Karnataka High Court
Shri N Y Narayan vs M/S Haveli Lifestyle Private Limited on 6 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 12
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.51106 OF 2019 (GM-CPC)
BETWEEN:
1. SHRI N Y NARAYAN,
SON OF LATE YELLA REDDY,
AGED 82 YEARS,
2. SHRI SAHANESH NARAYAN,
SON OF SHRI N Y NARAYAN,
AGED ABOUT 42 YEARS,
BOTH RESIDING AT NO.249,
9TH MAIN, 17TH CROSS, WILSON GARDEN,
BANGALORE-560 030.
...PETITIONERS
(BY SRI ARUM B M, ADVOCATE)
AND:
M/S HAVELI LIFESTYLE PRIVATE LIMITED,
A COMPANY REGISTERED UNDER THE PROVISIONS
OF THE COMPANIES ACT 156 ,
HAVING ITS OFFICE AT "THE HAVELI",
NO.4020/A, 1ST CROSS, 17TH MAIN,
HAL II STAGE, INDIRANAGAR,
BENGALURU -560038.
...RESPONDENT
(BY SRI K SHEELA ANISH, ADVOCATE ABSENT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
COMMON ORDER DTD.27.8.2019 PASSED BY THE XL ADDL CITY
CIVIL AND SESSIONS JUDGE (CCH NO.41) AT BENGALURU IN
O.S.NO.7149/2018 THEREBY REJECTING THE PETITIONERS
APPLICATION IN I.A.NO.1 AT ANNEXURE-A PRAYING FOR
DIRECTING THE RESPONDENT TO PAY THE ARREARS IN RENT
AND ALLOWING THE RESPONDENTS APPLICATION IN I.A.NO.III
FOR DIRECTING THE PETITIONER TO PRODUCE THE ORIGINAL
LEASE AGREEMENT AND CONSEQUENTLY ALLOW IA NO.1
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FILED BY THE PETITIONERS AND REJECT THE IA NO.III UNDER
ORDER 11 RULE 14 FILED BY THE RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY THROUGH PHYSICAL HEARING,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioners being the plaintiffs in a suit for ejectment & recovery of arrears of rent in O.S.No.7149/2018, are invoking the writ jurisdiction of this court for assailing the order dated 27.8.2019, a copy whereof is at Annexure-A, whereby the learned XL Addl. City Civil Judge, Bengaluru, has inter alia rejected applications in I.A.No.1 filed u/s 151 of CPC, 1908 for payment of arrears of rent and has favoured I.A.No.3 filed by respondent u/o XI Rule 14 of CPC for summoning the original lease agreement.
2. After service of notice, the respondent has entered appearance through its counsel who was absent yesterday when the matter was called, and remains absent even today when again the matter is called after a passover; however, absence of the said counsel will not deter the court from hearing the matter.
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3. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court is inclined to grant limited indulgence in the matter as under
and for the following reasons:
(a) Petitioners suit for ejectment & for recovery of rent was filed on 18.8.2018 and after notice, respondent-tenant entered appearance through its counsel in the court below on 21.12.2018; though several adjournments have been granted by learned Judge of the court below, the respondent-tenant has not chosen to file Written Statement as yet resisting the suit.
(b) Petitioners filed the subject application in I.A.No.1 u/s 151 of CPC on 28.9.2018; prior to the institution of suit, petitioners had issued a legal notice on 31.7.2018, a copy whereof is at Annexure-B demanding the arrears of rent at the agreed rate and terminating the tenancy; paras 2 & 3 of the said notice read as under::
"2. My clients have leased the Schedule Property in your favour. Presently, you are paying a monthly rent of Rs.2,58,746/- (Rupees Two lakh Fifty Eight Thousand Seven Hundred and Forty Six Only) apportioned between my clients in the ratio of 40 % & 60 % respectively. This is inclusive of Rs.43,124/- being 18 % GST and after deducting TDS of Rs.23,958/-. You have also deposited a sum of Rs.7,20,000/- (Rupees Seven Lakh Twenty Thousand 4 Only) as refundable interest free security deposit. The tenancy is a month to month tenancy commencing on the first day of every English calendar month and expiring on the last day of the said month.
