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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST 2022
BEFORE
THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD
CIVIL REVISION PETITION NO. 289/2018
BETWEEN :
SMT. JYOTHI NARAYAN DAS W/O NARAYAN DAS BODHARAM, AGED ABOUT 73 YEARS, SHOP NO.21, DEVATHA MARKET, CHICKPET, BENGALURU – 560 053. ... PETITIONER
(BY SRI. H J SANGHVI., ADVOCATE)
AND:
M/S DEVATHA SAREE BHANDAR REPRESENTED BY ITS PARTNERS,
SRI D K PANDURANGA S/O DEVATHA KRISHNAIAH SETTY AGED ABOUT 80 YEARS,
SRI D P VINAY MOHAN S/O D K PANDURANGA AGED ABOUT 45 YEARS,
SMT VANI VINOY W/O D P VINOY MOHAN AGED ABOUT 37 YEARS
ALL ARE R/AT NO.43, 30TH CROSS, 3RD MAIN, 7TH BLOCK JAYANAGAR, BENGALURU – 560 011. ... RESPONDENTS
(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR C/R)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURTS ACT, 1964 AGAINST THE JUDGEMENT AND DECREE DATED 05.06.2018 PASSED IN S.C. NO.192 OF 2013 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU DECREEING THE SUIT FOR VACANT POSSESSION.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 06.12.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT MADE THE FOLLOWING:
O R D E R
The petitioner, who is the defendant in SC No. 192/2013 on the file of the XIII Additional Judge, Court of Small Causes, Bengaluru (for short, ‘the Small Causes Court’), has impugned the judgment and decree dated 05.06.2018 in such proceedings. The Small Causes Court by this impugned judgment has directed the petitioner to quit and handover vacant possession of the commercial premises bearing No.21 in Property No.7, Devatha Market, Chickpet, Bengaluru - 560 053 ('the subject premises'). The Small Causes Court has also directed the petitioner to pay a sum of Rs.250/- per month as rental arrears for the months from March 2010 until 22.08.2012 and a sum of Rs.8000/- per month as damages from 22.08.2012 till the date the petitioner vacates and hands over vacant possession of the subject premises. The Small Causes Court has concluded that the petitioner’s possession of the subject premises from 22.08.2012 is unauthorized.
The respondents have initiated the proceedings in SC No. 192/2013 for ejectment contending that the second respondent, Sri D.K. Panduranga, is the owner of the subject premises. He has acquired title to this property under the Partition Deed dated 14.08.1980. In terms of this partition deed, the immovable properties that are described in Schedules - C, D and E appended to such deed are allotted to him, and the subject premises is mentioned in Schedule-D. He has contributed the subject premises towards the capital of the firm, M/s Devatha Saree Bhandar [the Firm], and this is borne out by the terms of the Partnership Deed dated 01.04.1988. The terms of the partnership are revisited with effect from 01.04.1992 when Sri D.K.Panduranga, who was managing the Firm’s affairs until then, expressed his inability to supervise the affairs of the Firm, and his son, Sri D.P. Vinay Mohan [the third respondent] took over the responsibilities. The Firm is reconstituted in the year 2006
5 admitting the fourth respondent, Smt. Vani Vinay, the wife of the third respondent.
The respondents contend that the petitioner, who is in possession of the subject premises as a tenant, was paying monthly rent at the rate of Rs.210/-. When the petitioner stopped paying rent from the month of March 2010, they have caused legal notice dated 22.08.2012 terminating the tenancy and calling upon her to vacate and hand over vacant possession of the subject premises. The petitioner has caused reply notice dated 27.08.2012 denying that she is in possession of the subject premises as a tenant under the respondents; M/s J.N. Textiles, a partnership firm with she as one of the partners, is in possession of the subject premises as the tenant. However, they do not recognize any person other than the petitioner as the tenant because of the express agreement [as part of the lease agreement dated 15.10.1969] and that the petitioner can alone occupy the
6 subject premises for the purposes of running business under the name and style, M/s Jyothi Narayandas.
The respondents further contend that they have also commenced suit in OS No. 314/2011, and there is an interim injunction order restraining the petitioner from carrying on any business in the subject premises under any name other than under the name and style, M/s Jyothi Narayandas. The petitioner must hand over vacant possession of the subject premises, and because she has not handed over the possession, she must be ejected by a decree along with a decree for damages at the rate of Rs.8000/- per month from the date of the suit till the date of delivery of vacant possession.
This Court must, at this stage, record that the respondents had described the subject premises as measuring East to West 18’ and North to South 9’10” in
7 Paragraph-8 of the plaint, but in the Schedule appended to the plaint, the subject premises is described as measuring East to West 15.9’ and North to South 11.1’ and totally measuring 176.49 Sq. Ft. Subsequently, Paragraph- 8 of the plaint is deleted by amendment permitted on 19.08.20131. The second respondent, Shri D.K.Panduranga, who is examined as PW1, has also stated in his affidavit in lieu of examination-in-chief that the subject premises measure East to West 18’ and North to South 9’10”. But the Small Causes Court has expunged this statement by its order dated 28.01.2016.
