1 R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23RD DAY OF AUGUST 2016

BEFORE

THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN

| Printed using casemine.com by licensee : National Law India University

WRIT PETITION No.43445/2016 (HRC)

BETWEEN :

SHRI SURENDRA NAYAK

S/O. MUKUNDA NAIK,
AGED ABOUT 47 YEARS,
DOOR NO.44-340,
GR. FLOOR, MANAR COMPLEX,
BANTWALA, NEW ROAD,
MANGALORE. ... PETITIONER

(BY SRI SACHIN B. S., ADV.)

AND:

A. M. MOHAMMED SHAFI
S/O A. M. MOOSA HAJI,
AGED ABOUT 50 YEARS,
RESIDING AT
SECO MAHAL, KAPRIGUDDA FALNIR,
MANGALORE AND ALSO
AT NO.1113, BARTON CENTRE,
M. G. ROAD,
BANGALORE-560001. ... RESPONDENT

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 27.06.2016 IN R.R.P.2/2011 VIDE
ANNEXURE-A ON THE FILE OF III ADDL. DISTRICT AND
SESSION JUDGE, D.K. MANGALORE AD CONSEQUENTLY
ALLOW THE RRP 2/2011 AS PRAYED FOR AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING THIS DAY, THE COURT MADE THE FOLLOWING :
 2

ORDER

The petitioner, Mr. Surendra Nayak, has challenged

the legality of the order dated 27.06.2011, passed by the

III Additional District Judge, D.K., Mangalore, whereby the

| Printed using casemine.com by licensee : National Law India University

learned Judge has dismissed the petitioner’s revision petition

filed under Section 46 (2) of the Karnataka Rent Act (‘the

Act’, for short), wherein the petitioner had challenged the

order dated 28.01.2011, passed by the Principal Civil Judge,

Mangaluru, in HRC No.11/2009, whereby the learned Civil

Judge had dismissed the petitioner’s application under

Section 43 of the Act.

2. Briefly the facts of the case are that the petitioner is

a tenant in a suit property bearing Door No.14-3-240,

admeasuring 120 Sq.Ft., situated in Manar Complex,

Balmatta New Road, Mangaluru. The Manar complex was

constructed by M/s. Manar Builders, a partnership firm.

The partners of the firm were the family members of one

Mr. A.M.Moosa Haji. In the year 2006, the wife of A.M.Moosa

Haji, namely Mrs. Aysha Moosa Haji, instituted an eviction

suit against one Mr.Subhash Chandra Kini, and Mr.

 3

Surendra Nayak, the petitioner before this court. In the said

suit, the petitioner took a categorical stand that in fact, he

had obtained the schedule property from

Mr.A.M. Mohammed Shafi, the plaintiff’s son, as per the

| Printed using casemine.com by licensee : National Law India University

agreement dated 27.05.2003, on a monthly rent of

Rs.1,000/-. He had further claimed that he had paid a sum

of Rs.25,000/- as caution deposit by cheque dated

27.05.2003. He further claimed that ever since 2003, he is a

tenant of Mr. A.M. Mohammad Shafi, and not of the plaintiff,

Mrs. Aysha Moosa Haji.

3. Meanwhile, due to certain disputes that arose

within the family members of Mr.A.M. Moosa Haji after his

death, Mr. A.M. Mohammed Shafi, (the respondent before

this court) instituted a civil suit for declaration, namely HRC

No.40/2006. In the said civil suit, he sought a declaration

that he is the absolute owner of the schedule premises, and

also sought the relief of permanent prohibitory injunction

against the other members of his family.

 4

4. Meanwhile, Mr. Mohammad Shafi also instituted

a civil suit for eviction against the petitioner, namely

HRC No.11/2009. It is in this proceedings that the

petitioner filed an application under Section 43 of the Act,

| Printed using casemine.com by licensee : National Law India University

wherein, he questioned the relationship between him and

Mr. Mohammad Shafi, the plaintiff therein, as Landlord and

tenant. The petitioner took a categorical stand that

Mr. Mohammad Shafi is not his landlord. He further claimed

that his Landlady is Mrs. Aysha Moosa Haji, the plaintiff’s

mother. Therefore, he prayed that further proceedings in the

suit should be stayed till Mr. Mohammad Shafi proves his

title in the declaratory civil suit filed by him. However, by

order dated 28.01.2011, the learned Civil Judge dismissed

the said application filed by the petitioner.

