Bangalore District Court
Sri.S.A.Padmanabhan vs Sri.A.Narasimhan on 12 December, 2017
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 12th Day of December, 2017
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 1583/2015
Plaintiff/s : Sri.S.A.Padmanabhan
S/o late K.R.Sadashivan
Since dead by his LRs.
Dr.P.Vasundara
D/o Late S.A.Padmanabhan
Aged about 61 years,
R/at No.3/557, 2nd Cross,
Samadhi Road,
Puttaparthy - 515 134
Ananthapur District
Andhra Pradesh.
Rep. by G.P.A.
Sri.K.Keshava Rao,
No.17/B/14, 2nd Cross,
Muni Reddy Layout,
Chikkallasandra,
Bengaluru - 47.
[By Sri. K.T.Vasudeva, Adv.]
-Vs-
Defendant/s : Sri.A.Narasimhan
S/o Late Ayyakannu Mudaliar,
Aged about 48 years,
R/at No.303 A, 32nd Cross,
Koramangala, Bengaluru
Also At :
No.13-3-46, Old Market Street,
Chittor, Andhra Pradesh - 517 001.
2 OS.No.1583/2015
Also At:
C/o Chi.Shaktivel Narasimhan
M.B.B.S., 4th Year Student,
Kempe Gowda Institute of Medical
Science, Banashankari,
Bengaluru.
[Exparte]
Date of institution of the suit 16.02.2015
Nature of the suit Money suit
Date of commencement of 11.11.2016
recording the evidence
Date on which the judgment 12.12.2017
was pronounced
Total duration Years Months Days
02 09 26
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
*********
JUDGMENT
This is a suit for recovery of mesne profits and other expenses.
2. The case of the plaintiff is that, he is the landlord and the defendant was the tenant under the plaintiff in respect of the property No.17/B/14, 2nd Cross, Munireddy Layout, Chikkallasandra, Bengaluru - 61. The defendant was put into the above property in the year 2002 as a tenant. However, lease agreement for 11 months to be expired in the 3 OS.No.1583/2015 year 2003 and since the defendant was irregular in paying the rent then the plaintiff has insisted upon him to vacate the schedule property in the year 2008 and also issued a legal notice during the year 2009 and terminated the tenancy of the defendant and thereafter filed a suit for ejectment in OS.No.1200/2010 and the said suit came to be transferred to the Court of Small Causes and renumbered as S.C.No.1650/2011 and the above matter was decreed and the court was pleased to decree for ejectment of the defendant and also for payment of arrears of rent of Rs.1,44,900/- and thus after the date of decree the defendant has neither paid the decreetal amount nor vacated the schedule property and hence the plaintiff got filed a Execution case No.1313/2012 and got lawful possession of the suit schedule property on 22.8.2014. The actual rent of the schedule property is about Rs.25,000/- per month and in fact the Small Causes court was pleased to decree the above suit on 22.8.2014. But the defendant did not pay a single rupee and also not vacated the schedule property till 22.8.2014 and thus the defendant has enjoyed the property unlawfully and he is duty bound to pay a sum of Rs.25,000/- per month as damages for the above period along with interest at the rate of 18% p.a. and since the schedule 4 OS.No.1583/2015 property was rendered unfit for habitation by the defendant and since there was total wear and tear to the building including sanitary disconnection, electrical disconnection and water pipe disconnections and so also damages to the doors and shutters then the defendant is also liable to pay the huge dues in respect of water bills amounting to Rs.9,700/- and electricity bills amounting to Rs.2,700/- and painting charges of Rs.1,65,000/-, sewage repairs Rs.95,000/-, electrical repairs Rs.85,000/-, Carpentry work repairs Rs.45,000/- and thus the defendant is totally liable to pay Rs.13,66,400/-.
3. On the other hand, in spite of service of summons the defendant did not appear and was placed exparte and the matter was posted for exparte evidence of the plaintiff.
4. In order to prove his case the plaintiff got examined his G.P.A. holder as PW.1 and got marked the documents at Ex.P1 to P20 and thereafter the matter was posted for arguments.
5. And I have heard the arguments of the plaintiff and perused the entire materials placed on record. 5 OS.No.1583/2015
6. And the points that would arise for my consideration are as follows:-
1) Whether the plaintiff is entitled to the reliefs as sought for?
2) What order or decree?
7. And my findings to the above points are as follows:-
Point No.1: In the Negative Point No.2: As per final order, for the following:
REASONS
8. Point No.1:- On perusal of the materials placed on record I found that it is an admitted fact that the plaintiff is the landlord and the defendant was the tenant under the plaintiff in respect of the suit schedule property and the defendant was put into the above property in the year 2002 as a tenant.
