Bangalore District Court
Smt.G.V.Sujatha vs Sri.A.Ramanath on 1 September, 2015
BEFORE I ADDL. JUDGE, COURT OF SMALL CAUSES,
BANGALORE. (SCCH-11)
DATED THIS 1st DAY OF SEPTEMBER, 2015
PRESENT: SRI. Ganapati Gurusidda Badami, B.Com.,LL.B (SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
SC.384/2013
PLAINTIFF: 1. Smt.G.V.Sujatha,
W/o.Late G.Venkataraju Gupta,
Aged about 56 years.
2. Smt.G.V.Krishna Veni,
D/o.Late G.Venkataraju Gupta,
and W/o. Sri.K.S.Amar,
Aged about 33 years,
Rep. by her GPA Holder,
Sri.G.V.Srikanth (Plf.no.3)
3. Sri.G.V.Srikanth,
S/o.Late G.Venkataraju Gupta,
Aged about 27 years.
All r/a Sri.Bhairaveshwara Nilaya,
No.10/29, 2nd Floor, 7th Main,
J.P.Nagar, Ist phase, Sarakki,
Bangalore - 560 078.
(By pleader Sri.K.R.Ashok Kumar......Adv.(for pl.1 to 3)
- V/S -
DEFENDANT: 1. Sri.A.Ramanath, Major,
S/o. Late A.Aswathnarayana Setty,
Flat No.C-2, Krishna Residency,
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IInd Floor, Patalamma Temple Street,
Opp: Pai Vista Convention Hall,
Basavanagudi, Bangalore - 560 004.
2. Sri.A.Prakash, Major,
S/o.Sri.A.Ranganath,
Both carrying on business at
M/s. Subhas Stores,
Krishna Building, Avenue Road,
Bangalore - 560 002.
(By pleader Sri.V.S.Narayana...........Adv. for Def.1 & 2)
*********
-:J U D G M E N T:-
Plaintiffs have filed this suit against the defendants
seeking the relief of eviction and future damages.
2) It is averred in the plaint that, the plaintiffs are
the full and absolute co-owners of entire property bearing
No.71 (Old No.495), Avenue Road, Bangalore measuring East-
West 98 feet and North-South 14 ½ feet comprising of ground
and two upper floors having 36 shops in all, which is more
fully described in the schedule of the suit. The plaintiffs have
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succeeded to the property on account of intestate death of G.
Venktaraju Gupta S/o. Late Gopala Krishna Setty on
7.3.2009 by virtue of class-I, legal heirs as a widow and
children under Hindu Succession Act, since, parents of G.
Venkataraju Gupta are pre-deceased him and each of the
plaintiffs are having 1/3rd right, title and interest in the suit
schedule property as co-owners. The defendants are the
tenants under the plaintiffs in respect of property for the
period of 18 years from 24.6.1985 on monthly rent of
Rs.2,250/- exclusive of electricity and other charges as per
the registered lease deed dated 24.6.1985 which is registered
under Doc. No.916/1985-86, Book-I, Vol.No.3203, page No.
141-158, in the office of Sub-Registrar, Gandhi Nagar,
Bangalore, executed by Sri. G. Venkataraju Gupta in favour
of the defendants jointly. The tenancy is monthly tenancy
commencing on 10th day of each English Calendar month
and ends on the last day of the same month and said lease is
expired on 02.08.2003 by efflux of time and thereafter, the
tenancy has been treated as month to month terminable by
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15 days notice. The purpose of long lease is to demolish the
existing building and put up a new building and surrender
the same on the expiry of the lease free from encumbrance.
But defendants are irregular in payment of rents and they
have not paid any rents from the inception of tenancy and
they have not shown sufficient cause for withholding the
same. At the time of inception of tenancy, the defendants
have agreed that, on the expiry of lease on 2.8.2003, the
defendants are required to deliver back the vacant possession
of the entire property together with shops, fittings
appurtenant thereto constructed thereon and they have no
right to continue in the premises and the same is vested in
favour of the plaintiffs without any liability and also further
agreed that, they will settle all amounts of the sub-tenants
and other occupants of the leased premises and repay all
advances and earnest money before the expiry period of the
lease. The defendants are most undesirable tenants and as
such, plaintiffs terminated the lease in favour the defendants,
by which the defendants are required to quit, vacate and
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surrender vacant possession of all shops in the market free
from liability and encumbrance. The occupation of the
defendants from 2.8.2003 is treated as unauthorized and they
are liable to pay damages for use and occupation at the rate
of Rs.1,66,666/- per month based upon the location and the
size of the shops constructed in the market which is situated
in the commercial hub center known for business in books,
stationary, jewellery and silk business situated at avenue
road, Bangalore till the date of delivery of possession of entire
property. The total number of shops constructed on the
schedule was 36 shops, 12 shops in ground floor, 12 shops in
the first floor and 12 shops in the second floor. The plaintiffs
had filed suit bearing OS No.15284/2004 for possession and
mesne profits against the sub-tenants of the premises
ignoring the main tenants and the said suit is dismissed on
the ground of want of privity contract vide judgment and
decree dated 24.102011. Plaintiffs preferred RFA
No.631/2012 against said judgment and decree before
Hon'ble High Court and at the admission stage, the appeal
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was dismissed on 13.03.2013 by holding that, the
proceedings initiated by the plaintiffs are wrong on account of
not arraying the original tenants as a party to the suit and
also observed that, it was caused on account of ill advice
given to the plaintiffs and given liberty to initiate fresh
proceedings. The plaintiffs have caused legal notice to the
defendants on 15.03.2013 by RPAD calling upon them to
quit, vacate and surrender the suit schedule property by
virtue of termination of lease. But the defendant No.1
deliberately avoided to receive the legal notice which has been
returned with a postal acknowledgement "No such person in
the Address". The plaintiff issued corrigendum which has
been duly received by the defendant No.1 and 2 by postal
acknowledgement. Sri. G. Venkataraju Gupta S/o Gopala
Krishna Shetty who appointed the defendant No.2 as a Power
of Attorney on 15.10.2003 ton file suit for ejectment and
claim damages against Sree Kalyan Buildings and to carry on
other deeds and things as noted therein. But the defendant
No2 took hasty attempts to secure relief of possession and
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damages and thereby, committed several blunders in
conducting the case preceded by issuance of termination
