Karnataka High Court
Sri. Jagadish M. S vs Sri. Arun Rakshith on 11 August, 2023
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.1898 OF 2022
BETWEEN:
SRI. JAGADISH M. S.
S/O SRI SUBBARAYA SETTY M
AGED ABOUT 39 YEARS
R/A NO.702, 29TH CROSS
POORNA PRAGNA LAYOUT
UTTARAHALLI
BENGALURU - 560 061 ... APPELLANT
(BY SRI PAWADEGOWDA, ADVOCATE)
AND:
SRI. ARUN RAKSHITH
S/O BABU SUVARNA V.
AGED ABOUT 51 YEARS
R/A NO. 260A, 10TH MAIN
HAPPY VALLEY LAYOUT
UTTARAHALLI
BENGALURU - 567 061 ... RESPONDENT
(BY SRI SHRIDHARA M.K., ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 23.09.2022 PASSED IN
O.S.No.9129/2019 ON THE FILE OF THE LXVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING
THE SUIT FOR EJECTMENT.
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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 4.8.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-defendant under Section 96 of Code of Civil Procedure for setting aside the judgment and decree passed by the LXVI Additional City Civil and Sessions Judge, Bengaluru in O.S.No.9129/2019 dated 23.09.2022 for decreeing the suit and directing the appellant to vacate the premises within 30 days and directing to pay arrears of rent of Rs.1,46,679/- and pay Rs.15,000/- per month for damages.
2. Heard learned counsel for the appellant and learned counsel for respondent.
3. The rank of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the trial Court is that the plaintiff is the landlord of the schedule premises and the defendant was tenant in the said schedule 3 premises. There was a rental agreement dated 16.9.2014 for a period of 11 months and to pay monthly rent of Rs.11,500/- excluding the electric and water charges. The defendant has paid advance of Rs.1,00,000/- and also the defendant agreed to enhance rent of 5% for every 11 months and the defendant is in arrears of rent from February 2017 to November 2019 amounting to Rs.2,46,679/- and after deducting the advance amount, he has to pay arrears amount Rs.1,46,679/- but the defendant has kept the premises under lock and not vacating the premises. Notice was issued to the defendant a on 15.10.2019 terminating the tenancy and directing to vacate the premises and sought for damages charges to be payable for Rs.25,000/- per month.
5. In pursuance of the notice, defendant appeared through the counsel and filed written statement by denying the claim of the plaintiff, however he has admitted he is the tenant under the plaintiff and contended that the rent was Rs.10,500/- per month, he has deposited 4 Rs.1,00,000/- as security amount. An additional amount of Rs.25,000/- paid during renewal of agreement on 15.02.2019 and the plaintiff after receiving the rent till July 2019 by cash locked the grill gate and stopped the access of the defendant to the premises. The reply notice also issued and defendant kept articles in the premises. Hence prayed for dismissing the suit.
6. Based upon the rival pleadings, the trial Court framed 6 issues which are as under:-
"1. Whether the plaintiff proves that he has legally terminated the tenancy of the defendant over the suit premises?
2. Whether the plaintiff further proves that the defendant is in arrears of rent of Rs.1,46,679/- as on November 2019?
3. Whether the plaintiff further proves that the defendant is liable to pay Rs.25,000/- per month as damages for his alleged illegal occupation of the suit premises?5
4. Whether the defendant proves that there is no cause of action to the relief of ejectment?
5. Whether the defendant further proves that the plaintiff is in due to him a sum Rs.1,50,000/- the advance amount?
6. What order or decree?"
7. To prove the case of the plaintiff, he himself examined as PW.1, got marked 22 documents and on the other hand, the defendant examined 2 witnesses and got marked 12 documents. After hearing the arguments, the trial Court answered Issue Nos.1 and 2 in the Affirmative. Issue No.3 in the partly affirmative. Issue Nos.4 and 5 in the Negative and finally passed the judgment by decreeing the suit which is under challenge.
