Partly allowed

Smt. Meenabai v. Sri. Rehan Rafai

Karnataka HC6 Jan 2021RFA/1884/2019

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a household tenancy eviction decree. Despite the trial court decrying the suit without examining the tenant due to a struck-off written statement, the High Court remanded the matter. It held that natural justice required an opportunity for the defendant to lead evidence and cross-examine the plaintiff. The appeal was partly allowed to set aside the judgment

What did the court decide?

The eviction judgment and decree are set aside. The matter is remanded to the trial court to give an opportunity to the defendant to file a written statement and lead evidence, and to conduct cross-ex

Smt. Meenabai Vs Sri. Rehan Rafai — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^th DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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REGULAR FIRST APPEAL No.1884/2019 (EJE)

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BETWEEN:

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SMT. MEENABAI, W/O. SRI KANAKMULL, AGED ABOUT 62 YEARS, R/AT NO.110, M.M.ROAD, FRAZER TOWN, BENGALURU – 560 005.

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...APPELLANT

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(BY SRI R.B.SADASIVAPPA, ADV.,)

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AND:

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SRI REHAN RAFAI, S/O. SRI KARIM BAIG, AGED ABOUT 36 YEARS, R/AT NO.2, 1^ST MAIN, BYRAPPA LAYOUT, NAGASHETTYHALLI, BENGALURU – 560 094.

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…RESPONDENT

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(BY SRI IRSHAD AHMED K., ADV.,)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED

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07.06.2019 PASSED IN O.S.NO.26720/2014 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU, DECREEING THE SUIT FOR EJECTMENT.

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THIS RFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment and decree dated 07.06.2019 passed in O.S.No.26720/2014 by XXVI Additional City Civil and Sessions Judge, Bengaluru (CCH-20), wherein the suit of the plaintiff came to be decreed and the defendant was ordered to quit and vacate the suit schedule premises within a period of three months from the date of decree and handover the possession.

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The matter came up for admission, with the consent of counsel for both the parties, it is taken up for final disposal.

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The brief facts of the case is that the plaintiff

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is the absolute owner of the industrial shed bearing No.32, Vidya Sagar Main Road, Saraipalya, Bengaluru560 045 with 65 H.P. Power Shed, measuring approximately 100 x 40 feet. The plaintiff contended that the defendant is the tenant under him on a monthly rent of Rs.15,000/- and has paid security deposit of Rs.1,50,000/-. The lease deed is in the custody of the defendant. The plaintiff contended that as per the terms of lease, the defendant has agreed to pay enhanced rent at the rate of 5% for every two years. In this connection, there was a controversy regarding the rate of rent.

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Defendant filed written statement and

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however it has been struck off by order dated 21.07.2017 for non-compliance of order dated 02.01.2017. The learned trial Judge framed necessary issues and considering the order and documentary

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evidence on behalf of plaintiff, decreed the suit of the plaintiff on 07.06.2019.

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The operative portion of the order reads as

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under:

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“The suit of the plaintiff is hereby decreed with cost as herein after.

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The defendant is hereby ordered to quit and vacate the suit schedule premises within the period of 3 months from the date of decree and hand over the vacant possession of the suit premises to the plaintiff.

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It is ordered that, the plaintiff is entitled to recover arrears of rent in Rs.2,25,000/and damages/mesne profit at the rate of Rs.7,500/- per month from 18/08/2013 till vacant possession of the suit schedule property is handed over to the plaintiff by the defendant.

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Defendant shall be entitled to set off the security deposit of Rs.1,50,000/Draw decree accordingly”.

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Being aggrieved by the said judgment and decree, defendant has filed this appeal.

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Sri R.B.Sadasivappa, learned counsel for the appellant/defendant would submit that there are serious dispute regarding the relationship of landlord and the tenant and the judgment of the trial Court suffers from law of opportunity to be given to the defendant. Neither the defendant did cross-examine the plaintiff nor had a liberty of leading his evidence.