The petitioner has filed Written Statement contending that there is no jural relationship of landlord and tenant between her and the respondents. She has asserted that the respondents have deliberately not filed any
1 The petitioner has contested the maintainability of the suit denying this measurement and contending that the subject premises measures only 9’ x 14’. The petitioner's defence in this regard is in the additional written statement
8 proceedings against M/s J.N.Textiles, a partnership firm which is in possession of the subject premises for over 44 years. The Firm [M/s Devatha Saree Bhandar] cannot be the landlord of the subject premises. Initially, Sri Narayandas Bodharam was in possession of one of the premises in the old building called Devatha Market. The building was reconstructed by M/s Devatha Building. The partners of this firm let out the subject premises [which measures 9’ x 14’] to her after receiving huge goodwill and advance. Sri D.K. Panduranga commenced proceedings in HRC No. 516/1991 for eviction under the provisions of the erstwhile Karnataka Rent Control Act, 1961 describing the subject premises as measuring 9’x 14’. Neither in his pleadings nor in his evidence in such proceedings, he mentioned that he had contributed the subject premises as his capital contribution to the Firm. The petitioner has referred to different
9 proceedings2 commenced by the respondents to vindicate her stand that the subject premises measures only 9’ x 14’.
The petitioner has further contended that until 17.08.1980, rental receipts are issued by M/s Devatha Building and thereafter, the rental receipts are issued by Sri D.K. Panduranga on behalf of M/s Devatha Market. At no point of time, the rental receipts are issued by the Firm [M/s Devatha Saree Bhandar]. M/s Devatha Building, a partnership firm, is the absolute owner of the subject premises. She is a partner of M/s J.N.Textiles, and this firm is an occupation of the subject premises. This firm is not a party to the present proceedings. On the question of arrears of rents, the petitioner contends that she is prompt in tendering rents, but the concerned is in the habit of refusing
2 The proceedings are in HRC No.515/1991 [against Sri Dhanraj], HRC No. 10538/1991 [against M/s Manoj Textiles], HRC No. 10338/1991 [against Sri N Dharoonlal], HRC No. 1448/1992 [against Sri Mahaveerchand Uttam Chand], HRC No. 10219/1995 against M/s Devatha Fabrics, HRC No. 10228/1995 [against M/s K. Ishwari and Sons] and HRC No. 10218/1995 [M/s Sumerlal Bhandari].
10 to receive rents. Therefore, she has caused legal notice dated 19.06.2010 enclosing a cheque for a sum of Rs.840/- towards the rent payable for the period between April 2010 and July 2010. She has also tendered a sum of Rs.1260/-and another sum of Rs.420/- by money order, apart from another sum of Rs.840/-. These amounts have been refused.
Sri D.K.Panduranga, the second respondent, has examined himself as PW13. In his Examination-in-chief he has reiterated the petition averments, and in his cross- examination, he has stated inter alia that his father, his brothers and he are the original owners of the property known as 'M/s Devatha Market'. His family members have purchased this property in the year 1946. The subject premises is allotted to his HUF in a family partition. The Firm acquired title to this property in the year 1988 with the
3 The office copy of the legal notice dated 22.08.2012, the reply notice dated 27.08.2012, certified copy of the orders on OS No. 314/2011, Partnership Deeds dated 01.04.1988, 01.04.1992 and 01.04.2006, Property Assessment Extract and the Lease Deed dated 15.10.1969 are marked as exhibits P1-P10 through him.
11 same being contributed towards its capital. Prior to 1988 he was collecting the rents as the kartha of his HUF and maintaining the accounts thereof in the name of M/s Devatha Market. There is no firm, either as a partnership firm or a proprietary concern, under the name and style, M/s Devatha Market, but a bank account is maintained in this name for the benefit of his family members. From 1988, the rents have been collected and credited to the Firm [M/s Devatha Saree Bhandar].
However, Sri D.K.Panduranga has denied the suggestion that from the very inception, M/s J.N.Textiles is in possession of the subject premises though he admits that he has commenced proceedings in HRC No.516/1991 against the petitioner as per Exhibit-D1 in respect of the subject premises describing it as measuring 9’ x 14’. He has also stated that when he commenced such proceedings he was not aware of the actual measurement. He has admitted the
12 suggestion that the shop to the west of the subject premises is numbered ‘15’ and he has mentioned the combined measurement of these two premises in his evidence in HRC No. 516/1991 as 22’ x 9’. His deposition in such proceedings is marked as Exhibit D2. He has also admitted that he has transferred this western shop in favour of Sri Dhanraj, and in the sale deed executed in his favour, the adjacent premise is described as measuring 13’ x 9’. But he has qualified this statement asserting that measurement mentioned therein is an approximation.
