IN THE HIG§-£ comm' OF' KARNATAKA AT BANGA.§g€)'E'§;;..,jj f _
BATIID mrs THE 24% DAY C)? JUNE, '
PRESENT m"i _' AA _
THE HON'BLE MR. J{JsT1c:_E_v. {;;}OP'fx1_£.AGOW1}A' '~ V'
THE I~{ON'BLE MR.' JpSr1;:E--
H.R.R.P. 11,!'20egi%1«i;Eir:j"'_ _
clw a.R.Eg_1é. 'mg/igoeag ; 1_
H.R..R.P. No.1I20O{_): ' _'--
BETWEEN " 1
1 ANwAR"EASHE. _
SINCE =;;)EcEAs'E.t}-.,I:3as'_:..E$'_, ' -
a} SN§T.AS'¥§iR4{IBI'
MAJOR, WIFE -
b_}..~=__ AK§:EM:§3A$HA " ...... -A
"1t»1AJOR';~g'¢3OT€.A_
cA*r_ES)"' .
THIS HRRP IS E_"iLE_2D U'/'S'; AGA;§rs'ST TEE ORDER
DATES 6.10.99 PASSE'-D,-IN E?EI*ET';RE'VISE-Obi.$40,262/95 on THE
FILE OF THE PR1<.--DESI'R}§'.'FvqU_Q{}E,--._"1»'!T£S(}RE, REJECTINC} THE
REVIS§ON PETITI50N..g
H.R.R_._.P. may 2900* 4' " .'
BETWEEN
1 _ AN\§.?§Xl? pAsHA'sAI§E8:
'~ 'Asmczzg QECEASED ms
a) 'sMa.As.HmrB:'I
'OI<',-V WIFE1 V V
fbgv AKRAM .:=~;sS:¢;A
; Magoikg sois;
-- ;;0.L:HA::2" mam
';»1A_;J.2O
LAKSHAR MGHALLA
MYSORE-1 ;>E'rmoNERs
(BY SR1 SREEVATSA ASSO IATES, ADVOCATE)
AND
SMT. SYEDA NOOR HAFIZA BANG
MAJOR, W/O SYEE SHAKIRUDDM V
N0.T 665, 38"" (30288 ~
157" MAIN, 4 T BLOCK .
JAYANAGAR, BANGALORE ---- 560 O' 1_
(BY SR1 K N SBAN;_KARALIN(}iUf'P:& AND
SRI M.M. sw*m;§Y, 'AB:.jy'ocAfI*;g«f,s).,,
THIS HRRP IS FILED Lr;s,.3_:--1.5' .c1?c'AGA1;§i--s"1* THE ORBER
DATED 6.10.99 PAS.SI:flL)»I_N :§ENT1"VREVI$:--QN' N(3.i247/95 ON mm
FILE 0;? THE :*§RL.;Bz$3%R;C':*':_ ' Jt}::>.c;E:,""'----:~¢1Ys0R1:, PARTLY
ALLOW¥NG THE 1;b:v14sI@-:<§'_VPET;<1mN;--- *
THEsgi.--.riR_;§'P§g'' €::;;MIr»z (}v.. O:¥:'---liforé HEARING THIS DAY,
v.GomLAGa-wna' ;.:1;,_., Q_'E£,§VEtR~ED '§_'HE FOLLOWING:
These ., t\a?o4'ui'a$?isién A.peVti;ti0ns are directed against the
pagsed learned Pr1'ncipa1 District Judge
in 1éen£%.%a.é5:i§§'2g:j: No-$.24? and 262/1995, dt;.06.10.1999
v. "CfL;estioi1i1}g .1e gafity and valitiity of tha C(}1",{lfl101'} order
' " féll.-ctjwmg grounds'
' dismissai of the Rent Revision No.26?/1995 in
-- to thtf: order of eviction passed by tha I Acidi. I
Mu»:1s:i'f, Mysore in H.R.C.No.364/I992 is erroneous in law
granting a decree of eviction by the Tria} Cour: that the
IV
~. .. . '." TRESPQNQENT
petitioner tenant without the consent of the fret ree'po1fideat
landlady in writing erected pemnanent stI"uct.t1re V 4, '
premises even though the fi}'S{ I'€Sp0I1(i€I}11'
invoked her right under Section 2 1('1.}(¢:%_J'csf _
Rent Contra} Act, 196} (now repee3ed}%is 'tied in
3. Another gound ofa_ttae3s'"of order 'iinptrgned in
dismissing the revision is that the
learned Revisiona1§..C'o:t1_1t hes ::»t':ii}ec1A&'toj_'~ --611§;§;?'eeiate that large
structure \Fii7E71S --. the knowledge of the first
respondent = was apparently under a
sorV;etioz1ee{“Vpi~ar1 for the first respondent iandlady
aeeorded and therefore struetu:res were put up
upon” ‘–tfier’ and therefore there is no
V’77o.eont:aveofiori.éof éeeetion 21(})(e} of the Act. it is not one of
erged by the lanciiady in the evietiozx petition and
‘ ‘_’jno”evii(ige»£1ee in this rmard is adduced before the Trial Ciouit
. ‘ Court has failed to notice the fact that the si:ru<:mre
the premises in quesfion a renovation of the
existing building and nothing more The first
iandlady did not press the ground of Section _
eviction petition therefore the Revisiogial _j
set aside the fmding of the
ground in the iinpugxed order.
