b -I IN THE HIGH COURT OF ICARNATAKA AT BANGALORE DATED THIS THE 22 D DAY OF JULY, 2011. BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM Civil Revision Petition No 2. OF 2004 Between: 1. Mr. D.P. Naresh, 5/0. D.S. Prakash, Aged 34 years. 2. Mr. D.P. Pavan, Sb. D.S. Prakash, Aged 29 years. Both are R/at. No.15(03), Sri. Krishna Rao Road, Basavanagudi, Bangalore-4. .Petitioners (By Sri. S. Shaker Shetty, Advocate) And: Manohar Fabrics, A Partnership firm having its office At No.A-13, Sriram Market, D.K. Lane, Chlkpet, Bangalore-53, Represented by its Partner, Mr. Lalith Kumar. Respondent (By Sri. Paras Jam, Advocate) 2 us CR0 s Ceo uncer Sect r 115 o (Pc cd ml tre Oidgment and Deuce datd 2410912003 passed to DNo183S 2)0 on ti m o te I Id)!. I dg, tmel Causes Cent Banqaore (CCCH- 1), dism’ssing the su ), r3j s )t I n 1 a Cit c r r o I i j r e [ a toe Court made the foliovuno: : ORDER: cidods ae n revVo p nt h 1Cm sat it su n SC 1938[’002 P Ce C rreo Judra Sman ra ses Cent, Banga!ore 2 Perd 3 The ontestual facts manifest fnjm the ase caper s is! et cc p I sn mim r rid ereprdt 1 V r F rbr L n C ti r it jr r tct: r u d ) I LEiU I ci j C rv’s 0 0 tim I) I rm To’ rI’ A b; Sut va’ fled, n wh,& N/s rianchar tabrics ;vas daccrwnd as tenant represented by it, Partner one Laliti kumar. Tp support of the plea that it v:as a tendnt undei their, they averred teriditry • c’mmenzei ,everal ya.s agc. and rent paab.e .va... Rs.385 1 - ‘c) Originally, the properly wac cwned b their father and on his demise. in a partition. it was ailotted to them. Haviiq st’creeaed to it in the mar,ner iforesaid. they have been exe-cisina r ght of cwieiship. They called upolte epoicer t vacatctl rcuesw K a r iolc stIJeScC tuo CC 3 1 StrI6o1rife FceyA ‘he tesron en. teia t tdiled tc roiloly ‘. U’ tha r2quect e u’it ?‘ j ti’et ’l’-ig ut ‘1 ‘/ ) i ‘ a c 2 02 r . v t • it ‘2. .i fld 5 es to cuit ‘no e <um terec eara irou dvoc a id tile3 detatle. written statement. catcgonra!lv. adrn.ttina the averrne”ts in the r!a’nt regarding tenancy but ‘ienied ti petitio ire o Ho a r, he uced am na id y dc’ S 0 contend that though .4/s Mano.ar Fabrics had affi.med tile title of the petitioners, the title was defertive Tt i not r e nanre known law and is, the ad no ri lt to V I C. C de ldaflt F )har Pa s occu cd the s p pierni $ in the yearl°50 on the initial rent of Rs.235I- till tQ%-97 riciever, uy rnstake - chc’qbe v as tendeted tor R. 285,. tj 9 act e. rrt ,cerrc t the. ) ts i en .cnt frrrn •.i;. Devota i’i’e nlrnt., nd •ot r :r the , 4’fl 1 itt:, yprt ..tr rn CIa’ ‘ it fl-pr e_ 1’,P ,n: .. • ar3— 5 hi a it 6 af cx edttt prif id s ea rin o p tic a r Ic La I r F pa cna ito ut as es t fl) S u.s aoi t aver u t er d m ia It r ou r f v a tsto c id a oi ons ct ao e f W c. a s a ft dii. )n doc iritten stat°ment •me ‘Wit. carqe” rrial 0I t a the contentions of the ulaintiffc. regardi.in t;tle and interesf and also regarding ju;al dlor inc enan Con enty amiss aga whit us rc on i Shaker Shetty nd th hrouc taut given go-by the e .qI’ I tre or the •Hs ,ar I DW1I in .31 (o 4.. te ‘afl its. e U gnc to Lalithkumar tendered evidence as s.dge c nsider’ -g thc videnc t or te their ahsolu’e IeIdtionsIIip of he t a ed. 9 Learned counsel cri S tio vo h ly the c ndar anor abn raised inconsictent defence and t end c. H reate new e is p d Jo’ t rj tt yint :! (.dra 4 a t’;D elairit regarcllnc ctar.,;%n; iç, ‘ a 3I sirr’ r•1 •ar, P ai E c-I Para Plai d ian as inducted as a tenant in respect of the schedule propert. After the expiry or the initial period of ter y tt ife d con ed ii tupa of t b $ n mm gy rc r t of Rs. 85/- 1 e tena y mo’ th is the Enylish Calendar mont!’