8. Learned counsel for the appellant has strenuously contended that the trial Court committed error in decreeing the suit even though the defendant marked Exs.D.1 to D.12. Ex.D.9 is the statement of accounts 6 issued by the Banker which clearly reveals the rents were paid by the defendants regularly till July 2019 and there was dispute between them and thereafter, he has not paid the rent. The plaintiff locked the door from outside and deprived his right of entrance and literally dispossess. The reply notice also given by the defendant and he was ready to vacate and he is not in possession of the suit premises in order to pay the charges of damage to the plaintiff. The trial Court committed error in holding that there was arrears of rent till November 2019, except 4 months arrears, there is no arrears of rent, even till date the defendant is ready to go out if the plaintiff open the door and allow to take his articles kept in the house by paying 4 months arrears of rent and hence, prayed for allowing the appeal.
9. Per contra, learned counsel for the plaintiff- respondent has supported the judgment of the trial Court and contended that absolutely there is no document to prove the payment of rents by the defendant. Therefore, 7 the trial Court has rightly directed to pay the arrears of rent and when the rent itself is not paid, the question of giving Rs.25,000/- as additional advance amount does not arise. The defendant kept the premises under lock. Therefore, he has to pay the arrears of rent and hence prayed for dismissing the appeal.
10. Having heard the arguments and perused the records, the points that arise for my consideration are:
"1. Whether the plaintiff proves that he has legally terminated the tenancy of the defendant over the schedule premises?
2. Whether the plaintiff proves that defendant has arrears of rent of Rs.1,46,679/- after deducting the advance amount of Rs.1,00,000/-?
3. Whether the plaintiff proves the defendant is liable to pay the damages of Rs.25,000/- per month for illegal occupation of the premises.8
4. Whether the defendant proves there is no cause of action to file the suit for ejectment?
5. Whether the defendant proves that the plaintiff is due to him a sum of Rs.1,50,000/-?
6. Whether the judgment of the trial Court calls for any interference?"
11. Having heard the arguments and perusal of the records and as per the evidence of PW.1 and DW.1, it is an admitted fact that the plaintiff is the owner of the schedule premises and the defendant is the tenant under him. There was a rental agreement between them dated 16.9.2014 for a period of 11 months and it is alleged by the plaintiff in his evidence that the respondent is in arrears of rent from February 2017 to November 2019. Therefore, he has terminated the tenancy by issuing notice as per Section 109 of the Transfer of Property Act, 1882. In respect of terminating the tenancy, affixing the notice on the door of the schedule premises has been admitted by the 9 defendant. The notice at Ex.P.1 also reveals the notice has been issued by the plaintiff by terminating the tenancy which was issued as per Ex.P.1 and the defendant also replied as per Ex.P.4 on 8.11.2019. On the other hand, the evidence of the defendant and the document i.e., Ex.P.4, Exs.D.11 and D.12 and the evidence of DW.2 goes to show that the plaintiff himself has locked the door on 19.09.2019 itself by denying the access to the defendant and subsequently issued the notice on 15.10.2019 and even he has received the amount of Rs.14,200/- on 15.10.2019 as well as on 16.10.2019.
12. However the main contention of the plaintiff is that there was arrears of the rent by the defendant and in the cross examination, PW.1 admits that the defendant paid Rs.25,000/- as additional advance and further admitted that previously rent was fixed for Rs.10,500/- and later it was increased time to time from Rs.10,500/- to Rs.11,500/- and thereafter he increased further. The plaintiff further admitted in the cross examination that 10 there is no extension of rental agreement after 2017 onwards except admitting the collecting of additional amount of Rs.25,000/- on 15.02.2019. Further disputed total advance amount was Rs.1,50,000/- but admitted it was only Rs.1,25,000/-.
13. As regards to the payment of rent, PW.1 himself admits at paragraph No.7 of the evidence he has received rent of Rs.10,000/- on 17.04.2019, Rs.17,500/- on 11.04.2019, Rs.25,000/- on 15.02.2019, Rs.5,950/- on 8.2.2019, Rs.14,500/- on 18.1.2019, Rs.14,200/- each on 15.10.2019 and 16.10.2019 respectively and Rs.14,200/- on 12.9.2018. Though PW.1 stated that the defendant has paid rent for only 10 months instead of 20 months, but the admission of PW.1 clearly reveals that the defendant was continuously paying rents even in October 2019. Such being the case, the defendant also stated in his evidence and produced Ex.D.9 that he has continuously paying rents till July 2019 and there was a dispute among them and a 11 complaint was lodge by the defendant in August 2019, thereafter, the rents were not paid.
