Bangalore District Court
Ganesh Vishwanathan vs Dr Laxmikanth on 15 January, 2025
KABC010329902023
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 15th day of January, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.8005/2023
Plaintiff: Mr.Ganesh Vishwanathan
s/o S. Vishwanathan
Aged about 45 years
R/at No.803, Sovereign Apartment
Central Avenue, Kalyaninagar
Pune-411 016.
(By Sri Nithin Bhargav, Adv.)
Vs.
Defendant: Dr. Laxmikanth
s/o Dr.Armugham
Aged about 51 years
r/at No.73, 11th Main
Indiranagar, Bengaluru-38.
(By Sri S. Armugham, Adv. )
Date of institution of the suit 08.12.2023
Nature of the suit For ejectment, arrears of
rent and mesne profits
Date of the commencement 03.08.2024
of recording of evidence
2 O.S.No.8005/2023
Date on which the judgment 15.01.2025
Pronounced
Total duration Years Months Days
01 01 07
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff against the defendant for ejectment of the defendant from the suit schedule property, recovery of arrears of rent of ₹3,76,200/- along with interest at the rate of 10% per annum and also to direct the defendant to pay the plaintiff a sum of ₹94,050/- per month or such other higher amount of monthly rent prevailing in the vicinity from the date of the suit until the delivery of the vacant possession of the suit schedule property.
2. The case of the plaintiff in brief is as hereunder:-
The plaintiff is the sole owner of the suit schedule 5 BHK residential independent premises situated at Indira Nagar, having been purchased the same from his vendors through a registered sale deed dated 15.02.2019. In the month of September 2022, the defendant approached the plaintiff to let out the suit schedule property for rent and therefore, it was let out by the plaintiff to the defendant through a rent agreement dated 29.09.2022 for a 3 O.S.No.8005/2023 period of 11 months from 01.10.2022 till 30.08.2023, subject to payment of monthly rent of ₹85,500/- along with interest free refundable security deposit of ₹6 lakhs payable by the defendant to the plaintiff. Though the defendant has agreed to the terms of the rent agreement, the defendant has failed to pay the rent for the month of October 2022 within the stipulated timeline and it was paid much later. The plaintiff has also received several complaints from the owners of the adjoining properties that the defendant and his family members were creating nuisance in the area. Further, the defendant has also made several alterations in the suit schedule property without the approval of the plaintiff and he has kept half a dozen of dogs which was not disclosed at the time of entering into a rent agreement. In the month of August 2023, the plaintiff had informed the defendant that the lease would be expiring on 30.08.2023 and requested the defendant to vacate the suit schedule property on or before 31.08.2023 and sent several email communications and WhatsApp Messages. Later the plaintiff had issued a formal notice dated 13.08.2023, notifying the defendant to vacate and handover the vacant of the suit schedule property to the plaintiff on 31.08.2023. However, the defendant has failed to respond to the notice. Thereafter on 17.08.2023, the plaintiff has also sent an e-mail to the defendant to vacate the premises. Later the defendant expressed his 4 O.S.No.8005/2023 inability to vacate the premises on 30.08.2023 and requested the plaintiff to allow the defendant and his family to stay in the property for a period of two months so as to make alternative arrangements, for which the plaintiff has agreed to the request of the defendant and accordingly on 29.08.2023, both the parties entered into a written understanding and agreed to extend the tenancy till 30.10.2023, after which the defendant was required to vacate the suit schedule property and it was agreed that for a period from 31.08.2023 till 30.10.2023, the defendant would pay monthly rent of ₹94,050/- and a written understanding was made on 29.08.2023. Despite having entered into the written understanding on 29.08.2023, the defendant has failed to pay the rent of ₹94,050/- to the plaintiff for the months of September and October 2023. Later, the defendant has completely stopped communicating with the plaintiff. The plaintiff was ready to refund the security deposit, but defendant has not deliver the possession.
The lease period has expired on 30.10.2023 by efflux of time and thereafter the possession of the defendant is unauthorised. The suit schedule property being situated in prime locality in Bengaluru would have fetched huge amount of rent to the plaintiff. Suppressing the facts, the defendant has instituted O.S.No.7016/2023 before this court to restrain the plaintiff from 5 O.S.No.8005/2023 forcibly taking possession without following due process of law wherein the court in the order dated 31.10.2023, granted an order of exparte temporary injunction against the plaintiff from unlawfully dispossessing the defendant from the suit schedule property. Therefore, the plaintiff has sought these reliefs.