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Per contra, Sri Irshad Ahmed K., learned counsel for the respondent/plaintiff would submit that the submissions of defendant regarding relationship has no basis in the light of official valid document, which is a bank statement, which reflects that an amount of Rs.15,000/has constantly been deposited. The submission of learned counsel for the respondent/defendant is that the plaintiff is not the owner of the schedule property. The defendant does not claim ownership, but disputes jural relationship over the property. In the circumstances, the suit is filed

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during the year 2014 and was disposed of on 07.06.2019 and a period of 5 years has been lapsed. He would further submit that the defendant was squatting over the property without paying proper rent.

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To avoid confusion and to have clarity in reading and understanding of the aspect, the following points are amply clear:

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(i) The suit for eviction was filed in respect of industrial shed bearing No.32, Vidya Sagar Main Road, Saraipalya, Bengaluru-560 045 against the defendant claiming rent of Rs.15,000/per month with enhancement of 5% for every two years.

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(ii) The defendant denied the relationship of landlord and tenant and payment of rent of Rs.15,000/is reflected in the bank statement. It is also submitted

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that now the rent that is payable by virtue of enhancement is Rs.17,500/-. The evidence of plaintiff

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was concluded on 06.09.2018, however, it reveals that the counsel for the defendant did not cross-examine the plaintiff. It is seen from paragraph No.3 of the judgment, which reads as under:

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“The defendant has filed written statement in the case. However, the written statement filed by the defendant has been struck off by order dated 21.07.2017 for noncompliance of order dated 02.01.2017.”

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Further the defendant has not chosen to

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adduce the evidence from his side. In the above circumstances, it is quite clear that the suit schedule property is stated to be an industrial shed and the plaintiff filed a suit during the year 2014, which came to be disposed of during the year 2019. Invariably, the defendant has come in the way and this Court on 19.09.2019 has passed the order of stay subject to the condition of depositing the rents. It is stated that the rents are calculated at the enhanced rate at Rs.17,500/-. The defendant was given an opportunity to

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deposit the rents within four weeks. The deposit was made, however, with a delay of 7 days, which was permitted.

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It is also necessary to mention that in the

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decree, earlier rent was mentioned as Rs.7,500/- and upon application for amendment under Section 152 of CPC, the defect was rectified and rate of Rs.17,500/was confirmed. In these circumstances, only two points arises for consideration. No doubt, the matter is of 6 years old. However, in the matter, learned counsel seek for an adjournment and the cases are to be disposed of with default to urge the same in the form of opportunity before the Appellate Court. Non-examination or non leading of evidence is the inclusive factor that is claimed as principles of natural justice or one more opportunity. When nine opportunities are given, which has no value, the tenth opportunity is refused. However, principles of

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natural justice demand that a party should be given an opportunity.

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In the circumstances of the case, I find that

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the suit is decreed, whether the defendant has participated in the proceedings, led evidence or it remains a ground and such ground will have to be appreciated by the Court in the case of principles of natural justice.

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In the circumstances, insofar as deposit of amount is concerned, it is stated to be the rate of rent that was payable from the year 2013. In the circumstances, an opportunity has to be given to the defendant and the appeal requires to be allowed and the matter has to be remanded. Hence, I pass the following

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ORDER

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(i) The appeal is partly allowed.

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(ii) The judgment and decree of eviction dated 07.06.2019 passed by XXVI Addl. City Civil & Sessions Judge, Bengaluru (CCH-20) is set aside. The matter is remanded to the trial Court.

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(iii) In order to avoid wastage of judicial time, no summons will be separately issued. Parties are directed to appear before the trial Court on 17.02.2021 without waiting for further notice.

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(iv) The written statement of the defendant shall be received and considered as per law by the Court.

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(v) The plaintiff shall keep himself present for crossexamination, which shall be conducted on the first day of appearance.

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(vi) The defendant is allowed to lead and close his evidence within one month from the date of crossexamination of the plaintiff and his witnesses, if necessary and the trial Court shall dispose of the

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matter within a period of three months from the date of appearance before the trial Court i.e., from

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17.02.2021.

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(vii) The plaintiff is at liberty to withdraw the amount in deposit.

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In view of disposal of the main matter, I.A.No.3/2019 does not survive for consideration and the same is disposed of.

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Sd/-

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JUDGE

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Smt. Meenabai v. Sri. Rehan Rafai

Case brief

What is this about?

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Smt. Meenabai v. Sri. Rehan Rafai

Case brief

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