14. The plaintiff counsel admitted in the cross examination that a complaint was lodged by the defendant and denied that the suit premises were locked by locking the grill gate and the plaintiff counsel suggested to DW.1 that there was demand of Rs.1,50,000/- for the advance subsequently and he has paid only Rs.25,000/- and some cheques were dishonored as per Exs.P.6 and P.8. For the same, the defendant has stated that he had paid the cash but the plaintiff did not return the cheque. Further DW.1 stated that he has paid Rs.28,600/- under Ex.P.8 through online which was admitted by the plaintiff counsel. The DW.1 denied there was due of Rs.1,46,679/-.
15. On careful reading of the documents especially Exs.D.11, D.12 and D.9 which reveals the plaintiff locked the door outside and not permitted the defendant to enter into the premises and affixed the notice on the grill door 12 and Ex.D.9 produced by defendant were not seriously disputed by the Police where it reveals that the defendant was paying the rent till 2019 and the same is admitted by PW.1 in his cross examination, even the plaintiff received Rs.14,200/- on 15.10.2019 and another Rs.14,200/- on 16.10.2019.
16. These aspects clearly goes to show that the defendant was paying the rent continuously during the year 2019, the legal notice was issued by the plaintiff terminating the tenancy on 15.10.2019 and even on the said day and on the next day, the plaintiff received rent for 2 months of Rs.14,200/- each from the defendant. The same was not at all mentioned by the plaintiff in the plaint however he has admitted in the cross examination, thereby, it is a clear case where the defendant was paying the rent till 2019.
17. Admittedly, the defendant himself has stated after July 2019 when the dispute arises between them, a 13 complaint was lodge by the sister of the defendant to the police as per Ex.D.10 on 14.8.2019 and till date the defendant failed to pay the rent. However, in September 2019 itself, the plaintiff locked the door and literally he has dispossess the defendant and not allowed to enter the schedule premises. Therefore in his evidence and admission of defendant that he paid the rent till July 2019 which clearly goes to show that there is no arrears of rent payable by the defendant to the plaintiff till April 2019 and the arrears of rent starts only from May 2019 till September 2019 when the door was locked by the plaintiff which was proved by the defendant through the evidence of DW.2 and Exs.P.11 and P.12.
18. Therefore, the contention of the plaintiff cannot be acceptable that there was due of rent from Feb 2017 till November 2019 is not acceptable and therefore, the question of arrears of rent payable to the plaintiff by the defendant as claimed in the suit for Rs.1,46,679/- is not correct. On the other hand, there was arrears of rent for 4 14 months by the defendant which amounts to Rs.14,200 x 4 months i.e., Rs.56,800/- is the actual arrears of rent and the amount of Rs.1,25,000/- towards advance is also pending with the plaintiff, there is no proper calculation made by the plaintiff by producing necessary documents. On the other hand, the statement of accounts reveals the defendant continuously paid the rents even in the year 2018, subsequently as per the admission the plaintiff received the rent in the month of October 2019 itself. Therefore, the contention of the plaintiff cannot be acceptable, there was huge arrears of rent from February 2017 is not acceptable thereby the trial Court finding that there was arrears of rent payable from February 2017 till November 2019 is not correct and the same shall be liable to be set a side, accordingly answered point Nos.1 and 2 in the NEGATIVE.
19. As regards to the point No.4 that the defendant has contended that there is no cause of action for filing the suit. In view of point No.1 that the plaintiff 15 legally terminated the tenancy in favour of the plaintiff, therefore, he was not paid 4 months arrears of rent even after May 2019 till September 2019 until locking the door by the plaintiff and therefore, there is no cause of action allows for filing the suit for ejectment as the plaintiff himself locked the door in September 2019 and filed the suit and he has not come with the clean hands. Therefore answered point No.4 in the NEGATIVE.