3. Pursuant to the suit summons issued by this Court, the defendant entered appearance through his counsel and filed his written statement. In the written statement, the defendant has admitted that he is a monthly tenant under the plaintiff under the rent agreement dated 29.09.2022 and the agreed rate of rent as ₹85,500/- per month. He has also pleaded that the defendant was paying the agreed rent of ₹85,500/- regularly in all the 11 months, but the plaintiff has demanded rent of ₹1.5 lakhs per month for which he has approached the court by filing O.S.No.7016/2023 dated 31.10.2023 before CCH-27, wherein an order of temporary injunction is granted in his favour. He has contended that there is no valid notice under Section 107 of Transfer of Property Act. He has further pleaded that the plaintiff has extended the tenancy for the months of 30.08.2023 to 30.10.2023 and that being an agreement made without a registered instrument and therefore there is no valid termination of the tenancy. It is also pleaded that plaintiff has waived the quit notice of 15 days by extending the rent agreement for a year. He has also contended that the plaintiff 6 O.S.No.8005/2023 has demanded hundred percent increase in the rent and he has contended that there is no arrears of rent and the terms of the rent agreement dated 29.09.2022 is strictly complied by him and sought for dismissal of the suit.
4. During the pendency of the suit, the plaintiff has filed an application in I.A.No.1 under Section 151 CPC to direct the defendant to deposit the rent which came to be partly allowed and in the order dated 20.06.2024, the defendant was directed to deposit the admitted rent of ₹85,500/- per month from 01.11.2023 within 30 days and made it clear that if the defendant fails to deposit the rent within 30 days, his defence will be struck off. As against the same, the defendant preferred WP No.20881/2024 (GM-CPC) wherein the Hon'ble High Court in the order dated 05.08.2024 disposed the petition permitting the defendant to deposit the arrears of rent as directed by this Court on or before 05.09.2024 and observed that failing which this court may proceed in terms of the order passed by this court dated 20.06.2024. Inspite of the orders passed by the Hon'ble High Court, the defendant has not deposited the admitted rate of rent.
5. On the basis of the pleadings, this Court has framed the following issues:-
1) Whether the plaintiff proves that the lease and tenancy of the defendant over the suit schedule 7 O.S.No.8005/2023 property has expired on 30.10.2023 due to efflux of time?
2) Whether the defendant proves that tenancy is not terminated in accordance with law?
3) Whether the plaintiff proves that the defendant is liable to pay arrears of rent of Rs.3,76,200/-
along with interest @ 10% p.a. till the date of filing of the suit?
4) Whether the plaintiff further proves that the defendant is liable to pay a sum of Rs.94,050/- per month from the date of suit till the delivery of vacant possession of the suit schedule property?
5) What order or decree?
6. The plaintiff examined himself as PW1 and produced Ex.P1 to 10 documents on 03.08.2024. In the meantime, in the considered order dated 13.09.2024, this court has directed the defendant to deposit the rent on or before 19.09.2024. Even then the defendant has not deposited the rent and therefore, in the order dated 21.09.2024, his defence was struck off. Later, inspite of striking of the defence an opportunity was given to the defendant to cross-examine PW1 and accordingly, PW1 has tendered for cross-examination on 14.10.2024. But, the defendant and his counsel remained absent and therefore, the cross-examination of PW1 is taken as nil. Later on 28.10.2024, defendant filed I.A.No.1, seeking permission to cross-examine 8 O.S.No.8005/2023 PW1, which came to be allowed on 08.11.2024 and accordingly PW1 was present before the court on 15.11.2024. On 15.11.2024, the defendant sought time which is allowed and adjourned to 16.11.2024. On 16.11.2024, when PW1 was tendered for cross-examination, defendant has not appeared and cross-examined PW1 and therefore cross-examination of PW1 is taken as nil. Later the case was posted for the arguments as the defence of the defendant was struck off. Heard the arguments of the learned counsel appearing for the plaintiff. The defendant has not submitted arguments.
7. Findings of this Court on the above issues are- Issue No.1 : In the affirmative Issue No.2 : In the negative Issue No.3 : In the affirmative Issue No.4 : In the affirmative Issue No.5 : As per final order, for the following:
REASONS
8. Issues No.1 & 2:- The plaintiff has instituted this suit for the ejectment of the defendant from the suit schedule premises on the ground that the defendant being a tenant inducted into the suit schedule premises as per the rental agreement dated 29.09.2022 entered between the parties for a period of 11 months and the lease has expired on 30.10.2023 by 9 O.S.No.8005/2023 efflux of time. The defendant has admitted in his written statement that he is a monthly tenant under the plaintiff through the rent agreement dated 29.09.2022 entered between the parties for a period of 11 month for a rent of ₹85,500/- per month. But the defendant has denied the valid termination of the tenancy and contended that when there was an understanding for extension of tenancy till 30.10.2023, after the expiry of period of nine months from 29.09.2022, plaintiff has waived the quit notice issued by him.