. The Defenddnt confirmed tlw ownership of plaintiffs and the te. y defe n ir oec S le Pr y ed 25099 ongnal letter is herewith enc.loced as Annexure ‘K lh d my in aeg nissi Ii p 2 ot writ s’ate _nt ft uy L i(urnar representing the defendant adm.ttinq ter,anc to folk q eft 2 T averrr ‘ts ‘i. e 3 4 0 lie Plnr tire pa’tij :,tie ft i trie that tnt f’- 1 ri-n te ‘ ‘t ; recD.aO n hi, 1, 3tP F t V 4k. 14 (3 r ti: 1.• S ..S- k’’,. rot of ..h edar r ete as oed ad err dunnq 1950’s Originally th rent wa Rs.fl5/ tii 19°6 7 eit was P ?V: . By mstdte, a cheque was tenoered fur a sum or Rs 38S Jurinc year f 19°b-9 d eve e ther T °i i ‘eo o rds ent. 11. On tnis basis, he asserts that the averments in the plaint that the Manohar Fabrics ;s a tenant ‘‘n a ly f 38 de r iffs oect e ty scho wa. only tted y ie defendant r. written statement ;t had aiso sent :øtter nateci 25 &199Q categoricdlly admitting jljrø& relationship. he subri t °adr nof ‘thc er ed stc Jer Bt e •J,: J S1.b”fl;. I iE (lea jdmisior ‘n tI,e :. ;‘hn ;tatt’.a,r.t th4’ r ‘Itendar.’ r-1.., nh r ‘-,jj nr • ‘dS frartnersh:i ei i ‘be d n’j’ N. r lit. r d . 3 r idi t ie ont y and ‘lot a Partnership Con’ pm at s y te d d oiwnershi or tiw nidlntiffs, Sh is reo din jur rel a g.,a.tr.ership concern t 0 t He submits as thr 99 ad tte it was estopped to ior ip al ti Co Marohar t th .‘cntcnd tar t ? r It jS 1 10 , 1 I Partnership Concern to the knowledge f the plaintiffs and al kUc dot,’t pr rt rhe suit was filed bringing Manonar Fabric into party array s e it p sn b a ku r i h a was not iicputed by Lalithki.imar n the written statement. a5 ula es 0 woJi p ut e ar raac -‘.i’ h adn 1 :ss.oi. it ‘s urged t hat the Juugmer.t at ie a Co i rr o a ‘ ‘it I t ‘‘rcL 0 h;!,t. — ,r.q •‘ ;.pr t 1 .. r—r’ 1 , 1 i S It •1 lt•ti,1 “di’, ci ii •-l fr, • %(‘ ‘ r! ‘—d .r.’c’i I Ma )h Faric s Pro ie y icc .ado Gcitt Ti lair is th roptietur Paint•tfs kne’’ d1l these facts, but wit a mt sb Oa am thc ‘rc r tio it r me iv represc tmrir tht det’r’dint t’ed the ‘uit ga.nst ranotar Fat rics descnimng Lai thkt 3 rnar as its partner and n’e tate Si e sumos ver rvd n Lalmthkumar La!mtlikumar entered appearance and tiled rentatni w’h y ad it ce e ‘rid the stdternents as a He submits that sdch a lapse a ot 1ag ue t r o a concerr into Partnership Concern. He submits that lapse V fl 6 i 1 c. r f t ‘. ev,der,c. I•. 9 e e’ mderce Lammthkurnar h’s speilød •.ut Ii • ‘ n mq t e1 10 r br d rç ;I’ •r’..;:°r ‘nr. neressdry palty -G 7lta P.O r’d C, , e un 1nn v rs, i. v 4fl cr1 • ( ‘._ T( thi iw ‘ .tOt’ ‘ —II— 14. He would further contend that Lailt Kumar was living In the vicinity of Manohar Fabric and thus, he knew all the facts and thus filed the written statement by mistake. He submits that, In written statements, if there is an admission of certain plaint averments, it will not exonerate the plaintiffs from establishing jural relationship of landlords and tenant to seek an order of eviction. 15. Regarding the letter referred to by the plaintiff dated 25.6.1999, he submits that it was written by the defendant on a bonafide belief that they have lawful title, but, on further enquiry, defendant found that Devatha Investments was the owner and there was no resemblance of right acquired by the plaintiffs. Even otherwise, the mode of acquisition was not disclosed and hence, it cannot be held that the plaintiffs have become landlords of the tenant to seek eviction. fr 16. Pejaic ig cf de ts tat s, e ai s it a Partnership rolicern, piai tiff - sh 31110 Ii ye nrccucd necessary dc,cume 1 ,tatnn In the abc.rce at t’:’ncl it iç ‘t b I d s r • r 17 P ‘trite tb s-’ bo h -dec lid re’nr1 ry ronsideratior, and re-appraised the evidence. 