3. That you are in arrears of Rent, GST and TDS and after reconciliation of accounts, you are due the following sums as per attached Annexure A. Name Rental Arrear TDS Arrears (Including ST/GST) (As per ITD 26AS) N.Y.Narayan Rs.17,17,086.48 Rs.2,01,846.80 Sahanesh N Rs.25,75,779.72 Rs.3,02,808.20
(c) The respondent-tenant in its reply dated 20.8.2018, a copy whereof is at Annexure-C, not only admitted the jural relationship but specifically undertook to make good the arrears of the rent and of paying the rents regularly accruing; relevant parts of the reply read as under:
"You are further aware that due to the heavy rains and seepage, the company has made the repairs and the damages caused to the business concern and slowly it is being recovered.
Now the company is recovery from its position. From first September 2018 onwards the company is in a position to pay the monthly rent regularly as per the rental norms. Here afterwards, we are paying the monthly rent regularly and the balance arrears of rent of one month i.e every month we will pay two months rents, one for the current month and another one is for arrears. Likewise we will 5 clear the both the arrears of rent and we will continue to pay the rent regularly.
This fact has been appraised and convinced by us to the first of you and inspite of this, you have got issued the Legal Notice. Hence we kindly request you not to precipitate the matter.
Once again we request you that from here afterwards we will not commit any default in payments of rent and we will pay the rent regularly. Hence your goodselves be pleased to withdraw the notice."
The above being the admitted position, it sounds strange that the learned Judge has chosen to reject petitioners' application stating at para 18 of the impugned order as under:
"...The plaintiffs have not produced any document particularly lease agreement to know what was the rent agreed between the plaintiffs and the defendants. Further, the plaintiffs have not placed any documentary evidence to consider what was exact arrears of rent due from the defendant. The defendant in reply though admits that he is in due of arrears of rent, it does not mean that defendant is in arrears of rent as claimed by the plaintiffs..."
(d) Added to the above, arguably the learned Judge of the court below u/o XII Rule 3A of the Code, could have 'of its own motion' called upon the respondent to admit the reply notice; even this exercise has not been done; this is yet another lacuna in the impugned order, more particularly 6 when the respondent has not filed the Written Statement despite granting time serially in the proceedings.
(e) Learned Judge of the court below fell in gross error of law in allowing the application in I.A.No.3 filed by the respondent-tenant u/o XI Rule 14 and thereby directing the petitioners to produce the lease agreement when petitioners had specifically stated that they would not bank upon it for substantiating their case; perhaps petitioners are more than justified in their stand because of the admitted position of jural relationship; ordinarily, it is for the parties to produce whatever evidentiary material they want to bank upon to prove their case; although there are several exceptions to this general rule, the argued case of the respondent in the court below did not fit into any of them; in any event, the court below ought to have deferred hearing of petitioners application till after they produced the lease agreement; dismissing their application despite directing them to produce the lease agreement for substantiating their claim stuns this court, to say the least.
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(f) The Apex Court in the case of RAMRAMESHWARI DEVI VS. NIRMALA DEVI, (2011) 8 SCC 249, at para 37 observed "It is a matter of common knowledge that lakhs of flats and houses are kept locked for years, particularly in big cities and metropolitan cities, because owners are not certain that even after expiry of lease of licence period, the house, flat or the apartment would be vacated or not. It takes decades for final determination of the controversy and wrong doers are never adequately punished. Pragmatic approach of the courts would partly solve the housing problem of this country." This court in more or less a matchable fact matrix in W.P.No.46851/2018 between M/s Janardhan Enterprises Vs. Sri.G. Kumar, decided on 25.10.2019, has granted relief to the litigant therein following the aforesaid observations of the Apex Court and that the challenge to the same in S.L.P.(C) No.30095/2019 has been negatived vide order dated 7.1.2020.
In the above circumstances, this Writ Petition succeeds; the impugned order to the extent of rejecting petitioners' application in I.A.No.1 and allowing respondents' application in I.A.No.3 is set at naught; petitioners subject application having been favoured, the respondent-tenant is directed to pay to the petitioners all the arrears of rent at the monthly rate of Rs.2,58,746/- that have accrued till date in four 8 equivalized monthly instalments; this is in addition to paying the rent that is accruing due on regular basis.
If the respondent-tenant fails to pay any of the four instalments aforesaid, its defence shall be struck off and that, petitioners suit would be decreed at once.
The respondent is liable to pay a cost of Rs.25,000/- to the petitioners collectively.
Sd/-
JUDGE cbc