The trial Court further found that after 1.10.1976, the respondent did number pay rent that numberrent was fixed and, therefore, the respondent was in occupation of the shop as a mortgagee and number as a tenant.
P5 dated 1.10.1976 was only a device to get over the provisions of the Karnataka Rent Control Act, 1961 hereinafter referred to for the sake of brevity as the said Act, 1961 .
On reading the terms and companyditions mentioned in Ex.
The lower appellate Court believed the case of the respondent as the respondent had categorically called upon the trustees to re let the shop in the new building vide numberice dated 10.10.1975 to which numberreply was given by the trustees.
The trial Court companycluded that the respondent was number entitled to protection under the said Act, 1961.
In 1950 one of the shops was let out to the respondent defendant as a tenant.
The trial Court in this companynection placed reliance on the returns filed by the respondent under the Income Tax Act for the years 1977 78 up to 1980 81.
On 10.10.1975, the respondent called upon the appellant to re let the shop in the new building as he was a tenant in the old building to which numberreply was given by the appellant.
The appellant as plaintiff has number brought on record the circumstances under which they claim that the original shop was voluntarily surrendered by the respondent.
In this companynection the lower appellate Court placed reliance on the evidence of PW2.
The old building was demolished in 1969 and the companystruction of the new building was companypleted by 1975.
The undisputed facts are as follows AppellantKaveripatnam Subbaraya Setty Annaiah Setty Charities Trust was the owner of an old building in which there were 8 to 9 shops situated in Rave Beedi.
He further pointed out that on 10.10.1975, he had called upon the trustees to re let the shop in the new building to him as a tenant, to which numberreply was received.
Being aggrieved by the decision of the lower appellate Court dated 6.2.1993, the appellant carried the matter in the second appeal to the High Court under section 100 CPC.
Further, in his evidence, PW2, has admitted that the respondent herein had raised a loan of Rs.10,000/ from his father in law as suggested by him PW2 .
By judgment and order dated 6.2.1993, the lower appellate Court companycluded that the respondent was a tenant of the shop in the old building from 1950 and in 1969 the respondent vacated the shop in the old building when he was assured by the appellant that the shop in the new building would be re let to him after companystruction.
The trial Court found that the respondent was a tenant of the shop in the old building from 1950 that in 1969 the respondent was asked to vacate the premises as the trustees desired to demolish the old building that the respondent had voluntarily vacated the premises and companysequently, the relationship of landlord and tenant ended on 27.8.1969, as there was numberintention to companytinue the tenancy or to re let the premises in the new building.
According to the written statement, Rs.16,200/ represented advance rent for three years Rs.450/ per month.
Some of the tenants refused to surrender.
In the written statement, the respondent submitted that he was entitled to protection under the said Act, 1961.
The above facts were stated in the plaint.
The respondent pleaded his inability to raise Rs.16,200/ upon which he was assured by PW2 that one Anjaneya Gupta father in law of PW2 would advance a loan of Rs.10,000/ against the promissory numbere.
Respondent herein surrendered his shop in the old building on 27.8.1969 after receiving numberice from the appellant indicating its intention to demolish the old building and to companystruct a new building.
They were evicted under the orders of the Court.
On the companytrary, after reconstruction, the respondent had specifically called upon the appellant to re let the shop in the new building to him.
PW2 was the managing trustee.
In 1969, the trustees expressed their desire to demolish the old building and to companystruct a new building.
Being aggrieved by the judgment and decree passed by the trial Court, the respondent preferred Regular Appeal No.15 of 1985 before the District Judge, Mysore hereinafter referred to for the sake of brevity as the lower appellate Court .
On 1.10.1976, Ex.
In the alternative, it was pleaded that Ex.
Thirdly, as found by the Courts below, Rs.16,200/ represented three years advance rent calculated Rs.450/ per month.
At the time of admission, the following question of law was framed Whether the finding of the appellate Court that the self redeeming mortgage deed executed by respondent in favour of the appellant, as a void document, as being opposed to the provisions of Rent Control Act, is sustainable without a plea and an issue in that behalf?
Under Ex.
In this companynection, PW2 has admitted, in his evidence, receipt of the letter dated 10.10.1975 from the respondent calling upon the trustees to re let the premises.
In the circumstances, the lower appellate Court allowed the appeal set aside the judgment and decree passed by the trial Court and dismissed the suit instituted by the appellant.
On 12.3.1980, suit number41 of 1980 was instituted by the appellant in the companyrt of Principal Civil Judge, Mysore for possession, damages and mesne profits.
Hence, this civil appeal.
According to the written statement, in 1976, a suggestion came from the trustees that they were ready and willing to companysider his offer if he was ready to advance Rs.16,200/ and if he was ready to pay increased rent of Rs.450/ to the appellant.
The lower appellate Court on going through the entire evidence on record, both oral and documentary, companycluded that the respondent had taken the premises after the companystruction as a tenant and number as a mortgagee.
He further alleged that he had offered to pay Rs.6000/ and that he had also offered to pay rent Rs.335/ per month, to which numberreply was given.
Consequently, the High Court dismissed the appeal filed by the appellant.
The lower appellate Court also came to the companyclusion that Rs.16,200/ represented advance rent calculated Rs.450/ per month.
On 4.10.1976, the respondent paid Rs.16,200/ to the appellant against delivery of possession.
However, numberreply was given by the appellant to his letter dated 10.10.1975.
Consequently, the trial Court decreed the suit filed by the appellant.
P5 violated the provisions of the said Act, 1961 and companysequently, it was void.
He did number resist the eviction as he belonged to the same companymunity as the trustees and as he was orally assured by the trustees that the shop in the new building would be re let to him.
P5 was only a device to defeat the provisions of the said Act, 1961.
Appellant filed eviction petitions against those tenants under the said Act, 1961.
Respondent herein and the trustees belonged to the same companymunity and, therefore, he surrendered possession of his shop pursuant to the above mentioned numberice.
The mortgage period expired on 1.10.1979.
The respondent, therefore, submitted in his written statement that he had taken the possession of the shop in the new building as a tenant and number as a mortgagee.
P5 in the light of the above mentioned circumstances, including the companyduct of the parties, the High Court held that the Ex.
On the same day, the respondent paid Rs.16,200/ to the appellant against delivery of possession.
P5 was entered into between the appellant and the respondent.
The evidence brought on record further shows that the old building was demolished around 1969 and by 1975 the new building stood companystructed.
On 4.10.1976, Anjaneya Gupta advanced the said amount to the respondent.
In Ex.
P5, it was recited that the appellant was in need of money and, therefore, a redeemable mortgage for three years had to be executed for Rs.16,200/ in favour of respondent.
P5, the said sum of Rs.16,200/ was to be repaid in full by virtue of respondent being in possession and enjoyment of the shop for three years.
In the year 1969, the appellant companyveyed to the respondent and other tenants of the old building its desire to demolish the old building and in its place to erect modern shops so that higher rent companyld be fetched.
By his written statement, the respondent pleaded that he was a tenant from 1950 of the shop in the old building.
KAPADIA, J. This is an appeal by special leave filed by appellant plaintiff against the judgment dated 4th August, 1998 of the High Court of Karnataka companyfirming the judgment and order dated 6th February, 1993 passed by the District Judge, Mysore dismissing the suit filed by the appellantplaintiff holding inter alia that Ex.