20. As regards to the point No.5, the defendant has contended that he has filed Rs.1,50,000/- towards the advance amount but in the cross examination of PW.1, he has admitted receiving Rs.1,00,000/- as advance and subsequently on 15.2.2019 through online received Rs.25,000/- in addition to the said amount and this Court has already held that the defendant continuously paying rent to the plaintiff and there is no arrears of rent except 4 months arrears. Therefore, the defendant is able to establish that the advance of Rs.1,25,000/- is with the plaintiff and it was not adjusted with the arrears of rent 16 and when the rents were continuously paid by the defendant, the question of adjusting Rs.1,00,000/- does not arise and the Trial Court committed error in holding Rs.1,00,000/- has been adjusted with the rent and not stated anything about the amount of Rs.25,000/- received by the plaintiff through online and absolutely, there is no document to show that the plaintiff has repaid advance amount to the defendant. The very claim of the plaintiff is that the arrears of rent from February 2017 till November 2019 itself has been proved NEGATIVE by this Court. Therefore, the plaintiff required to repay the advance amount of Rs.1,25,000/- to the defendant. Therefore, I answered point No.5 as Partly in AFFIRMATIVE in favour of the defendant.
21. The Plaintiff claims the damage of Rs.25,000/- per month for illegal occupation. In order to prove the contention, the plaintiff has stated that he has terminated the tenancy by issuing notice as per Ex.P1 on 18.11.2019 and in view of the termination of the tenancy, the 17 defendant is in illegal possession. Therefore, he is entitled for Rs.25,000/- per month towards damages and on the other hand, the defendant contended that he has replied the notice as per Ex.P.4 by denying the averments and also stated to repay Rs.1,50,000/- and so that he would vacate the premises and the defendant also established that the plaintiff locked the grill door and denied the access to the defendant from September 2019 onwards which depicts from the photographs as per Exs.D.11 and D.12 and affixing the notice on the grill door also admitted by the plaintiff and the legal notice issued by the defendant clearly reveals he is ready to vacate the premises but the plaintiff locked the schedule premises from outside of the grill door. The plaintiff denied the access to the defendant thereby defendant is able to prove that the plaintiff illegally dispossessed the defendant by locking the door. It is also clear from the record that the defendant's articles were kept in the house and the same was locked by the plaintiff on the grill door. Therefore 18 neither the plaintiff nor the defendant were able to enter the schedule premises. The plaintiff locking the grill door denying the entry of the defendant clearly reveals the plaintiff illegally dispossess the defendant and filed the suit and claiming the damages for Rs.25,000/- p.m. which cannot be granted. Though plaintiff filed suit for ejectment but he has locked the door subsequently, such being the case, the question of paying the damage charges of Rs.25,000/- p.m. cannot be granted and the issuing notice cannot be a legal termination and hence, the trial Court committed error in awarding Rs.15,000/- p.m., hence liable to be set aside.
22. For the reasons stated above, this Court is of the view that though the plaintiff terminated the tenancy by issuing notice, but the plaintiff locked the door of the schedule premises and not allowed the defendant to use the premises, therefore, it cannot be said that there is a legal termination of tenancy and failed to prove the arrears of rent of Rs.1,46,000/- and on the other hand, he has to 19 pay Rs.1,25,000/- towards advance amount and defendant to pay only arrears of rent from May 2019 to September 2019 for the period of 4 months. Thereby, the plaintiff has not approached the Court with clean hands in order to grant relief in the suit.
23. However, the learned counsel for the appellant submits that he is ready to vacate if the respondent allows the appellant to remove his articles from the premises and if he pays the advance amount and he is ready to pay the arrears of rent, on the other hand, the respondent locked the door and if he open the lock and allow the defendant to take his valuables by mutual agreement that will meet the ends of justice and both parties can approach the trial Court in execution for taking possession of the articles by the defendant by paying the arrears of rent and the plaintiff shall refund the earnest money which can be adjusted under while enquiry under Order XX Rule 12 of the CPC.
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24. Accordingly, the appeal is allowed.
The judgment and decree passed by the Trial Court in O.S.No.9129/2019 dated 23.09.2022 is hereby set aside and the suit of the plaintiff is dismissed.
Looking to the facts and circumstances of the case, no order for cost.
Sd/-
JUDGE AKV