notice to said sub-tenants by ignoring to issue termination
notice to the defendants. The sub-lease given by defendants
in favour of M/s. Sree Kalyan Buildings is terminated
automatically by determination of lease on the expiry of the
agreed term of lease on 02.08.2003. The suit bearing OS
No.15284/2004 filed against sub-tenants by ignoring the
principal tenants resulted in dismissal of the suit on account
of want of privity of contract between the parties and same
was confirmed by Hon'ble High Court of Karnataka in RFA
No.631/2012 vide final order dated: 04.03.2013. The said
dismissal of the suit is solely on account of ill advice of the
advocate appointed by the defendants on the strength of
General Power of Attorney given by late. G. Venkataraju
Gupta. The 2nd defendant who acted as a GPA holder and
conducted proceedings before the said court is detrimental to
the interest of the plaintiffs which came to the knowledge of
the plaintiffs only on 24.10.2011. When they have taken file
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to other advocate and took the chance in approaching the
Hon'ble High Court in an appeal and ultimately, the said
appeal also dismissed confirming the judgment and decree
passed by trial court. Earlier termination notice dated:
10.03.2012 to the defendants and their sub-tenants also
advice of well-wishers of plaintiffs and knowing
consequences. The plaintiffs have declared that, they have
not taken delivery of any shops in the suit schedule property
from defendants after the execution and registration of lease
dated: 24.06.1985. The statement made in contra para No.4
of the said notice that, the plaintiffs have taken certain shops
is incorrect statement and the same is required to be
eschewed and also damages claim ought to have been claimed
at Rs.1,66,666/- for unauthorized use and occupation after
the expiry of term lease i.e., on 02.08.2003. The plaintiffs
have reserved their right to sue against the defendants for
recovery of past damages for un-authorized use and
occupation and taxes due to BBMP in respect of suit property
in a separate suit for which separate application filed under
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Order 2 Rule 3 of CPC. Therefore, the plaintiffs have prayed
for decreeing the suit.
3) The defendant No.2 has filed written statement and
denied the contents of plaint. It is contended that, the suit is
barred as according to the plaintiff, 36 tenements which are
occupied by 36 tenants and plaintiffs have to make 36
schedules and 36 individual suits and same has not been
done and plaintiffs are to be non-suited. The suit is bad in
law and there is no proper service of notice and non joinder of
proper and necessary parties i.e., tenants of sub-lessee i.e.,
M/s Kalyan Buildings, under whom the property is in
question occupied. The original M/s Subhash Stores which is
registered firm has not been served with notice nor arrayed as
a party. Therefore, suit is bad for non-joinder of necessary
party. This Court has no pecuniary jurisdiction to entertain
the suit and the annual rental value of 36 shops exceeds
pecuniary jurisdiction and plaintiffs have valued the suit on
the rents accrued as on 1985 and having regard to the size of
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the shops, if the annual rental value of shops is taken into
consideration, the jurisdiction of this Hon'ble Court is ousted.
Having regard to the size of the some of the shops and rents,
the Karnataka Rent Act is applicable and on this count also,
the suit is liable to be dismissed. M/s Kalyan Buildings and
its tenants, who are occupying 36 shops are proper and
necessary party and this suit is bad for non-joinder of
necessary party. There is no relationship of landlord and
tenant in between the plaintiff and defendants. The
defendants in terms of registered lease deed dated:
24.06.1985 executed by then lessor late. G. Venkataraju
Gupta in favour of the defendants specifically recites that,
defendants were entitled for grant of lease, sub-let, grant,
license or grant let, whole or portion of the leased property.
In terms of the same, the defendants subleased to M/s.
Kalyan Buildings under registered sub-lease deed dated:
28.08.1986. On the strength of sub-lease deed represented
by its partners i.e., Sri. P.M. Ashwatha Narayana Setty and
Sri. Parthasarathy constructed ground first and second floor
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comprising of 36 shops and let out the said shops. The
rentals were being given to the original lessor. So far as,
expiry of lease period is concerned, defendants submit that,
notice to the sub-tenants, who are the tenants under M/s.
Kalyan Buildings is sine-qua-non. The lease dated:
24.06.1985 came to be determined by efflux of time on
02.08.2003. The original lessor i.e., Sri. G. Venkataraju
Gupta and 2nd defendant have entered into the memorandum
of understanding whereby and whereunder, the original
lessor appoint, nominate and constitute as his properly
constituted attorney empowering various powers to collect
rents, appoint advocates and file suits for necessary
proceedings for eviction of the tenants. Incidentally, it is to
be stated that, in the Memorandum of understanding dated:
15.10.2003, it is categorically stated that, the defendants
have surrendered their lease hold rights to the original lessor.
In the teeth of surrender of lease hold rights specifically
recited in the Memorandum of understanding dated:
15.10.2003, which document admitted by the plaintiffs, the
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present suit against the defendants will not survive for
consideration. The plaintiffs who steps into shoes of the
original lessor cannot be heard to say that, the defendants are
lessees under them. The suit bearing OS No.15284/2004 on
the file of City Civil Court, CCH-20, Bangalore was filed by the
present plaintiffs represented by the 2nd defendant against
M/s Kalyan Building and sub-tenants which was came to be
dismissed on the ground that, there is no privity of contract
in terms of judgment and decree dated: 24.10.2011. The
plaintiffs filed regular appeal before Hon'ble High Court which
came to be dismissed. The plaintiffs without serving notice to
the sub-tenants, who are the tenants under M/s Kalyan
Buildings have filed this present suit, which is not
permissible and in this suit, the plaintiffs have reserved their
rights against the defendants under Order 2 Rule 2 of CPC
and sought for their eviction or claim damages against them.
