Allowed

Mrs Farhana Banu v. M/S Nitco Roadways Ltd.

Karnataka HC8 Dec 2023RFA/1983/2021

Case brief

AI extract

What is this about?

In a second appeal under Section 96 CPC, the High Court allowed the appeal and set aside the trial court's decree dismissing a suit for recovery of rent and possession. The matter was remitted to the trial court to be tried afresh in light of additional evidence submitted by the appellant.

What did the court decide?

Second appeal allowed; impugned judgment set aside; matter remitted to trial court for fresh trial; additional evidence and pleadings allowed.

Mrs Farhana Banu Vs M/S Nitco Roadways Ltd. — Landlord and Tenant | Karnataka HC (2023)

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1 - NC: 2023:KHC:44855 RFA No. 1983 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1983 OF 2021 (MON)

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BETWEEN:

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MRS FARHANA BANU D/O MR. MEER MOHAMMED OOSMAN W/O MR. MUSHTAQ AHMED AGED ABOUT 47 YEARS R/AT NO. 435, ,1^ST FLOOR CHOWDAPPA LAYOUT AKKI THIMMANAHALLI, SHANTHINAGAR BENGAURU 500 027.

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…APPELLANT

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(BY SRI. RAGHUNATH M D.,ADVOCATE) AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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M/S NITCO ROADWAYS LTD NO.21, H SIDDAIAH ROD, 8^TH CROSS, BENGAURU 560 027. REPRESENTED BY ITS MANAGING DIRECTOR MR. KUNIL BHALLA HAVING ITS OFFICE AT M/S NITCO ROADWAYS LTD NITCO HOUSE, TALAB TILLA JAMMU 180 002.

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…RESPONDENT (BY SRI.VISHWANATH R. HEGDE, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 20.01.2021 PASSED IN O.S No.25920/2017 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BANGALORE, DISMISSING THE SUIT FOR RECOVERY OF MONEY AND POSSESSION.

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(BY SRI.VISHWANATH R. HEGDE, ADVOCATE)

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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2 - NC: 2023:KHC:44855 RFA No. 1983 of 2021

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.25920/2017 is directed against the impugned order dated 20.01.2021 passed by the XIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bangalore whereby the said suit filed by the appellant – plaintiff for recovery of arrears of rent and other reliefs in relation to the suit schedule immovable property was dismissed by the Trial Court.

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A perusal of the material on record will indicate that the appellant – plaintiff instituted the aforesaid suit interalia contending that the respondent – defendant was a tenant under her and had not paid rent for a period of three years preceding the suit and consequently was liable to pay the arrears of rent from July 2014 to June 2017 and to also continue to pay the future rents till the defendant vacated and delivered the vacant possession of the suit schedule property to the plaintiff.

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The respondent – defendant entered appearance and filed the written statement pursuant to which the Trial Court framed the following issues:

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“(1) Whether the plaintiff proves that the relationship between her and defendant as landlord and tenant?

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3 - NC: 2023:KHC:44855 RFA No. 1983 of 2021

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(2) Whether the plaintiff proves that the defendant has failed and neglected to pay monthly rents therefore, the defendant is liable to pay arrears of rent of Rs.2,37,672/-?

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(3) Whether the plaintiff proves that she is entitled to mesne profit of Rs.30,,000/- P.M for the use and occupation of the suit schedule property by the defendant after termination of tenancy?

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(4) Whether the plaintiff proves that she is entitled to the relief’s of as sought for in the plaint?”

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The appellant – plaintiff examined herself as PW.1 and Ex.P.1 to P.7 were marked. The respondent – defendant cross examined PW.1 and one document at Ex.D.1 was confronted to PW.1 and marked.

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However, the respondent – defendant did not adduce any oral or documentary evidence nor submitted arguments on merits.

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The Trial Court heard the learned counsel for appellant and proceeded to pass the impugned judgment and decree dismissing the suit, aggrieved by which the appellant – plaintiff is before this Court by way of the present appeal.

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A perusal of the material on record will indicate that the Trial Court had noticed the specific defence of the respondent – defendant that she had disputed the Jural relationship of the land lord and tenant between the respondent and the appellant and

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4 - NC: 2023:KHC:44855 RFA No. 1983 of 2021

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answered issue No.1 against the plaintiff by coming to the conclusion that she had not established the Jural relationship of land lord and tenant between herself and the defendant.

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Accordingly, the Trial Court answered the remaining issues also against the appellant and dismissed the suit.

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In the present appeal, the appellant has filed an I.A.No.2/2023 for permission to adduce oral evidence by producing certified copy of the Gift Deed dated 01.07.1999 which, according to the plaintiff would establish her title to the suit schedule property as well as relationship of land lord and tenant between her and respondent.

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Learned counsel for respondent – defendant submits that on instruction submits that the defendant does not have any objection for the document to be received on record. It is however submitted that in the event, the document produced along with I.A.No.2/2023 is received on record.

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The matter would necessarily have to be remitted back to the Trial Court, since the respondent would dispute legality, validity, genuineness, admissibility etc. of the said document, one more opportunity is to be provided to the defendants to crossexamine PW.1 and other witnesses of the plaintiffs on all the

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5 - NC: 2023:KHC:44855 RFA No. 1983 of 2021

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documents including the aforesaid documents as well as to adduce defence evidence in support of their claim.

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In view of the facts and circumstances and submissions

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made by both sides, I am of the considered opinion that one opportunity is to be provided in favour of the appellant – plaintiff to adduce further oral and documentary evidence and also to defendants to establish their defence.

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Under these circumstances, I am of the considered opinion that the impugned judgment and decree passed by the Trial Court deserves to be set aside and the matter remitted back to the Trial Court for reconsideration afresh in accordance with law.

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In the result, I pass the following orders:

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a) Appeal is hereby allowed.

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b) The impugned judgment and decree dated 20.01.2021

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passed in O.S.No.25920/2017 by the XIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, is set aside and matter is remitted back to the Trial Court for reconsideration afresh in accordance with law.

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c) I.A.No.2/2023 is hereby allowed and documents

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produced along with the same are received on record.

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NC: 2023:KHC:44855 RFA No. 1983 of 2021

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e) The Registry is directed to transmit I.A.No.2/2023 as

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well as the documents produced along with the same to the Trial Court for consideration in accordance with law.

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f) Liberty is reserved in favour of both sides to adduce further oral and documentary evidence in support of their respective claims.

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g) Liberty is also reserved in favour of parties to amend their respective pleadings.

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h) All rival contentions on all aspects of the matter including additional evidence are kept open and no opinion is expressed on the same.

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i) Parties undertake to appear before the Trial Court on

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05.01.2024.

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j) The registry of this Court is directed to re-transmit the

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Trial Court Records.

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DHA List No.: 1 Sl No.: 26

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Sd/JUDGE

Mrs Farhana Banu v. M/S Nitco Roadways Ltd.

Case brief

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Mrs Farhana Banu v. M/S Nitco Roadways Ltd.

Case brief

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