9. It is also an admitted fact that since the defendant was irregular in paying the rent then the plaintiff has insisted upon him to vacate the schedule property in the year 2008 and also issued a legal notice during the year 2009 and terminated the tenancy of the defendant and thereafter filed a suit for ejectment in OS.No.1200/2010 and the said suit came to be transferred to the Court of Small Causes and 6 OS.No.1583/2015 renumbered as S.C.No.1650/2011 and the above matter was decreed and the court was pleased to decree for ejectment of the defendant and also for payment of arrears of rent of Rs.1,44,900/-
10. Now it is the specific contention of the plaintiff that after the date of decree the defendant has neither paid the decreetal amount nor vacated the schedule property and hence the plaintiff got filed a Execution case No.1313/2012 and got lawful possession of the suit schedule property on 22.8.2014. The actual rent of the schedule property is about Rs.25,000/- per month and in fact the Small Causes court was pleased to decree the above suit on 22.8.2014. But the defendant did not pay a single rupee and also not vacated the schedule property till 22.8.2014 and thus the defendant has enjoyed the property unlawfully and he is duty bound to pay a sum of Rs.25,000/- per month as damages for the above period along with interest at the rate of 18% p.a. and since the schedule property was rendered unfit for habitation by the defendant and since there was total wear and tear to the building including sanitary disconnection, electrical disconnection and water pipe disconnections and so also damages to the doors and shutters then the defendant is also 7 OS.No.1583/2015 liable to pay the huge dues in respect of water bills amounting to Rs.9,700/- and electricity bills amounting to Rs.2,700/- and painting charges of Rs.1,65,000/-, sewage repairs Rs.95,000/-, electrical repairs Rs.85,000/-, Carpentry work repairs Rs.45,000/- and thus the defendant is totally liable to pay Rs.13,66,400/-.
11. In order to prove the above material facts except leading the self-interested oral version of his G.P.A. holder at PW.1, the plaintiff has neither examined any witnesses nor even placed any cogent material evidence to prove that the defendant has enjoyed the suit schedule property unlawfully and he is duty bound to pay a sum of Rs.25,000/- per month as damages along with interest at the rate of 18% p.a. till the date of his eviction.
12. Even though the plaintiff has got produced and marked some documents at Ex.P1 to P20, the same are also of no help to the case of the plaintiff as it no where shows that the schedule property was rendered unfit for habitation by the defendant and there was total wear and tear to the building including sanitary disconnection, electrical disconnection and water pipe disconnections and so also damages to the doors and shutters.
8 OS.No.1583/2015
13. And in fact the documentary evidence of Ex.P4 i.e., the order sheet copy of SC.No.1650/2011 and so also the judgment of above suit one produced by the plaintiff through list of documents dated 13.11.2017 clearly shows that the plaintiff has admittedly obtained an order of eviction of the defendant and so also the arrears of rent as below:
"ORDER The suit filed by the plaintiff is partly decreed with full court costs against the defendant. It is further ordered, decreed and directed to the defendant to quit, vacate and deliver the vacant possession of suit schedule premises to the plaintiff within 60 days from the date of this order. It is further directed to defendant to pay arrears of rent mount of Rs.1,44,900/- to the plaintiff. An enquiry for future rent by way of damages/mesne profit is ordered as per Order XX Rule XII of CPC. Draw decree accordingly."
14. And thus in terms of the above judgment the plaintiff has to get the vacant possession of the suit schedule property and also arrears of rent from the defendant by filing an execution petition.
15. But whereas documentary evidence of Ex.P18 to P20 only showed that the plaintiff has filed Execution Petition under Order 21 Rule 11 of CPC against the defendant in 9 OS.No.1583/2015 Ex.No.1313/2012 and got evicted the defendant from the suit schedule property.
16. And as regards the recovery of arrears of rent amount of Rs.1,44,900/- is concerned, the plaintiff at para- 22 of his plaint has clearly pleaded and admitted that he has recovered the same in the above said execution proceedings.
17. And as regards the relief of the damages/mesne profits is concerned the plaintiff has to file FDP proceedings as ordered under Order 20 Rule 12 of CPC and get the same.
18. And for better appreciation of the above fact the provision of Order 20 Rule 12 of CPC is reiterated as below:
"Order 20 Rule 12 - Decree for possession and mesne profits - (1) where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree -
a) for the possession of the property ;
b) for the rents which had accrued on the property during the period prior to the institution of the suit or directing an enquiry as to such rent ;
ba) for the mesne profits or directing an enquiry as to such mesne profits;
c) directing an enquiry as to rent or mesne profits from the institution of the suit until -
(2) where an enquiry is directed under clause-(b) or clause-(c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of suit enquiry.10 OS.No.1583/2015
19. And in fact at para-17 of the above judgment of SC.No.1650/2011 it has been clearly observed and held as below:
'The plaintiff has not produced a single document to show that the defendant has paid Rs.5,500/- rent amount or Rs.5,000/- as on 31.12.2007. In the absence of any proof, this court has taken Rs.4,025/- rent amount from 2008 for further consideration. The future rent claimed at Rs.5,500/- p.m. as claimed by plaintiff from the date of suit till its deposit is to be determined by way of enquiry ordered by this court as per Order 20 Rule 12 of CPC by way of damages/mesne profit. An enquiry has to be held to that effect. The plaintiff is entitled partly relief.'
