SRI. MASOOD KHAN v. SRI. D. SYED NURUL HASAN

(BY SRI. MEHTER M. AZZAM, ADVOCATE FOR RESPONDENT NOS.1 AND 2) …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED - 2 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 ORDER DATED 25.02.2021 PASSED BY THE XVII ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU IN S.C NO.15345/2018 ON I.A.NO.3 VIDE ANNEXURE-A. IN W.P.NO.43902/2019: BETWEEN: MASOOD KHAN AGED ABOUT 59 YEARS, S/O LATE AZEEM KHAN, NO.170, HKP ROAD, BROADWAY, BANGALORE-560051 (BY SRI. ALLAH BAKASH M., ADVOCATE) AND:

1. D. SYED NURUL HASAN AGED ABOUT 68 YEARS, S/O LATE D. SYED ABBAS,

2. SMT. MALLIKA BEGUM AGED MAJOR, WIFE OF LATE D. SYED ABBAS, BOTH ARE RESIDING AT NO.168, ARMSTRONG ROAD, SHIVAJINAGAR, BANGALORE-560001 …PETITIONER (BY SRI. MEHTER M. AZZAM, ADVOCATE FOR RESPONDENT NOS.1 AND 2) …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED

05.09.2019 PASSED IN S.C.NO.15345/2018 ON FILE OF XVII ASCJ & ACMM, MAYO HALL UNIT, BENGALURU VIDE ANNEXURE-A. - 3 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER W.P. No.5600/2021 is filed by the defendant in S.C. No.15345/2018 on the file of the XVII Additional Judge, Court of Small Causes, Mayohall Unit, Bengaluru, (henceforth referred to as the ‘Trial Court’) calling in question the correctness of an order dated 25.02.2021, by which an application (I.A. No.III) filed by him under Order XI Rules 14 and 16 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) was rejected.

2. W.P. No.43902/2019 is filed by the defendant in the aforesaid suit challenging an order dated 05.09.2019 by which an application filed by him under order XLVII Rule 4(2) and under XLVII Rule 1 read with Sections 114 and 151 of CPC was rejected.

3. A proceeding to evict the petitioner/defendant initiated S.C. No.15345/2018. The respondents/plaintiffs contended that the petitioner was a - 4 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 tenant under them in respect of the suit schedule premises and that despite service of notice of termination of tenancy, the petitioner did not quit and deliver vacant possession of the suit schedule premises.

4. The petitioner contested the suit and denied that he was a tenant under the respondents.

5. When the suit was set down for the cross- examination of the respondents, an application (I.A. No.III) was filed by the petitioner under Order XI Rules 14 and 16 read with Section 151 of CPC and a memo to summon the documents of title of the respondents in respect of the suit schedule premises. This application was rejected by the Trial Court in terms of the order impugned in W.P No.5600/2021 on the ground that in a suit for ejectment, all that the Court was expected to consider was whether there was relationship of landlord and tenant between the parties and whether there was a termination of tenancy. - 5 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019

6. The Trial Court in terms of the order dated

05.09.2019 impugned in W.P. No.43902/2019, rejected an application filed by the petitioner under Order XLVII Rule 4(2) and Order XLVII Rule 1 read with Sections 114 and 151 of CPC declined to review the order dated

19.06.2019 by which the respondents herein were permitted to mark a photocopy of the notice of termination dated 17.03.2018 issued to the petitioner herein.

7. Being aggrieved by the said orders, these petitions are filed.

8. Learned counsel for the petitioner in W.P. No.5600/2021, Mr. G.S. Venkat Subbarao submitted that while considering the application (I.A. No.III) filed by the petitioner for summoning documents of title from the respondents, the Trial Court could not have gone beyond the scope of the application and commented upon the right of the respondents to seek ejectment of the petitioner. He contended that the question whether the petitioner was a tenant or not and whether the - 6 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 respondents were entitled to sue the petitioner for ejectment or not are all at large before the Trial Court and therefore, it could not have prejudged the issue. Likewise, Mr. Allah Bakash M., learned counsel for the petitioner in W.P. No.43902/2019 submitted that the Trial Court had permitted marking of a photocopy of a notice of termination of the tenancy without laying a foundation for leading secondary evidence.

9. Per contra, learned counsel respondents in both these petitions contended that the petitioner had admitted the tenancy in the reply dated

28.02.2018 and therefore, the application (I.A. No.III) filed by the petitioner to summon the documents of title from the respondents was not only a wasteful exercise of judicial time but also an attempt to protract the proceedings. He contended that once the petitioner had admitted that he was a tenant under the respondents, he was not entitled to doubt the title of the respondents. He further contended that what was sought to be marked in - 7 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 evidence was an office copy of the notice of termination of tenancy issued to the petitioner and therefore, there was no need to lay foundation for secondary evidence.

10. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for the respondents in these petitions.

11. A Full Bench of this Court in the case of Abdul Wajid v. A.S. Onkarappa [ILR 2011 Kar 229] while considering the scope of proceedings for ejectment by a Small Causes Court, held as follows: "59. In the context of jurisdiction of the Court of Small Causes, this factor is more evident from Clauses (a) and (c) of Article 4. For a suit for ejectment to be cognizable by Court of Small Causes, as per Clause (a) of Article 4, the property/premises must have been let under a lease or permitted to be occupied by a written instrument or orally. As per Clause (c), the lease must have been determined by efflux of time limited thereby or must have been determined by notice in accordance with law or the permission to occupy must have been withdrawn. No doubt even in the suit for ejectment the purpose is - 8 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 recovery of immovable property. Nevertheless a suit for ejectment cannot be equated to a suit for possession of immovable property in common parlance." Therefore the suit for ejectment cannot be equated to a for possession of an immovable property and therefore, there was no need for the production of the documents of title of the respondents to the suit schedule premises. Besides this, the reply dated 28.02.2018 issued by the petitioner showed that he had admitted that he was a tenant. The Trial Court was therefore right in rejecting the application (I.A. No.III) filed by the petitioner to summon the documents of title from the respondents and hence, no interference with the order dated 25.02.2021 impugned in W.P. No.5600/2021 is warranted.

12. The order of the Trial Court dated 05.09.2019 refusing to review its earlier order dated 19.06.2019 permitting marking of photocopy of the notice of termination dated 17.03.2018 is concerned, as rightly contended by the learned counsel for the respondents, the - 9 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 original of the notice of termination would be sent to the petitioner. Therefore, the office copy of a notice made through a copying machine is therefore secondary evidence and could be marked without undergoing the rigour of Section 65 of the Evidence Act, 1872. In view of the reply issued by the petitioner which is marked as Ex.P4, it cannot be contended that the petitioner was not in receipt of the notice of termination. In that view of the matter, the order dated 05.09.2019 passed by the Trial Court which is under challenge in W.P. No.43902/2019 and by which the Trial Court declined to review its earlier order dated 19.06.2019 permitting the respondents herein to mark a photocopy of the notice of termination of tenancy in evidence is just and proper and does not warrant interference. Therefore, both these petitions lack merit and are dismissed.

13. Before parting, as held by the Full Bench of this Court in Abdul Wajid's case (supra), the Trial Court shall only confine the examination of the case only to the - 10 - NC: 2024:KHC:10358 WP No. 5600 of 2021 C/W WP No. 43902 of 2019 question whether the relationship of landlord and tenant exists between the parties and whether the tenancy was terminated. Any observations made by the Trial Court in impugned orders, which travels beyond parameters laid down by the Full Bench of this Court would therefore be inconsequential. Sd/- JUDGE SMA List No.: 1 Sl No.: 31