Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(KAR) 20645

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

CIVIL REVISION PETITION NO.99 OF 2014 (SC)

BETWEEN:

1. SMT. NAGINA MASTAN
AGED ABOUT 57 YEARS,
D/O S. ABDUL KHAYYUM,
WIFE OF A.H. MASTAN,

2. SMT. SABINA BANU
AGED ABOUT 53 YEARS,
D/O S. ABDUL KHAYYUM,
W/O MIR MOHAMMED ASLAM,

BOTH THE PETITIONERS ARE
AVAILABLE FOR SERVICE AT
NO.9, 2ND MAIN ROAD,
2ND CROSS, WILSON GARDEN,
BANGALORE-560 027.

REPRESENTED BY THEIR GPA HOLDER
SRI MIR MOHAMMED ASLAM,
AGED ABOUT 59 YEARS,
SON OF LATE MIR ALI SHER,
R/AT NO.9, 2ND MAIN ROAD,
WILSON GARDEN,
BANGALORE-560 027.
...PETITIONERS

(BY SRI C. SHANKAR REDDY, ADVOCATE)

2

AND:

SRI R.T. LAKSHMINARAYANA SHETTY
FATHER'S NAME NOT KNOWN TO PETITIONERS,
AGED ABOUT 70 YEARS,
DOING BUSINESS IN A PORTION
OF PREMISES NO.19/2,
CHANNARAYASWAMY TEMPLE STREET
(KUMBARAPET CROSS),
FACING MAIN STREET,
BANGALORE-560 052.
....RESPONDENT

(BY SRI SHASHANK KUMAR, ADVOCATE)

THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
18 OF SMALL CAUSES COURT ACT, AGAINST THE ORDER DATED
13.2.2014 PASSED ON IA NO.16 IN S.C.15471/2011 ON THE
FILE OF V ADDITIONAL SMALL CAUSES JUDGE AND XXIV
A.C.M.M.,
BANGALORE,
DISMISSING
THE
SUIT
AS
INFRUCTUOUS.

THIS CIVIL REVISION PETITION COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

A suit for ejectment is maintainable even if the property has been conveyed to a third party before filing the suit, if the suit is filed for ejectment in respect of a different property.

Headnote:
AMENDMENT OF PLAINT - CONVEYANCE OF PROPERTY - SUIT FOR EJECTMENT - [Order 7 Rule 11 of CPC] - [Order 12 Rule 6 of CPC]
Fact of the Case:

The petitioner-landlord filed a suit for ejectment of the respondent-defendant from the suit scheduled property. The defendant claimed that the property had been conveyed to a third party before filing the suit and the suit was not maintainable. The plaintiff filed an application for amendment of the plaint to rectify the property number, which was allowed. The defendant then filed an application for rejection of the plaint, which was dismissed by the Trial Court. The defendant then filed an application for dismissing the suit as having become infractuous in view of conveying of the subject property in favour of the third party, which was allowed by the Trial Court.
Finding of the Court:

The High Court allowed the Civil Revision Petition and set aside the impugned order passed by the Trial Court. The High Court held that the Trial Court erred in dismissing the suit as having become infractuous on the ground that the subject property was conveyed to a third party, as the suit was filed for ejectment in respect of a different property.
Issues: 1. Whether the suit was maintainable in view of the conveyance of the property to a third party before filing the suit?2. Whether the Trial Court erred in dismissing the suit as having become infractuous?
Ratio Decidendi: 1. The suit was maintainable as it was filed for ejectment in respect of a different property than the one that was conveyed to a third party.2. The Trial Court erred in dismissing the suit as having become infractuous as there was no finding recorded by the Jurisdictional Court that the third party was the tenant of the subject property.
Final Decision: The Civil Revision Petition was allowed and the impugned order passed by the Trial Court was set aside. The suit was restored to its original file and the Trial Court was directed to proceed from the stage of cross examination of D.W.1 and dispose of the suit in accordance with law within six months from thereafter.

Heard the learned counsel appearing for the parties.

The petitioner landlord had filed a suit for ejectment of the

respondent-defendant from the suit scheduled property bearing

No.19/3 and deliver the vacant possession of the same to the

plaintiffs. In the said suit, the defendant was examined as

D.W.1 and in his examination-in-chief he has stated that the

property bearing No.19/3 has been conveyed to a third party

before filing the suit and as such the suit is not maintainable.

Thereafter, the plaintiff filed an application for amendment of the

plaint to rectify the property number stating that the subject

property has been wrongly described as 19/3 instead of 19/2.

The said application for amendment came to be allowed.

Thereafter, the defendant filed an application under Order 7

Rule 11 of CPC for rejection of the plaint.

The Trial Court dismissed the said application.

Thereafter, the defendant filed an application under Order 12

Rule 6 of CPC for dismissing the suit as having become

infractuous in view of conveying of the subject property in favour

of the third party.

The Trial Court allowed the application on two

grounds:

Firstly, the property bearing No.19/3 has been

conveyed to the third party before filing of the suit and as such

the petitioner has no locus standi to maintain the suit.

Secondly, that the petitioner-plaintiff has admitted

that M/s Bangalore Perfumers is the tenant of the property

bearing No.19/2 and in the absence of any relationship of

landlord and tenant between plaintiff and defendant, the suit is

not maintainable.

Hence, this Petition.

Plaintiff noticing that there was an error in the

description of the property filed an application for amendment

and the said application was allowed permitting the plaintiff to

describe the suit schedule property as property bearing No.19/2.

In the written statement, the defendant has not

disputed the identity of the suit property. Though the property

bearing No.19/3 was conveyed to a third party before filing of

the suit, the suit was filed for ejectment in respect of property

bearing No.19/2. Hence, the Trial Court committed an error in

dismissing the suit as having become infractuous on the ground

that the subject property was conveyed to a third party.

The suit in O.S.No.5100/2012 was filed by M/s

Bangalore Perfumers for permanent injunction restraining the

plaintiff herein from dispossessing the plaintiff therein without

following due process of law, and in the said suit, the order of

temporary injunction is operating against the plaintiff herein.

The

plaintiff

has

specifically

denied

that

M/s Bangalore Perfumers is not the tenant of the M/s Bangalore

Perfumers in respect of the subject property. The defendant in

the written statement has categorically admitted that Shiva

Prasad son of the defendant was the tenant of the subject

property, and after his death, he was forcibly made to attend the

business in-spite of his old age. In view of the categorical

admission that the son of the defendant was the tenant of the

subject property, the Trial Court at this stage, committed an

error in holding that their exists no jural relationship of landlord

and tenant and whether the defendant was tenant or not

requires to be adjudicated after full fledged trial.

The

respondent

has

filed

affidavit

dated

14.10.2022 categorically stating that he is not in possession of

the subject property as tenant. The Trial Court will take into

note of the said affidavit at the time of adjudication of the

dispute in question.

Merely because the order of temporary injunction is

operating against the plaintiff in the suit filed by M/s Bangalore

Perfumers, in the absence of any finding recorded by the

Jurisdictional Court, that M/s Bangalore Perfumers is the tenant

of the subject property, the impugned order passed by the Trial

Court dismissing the suit as become infructuous is not

sustainable in law. Accordingly, I pass

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