The only course opened for the plaintiffs is to file suit against
the defendants, who are lessees and sub-lessees i.e., M/s
Kalyan Buildings and tenants who are occupying 36
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tenements. Admittedly notice has been issued to the M/s
Subhash Stores and suit is not permissible under law and
untenable. The defendant No.2 denied in para No.3 and 4 of
the plaint. It is contended that, as per the recitals of sale-
deed, rent payable was Rs.750/- per month, per each
completed floor with maximum rent of Rs.2,250/- for entire
building. It is specifically denied that, the tenancy was
monthly tenancy coming on the 10th day of each calendar
month and ends on the last day of same month in the teeth of
registered lease deed dated: 26.06.1985. It is true that, the
said lease has expired on 02.08.2003. The said lease was
surrendered to the original lessor, which has been admitted
by him in terms of MOU dated: 15.10.2003 and therefore,
there is no jural relationship between the plaintiffs and the
defendants. The defendants have created sub tenancy with
one M/s Kalyan Buildings on 28.08.1986, who constructed
suit schedule property and thereafter, the shops were let out
to the tenants of their choice. It is also contended that, the
defendants were running business in the suit schedule
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property for 42 years as on 1985 and the rent was given to
the original lessor which does not lie in the mouth of plaintiffs
to say that, the defendants were irregular in payment of rents
and silence in the matter without a demur speaks volumes
about dubious claim of the plaintiffs in this suit. The original
lessor collected the rents directly from sub-tenants and
plaintiffs cannot be heard to say that, the defendants are
irregular in payment of rents. It is admitted that, the lease
came to be expired on 2.8.2013 and lease hold rights had
been surrendered to the lessor and said fact had been
admitted by the original owner in memorandum of
undertaking dated 15.10.2013. The suit schedule premises is
in the possession of sub-tenants of M/s. Kalyan Buildings
and plaintiffs have to file suit against those sub-tenants along
with these defendants, which is not done by the plaintiffs.
The defendants are not liable to pay any damages much less
claimed in this suit as sub-tenancy has been created and
agency was also created in favour of the defendant No.2 to
prosecute the matter and collect rent etc., and on the
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strength of said agency, the defendant No.2 filed
O.S.No.15284/2004 and derived benefits from him. The
deceased G. Venkataraju Gupta was collecting the rents
through the defendants and from sub-tenants and such being
the facts, the defendants are not answerable for any damages.
Since, the plaintiffs are collecting the rents from assignees/
transferees who are the tenants under sub-lease of M/s.
Kalyan Buildings and liability of the defendants would cease
to exist. The defendants created sub-lease in favour of M/s.
Kalyan Buildings who in turn leased shop in question with
the consent and concurrence of original lesser and
defendants are not liable to pay any damages. It is admitted
that, the demised property consists of 36 shops. It is
contented that, no statutory notices has been served on the
registered lessee M/s. Subhas Stores and it has not been
arrayed as party to this proceeding and suit is bad for non-
joinder of necessary parties. It is admitted that, by virtue of
agency created on 15.10.2013, the defendant No.2 filed
ejectment suit and claimed damages against tenants of M/s.
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Kalyan Buildings and while filing the said suit, the plaintiffs
had not reserved their right to claim damages against the
present defendants and their eviction suit is hit under Order
2 Rule 2 of CPC and defendant No.2 cannot act as plaintiff as
well as defendant. The suit is bad for want of necessary
party. The acts of agents bind the principal and merely
because, they have lost the case, they cannot put claim on
the defendant No.2, after taking all advantages from him and
without paying a penny to him. The defendant No.2 reserves
his right to claim his damages against the plaintiffs in terms
of memorandum of undertaking dated 15.10.2013.The
plaintiffs have to blame themselves for having slept over the
matter without initiating proper and necessary action at the
right time. The plaintiffs tried to conceal factum of taking
delivery of some of the shops from the defendants and now,
they sought to resile from their stand stating that, they have
not taken possession of any shops in the suit schedule
property and it is their afterthought to resile from earlier
statements. Without admitting the factum of liability, it is
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submitted by the defendant No.2 that, the damages sought is
on higher side based on the parameters of age of the building,
size and other aspects of the matter. It is contended that,
except two shops which are small in size are facing road, all
other shops are situated remotely and they are not fetching so
much of rents and second floor is incomplete and shops are
vacant. There is no cause of action and court fee paid is
insufficient and there are 36 schedules in respect of 36
tenements, court fee is to be paid on the annual rental value
of each tenement. Therefore, it is prayed for dismissal of this
suit with costs.
4) Plaintiff No.3 himself examined as PW.1 and got
marked Ex.P.1 to 29 and closed the evidence. One A. Prakash
S/o. Late A. Ranganathan partner of M/s. Subhas Stores
himself examined DW.1 and examined R. Sudharshan S/o.
M.R. Gopala Shetty as DW.2 and got marked Ex.D.1 to 4 and
closed the evidence.
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5) Heard the arguments of the learned counsel for
plaintiffs and learned counsel for defendants and perused the
evidence on record.
6) The following points that arise for consideration:
1) Whether the plaintiffs prove that defendants
are tenants of suit schedule premises on
monthly tenancy commencing on 10th day of
each English calendar month ending on the
last day of same month and the lease expired
on 2.8.2003 by efflux of time and they have not
vacated the suit schedule premises inspite of
service of legal notice?
2) Whether the plaintiffs are entitled for reliefs as
prayed in the plaint?
3) What Order or Decree?
7) My findings to the above points are:
Point No.1: Affirmative;
Point No.2: Partly affirmative;
Point No.3: As per the final order, for the following:
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REASONS
8) POINT No.1: As per the evidence of PW.1, the
plaintiffs are absolute owners of entire property No.71 (old
No.495), Avenue road, Bangalore measuring East-west 98 feet
and North south 14½ feet with total measurement of 1421
square feet comprising of ground and two upper floors having
36 shops which are described in the schedule. He has also
stated that, the plaintiffs succeeded to the said property on
account of intestate death of G.Venkataraj Guptha on
7.3.2009 as class one legal heirs of deceased and parents of
deceased G.Venkataraj Guptha are predeceased their son and
each of the plaintiffs are having 1/3rd undivided share in the
said property. He has stated that, the defendants are tenants
under the plaintiffs in respect of suit schedule premises for the
period of 18 years on monthly rents of Rs.2,250/- excluding
electricity and other charges under rental registered lease
deeds dated 24.6.1985 and 24.6.1988 executed by
G.Venkataraj Gupta in favour of the defendants jointly. He
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has also stated that, as per the terms of lease deed, the
tenancy is in monthly tenancy commencing from 10th day of
each English calendar month and ends on last day of the same
month and tenancy commenced on 2.8.1985 and expired on
2.8.2003 by efflux of time and thereafter, the tenancy has been
treated as monthly tenancy terminable by 15 days notice. As
per his evidence, the defendants are irregular in payment of
rents and they have not paid any rents from the inception of
tenancy and they have not shown sufficient cause for
withholding the same and on security deposit of Rs.20,000/-
paid by them under the lease deed has been adjusted towards
arrears of rents, the liability of refund of security deposit does
not arise at all.
