Bangalore District Court
Sri.P.A.Niranjan vs M/S Murugan Silks on 21 November, 2015
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 21st DAY OF NOVEMBER, 2015
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.1422/2009
PLAINTIFF/S: 1. Sri.P.A.Niranjan,
S/o Late P.S.Ashwthnarayana,
Aged about 49 years,
R/at 3123, 19th cross, 2nd main,
BSK 2nd stage,
Bangalore - 560 070.
2. Sri.P.A.Srinath,
Aged about 42 years,
S/o Late P.S.Ashwthnarayana,
3. Sri.P.L.Vijaya Kumar,
S/o Late P.S.Lakshminarayana
Aged about 43 years,
Plaintiffs 2 and 3 residing at
No.2, Vasavi templ road,
Vishweshwarapuram,
Bangalore - 560 004.
4. Sri.P.B.Parthasarathy,
S/o Sri.P.Balarmaiah Setty,
Aged about 59 years,
2 O.S.No.1422/2009
Rep. by his power of attorney holder
Sri.P.B.Govindarajulu
S/o P.Balaramaiah Setty,
Aged about 76 years,
At No.26, M.T.road,
Chickpet,
Bangalore - 560 053.
(By Sr i.HRV, Advocate)
--Vs.---
DEFENDANT/S: M/s Murugan Silks,
Rep. by its Partners
At No.800(Upstairs)
Pobbathi buildings
Chickpet,
Bangalore - 560 053.
(By Sri.VRS, Advocate)
Date of institution of suit: 27.02.2009
Nature of suit: Ejectment
Date of commencement
of recording of evidence: 02.08.2011
Date on which the judgment
was pronounced: 21.11.2015
Duration of the suit: year/s month/s day/s
06 08 26
* * * * *
3 O.S.No.1422/2009
JUDGMENT
This is a suit filed by the plaintiffs to direct the defendant to vacate and hand over the suit schedule premises and for such other reliefs.
2. In nutshell the case of the plaintiffs is as under:
That the plaintiffs are the absolute owners of the non- residential premises situated in I floor of property bearing No.800, Pobbathi buildings, Chickpet, Bangalore - 53, measuring east to west 22 feet, north to south 18 feet 3 inches. It is further contended that the defendant is a tenant under the plaintiffs with respect to suit schedule property on a monthly rent of Rs.3,660/- (Rupees Three Thousand Six Hundred and Sixty only) per month. It is further contended that the defendant was paying rents at the rate of Rs.665/- each to plaintiff No.1 to 3 and Rs.1,665/- to 4th plaintiff. Tenancy is a monthly tenancy commencing from first day of each calendar month and expiry on the last day of the same month. The period of tenancy has expired long back and the defendants are continuing as tenants from month to month. 4 O.S.No.1422/2009 The plaintiffs are not interested in continuing tenancy of the defendants with respect to suit schedule property. It is further contended that the plaintiffs have been allotted the share of Smt.P.S.Pushpalamma in the suit schedule property under a partition deed between Smt.P.S.Pushpalamma and other family members dated 24/1/2008. It is further contended that regarding the said transaction plaintiffs had informed the defendant vide their letter dated 15/3/2008. Subsequently the defendant has been paying rents to plaintiff as per the details mentioned above. It is further contended that the 4th plaintiff is represented by P.B.Govindarajulu. It is further contended that the plaintiffs need the schedule property for their bonafide use and occupation and the requirement of plaintiff is imminent. It is further contended that inspite of request of the plaintiffs to vacate and handover vacant possession of the suit schedule property to the plaintiffs, the defendant did not vacate. So the plaintiffs terminated the tenancy of the defendant vide legal notice dated 10/12/2008 with effect from 31/12/2008. The defendant has received the legal notice and till today no reply is sent. It is further 5 O.S.No.1422/2009 contended that consequent upon termination of tenancy and the defendant having not vacated the suit schedule property and is continuing in possession and its possession is unlawful. So they contended that the defendant is liable to pay damages for unauthorized use and occupation subsequent to 31/12/2008 calculated based on market value at Rs.50,190/- per month (calculated at the rate of Rs.125/- per sq.ft. per month).
3. It is further contended that any amount that would be paid by the defendant subsequent to 31/12/2008 would be accepted under protest and irrespective of the term that would be assigned by defendant towards full or payment of damages for unauthorized use and occupation. It is further contended that they have received part payment of damages and the defendant is due to the plaintiffs towards arrears of damages a sum of Rs.96,720/- (Rupees Ninety Six Thousand Seven Hundred and Twenty only) as per the details shown in para No.7 of the plaint. It is further contended that inspite of these things the defendant failed to vacate and hand over the vacant 6 O.S.No.1422/2009 possession of the suit schedule premises. Therefore they have come up with the present suit and accordingly prays for to decree the suit.
4. In response to the suit summons sent by this court, the defendant appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
5. The defendant in his written statement contended that the suit of the plaintiffs for the alleged relief sought by them claiming to be the owners in respect of the suit property is not maintainable, as such the suit is liable to be rejected. It is further contended that there is no document to show the title of the plaintiffs in respect of the suit schedule property. It is further contended that the defendant is unaware of any deed styled as Deed of Partition between Smt.P.S.Pushpalamma and other family members.
