Bangalore District Court
Sree Venugopal Swamy Sannidhi vs Sri. Shanaz on 20 September, 2016
FORM No.9 (civil)
Title sheet for
Judgments in Suits
[R.P.92]
GOVERNMENT OF KARNATAKA
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XV ADDL.JUDGE:
Court of Small Causes , Mayo Hall Unit, Bengaluru.
(SCCH.19)
Date : The 20th day of September 2016
Present : Sri. S.R. PARADESHI,
B.Com. LL.B.(Spl.)
XV Addl. Small Causes Judge
& XXIII ACMM, Bengaluru
S.C.No.15077/2015
Plaintiff: Sree Venugopal Swamy Sannidhi,
# 27, OPH Road, Jumma Masjid Road,
Opp. Commercial Street,
Bengaluru -1.
Rep. by its Secretary
Sri. Thyagaraj.
(Pleader by M.d. Raghunath)
-Vs-
Defendant:1) Sri. Shanaz,
S/o. late Mr. Maheraj Hussain,
2
No.99, Commercial Street,
Civil Station, Bengaluru - 1.
(Pleader by Sri. M.N.Krishna)
2) Sri. S. Basha, S/o. Sri. Syed Sab,
# 30, Kodandaramanagar,
D.K. Street, Bengaluru - 1.
(Pleader by Sri. Premnath T.N.)
*********
Date of Institution : 01-04-2015
of the suit
Nature of the suit : Ejectment
Date of commencement of : 19-02-2016
recording of evidence
Date on which the Judgment : 20-09-2016
Was pronounced
Total duration : YEAR/S MONTH/S DAY/S
01 05 19
(S.R.PARADESHI)
XV Addl. Small Cause Judge &
XXIII ACMM, Bengaluru.
*****
JUDGMENT
The plaintiff has filed this suit against the defendants 3 No. 1 & 2 and prayed for directing the defendants to quit, vacate and deliver the vacant possession of the suit schedule property and also claimed arrears of rent and damages.
2. The brief facts of the plaintiff's case are as under:
According to the plaintiff, originally the suit schedule property was leased out to one Maheraj Hussain, who died and the 1st defendant is as his legal heir taken over the suit schedule premises and continue to pay the rent of the suit schedule premises on monthly rent of Rs.5,000/- and the tenancy month is calendar month. It is further submitted that the 1st defendant has let-out the schedule premises to the 2nd defendant illegally without any express consent from the plaintiff. It is further submitted that the defendants are chronic defaulters in the matter of payment of rents and they are due of rents for the period from 01-12-2014 to 28-02- 4 2015, amounting to Rs.15,000/-. It is further submitted that the plaintiff has terminated the tenancy of the defendants in respect of the suit schedule premises by issuing legal notice dated 11-12-2014 by way of RPAD and inspite of service of summons, the defendants have not vacated the schedule premises. It is further submitted that as such the plaintiff is entitled for decree for future mesne profit by awarding the damages @ Rs.10,000/- p.m. from the date of the suit towards use and occupation of the schedule premises till the defendants vacated the premises. Hence, on other grounds, the plaintiff has prayed to decree the suit.