9) As per his evidence, at the time of inception of
tenancy, the defendants had agreed that, on the expiry of the
lease on 2.8.2013, they will vacate the possession of entire
property and they have no right to continue in the premises
and also, they will settle all amounts of sub-tenants and other
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occupants of the leased premises and repay all advances,
earnest money before expiry of lease period and the defendants
were requesting the time to deliver the vacant possession as it
was in the possession of sub-tenants and later on, they failed
to deliver the possession. He has stated that, the defendants
are liable to pay damages at the rate of Rs.1,66,666/- per
month for authorized use and occupation of suit schedule
premises after expiry of lease on 2.8.2013. He has also stated
in this evidence, that, the plaintiffs had filed suit bearing
O.S.No.15284/2004 against the sub-tenants of suit schedule
premises seeking the relief of possession and mesne profits
and it was dismissed for want of privity of contract vide
judgment and decree dated 24.10.2011 and against the said
judgment and decree, the plaintiffs preferred an appeal
bearing R.F.A.No.631/2012 before Hon'ble High Court which
has dismissed the appeal at the stage of admission holding
that, the plaintiffs have wrongly initiated the defendants as
party to the suit and liberty is given to the plaintiffs to proceed
afresh. He has stated that, the plaintiffs issued legal notice to
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the defendants on 15.3.2013 by registered post calling upon
them to vacate the suit schedule premises and also sent
corrigendum on 25.3.2013 which is served upon defendant
No.1 and 2 and they have not complied the terms of legal
notice.
10) Dw.1 has given evidence repeating the contents of
the written statement in his evidence.
11) The learned counsel for plaintiffs has submitted in
his arguments that, the earlier suit was filed through GPA
holder and there was no privity of contract and original suit
came to be dismissed as per the observation made in para
No.21 of the judgment. He has submitted that, in the earlier
suit, 9 issues were framed and said issues were dealt in issue
No.6 and Hon'ble Court held that, there is no privity of
contract between sub-tenants and landlord and issue No.6
answered against plaintiffs. He has submitted that, the
plaintiffs had filed R.F.A.No.631/2012 and it came to be
dismissed with liberty to proceed against defendants and on
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15.3.2013, notice was issued to defendants and cause of
action arose after service of notice. He has also argued that,
as per Ex.P.1, the agreement of lease was for the period of 18
years and there is clause 19 in the lease agreement which
speaks about expiry of lease period and on expiry of lease
period, the lessee shall deliver the entire property and there is
an obligation fixed on the defendants. He has also submitted
that, as per clause 20 of lease agreement the lessee shall settle
the amount of sub-tenants and clause 19 and 20 are reflected
in sub-lease Ex.P.2 at para No.20 of lease agreement which
has been reproduced in the sublease deed, that on the expiry
of stipulated period of lease period or renewed period, and on
the termination of the lease, the second party shall pay the
rent to the owner directly. He has also argued that, as per
clause 20 of Ex.P.2, the second party shall settle all amounts
of sub-tenants and other occupants of the schedule property.
He has also argued that, the original lease deed was for the
period of 18 years and sub-lease is for the period of 16½ years
and intention of the parties is clear from the recitals of the
SCCH - 11 24 SC No.384/2013
documents. As per the contention of the learned counsel for
plaintiffs, the registered lease deed requires surrender of lease
and other mode is that, he has to execute surrender of lease
which is nothing, but cancellation of original lease and tenant
has to execute surrender of lease deed and acknowledge
delivery of possession whic may be symbolic or physical
possession and in this case also, no surrender of lease is
executed.
12) He has also contended that, the defence of the
defendants taken at para No.B of written statement that, lease
was granted to Subhas Stores which is registered partnership
firm and suit is bad for non-joinder of necessary parties as
Subhash stores is not made party to this suit. He has also
argued that, the lease agreement shows that, lease was
granted to Sri. A. Ramanath. He has also referred the
contents of Ex.P.2 and submitted that, in the sub-lease deed,
it has not been mentioned about Subhash Stores and there are
36 tenements in the suit schedule property and there are 36
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tenants as per the contention of the defendants and
consolidated suit cannot be filed and said contention of
defendants is not acceptable.
13) The learned counsel for plaintiffs has also
contended that, though A.Prakash was General Power of
Attorney holder, he was acting as General Power of Attorney
holder and how Kalyan Buildings has delivered the possession
of the Ramanath and how Ramanath delivered the possession
to the plaintiffs. He has also vehemently argued that,
Rs.20,000/- was paid as security deposit to the landlord,
which was returned to the tenant and burden is upon the
person to prove the surrender of lease. He has also submitted
that, in para No.13 at 3rd line of the plaint, it is clearly pleaded
that, as the defendants are bound to surrender and hand over
the possession and admission of fact is best evidence than any
other evidence. He has also placed his reliance upon Ex.P.3
and contended that, in the 8th line of para No.15 of Ex.P.3,
there is an express surrender of lease between the parties and
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express surrender of lease is supported by the documents. He
has also relied upon the evidence of PW.1 in cross-examination
at 7th line in which, he has stated that, he does not know that,
on what date, Ramanath surrendered the lease hold rights and
on page No.9 of Ex.P.5, PW.1 has stated that, he has not taken
the deposited amount of Rs.1,00,000/- from the plaintiffs and
in the page No.108 of Ex.P.5 at 8th line, PW.1 has admitted
that, in OS No.15284/04 the relief was claimed by M/s
A.Ramanath and Prakash who have not returned the
documents about surrender of lease. He has also argued that,
the entire proceedings went up against sub-tenants and
evidence and pleadings on record cannot eschewed.
14) He has also submitted in his arguments that the
defendant No2 himself examined as DW.1 in this case, who
has stated that, there is no change in the status of the
building till today and advance made to the plaintiff is still
continued. He has also argued that, earlier to the termination
notice dated: 15.03.2013, there was notice dated: 10.03.2012.