6. It is further contended that the defendant is a tenant under plaintiff with respect to the suit schedule 7 O.S.No.1422/2009 property on a monthly rent of Rs.9,560/- which may be stated here that the defendant is a tenant in respect of the premises, however it is to be stated here that there is a stipulating of tenancy and the defendant has been specifically notified with regard to the splitting of tenancy and there is splitting of tenancy and there is no co-ownership or a joint ownership but divided ownership. The rents are paid at the rate of Rs.665/- and Rs.1,665/- respectively, taking into consideration the area, extent of each of the party. It is further contended that in view of the fact that there is a division in respect of the property in terms of the splitting of tenancy, there is no cause of action to maintain the suit. Since there is no cause of action to maintain the suit, there would be maintaining of suit by all the plaintiffs by joinder of causes of action. The plaintiffs have joined for recovery of immovable property and no cause of action arose in this regard to put forth the plea by joinder of plaintiffs or pertaining to a divided property. In the circumstances, the suit is liable to be rejected. 8 O.S.No.1422/2009
7. It is further contended that the claim put forward that the period of tenancy has expired long back is not correct. The tenancy is continuing and subsisting, thereby the contention taken by the plaintiffs does not arise for consideration. As such the relief claimed is to be rejected. It is further contended that the plaintiffs claims that they have been allotted a share of Smt.P.S.Pushpalamma in the suit schedule property under a partition deed between Smt.P.S.Pushpalamma and other family members on 24/1/2008 to be taken equally. The said documents evidently establishes that there is division in respect of the property and there is splitting of title pertaining to the property, if the plaintiffs are claiming rights under the alleged deed. It is further contended that the plaintiffs have falsely contended that they have called upon the defendant to vacate and handover the vacant possession of the suit schedule property. The termination of tenancy was done by issuing of a legal notice and the legal notice is properly and appropriately answered.
9 O.S.No.1422/2009
8. It is further contended that this court does not have pecuniary jurisdiction to try the present suit. The monthly rent is indicated in the plaint and on reading of the complete plaint, it is noticed that the rent is Rs.3,660/- per month. If the rent is stated to be Rs.3,660/- per month and that the payment of rent is Rs.685/- as alleged to have been stated in the course of the complete pleadings, this court does not have a pecuniary jurisdiction to try the suit, for the reasons that the jurisdiction to try the suit in the contest in which it could be noticed is under the right to ventilate grievance before this court, it is to be ventilated in the court having jurisdiction.
9. It is further contended that the claim of damages at the market rate of Rs.50,190/- per month (calculated at the rate of Rs.125/- per sq.ft. per month) is an astronomical figure without there being any basis. The claim put forward being without any basis, the defendant is not under obligation to any amount as damages. It is further contended that there is no documents evidencing relationship of landlord and tenant, interse between plaintiff and defendants. The plaintiffs and 10 O.S.No.1422/2009 defendants have not constituted any relationship of landlord and tenant. In the circumstances, it is contended by the defendant that in view of the relationship not being existed, the suit becomes liable to be dismissed.
10. It is further contended that the defendant has sent the rentals in respect of the premises. The rents have been accepted giving effect to the rights in respect of the premises. Therefore the prayer as prayed by the plaintiffs in the present suit, seeking ejectment of the defendant becomes unsustainable, it becomes liable to be rejected. It is further contended that in the cause title, the name of the business concern is mentioned as M/s.Murugan Silks, is not represented by a party or person. That apart, what is contended that M/s.Murugan Silks is a partnership business concern. If that be so, that it is a partnership business concern, the plaintiffs have not taken appropriate and proper steps to implead the partners in the present suit. The written statement and the appearance before this court is under protest, for the reason that no partner has been served with 11 O.S.No.1422/2009 the summons as provided under Rule 3 of Order 30 C.P.C. Consequently, the suit becomes liable to be rejected for want of appropriate and proper representation of the plaintiffs.
11. It is further contended that the suit is also liable to be rejected for joinder of cause of action and since there is joinder of causes of action evidently from the averments made in the plaint, it is stated here that neither the tenancy is properly and appropriately terminated nor the plaintiffs have taken appropriate steps to terminate the tenancy by resorting to the process known to law. One single notice by several owners having separate rights cannot be issued under one notice under section 106 of Transfer of Property Act and thereafter maintain the present suit, thereby the suit becomes liable to be rejected for want of appropriate and proper notice. It is further contended that the partners of the partnership firm of M/s.Murugan Silks have not been issued notice under section 106 of Transfer of Property Act, therefore the suit becomes liable to be rejected. The partners individually have not been represented notifying them to appear in the present 12 O.S.No.1422/2009 case and answer the notice. The notice is bad in law. It is further contended that the written statement is filed by the defendant keeping open all the contentions with regard to the issuing of notice and filing of the suit, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
12. Heard the arguments.
13. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions:
(1) AIR 1992 P&H page 252 (2) (2014)5 SCC page 312 (3) AIR 2008 SC page 2033
14. The learned counsel for the defendant in support of his arguments has relied upon the following decisions:
(1) ILR 2011 Kar page 229 (2) Judgment rendered in RFA 198/2015 (3) AIR 1971 SC page 102 (4) AIR 1951 SC page 285 13 O.S.No.1422/2009
15. On the basis of the above rival pleadings of the parties my learned Predecessor-in-office has framed the following as many as nine issues and one additional issue:
ISSUES (1) Whether there exists relationship of landlord and tenants between the plaintiffs and defendants ?
