Bangalore District Court
O.S./7853/2016 on 29 September, 2020
THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BANGALORE CITY.
Dated on this the 29th day of September 2020
-: Present :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 7853/2016
Plaintiff :-
G.Manjunath S/o. Gangappa, 54
Years, R/o.No. 1/5, 13th Cross,
Swimming Pool Extension,
Malleshwaram, Bengaluru - 03.
[By Sri.Sri.S.K.Nagaraj, Advocate]
/ VERSUS /
Defendant :-
Smt.P.Gayathri
D/o.K.Parameshwaran, 36 Years,
R/o.No.16, III Floor, 13th Cross,
Swimming Pool Extension,
Malleshwaram, Bengaluru - 03.
[By Sri.N.K.J., Advocate]
¯¯¯¯¯
Date of Institution of the
: 14.11.2016
suit
Nature of suit : Money Suit
Date of commencement of
: 09.02.2017
evidence
Date on which the : 29.09.2020
/2/ O.S.No.7853/2016
judgment is pronounced
Years Months Days
Duration taken for disposal : 03 10 15
***
JUDGMENT
The plaintiff has filed the suit against the defendant for recovery of arrears of rent of Rs.2,88,429/- along with interest at the rate of 18% p.a.
2. The case of the plaintiff in brief is as under :
That, the plaintiff is the owner of property bearing No.16, 30th Cross, Swimming Pool Junction, Malleshwaram, Bengaluru - 03. The defendant was a tenant in respect of 2 nd floor of property bearing No.16. That, there was rental agreement between plaintiff and defendant. As per said rent agreement, defendant has to pay monthly rent of Rs.11,000/-. The rental agreement was for 11 months. It was mutually agreed between plaintiff and defendant that /3/ O.S.No.7853/2016 in the event of extension of lease beyond 11 months, the defendant had to pay enhanced rent at Rs.5% every year on the actual rent paid. At the time of insertion of tenancy, the defendant had paid an advance of Rs.1 lakh to the plaintiff. After the expiry of 11 months, the defendant continued to be in occupation of the schedule premises as a tenant holding over.
3. It is further pleaded that, though defendant had agreed to enhance the rent at Rs.5% p.a. on the actual rent paid, the defendant continued to pay Rs.12,000/- p.m. which is much less than the enhanced rent of Rs.14,041/- payable by the defendant every month with effect from January 2013 as agreed by her. The plaintiff had made several requests and demanded for payment of enhanced rent, but the defendant did not heed to the requests and demands of the plaintiff. The defendant had /4/ O.S.No.7853/2016 replied to a SMS sent by the plaintiff acknowledging that she is liable to pay rent at Rs.14,000/- p.m. from December 2013. The defendant was very irregular in payment of rent. Therefore, the plaintiff got issued a termination notice on 12.2.2013. On receipt of the said notice the defendant had issued a cheque of 24,000/- which had been accepted as damages. Due to the non-payment of rents, the plaintiff had filed O.S.No.2464/2013 against the defendant for the relief of ejectment in respect of suit schedule property. The said suit came to be decreed on 29.10.2015. Being aggrieved by the said Judgment and Decree, the present defendant preferred an appeal in RFA No.154/2016 on the file of Hon'ble High Court of Karnataka. The said RFA came to be disposed off on 17.2.2016. The Hon'ble High Court of Karnataka granted time to the defendant till 31.12.2017 to hand over the vacant possession of the suit schedule property to the plaintiff subject to complying with the /5/ O.S.No.7853/2016 condition that the defendant has to pay rent regularly and not to induct sub-tenant, etc.,
4. It is further pleaded that, while disposing off I.A.No.2 in O.S.No.2464/2013 the Court directed to the defendant to pay the rents from the month of February 2013 and further directed to pay rent/damages every month as and when it becomes due and payable together with monthly water charges until disposal of the suit. However, the defendant had failed and neglected to comply with the direction issued by the Court. That, on 10.3.2014 the defendant had handed over 2 cheques for Rs.26,659/- and 36,000/- and on 10.6.2014 another cheque of Rs.25,149 on 3.9.2014 a cheque of Rs.12,075, on 5.3.2015 a cheque of Rs.60,000/- had been handed over towards arrears of rent and same have been encashed by the plaintiff. The defendant has not paid the rent for the period of March 2015 to /6/ O.S.No.7853/2016 January 2016. The plaintiff had filed memo of calculation on 30.9.2015 in the said O.S.No.2464/2013. As per said calculation memo the defendant is in due of Rs.2,29,629/-. Though the defendant is in due of said amount has failed to pay the same. Therefore the plaintiff got issued legal notice on 4.7.2016. The said notice was duly served upon the defendant. In spite of receipt of the said legal notice the defendant has neither complied with the demands made thereon nor caused any reply. Hence, defendant is liable to pay Rs.2,88,429/- towards arrears of rent. Hence, he prayed for decreeing the suit.
