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UMA NAGARAJ (SINCE DEAD) BY HER L.RS V/S MOHAMMED KALEEM, decided on Monday, April 17, 2017.
[ In the High Court of Karnataka, Writ Petition No. 46375 of 2016 (GM-CPC). ] 17/04/2017
Judge(s) : ARAVIND KUMAR
Advocate(s) : G.S. Bhat. V. Bharath Kumar.
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  "2017 (5) KantLJ 97"  ==   ""  







    Aravind Kumar J.1. Heard Sri G.K. Bhat learned Counsel appearing for the petitioner and Sri Bharath Kumar learned Counsel appearing for the respondent.2. An application filed by the writ petitioner in O.S. No. 2403 of 2013 which is a suit instituted by the respondent herein for ejectment of Smt. Uma Nagaraj the petitioner herein having been rejected is before this Court contending inter alia that application filed by the petitioner under Order I Rule 10(2) of Civil Procedure Code 1908 to implead the erstwhile owner of the suit property Smt. Vasantha as she was the necessary and proper party to the suit in question has been erroneously rejected.3. Sri G.K. Bhat learned Counsel appearing for the petitioner would contend that Trial Court committed an error in rejecting the application without considering the fact that there was no locus standi for the plaintiff-respondent herein to institute the suit in question inasmuch as there is no tenancy between respondent and petitioner. It is also contended that Smt. Vasantha under whom the respondent-plaintiff claims to have acquired title is said to have executed a sale deed dated 20-6-2012 in favour of respondent is surrounded with suspicion and the vendor Smt. Vasantha had executed the said sale deed through the power of attorney holder and at the same time she has also affixed her signature to the sale deed as a witness and as such it was inadmissible and Trial Court ought to have taken note of the said fact to consider the claim of the petitioner but has rejected the application in question erroneously. It was also contended that said Smt. Vasantha is a necessary and proper party to the suit and as such her presence would have a direct bearing on the claim of the writ petitioner before the Trial Court and dismissal of said application is erroneous. In support of his contention he has relied upon the judgment of this Court in T. Ratna Pandyan v. P. Subramanyam Chetty 1997 (2) Kar. L.J 365.4. Per contra Sri Bharath Kumar learned Counsel appearing for the respondent-plaintiff would support the impugned order and would contend that the present petitioner had also admitted in the earlier proceedings about the tenancy between herself and Smt. Vasantha who is the vendor of the respondent-plaintiff and as such she is now estopped from contending contrary to the same and Trial Court has rightly taken note of these facts and dismissed the application. Hence he prays for rejection of the writ petition. In support of his submissions he has relied upon two decisions in the case of Sunil Kumar Bose v. Jagabandhu Dhang AIR 2004 Cal. 13 and Mrs. Yashoda Raju v. A. Kuselan AIR 2004 Mad. 106.5. Having heard the learned Advocates appearing for the parties and on perusal of the records it would disclose that respondent herein had instituted a suit in O.S. No. 2354 of 2013 seeking relief of judgment and decree of eviction against Smt. Uma Nagaraj (deceased petitioner) to direct the defendant to vacate and deliver vacant possession of the suit property. It is also contended in the suit that plaintiff has purchased the suit property under a sale deed dated 20-6-2012 from Smt. Vasantha. Records would also disclose that she (Smt. Vasantha) had purchased the suit property on 20-8-1993 and had inducted the present petitioner into the suit property. It was the contention of Smt. Vasantha that Smt. Uma Nagaraj was a licencee under her and on expiry of licence period she did not vacate and as such she instituted a suit in O.S. No. 6570 of 2002 for the relief of mandatory injunction to direct the defendant to remove herself from the suit premises. The said suit after contest came to be dismissed by judgment and decree dated 15-7-2009 Annexure-R3. In the said suit the deceased writ petitioner had appeared and filed her written statement and at paragraph 2 of her written statement she had stated to the following effect :2. Regarding para 3 of the plaint the defendant submits that the averments in the said para to the effect that the plaintiff is the owner of the schedule property is true and correct.(emphasis supplied)6. Being aggrieved by the dismissal of the suit plaintiff therein i.e. the vendor of the respondent herein Smt. Vasantha filed an appeal in R.F.A. No. 2032 of 2011 before this Court and after considering the rival contentions Co-ordinate Bench of this Court by order dated 11-1-2013 Annexure-R4 dismissed the appeal and it came to be observed by this Court as under :7. Keeping the definition of lease defined under Section 105 of the Transfer of Property Act 1882 in the mind ......legal action is permissible. Therefore all that could be held in this case is the transaction between the parties is a lease and there is existence of vinculum juris of landlord and tenant between the parties. The plaintiff is held to be landlord/lessor while the defendant is held to be a lessee/tenant.7. Having said so the Co-ordinate Bench observed that the Trial Court could not have moulded the relief since tenant has protection of Rent Act. On account of defendant enjoying protection of the Rent Act the Co-ordinate Bench reserving liberty to the plaintiff to initiate appropriate action in law under the Karnataka Rent Act 1999 as the premises is a residential one appeal came to be allowed in part.8. In fact by the time appeal came