18 he ‘inaisputed coitextua• facts and tI e te. alevi cveu t d ‘s bE w M ot F bC ; in possession as a tenant of the premises described ‘n t 3 h leo ‘ au a tees ou t ‘act It is also no• ‘ dicrijtc. that Fhey obtained the prPiltsec mr. tt 3...ia [a ivestrnents :h .cr’ dbnç V ut v ? Ii oit-t ii tie tio rørnfore th,’ iereii.,..t — adir.upedij tt,iait r’ u 0 •i .,r u -r ,c .• t?:t lpt.... .Lii , . hi s’ i.!I t t- )t ‘I -J 1 It I S 1• f• —1 .: .1;.a ;, i _I ui f’ ‘ ‘) cj.’; ., 3 i I 3 I ‘I a S J rt L IS VI e oa a ic p r a f / a I a I 1 r estyo aack dge ame I sent us a receipt 49 inohi Fibrim ‘i’e defendant in ths - out r and ‘ st of i petiti s in t hedi ernise and has also acknowledged their right to collect rent The issuance of cheques in a sum of Rs.9.240, towards rent -om 199 dart cheq’ frR 1 5, tree sf odf .0-’ to 699 a rlinture regarding the viniculum juris of landlord and tenant between the oetitione’ and Manohar Fabrics The earne al jiJ is igr I this nal nce a s t or La 1< ,mr iat Mar e. a— I ab ‘ &iS :.n. tena’il a pet’tierørs it er K ‘C tt’u t.r fji La ‘4!’ :‘. •r rs —:.er ,:. ‘, r • p I’ the defendant-Manoha n also entered appearance in the stilt enjaa nq Co insel. The vaicdlath fled by La 1 ith Kurnar :n the st 1!sUuses he signed the vakalath dS a pdrtner of Mant,na t-.rm. Learned counsel Sn.Shaker chettv was right in contending that I auth Kumar having represented h’i a jud cia) proceedings that he ‘s a partner of Manohar Fabrics could not retract such admission in the written statenleir by merely contending otherwise in h’s ucular testimoni 21 He ‘ghtiy dre’ y a 3 and S of the w admitting o ant th iahrss a’.o OWl ‘.a ,erved 14 ,j r ‘‘•. rt u 1 .n I.un )fl to the avermerits ored by Lalith oetitior’era s thei of thc r yteca’se ‘ti rcc ise h t “ th- ‘•ot”t t tl’•e I C a (I w r r t Je € or te ef a Manohar Fabrics if he I.ad no authority to represent .t He o a r C tOri s iro r ., s arid thus he WdS not d necessary party It nust be further nt e lit Kin r a ntxe b ght t art r y dS a tenant in nis individua! capacity The oct oes/ an f’ s or aoanstVar arFabri showing it is represented by Lalith Kumar, ts partner. W[ n h r 3te antolf ‘w m de’ the lair it was fricumtent on Laith urnar to traverse it. He tiad to eiter ceptth av nersi thepla titi is pari.er or deny it. In fact, his ct i repres..ntinç deen& t a pa tner of d #en ant tiling vilcalath birds liii . 1 — re i no dCr e’IL fl L e Wi ttei )ta ‘te IL filt by al tr Kurnar tat At i’cd ‘iotr’n to do rh Mjofla ra cs 1d .t ci rt pt .t r • P • ou I J’pute the . t a• •. i., : •i[ ,C;nisr —e .cc” Z’ 1 f -‘7- the suit summons and filed vakalath representing Manohar Fabrics as a partner but continued to defend the suit and has even lead evidence. Therefore, he cannot be allowed to put a volte-face to contend he has nothing to do with Manohar Fabrics. As referred to in para supra, since he has admitted In his written statement facts regardIng to tenancy between the plaintiffs and Manohar Fabrics, he cannot wriggle out such admission In judicial proceedings. 23. However, as Sri.Paras Jam, learned counsel has persistently contended that Manohar Fabrics is a proprietary concern and not a partnership concern, I had given one more opportunity to produce material documents about Its constitution. Lalith Kumar has filed through learned counsel Paras Jam certain documents in Form—C issued by department of Labour dated 22.12.1985 that Manohar Fabrics Is a proprietary concern and has also filed Assessment Order under Section 143 of the Income Tax Act showIng Gowtham Chand as the proprietor of -18- Manohar Fabrics. On perusal of the documents produced by him show that the Assessment Order showing Manohar Fabrics as a proprietary concern is for the year 2000-01, 2001-02, 2002-03, 2004-05, 2005-06 and 2006-07. The registration certificate issued by commercial tax department Is dated 12.07.2004. All these documents relate to the period after filing of the suit against Manohar Fabrics. The suit was filed by the petitioners/plaintiffs in the year 2002. Though some of the documents show they relate to assessment for the period 2000-01, but the assessment order has been passed only after the year 2002 on representation of Gowtham Chand that he is a proprietor. There Is no explanation as to why the documents relating to period earlier to 2000-01 has not been produced. Such documents would have revealed the true fact position. 