(2) Whether there is legal and valid termination of tenancy of defendant of the suit schedule premises ?
(3) Whether the plaintiffs prove that the
defendant is in arrears of damages of
Rs.96,720/- ?
(4) Whether plaintiffs prove that defendant is liable to pay damages at the rate of Rs.50,190/- per month ?
(5) Whether the plaintiffs are entitled to recover possession of the suit schedule premises ? (6) Whether the plaintiffs are entitled for arrears of damages ?14 O.S.No.1422/2009
(7) Whether the plaintiffs are entitled for damages as claimed ?
(8) Whether the suit is liable to be rejected as stated in para 4, 10, 11 of written statement ? (9) What order or decree ?
ADDITIONAL ISSUES:
(1) Whether defendant proves that this court has no jurisdiction to try this suit ?
16. The plaintiffs in order to establish their case, the plaintiff No.1, at the first instance, himself got examined as PW1 and got marked as many as 9 documents Ex.P1 to P9 and subsequently filed his additional affidavit and got marked one document as Ex.P10 and closed his side evidence. The defendant in order to establish his case, he himself got examined as DW1 and no documents were marked on behalf of the defendants.
17. My findings to the above said issues are as under:
Issue No.1 :In the Affirmative
15 O.S.No.1422/2009
Issue No.2 :In the Affirmative
Issue No.3 :Partly in the Affirmative
Issue No.4 :Partly in the Affirmative
Issue No.5 :In the Affirmative
Issue No.6 :Partly in the Affirmative
Issue No.7 :Partly in the Affirmative
Issue No.8 :In the Negative
Addl.Issue No.1 :In the Negative
Issue No.9 :As per the final order
for the following:
REASONS
18. Additional issue No.1: The learned counsel for the defendant during the course of his arguments by placing his reliance upon the contention taken in the written statement at para 8(a) contended that this court has no pecuniary jurisdiction to try the present suit. What he contended that the monthly rent as indicated in the plaint and upon reading the complete plaint averments, it shows that the monthly rent is Rs.3,660/-. If that would be the case, this court has no jurisdiction to try the present suit. He further contended that the plaintiff in the plaint averments contended that the 16 O.S.No.1422/2009 defendant is liable to pay damages for two months, i.e., 1/1/2009 and 28/2/2009 at the rate of Rs.50,190/- per month and total has come to Rs.1,00,380/-, wherein the plaintiff had shown deduction of Rs.3,660/-, so the remaining balance payable according to the plaintiff is 96,720/-. So what he contended that the claim of the plaintiff is below Rs.1,00,000/-. If that would be the case, this court has no jurisdiction to try the present suit and the same has to go before the Court of Small Causes.
19. In support of his contention, he has relied upon the decision rendered in :
ILR 2011 Karnataka, page 229, between Abdul Wajid Vs. A.S.Omkarappa, By placing his reliance upon the said decision and the ratio laid down therein he contended that this court has no jurisdiction to entertain the present suit. So in view of his above arguments, he urged to answer additional issue No.1 for consideration in the Affirmative by holding that this court has no jurisdiction to try the present suit. 17 O.S.No.1422/2009
20. Per contra the learned counsel for the plaintiff during the course of his arguments contended that this court has got jurisdiction to try the present suit. He further contended that there is a serious dispute by the defendant with regard to the relationship of landlord and tenant. When that would be the case and when the defendant is questioning the right of the plaintiffs over the suit property certainly the said dispute cannot be adjudicated before the Court of Small Causes. He further contended that the plaintiffs have claimed damages at the rate of Rs.50,190/- per month for two months, i.e., from 1/1/2009 to 28/2/2009 totally amounting to Rs.1,00,380/- and out of which they have given deduction of part payment paid by them towards the damages, i.e., Rs.3,660/-. So in the plaint, the plaintiffs have shown the balance payable as Rs.96,720/-. He further contended that though they have shown the balance as Rs.96,720/-, but the plaintiffs have paid the court fee on more than Rs.1,00,000/- and the very valuation slip attached to the plaint shows that the suit is valued for Rs.1,40,640/- and on that they have paid the court fee. When things stood like so, this court certainly 18 O.S.No.1422/2009 has got jurisdiction. In support of his contention he has also relied upon the decision reported in :
(1) ILR 2011 Kar page 229 So in view of his above arguments and decisions, he urged to answer additional issue No.1 in the Negative by holding that this court has got jurisdiction to try the present suit.