Sri D.K.Panduranga is categorical that the actual measurement of the subject premises is 14.4’ x 11’ [total 179 Sq. Ft.]. When certain Rental Receipts are confronted to him [which are marked as Exhibits D2 – D7] he has explained that the name ‘Devatha Market’ is only an ad hoc name and all the receipts have been accounted in the Firm’s favour. Responding to the suggestion that he has commenced the
13 proceedings in HRC No.516/1991 in his individual capacity and therefore the Firm could not be the owner of the subject premises, he has stated that he commenced the proceedings under the belief that he could initiate such proceedings on behalf of the Firm and because the khata for the subject property was mutated in his name. He has denied the suggestion that the Partnership Deed dated 01.04.1988 [Exhibit P6], which is executed by him, his son, Sri Vinay Mohan [the third respondent] and his HUF for contributing the subject premises as capital of the Firm, is a sham document.
Sri D.K. Panduranga has been cross-examined on different aspects such as the Firm’s address4; the khata for the subject premises continuing in his name; the commencement of the different proceedings against other tenants; the Partnership Deed dated 01.04.1988 not being
4 He has stated that the Firm's address is No.529, First Floor, Ramesh Market, Avenue Road, Bengaluru, but the address as shown in the plaint is the common address of all the partners of the Firm.
14 acted upon, the deposit of a sum of Rs.840/- by M/s J.N. Textiles in O.S. No.314/2011; and his son, the third respondent, commencing proceedings for eviction of certain tenants in possession of other premises and the disposal of those proceedings. He has admitted most of these suggestions.
The petitioner’s power of attorney, Sri Bansi Lal K Chhabria, is examined as DW1. He has reiterated the petitioner’s pleadings in his examination-in-chief. Apart from exhibits D1-D7 which are marked in the cross-examination of Sri D.K.Panduranga, he has marked a copy of his power of attorney and notarized copies of the sale deeds executed by the respondents for the other premises in the building. In his cross-examination he had admitted that Sri Narayandas was running a textile business in the subject premises under the name and style, M/s Jyothi Narayandas Textiles, and he was working with him as an assistant. However, in the year 1971,
15 he joined the firm comprising of himself and the petitioner, who is his mother’s younger sister. They have not obtained any permission from the landlords for the change. No permission is obtained for this change. Sri Narayandas is aged about 78 years and his wife, the petitioner, is aged about 65-70 years. The couple normally do not visit the subject premises except for Puja. He has stated that he could produce documents to show that he is operating the firm’s business as the managing partner, but he has not produced any such document.
Sri Bansi Lal K Chhabria is also permitted to further examine himself. He has accordingly filed his affidavit on 05.01.2018 in lieu of further examination-in-chief. This is after the Court Commissioner5 appointed by the Small Causes Court has filed his report and is examined as CW1.
5 The Assistant Director of Land Records, Bengaluru, who at that point of time was in Office holding additional charge, is appointed as the Court Commissioner.
16 In his further evidence, Sri Bansi Lal K Chhabria has stated that the carpet area of the subject premises is 9’ x 14’ [126 Sq.Ft] and the plinth area is 151.2 Sq.Ft. He has also stated that because the carpet area is below 14 Sq.Mts and the rent for the subject premises is only Rs.210/– per month, the respondents’ suit for ejectment must be dismissed.
The Court Commissioner, in his report filed on 22.07.2017, has stated that the carpet area of the subject premises is 14.76’ [in length] and 9.02’ [in width]; the plinth area of the subject premises is 16.07’ [in length] and 10.33’ [in width]; the area marked in Blue colour [in the sketch] is outside the plinth area6. Though the Court Commissioner has mostly reiterated the contents of his Report in his examination-in-chief, in his cross-examination he has admitted that he has measured the subject premises in meters but has mentioned the measurements in his Report in
6 The Commissioners report, which includes the sketch and the different documents furnished to the Commission, are marked as exhibits C1 – C10.
17 Sq. Ft. and he has applied the conversion scale of 10.76 Sq. Ft. per Sq.Mtr. He has also mentioned that the petitioner is in possession of the premises that measures East to West 4.05 Mts. and North to South 2.75 Mts. and the total measurement is 12.37 Sq. Mts.
The Small Causes Court, in the light of the rival pleadings and the aforesaid evidence on record, has formed the following points for consideration7:
[a] Whether the respondents prove that they have validly terminated the tenancy of the subject premises in favour of the petitioner, and
[b] Whether the respondents are entitled for the relief sought for by them
The Small Causes Court, on the petitioner’s defense that the respondents’ suit must be rejected because
7 In the questions framed, the Small Causes Court has referred to the parties as they are arrayed in the proceedings before it.
18 the subject property measures more than 14 Sq. Mt., has opined that the petitioner has not placed any material on record to substantiate the measurement of the subject premises as asserted by him. The Small Causes Court has concluded that the petitioner’s witness [DW1] has admitted that the plinth area of the subject premises is 151.2 Sq.Ft., and when this is converted into Sq.Mt, the plinth area measurement would be 14.03 Sq. Mt; if the plinth area is more than 14 Sq. Mt, in the light of this Court’s decision in K.T.Gowda v. Nagaraj Rao8, a suit for ejectment would be maintainable.