to be disposed of the respondent (plaintiff) herein had already filed an application to get himself impleaded. This had not been noticed by the Co-ordinate Bench and as such the matter was listed for 'being spoken to' on 16-1-2013 and it was ordered as follows :This appeal was heard and on merits was disposed of by judgment dated 11-1-2013. Though all facts circumstances and the subsequent event that the impleading applicant is the successor in title was noticed but by inadvertence it has not been incorporated in the order. Thus the application was head and disposed of. Accordingly the learned Counsel for the other side is also present who has no objection. The application filed as I.A. No. 3 of 2012 is allowed. The person named in the application is impleaded as respondent 2. The Counsel for the appellant to bring about necessary amendment to the cause title.9. Thus even as on the date appeal came to be disposed of and order came to be passed on 16-1-2013 present respondent herein had acquired right title and interest over the suit property. By virtue of the same he has instituted the suit in question for ejectment against the deceased petitioner. The grievance of the present petitioner who is the defendant in the suit is there is no attornment of tenancy by her in favour of plaintiff and as such suit itself is not maintainable. In support of her contention learned Counsel for writ petitioner has relied upon the judgment of T. Ratna Pandyan's case referred to supra rendered by Co-ordinate Bench of this Court.10. A perusal of said judgment would indicate that though there was a sale of property by the earlier landlady yet she continued to receive the rent and the rent receipts was issued by her even as on the date of filing of eviction petition and same came to be produced. This fact had swayed in the mind of the Co-ordinate Bench to accept the plea of the respondent therein to arrive at a conclusion there was no attornment of tenancy. However the law on this aspect namely with regard to attornment of tenancy where a registered sale deed is executed by the owner of the property in favour of the purchaser has been laid down by this Court reported in the matter of M/s. Popular Automobiles v. N. Veeraswamy ILR 1989 Kar. 1555 wherein it has been clearly held that there is statutory attornment when there is a registered sale deed and as such the defendant in the instant case cannot be heard to contend that there is no attornment of tenancy. The said contention raised by Sri G.K. Bhat stands rejected.11. It is the contention of Mr. G.K. Bhat that the petitioner-defendant is not estopped from contending that she was not a tenant under Smt. Vasantha deserves to be rejected since Section 116 of the Indian Evidence Act 1872 is clear on this aspect. A tenant having admitted the tenancy in the earlier proceedings and the Co-ordinate Bench of this Court also having declared to the said effect it is not open to the petitioner to contend in the present proceedings that there was no relationship of landlord and tenant between plaintiff and defendant. As to whether the said Smt. Vasantha who had sold the property to the respondent-plaintiff is a necessary party to the present proceedings or not is examined with reference to the facts as already discussed above.12. It emerges from the papers that present writ petitioner is somehow avoiding and evading the proceedings on one or the other pretext. In other words by using trick and stratagem she is delaying and also protracting the proceedings and ensuring that it does not reach its logical end.13. As could be seen from the present records petitioner herein in the earlier round of litigation between herself and the vendor of the respondent had clearly admitted that she is a tenant under Smt. Vasantha. However she has clearly admitted and also stated no objection for the impleading application therein i.e. the respondent hereinbefore the Trial Court to come on record in R.F.A. No. 2032 of 2011 and she cannot be heard to contend that Smt. Vasantha's presence in these proceedings being necessary. Said Smt. Vasantha is neither a necessary nor a proper party. If there was any infirmity in the execution of sale deed by Smt. Vasantha in favour of Mohameed Kaleem it is open for her to take steps and petitioner cannot have any voice and she cannot be heard to contend that infirmity or illegality if any in the sale deed is to be taken note of by the Trial Court. For the reasons though not stated in the impugned order in so many words Trial Court was fully justified in rejecting the application. There is no merit in the writ petition and it is liable to be dismissed with exemplary costs.14. Accordingly I proceed to pass the following :ORDER(i) Writ petition is hereby dismissed with costs of Rs. 10 000/- payable by petitioner to respondent before the next date of hearing before the Trial Court.(ii) Impugned order dated 8-8-2016 passed on I.A. No. 7 in O.S. No. 2403 of 2014 on the file of III Additional City Civil and Sessions Judge Bengaluru is hereby affirmed.(iii) In the event of costs not being paid on the next date of hearing the Trial Court would be at liberty to strike out the defence of petitioner and proceed to adjudicate the matter.(iv) Since the suit is of the year 2013 Trial Court shall ensure that it is expeditiously disposed of at any rate on or before 12-6-2017.(v) Both parties shall co-operate with the Trial Court and in the event of either of the party seeking adjournment without assigning proper explanation or cause to the satisfaction of Trial Court it would be at liberty to impose costs on such of the parties who seek adjournment by keep in mind Order 17 Rule 2 of CPC.Ordered accordingly.