Joseph Kantharaj & Anr vs Attharunnisa Begum .S

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.

4. 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.

5. 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.

6. 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.

The trial 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.

7. 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.

8. 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.

In Haji 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.

6

9. 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

inapplicable.

7

10. 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.

8

11. 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 :

(i) 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.

Whatever observations we have made herein is only with reference to the issue of deferring the eviction proceedings.

(ii) In 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.

(iii) 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)

New Delhi; ____________________J. January 11, 2010. (K S Radhakrishnan)