The Small Causes Court has also concluded that the issuance of the legal notice dated 22.08.2012 is not in dispute, and this notice satisfies the requirements of Section 106 of the Transfer of Property Act, 1882. The Small Causes Court, observing that the agreed rate of monthly rent and the
8Reported in ILR 2008 Kar. 2753
19 market rent are not disputed, has directed the petitioner to pay arrears of rent and damages as aforesaid.
It is seen from the records that the petitioner has deposited the following amounts in the present proceedings:
1 Rs. 2520/– This Court on 04.07.2019 has permitted acceptance of the deposit of this amount. Consequentially, the petitioner has submitted re-validated pay order dated 21.05.2019 and this deposit is accepted
2 Rs. 5040/– This Court on 25.07.2019 has permitted acceptance of the deposit of this amount. Consequentially, the petitioner has submitted re-validated pay order dated 21.05.2019 and this deposit is accepted
3 Rs. 1260/– The petitioner has filed pay order dated 06.11.2020 along with the memo dated 27.11.2020. However, there is no order to accept this deposit
4 Rs. 1890/– The petitioner has filed pay order dated 01.04.2021 along with the memo dated 16.07.2021. However, there is no order to accept this deposit
Rs. 10,710 Total
The petitioner has recently frilled another Memo for deposit of Rs.2,520/-.
This Court on 06.12.2021 has recorded the learned counsels’ submissions that this Court, subject to final orders, may permit the petitioner to take back the Pay orders dated 06.11.2020 and 01.04.2021. This Court has also recorded that the submissions in this regard are taken on record for appropriate consideration at the time of final disposal. Further, the learned counsel for the parties by mutual consensus are permitted to place on record certain additional material, including a certified copy of the order dated 27.01.2003 in HRC number 516/1991 and a copy of the plan for the reconstruction of the Devatha Market. These additional materials are taken on record without objections by other side.
21 20. This Court in the light of the rival submissions, which are adverted to later, will have to consider the following questions:
[1] Whether the petitioner should succeed in her defense that the respondents must fail in their suit for ejectment because there are serious questions over their claim to the subject premises.
[2] Whether the petitioner is successful in establishing that the subject premises measure less than 14 Sq.Mt. and therefore her tenancy is protected under the provisions of Karnataka Rent Act, 1999.
[3] Whether the Small Causes Court has erred in concluding that the respondents have terminated the lease of the subject premises in favour of the petitioner and the petitioner is liable to pay rental arrears at the rate of Rs.210/- per month from March 2010 till 22.08.2012 and damages at the rate of Rs.8,000/- per month that date till the date of handing over vacant possession of the subject premises to the respondents.
22 Reg: Question No. 1
Sri H.J. Sanghvi, the learned counsel for the petitioner, submits that the Small Causes Court has failed to consider that the petitioner has demonstrated that the respondents can neither assert clear and indisputable title to the subject premises in themselves nor in the Firm [M/s Devatha Saree Bhandar] and as such, they could not successfully maintain the suit for ejectment. If there are serious disputes over title, a suit for ejectment cannot be sustained. The civil Court has not even considered this question and therefore, this Court must intervene.
Sri H.J. Sanghvi, in support of this canvass, argues that the respondents contend that Sri D.K. Panduranga, his father and brother were the owners of the larger property comprising of the subject premises, and in the family partition vide the Partition Deed dated 14.08.1980, Sri D.K.Panduranga and his son, Sri Vinay Mohan [the third
23 respondent] are allotted the subject premises. However, the respondents cannot dispute that Sri D.K.Panduranga was collecting the rents as the proprietor of M/s Devatha Market as he has admittedly issued Rental Receipts as per Exhibits D2-D7 even after the aforesaid partition. Though the respondents contend that Sri Panduranga has brought the subject premises into the Firm’s capital, and that the Firm is reconstituted on 01.04.1992 and again on 01.04.2006 [Exhibits D7 and D8], they have not issued any notice for attornment of tenancy.
Sri H.J. Sanghvi submits that if indeed the subject premise is brought in as the Firm’s capital in the year 1988, Sri D.K.Panduranga would not have commenced proceedings in HRC No. 516/1991 in his personal capacity. Neither in his pleadings nor in his evidence in these proceedings, he has stated that the Firm was the owner of the subject premises and in fact, he has asserted that he is the absolute owner of
24 the subject premises. This completely belies the respondents’ case that the Firm is the absolute owner of the subject premises. Despite these contra circumstances, the respondents have not produced, except the partnership deeds, any document to show that the income tax returns are filed on behalf of the Firm disclosing either that it is the owner of the subject premises or that the rental receipts have been accounted for on behalf of the Firm.
Smt. Sruti Chaganti, the learned counsel for the respondents, submits that the petitioner, in the Reply Notice dated 27.08.2012 [Exhibit P4], is categorical that M/s Devatha Building was receiving rents in the year 1980, and thereafter on 07.08.1980 notice is issued to her informing about the partition amongst the family members and for payment of rents to Sri D.K.Panduranga. The petitioner does not dispute that the agreed rent is last paid to Sri D.K.Panduranga. Sri D.K.Panduranga and his son, Sri Vinay
25 Mohan [the third respondent], who were partners of the Firm [M/s Devatha Saree Bhandar], and Sri D.K.Panduranga, as the Kartha of his HUF, have signed the Partnership Deed dated 01.04.1988 [Exhibit-P6]. The terms of this Partnership Deed demonstrate that the subject premises and the other premises owned by the aforesaid HUF is contributed as capital of the Firm.