5. Since the petitioner was aggrieved by the order

dated 28.01.2011, he filed a revision petition before the

learned Judge. However, by order dated 27.06.2016, the

learned Judge has also dismissed the revision petition.

Hence, the present petition before this court.

 5

6. Mr. Sachin B. S., the learned Counsel for petitioner,

has raised the following contentions before this court: firstly,

the learned Judge was not justified in concluding that the

petitioner had made "an admission", in the first suit, filed by

| Printed using casemine.com by licensee : National Law India University

Mrs. Aysha Moosa Haji, that “his landlord was

Mr. Mohammad Shafi”. Further, the Judge was unjustified in

reading the said admission against the petitioner in the

second suit. According to the learned counsel, the previous

admission cannot be read against a party in a subsequent

case. In order to buttress this plea, the learned counsel has

relied upon the case of Suma Gouda @ Anitha @ Vasanti

v. M. K. Poovaiah [ AIR 2010 Kar 577].

Secondly, in the present suit, the petitioner had

clarified his position in his written statement. In his counter,

he had clearly stated that Mr. Mohammad Shafi had held

himself out to be Mrs. Aysha Moosa Haji's son. He had asked

the petitioner to enter into a separate lease agreement with

him, on behalf of his mother. Therefore, he had entered into

the lease agreement with Mr. Mohammad Shafi on

27.05.2003; he had paid him the rent from 2003 to 2006.

 6

However, after receiving the notice in the present suit, the

petition realized that Mr. Mohammad Shafi had hoodwinked

him into entering into the lease agreement. Thus, according

to the learned counsel, the petitioner was justified in denying

| Printed using casemine.com by licensee : National Law India University

the fact that Mr. Mohammad Shafi is his landlord.

Thirdly, once the petitioner had filed the application,

denying the relationship between him and the plaintiff as

that of tenant and landlord, under Section 43 of the Act, the

learned trial court should have stopped further proceedings

in the case. The learned trial court should, in fact, have

waited for Mr. Mohammad Shafi to prove his title of the

property in the civil suit filed by him. Hence, neither the

learned court was justified in rejecting the petitioner's

application under Section 43 of the Act, nor the learned

Judge was justified in rejecting the revision petition under

Section 46 (2) of the Act.

7. Heard the learned counsel for the petitioner and

perused the impugned order.

 7

8. The moot question before this court is whether the

previous statement made by the petitioner that Mrs. Aysha

Moosa Haji was not his landlady, but, in fact,

Mr. Mohammad Shafi was his landlord, can be read against

| Printed using casemine.com by licensee : National Law India University

the petitioner in the present case where he has denied

Mr. Mohammad Shafi as being his landlord or not ?

9. In the case of Suma Gouda @ Anitha @ Vasanti

(supra) this court had observed as under:

“Admission made by a party in pleadings is

conclusive but admission made in the evidence is
only a piece of evidence unless it operates as
estoppel as stated above. Even otherwise,
admission in a pleading is binding only in the
proceedings in which it is made and it may be
shown to be wrong in subsequent proceedings.”

10. The said observation cannot be questioned. But

the question still remains whether a party to a litigation can

be permitted to change his stand and to take a contradictory

stand especially on a question of fact, or not?

11. Estoppel is a collective name given to a group of

legal doctrines whereby a person is prevented from making

assertions that are contradictory to their prior position on

 8

certain matters before the court; thereby, the person is said

to be "estopped". Estoppel may operate by way of preventing

someone from asserting a particular fact in court, or in

exercising a right, or in bringing a claim. Black's Law

| Printed using casemine.com by licensee : National Law India University

Dictionary defines "estoppel" as “a bar that prevents one from

asserting a claim or right that contradicts what one has said

or done before or what has been legally established as true.”

