Reportable IN THE 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 Vs. Attharunnisa Begum S.     … Respondent

O R D E R  

R.V.RAVEENDRAN, J.

Leave granted.  Heard the parties.  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, 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.

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 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  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  

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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  

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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  

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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.  

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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.  

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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.  

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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  

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more  than  ten  years,  to  dispose  of  the  same  expeditiously.  

____________________J. (R V Raveendran)

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

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