9. The defendant has specifically admitted that the rent agreement was for a period of 11 months from 29.09.2022. In this regard, in addition to the admission given by the defendant in the written statement, in the suit filed by him in O.S.No.7016/2023 against the plaintiff for an order of permanent prohibitory injunction to restrain the plaintiff from forcible dispossession produced at Ex.D.8, he has pleaded as hereunder:-
"The plaintiff is the monthly tenant under the defendant/landlord at the rate of rent of ₹85,500/- (Rupees Eighty Five Thousand and Five Hundred Only) per month, pertaining to the residential house, herein after called the suit schedule property. The plaintiff and his family, his father and brother were inducted as tenants of the premises on 30.09.2022. The tenancy starts on the first of every English Calendar month and ends with the end of same month. The rent is payable on or before 5th of every English Calendar month. The plaintiff is allowed to have his pets dogs accommodated 10 O.S.No.8005/2023 in the premises. The rent agreement dated 29.09.2022 entered into between the plaintiff (tenant) and the defendant (landlord) is produced herewith as document No.1.
The rent agreement is for the term of eleven months, but is renewable for the subsequent years with the increase of 10% of rent per year".
The above admission of the defendant makes in unequivocal terms that the tenancy is terminable after the period of 11 months.
10. Needless to mention that after the efflux of time the tenancy automatically terminates even without notice under Section 106 of Transfer of Property Act 1882. Section 108(q) of Transfer of Property Act 1882 provides that on determination of the lease, the lessee is bound to put the lesser in possession of the property. Section 111(a) specifically makes it clear that a lease of immovable property is determined by efflux of time fixed in the lease agreement. Therefore, after the efflux of time, the landlord need not issue quit notice as required under Section 106 of T.P. Act. In this regard, our Hon'ble High Court in the case of Sri M.C. Mohammed v/s Smt.Gowramma and others 2007(1) KCCR 125 (DB) in para No.27 held as hereunder:-
"Section 111 prescribes mode of determination of tenancy. Once the lease
determines in any of the modes prescribed under Section 111, the contract comes to an end and 11 O.S.No.8005/2023 there is no question of giving a notice to quit to such lessee, who continued in possession after determination of lease i.e., after the contract comes to an end, there is no question of terminating the contract over and again by notice. Learned Counsel for the respondents-landlords also relied on a decision reported in AIR 1964 SC 461 (supra) wherein it is envisaged that the termination of tenancy by efflux of time, the question of statutory notice under Section 106 does not arise. In the similar circumstances, the Apex Court in a judgment reported in AIR 1988 SC 1845 has held that no notice is necessary. In the identical circumstances, in a decision reported in (1981) 2 SCC 199 (supra), it is reiterated that no notice is necessary in case of the expiry of the lease by efflux of time. From the principles enunciated by the Apex Court in the decisions referred to above and from the reading of the provisions of Section 111 of the T.P. Act, it is clear that on the expiry of the lease period by efflux of time, no further termination of the tenancy arises as no subsisting contract remains after the lease period is over".
11. Therefore, in the present case, when it is admitted that the lease period was only for 11 months after the expiry of the lease period quit notice was not necessary. Still the plaintiff had issued the quit notice as per Ex.P1 on 13.08.2023 calling upon the defendant to vacate the premises on 31 st August 2023. Ex.P2 12 O.S.No.8005/2023 & 3 are the postal receipts and Ex.P4 is the track consignment for the dispatch of the notice. The defendant has not disputed the service of Ex.P1-notice. Therefore, the tenancy is validly terminated by efflux of time as well as by issuing notice as per Ex.P1.
12. One of the contentions raised by the learned counsel appearing for the defendant is that as there was a written understanding for extension of the tenancy for further period of two months from 31.08.2023 to 31.10.2023 as claimed by the plaintiff the quit notice is waived by the plaintiff. The plaintiff has produced the written understanding at Ex.P7. Execution of Ex.P7 is not disputed by the parties. It shows that the defendant had requested for extension till 30.10.2023, for which the plaintiff had agreed. But, in the very same understanding, the defendant has agreed to vacate the premises on 30 th October 2023 and it was further agreed that the rate of rent during the period from 31 st August 2023 to 30th August 2024 will be ₹94,050/- per month. Therefore, even if the tenancy is extended till 30 th October 2023, the waiver of quit notice will have the effect of extending the tenancy only till 30th October 2023 and not thereafter. It is important to note that the defendant has not disputed execution of Ex.P7 wherein he has undertaken to voluntarily vacate the premises on 30th October 2023.