[ Ref. to Black’s Law Dictionary, Ninth Edition, 2009]

12. Judicial estoppel is said to be parcel of doctrine of

equitable estoppel. Judicial estoppel binds a party to his/

her previous judicial declaration, such as allegations

contained in a lawsuit, complaint, written statement, or

testimony given under oath. The object of judicial estoppel is

to preserve the integrity of the courts, and to uphold the

sanctity of the oath. Under judicial estoppel a party to a

litigation cannot be permitted to take contradictory stand

and to change its position from the previous litigation to the

subsequent one. For, a litigant cannot be permitted to take a

court out for a ride by his shifting stand.

 9

13. According to the Supreme Court of United States,

the doctrine of judicial estoppel can be applied if three

conditions are satisfied: i) the party's later position must be

clearly inconsistent with its earlier position; ii) whether the

| Printed using casemine.com by licensee : National Law India University

first court had accepted the earlier position; iii) whether the

party seeking to assert an inconsistent position would derive

an unfair advantage or impose an unfair detriment on the

opposing party if not estopped. [ Ref. to New Hampshire v.

Maine] [ 532 U.S. 742) ] However, the two crucial

conditions are the first and the third. If they are met, even if

the second condition is unsatisfied, even then the doctrine of

Judicial estoppel would apply.

14. Section 43 of the Act entitles the tenant to ask that

further proceedings be stayed, if he were to question the

relationship of the landlord and tenant and were to deny the

title of the landlord to the suit property. But precisely

because a party is granted this right, the party cannot be

permitted to abuse the law by changing its position on the

issue as to who is the landlord? To permit the tenant to do

so, is to encourage the people to abuse the process of the

 10

court, and of the law in order to escape the judgment day.

Thus, a strict view should be taken if a litigant hoodwinks

the court by changing his stand from the stand taken by

him/ her in a previous suit.

| Printed using casemine.com by licensee : National Law India University

15. Admittedly, in the present case the petitioner has

changed his position from the previous suit vis-a-vis the

issue as to who is the landlord? In the previous suit, the

petitioner claimed that Mr. Mohammad Shafi is his landlord;

in the subsequent suit, filed by Mr. Mohammad Shafi, the

petitioner claims that Mr. Shafi is not his landlord.

Obviously, the petitioner cannot be permitted to blow hot

and cold simultaneously. He cannot change his position

under the doctrine of Judicial Estoppel. Litigants, like the

petitioner, cannot be allowed to pull the wool over the eyes of

the court.

16. Although the learned counsel has argued that the

petitioner has given an explanation for changing his position,

but the explanation cannot be accepted at the initial stage as

it is subject to proof. Therefore, the learned courts below are

 11

justified in not considering the petitioner's alleged

explanation at this juncture of the trial.

17. Even otherwise, the petitioner's stand that

| Printed using casemine.com by licensee : National Law India University

Mr. Mohammad Shafi is not his landlord is against the tenor

of law. For, Section 3 (e) of the Act defines the word

"landlord" as meaning "a person who for the time being is

receiving or is entitled to receive, the rent of any premises,

whether on his own account or on account of or on behalf of or

for the benefit of any other person or as a trustee, guardian or

receiver for any other person or who would so receive the rent

or to be entitled to receive the rent, if the premises were let to

a tenant." According to the petitioner, he was under the

belief that Mr. Shafi was acting on behalf of the true

landlord. Hence, he paid to rent amount to him. Thus,

considering the definition of "landlord", the petitioner cannot

claim that Mr. Shafi is not his landlord. Since the rent has

been paid to Mr. Shafi, he is deemed to be the landlord

under the Act.

 12

18. Moreover, even if there were a dispute between

Mr. Shafi and his family members with regard to the title of

the property, even then it would not prevent Mr. Shafi from

filing an eviction suit against the petitioner. For, under

| Printed using casemine.com by licensee : National Law India University

Section 3 (e) of the Act, Mr. Shafi is deemed to be the

landlord.

19. Thus, for the reasons stated above, this court does

not find any illegality or perversity in the impugned order.

This petition, being devoid of any merit, is hereby dismissed.

Sd/-
JUDGE

Np/-