21. In the light of the arguments canvassed on behalf of the learned counsel for the parties, I have gone through the records. It is the main contention of the learned counsel for the defendant that the claim of damages by the plaintiffs is below Rs.1,00,000/- and the balance damages payable according to them is Rs.96,720/-, as such the claim of the plaintiffs is below Rs.1,00,000/- and the same has to go before the Court of Small Causes and this court has no jurisdiction. In the light of the submission made by the learned counsel for the defendant, I have gone through the records and also the decisions as relied upon by him. No doubt in the plaint at para No.7, the plaintiffs have shown the balance damages 19 O.S.No.1422/2009 payable as Rs.96,720/- by giving deduction of Rs.3,660/- as part of damages paid by the defendant out of the total damages of Rs.1,00,380/-. But the very valuation slip attached to the plaint shows that the plaintiffs have valued the suit for Rs.1,40,640/- and on the basis of the same they have paid the court fee. The said aspect has been also not disputed by the defendant, i.e., to say, he has not denied the valuation slip attached to the plaint by the plaintiffs. By taking into consideration these aspects it can be said that the contention of the defendant that this court has no jurisdiction cannot be accepted. Apart from that, the very contention taken by the defendant in their written statement clearly shows that there is serious dispute raised by him with regard to the relationship of landlord and tenant. I have gone through the decision reported in ILR 2011 Kar page 229 between Abdul Wajid Vs. A.S.Onkarappa, as relied upon by the counsel for the parties, wherein it was observed by their lordship that when there is serious dispute between the parties as to the existence of relationship of landlord and tenant those disputes cannot be adjudicated by the Court of 20 O.S.No.1422/2009 Small Causes. Further the observation made by their lordships in the said decision at para 99 and 114, wherein it was observed that, where title is not an issue, where the relationship as lessor and lessee is not in dispute, but the only issue is as to whether the lessee has seized to have any rights under the lease due to happening of one or other events enumerated in (c) of Clause 4 of the schedule Karnataka Small Cause Court, such suits only comes within the purview of Court of Small Causes. So by taking into consideration all these aspects, this court is of the opinion that this court has got jurisdiction to try the present suit and whatever the contention taken by the learned counsel for the defendant cannot be accepted. Under the facts and circumstances of the case, this court is of the opinion that the defendant has failed to prove the additional issue No.1 for consideration. Accordingly additional issue No.1 for consideration is answered in the Negative, by holding that the defendant as failed to prove that this court has no jurisdiction to try the suit.
21 O.S.No.1422/2009
22. Issue No.1: The plaintiffs claims that the defendants were tenants under Smt.A.S.Pushpalamma and the 4th plaintiff and further contended that Smt.A.S.Pushpalamma and plaintiffs No.1 to 3 entered into a partition on 24/1/2008 and in the said partition, plaintiffs No.1 to 3 were allotted the suit schedule property. So also they contended that they have informed the said factum to the defendant vide their letter dated 15/3/2008 and the defendant has been paying rents of Rs.3,660/- and out of the said amount, plaintiff No.1 to 3 are getting Rs.665/- each and defendant No.4 getting Rs.1.665/-. So it is the specific stand of the plaintiffs that they are the owners of the suit schedule property and the defendant is a tenant under them and thereby there exists jural relationship of landlord and tenant in between themselves and the defendants.
23. Per contra, it is the contention of the defendant that though the plaintiffs claim that they are the owners of the suit schedule property and claim that the relationship in between themselves and him is that of landlord and tenant, absolutely 22 O.S.No.1422/2009 no document has been placed before the court to show the relationship of landlord and tenant in between the plaintiffs and himself. So it is the specific contention of the defendant that the plaintiffs and defendant have not constituted any relationship of landlord and tenant.
24. The learned counsel for the plaintiff, during the course of his arguments, mainly contended that, by virtue of the partition, that had taken place in between Smt.A.S.Pushpalamma and plaintiff No.1 to 3, the suit schedule property came to the share of plaintiffs, as such they have become the absolute owners of the suit schedule property. He further contended that the factum of partition in between Smt.A.S.Pushpalamma and plaintiff No.1 to 3 was intimated / informed to the defendant by the plaintiffs by letter dated 15/3/2008 and the defendant has been paying the rents to the plaintiffs. He further contended that though there is no lease deed in between the plaintiffs and defendant, but the very contents of the written statement and the facts stated by defendant in his affidavit filed by way of 23 O.S.No.1422/2009 examination-in-chief clearly goes to show that he has admitted the relationship of landlord and tenant. He further contended by placing his reliance upon Ex.P6 to 8 that the said documents clearly shows the defendant has paid the admitted rents to the plaintiffs in respect of the suit schedule property. So what he contended that in the absence of written document, i.e., lease agreement, the very admission in the cross-examination of DW1 and the very facts pleaded by him in the written statement and the things stated in the affidavit by way of examination-in-chief clearly goes to show that he has admitted that he is a tenant under the plaintiffs. So in view of his above arguments, he urged to answer issue No.1 for consideration in the Affirmative.
25. The learned counsel for the defendant, during the course of his arguments, mainly contended that the defendant in his written statement has totally denied the jural relationship of landlord and tenant. He further contended that absolutely there is no acceptable materials to prove the relationship of landlord and tenant. He further contended 24 O.S.No.1422/2009 that the defendant at any point of time residing in the suit schedule property in the capacity of a tenant. What he contended that the plaintiffs and their father are the partners in the defendant partnership concern. When that would be the case, the question of existence of jural relationship of landlord and tenant as claimed by the plaintiffs does not arise at all. So in view of his above arguments, he urged to answer issue No.1 in question in the Negative.
26. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. The defendant contends that he is not a tenant under the plaintiffs and there is no jural relationship of landlord and tenants in between plaintiffs and himself. Per contra it is the contention of the plaintiffs that the defendant is a tenant under them on monthly rent of Rs.3,660/-. In the light of the above rival contention on going through the records, admittedly Lease Agreement is not placed before the court. Now the question before the court whether the available evidence on record would goes to show that there 25 O.S.No.1422/2009 exists jural relationship of landlord and tenant in between the plaintiffs and defendant or not ?