24. Hence, these documents are of no avail. Therefore, there is no material produced by Lalith Kumar ‘7. ,... ‘7 ‘I -‘9- or Manohar Fabrics to show it is a proprietary concern and that Lallth Kumar was not authorised to represent It. 25. Learned counsel Srl.Paras Jam raised additional ground relying on the decision reported in (2009) 15 Supreme Court Cases 693 (Blswanath Agarwalla Vs. Sabitri Bera and others) and submits that trial Court had to raise a relevant issue regarding the status of the defendant. Since no such issue has been raised, the Judgment is unsustainable. He refers to the observation of the Apex Court which is as follows: wWhen a defendant is a trespasser and is sued as such, plaintiff must file a suit having regard to the cause of action thereof. It was not a case where by non-framing of such an Issue, defendant was not prejudiced. Therefore, the order passed against the trespasser without deciding a issue about his occupancy renders the order of eviction unsustainable”. 26. The observation of the Apex Court undoubtedly mandates that based on material propositions in the ) °ar d 1 3 3 I JI S € 1 i ad c t eo a ci e of sa e a S rt ci t° e Rajah Amir Hassa Kha s SIeo Baksh Sir gh P vy U a II rd an Appeals 231 V 0 -21- lower court have acted illegally or with material irregularity.” 28. From the dictum in these two decisions what becomes apparent is revisional power of the Court Is lImited and no question of fact will be gone into except examine legality of the impugned Judgment within the contours of SectIon 115 of the CPC. It must be noticed the Impugned Judgment is passed by Court of Small Causes and is subject to Revision by this Court under Section 18 of the Act. I am satisfied that based on the ground urged by the petitioners against the impugned Judgment, the revisional power to be excercised in this case is not only as permissible under Section 115 of the CPC but also under Section 18 of the Small Causes Court Act. The scope of revision under Section 18 of the Small Causes Court Act being wider than the scope of Section 115 of the CPC even re-appraisal of evidence is permissible. Therefore reference to evidence is necessary to decide whether the trial Court’s Judgment is sustainable. -TI- 29. The last ground urged is termination of tenancy of respondent/defendant was not valid. Records reveal that petitioners/plaintiffs have issued statutory notice compling the provisions under Section 106 of the Transfer of Property Act and I find no infirmity in termination of tenancy of the respondent/defendant. Therefore, this contention Is also discounted. In the result, I am satisfied the Impugned Judgment of the trial Court dismissing S.C.No.1838/2002 Is unsustainable and Is liable to be setaside. The suit of the petitioners/plaintiffs shall stand decreed as prayed for. At this stage, the respondent/landlord prays time to vacate the premise. The respondent/defendant Manohar Fabrics is directed to vacate and deliver the vacant possession of the premises to the petitioners/landlords within a period of one year from this date subject to respondent/defendant clearing all arrears of rent and pay 2. i e r £1 C J t S my SI