Smt. Sruti Chaganti argues that if the aforesaid circumstances are undisputed, it cannot be disputed that the respondents continue to be the owners of the subject premises albeit as the partners of the Firm. She canvasses that in law a partnership is not a separate entity from its partners. A partnership is only a compendious name for all the partners, and such firm will not have its own separate rights distinct from the partners’ rights. When one talks of firm’s property, one necessarily speaks of partners’ property because their interest in the firm’s property would be as
26 tenants-in-common. As such, in the present case the HUF’s interest in the subject premises is not extinguished or abridged by its contribution as capital of the Firm9. She further canvasses that there would be statutory attornement of tenancy in favour of the Firm with the aforesaid change because of the provisions of section 109 of the Transfer of Property Act, 1882. The jural relationship between the respondents and the petitioner is established. Therefore, the petitioner cannot succeed in her defence that the respondents’ suit must fail because there are serious questions over their claim to the subject premises.
Smt. Sruti Chaganti next submits that Sri D.K. Panduranga has commenced proceedings in HRC No.516/1991 under the provisions of the Karnataka Rent Control Act as a ‘landlord’ of the subject premises because
9 In support of this legal canvass, Smt. Sruti Chaganti relies upon the decision in S V Chandra Pandian and others v. S V Shivalinga Nadar reported in (1993)1 SCC 589 and in Sujan Suresh Savant v Dr.Kamalkant Shantharam Desa reported in 2004 SCC Online Bom. 627
27 under the provisions of such Act a landlord could commence such proceedings. In this regard, she relies upon the provisions of section 3 (h) of this enactment. She also further submits that when a partner initiates proceedings, he necessarily acts on behalf of the firm as its agent and therefore, Sri D.K. Panduranga was within his competence as a partner of the Firm and as a co-owner to initiate the proceedings under the erstwhile enactment.
It is salient that the respondent either does not dispute or cannot dispute that she was inducted into the subject premises as a tenant by Sri D.K. Panduranga’s family members in the year 1969 with the execution of the Lease Deed dated 26.06.1969 (Ex.P10); that after the partition in the year 1980 in which the subject premises is allotted to Sri.D.K. Panduranga, a Letter dated 07-08-198010 is addressed to the respondent calling upon her to pay rents to
10A copy of this Letter is produced in the present proceedings
28 D.K.Panduranga and son (HUF); that after this letter, the respondent has tendered rents to Sri.D.K.Panduranga; that with the execution of the Partnership dated 01.04.1988 (Ex.P6), D.K.Panduranga and son (HUF) is admitted as one of the partners of the Firm with the subject premises being contributed as capital; that even as of today Sri.D.K.Panduranga, his son and his daughter-in-law claim title to the subject premises but not as members of HUF.
The petitioner’s case that there is serious dispute over the respondent’s claim over the subject premises is essentially premised in the assertions that Sri.D.K. Panduranga, even after the Letter dated 07.08.1980, has received rents as the proprietor of M/s Devata Building and that he has commenced proceedings in HRC No.516/1991 asserting that he is the absolute owner. The respondents do not dispute these assertions and in fact, they explain this relying upon two propositions viz., that a co-owner can sue
29 for ejectment of a tenant on behalf of the co-owners and that a partner’s actions are always as an agent of the firm.
Though a host of decisions are filed, it cannot be disputed that these two propositions are indeed settled. These propositions, in the undisputed facts and circumstances of the case which are mentioned in para 27 surpa, must necessarily have full play. In which event, neither of the two circumstances relied upon by the petitioner would create a serious doubt over the respondent’s claim over the subject premises for the purposes of the present proceedings. This Court must also refer to the provisions of Section 116 of the Indian Evidence Act, 1882 which incorporate the doctrine of estoppel that prohibits a tenant from disputing the landlord’s title.
There are certain notable exceptions to the applicability of this doctrine. A useful reference in this regard could be made to the decision of the Hon’ble Supreme Court
30 in S. Thangappan v. P. Padmavathy11, where it is reiterated as follows: "This section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are “at the beginning of the tenancy”. This is indicative of the sphere of the operation of this section. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord's title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. However defective the title of such landlord could (sic may) be, such tenant cannot deny his title. But subsequent to his induction as tenant if the landlord loses his title under any law or agreement and there is a threat to such tenant of his eviction by subsequently acquired paramount title- holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by this principle of estoppel under this section."
