FATHIMABI Vs. MEHBOOB

JUDGEMENT

(1.) The plaintiff in O.S. No. 10326 of 1981 on the file of the II Additional City Civil Judge, Civil Station, Bangalore is the appellant and the defendant is the respondent in this appeal.

(2.) The plaintiff instituted the above suit for a declaration that there was creation of fresh tenancy in respect of the suit schedule premises between the parties from 2-7-1980 in view of the fact that there was a change in the rate of payment of rent and a fresh advance and as such the order of eviction passed in H.R.C. No.110/77 on the file of the II Additional Civil Judge, Civil Station, Bangalore, is inexecutable and for restraining the defendant by an order of permanent injunction from evicting the plaintiff from schedule premises or from executing the order of eviction dated 1-7-1980 passed in H.R.C. No. l 10/77.

(3.) The suit brought by the plaintiff was based on the following averments. The defendant is the owner of the suit schedule premises. The plaintiff was a tenant in respect of the suit schedule premises under the defendant paying a monthly rent of Rs. 125/-. The defendant filed an eviction petition for the eviction of the plaintiff from the suit schedule premises in H.R.C. No. 110/1977 on the ground that the suit schedule premises was required by the defendant for his bona fide use and occupation. The suit was pending hearing. In the meanwhile the defendant who was not anxious to evict the plaintiff from the schedule premises but only wanted an enhanced rent of Rs. 200/- as against the rent of Rs. 125/- which was being paid till May 1980, suggested that the defendant would withdraw the eviction Petition if the plaintiff agreed to pay rent at Rs. 200/- permonth and also pay a further sum of Rs. 2000/- as advance. The plaintiff agreed to the proposal with a view to buy peace However, the then Counsel appearing for the defendant was not in favour of the defendant withdrawing the eviction Petition as he thought that if the defendant did so, it would affect another eviction case filed by the defendant for eviction of another tenant who was occupying one other portion of the same building. Therefore, he suggested that if the plaintiff agreed for an order of eviction being passed, the defendant would execute an agreement not to execute the order of eviction and that the plaintiff would be allowed to continue in the schedule premises on payment of higher rent of Rs. 250/- per month and an advance of Rs.2500/-. It was under these circum-stances that an order of eviction came to be passed against the plaintiff granting one year's time to vacate the suit schedule premises. The defendant entered into an agreement on 1-7-1980 with the plaintiff that even after the expiry of the period of one year to vacate the premises to be provided under the order of eviction, the defendant would not execute the order of eviction until such time as the plaintiff found an alternative accommodation for her residence. The defendant in fact, recovered the rent at the rate of Rs. 250/- per month for the two months of June and July 1980. The cumulative effect of the agreement is that so long as the defendant retains the sum of Rs. 2500/paid by the plaintiff as advance, and the plaintiff continues to pay rent at the enhanced rate of Rs. 250/- per month, the defendant should not execute the order of eviction and the tenancy of the plaintiff was deemed to continue from 1-7-1980 onwards. There was no need for the defendant to recover possession of the schedule premises as he did not need the same bona fide for his own use and occupation but was only interested in getting higher rent. As late as 21-6-1981 the defendant assured the plaintiff that he would not execute the order of eviction and the plaintiff may continue as a tenant on payment of enhanced rent of Rs. 250/- per month. However, as a precautionary measure, the plaintiff filed a Caveat Petition in the Court of Small Causes, Civil Station, Bangalore on 22-6-1981 and sent copies of the Petition and the accompanying affidavit to the defendant. In response to the notice on caveat, the defendant caused a reply notice dated 1-7-1981 to be sent through his advocate wherein the defendant has advised the plaintiff to file an application under Section 148 C.P.C. in the H R C. case for extension of time with prior notice to the defendant and the defendant would agree to the extension of reasonable time but not one year as sought in the notice. In view of the stand taken by the defendant in his reply, the plaintiff was constrained to file the suit against the defendant for the reliefs stated supra. The plain-tiff also filed an application I.A. No. 4 under Order 41 Rule 27 read with Section 151 C.P.C. seeking leave of the Court to receive the documents produced along with the application by way of additional evidence.