5. After service of summons, defendant appeared through her counsel and filed her written statement. The defendant has denied the plaint averments. The defendant took a specific contention that she has paid the entire rent and also vacated the /7/ O.S.No.7853/2016 schedule premises in the year 2017 itself. The defendant admitted the rental agreement dated 7.12.2008 and also admitted the monthly rent of Rs.11,000/- The defendant denied the enhancement of rent at Rs.5% every year. The defendant specifically contended that the plaintiff has agreed to construct a room on the terrace area and accordingly the defendant paid an amount of Rs.30,000/-. Though the plaintiff received the said Rs.30,000/- but has not built a room in the terrace of the building. The defendant denied that she has agreed to pay rent at the rate of 14,000/- p.m. from December, 2013.
6. Defendant further contended that as per the directions issued by the Hon'ble High Court of Karnataka in RFA No.154/2016 she has paid the entire rent amount and also handed over the vacant possession of the suit schedule property. On delivery of possession of the suit schedule property the /8/ O.S.No.7853/2016 plaintiff returned the security deposit by deducting one month rent. Hence, there is no due of rent, even then the plaintiff has filed the present suit only with an intention to harass the defendant. Hence, she prayed for dismissal of the suit.
7. On the basis of the pleadings and documents produced by both the parties, my predecessor in Office has framed following issues :
(1) Whether the plaintiff proves that defendant has agreed to enhance the rent at 5% every year as alleged in para 4 of the plaint?
(2) Whether the defendant proves that enhancement of rent at 5% every year was based on the promise made by the plaintiff to construct a small room on the terrace and he failed to full fill the promise as contended ?
(3) Whether the plaintiff is entitled for the suit claim?
/9/ O.S.No.7853/2016 (4) What order or decree?
8. Plaintiff has examined himself as P.W.1 and the documents got marked as Exs.P.1 to P.8. The defendant examined herself as D.W.1 and father of the defendant has been examined as D.W.2 and got marked the documents Exs.D.1 and D.13.
9. Heard both sides.
10. My findings to the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the negative.
Issue No.3 : In the affirmative.
Issue No.4 : As per final order, for
the following:
REASONS
11. Issues No.1 to 2 :- These issues are
interlinked with each other. In order to avoid
repetition of facts and evidence, these issues are taken up together for discussion.
/ 10 / O.S.No.7853/2016
12. That, the plaintiff filed the present suit for recovery of rent of 2,88,429/- from the defendant. In this case both the parties have admitted that the plaintiff is the owner of the residential premises situated in the second floor of the property bearing No.16, 13th Cross, Swimming Pool Extension, Malleshwaram, Bengaluru - 03. The defendant was a tenant under plaintiff. That, there was a rental agreement dated 7.12.2008 came to be entered into between plaintiff and defendant. It is also admitted that initially monthly rent was fixed at Rs.11,000/-
and the rental period was 11 months and even after the expiry of rental period, the defendant continued to be in occupation of the property as a tenant holding over. Further it is also admitted fact that the present plaintiff filed O.S.No.2464/2013 against the defendant for ejectment. The said suit came to be decreed on 29.10.2015. Being aggrieved by the said Judgment and Decree the defendant preferred an / 11 / O.S.No.7853/2016 appeal in RFA No.154/2016 on the file of Hon'ble High Court of Karnataka. The said appeal came to be disposed off on 17.2.2016 and time was granted to the defendant till 31.12.2017 to hand over vacant possession of the suit premises to the plaintiff subject to payment of rent at the rate of 14,000/- p.m. As per the direction of the Hon'ble High Court of Karnataka the defendant paid the rent upto December 2017 and has vacated the suit premises.