11 Reported in (1999) 7 SCC 474
31 31. But in the present case, where the petitioner does not dispute the salient such as that she was put in possession of the subject premises by Sri D.K. Panduranga’s family members, that in the subsequent family partition the subject premises is allotted to Sri. D.K. Panduranga, and that Sri.D.K. Panduranga still continues to retain rights as a co- owner [though as a partner of the Firm], the doctrine of estoppel must apply. Therefore, the petitioner cannot succeed in her defense that she can demonstrate a serious question over the respondents' claim to the subject premises. As such the question for consideration in this regard must be held against the petitioner.
Reg. Question 2
Sri H.J.Sanghvi submits that Sri D.K. Panduranga is categorical in the proceedings in HRC No.516/1991 that the subject premises measures East to West 14’ and North to South 9’. Even according to the lease deed dated 15.10.1969
32 [Exhibit P10,] the subject premises measures only 150 Sq. Ft. Because the petitioner seriously disputes the assertion that the subject premises measures East to West 15.9’ and North to South 11.1’ [176.49 Sq ft], this Court, in CRP No. 31/2017, has directed the Small Causes Court to appoint a Court Commissioner. Thereafter, a surveyor, who is not even a graduate, is appointed as the Court Commissioner. The Court Commissioner has furnished his Report mentioning the measurements of the subject premises in Feet/Sq.Ft. The carpet area of the subject premises, even according to this Report, is East to West 9’ and North to South 14’.
Sri H.J. Sanghvi submits that the Court Commissioner, at the instance of the respondents, has filed a report stating that the plinth area will be 166.02 Sq.Ft. [16.07 feet in length and 10.33 feet in width]. Nevertheless, he has admitted in his cross-examination that the petitioner is in possession of an area measuring 12.37 Sq.Mts. [East to West
33 4.05 Mts. and North to South 2.75 Mts]. The Court Commissioner’s report demonstrates that the measurement of the subject premises is below 14 Sq.Mts. The respondents do not dispute that if the measurement of the subject premises exceeds 14 Sq.Mts, the petitioner can only be evicted subject to the provisions of the Karnataka Rent Act, 1999.
Smt. Sruti Chaganti on the other hand, submits that notwithstanding the Commissioner’s Report, there cannot be any dispute about the measurement of the plinth area of the subject premises. The petitioner’s witness [DW1] in his additional evidence has admitted that the plinth area of the subject premises measures 151.2 Sq.Ft; if the admitted plinth area is 151.2 Sq.Ft, the corresponding measurement in Sq. Mt. will be 14.03 Sq. Mt. She emphasizes that it is settled that for the purposes of jurisdiction under the Karnataka
34 Rent Act, the plinth area of the premises would be decisive12, and given the provisions of this Act13, the respondents’ remedy for securing the petitioner’s ejectment is only after termination of lease as contemplated under Section 106 of the Transfer of Property Act,1882.
Smt. Sruti Chaganti further submits that Sri D.K.Panduranga has indeed commenced proceedings in HRC No.516/1991 under Section 21(1)(h) of the Karnataka Rent Control Act, 1961. But with the coming into force of the Karnataka Rent Act,1999 and because the premises such as the subject premises are excluded from the applicability of the aforesaid Act, Sri D.K.Panduranga has filed Memo on 27.01.2003 for leave to withdraw the petition stating that the subject premises measures more than 14 Sq. Mts. with leave
12 The learned counsel, in this regard, relies upon the decision of this court in B.Chikkanna and another v. Smt. K M Jagadamba reported in ILR 2006 Kar 4207.
13The provisions of section 3(g) of the Karnataka Rent Act stipulate that its provisions will not apply to premises used for commercial premises and if the plinth area of such premises exceeds 14 sq.mts.
35 to initiate fresh proceedings. This memo is accepted, and the proceedings closed. As such, the petitioner cannot take any advantage of the description of the measurement of the subject premises in such proceedings. In this regard, she relies upon a certified copy of the memo dated 27.01.2003 placed on record in these proceedings on 22.10.2020.
The respondents admit that the inception of tenancy of the subject premises is with the execution of Lease Deed dated 15.10.1969 [Exhibit P10]. The Schedule appended to this Lease Deed mentions the measurement of the subject premises. It is stated that the subject property measures East to West 15’ and North to South 10’ without specifying whether that is the measurement of the carpet area or the plinth area, obviously because at that point of time the measurement of these two areas did not determine jurisdiction.
36 37. In HRC No.516/1991 Sri DK Panduranga has mentioned the measurement of the subject premises as East to West 14’ and North to South 9’ without specifying whether that is the measurement of the carpet area or the plinth area. Even in the year 1991 the measurement of these two areas did not affect the jurisdiction. However, with the coming into force of the Karnataka Rent Act,1999, which makes the measurement of the plinth area crucial for jurisdiction, Sri D.K.Panduranga is permitted to withdraw this petition upon his Memo dated 27.01.2003. This Memo in its material part reads as under:
"The petition schedule shop premises measures East to West 15 feet nine inches and North to South 11 feet 1 inch. It totally measures more than 14 Sq. Mt.. In view of the provisions of the Karnataka Rent Act, 1999, the petitioner cannot maintain the above petition against the respondent to have the benefit of an order of an eviction in respect of the petition schedule shop premises. Preserving his right to institute appropriate legal proceedings against the respondent to have possession
37 of the petition schedule premises, the petitioner be permitted to withdraw the above petition."
