Kantharaj & ANR. Vs. Attharunnisa Begum .S.  INSC 160 (11 January
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 282 OF
2010 (Arising out of SLP (C) No.20025 of 2008) Joseph Kantharaj & Arn. ...
Appellants Attharunnisa Begum S. ... Respondent O R D E R R.V.RAVEENDRAN, J.
Leave granted. Heard the parties.
The respondent claiming to be the owner of the suit premises filed
an eviction petition (HRC 1247/1998) against the first appellant under section
21(1) proviso (a) and (h) of the Karnataka Rent Control Act, 1961 (`Old Act',
for short). She alleged that the previous owner Anthony Swamy, sold the suit
premises to her under a registered sale deed dated 25.9.1997.
The first appellant resisted the eviction petition contending that
he was not the tenant of the premises under the respondent. He alleged that he
was earlier the tenant of the suit premises from the year 1988, under 2 Anthony
Swamy; that the said Anthony Swamy had entered into an agreement of sale dated
11.6.1997 in his favour agreeing to sell the suit property for a consideration
of Rs.1,05,000/-; and that under the said agreement, Anthony Swamy confirmed
having received Rs.75,000/- as advance and permitted him (the first appellant)
to continue in possession free of rent in part performance of the agreement of
sale. He contended that from that date, he has been in possession not as a
tenant but as a purchaser in part performance of the agreement of sale and has
not therefore paid any rent in regard to the premises. The first appellant also
filed a suit for specific performance in OS No.2089/1999 on the file of the
City Civil Court, Bangalore, against the said Anthony Swamy and the purchaser
(respondent). The said suit is still pending.
The trial court allowed the eviction petition by order dated
30.6.2001 holding that the first appellant was the tenant under the respondent
and that the respondent had established that she bonafide and reasonably
required the suit premises. The said order was challenged by the first
appellant by filing a revision before the High Court. The High Court, by its
order dated 3 18.10.2001, allowed the revision petition. The High Court
affirmed the trial court's finding that the relationship of landlord and tenant
was established between the respondent and first appellant, but held that the
ground of eviction alleged, was not established.
Feeling aggrieved by the finding that there was a relationship of
landlord and tenant between the respondent and himself, the first appellant
approached this Court in SLP (C) No. 8245/2002. This Court by order dated
29.4.2002 dismissed the special leave petition but, however, clarified that the
finding arrived at by the High Court (about the relationship of landlord and
tenant) shall be confined to the said proceedings for eviction and that the
suit for specific performance filed by the appellant shall be decided on merits
on the basis of the pleadings therein and the evidence adduced.
Thereafter, the respondent filed a second petition for eviction in
HRC No.157/2002, against the first appellant and his wife (second appellant)
under Section 27(2)(r) of the Karnataka Rent Act, 1999 (`new Act', for short).
The first appellant resisted the said petition also, on the ground that there
was no relationship of 4 landlord and tenant between respondent and appellants.
court disposed of the said petition by order dated 13.7.2006. It held that
having regard to the denial of relationship of landlord and tenant by the
appellants, in the absence or any lease deed or acknowledgement of tenancy or
receipt in regard to payment of rent, the dispute relating to relationship
required to be settled by the Civil Court. It therefore deferred the eviction
proceedings till the disposal of OS NO.2089 of 1999 filed by the first
respondent for specific performance. The said order was challenged by the
respondent in HRRP No. 463 of 2006. The High Court, by the impugned order dated
28.5.2008, allowed the petition, set aside the order of the trial court and
granted eviction subject to the decision in the suit for specific performance.
The said order is challenged in this appeal by special leave.
It is not disputed that the first appellant had filed a suit for
specific performance in OS No. 2089/1999 and the same is pending. The first
appellant has contended that he has not paid any rent from the date of
agreement (11.6.1997) as he was permitted to continue in possession of the suit
premises in part performance of the agreement of sale. No acknowledgment in
writing by 5 the appellant that he is the tenant after 11.6.1997, nor any
receipt or document to establish that any rent was paid by the first appellant
to the respondent, was produced. In these circumstances, having regard to the
provisions of section 43 of the new Act, the trial court was justified in
holding that the eviction petition should be deferred till the decision in the
suit for specific performance.
We are of the view that interference with that decision of the
trial court by the High Court relying upon the earlier decision of the High
Court in Haji Iqbal Shariff vs. C. Manjula - ILR 2006 Kar 2766 is erroneous.
Iqbal Shariff, the High Court had held that once the person in occupation of a
premises, admits that he was the tenant under the previous owner, that can be
taken as evidence of relationship of landlord and tenant between the transferee
from previous owner and such tenant. The High Court purporting to follow the
said decision, held that the first appellant having admitted that he was
earlier the tenant under Anthony Swamy, became the tenant under the respondent,
ignoring the defence.
There can be no dispute about the general proposition laid down by
the High Court in Haji Iqbal Shariff. But the High Court ignored the fact that
though the first appellant had admitted that he was earlier the tenant under
the previous owner, he had also specifically pleaded that the previous owner
had executed an agreement of sale and permitted him to continue in possession
in part performance of the said agreement of sale and that therefore he ceased
to be a tenant from the date of agreement, namely 11.6.1997, that the
relationship of landlord and tenant between him and the previous owner had come
to an end, and that as on the date of sale by Anthony Swamy in favour of the
respondent, he was in possession in part performance of the agreement of sale
and not as a tenant. In fact the first appellant also filed a suit for specific
performance in the year 1999 which is pending. If there was an agreement of
sale dated 11.6.1967 and delivery of possession in part performance, as alleged
by the first appellant, then he did not become a tenant under the Respondent
and the decision in Haji Iqbal Shariff relied on by the High Court would be
We may however clarify that a mere assertion by a tenant that he
is in possession in part performance of an agreement of sale, or the mere
filing of a suit for a specific performance, by itself will not lead to
deferment of the eviction proceedings under section 43 of the New Act. But
where the respondent in an eviction proceeding under the Rent Act denies the
relationship of landlord and tenant contending that he is not in possession as
a tenant and produces and relies upon an agreement of sale in his favour which
confirms delivery of possession in past performance, and a specific performance
suit is pending and there is no lease deed, or payment of rent from the date of
such agreement of sale, or no acknowledgment of attornment of tenancy, section
43 of the new Act may apply. But a word of caution. Courts dealing with summary
proceedings against tenants under Rent Acts for eviction, should be wary of
defendants coming forward with defences of agreement of sale, lest that becomes
a stock defence in such petitions. Unless the court is satisfied prima facie
that the agreement is genuine and defence is bonafide, it should not defer the
proceedings for eviction under the Rent Acts.
On the facts and material in this case, we are of the view that
trial court was justified in its decision to defer the eviction proceedings
till decision by the civil court. We therefore allow this appeal, set aside the
order of the High Court and restore the order of the trial court subject to the
following clarifications :
Nothing stated herein shall be construed as acceptance of the claim of the
appellants that the previous owner (Anthony Swamy) had executed an agreement of
sale in his favour or that he is in possession in part performance of the
agreement of sale. The specific performance suit shall be decided on its merits
with reference to the pleadings and evidence produced therein.
observations we have made herein is only with reference to the issue of
deferring the eviction proceedings.
the event of first appellant failing in the suit for specific performance, the
respondent will be entitled to seek restoration of her eviction petition (HRC
No.157/2002) and pursue it in accordance with law.
Having regard to the facts and circumstances, we request the City Civil Court
where the suit for specific performance (OS No.2089/1999) is pending for 9 more
than ten years, to dispose of the same expeditiously.
____________________J. (R V Raveendran)