3. On the other hand, after service of summons, the defendants No.1 & 2 have appeared through their respective counsels, but the defendant No.2 has not filed his written statement. The 1st defendant has filed her written statement inter-alia contending that initially her 5 husband was the tenant under the plaintiff in respect of the suit schedule premises since three decades. Since then, the relationship with the plaintiff was very cordial and her husband used to contribute to the temple functions as per the temple authorities. It is further contended that the plaintiff has executed an agreement of extension of lease deed dated 01-01-2009 in her favour and the plaintiff has agreed that the said lease period is extended till her death. It is further submitted that the plaintiff has got issued legal notice dated 11-12-2014 terminating the lease deed and after receipt of notice, keeping cordial relationship with the plaintiff she has approached one of the trustees by name Janardhan and plaintiff for seeking extension of lease deed, for which both have demanded Rs.15,000/- rent and additional deposit of Rs.2,00,000/- and she was ready and willing to pay the same, but the plaintiff trust had oral agreement with 2nd defendant to give suit schedule 6 property to him, hence they started prolonging the time on one or other reasons. It is further submitted that the defendant No.2 is her staff and he is working under her. It is further submitted that after filing of the above suit, she has paid rent by way of demand draft on 07-09-2015 for a sum of Rs.5,000/- and a sum of Rs.10,000/- by way of demand draft on 10-08-2015 and both demand drafts were acknowledged by the plaintiff. It is further submitted that she is the tenant under the plaintiff since long time more than three decades and she has co- operated in all temple activities by providing financial support , decoration and other pooja needs of the temple very frequently and she is solely depending on the income of the suit schedule property and she has no other sources of income. It is further submitted that she is ready and willing to pay additional security deposit to the suit schedule property and enhanced rate of rent to 7 the plaintiff. Hence, on all these grounds, the defendant No.1 has prayed for dismissal of the suit.
4. To substantiate its case, the plaintiff trust has got examined the Secretary as PW1 and got marked Ex.P.1 to P.4 documents and closed its side. On the other hand, the defendant No.1 herself examined as DW1and examined one witness as DW2 and got marked Ex.D1 and D.14 documents and closed his side.
5. Heard arguments.
6. The following points arise for discussion before this Court:
1. Whether plaintiff proves that he has legally terminated the tenancy of the defendants?
2. Whether plaintiff is entitled for the damages as sought for?
3. Whether plaintiff is entitled for the relief as sought for?
4. What order/decree?8
7. The above points are answered as under:
Point No.1 : In the Affirmative Point No.2 : In the Negative Point No.3 : In the Affirmative Point No.4 : As per final order, for the following :
REASONS
8. Point No.1 :- I have already narrated the facts of the case. It is the case of the plaintiff that originally the suit schedule property was leased out to one Maheraj Hussain, who died and the 1st defendant is as his legal heir taken over the suit schedule premises and continue to pay the rent of the suit schedule premises on monthly rent of Rs.5,000/- and tenancy month is calendar month. It is further submitted that the 1st defendant has let-out the schedule premises to the 2nd defendant illegally without any express consent from the plaintiff. It is further submitted that the defendants are chronic defaulters in the matter of payment of rents and 9 they are due of rents for the period from 01-12-2014 to 28-02-2015, amounting to Rs.15,000/-. It is further submitted that the plaintiff has terminated the tenancy of the defendants in respect of the suit schedule premises by issuing legal notice dated 11-12-2014 by way of RPAD and inspite of service of summons, the defendants have not vacated the schedule premises. It is further submitted that as such the plaintiff is entitled for decree for future mesne profit by awarding the damages @ Rs.10,000/- p.m. from the date of the suit towards use and occupation of the schedule premises till the defendants vacated the premises. Hence, on all these grounds, the plaintiff prayed to decree the suit.
9. In order to prove his case, the Secretary of plaintiff trust examined himself as PW1 and got marked Ex.P.1 to P.4 documents. Ex.P.1 is the resolution. Ex.p.2 is the Legal notice. Ex.P.3 & P.4 are the postal acknowledgements.
10
10. As per the evidence of PW1, originally the suit schedule premises was leased out to one Mr. Maheraj Hussain, who is the husband of defendant No.1 and after his death the 1st defendant as a legal heir taken over the suit schedule property and continue to pay the rents in respect of the shop bearing No.26, Old Poor House Road, Bengaluru on monthly rent of Rs.5,000/- and tenancy month is calendar month which is described in the plaint.