13. The dispute is as regards to the payment of rent for the period of March 2015 to January 2016 and enhancement of rent at the rate of 5% p.a. In order to substantiate his claim, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.8. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 in his examination- in-chief deposed that the defendant is in due of Rs.2,88,429/- towards damages and the arrears of / 12 / O.S.No.7853/2016 rent for the month of March 2015 to January 2016. Ex.P.1 is the certified copy of the Judgment and Decree passed in O.S.No.2464/2013. Ex.P.2 is the Judgment passed in RFA No.154/2016 on the file of Hon'ble High Court of Karnataka. Ex.P.3 is the certified copy of the Memo of Calculation filed by the plaintiff in O.S.No.2464/2013. Ex.P.4 is the certified copy of the Order Sheet in O.S.No.2464/2013. Ex.P.5 is the copy of the notice dated 4.7.2016. Ex.P.6 is the postal receipt and Ex.P.7 postal acknowledgment. Ex.P.8 is the certified copy of the deposition of D.W.1 in O.S. No.2464/2013. The counsel for defendant cross-examined P.W.1 in length, but nothing worth has been elicited from the mouth of P.W.1 in order to disbelieve the version of plaintiff as regards to enhancement of rent at 5% p.a.
14. In order to substantiate her defence, the defendant herself examined as D.W.1 and father of / 13 / O.S.No.7853/2016 defendant has been examined as D.W.2 and got marked the documents Exs.D.1 to D13. D.W.1 and 2 deposed that they have paid entire rent and there is no due. D.W.1 and 2 further deposed that they have agreed to pay 5% enhanced rent on a condition that plaintiff has to construct a small room on terrace are and to hand over the same to the defendant. The plaintiff failed to construct the room on the terrace area and hence they are not liable to pay the enhanced rent. Though D.W.1 and 2 deposed regarding construction of small room on terrace area, but D.W.1 in her cross-examination deposed that " 2008 gÀ°è ¸ÀzÀj ªÀÄ£ÉUÉ gÀÆ.10,000-00 ¨ÁrUÉ ªÀÄvÀÄÛ gÀÆ.1000-00 dance institute UÉ PÉÆqÀÄwÛzÉÝãÀÄ.---------2008 r¸ÉA§gï£À°è £À£Àß ªÀÄvÀÄÛ ªÁ¢AiÀÄgÀ ªÀÄzÀåzÀ°è ¨ÁrUÉ PÀgÁgÀÄ¥ÀvÀæªÁVvÀÄÛ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¨ÁrUÉ PÀgÁgÀÄ¥ÀvÀæzÀ°è ªÀÄ£ÉUÉ gÀÆ.10,000-00 ¨ÁrUÉ ªÀÄvÀÄÛ gÀÆ.1000-00 dance institute UÉ PÉÄÁqÀĪÀ §UÉÎ £ÀªÀÄÆzÀÄ EgÀ°®è J£ÀÄߪÀÅzÀÄ ¤d. ------¨ÁrUÉ / 14 / O.S.No.7853/2016 PÀgÁgÀÄ¥ÀvÀæªÀ£ÀÄß ºÉÆgÀvÀÄ ¥Àqɹ dance institute £ÉqÀɸÀ®Ä PÀlÖqÀ PÀnÖPÉÆAqÀ¨ÉÃPÉAzÀÄ AiÀiÁªÀÅzÉà °TvÀ M¥ÀàAzÀ CVgÀ°®è." Hence, there is contradiction in the evidence of D.W.1 and written statement. On perusal of Ex.P.8 the deposition of D.W.1 in O.S.No.2464/2013 in which the present defendant deposed on oath that, "As per rental agreement she has agreed to pay enhanced rent at Rs.5% p.a." Hence, as per Section 58 of the Indian Evidence Act facts admitted need not be proved. The contention of the defendant is that she has agreed to pay the said enhanced rent only on the condition that if the plaintiff construct a small room in the terrace area, then only the enhanced rent is payable. But, in order to substantiate her defence there is no material on record. That, there is no document