On the same day viz., 27.01.2003, the concerned Court has dismissed the petition as not pressed recording that the learned counsel for the respondents has requested for dismissal of the petition in the light of this memo.
The Court Commissioner though has stated in his cross-examination that the petitioner is in possession of an area measuring 12.37 Sq. Mts., he is categorical in the sketch, which is part of this Report marked as Exhibit C2, that the plinth area measures 166.02 Sq.Ft. [i.e., 16.07 feet in length and 10.33 feet in width]. In the sketch, he has the marked separately both the plinth and the carpet areas. The carpet area is mentioned as 133.13 Sq. Ft.
The carpet area is marked with the alphabets 'ABCD' and the plinth area is marked with the alphabets 'EFGH'. The area marked in Blue is described as a concrete platform outside the plinth area. The wall area is indicated to be between the two boxes marked in letters 'ABCD' and 'EFGH'. Significantly, even the petitioner’s witness [DW1] is categorical in his additional evidence that the plinth area of the shop premises measures 151.2 Sq.Ft.. His evidence in this regard reads as under: "I have appointed independent engineer and was given report that the carpet area of the schedule
39 shop is measuring 9 ft. X 14ft. i.e. 126 Sq.Ft. only and plinth area of the schedule shop premises measuring 151.2 Sq. Ft. only.
It cannot be disputed that 10.764 is the value that will have to be applied for converting the measurement in Sq. Mts. to Sq.Ft. If the measurement of the plinth area admitted by the petitioner viz. 151 Sq. Ft. is taken, the area in Sq.Mts would be 14.046 Sq.Mts. If the plinth area as mentioned by the Commissioner viz., 166.02 Sq.Ft. is taken, the area in square meters would be 15.423 Sq.Mts. In either event, the plinth area of the subject premises would be more than 14Sq.Mts.
In view of this evidence, the petitioner cannot take advantage of the description of the measurement in HRC No.516/1991. Further, the description of the measurement in such proceedings, when in the year 1991 the measurement did not affect jurisdiction, cannot be fatal because Sri D.K. Panduranga, one of the petitioner therein, has withdrawn the
40 petition on the specific ground that the subject premises measures more than 14 Sq. Mts. before there could be final adjudication.
As regards the law on whether the carpet area or the plinth area would be decisive, a useful reference could be made to the Division Bench judgement of this court in M L Shiv Kumar v. N Annappa (since deceased} by LRs and another14. On this specific question, it is held as follows:
"Therefore, the duty of the court is to attribute the meaning which is well understood. In other words, to give a literal meaning to the word used by the legislature in the statutory provisions. When such meaning is attributed, there is no scope of excluding what is included in the “plinth area” on the concept of non user of that premises. Therefore, the said provision cannot be construed as meaning that it is only actual user of the area used for commercial purpose which is to be taken into consideration. There is no warrant for such construction or interpretation as the word employed is very clear. The word is used in the context of user of the
14 Reported in 2011 SCC online Karnataka 4072
41 premises, either for residential or non-residential, which decides the application of the aforesaid proposition. The first condition is, the premises should be used for non- residential purpose. Thereafter, it should be used for commercial purpose. It is only then, if the area of the premises exceeds 14 Sq. Mt., the application of the act is excluded. Therefore, the word “user used in the provision is in the context of the purpose for which the premises is used and not the area which is put to use.
For the aforesaid reasons, keeping in mind, the words used in the statute, the law regarding interpretation of the statutory provisions and the purpose for which the Act is enacted and this exclusion from the application of the Act which is provided for, it is manifest that the plinth area is not the carpet area. It is carpet area and the area covered by the walls of the premises, which constitutes “plinth area”, which is to be taken into consideration."
In the light of this discussion, the question for consideration in this regard must be held in favour of the respondents and against the petitioner.
42 Reg. Question No. 3
Sri H.J. Sanghvi submits that the respondents have not placed on record any evidence to substantiate that the petitioner is in arrears of rent at the rate of Rs.210/- per month from March 2010 and similarly, they have not placed on record any material to demonstrate that they would be entitled for damages at the rate of Rs.8000/- per month. The Small Causes Court, despite its limited pecuniary jurisdiction and the lack of material, has directed the respondent to pay rental arrears at the rate of Rs.210/- per month for the said period and damages at the rate of Rs.8000/-per month. The finding in this regard cannot howsoever be justified.
In rebuttal, Smt. Sruti Chaganti submits that there is no dispute that the rent is last paid at the rate of Rs.210/– per month; the petitioner on its own initiative may have deposited some rent in the suit in O.S. No.314/2011, but that was without notice to the respondents. This deposit
43 does not constitute valid payment of rent. The suit in O.S. No.314/2011 is dismissed on 31.07.2007 as withdrawn. She argues that the petitioner cannot deny the liability to pay arrears of rent as of the date of legal notice dated 22.08.2012 nor the liability to pay damages at the same rate after this legal notice.