11. In order to rebut the case of the plaintiff, the defendant No.1 herself examined as DW1 and examined her brother-in-law as DW2 and got marked Ex.D.1 to D.14 documents. Ex.D.1 is the letter dated 13-06-2015 sent by the plaintiff. Ex.D.2 & D.3 are the copies of demand drafts. Ex.D.4 is the postal acknowledgement. Ex.D.5 is the postal receipt dtd.07-09-2015. Ex.P.6 is the postal acknowledgement dated 10-09-2015. Ex.D.7 is the letter issued by the plaintiff dated 16-09-2015. 11 Ex.D.8 is the letter issued by the plaintiff dated 28-09- 2007. Ex.D.9 is the donation receipt dated 28-09-2015. The Donors lists are marked as Ex.D.10. Ex.D.11 is the letter issued by plaintiff dated 05-07-2000. Ex.D.12 is the letter dated 15-06-2000. Ex.D.13 is the letter pertaining to the advance rent dated 24-06-2005. Ex.D.14 is the original letter dated 07-09-2015, this document is produced on the application filed by defendant No.1 to call for this letter as admitted in Ex.D.7.
12. In her evidence, DW1 deposed that her husband was tenant under the plaintiff in respect of the suit schedule property as the lease deed dated 27-05-1978 and her husband had put up a shop by installing the rolling shutter to the shop premises and same was mentioned in the lease deed, but the defendant No.1 has not produced the said lease deed. She further deposed that the plaintiff has executed agreement of extension of 12 lease deed dated 01-07-2000 in favour of her husband in respect of the suit schedule property and subsequent to death of her husband, the plaintiff has executed one more agreement for extension of lease deed dated 01-01- 2009 in her favour. Though the plaintiff has produced the lease deed dated 01-07-2000 and 01-01-2009, but these documents are not got marked as the plaintiff has not paid the stamp duty and penalty on the said documents. Hence, those documents are not marked in this case.
13. In the cross-examination, PW1 has admitted that the defendant No.1 is in possession of the suit schedule property as a tenant for more than 13 years. He also admitted that the 1st defendant is paying the rents regularly even after death of her husband. In the cross-examination, it is suggested that earlier the President of plaintiff's trust by name Rajagopal has executed a document dated 19-12-2008 and as per this 13 document the lease period was extended till the life time of the 1st defendant as mentioned in para No.6 of the said document, but this document is also not produced before this Court. On the contrary, the defendant No.1 has taken contention that the plaintiff has executed the lease deed dated 01-01-2009 and in the lease deed it is mentioned that the lease period was extended till the life time of defendant No.1. As I have already stated that, those documents produced before this Court, but the same are not got marked in this case. So, there is a contradiction in the cross-examination of PW1 and also in the deposition of DW1 in respect of extension of the lease period.
14. The plaintiff has further taken contention that the defendant No.1 has sub-let the suit premises to the defendant No.2 without prior permission and consent of the plaintiff. On the other hand, the defendant has taken the contention that the defendant No.2 is her staff and he 14 is working under her. In the cross-examination of PW1, when it was suggested that whether the plaintiff know about the 2nd defendant, however he deposed that he did not know, subsequently he deposed that the defendant No.2 is occupying the schedule premises. In this case, after service of summons, though the defendant No.2 appeared through his counsel, he has not filed the written statement nor he cross-examined PW1. DW1 in her evidence has not at all deposed anything about the defendant No.2. However the defendant No.1 in her cross-examination in Para No.2 she has clearly admitted that the defendant No.2 is running his business in the schedule premises. Now, the burden is lies on the defendant No.1 to show that on whose permission the defendant No.2 is running his business. It is not the case of the plaintiff that the defendant No.2 is also entered into the lease agreement with the plaintiff. So, this admission of DW1 clearly goes to show that the 15 defendant No.1 has sub-let the schedule premises to the 2nd defendant without permission or consent of the plaintiff.
15. The defendant No.1 in support of her case led the evidence of D.W.2 who is none else than brother-in- law of the defendant. The D.W.2 filed his sworn affidavit by way of examination-in-chief, which is same as filed by the DW.1. The D.W.2 in his cross-examination deposed that the last lease agreement entered into the plaintiff and defendant No.1 in the year 2009 and as per this lease deed the period of lease is extended for the life time of the defendant No.1. I have already discussed that the defendant No.1 herself not got marked the document as she not paid the stamp duty. Hence, in this regard the evidence of D.W.2 is not help to the case of the defendant. Further in his cross-examination he deposed that the defendant No.2 has been not only looking after the business of the defendant No.1 after death of his 16 brother but from the time of when his brother was alive. Whereas the defendant No.1 deposed that the defendant no.2 joined his hands with the one of the trustees to take away the suit schedule property and intended to do his own business and on his influence the present suit is came to be filed. If this is the fact, why now also the defendant No.2 is looking after the business of defendant No.1. So, this shows that the defendant No.1 has sub-let the premises to the defendant No.2.