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He has also drawn the attention of this Court to para No.15 of
plaint of suit in which it is pleaded that, earlier termination
notice dated: 10.03.2012 issued by the plaintiffs to the
defendants and to their sub-tenants on the advice of the well-
wishers of the plaintiff and without knowledge of consequences
of it. He has also referred in para No.14 of the written
statement and as per the contents of the written statement,
the defendants surrendered property on 15.03.2003 and if the
defendants delivered the possession, they would have
produced memorandum of undertaking and earlier deposition
shows that, the possession is not delivered and the
memorandum of undertaking shows that, it is partnership
deed and first party is shown as Sri. Venkataraju Gupta and
second party is Sri.A.Prakash. He has also submitted that,
memorandum of undertaking is not binding and it is not
enforceable in the course of law and it cannot relied upon
which is not produced in the earlier suit. He has also relied
upon the provision of law under Section 111 of Transfer of
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Property Act and submitted that, there is no surrender of lease
and surrender of lease depends upon conduct of the parties.
15) In the further arguments, he has submitted that,
the plaintiffs are legal heirs of deceased Venkataraju Gupta.
He has also argued that, in the original suit, plaintiffs issued
legal notice on 15.02.2013. He has also based his reliance
about observation made by Hon'ble High Court in RFA
No.631/2012 and submitted that, the Hon'ble High Court
given has given liberty to file separate suit and Sri. Prakash
was fully aware of the proceedings and M/s Subhash Stores is
a tenant not in individual capacity. He has also submitted
that, the judgment of earlier suit which is marked as Ex.P.6
may be looked into. He has also referred Section 108 of
Transfer of Property Act about duties and liabilities of the
tenant and rights and liabilities of Lessor and Lessee. He has
also referred Section 108(j) of said Act, on the aspect of effect
of sub-lease which has been defined under the said provision.
He has submitted that, as per Section 108(q), on lease, lessor
SCCH - 11 29 SC No.384/2013
is bound to put the lessee in possession. He has submitted
that, the tenant can surrender symbolic possession of property
and Section 111 of Transfer of Property Act deals with
determination of lease. He has also referred Section 116 of
said Act about effect of holding over tenancy. He has relied
upon decision of Hon'ble Supreme Court reported in AIR
2004, SC 4377 and submitted that, the sub-tenants are not
necessary parties to the suit for eviction and earlier suit came
to be dismissed on this point. He has also submitted that,
Sri.A.Prakash was not the defendant in the earlier suit and
agreement entered into on 15.10.2003 and lease expired in the
year 2003. He has submitted that, Ex.D.2 was prepared
before filing suit bearing O.S.No.15284/2004 and said
document was not produced in the said suit and said
document was in between existing tenants and landlord and
recitals of the said document show that, it is a partnership
deed and such agreement is not valid in law. He has submitted
that, as per Section 108(q) of Transfer of Property Act, the
lessee is bound to put the lessor in the possession. He has
SCCH - 11 30 SC No.384/2013
also relied upon Ex.D.2 and submitted that in the said
document, it is arranged between Sri.Venkataraju Gupta and
tenant by sharing 20:80% and page No.3, para No.6 of the said
document may be looked into and in the said document, it is
stated that, the landlord of scheduled property Sri.
Venkataraju Gupta died intestate on 07.03.2009 living behind
wife, daughter and son respectively as legal heirs to succeed
his estate only. He has submitted that, in clause-7 of the
Ex.D.2, it is shown that, ever since the inception of case,
Sri.A.Prakash is the Power of Attorney holder late.Venkataraju
Gupta. He has submitted that, in Clause-E of page No.4, it is
clearly mentioned that, the second party is entitled to make
such expenses in such legal necessities either personally or
out of the amounts and benefits that may be received in
respect of scheduled property and in the event of incurring
expenses from personal packet of second party, second party
is entitled to deduct such expenses out of the amount payable
to the first party or the first party shall reimburse the same.
He has submitted that, such contract is permissible under law
SCCH - 11 31 SC No.384/2013
and it is a partnership attempting the tour of litigation to make
profit, which is void ab-initio under Section 23 of Contract Act.
He has submitted that, the power of attorney should be for
honorary and not for consideration. He has also referred the
Section 23 of Indian Contract Act with regard to the lawful
consideration. He has submitted that, though plaintiff is party
to the agreement, he is forced to execute memorandum of
undertaking. He has also relied upon decision of Hon'ble
Supreme Court reported in AIR 2008 SC 6476 and contended
that, the illegality of contract need not be pleaded and Ex.D.2
is void contract. He has also referred Section 34 of Karnataka
Stamp Act and submitted that, the instruments which are not
duly stamped are inadmissible in evidence and Ex.D.2 which
is less stamped cannot be looked into. He has also relied upon
judgment of Hon'ble Supreme Court reported in AIR 2007 SC
637 and AIR 1969 SC 1238. He has submitted that, an
unregistered document cannot be received in evidence.
SCCH - 11 32 SC No.384/2013
16) He has also relied upon the cross-examination of
DW.1 at page No.60, dated: 19.07.2014. He has also referred
cross-examination portion of DW.1 dated: 16.07.2014 in
which, DW.1 admitted that, he executed lease in favour of
M/sKalyan buildings in his individual capacity.
17) The learned counsel for defendant on the other
hand contended that, the defendants are inducted as lessees
as per Ex.P.1 which was for the period of 18 years and case of
the plaintiffs is that, they have given power of attorney to the
defendant No.2 to conduct OS. No.15284/2004 which was
dismissed and RFA No.631/2012 was filed which also came to
be dismissed. He has submitted that, the defendants have
sub-leased property to the M/s Kalyan buildings and first
lease deed is in between defendants and deceased Venkataraju
Gupta and second lease deed dated: 28.08.1986 was executed
by the defendants in favour of Kalyan buildings and in terms
of lease deed entered into, the defendants can sublet or sub-
lease the property to the persons of their choice and also
SCCH - 11 33 SC No.384/2013
authorized to pull down old building and construct new
building. He has relied upon Ex.P.1 at page No.2 at Serial No.6
and submitted that, the lessees are entitled to pull down the
building and construct new building to suit their needs and
Clause-7 of Ex.P.1 permits lessee to demolish the existing
structure and after obtaining necessary approval plan and
licence from City Corporation, Bangalore to construct new
building. He has submitted that, as per Ex.P.2, Ramanath and
Prakash executed sublease in favour of M/s Kalyan buildings
represented by Sri. P.M. Ashwath Narayana Shetty and after
construction of 36 shops by the sub-lessees, they inducted
tenants who are occupying 36 shops and without notice to the
sub-tenants, suit is not maintainable. He has also argued that,
in order to acquire the possession, notice is to be served upon
sub-tenants. He has also contended that, OS No.15284/2004
was filed before Hon'ble City Civil Judge, Bangalore by Sri.