4. Further, it is cofité~::{(1ed- e_’4″tfx’e:’»«V:R*eVisional Court
ought to have constxfyted that of a buiiding is
with the co11se}:1:f[«-of as she has
consented of the building.
5. Fuxfhefoefixe ‘Court has also committed a
e;*1*o:f_jn of the Triai Court under Section
21 (1.j(i).:.Viei;2d have appreciated that the case of the
=..__;fi1fst ‘j_1§fider Sectioztt 2I{1)(<:) and under Section"
jg 3_(1e)(%t) saute. not stand together. As the petitioner had
a building on the premises and then let: it out
would not amount to sub-letting as held by the Horfible
.:_«"'*.3':.1,14'4;§2"e1}:1e mm in the case reported in AIR 1966 so 1939 and
:3 judgment of this com reporteci in me 19?? KAI? 555.
}t,\,_/
Therefore it is urged that the Revisional Court eught4,£e»-
set aside the firzding and evictien order under Seetgieri _
of the Act.
6. The wound of attack in .
H.R.R.P No.2/2000 is that the has the %’
request of the first fiection
21(1){h) of the Act. The committed a
serious error in Iajwset:i i13g and partly
ailowing it. the order granting the
relief in faveuré’ of’ t1%ie; fifi:;fé.:’:LV”fespondent landiady is also
chaliengeefg’ requested to set aside the
flue revision petition.
71- V$!ith’ referezice to the above said gonads, we have
Vf§:arefuBy the concurrent findings of the first
insofar as Section 21(1){I] and setting aside
under Section 21(1)(h) ef the Act and partly
* the evietien petition on that ground, passing an
iffrder of eviction ageinst the mfi emm with 8. View to
find out as to whether the $3.56 is made out by to
interfere with the concmrent finding of facts on
under Section 21(})(c) and 21(l)(f) of the Act and _
fmdlng of the Trial Court under .’:’§”e€§ti'<}r:A_
irnpugned order is erroneous in law.
8. To answer: this question, ‘9§i?é:VtT_V’»i1a§re the
reasoning portion of the
District Judge. The elaborately
referred to :’the_ .. also facts of the case
plaaded by the :””‘§:c4>4:;1sid<£;red the finding of fact
regxgreed lthza under Seciion 21(l)(c) and 2 :{1)(t}
19 respectively. The Revisional Court
r$f€rI;6d and condifions of thc: lease Ex.§'.2
VV'u§3I1tf3VIV'€(3 the first respondent, which prohibits from
ugarésy stmcture of perznanent nature in the leased
"The cost of mnstruction was more than Rs.3 lakhs
have not esfablished that they have obtained
iijonsent or permission from the landlady is the finding of fact:
lN/
recorded by the Trial 0011191: on appreciation of _
finding of fact is concurred by the RevisioI1a*.l«–.Cenit: –« ..
contenficm regarding specific performance
by the first Revisional Court by reco__rdiIi7g.;'ea.sor:.-;s;V'A' as ;
sub-letting of the constructed at
paragraph 19, of the ‘:1rn;f)t:.;§11e’d«.V_ tr;.e.!x respondent in
Rent Revision No.262 ,1’ 199S,AWe.$:’ValsQ:a finder the frst
respondent landlady fine he is not a sub-
tenant and ffie”1:};’0t21er~fi:–}aw of Anwar
Pasha same, Wm Ifszfiflfi aw-2 Ashrafi Bi from
childhood and foreman and mechanic in the
wftifkshofi ‘Pasha Sahel). In support of his
co1ite:1f1t:i&d_1*I,e. respondent placed reliance on the
Ex.R.23, 24 and 25 to Show that he
membefef the joint famiiy of Anwar Pasha Saheb. ‘Fhe
dd 4{‘–‘$xaidV”€:(>z1te%.1t%on has been negatived by the learned Judge of
h Revisiena} Court: holding that there was no concept of
family among Muslims. ‘£’he case of the landlady after
éetlvertirlg to Ex.P.23 dt.10.11. 1988 executed by first
Mg
resmndent landlady and Anwar Pasha and
is the contents of the said document described.