regarding precondition for construction of room for the purpose of running dance institution. Besides, D.W.1 herself admitted in her cross-examination at page No.9 that, / 15 / O.S.No.7853/2016 " ಬಬಡಗಗ ಕಬರಬರರ ಪತತವನರನ ಹಗಹರತರ ಪಡಸ dance institution ನಡಗಸಲರ ಕಟಟಡ ಕಟಟ ಕಗಹಡಬಗಬಕಗಕದರ ಯಬವವದಗಬ ಲಖತ ಒಪಪಕದ ಆಗರಲಲಲ." which clearly goes to show that there is no document as regards to the construction of a room on terrace area. By going through the evidence of P.W.1, D.W.1 and 2 and Ex.D.8, it clearly goes to show that the defendant has agreed to pay enhanced rent. Accordingly, I answer Issue No.1 in the affirmative and Issue No.2 in the negative.
15. Issue No.3 : - This issue has been framed with regard to the entitlement of relief. Though P.W.1 in his examination-in-chief deposed that defendant is in due of Rs.2,88429/-, but in his cross-examination at page No.11 clearly admitted that, the defendant has got issued notice as per Ex.D.1 in which she claimed for refund of security deposit of Rs.1 Lakh. P.W.1 further admitted that after deducting Rs.36,706/- he has returned an amount of Rs.63,294/- to the / 16 / O.S.No.7853/2016 defendant. On perusal of Ex.D.1 it reveals that the present defendant got issued Notice to the plaintiff for return of security deposit. On perusal of Ex.D.2 it reveals that defendant has agreed to return the said security deposit of Rs.1 Lakh after deducting the expenses like painting charges of Rs.14,000/- and rent at the rate of Rs.467/- per day. That, on perusal of Ex.D.4 - certified copy of the Order Sheet in Execution petition No.1067/2016 and Ex.D.5 - Memo filed by the counsel for DHr in E.P.No.1067/2016 on the file of CCH-41, it reveals that the counsel for decree holder has filed a Memo stating that he has received the rent for the month of February 2016 and accordingly the said Execution Petition has been closed. On perusal of the evidence of P.W.1 and Exs.D.1 to D.4 it clearly reveals that the defendant has paid rent upto February 2016.
16. On careful perusal of Ex.D.2 - Reply Notice issued by present plaintiff there is no recital regarding / 17 / O.S.No.7853/2016 the arrears of rent. If there is any due that should be mentioned in Ex.D.2 and same shall be deducted in security deposit. That, except the oral testimony of P.W.1 there is no material on record to show that the defendant is in due of Rs. 2,88,429/- towards arrears of rent and damages.
17. That, the plaintiff in his plaint para No.4 pleaded that defendant is liable to pay enhanced rent of Rs. 14,041/- p.m. from January 2013, but has paid Rs.12,000/- p.m. and hence she is liable to pay difference amount of Rs.2,041/- p.m. from January 2013 to February 2015 i.e., Rs.1,90,521/-. Though plaintiff pleaded for arrears of rent, but except the oral testimony of P.W.1 no documentary evidence has been produced. Besides, as per Article 52 of Limitation Act to claim arrears of rent, the limitation is 3 years where the arrears become due. In this case plaintiff claims arrears of rent from January 2013, whereas the present suit has been filed on / 18 / O.S.No.7853/2016 14.11.2016. The claim of the plaintiff is barred by limitation.