Venkataraju Gupta in which 11 shop keepers were made as
party to the suit and defendant No.2 of this suit was P.A
holder of Venkataraju Gupta in that suit. He has also relied
SCCH - 11 34 SC No.384/2013
upon Ex.P.3 at page No.71 in which, schedule of the property
is described and submitted that, the property No.71 measures
east-west 11 feet and north-south 12 feet and many of the
shops measures less than 14 square meters and schedule-E
may be looked into and said property measures east-west 11
feet and north-south 12 feet and this court has no jurisdiction
and Karnataka Rent Act is applicable. He has also referred
Schedule-G of said document and submitted that, the said
property measures east-west 8 feet and north-south 12 feet
which is less than 14 square meters and the shop No.1 to 6 in
schedule-C are measuring north-south 4 feet, east-west 24 feet
and the schedule-D property measures east-west 16 feet and
north-south 12 feet. He has also relied upon cross-
examination portion of PW.1 and submitted that, PW.1
admitted in his cross-examination that, he issued single legal
notice to all the tenants in the shop premises and defendants
and each shop measures 100 square feet. He has also
submitted that, Ex.P.1 at first page may be looked into in
which it is shown the name as A. Prakash S/o A. Ranganath,
SCCH - 11 35 SC No.384/2013
aged about 41 years and grand-son of Sri. late A.
Ashwathnarayana Shetty and partner of Subhash Stores.
18) He has also relied upon the dissolution of
partnership deed which is marked as Ex.D.1 in which, it is
shown that, A.Ramanath and A. Prakash are continuing
partners and Sri. A.R. Ashwathnarayana Shetty,
A.Ranganathan and A. Suryanarayana Gupta are outgoing
partners and partnership is to be represented by partners. He
has submitted that, M/s Subhash Stores is a partnership firm
and there is no notice to the Subhash Stores and PW.1 has
admitted in his cross-examination that, he has not issued
notice to Subhash Stores. He has submitted that, in the cross-
examination of PW.1, he has admitted that, he has not issued
legal notice prior to filing this suit. He has also relied upon
judgment in OS No.15284/2004 at page No.26, in which
Hon'ble Civil Court relied upon decision reported in AIR 2002
SC 797, in which it is held that, the transferees would be
proper parties and without presence of the sub-lessees, the
SCCH - 11 36 SC No.384/2013
tenancy cannot be determined and the sub-tenants are to be
heard before passing any order against them. He has also
raised question regarding the ownership and submitted that,
there is dual ownership and Sri. Venkataru Gupta is owner to
the land and Kalyan buildings is also the owner of the building
and the sub-tenants should be heard before passing any order.
He has submitted that, the very same advocate who filed this
suit had filed regular first appeal before Hon'ble High Court
and if the value of the subject matter at Rs.125/- per square
feet is taken into consideration, this court has no jurisdiction
and court fee is to be paid on annual rent as per Section 41 of
Karnataka Court Fees and Suits Valuations Act. He has
submitted that, as per Section 41(2) of Karnataka Court Fees
and Suits Valuations Act, the rent of Rs.2,250/- is cannot be
taken into consideration for bringing the suit within the
purview of this Court and the suit is valued on the basis of
rent existing in the year 1985. He has also relied upon the
cross-examination portion of PW.1 at page No.14 and
submitted that, the said witness admitted in the cross-
SCCH - 11 37 SC No.384/2013
examination that, the first floor shop is fetching 75% rent than
ground floor shop and second floor shop fetching 50% of rent
of first floor and he has stated in his chief affidavit about
monthly rent of Rs.2,250/- which was as on 24.06.1985.
19) He has submitted that, the pecuniary jurisdiction
of this Court is Rs.1,00,000/- and PW.1 has admitted in his
cross-examination that, the value of the suit property for each
square feet is Rs.120-125 and this court has no jurisdiction to
try the suit and earlier an application was filed which came to
be dismissed by this Court. He has also submitted that, 36
shops are not described in this schedule and Sri. Venkataraju
Gupta admitted in the Memorandum of undertaking that,
there is no landlord and tenant relationship. He has also
relied upon Ex.D.2 and submitted that, the lease commenced
on 02.08.1985 for 18 years and it was determined on
02.08.2003 by efflux of time and there is no relationship of
landlord and tenant relationship between Sri.A. Ramanath and
Prakash and first party and it ceased with effect from
SCCH - 11 38 SC No.384/2013
02.08.2003 and there is no landlord and tenant relationship
and without such relationship, suit will not survive.
20) He has relied upon Ex.D.3 at Clause-5 and submitted
that, there is surrender of lease and in Ex.P.3 which is the
certified copy of plaint, it is clearly stated at page No.63 at
para No.11 that, there is no renewal of lease either between
plaintiffs and Sri.A.Ramanath or between defendant No.1. He
has also submitted that, surrender of lease admitted by the
plaintiff and original lessor and in the Ex.D.3, it is admitted
that there is no landlord and tenant relationship. He has also
submitted that, on 19.04.2009, the present plaintiffs executed
power of attorney in favour of the defendant No.2 and original
lessor executed power of attorney and surrender of lease and
now, the plaintiffs have turned out and stated that, there is
jural relationship and plaintiffs are relying upon the ill-health
of original lessor. He has also referred the Ex.D.2 which is the
memorandum of understanding executed between Sri. G.
Venkataraju Gupta and A.Prakash and in the last page of
SCCH - 11 39 SC No.384/2013
Ex.D.2, the consenting witnesses are plaintiff No.1 and 3, who
are Smt. G.V. Sujatha and Sri. Srikanth G.V and if they have
taken the signature of Venkataraju Gupta, how the plaintiffs
have consented to the documents and they are aware of all
facts. He has also referred Ex.P.5, which is power of attorney
of PW.3 in this case and in the cross-examination of PW.1, he
has stated that, on 15.10.2003, Sri. Venkataraju Gupta was
healthy and he was able to speak and read and it is nowhere
suggested that, he was not in a position to execute the
documents and wife of Sri. Venkataraju Gupta is witness to
the said document. He has also submitted that, the DW.1 has
denied about creation of memorandum of understanding and
general power of attorney and if question regarding purchase
of stamp paper is put to the witness after the lapse of 11 years,
it cannot be in the memory of witness. He has submitted that,
in the cross-examination of PW.1 at page No.17, who has
stated that, the GPA was executed by the wife of Sri.
Venkataraju Gupta and said fact was told to her sons. He has
submitted that, in the cross-examination of DW.1, he has
SCCH - 11 40 SC No.384/2013
clearly stated that, Smt. Sujatha was having knowledge
regarding building transactions and Srikanth born in the year
1985 and in the year 2003, the documents were executed and
at that time, Sri. Srikanth was aged more than 19 years and
he was having knowledge and Kalyan building was giving rent
to the Venkataraju Gupta. He has relied upon para No.14 of
cross-examination of DW.1, who has stated that, the tenants
have deposited 9 months rent in the court and in the cross-
examination of DW.1 at page No.17, he has clearly stated that,
the Kalyan buildings shown to him about payment of rent to
Venkataraju Gupta through demand drafts for 2-3 times. He
has also referred cross-examination of DW1 at page No.18 and
submitted that, DW1 has stated that, he has leased the
property. He has also argued that, PW1 has admitted in the
cross-examination that, each shop measures 10x10 feet and
monthly rent is Rs.1000 to 1200 per month and ground floor
rent will be Rs.20,000 to 25,000/- per month and suit is to be
valued on amount of rent of Rs.2,250 and plaintiffs have
calculated the annual rent of Rs.27,000/- under section
SCCH - 11 41 SC No.384/2013
41(1)(c) of Karnataka Court Fees and Suits Valuation Act and
filed this suit and court fee shall be paid on the rent payable
for the year next before date of presenting the plaint and in
this case, the rent is calculated for the year 1985 and as per
admission of the PW1, this court has no jurisdiction to try and
entertain this suit. He has also referred clause (b)(1) of Ex.P1
at page No6 and submitted that, maximum rent is Rs.750 and
if rent of Rs.2,250 is taken into consideration on the basis of
annul rent, this court has no jurisdiction and Rs.27,000/- is
calculated as annual rent and plaintiffs are aware of existing
rents and they would have valued the suit properly and as per
Ex.P20, at serial No.9, the value of property has been assessed
at Rs.2,96,100/- at serial No.13 and total tax is Rs.99,194 and
if it is taken into consideration, this court has no jurisdiction
to try this matter and damages claimed by the plaintiffs at
page No.15 of plaint may be looked into and damages of
Rs.1,00,000/- per month and plaintiffs ought to have claimed
at Rs.1,66,666/- and as per the plaintiffs, DW.2 has stated
that, he is paying rent of Rs.3,250/- to the Kalyan building for
SCCH - 11 42 SC No.384/2013
two shops and then, only HRC court has got jurisdiction to try
this matter.
21) He has also contended that, the plaintiffs have
filed two suits and one is before this court seeking the relief of
eviction and another suit is for damages of Rs.75,00,000/-
before Hon'ble CCH-15 and they have split up cause of action
and on this count, this suit is not maintainable. He has also
referred the provision of Order 3 Rule 2 of CPC on the point of
cause of action and submitted that, the plaintiffs had filed an
application under Order 3 Rule 2 of CPC which came to be
dismissed and against said order, the plaintiffs have not
preferred any revision or appeal and said order has remained
unchallenged. He has also relied the cross-examination of
DW.1 at page No.1 in which, he has stated that, the suit
property has been sub-leased to the Kalyan buildings and for
that reasons, he is not liable to pay the damages of
Rs.75,00,000/- claimed by him in OS No.2936/2013. He has
also referred Clause-16 of Ex.P.1 about payment of tax by
SCCH - 11 43 SC No.384/2013
lessor and in the said document, it is clearly mentioned that,
during the subsistence of lease, lessees shall bear charges for
water supply and electricity supply, taxes and charges like
corporation taxes, urban land taxes, incidental to the
ownership which shall be borne by lessor. He has also relied
upon para No.5 of plaint and submitted that, in the plaint, it is
averred that, rent is not paid since from the date of inception
and Clause-9 of Ex.P.1 clearly shows that, if the rents payable
by the lessee shall remains in arrears for the period of six
months, it shall be competent for the lessor at his option to
terminate tenancy notwithstanding the period mentioned and
re-enter the demised premises.
22) He has also referred page No.17 of cross-
examination of DW.1 in which, he has stated that, the Kalyan
buildings shown the demand drafts for 2-3 times about
payment of rent to the Venkataraju Guptha and this
admission may be looked into and specific class of agreement
which is marked as Ex.P.1 at page No.10 at para No.9 may be
SCCH - 11 44 SC No.384/2013
looked into and as per the said clause, if the rent payable
remains due for the period of six months, the lessee is liable to
evicted. He has submitted that, no body will keep quite for
non-payment of rents since from the year 1955 even though
rent was Rs.250/- which was highest amount at that point of
time. He has also relied upon Ex.P.20 which is the khatha
certificate and as per the said document, the tax payable is
Rs.1,00,000/- and if the said amount is taken into
consideration, the annual rent will be more than
Rs.10,00,000/- and it will seize the jurisdiction of this court.
23) He has also relied upon cross-examination of PW-1
at page No.9 who has stated that, he knows the tenancy
transaction taken place in the year 1995 and there are 36
tenements and PW.1 was born in the year 1985 and he is
aware of 36 shops at the time of filing the suit and as per the
evidence of PW.1, the tenancy started in the year 1985 and it
ended in the year 2003 and he does not know the proceedings
between the plaintiffs and defendants and he is hearsay
SCCH - 11 45 SC No.384/2013
witness who has no personal knowledge. He has submitted
that, PW.1 has stated in his cross-examination at page No.11
that, the tenancy agreement ends after the 18 years and there
is no monthly tenancy. He has also submitted that, there is
specific clause in the lease agreement to give shop measuring
10x10 feet.
