Sri. Jayaprakash K. vs U.S. Usman and Others

Anand Byrareddy, J.—Heard the learned Counsel for the Appellant and the Respondent.

The Appellant was the Defendant in a suit for ejection. The suit was resisted on the ground that the suit property measured less than 120 Square feet. The suit property being nonresidential premises, the objection was that the property was covered under the Karnataka Rent Act, 1999. However, during the course of trial, it transpires that the Appellant was seriously ill and was not in a position to defend the suit effectively in leading evidence and so on. Inspite of the best effort of the Appellant to defend the suit in the manner known in law the illness proved a serious impediment and therefore at every stage the Defendant was seriously prejudiced not being able to defend the suit. Though after partial recovery, efforts were made seeking leave of the Court to tender evidence, the same was rejected. It is this primary contention that is sought to be urged in support of the appeal, though no substantial question of law arises for consideration.

The learned Counsel for the Appellant would fervently plead that if an opportunity is granted it could be demonstrated that the property measures less than 120 square feet and therefore the provisions of the Karnataka Rent Act, 1999 were attracted.

While the learned Counsel for the Respondent would point out that in the legal notice issued prior to the institution of the suit us well as in the plaint, the categorical assertion is dial the property measures 13.5 feet � 11 feet and this being denied by the Appellant it was for the Appellant to establish that it was less than 120 square feet.

The Appellant has enjoyed the premises since the year 1987 and the suit for ejectment having been allowed both by the trial Court as well as the lower appellate Court, there is no substantial question of law that arises for consideration. The Appellant has sought to frame two questions namely:

Whether there was adequate opportunity to the Appellant to lead evidence when the application seeking time to lead evidence on the ground that he was suffering from kidney ailment and was under dialysis was rejected? and

Whether quit notice issued was legal and valid?

These questions do not arise as substantial questions of law and therefore, there is no ground made out. However in the interest of justice, it would be necessary to offer some reasonable time to the-Appellant to make alternative arrangements, if he is to be ejected from the suit-premises. In this background, it is reasonable to grant six month''s time subject to the Appellant paying enhanced rent, since this would cause inconvenience and hardship to the Respondent.

In the face of the serious objections by the learned Counsel for the Respondent that granting time of six months is not tenable in a second appeal before this Court unless the appeal itself is admitted for consideration by this Court, the question of extending this benefit of enabling the Appellant 10 continue in possession even on enhanced rent is not permissible.

Notwithstanding the objection, since in the interest of justice the Appellant would require some time to vacate the premises, six months'' time is granted to the Appellant subject to payment of rent of Rs. 1,000/- per month for the said period and the Appellant shall tile an affidavit of undertaking within two weeks from today that he would quit and deliver vacant possession of the permission or before 31st March 2011. The Appellant shall also pay rent at the rate of Rs. 1.000/- before the 10th of every month including the rent for the month of September 2010 at Rs. 1.000/- and ''he same shall be paid to the Respondent without fail, failing which the Respondent shall be at liberty to execute the decree for ejectment.