18. That, the plaintiff in his plaint para No.7 pleaded that, "the Court while disposing off the I.A.No.2 in O.S.No.2464/2013 directed the defendant to pay the rent every month as and when it becomes due and payable together with monthly water charges until disposal of the suit. But, the defendant had failed and neglected to comply the said direction." Admittedly as per Order dated 7.4.2013 passed in O.S.No.2464/2013 the Court directed the defendant to pay the rent every month as and when it becomes due. The present suit has been filed on 14.11.2016. There is no explanation why the plaintiff kept silent for all these years. If at all the defendant failed to comply the order passed in O.S.No.2464/2013 definitely the plaintiff will initiate action for recovery of said rent. The conduct of the / 19 / O.S.No.7853/2016 plaintiff clearly goes to show that he has received the entire rent from the defendant.
19. That, admittedly, the present plaintiff filed Memo as per Ex.P.3 in O.S.No.2464/2013 and in the said case the present plaintiff claimed the arrears of rent for the period of March 2015 to September 2016 and also enhanced rent at the rate of 5% p.a. After considering both oral and documentary evidence the Hon'ble 40th Additional City Civil and Sessions Judge, Bengaluru [CCH-41] while answering the issue Nos. 2 and 3 rejected the claim of the plaintiff as regards to the arrears of rent for the said period. Though the Court expressly rejected the claim of the plaintiff, but has not challenged the same by preferring an appeal. Without resorting the remedy as provided under law has filed the present suit claiming same relief i.e., recovery of rent. It is well settled law that, there should be an end to every litigation. No one ought to / 20 / O.S.No.7853/2016 be vexed twice in litigation. Hence, as per Section 11 of C.P.C. the claim of the plaintiff is barred by the doctrine of res-judicata. Hence, plaintiff has utterly failed to prove that the defendant is in due of Rs.2,88,429/-. Accordingly, I answer Issue No.3 in the negative.
20. Issue No.4:- For the forgoing reasons, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 29th day of September, 2020.) (KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
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/ 21 / O.S.No.7853/2016
ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : G.Manjunath
2. List of documents exhibited for plaintiff:
Ex.P.1 : C/c of Judgment and Decree passed in O.S.No.2464/2013 on the file of 40th Additional City Civil Judge. Ex.P.2 : C/c of Judgment and Decree in RFA No.154/2016.
Ex.P.3 : C/c of Memo of calculation filed by the plaintiff in O.S.No.2464/2013 Ex.P.4 : C/c of entire Order sheet in O.S.No. 2464/13 Ex.P.5 : Office copy of legal notice dated 4.7.16 Ex.P.6 : Postal receipt Ex.P.7 : Postal acknowledgment Ex.P.8 : C/c of deposition of D.W.1 in O.S.No.2464/2013.
3. List of witnesses examined for the defendants:
D.W.1 : P.Gayathri / 22 / O.S.No.7853/2016 D.W.2 : K.Parameshwaran
4. List of documents exhibited by the defendants: -
Ex.D.1 : Notice dated 11.12.2017 Ex.D.2 : Reply notice Ex.D.3 : C/c of E.P.No.1067/2016 Ex.D.4 : C/c of Order Sheet and Memo filed in E.P.No.1067/2016 Ex.D.6 : C/c of written arguments filed in Ex.P. No.1067/16 Ex.D.7 : C/c of deposition of D.W.2 in O.S. No.2464/13 Ex.D.8 : Copy of intimation issued to the plaintiff dated 21.12.2017 Ex.D.9 : Postal Receipt dated 22.12.2017. Ex.D.10 : C/c of deposition of D.W.2 in O.S.No.2464/13 Ex.D.11 & 12:C/c of Memo of calculation filed by plaintiff in O.S.No.2464/13 dated 3.9.2014 and 5.3.2015.
Ex.D.13 : C/c of memo of calculation filed by defendant in O.S.No.2464/13 dated 5.3.2015.
(KHADARSAB),
/ 23 / O.S.No.7853/2016
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.
***