The petitioner does not dispute that her possession of the subject premises is as a tenant. Crucially, Sri H.J.Sanghvi’s submissions is centered around the jurisdiction of the Small Causes Court to entertain the respondents’ suit for ejection on the ground that the subject premises measures less than 14 Sq.Mts., and he does not contest the respondents’ case that the tenancy is determined with the issuance of legal notice dated 22.08.2012 [Exhibit P1] calling upon the respondent to vacate and hand over vacant possession of the subject premises after availing 15
44 days’ notice as contemplated under Section 106 of the Transfer of Property Act,1882.
It is seen from the records that upon receipt of this legal notice dated 22.08.2012 the respondent has caused reply notice dated 27.08.2012 [Exhibit P4]. The suit is commenced on 14.02.2013 much after the expiry of 15 days. Admittedly, the subject premises is used only for commercial purposes. Thus, the lease is validly terminated and the finding by the Small Causes Court in this regard cannot be found fault with.
It is admitted that the last rent is paid at the rate of Rs.210/– per month. In fact, certain amounts are deposited in the present proceedings at the aforesaid rate. The petitioner contends that the rental arrears are deposited in O.S.No.311/2011. However, there is no material to demonstrate that the respondents have withdrawn the
45 amount deposited in such proceedings. There is also no material on record to demonstrate that the petitioner has paid any rent to the respondents after the issuance of the legal notice dated 22.08.2012. The respondents have not placed any material on record to conclude that the last rent is paid only in the month of March 2010 except for the oral testimony of PW1. The Small Causes Court has relied upon the oral testimony to direct the petitioner to pay rental arrears at the rate of Rs.210/– per month from March 2010. The respondents, to be entitled to rental arrears for the period prior to 22.08.2012, should have placed necessary material on record to draw just and reasonable inference in their favour. More importantly, there should be a prayer in this regard. There cannot be any direction to pay any amount as rental arrears until March, 2010.
Further, there is no evidence on record to establish that the respondents would be entitled for damages
46 at the rate of Rs.8000/– per month. In the absence of necessary evidence, the respondents would not be entitled to arrears at the rate of Rs.210/– per month from the date of legal notice dated 22.08.2012 as directed by the Small Causes Court. The Small Causes Court’s finding in this regard cannot be justified. In these circumstances, this Court is of the considered view that the impugned judgment must be modified to the limited extent of directing the petitioner to pay damages at the rate of Rs.210/– per month from 22.08.2012 to the actual date of delivery of vacant possession of the subject premises. The third question is answered accordingly.
The petitioner, because a couple of Pay Orders requires to be revalidated, and to avoid possible protraction, must be permitted to not only withdraw the amount deposited in the present proceedings but also to receive such Pay Orders that will have to be revalidated subject to the
47 condition that the petitioner shall pay the damages as aforesaid.
The petitioner has been in possession of the subject premises right from the year 2012. These proceedings have prevailed for over more than a decade. In deciding reasonable time not only these circumstances but also the admitted fact that neither the petitioner, who is admittedly a septuagenarian, nor her husband, who would be an octogenarian, are looking after the business is the subject premises and the petitioner’s employee, who has asserted partnership with the petitioner but without any document, is in possession are also considered. This Court is of the considered view that the petitioner must vacate and hand over vacant possession of the subject premises within a period of one hundred and twenty [120] days from this date.
48 For the foregoing, the petition is allowed in part modifying the Small Causes Court’s impugned judgment dated 05.06.2018 calling upon the petitioner to deliver vacant possession of the subject premises to the respondents within one hundred and twenty [120] days from this date and to pay to the respondents damages at the rate of Rs.210/– per month from 22.08.2012 till the date of actual delivery of vacant possession. The office is directed to draw decree accordingly.
The office is directed to refund the amounts in deposit to the petitioner and return to the petitioner the Pay Orders filed into this Court along with the Memos dated 27.11.2020 and 16.07.2021 and 16.08.2022.
No costs.
Sd/-
JUDGE nv*
49 BMSPJ: 18.08.2022
CRP NO.289/2018
ORDER ON ENLARGEMENT OF TIME
The orders are pronounced disposing of the petition calling upon the petitioner inter alia to hand over vacant possession of the subject premises within 120 days from today.
After the pronouncement of the orders today, Sri.H.J.Sanghvi, the learned counsel for the petitioner, submits that the petitioner is diagnosed as suffering from cancer and she could be in the last few months of her life and therefore, this Court, on humanitarian grounds, consider enlarging time granted to the petitioner to ensure that the vacant possession of the premises is handed over to the respondents.
50 When queried, the learned counsel for the respondents submits, the request for enlargement of time may be considered in the light of the circumstances pleaded but any enlargement of time must be for a reasonable period.
The request for enlargement is considered, and this Court is of the considered view that in the circumstances the petitioner could be placed, it would be just and proper to enlarge the time to vacate by a period of nine [9] months from today instead of four months [120] days.
It is ordered accordingly.
Sd/- JUDGE