Allowed

Sri Eshwar Reddy v. Sri Dinakaran Reddy

Karnataka HC23 Sept 2013CRP/199/2013

Case brief

AI extract

What is this about?

The High Court set aside the trial court order that reopened a suit for eviction following a compromise. The trial court had allowed the tenant to challenge the decree after he enjoyed the premises for three years, claiming fraud and illiteracy. The High Court held the order was erroneous and allowed the revision petition.

What did the court decide?

Impugned order set aside; compromise decree restored; arrears deposit released to landlord; excess deposit refunded to tenant.

Sri Eshwar Reddy Vs Sri Dinakaran Reddy — Landlord and Tenant | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 23^rd DAY OF September 2013

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BEFORE

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THE HON’BLE MR.JUSTICE HULUVADI G. RAMESH

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C.R.P.No.199 / 2013

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BETWEEN :

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Eshwar Reddy, S/o late C.Venkatareddy aged 59 years, R/o No.20, 2^nd Cross, Sai Baba Nagar, Srirampuram, Bangalore.

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.. Petitioner

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( By Sri Rajeshwara P.N. & Sri H.R.Narayana Rao, Advocate )

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AND :

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Dinakaran Reddy, S/o Ranganatha Reddy, age 49 years, B-29, 1^st Main, 3^rd Cross, Kalappa Block, Ramachandrapuram, Bangalore, Also at Reddy Mess, Ground Floor, No.20, 2^nd Cross, Sai Baba Nagar, Srirampuram, Bangalore.

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.. Respondent

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( By Sri T.V.Vijayaraghavan, Advocate )

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This CRP is filed under Section 115 of CPC against the order dated 27.4.2012 passed in O.S.No.3191/2009 on the file of the III Addl.Civil Sessions Judge, Bangalore, allowing the IA No.2 under Order 23 Rule – 3 R/w. Section 151 of CPC.

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This CRP coming on for Admission this day, the Court made the following :

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O R D E R

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This petition is filed against the order dated 27^th April 2013 passed by the learned III Addl.City Civil & Sessions Judge, Bangalore, on I.A.No.2 and 4 in O.S.No.3191/2009.

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The suit in O.S.No.3191/2009 was filed by the plaintiffpetitioner herein for eviction of the defendant-respondent from the petition schedule premises. The suit came to be decreed on the basis of filing of the compromise petition dated 28.5.2009 duly signed by both the parties. The terms of the compromise is that landlord has to extend three years time from 28.5.2009 in favour of the tenant and the tenant has to vacate and deliver vacant possession of the suit schedule premises after the expiry of agreed period of three years. The trial Court ordered for compromise by recording that “the said compromise petition is read over and explained to the parties” and the compromise petition is also said to have been verified. As per the compromise, the defendant was given three years time to vacate and deliver vacant possession of the premises in question. The

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defendant having kept quite for about three years, filed I.A.No.2 under Order 23 Rule 3 r/w. Section 151 of CPC and I.A.No.4 under Section 5 of the Limitation Act, seeking to set aside the compromise decree passed in the above suit dated 28.5.2009 and to reopen the case, by condoning the delay, if any in filing I.A.No.2 on the ground that plaintiff has played fraud and got his signature on the compromise petition. By the impugned order, the applications were disposed by the trial Court ordering to reopen the case. Against which, the present revision petition is filed by the plaintiff.

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Heard the learned counsel representing the parties.

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It appears, on 25.5.2009 suit was filed by the petitioner

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herein. The compromise petition was filed on 28.5.2009. The contention of the learned counsel for the petitioner is that the respondent having enjoyed the benefit of terms of compromise, now he has taken a u-turn and says that he is illiterate and does not know the contents of the compromise petition and as such, the order of compromise has to be set aside.

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On the other hand, the learned counsel appearing for the respondent-defendant sought for another three to four years time to vacate and deliver vacant possession of the premises which is a non-residential premises let out by the petitioner herein more than 20 years back on a monthly rent basis. The learned counsel for the respondent also contended that without there being any notice issued under Section 106 of the Transfer of Property Act, the compromise has been entered and even the trial Court has given a finding that there was no notice issued under Section 106 of the Transfer of Property Act and as the respondent is illiterate, he did not understand the consequences of the compromise and as such, the matter ought to have been tried on merits as there is a fraud being played by the plaintiff. He further stated that there is no illegality in the order passed by the trial Court.

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The present suit is a simple suit for ejectment. The petitioner has issued termination notice terminating the tenancy of the respondent in respect of the petition schedule premises on 28.2.2009 as per Section 106 of the Transfer of Property Act.

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There is only limited scope for the Courts to interfere with the petition filed after issuance of notice under Section 106 of the T.P.Act. Based on the compromise petition filed duly signed by the parties, the trial Court has passed the compromise decree.

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As could be seen from the material on record, the trial

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Court has not visualised the fact that respondent having enjoyed three years also after entering into compromise, subsequently came up with a contention that he does not know the terms of compromise and files an application once again before the trial Court and the trial Court having entertained the same, set aside the order of compromise. It is very unfortunate and very rare case that such a finding is recorded by the trial Court which ought not to have been done. If really the respondent was not knowing the consequences of the compromise, it is surprising as to how he enjoyed the premises for a further period of three years. Now also he is ready to vacate the premises after four years and the stand taken in this regard is that no notice of termination of tenancy was issued to him. The learned counsel for the respondent also submitted that

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no notice is issued and the matter has to be tried on merits. But, on the other hand, the stand taken by the petitioner herein is that there is service of notice as per Section 106 of the Transfer of Property Act and as such, the defendant could not have pressed the fact of non-issuance of notice.

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Admittedly, the defendant-respondent has filed applications for reopening of the case and to set aside the compromise petition entered into between the parties after having enjoyed the petition schedule premises for a period of three years. As stated above, it is very rare and very strange that such a compromise decree is sought to be set aside only after enjoyment of the premises. It is hereby noticed that the reasoning given by the trial Court for setting aside the compromise order is that it is not understood by the tenant. But, the very Court has entertained the compromise petition by recording that the terms of the compromise has been read over and explained to the parties. As such, it is a very unfortunate observation made by the very trial Court while reopening the matter. Further, after lapse of three years period and having

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enjoyed the possession of the petition schedule premises, now the tenant cannot take advantage of the fact that notice was not issued to him.

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In that view of the matter, the impugned order passed by the trial Court on the applications is set aside. However, the respondent is at liberty to seek extension of time to vacate the premises by approaching the petitioner.

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The petition is allowed accordingly.

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The amount in deposit towards arrears of rent shall be released in favour of the landlord. However, the defendanttenant is entitled for refund of the excess amount deposited before the trial Court and the trial Court is directed to issue orders with regard to refund of excess amount deposited by the tenant.

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sd/JUDGE

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bk/

Sri Eshwar Reddy v. Sri Dinakaran Reddy

Case brief

What is this about?

What did the court decide?

Sri Eshwar Reddy v. Sri Dinakaran Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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