27. Though the defendant has denied the jural relationship of landlord and tenant, but on going through the para No.4 of the written statement the defendant has admitted that he is a tenant under plaintiff on a monthly rent of Rs.9,560/-. At this juncture, it would be relevant to quote the said portion which reads as under:
"That this defendant is a tenant under plaintiff with respect to the suit schedule property on a monthly rent of Rs.9,560/-."
The above admission by the defendant in his written statement goes to show that he is a tenant under the plaintiffs.
28. So also on going through the affidavit filed by the defendant by way of examination-in-chief at para No.2 he stated as under:
"there is jural relationship of landlord and tenant in respect of the premises between plaintiffs 26 O.S.No.1422/2009 P.A.Niranjan, P.A.Srinath, P.Vijayakumar and P.D.Parthasarathy."
The above evidence of DW1 also goes to show that there is a jural relationship of landlord and tenant in between plaintiffs and defendant. Another important material placed before the court to show that the defendant is a tenant under the plaintiffs is that, Ex.P6 to 8, they are the letters sent by the defendant to the plaintiffs, wherein he has stated about the payment of rent from January 2009 to May 2009 through the cheque. Even the said aspect has been admitted by DW1 during the course of cross examination. So these documents also goes to show that the defendant is a tenant under the plaintiffs.
29. Upon perusal of the cross examination of DW1 at page No.6, first para in the cross-examination, defendant admits that every month they are paying rent to the plaintiffs. So also at page No.7, 4th line from the bottom he admits as under:
27 O.S.No.1422/2009
"it is true that, we are paying the amounts considering the plaintiffs are the owners of the property."
The above admission of DW1, during the course of cross examination also clearly goes to show that the defendant is a tenant under the plaintiff. When there is a clear admission by defendant that he is a tenant under plaintiffs, whatever the contention taken by the defendant cannot be accepted. Even in the absence of production of rental agreement also, the very admission by DW1, both in the pleadings, as well as in his evidence, clearly goes to show that he is a tenant under the plaintiffs and as per section 17 and 21 of Indian Evidence Act, this admission is the best piece of evidence.
30. It is the contention of the defendant that the father of the plaintiff and the plaintiffs are the partners of his firm and their contribution to the firm is not in the form of money but they had given the suit property. Though the defendant contended like so, but in order to prove the said aspect, no acceptable material has been placed before the court. Though 28 O.S.No.1422/2009 the defendant in his cross examination admitted that he is having a document to show that the plaintiffs are the partners of the firm, but inspite of that he has not chosen to produce the said document in order to substantiate his contention. Under the above said circumstances, it can be said that mere bald contention of the defendant would not suffice his case in the absence of production of acceptable materials. Looking into the above evidence given by DW1 in the cross examination and the admission in his written statement, it can be said that this issue does not requires much discussion to hold that that their exists jural relationship of landlord and tenants in between plaintiffs and defendant. For the foregoing reasons and discussions, issue No.1 for consideration is answered in the Affirmative.
31. Issue No.2: It is the contention of the plaintiffs that they are the absolute owners of the suit schedule property and the defendant is a tenant under them on a monthly rent of Rs.3,660/- and the tenancy is a monthly tenancy commencing from first day of each calendar month and expiry on the last 29 O.S.No.1422/2009 day of the same calendar month. So they were not interested in continuing the tenancy of the defendant in respect of the suit schedule property. So also it is their contention that they need the suit schedule property for their bonafide use and occupation and their requirement of the suit schedule property is imminent. So also it is their contention that inspite of request made by them to the defendant to vacate and handover the vacant possession of the suit schedule property, the defendant failed to vacate. So they caused notice dated 10/12/2008 terminating the tenancy of the defendant with effect from 31/12/2008. It is further contended that the defendant instead of vacating and handing over the vacant possession of the suit schedule property gave untenable reply dated 5/4/2009. So they contended that they have legally terminated the tenancy of the defendant.
32. Per contra it is the contention of the defendant that the plaintiffs have not terminated the tenancy as per law. What he contended that the partners of the firm have not 30 O.S.No.1422/2009 received the termination notice and the same was issued in the name of the firm. So it is not a valid termination.
33. The learned counsel for the plaintiff, during the course of his arguments contended that since the plaintiffs were not interested in continuing the tenancy of the defendant, so they requested the defendant to hand over the vacant possession of the suit schedule property, but he failed to vacate and hand over the vacant possession of the suit schedule property. So the plaintiffs caused notice to defendants as per Ex.P1 on 10/12/2008, terminating the tenancy with effect from 31/12/2008. He further contended that the very contents of Ex.P1 notice clearly shows that as per law, they terminated the tenancy of the defendant and though the defendant has received the said notice, gave untenable reply instead of vacating and handing over the suit schedule premises. So in view of his above arguments, he urged to answer issue No.2 for consideration in the Affirmative.
31 O.S.No.1422/2009
34. Per contra the learned counsel for the defendant, during the course of his arguments, mainly contended that the Ex.P1 notice was issued calling upon M/s.Murugan Silks to vacate and the same was issued on 10/12/2008. What he contended that the said notice was not issued to the partners of the firm but it was addressed to M/s.Murugan Silks. He further contended that the partners of the partnership business concern were not notified of such a notice. So in view of his above submission, he contended that the termination notice as claimed by the plaintiffs is not in accordance with law.
