subsequently the plaintiffs got issued a legal notice dated 07.10.2016 calling upon the defendant to quit,
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CRP No. 99 of 2020
vacate and handover the vacant premises of the suit schedule premises. After receiving the said notice, the defendant issued an untenable reply dated 09.11.2016 and he did not vacate the suit schedule premises and also ever since the date of inception of the tenancy till this day, the defendant has not paid the monthly rents, maintenance charges to the plaintiffs. Hence, suit is filed seeking an order of eviction as well as to pay the amount of Rs.2,500/- per month as rent till handing over the vacant possession of the schedule premises.
The defendant in pursuance of the suit summons appeared and filed the written statement contending that the premises was let out for mortgage after negotiations and discussion and no rent was agreed and he collected an amount of Rs.9,00,000/- on 18.04.2014 and delivered the vacant possession of the schedule premises to the defendant. The lease period agreed was for two years from the date of the deed.
The plaintiffs also acknowledged the amount of Rs.9,00,000/- in terms of the said deed. He had agreed to refund the amount on expiry
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CRP No. 99 of 2020
of the lease period. The plaintiffs got executed the alleged rental agreement dated 12.05.2014 and got the signature of the defendant on the pretext that he wants to declare it to the Income Tax Department. As per the said agreement, it was not acted upon in respect of the recitals regarding rental payments and also the plaintiff had never demanded for payment of rent, since there was no agreement for payment of rent. The defendant also contended that he wanted to vacate the schedule premises under unavoidable circumstances that his son’s college is shifted during that period and accordingly he has intimated to plaintiff No.1 that he would vacate and handover the schedule premises to the plaintiffs and requested the plaintiffs to refund the entire amount of Rs.9,00,000/-. Accordingly, plaintiff No.1 issued four cheques to the tune of Rs.9,00,000/-. When the cheques were presented, the cheques were dishonoured. Hence, the demand was made to pay the cheque amount and also the plaintiffs have not made any demand to the defendant, but false contention was taken that he has paid the cash amount of
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Rs.5,00,000/-. It is also contended that the plaintiffs are not entitled for any damages as claimed and prayed the Court to dismiss the same.
The plaintiffs in order to prove their case examined plaintiff No.1 as P.W.1 and got marked the documents at Exs.P.1 to 13. The defendant neither chose to cross-examine P.W.1 nor lead any evidence. The Trial Court having considered the material available on record, directed the defendant to quit, vacate and handover the possession of the suit schedule premise to the plaintiffs within two months from the date of the order. Being aggrieved by the said judgment and decree, the present petition is filed by the defendant before this Court.
The main contention of the learned counsel for the petitioner is that the plaintiffs have filed frivolous suit demanding the rent for ten months. It is contended that it was a mortgage transaction and no such rent was agreed to pay. The learned counsel submits that it is only a mortgage and hence the question of relationship of tenant and owner was not there and inspite of it, the Trial Court
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committed an error. The learned counsel for the petitioner submits that the learned counsel on record on behalf of the defendant though filed the written statement, he did not contest the matter and whenever the party approached the counsel, he told that whenever his presence is required, he is going to intimate him and ultimately order was passed and execution petition was filed and possession was taken. The learned counsel submits that the Trial Court has given a finding that he is a tenant and now also filed a separate suit for recovery of the amount and if this finding is not set aside, it goes against him and hence this Court has to set aside the order.
Per contra, the learned counsel for the respondents submits that though the defendant was represented through counsel and filed the written statement, he did not choose to cross-examine P.W.1 and also not led any evidence. The learned counsel submits that even after the judgment and decree, he did not vacate the premises and hence execution petition was filed and notice was served on him and he did not vacate and hence
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warrant was also issued and the same was not executed and hence took the police protection and got evicted and got the order enforced in accordance with law. Now, the defendant cannot contend that no opportunity was given and question of remanding the matter does not arise.
Having heard the learned counsel for the petitioner and the learned counsel for the respondents and also on perusal of the material available on record, there is no dispute that in the ejectment suit, notice was ordered and the defendant represented through the counsel and he also filed the written statement setting up the defence that it was a mortgage and not rental agreement. The records discloses that after the filing of the written statement, the learned counsel for the defendant did not cross-examine P.W.1 and also not led any evidence before the Trial Court. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the evidence of P.W.1 is not challenged and hence answered point No.1 in the affirmative in coming to the conclusion that the plaintiffs have established the
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relationship between the parties and terminated the tenancy and it requires separate enquiry for damages from the defendant as sought and comes to the conclusion that the plaintiffs are entitled for vacant premises from the hands of the defendant. Now, the learned counsel for the petitioner contends that the learned counsel on record did not participate and assist the petitioner in conducting the case and he came to know about the same during the execution proceedings after the eviction. The learned counsel for the petitioner submits that due to the negligence on the part of the learned counsel on record, the petitioner should not suffer. Admittedly, the possession was delivered in favour of the plaintiffs. The learned counsel contends that the belongings of the petitioner herein also not handed over to him.
The learned counsel for the respondents submits that delivery warrant was executed through the court process and Ameen came and handed over the possession by drawing the mahazar and in this proceedings, the Court cannot decide the issue with regard to the belongings which
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have not been handed over to him. The learned counsel submits that already they have filed a separate suit for arrears of rent and damages. The learned counsel for the petitioner also not disputes the same, but contends that the finding given by the Trial Court goes against him, if it is not set aside. This Court cannot set aside the order passed by the Trial Court whenever the petitioner approaches this Court. The fact that he has been served with summons and engaged a counsel is not in dispute. If there are any lapses on the part of the counsel, he has to approach the appropriate forum against the counsel. The question of once again remanding the matter does not arise. The suit is for ejection of the petitioner and the Trial Court passed the order directing him to quit and vacate the premises within two months and no order has been passed with regard to the rent or damages and it is held that it requires separate enquiry for damages as per Order XX Rule 12 of CPC. When such being the finding of the Trial Court, the very contention of the learned counsel for the petitioner cannot be accepted and the matter cannot be remanded on
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his whims and fancies. The petition was filed in 2016 and the order was passed in 2019 after three years. Though the petitioner made an allegation against the counsel that he did not inform anything, but what made the petitioner in not appearing before the Trial Court and why he kept quiet, there is no explanation. The learned counsel submits that the learned counsel on record instructed him that whenever his presence is required he has to appear. The said submission cannot be accepted in a revision petition. The scope of revision is very limited and the Trial Court considering the material on record passed the order and possession has already been taken. The other grounds which have been urged before this Court cannot be entertained and admittedly, one more suit is filed by the respondents for the recovery of rent. All those grounds which have been urged before this Court can be urged before the Trial Court.
In view of the discussions made above, I pass the following:
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ORDER
The petition is dismissed.
Sd/- JUDGE
MD List No.: 1 Sl No.: 27