JOSEPH KANTHARAJ & ANR.versusATIHARUNNISA BEGUM S.

                      [2010) 1 S.C.R. 629

                JOSEPH KANTHARAJ & ANR.                               A
                                v.
                 ATIHARUNNISA BEGUMS.
                (Civil Appeal No. 282 of 2010)
                      JANUARY 11, 2010
                                                                      B
.[R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]

     Kamataka Rent Act, 1999:

      ss. 27(2)(r) and 43 - Eviction proceedings - Deferment          c
 of - HELD: A mere assertion by a tenant that he is in
possession in part pelformance of an agreement of sale or
 mere filing of a suit for specific pelformance, by itself will not
lead to deferment of eviction proceedings uls 43 - But where
tenant produces and relies upon an agreement of sale which            0
confirms delivery of possession in part pelformance and a
specific pelformance suit is pending, and there is no lease
deed or payment of rent from the date of such agreement of
sale, ·or no acknowledgement of attomment of tenancy, s.43
may apply ~ Unless the court is satisfied prima facie that-the        E
agreement is genuine and defence is bona fide, it should not
defer the eviction proceedings - In the instant case, trial court
was justified in holding that eviction petition should be
deferred till the decision in the suit for specific pelformance
- Order of High Court set aside and that of trial court restored
- However, in case the suit for specific pelformance fails,           F
landlord would be entitled to seek restoration of eviction
petition - Suit for specific pelformance of contract.

    Haji Iqbal Shariff vs. C. Manjula ILR 2006 Kar 2766, held
inapplicable.                                                         G

                       Case Law Reference:
     ILR 2006 Kar 2766, held inapplicable

                               629                                    H
    630      SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 282
    of 2010.

        From the Judgment & Order dated 28.5.2008 of the High
    Court of Karnataka at Bangalore in H.R.R.P. No. 463 of 2006.
B         S.N. Bhat for the Appellants.

          Shakil Ahmed Syed, Saud A. Syed, Mohd. Moonis Abbasi
    for the Respondent.

          The order of the Court was delivered by
c
                              ORDER

         R.V. RAVEENDRAN, J. 1. Leave granted. Heard the
    parties.
D
        2. 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, 196~ ('Old Act', for short). She
  alleged that the previous owner Anthony Swamy, sold the suit
E premises to her under a registered sale deed dated 25.9.1997.

       3. 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
F suit premises from the year 1988, under 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
G 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
H paid any rent in regard to the premises. The first appellant also
  JOSEPH KANTHARAJ & ANR. v. ATIHARUNNISA                     631
       BEGUM S. [R.V. RAVEENDRAN, J.]

filed a suit for specific performance in OS No.2089/1999 on A
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 8
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 C
dated 18.10.2001, allowed the revision petition. The High Court
affirmed the trial c;ourt'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.
                                                                      D
      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 E
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 bas.is of the
pleadings therein and the evidence adduced.                           F

      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 G
there was no relationship of 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 H
    632      SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A 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 proceedinf1s
  till the disposal of OS No.2089 of 1999 filed by the first
  respondent for specific performance. The said order was
B 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
c 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
D was permitted to continue in possession of the suit premises
  in part performance of the agreement of sale. No
  acknowledgment in writing by 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
E 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.
F      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
G 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
H under the respondent, ignoring me defence.
   JOSEPH KANTHARAJ & ANR. v. ATIHARUNNISA                  633
        BEGUM S. [RV. RAVEENDRAN, J.]
      9. There can be no dispute about the general proposition A
 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 e~rlier 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 B
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 c
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 1.999 which is pending. If there was an agreement
of sale dated 11.6.1967 and delivery of possession in part
                                                                    0
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.
      10. We may however clarify that a mere assertion by a
tenant that he is in possession in part performance of an           E
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   F
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
                                                             I
from the date of such agreement of sale, or no acknowledgment       G
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        H
    634       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   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.

          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
8
    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 :

C          (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
D          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
E          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
F          request the City Civil Court where the suit for specific
           performance (OS No.2089/1999) is pending for more than
           ten years, to dispose of the same expeditiously.

    R.P.                                             Appeal allowed.