35. He further contended that after alleged Ex.P1 notice, the defendant sent cheques on 29/5/2009 under protest, to avoid default in payment of rent and the same was accepted by the plaintiff. What he contended that after issuance of alleged Ex.P1 termination notice, the plaintiffs have accepted the rent, as such the said notice is not valid termination notice and the very acceptance of rent by the plaintiffs after issuance of Ex.P1 termination notice goes to 32 O.S.No.1422/2009 show that they have consented for continuance of tenancy. He further specifically contended that after termination of notice, if landlord accept tenants, the notice would become invalid and it is not a legal termination. In support of his arguments he has relied upon the decision reported in ;
(1) AIR 1971 SC page 102, Tayabali Japer Bhai Tankiwale Vs. M/s.Ashan and company.
(2) AIR 1951 SC page 285, Karnani Industrial Bank Limited Vs. Province of Bengal (3) Judgment rendered in RFA 198/2015 M/s Auto World Vs. Sathyavathi.
36. By relying upon the above decision, what he contended that acceptance of rent by landlord after the expiry of period of tenancy or termination of tenancy, the consent made in appropriate case be inferred from such conduct. What he contended that in the present case also the very acceptance of rent by the plaintiff sent by the defendant through cheques on 29/5/2009, would clearly goes to show 33 O.S.No.1422/2009 that the plaintiffs have consented for continuance of tenancy. So in view of his above arguments and decisions, he urged to answer issue No.2 for consideration in the Negative.
37. The learned counsel for the plaintiff during the course of his reply arguments contended that though the plaintiffs have received rent sent by defendant through cheque, the same was accepted under protest. He further contended that even with regard to the said aspect a narration has been made in Ex.P1 notice, i.e., to say, what he contended that in Ex.P1 notice it was stated by the plaintiffs that "any amount that would be paid by defendant subsequent to 31/12/2008 would be accepted under protest". So he contended that mere acceptance of the rent sent by the defendant through cheque does not amount to consent of plaintiffs for continuance of tenancy and the notice issued as per Ex.P1 is not a valid notice under law. So in view of his above arguments, he urged to answer issue No.2 for consideration in the Affirmative by rejecting the arguments canvassed by the learned counsel for the defendant. 34 O.S.No.1422/2009
38. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records and also the decisions as relied upon by the learned counsel for the defendants. It is the contention of the plaintiffs that the suit schedule premises required for their bonafide use and occupation and also they were not interested in continuing the tenancy of defendants. So they requested the defendant to vacate and hand over the vacant possession of the suit schedule property. Inspite of their request, the defendant has not heeded to their request. So they caused termination notice as per Ex.P1, terminating the tenancy of defendant with effect from 31/12/2008. So they contended that they have terminated the tenancy of the defendant by issuing notice as per Ex.P1 in accordance with law.
39. Per contra, it is the contention of the defendant that the alleged Ex.P1 notice is not in accordance with law and the same was issued in the name of partnership business concern and not to the partners. So also, it is their contention that after issuance of alleged Ex.P1 notice, the plaintiffs have 35 O.S.No.1422/2009 accepted the rent sent by defendant on 29/5/2009 through cheque and thereby they consented for continuing the tenancy of the defendant, as such the alleged Ex.P1 notice is not a valid notice under law.
40. In the light of the above rival stand, on going through the records, it shows that the defendant has not disputed the factum of issuance of Ex.P1 notice and also not disputed the factum of issuance of reply notice dated 5/4/2009. The main contention of the defendant is that Ex.P1 notice is issued in the name of partnership business concern but not to the partners, as such it is not a valid notice as per law. So far as the said contention of the defendant is concerned, it can be said that though he contended with regard to the not issuing of notice to the partners the very evidence on record shows that DW1, who claims to be the partner of the defendant firm has issued reply notice. So also on going through the contents of para 11 of written statement wherein also he contended that the suit filed in the name of M/s. Murugan Silks business concern, but the partners have 36 O.S.No.1422/2009 not been impleaded in the suit, but he appeared before the court and filed written statement under protest, for the reason no partner has been served with summons. As it is already stated above, though the notice issued in the name of partnership business concern, but the said business concern is represented by the partners and the very reply notice given by defendant as per Ex.P5 also clearly goes to show that the termination notice issued by the plaintiffs as per Ex.P1 is well within their knowledge. When that would be the case and when the partners of the firm are having knowledge of the termination notice, the stand taken by the defendant cannot be accepted.
41. Now coming to the other contention taken by the learned counsel for the defendant that after issuance of Ex.P1 notice, the defendant sent rent through cheque on 29/5/2009 and the same were accepted by the plaintiffs. So in view of the said acceptance, the notice, as issued by the plaintiff as per Ex.P1 automatically stands waived. In support of his contention, he has relied upon the decision as stated above 37 O.S.No.1422/2009 and I have gone through the said decisions. No doubt the very documents produced by the plaintiffs at Ex.P6 to 8 shows that the defendant sent rent through cheque on 29/5/2009 for the month of January 2009 to May 2009, that is to say, after the issuance of Ex.P1 termination notice. Now the question before the court is that in view of the acceptance of the said rent would it amounts to waiving of Ex.P1 notice or not ? In my view certainly not, as because specific narration made by the plaintiffs in Ex.P1 notice with regard to the said aspect. At this juncture, it would be relevant to quote the said portion of contents of notice narrated in para 2 last line and 1st para in page 3, which reads as under:
"Any amount that would be paid by you subsequent to 31/12/2008 would be acceptable under protest and irrespective of the term that would be assigned by you towards full / part payment of damages for unauthorized use and occupation. This is without prejudice to seek for ejectment." 38 O.S.No.1422/2009
42. Looking into the above things stated by the plaintiffs in Ex.P1 notice it can be said that they accepted the said amount under protest and that would not prejudice his right to seek ejectment. When that would be the case, merely on the said score, i.e., to say the receipt of amount as per Ex.P6 to 8, in no way it would goes to affect the case of the plaintiffs. I have gone through the decisions relied upon by the learned counsel for the defendant. Looking into the facts and circumstances of the present case and looking into the facts and circumstances narrated in the said cases it can be said that those decisions would not helpful to the case of defendant. On the other hand, upon perusal of the contents of Ex.P1 notice, it shows that the same has been issued by the plaintiff perfectly in accordance with law. When that would be the case, this court has left with no option except to hold that the plaintiffs have legally and validly terminated the tenancy of the defendant as per section 106 of the Transfer of Property Act. Accordingly issue No.2 for consideration is answered in the Affirmative.