20. And thus in view of the above judgment of S.C.No.1650/2011 the present suit one filed by the plaintiff for arrears of rent at the rate of Rs.25,000/- p.m. as damages/mesne profits from 01.01.2008 to 22.8.2014 is not at all maintainable in law and the same is rather hit by the principles of res-judicata as enumerated in Section 11 of CPC.
21. And it is interesting to note at this stage that the plaintiff has allegedly filed IA.No.5 under Order 26 Rule 9 of CPC for appointment of a Valuer as Court Commissioner to record the market value of the suit schedule property to 11 OS.No.1583/2015 calculate the mesne profits from 22.2.2012 to 22.8.2014 and this court has dismissed the above I.A. on 5.4.2017
22. And as regards the other contention of the plaintiff that the schedule property was rendered unfit for habitation by the defendant and there was total wear and tear to the building including sanitary disconnection, electrical disconnection and water pipe disconnections and so also damages to the doors and shutters and the defendant is also liable to pay the huge dues in respect of water bills amounting to Rs.9,700/- and electricity bills amounting to Rs.2,700/- and painting charges of Rs.1,65,000/-, sewage repairs Rs.95,000/-, electrical repairs Rs.85,000/-, Carpentry work repairs Rs.45,000/- and thus the defendant is totally liable to pay Rs.13,66,400/- is concerned, the same once again do not hold any water as except pleading the above facts the plaintiff has neither examined any witnesses nor even placed a single documentary evidence to prove the above material facts.
23. And lastly it is interesting to note at this final stage that originally the present suit of the plaintiff namely S.A.Padmanabhan is rather filed and represented by the alleged G.P.A. holder Sri.K.Keshavrao. But the alleged G.P.A. 12 OS.No.1583/2015 of Ex.P2 interestingly shows that the above said plaintiff/S.A. Padmanabhan has executed the above said G.P.A. of Ex.P2 only to file the execution petition arising out of the judgment and decree of S.C.No.1650/2011 and it nowhere permits the above said K.Keshavrao to file the present suit.
24. Even though the above said K.Keshav rao has allegedly filed a G.P.A. of the daughter of Late plaintiff namely Dr.P.Vasundara at Ex.P1, the same is of no help to the case of the plaintiff as in the dictum of 2013 AIR S.C.W. 3561 the Hon'ble Apex Court of India has clearly held that "The power of attorney holder cannot depose in place of principal and similarly he cannot depose for the principal in respect of a matter as regards which, only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined".
25. So in view of the above dictum and the discussion made above I am of the opinion that since the G.P.A. holder of the plaintiff cannot depose in place of the original plaintiff and since he has also failed to prove that the schedule property was rendered unfit for habitation by the defendant and there was total wear and tear to the building including sanitary disconnection, electrical disconnection and water 13 OS.No.1583/2015 pipe disconnections with cogent material documentary evidence and since present suit of the plaintiff with regard to the claiming of mesne profits/damages is rather hit by the principles of res-judicata then the plaintiff is not at all entitled to any reliefs as sought by him and accordingly I have answered this point in the negative.
26. Point No.2:- In view of the discussion made on point No.1 and further holding it in the negative, I proceed to pass the following order:-
ORDER The suit of the plaintiff is hereby dismissed.
No cost.
Draw decree accordingly.
(Dictated to the judgment writer on Computer, corrected and then pronounced by me in the open court, on this the 12th day of December, 2017).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Acharya Keshava Rao K. List of documents exhibited for plaintiff:
Ex.P1 G.P.A.
14 OS.No.1583/2015
Ex.P2 Certified copy of G.P.A.
Ex.P3 Certified copy of the tenancy agreement
Ex.P4 Certified copy of order sheet in
SC.No.1650/2011
Ex.P5 & 6 Certified copy 2 Memos filed in
Ex.1313/12
Ex.P7 Copy of notice
Ex.P8 Postal receipt
Ex.P9 & 10 2 Postal unserved postal covers
Ex.P9(a) & 2 Notices inside the covers
10(a)
Ex.P11 Certified copy of sale deed
Ex.P12 Encumbrance certificate
Ex.P13 Sale deed
Ex.P14 & 15 2 Encumbrance certificates
Ex.P16 Certified copy of sale deed dtd.3.2.2011
Ex.P17 Encumbrance certificate
Ex.P18 Certified copy of order sheet in
Ex.1313/2012
Ex.P19 Delivery Warrant
Ex.P20 Spot Mahazar
List of witnesses examined for defendant:
Nil List of documents exhibited for defendant:
Nil XVII Addl. City Civil & Sessions Judge, Bengaluru.
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