13 O.S.No.8005/2023
13. Section 113 of Transfer of Property Act 1882 prescribes the waiver of notice to quit. As per Section 113, a notice given under Section 111(h) is waived with the express or implied consent of the person to whom given, by any Act on the part of the person giving it showing an intention to treat the lease as subsisting. Therefore, "intention to treat the lease as subsisting" is sine-quo-non for the waiver of notice. As stated above, in the present case, parties have mutually agreed to extend the lease for only a period of two months from 30.08.2023 to 30.10.2023 as per Ex.P.7. The understanding is in writing and the defendant has undertaken to vacate the premises on 30.10.2023. There was no intention on the part of the plaintiff to extend the lease beyond 30.10.2023. Hence, in the present case, even after considering Ex.P.7 understanding the lease has determined as on 30.10.2023. As such, question of waiver of quit notice or continuation of the tenancy after 30.10.2023 does not arise.
14. As stated above, while executing Ex.P.7 understanding the defendant has agreed to vacate the premises on 30.10.2023. The plaintiff has allowed the defendant to stay in the suit schedule property on such representation made by the defendant. Therefore, the defendant is estopped from contending that the tenancy is not terminated in accordance with law and 14 O.S.No.8005/2023 thereby the plaintiff cannot seek his ejectment. It is well settled law that estoppel is an equitable principle of law and it will have binding effect and they are not mere technical rules of evidence. When the defendant has undertaken to vacate the premises voluntarily on 30.10.2023 and on that representation when the landlord had in good faith extended the tenancy till 30 th October 2023, section 114 of the Indian Evidence Act debars the defendant from contending that Ex.P7 understanding has resulted in waiver of quit notice. In view of these reasons, the lease has determined as on 30.10.2023 by efflux of time. Consequently, the plaintiff has able to show that the lease period is expired as on 30.10.2023 and the defendant was bound to vacate the premises and deliver the suit premises to the plaintiff on 30.10.2023. Hence, issue No.1 is answered in the affirmative and issue No.2 is answered in the negative.
15. Issues No.3 & 4:- The plaintiff has sought the relief to direct the defendant to pay arrears of rent of ₹3,76,200/- along with interest at the rate of 10% from the date of the filing of the suit contending that the defendant has not paid the rent from September 2023 to December 2023. In the written statement, the defendant has only taken up a contention that he has paid up-to- date rent for a period of 11 months. The defendant has not specifically pleaded that he has paid the rent even after August 15 O.S.No.8005/2023 2023. The plaintiff has specifically pleaded the arrears of rent from September 2023. Therefore, if the defendant has paid the rent, the onus is on the defendant to show that he has paid the rent. There is nothing on record to show that the defendant has paid the rent after September 2023. Hence, the defendant is liable to pay the rent/mesne profits after September 2023.
16. The defendant has admitted that the rate of rent agreed for a period of 11 months as Rs.85,500/- per month. The plaintiff has contended that the rate of rent payable after 30.08.2023 is Rs.94,050/- after enhancing 10% rent from the amount agreed in the rent agreement dated 29.09.2022. This is specifically admitted by the defendant in the plaint filed by him in O.S.No.7016/2023, wherein he has categorically stated that after the expiry of 11 months, the rent was renewable for subsequent years with the increase of 10% per year. Added to this, in Ex.P7 also, the defendant has agreed to pay the rent at the rate of Rs.94,050/- per month from 31.08.2023. The execution of Ex.P7 is also not disputed by the defendant. Therefore, the defendant was liable to pay rent at the rate of Rs.94,050/- from 01.09.2023. In view of this, the defendant is liable to pay the rent/mesne profits of ₹3,76,200/- from 01.09.2023 till 31.12.2023.