39 O.S.No.1422/2009
43. Issue No.8: The defendant contended that in view of the contention taken by him in para 4, 10 and 11 of the written statement, the suit filed by the plaintiffs is liable to be rejected. The learned counsel for the plaintiff during the course of his arguments submitted that though defendant is a tenant under plaintiff on a monthly rent of Rs.9,560/- but there is a splitting of tenancy and the defendant has been specifically notified with regard to the said aspect. So he contended that there is no co-ownership or joint ownership but divided ownership. He further contended that in view of the division in respect of the property in terms of the splitting of tenancy, there is no cause of action to file the present suit. But the plaintiffs have filed the present suit on the basis of joinder of cause of action, so he contended that the suit of the plaintiff is liable to be rejected. He further contended that since the plaintiffs have accepted the rents sent by the defendant through cheque, as per Ex.P6 to 8, the present suit does not survive for consideration. What he contended that in view of the same, the plaintiffs cannot suppose to seek for ejectment of the defendant from the suit schedule property. 40 O.S.No.1422/2009 The third contention of the learned counsel for the defendant is that the very cause title shown in the plaint shows that the defendant partnership business concern only made as a party, but not the partners. So he contended that in the absence of partners of the firm adding as party to the proceedings the present suit of the plaintiffs is liable to be rejected.
44. In the light of the arguments of the learned counsel for the defendant, I have gone through the records. The main contention of the defendant counsel is that since there is splitting of tenancy and the plaintiffs have filed the present suit on the basis of joinder of cause of action, so on this main ground, he sought for to reject the suit filed by the plaintiff. So far as the said contention taken by the learned counsel for the defendant is concerned, though there was division in respect of the properties among the family members but the property is in joint possession of all. Even the said factum has been forthcoming in the evidence placed before the court. Even the defendant counsel suggested PW1 during the course of cross-examination that they have all got created Ex.P1 41 O.S.No.1422/2009 partnership Deed just to send out the defendant out of the possession of the suit schedule property. Even though he put such suggestion, but in order to prove the creation of the said document for the purpose of this case, no acceptable evidence had been placed before the court by the defendant. Further on going through the cross-examination of PW1, it shows that nothing worth has been elicited from the mouth of this witness nor no acceptable evidence has been placed before the court by the defendant in order to prove his above contention. Under the above said circumstances, it is needless to say that whatever the above contention taken by the learned counsel for the defendant cannot be accepted.
45. So far as the contention taken by the learned counsel for the defendant to reject the plaint on the ground of not adding the partners as a party to the proceedings and acceptance of rent sent by the defendant through cheque as per Ex.P6 to 8 is concerned, detailed discussion has been already made in issue No.2. In view of the said discussion made in the said issue with regard to the said aspect, it can be 42 O.S.No.1422/2009 said that whatever the contention taken by the learned counsel for the defendant cannot be accepted.
46. For the foregoing reasons and discussions issue No.8 for consideration is answered in the Negative by holding that the defendant has failed to prove the contents of para No.4, 10 and 11 of his written statement.
47. Issue No.3 and 6: The learned counsel for the plaintiffs during the course of his arguments contended that the tenancy of the defendant was terminated by causing termination notice as per Ex.P1 on 10/12/2008 with effect from 31/12/2008, as such the possession of the defendant in respect of the suit schedule property subsequent to 31/12/2008 would become unauthorized occupation. As such he is liable to pay damages at the rate of Rs.50,190/- per month calculated at the rate of Rs.125/- per square feet per month. In support of his contention, i.e., the plaintiffs are entitled for the damages at the rate of Rs.50,190/- per month, he has produced the certified copy of the lease agreement between Kalanikethan Textiles, K.Amarnath and others. So by 43 O.S.No.1422/2009 placing his reliance upon the said document, he urged that the plaintiffs are entitled for damages at the rate of Rs.50,190/- per month and he specifically claims the said rate for two months, i.e., for the month of January and February 2009 at the rate of Rs.50,190/- per month totally amounting to Rs.1,00,380/-. He further contended that a sum of Rs.3,660/- paid by the defendant towards the part of damages amount claimed by him was given deduction, so after deduction of the said amount, the defendant is liable to pay balance damages of Rs.96,720/- for the above said two months.
