IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 1ST DAY OF FEBRUARY 2013 BEFORE THE HON'BLE MR. JUSTICE RAM MOHAN REDDY

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 1ST DAY OF FEBRUARY 2013 BEFORE THE HON'BLE MR. JUSTICE RAM MOHAN REDDY WRIT PETITION NO OF 2013 (HRC) BETWEEN : SMT. KEMPAMMA W/O SRI PRAKASH AGED ABOUT 46 YEARS R/AT NO.43/1, 1ST MAIN 2ND CROSS, MYSORE ROAD VALMIKINAGAR BANGALORE PETITIONER ( BY SRI. PRABHUGOUD B TUMBIGI, ADVS. FOR M/S. M.T.NANAIAH ASSTS. ) AND : SRI B.H.RAGHU S/O LATE HEMANNA AGED ABOUT 39 YEARS R/AT NO. 73, 6TH CROSS 1ST MAIN, VALMIKINAGAR BANGALORE RESPONDENT THIS WRIT PETITION IS FILED UNDER ART. 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED PASSED BY THE CHIEF JUDGE, COURT OF SMALL CAUSES AT BANGALORE IN HRC NO.265/2011 ON INTERIM APPLICATION FILED BY THE PETITIONER UNDER SECTION 43 OF THE KARNATAKA RENT ACT, 1999 VIDE ANNEXURE-A; DIRECT THE TRIAL

2 2 COURT TO ALLOW THE APPLICATIONS FILED BY THE PETITIONER UNDER SECTION 43 OF THE KARNATAKA RENT ACT 1999 VIDE ANNEXURE-D; AND ETC. THIS WP COMING ON FOR PRL. HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Petitioner aggrieved by the order dt. 6/11/2012 in HRC No. 265/11 of the Chief Judge, Court of Small Causes, Bangalore, rejecting the application under Sec.43 of the Karnataka Rent Act, 1999, has presented this petition. 2. Respondent instituted HRC No. 265/11 for eviction of the petitioner arraigned as respondent therein from the petition schedule premises. That petition was opposed by filing statement of objections interalia denying the jural relationship of Landlord and tenant, contending that one Muniswamy N., the owner of the petition schedule premises though put her in possession of the said property as a tenant, nevertheless, executed an agreement of sale by receiving a consideration of Rs.70,000/-, specific performance of which is subjectmatter of O.S.6594/11 and in which the eviction petitioner

3 3 is also arraigned as a defendant. Before the rent court, the petitioner filed I.A. under Sec.43 of the Karnataka Rent Act, 1999, to stop all further proceeding and direct the parties to approach the competent court of civil jurisdiction for declaration of their rights. That application was opposed contending that the eviction petitioner, respondent herein purchased the petition schedule premises from Smt.Lakshmi Devi, widow of deceased N.Muniswamy, following which the revenue records were transferred into the name of the purchaser and taxes are being paid. The eviction petitioner asserted that there was a rent agreement dt. 10/12/1998 between N.Muniswamy & the tenant pursuant to which was inducted into the petition schedule premises on a monthly rental of Rs.600/- apart from payment of an advance of Rs.10,000/-. The rent court having regard to the pleadings of the parties framed a point for consideration as to whether petitioner proves the existence of jural relationship of landlord and tenant between the parties? The rent court having regard to the material on record, more appropriately Ex.P1, the sale deed executed by Smt.

4 4 Lakshmi Devi, the widow of N.Muniswamy in favour of the eviction petitioner and revenue records such as khatha certificate, etc., Ex.P2 to P6 and the rent agreement dt. 10/12/1998, Ex.P7 between N.Muniswamy the husband of the vendor of the eviction petitioner and the tenant pursuant to which the tenant was inducted in the petition schedule premises on monthly rental of Rs.600/- with an advance amount of Rs.10,000/-, recorded a finding that prima facie there was a material to establish the jural relationship of Landlord and tenant between the parties. The rent court following the reported opinion of this court in BASAVARAJ VS. PUTTARAJU (SINCE DECEASED) BY HIS LRS. & ANR. 1, accordingly answered in the affirmative the point for consideration and by the order impugned, rejected the application. 3. Although learned Counsel for the petitioner submits that the execution of the agreement of sale between N.Muniswamy and the petitioner (tenant) while as a tenant of the petition schedule premises, is subject (3) Kar.L.J. 619

5 5 matter of specific performance in O.S.6594/11 pending before the City Civil Court, that by itself and nothing more cannot be a ground to invoke Sec.43 of the Karnataka Rent Act, 1999, to stop all further proceedings and direct the parties to the Civil Court for declaration of their rights. The rent court having regard to the material on record, more appropriately the sale deed-ex.p1 executed by the widow of deceased N.Muniswamy conveying the petition schedule premises absolutely, in favour of the eviction petitioner, coupled with Ex.P7, the admitted agreement of lease between the said N.Muniswamy and the tenant under which she was put in possession of the petition schedule premises on a monthly rental of Rs.600/-, there was prima facie evidence of jural relationship of Landlord and tenant between the parties. If Sec.109 of the Transfer of Property Act, 1882, is applied, then the transferee of the lessor ie., the eviction petitioner would sit in the shoe of the lessor, whereunder the tenancy would stand attorned. This view is supported by the decision in SILVAUDDIN VS. NAGARAJU (7) Kar.L.J. 484

6 6 4. The plea of the petitioner that while as a tenant in respect of the petition schedule premises, an agreement of sale was executed by the landlord N.Muniswamy in her favour and therefore the tenant claims that her lesser interest as a tenant got extinguished and blossomed itself in to a larger interest namely that of a purchaser, whereby the petitioner is no more a tenant, deserves rejection. The Apex Court in JOSEPH KANTHARAJ & ANR. VS. ATTHARUNNISA BEGUM S. 3 observed thus: 10. We may however clarify that a mere assertion by a tenant that he is in possession in part performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings under Sec.43 of the New Act. But where the respondent in an eviction proceeding under the Rent Act denies the relationship of landlord and tenant contending that he is not in possession as a tenant and produces and relies upon an agreement of sale in his favour which confirms delivery of possession in past performance, and a specific performance suit (3) Karl.L.J. 182 (SC)

7 7 is pending and there is no lease deed, or payment of rent from the date of such agreement of sale, or no acknowledgment of attornment of tenancy, Sec.43 of the new Act may apply. But a word of caution, Courts dealing with summary proceedings against tenants under Rent Acts for eviction, should be wary of defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the Court is satisfied prima facie that the agreement is genuine and defence is bonafide, it should not defer the proceedings for eviction under the Rent Acts. 5. On the facts and material in this case, the rent court was fully justified in its decision not to stall the proceedings under Sec.43 of the Karnataka Rent Act and direct the parties to seek declaration before the Civil Court. 6. The observations of this court and that of the rent court is limited to the point of consideration as to whether there is prima facie material to establish the jural relationship and nothing more. In the event petitioner

8 8 succeeding in O.S.6594/11, she will be entitled to seek restitution, if evicted. Petition devoid of merit, is rejected. rd/- Sd/- JUDGE