Khan as the joint tenant alongwith VA;1»war VVit§i’ ” =
reference to the said document, the:’».eorfi;e:itien’ ”
respondent landlady is-c0nsidere£1″b_y ..
held that during the year 1988…}:V5ii__i1e;r abse:;; 1_ee_5such a
document came into existeyriee’ the fiaud piayeé
en the son of the ‘JBa.1eegh11ddin
Sahib. Emmeediaeefi; ef the said agreement
a cheque was else . by the landlady. it was
subsequermy per the instructions of the
1aii’e”1a¢yv-_’:e_j’i{T1.;eref<}re"£1ie""f{:iding of fact reeorcied by the Trial
Court e7::_'the:"':;e11fentions issue is that the said agreement is
eiiega} aiitglfrzet the ease of the f1I"St petitioner and the
zespeiident. The Tria} Court in justification ef its
the premises in question was sub iet by the
"j;¥e:i?jQ1}:er in favour of the second respondent has been
V. 4-e (:0:°1eu;{red by the Revisienal Court after adverising to the
1£.g15Ve1nt facts and legal evidence 0 Wim reference to
Ex.P.33, reply to Ex.P.34 and aiso evidence of R.W.} who has
stated in her evidence that her husband aione
premises on lease. Therefore the finding of fact _
the Tria} Court on the contentions iss1;e»Vi1o1diz1"g"t.§at.: " 'V
is not a valid document for letting V'fV'.'§:3"l?.{«)'IV;1'et_':«
of the respondent No. 2 sub-tenant."—.
9. Further, the Revieionai after to the
documentary evidence of E}i’;R.t25′-raitiigntw” evidence of
e.w–2 Asmer _.§i;’vj’wVife’:’«.’ef« Pasha Saheb and also
referring to Para–23 of the impugned
judgment teed that eegmm urged by the landlady under
proved. The concurrent finding of fact
yecorttied-t’.__by”‘ Reieieional Court; with reference to the
tfivaterial Vexridefieekten record that they suffer from illegaiity or
t 4_ cefireet be accepted by this Court. Therefore the
judment suffers from illegality ané Revisiona}.
to exercise its jurisdiction are only gounds
which this Com’: can exercise power under Section 115
h\/
laid —- down are applicable to the case of
regarding her capacity to carry’ on with l
business as claimed by the landlady if; £he..4e\%.ietipd2j.’
start business after getting .Qrcier’._oi’ evi(:’i;;Es;z1.:4_ paesed
against the petitioner herein Vet 24
recerded 21 fmding of fact 1eJ:1d1ady’s
husband will be retiring two
sons who were deizflg are intending
to start A’ _ir;;VVVl:’rl3;sore in the schedule
premiees .:3he% liaew funds 1:0 put up the
col1s1113cI;l=;>:1 Qf te the needs of her sons and
eyideneel of PW ~1 and 2 is reappreciated and
founff of fact recorded by the Trial Court
lzeldfhezfi’ are erroneous in law and accordingly set
‘ ané ganted the relief under Section 21{1){h).
‘ The said. finding is not shown to us by the leameé
4′ –vee_fi’:.1se1 for the petitiorzer as erroneous or error in law for
exereisizlg our Pfiwer under Se 5 of Code of
13
Procedure either on the grolmd of illegality or not exer<:é$.§,;1g
the jurisdiction properiy by the rm: Revisional Couffg o.
12. We are in respectful ageement
and reasons recorded by the learned
Court in setting aside that portion: of the”-ejfder ~’
aviation petition of the: landlady Section ;’f(1)(;Ej1) of the
Act. We do not find an3:’;:.4_fo9.sc.i_}1s§. “both the
petitions of the revision to~vV.’i:»it¢.f£%:re with the
impugned comrnoxa in dismissing the revision
petition of the giflowing the revision petitiozz of
Eainélariy ganting the relief of decree of
of the’: Act. ‘
13; The ~r§:ioion pfifitbffi are dismisaedo
Sd/-3
Tuddé
Sd/2:
Tudgm’
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