JODHARAM Vs. JAGNMATHAMMA

JUDGEMENT

(1.) THIS is defendant's Appeal directed against judgment and decree dated 4. 11. 2003 made in R. A. No. 49/02 on the file of the civil Judge (Sr. Divn.) at Hospet.

(2.) THE brief facts of the case leading to the filing of the appeal may be stated as under: the respondent/plaintiff-widow filed a Suit in O. S. No 136/ 1999 against the appellant/defendant contending that after the demise of her husband-Sharana Basaiah, she became absolute owner of the suit premises and the defendant is the tenant in occupation of the suit premises an a monthly rent Rs. 1,600/- and running a business in the name and style of M7s. Ramdev Fancy stores. Initially, an agreement of tenancy for 11 months was entered in the year 1995-96. After the expiry of the said period, the plaintiff requested the defendant to vacate and deliver vacant possession of the suit premises. The defendant promised the plaintiff that he would vacate the suit premises after shifting his business to his own premises, but he failed to do so. The defendant kept on promising to vacate the same. Making false allegations, the defendant filed a Suit against the plaintiff in O. S. No. 223/ 1997 for injunction. The plaintiff filed a Suit in O. S. No. 55/1999 for recovery of arrears of rent from the defendant. The plaintiff got issued quit notice dated 27. 3. 1999, through an advocate, terminating the tenancy of the defendant, by RAPD as well as under Certificate of Posting, calling upon him to vacate the suit schedule premises. The RPAD was returned with an endorsement that he was absent. Hence, she filed a Suit for possession of the suit schedule premises. The defendant entered appearance and filed written statement on 31. 8. 1999. The defendant has got his written statement amended twice and filed amended written statement on 3. 1. 2001 and 4. 7. 2002. The defendant has admitted rate of rent and tenancy. The contention of the defendant is that there is other co-owners viz. , children of the plaintiff and they are also proper and necessary parties to the Suit and therefore the Suit is bad for non-joinder of necessary parties. It is averred that the defendant is using the front side small portion of the suit premises for business and the major portion is used for residential purpose. Since, standard rent is less than Rs. 100/- and the plinth area is less than 14 sq. meters in view of the Rent Act, 1999 (which came into force on 31. 12. 2001), the Suit for possession is not maintainable. It is contended that the notice of termination of tenancy was not served on the defendant. Further, the defendant never agreed to vacate the suit schedule premises. But, when the plaintiff attempted to dispossess the defendant forcibly, he filed a Suit in O. S. No. 223/1997. In so far as Suit in O. S. No. 55/1999 filed by the plaintiff for recovery of arrears of rent the defendant has contended that the plaintiff refused to receive the rents. In view of the pleadings on record, the Trial Court has framed as many as six issues and one additional issue as under:

(3.) THE learned Single Judge of this Court has admitted the appeal to consider the following substantial questions of law: