Bangalore District Court
Smt. S. Rajeswari vs Smt. Dharani Kala Prakash on 15 September, 2020
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU (CCH-75)
Dated this 15th Day of September 2020
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 25927/2015
PLAINTIFF: SMT. S. RAJESWARI
W/o. Late. V. Sadagopan
Aged about 70 years
R/at: No.602, Sadagopan Nivas
3rd 'C' Cross, 6th Main
II Block, HRBR Layout
Kalyan Nagar
Bengaluru - 560043.
Rep by: GPA Holder
SMT. HEMA MALINI
V/s
DEFENDANTS: 1 SMT. DHARANI KALA PRAKASH
Aged about 47 years.
2 SRI. KARAN HIRENDRA PRAKASH
S/o. Dharani Kala Prakash
Aged about 22 years
BOTH ARE R/AT:
No.540/28, 'B' Cross
Annaiah Reddy Layout
2
OS.25927/2015
Banaswadi
Bengaluru - 560043.
Date of Institution of the suit 14.10.2015
Nature of the Suit (Suit on pro-note, suit for declaration
EJECTMENT
and possession, suit for injunction, etc.)
Date of the commencement of recording of the Evidence. 04.09.2018
Date of pronouncement of Judgment 15.09.2020
Total duration Year/s Month/s Day/s
04 11 01
JUDGMENT
Plaintiff has filed the instant suit for ejectment, recovery of arrears of rent, mesne profit and cost.
FACTS OF THE CASE:
2. Plaintiff is the owner of suit property. She let out the said property to defendants on monthly rental of Rs.21,000/-. In this regard, the Rent Agreement dated:01.09.2014 was made. At the time of making rent agreement, defendants have given Rs.1,00,000/- as security deposit. The tenancy commences on the first day of English calendar month and ends on the last day of the same month. The defendants agreed to pay rent on or 3 OS.25927/2015 before 7th day of every month. Defendants paid rents regularly up to the month of March 2015. From April 2015, they stopped paying rents. When the plaintiff demanded rents, they took time on one or the other pretext.
Plaintiff contends that, on 29.05.2015, she received a letter from defendants, wherein they have stated that, due to construction work in the neighboring property, they are facing lot of problems and nuisance. Therefore the rent is to be reduced. Plaintiff contends that, she informed defendants that, if due to construction work in the neighboring property, they are facing lot of problems and nuisance, they are at liberty to vacate the suit property and she is ready to refund the security deposit by deducting arrears of rents. The defendants did not agree for the same and they continue to persist her to reduce the rate of rent. Plaintiff contends that, the demand of defendants to reduce the rate of rent is not acceptable. Therefore she issued Quit Notice dated:05.09.2015 terminating the tenancy and calling upon the defendants to vacate and handover the vacant possession of the suit property. After receipt of quit notice, defendants did not vacate the suit property, but issued reply dated:19.09.2015 making untenable contentions. Plaintiff contends that, after termination of tenancy, defendants have no right to continue in possession of 4 OS.25927/2015 the suit property. Their possession in the suit property is illegal and unauthorized. Therefore they are liable to pay mesne profit. Plaintiff further contends that, defendants are in arrears of rent from April 2015. Therefore they are liable to pay arrears of rent from April 2015 to August 2015 i.e., Rs.1,05,000/-. On these and other ground stated in the plaint, plaintiff prays to decree the suit and to grant the reliefs prayed for.
3. Defendants resisted the suit by filing written statement. They admitted that, they are in possession of suit property as tenants, to evidence the tenancy, Rent agreement dated:01.09.2014 was made, the tenancy commences on the 1st day of every English calendar month and ends on the last day of the same month, they paid rents up to March 2015. Defendants contend that, in the month of March 2015, the owner of neighboring property started construction of building in his property. Due to the construction work, dust particles were entering into the suit property causing air pollution nuisance. They informed Mr. M. Raj, the son in law of the plaintiff, who was collecting rents and managing the suit property about the said nuisance. He told them that, the construction will complete within 2 to 3 months. But the construction work did not complete in 2 to 3 months. 5
OS.25927/2015 Therefore the nuisance continued. Defendants contend that, in view of nuisance continued, they decided to vacate the suit property and informed the plaintiff to refund the security deposit. The plaintiff did not refund the security deposit. Therefore they continued to stay in the suit property. Defendants contend that, they will vacate the suit property on returning of their security deposit. Defendants contend that, plaintiff who did not repay the security deposit, sent Quit notice dated:05.09.2015. After receipt of the said quit notice, they sent reply dated:19.09.2015 stating that, if the security deposit amount is given, they are ready to vacate the suit property. They contend that, till the plaintiff refund security deposit, they are entitled to stay in the suit property without paying rents. They contend that, in the above circumstances, without returning security deposit, plaintiff cannot terminate the tenancy. Therefore their possession in the suit property is not illegal. Hence they are not liable to pay mesne profit. Defendants contend that, plaintiff without resolving the dispute amicably, given false complaint against them to the Police and harassed and humiliated them. They contend that, plaintiff has filed the instant suit by suppressing true facts. Therefore plaintiff 6 OS.25927/2015 is not entitled for any of the reliefs prayed for. On these and other grounds stated in the written statement, defendants pray to dismiss the suit.
4. On the basis of the afore said pleadings, on 28.02.2018 the then presiding officer has formulated the following:
ISSUES
1. Whether the plaintiff proves that, the defendants are in arrears of rent for the period from 01.04.2015 to 30.08.2015 amounting to a sum of Rs.1,05,000/ (Rupees One Lakh Five Thousand only)?
2. Whether the plaintiff proves that, she is entitled for mesne profit?
3. What order or decree?
5. On behalf of plaintiff, her attorney holder Hema Malini was examined as PW1 and produced documents marked at Ex.P.1 to Ex.P.8.
6. On behalf of defendants, 1st defendant was examined DW1 and produced documents marked at Ex.D.1 to Ex.D.13.
7. Heard the arguments on both side and perused record. 7
OS.25927/2015
8. My findings on the above Issues are as under:
ISSUE NO.1: In the Affirmative.
ISSUE NO.2: In the Affirmative.
ISSUE NO.3: As per the final order for the following:
REASONS
9. ISSUE NO.1: In the instant case, there is no dispute that, on 01.09.2014 defendants took the suit property on rent from plaintiff, the rate of rent is Rs.21,000/- per month, defendants paid rent up to the month of March 2015 and since April 2015, they did not pay the rent.
10. 1St defendant who was examined as DW1, in the cross examination at page No.6 has admitted that, since April 2015 defendants did not pay rents to plaintiff. From the evidence of PW1 & the recitals of Ex.P.3 Quit notice dated:05.09.2015 it is evident that, the tenancy of defendants was terminated after expiry of 15 days from the date of receipt of the said notice. A perusal of Ex.P.6 & 7 Postal acknowledgments and the facts stated by defendants in Ex.P.8 Reply notice, it is evident that, defendants received Ex.P.3 Quit notice on 07.09.2015. Therefore the tenancy of the defendants 8 OS.25927/2015 would stand terminated on 22.09.2015. Therefore the defendants are in arrears of rent from 01.04.2015 to 22.09.2015.
11. Defendants in the written statement and DW1 in the evidence has stated that, in view of construction work in the neighboring property, they were put to inconvenience and difficulties, when they intimated the same to Mr. M.Raj - the son in law of plaintiff, he stated that, the construction will complete in 2 months, but the construction did not complete in 2 months, the plaintiff did not take any steps to prevent the nuisance which they (defendant) were facing due to the construction in the neighboring property. Therefore they stopped paying rents and demanded the plaintiff to refund security deposit amount. DW1 has stated that, in view of plaintiff failed to refund security deposit amount, defendants continued their possession in the suit property. Therefore defendants are not liable to pay arrears of any rent.
12. In the instant case, in view of defendants admit the relationship of landlord and tenant and also rate of rent, plaintiff has not produced the rent agreement. Defendants have also not produced the rent agreement. In whose possession the original rent agreement is there, is not known. In view 9 OS.25927/2015 of either parties have not produced rent agreement, the Court do not know, what was the terms and conditions of the said rent agreement. Defendants by admitting that, they did not pay the rent from April 2015 are contending that, in view of continuous nuisance due to construction work in the neighboring property, they decided to vacate the suit property, therefore they demanded the plaintiff to refund the security deposit, plaintiff failed to repay the security deposit, therefore they continued their possession in the suit property. They contend till the plaintiff refund the security deposit, they are entitled to continue in possession of the suit property without paying rents. When such is the case, the burden is on the defendants to substantiate their contention that, they informed the plaintiff regarding their intention to vacate the suit property on refunding of security deposit amount. When the defendants have made the said demand, is neither stated in the written statement nor in the evidence of DW1. Ex.P.8 is the Reply dated:19.09.2015 issued by defendants after receipt of Ex.P.3 Quit notice. In the 2 nd page of Ex.P.8 defendants have stated as under:
"My clients states that as there was no other alternative apart from stop paying the rent and accordingly stopped paying the rent from the month of April 2015 and my clients sent a letter dated 29 th May 2015 to Mr.M.Raj requesting him to return the security refundable advance 10 OS.25927/2015 with cost of damages, as they cannot continue staying in the premises without clean and clear atmosphere and moreover Mr.M.Raj have not taken any suitable measures."
13. Plaintiff has produced Ex.P.2 letter dated:29.05.2015 written by defendants. A perusal of the same would show that, it was not addressed to Mr. M.Raj as alleged in Ex.P.8 Reply. On the other hand, it was addressed to plaintiff. In the said letter defendants requested the plaintiff to reduce 50% of the rent and also to refund 50% of the rents paid from September 2014 to March 2015 i.e., Rs.73,500/-. In Ex.P.2 defendants have stated that, plaintiff is liable to refund advance amount of Rs.1,00,000/- and 50% of the paid rents i.e., Rs.73,500/-. In the said letter, defendants have not stated that, they were ready to vacate the suit property on refunding of security deposit amount. On the other hand, in Ex.P.2 defendants called upon the plaintiff to pay damages for the inconvenience and the hardship suffered by them, due to the nuisance caused by construction of building in the neighboring property. Defendants have not produced the letter alleged to have been written by them to Mr. M.Raj stating that, they ready to vacate the suit property on refunding of security deposit amount. Therefore the contention of defendants in Ex.P.8 Reply that, on 29.05.2015 they written letter to Mr. 11 OS.25927/2015 Raj the Son-in-law of plaintiff informing him that, they were ready to vacate the suit property on refunding of security deposit amount, cannot be accepted. In the above, I have stated that, in the written statement or DW1 in the evidence has not stated, when defendants informed plaintiff or her son in law that, they were ready to vacate the suit property on refunding of security deposit amount. Thus absolutely there is no evidence on record to believe the contention of defendants that, before the plaintiff issued Ex.P.3 Quit Notice terminating their tenancy, they informed plaintiff that, they were ready to vacate the suit property on refunding of advance amount.
14. Sec.108 of Transfer of Property Act (T.P.Act) deals regarding rights and liabilities of Lessor and Lessee. Sec.108 of T.P. Act or any other law in force, will not permit the tenant to stay in the tenanted premises without paying rents till the landlord refund security deposit amount. In law and also as per custom and practice, even the security deposit amount cannot be adjusted towards arrears of rent. If the defendants put to inconvenience, hardship or sustained loss or damage due to the activities of the neighboring property owners or occupants, they are at liberty to take legal steps against the said neighbors for appropriate remedy. But on that ground, the tenant cannot 12 OS.25927/2015 demand the landlord to reduce the rate of rent or refuse to pay the rents. Therefore the contention of the defendants that, due to the construction work carried in the neighboring property, they suffered loss and damage and also put to inconvenience and hardship, therefore they are not liable to pay rents from April 2015 is not sustainable. In view of the above, I hold that, defendants are liable to pay arrears of rent from 01.04.2015 to 22.09.2015 to plaintiff. But in the instant case, plaintiff claimed arrears of rent of only 5 months i.e., Rs.1,05,000/- from 01.05.2015 to 30.08.2015. In view of my afore said findings, I hold that, plaintiffs are entitled to recover the same from defendants. Accordingly I answer Issue No.1 in the AFFIRMATIVE.
15. ISSUE NO.2: Plaintiff has claimed mesne profit at the rate of Rs.2,000/- per day. While answering Issue No.1 I have held that, by issuing Ex.P.3 Notice, plaintiff terminated the tenancy of defendants with effect from 22.09.2015. After termination of tenancy, defendants have no legal right to continue in possession of the suit property. Therefore their possession from 22.09.2015 is illegal and unauthorized. PW1 except baldly stating that, she is entitled for mesne profit at the rate of Rs.2,000/- per day has not produced any cogent and convincing evidence to prove the rental 13 OS.25927/2015 value of suit property prevailing as on 22.09.2015. During the course of cross examination of DW1, no attempt was made to elicit regarding rental value of suit property prevailing in the month of September 2015. Thus there is zero evidence to prove that, plaintiff is entitled for mesne profit at the rate of Rs.2,000/- per day.
16. Admittedly in the year 2014, plaintiff let out the suit property to defendants on monthly rental of Rs.21,000/-. Therefore in the absence of evidence regarding mesne profit, the Court is of the opinion that, it would be just and proper to grant mesne profit at the rate of Rs.21,000/- per month i.e., the agreed and undisputed rental value of the suit property.
17. Admittedly, during the pendency of the suit, defendants vacated the suit property on 23.03.2017. Therefore in view of my afore said findings, defendants are liable to pay mesne profit to the plaintiff at the rate of Rs.21,000/- per month from 22.09.2015 to 23.03.2017. In view of the above, I answer Issue No.2 in the AFFIRMATIVE.
18. ISSUE NO.3: A perusal of record would show that, on 01.12.2016 the then presiding officer has passed an order directing the 14 OS.25927/2015 defendants to pay Rs.2,94,000/- to plaintiff as arrears of rents from April 2015. In the said order it is stated that, if the defendants vacate the suit property by deducting security deposit of Rs.1,00,000/-, they have to pay Rs.1,94,000/- to plaintiff. Defendants did not comply the said order. On the basis of the said order, plaintiff filed Execution petition. When the court bailiff went to the house of defendants for attachment of property for realization of said amount, defendants paid Rs.10,000/- and issued cheque in a sum of Rs.2,84,000/-. DW1 has admitted the said fact in the cross examination. In view of stop payment instructions given by DW1, the said cheque was not encashed. On the basis of the said cheque, plaintiff filed C.C.No.54567/2018 and after trial, DW1 i.e., 1st defendant was held guilty for the offence punishable U/Sec.138 of N.I.Act. DW1 in the cross examination has stated that, in C.C.No.54567/2018 the Learned Magistrate has directed her to pay compensation of Rs.3,10,000/- to plaintiff. The learned counsel for the defendants submit that, against the order of conviction and sentence in C.C.No.54567/2018 the 1st defendant has filed appeal and it is still pending for consideration. Be that as it may, from the material available on record, it is evident that, since April 2015, except payment of 15 OS.25927/2015 Rs.10,000/- that too when the court bailiff went for execution of warrant for realization of amount as per the order dated: 01.12.2016, defendants have not paid any amount to plaintiff towards arrears of rent.
19. While answering Issue No.1 I have held that, the tenancy of defendants was terminated with effect from 22.09.2015. Plaintiffs have not claimed rent from 01.09.2015 to 22.09.2015. Rs.10,000/- paid by defendants to the Court bailiff, be adjusted towards the rent from 01.09.2015 to 22.09.2015.
20. In para No.5 of the plaint it is stated that, defendants are liable to pay rent on or before 7th of every month. The said averment of plaint was not traversed. Plaintiff being the landlord, is entitled to get monthly rents. Defendants without any justifiable reason withhold the rent from April 2015. Therefore the court if of the opinion that, defendants are liable to pay the arrears of rent with interest at the rate of 6% per annum at least from the date of termination of tenancy till payment. In the same way defendants are liable to pay mesne profit at the rate of Rs.21,000/- per month at least from 23.03.2017 on which day, defendants vacated the suit property till payment. 16
OS.25927/2015 In view of my afore said findings and my findings on Issue No.1 & 2, I pass the following:
ORDER Plaintiff's suit is partly decreed with costs. Defendants are directed to pay a sum of Rs.1,05,000/- to plaintiff towards arrears of rent with interest at the rate of 6% per annum from 01.09.2015 till payment.
Defendants are directed to pay mesne profit at the rate of Rs.21,000/- per month from 22.09.2015 to 23.03.2017 with interest at the rate of 6% per annum from 23.03.2017 till payment.
The amount if any recovered in execution petition other than Rs.10,000/- and in C.C.No.54567/2018 and security deposit amount of Rs.1,00,000/- is to be adjusted towards decreetal amount.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 15th day of September 2020) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 17 OS.25927/2015 ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 HEMA MALINI
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 SPA dated:10.10.2015
Ex.P.2 Letter dated:29.05.2015
Ex.P.3 Legal notice dated:05.09.2015
Ex.P.4 & 5 Postal acknowledgment
Ex.P.6 & 7 Postal receipt
Ex.P.8 Reply dated: 19.09.2015
LIST OF WITNESS EXAMINED FOR THE DEFENDANT:
DW1 DHARANI KALA PRAKASH
LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:
Ex.D.1 Certified Copy of Order sheet in C.C.No.54567/2018
Ex.D.2 Certified Copy of complaint in C.C.No.54567/2018
Ex.D.3 Certified Copy of Cheque
Ex.D.4 Certified Copy of memo
Ex.D.5 Certified copy of notice dated:05.12.2017
Ex.D.6 Certified copy of deposition of plaintiff in
C.C.No.54567/2018
Ex.D.7 Certified copy of Orders on IA.No.2/16 in
OS.No.25927/2015
18
OS.25927/2015
Ex.D.8 Certified copy of Ordersheet in Ex.No.25037/2017
Ex.D.9 & 10 Certified copy of memo filed in Ex.25037/2017 Ex.D.10 Certified copy of memo of calculation filed in Ex.25037/2017 Ex.D.11 Certified copy of Ex.P.25037/2017 Ex.D.12 Certified copy of warrant in Ex.P.25037/2017 Ex.D.13 Certified copy of order passed by Hon'ble 73 rd Addl.
City Civil & Sessions Judge (CCH-74) in Crl.A.No.25226/2019.
(MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)