17. The court has observed that the tenancy is terminated after 31.10.2023. The plaintiff has not specifically claimed the 16 O.S.No.8005/2023 quantum of mesne profits. The defendant is liable ot pay the rent from 01.09.2023 to 30.10.2023 and thereafter the defendant is liable to pay the mesne profits. The plaintiff has restricted his claim of mesne profit to ₹94,050/-, which was agreed to be paid by the defendant or such other higher amount of monthly rent prevailing in the vicinity. The plaintiff has not produced materials to show that the prevailing rate of rent was more than Rs.94,050/- and therefore he is entitled for higher rate of mesne profits. Therefore, it would be appropriate to restrict the amount payable as mesne profits on par with that of agreed rent to be paid after 01.09.2023 at the rate of Rs.94,050/-. Consequently, issues No.3 & 4 are answered in the affirmative.
18. Issue No.5:- In view of the answer given to issue Nos.1 to 4 as above, the defendant is liable to quit, vacate the suit schedule property and deliver its vacant possession to the plaintiff. Further the defendant is liable to pay a sum of ₹3,76,200/- as towards rent/mesne profits from 01.09.2023 to 31.12.2023 along with the interest at the rate of 10% per annum. Thereafter from 01.01.2024, the defendant shall pay a sum of ₹94,050/- as mesne profits to the plaintiff until delivery of vacant possession of the suit schedule property.
19. Section 106 of Transfer of Property Act prescribes 15 days time to vacate the premises after the determination of the 17 O.S.No.8005/2023 lease. As per Section 108(q) of T.P. Act on determination of the lease, the lessee is bound to put the lesser in possession of the property. Therefore, the statute provides only 15 days time to a tenant to vacate the premises from the date of notice. In the present case, the defendant has not requested the court to enlarge time for vacating the premises. The defendant has not even specifically requested the court to give some more time for vacating the premises. In fact, the defendant has violated the order passed by this court and thereby disobeyed the direction to deposit the rent. Defendant has continued in illegal possession of the suit schedule property that too without paying the rent. Therefore, the defendant is not entitled for any equitable relief. In WP No.12161/2024, the Hon'ble High Court has directed the parties to co-operate with this court for expeditious disposal of the suit. The defendant has not even co-operated for the expeditious disposal of the suit and filed unmerited applications to drag the proceedings without depositing the rent. But, still, in the plaint filed by the defendant in OS No.7016/2023 produced by the plaintiff at Ex.P8, he had pleaded that he had requested the plaintiff to extend tenancy till April/May 2024, since his son was studying in Class-III at the Frank Anthony Public School, Cambridge layout, Bengaluru, contending that since it is the middle of the academic year, he cannot get alternative 18 O.S.No.8005/2023 accommodation. The Court is conscious of the fact that the time sought by the defendant was only till April/May 2024 and thereby the academic year of the last year was completed long back. But, he has continued in possession of the suit schedule property and in all probability, his minor child has been studying in the very same school. As such, if the defendant is directed to vacate the premises without giving time, it will affect the education of his minor child who appears to be studying in the 4 th standard. Taking note of only this fact, in the opinion of the court, it would be appropriate to direct the defendant to vacate the premises before 15.03.2025, subject to depositing the rent/the amount ordered to be paid to the plaintiff. On these observations, the following order is passed:-
ORDER The suit is decreed with cost.
The defendant is directed to quit and deliver the vacant possession of the suit schedule premises to the plaintiff on or before 15.03.2025.
Further, the defendant is directed to pay a sum of Rs.3,76,200/- towards the arrears of rent/mesne profits payable to the plaintiff for the period from 01.09.2023 to 31.12.2024 along with interest at the rate of 10% per annum from 01.01.2024 until its realisation.
Further, the defendant is directed to pay mesne profits of ₹94,050/- per month from 19 O.S.No.8005/2023 01.01.2024 till the delivery of vacant possession of the suit schedule premises to the plaintiff along with interest at the rate of 10% per annum.
Draw decree accordingly.
(Judgment prepared through Speech to Text App with the assistance of the Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 15th day of January, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Ganesh Vishwanathan List of documents exhibited for plaintiff:
Ex.P1 Copy of notice Ex.P2 & Postal receipts P3 Ex.P4 & Track consignments P5 Ex.P6 E-mail communication Ex.P7 Written understanding Ex.P8 Certified copy of the plaint in OS 7016/2022 Ex.P9 Certified copy of of the order sheet in OS 7016/2022 Ex.P10 Certificate U/s 65B of the Indian Evidence Act for Ex.P4 to 6
List of witnesses examined for the defendants:
Nil List of documents exhibited for the defendants:
Nil VIJAYA Digitally by VIJAYA signed KUMAR X Addl.
KUMAR RAI B City Civil & Sessions Judge, Date: 2025.01.17 Bangalore. 11:50:50 +0530 RAI B