48. The learned counsel for the defendant during the course of his arguments contended that the damages claimed by the plaintiff at the rate of Rs.50,190/- per month calculated at the rate of Rs.125/- per square feet is an astronomical figure without there being any basis. So he contended that there is no basis for such claim, the defendant is not under any obligation to pay damages as claimed by the plaintiffs. He further contended that the plaintiffs in support of their claim 44 O.S.No.1422/2009 have produced the Lease agreement at Ex.P9. He further contended that whatever the amount shown in the said document cannot be taken into consideration as because the parties to the said agreement have not been examined before the court to prove the contents of the said document. So in view of his above arguments, he urged to answer issue No.3 and 6 in the negative.
49. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. The plaintiffs claiming damages at the rate of Rs.50,190/- per month calculated at the rate of Rs.125/- per square feet per month for the month of January and February 2009 totally amounting to Rs.96,720/- after giving deduction of Rs.3,660/- which was paid by the defendant towards part of damages amount out of the total arrears of damages of Rs.1,00,380/- for the above said two months. The plaintiffs in order to substantiate their contention have relied upon Ex.P9, i.e., the agreement between M/s.Kalaniketan Textiles & Jewels Private Limited & others.
45 O.S.No.1422/2009
50. It is the contention of the plaintiff that the property shown in Ex.P9 is also located in the same area where the suit schedule property is located and the very said documents shows that the property is in the said area per square feet fetching Rs.125/-. So he is claiming damages on the basis of the said document at the rate of Rs.50,190/- per month calculated at the rate of Rs.125/- per square feet per month. On going through the evidence on record it shows that the property shown in Ex.P1 is ½ furlong away from the suit schedule property. So also the plaintiffs in order to prove the contents of Ex.P9 documents, have not brought the evidence of parties to the said document nor the signatories to the said document. So also on going through the evidence of PW1, it shows that at the time of marking Ex.P9, it was mentioned in the deposition that the said document is marked subject to examination of any of the executant or witness to the document. So when things stood like so, on the basis of Ex.P1 document whatever the amount claimed by the plaintiff, much less Rs.50,190/- per month by way of damages for a period of 46 O.S.No.1422/2009 two months cannot be considered and given. However by considering the factum that in big cities and Metropolitan cities, normally there would be increase in the value of the property within a short span of time and also by considering the factum that subsequent to 31/12/2008 the occupation of the defendant is an unauthorized occupation, it would be just and appropriate to fix the damages at the rate of Rs.25,000/- per month and that would suffice the ends of justice. So by taking into account such amount as damages, per month, the total amount for two months would come to Rs.50,000/- and out of which if admitted part of damages of Rs.3,660/- paid by the defendant is deducted, then the balance would be Rs.46,340/- For the said amount the plaintiffs are entitled for, as arrears of damages. Accordingly issue No.3 and 6 are answered partly in the Affirmative.
51. Issue No.4 & 7: Both these issues are inter- connected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience. 47 O.S.No.1422/2009
52. The plaintiffs claim that the defendant is liable to pay damages at the rate of Rs.50,190/- per month, though they contended like so and claim such huge amount per month, in proof of the same, no acceptable evidence has been placed before the court. In this regard, a detailed discussion has been made in issue No.3 and 6. In view of my findings on issue No.3 and 6, it would be just and appropriate to hold that the plaintiffs are entitled for damages at the rate of Rs.25,000/- per month from the date of filing the suit, till the date of handing over the vacant possession of the suit schedule property to the plaintiffs. Accordingly issue No.4 and 7 are answered partly in the Affirmative.
53. Issue No.5: In view of my detailed discussion to the above issues, the plaintiffs are entitled for recovery of possession of the suit schedule property. Accordingly issue No.5 in question is answered in the Affirmative.
54. Issue No.9: In view of my finding to the above issues, I proceed to pass the following:
48 O.S.No.1422/2009
ORDER The suit filed by the plaintiffs is hereby decreed in part with cost.
The defendant is hereby directed to vacate and handover the vacant possession of the suit schedule property within four months from the date of this order. So also the plaintiffs are entitled for arrears of damages of Rs.46,340/- and also they are entitled for damages at the rate of Rs.25,000/- per month from the date of filing the suit till the date of handing over the vacant possession of the suit schedule property, failing which the plaintiff is at liberty to take steps as per law.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 21st day of November 2015).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.49 O.S.No.1422/2009
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 - P.A.Niranjan
Witnesses examined for the defendant:
D.W.1 - K.A.Madhusudan
Documents marked for the plaintiff:
Ex.P.1 - Office copy of legal notice
Ex.P.2-4 - Postal receipt, postal acknowledgment
Ex.P.5 - Reply notice
Ex.P.6 to 8 - Letters
Ex.P.9 - Certified copy of Lease Agreement
Ex.P.10 - Partition Deed
Documents marked for the defendant:
Nil
(Sadananda M. Doddamani)
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
50 O.S.No.1422/2009
Judgment pronounced in open court (vide
separate detailed judgment) with the
following operative portion:-
ORDER
The suit filed by the plaintiffs is hereby
decreed in part with cost.
The defendant is hereby directed to
vacate and handover the vacant possession of the suit schedule property within four months from the date of this order. So also the plaintiffs are entitled for arrears of damages of Rs.46,340/- and also they are entitled for damages at the rate of Rs.25,000/- per month from the date of filing the suit till the date of handing over the vacant possession of the suit schedule property, failing which the plaintiff is at liberty to take steps as per law.
Draw decree accordingly.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.51 O.S.No.1422/2009