16. After closer of the evidence of the defendant No.1, she again filed the application to reopen her evidence and permitted to file three more documents. Thereafter her further evidence is recorded and got marked EX.D12 to EX.D.14 documents. As per EX.D.12 the temple authorities are ready to enhance the advance amount and rent of the shop premises. This document is pertaining to year 2000. As per this document the husband of defendant No.1 had to enter into the fresh 17 agreement of lease. In her cross-examination when asked her whether her husband had executed the fresh lease deed, for that she deposed that the agreement had taken place in the year 2006, but no lease agreement is produced. Apart from this the EX.D.13 dated 24-6-2005 shows that when the husband of the defendant No.1 fails to pay the advance amount and monthly rent, the plaintiff temple issued notice to pay the rent as well as advance amount. If at all there was any agreement for year 2006, there is no hurdle for her to produce the said document.
17. Now coming to discuss about the payment of arrears of rents. According to the plaintiff, the defendant No.1 has not paid the arrears of rent from 01-12-2014 to 28-02-2015, amounting to Rs. 15,000/- . By demanding the said amount the plaintiff has issued notice of termination dated 11.12.2014 by way of RPAD. Receipt of this notice is not disputed by the defendant. The 18 defendant No.1 has produced the letters issued by the plaintiff and these are marked as EX.D.1, EX.D.7 and EX.D.14. As per these documents the defendant No.1 has sent two demand drafts of Rs.20,000/- each and two cheques for Rs.10,000/- and Rs.5,000/- after filing of this suit. It is also contended that the plaintiff has received above amount towards part payment of damages. This shows that only after filing of this suit the defendant No.1 has paid the above said amount.
18. The defendant No.1 has also taken contention that during the life time of her husband and sometimes also she has paid the donations to temple on the occasions of the temple celebrations. So, she prayed for not to evict her. Even though she paid the donations but it is voluntary act on her part. It is not the case of defendant No.1 that the temple authorities forced or compelled her to pay the donations. The defendant No.1 has to rebut the evidence to show that she has not sublet 19 the premises to the defendant No.2, when the plaintiff has successfully proved that without their consent she sublet the premises shop to defendant No.2. In view of above discussions the plaintiff has proved that the defendant No.1 has sub-let the shop premises to defendant No.1. Hence, the point No.1 is answered the point No.1 in the affirmative.
19. POINT No.2:- The plaintiff prayed for the defendant No.1 is liable to pay damages at rate of Rs.5,000/- p.m. from, 01-01-2015 to 28-02-2015 amounting Rs.10,000/-. After filing of the suit, the defendant has paid the rent by way of two demand drafts Rs.20,000/- each. The plaintiff has admitted about the receipt of the demand drafts. However, he has taken contention they have received as damages as they have already filed the suit. Apart from this the defendant No.1 has also sent two cheques for Rs.10,000/- and Rs.5,000/- to the plaintiff towards rent after filing of the 20 suit. The plaintiff has admitted about the receipt of the cheques. However he has taken contention that they have received as damages. So, the defendant in all paid Rs.40,000/- + Rs.15,000/- to the plaintiff after filing of the suit. The plaintiff has p[rayed for recovery of rent of Rs.15,000/- at the time of filing of the suit and also Rs.10,000/- as damages at the time of filing of the suit. At the time of disposal of the suit, the plaintiff is entitled for rent in all Rs.30,000/- and Rs.20,000/- as damages. The defendant already paid Rs.55,000/- So, in my opinion the plaintiff is not entitled for the rent and damages as prayed for.
20. The learned advocate for defendant relied upon the ruling reported in AIR 2015 Kar 128 (M/s. Auto World, Bangalore V/s. Smt K.V.Sathyavathi), wherein it is held that;
"Transfer of Property Act (4 of 1882), S.116, S.106 - Eviction - Waiver of notice by landlord - Tenant remaining in occupation of 21 premises, continued to remit rents by way of demand drafts after quit notice - Same received without demur and unconditionally over years, during pendency of suit - It amounts to waiver of quit notice even if receipt of said amounts established as damages for use and occupation".
I have relied upon the judgment passed in RSA No.1698/2014 dated 22nd March 2016 of our own Hon'ble High Court of Karnataka (Sri Jaleel Sab V/s. M. Surendra Nayak). In the said judgment, the reference was made to the decision in the case of Shanti Prasad Devi and Another V/s. Shankar Mahto and Others - AIR 2005 SC 2905, wherein it is observed that :
"In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the 22 landlord did file a suit for eviction and even while prosecuting the said accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there by any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise".
21. In the RSA No.1698/2014, it is also observed that :
"There is no reference made to the aforesaid decision, while deciding the case reported in AIR 2015 Karnataka 128 and hence the same is not a binding precedent. The present case is identical to the case decided by this court, reported in (2011) 1 Kar.L.J.258."23
Apart from this the defendant has deposited the rent in the Court on the direction of the hon'ble High Court of Karnataka in W.P. No.47036/2015. In view of above discussions, I answer the Point No.2 in the Negative.
22. POINT No.3:- The plaintiff prayed for directed the defendants No.1 & 2 to quit, vacate and deliver the vacant possession of the schedule property. Inspite of servicve of notice to the defendant No.2, he has not appeared before the Court. The plaintiff has established dthat the defendant No.2 is the sub tenant of the defendant No.1. I have already discussed above, the plaintiff has proved that he has terminated the tenancy of the defendants by issuing legal notice as per Ex.P.2. Accordingly, the plaintiff is entitled for relief of vacant possession of the suit schedule property. Accordingly, I answer Point No.3 in the Affirmative.
24
23. POINT No.4:- In view of the above discussions and answer to the above points, it is just and proper to pass the following:
ORDER The suit of the plaintiff is hereby partly decreed.
The defendants No.1 & 2 are hereby directed to quit, deliver and handed over the vacant possession of the suit schedule property to the plaintiff within three months from the date of this order.
Draw decree accordingly.
(Dictated to the Stenographer, computerized transcript thereof corrected by me and then pronounced in the open court on this the 20th day of September 2016).
(S.R.PARADESHI) XV Addl. Small Cause Judge & XXIII ACMM, Bengaluru.
***** ANNEXURE Witnesses examined for plaintiff:
PW.1 : Sri. Thyagaraj
25
Documents marked for plaintiff:
Ex.P.1 : Resolution
Ex.P.2 : Legal notice
Ex.P.3&4 : Postal acknowledgements.
Witnesses examined for defendant:
DW1 : Smt. Shanaz
DW2 : Hussain Ali
Documents marked for defendant:
Ex.D.1 : Letter dated 13-06-2015
Ex.D.2&3 : Demand drafts
Ex.D.4 : Postal acknowledgement
Ex.D.5 : Postal receipt dated 07-09-2015
Ex.D.6 : Postal ackowledgement dtd. 10-09-2015
Ex.D.7 : Letter issued by plaintiff dtd. 16-09-2015
Ex.D.8 : Letter issued by plaintiff dtd. 28-09-2015
Ex.D.9 : Donation receipt dtd. 28-09-2015
Ex.D.10 : Donors list ( 4 in Nos.)
Ex.D.11 : Letter issued by plaintiff dtd. 05-07-2000
Ex.D.12 : Letter dtd. 15-06-2000
Ex.D.13 : Letter pertaining to the advance rent
dtd. 24-06-2005
Ex.D.14 : Original Letter dtd.07-09-2015,this
Document is produced on the application filed by defendant No.1 to call for this letter as admitted in Ex.D.7 (S.R.PARADESHI) XV Addl. Small Cause Judge & XXIII ACMM, Bengaluru.