24) He has also submitted that, the first notice issued
to the defendant and sub-tenants on 10.03.2012 and there
are some categorical admissions in the legal notice and in the
para No.5 of legal notice, it is alleged that, shop No.21 to 36
are in the possession of the plaintiffs and when they are in
the possession, how can they seek recovery of possession
from the defendants and there is no description in the
schedule along with legal notice. He has also raised his
contention regarding measurement of schedule and
submitted that, if the measurement of the schedule is taken
into consideration, it will be 8x11 and 8x11 feet and this
court has no jurisdiction and schedule-C property measures
SCCH - 11 46 SC No.384/2013
east-west 8 feet and north south 11 feet which is less than 14
square meter and this court has no jurisdiction to try the suit
and once legal notice issued, it cannot be withdrawan unless,
it is consented by both parties. On this aspect, he has
submitted that, the decision relied upon by the plaintiffs
reported in AIR 1968 SC 471, it is held that, once notice is
issued, it cannot be withdrawn without the consent of other
party and there is no consent of the tenants to waive the legal
notice.
25) He has also referred page No.22 of cross-
examination of DW.1 and submitted that, in the cross-
examination of DW.1, he has stated that, M/s Kalyan
buildings has paid the taxes in respect of the suit premises
and the payment of tax of Rs.1,00,000/- will not come within
his limits and he has admitted in his cross-examination that,
he and Venkataraju Gupta issued legal notice to the sub-
tenants of Kalyan buildings and said document is marked as
Ex.P.27. He has submitted that, the original lease was given
SCCH - 11 47 SC No.384/2013
to the defendant No.2 and after the demise of Venkataraju
Gupta, the plaintiffs have given power of attorney to the
defendant No2 and quit notice issued by the defendant No.2
and if power of attorney cannot be impleaded or arrayed as
defendants and he cannot claim dual role as agent of the
plaintiffs and defendant was conducting the case on behalf of
the plaintiffs of this case and he cannot act in dual capacity
as plaintiff and defendant.
26) He has also argued that, DW.2 has stated that, some
amount has been deposited in the Mayo Hall Court and
defendants are not liable to keep account and original lessor
has already taken possession of the shops and in the year
2003, memorandum of undertaking and surrender lease was
executed between the parties and in the power of attorney,
which is marked as Ex.P.4, it is admitted by the plaintiffs
that, one Krishna Veni executed power of attorney to the
defendants. He has also relied upon the cross-examination of
DW.1 at page No.26 and submitted that, he has produced the
SCCH - 11 48 SC No.384/2013
documents about surrender of lease before this court and in
Ex.P.3 at para No.7, it is averred that, the lease deed dated:
24.06.1985 entered into between the plaintiffs and Sri. V.
Ramanath and A. Prakash which commenced from
02.08.1985 for a period of 18 years also determined by efflux
of time on 02.08.2003 and defendant No.2 to 11 are well
aware of all these facts.
27) He has also argued that, the contents of Ex.P.8
may be looked into and plaintiffs have claimed damages of
Rs.50,000/- per month on the basis of the rent only and notice
issued on 15.03.2013 and corrigendum sent on 25.03.2013
and Rs.20,00,000/- per year which is prevailing rent of rate in
the area on square feet and if this amount is taken into
consideration, this court loses the jurisdiction and claim for
rent is to be made within three years and the suit is filed on
05.04.2013 and as per the mandate of Section 106 of Transfer
of Property Act, 15 days notice is to be given and if
corrigendum is taken into consideration, this suit is premature
SCCH - 11 49 SC No.384/2013
one which has been filed within 15 days of the notice and
notice itself is bad and suit is liable to be dismissed.
28) He has also relied upon page No.19 and 20 of cross-
examination of DW.1 in which, he has stated that, he does not
remember that, whether the payment of advance amount of
Rs.1,00,000/- has been shown in the balance sheet of M/s
Subhash Stores and in the cross-examination of DW.1, he has
stated that, at the time of conducting OS No.15284/2004, he
taken power of attorney from legal heirs of deceased
Venkataraju Gupta. He has also relied upon Ex.P.22 and
submitted that, the plaintiffs have admitted that, the suit
bearing O.S.No.15284/2004 has been dismissed on technical
grounds and they have not reserved liberty in the legal notice
to claim the damages from the defendants and BBMP
authorities would have issued notice to the plaintiffs for non-
payment of tax and DW.1 has stated in his cross-examination
that, the power of attorney has been given to him and notice
has been given jointly, there is no necessity of seeking
SCCH - 11 50 SC No.384/2013
impleadment as party to the proceedings. He has also
submitted that, DW.1 has stated that, he and Venkataraju
Gupta had issued legal notice to the sub-tenants and
defendant being power of attorney holder cannot act as plaintiff
and defendant and in the notice dated: 10.03.2012, it is
admitted that, possession of nine shops is taken by the
plaintiffs.
29) He has also submitted that, the defendant being GPA
holder of plaintiff cannot be taken as admission and admission
of fact is estopped from contending contrary to the facts
admitted and Ex.P.3 is the plaint copy produced before this
court and para No.13 of the same is clear that, there is no
subsistence of relationship and para 15 and 16 of said
document may be looked into and Clause 19 and 20 of Ex.P.1
may be looked into.
SCCH - 11 51 SC No.384/2013
30) He has also relied upon para No.9 of evidence of
DW.1, in which he has stated that, the original lessor G.
Venkataraju Gupta entered into lease agreement dated:
24.06.1985 for the period of 18 months on the monthly rent of
Rs.750/- for each completed floor with maximum rent of
Rs.2,250/- for entire building. He has also argued that, there
is no surrender of lease and M/s Kalyan buildings will
surrender lease to the tenants and contract of lease is clear
and court cannot go beyond the terms of contract. He has also
referred the cross-examination portion of PW.1 at page No.2,
dated: 24.03.2008, in OS No.15284/2004 in which, he has
stated that, he has taken deposit of Rs.1,00,000/- from the
plaintiffs through cheque and in Ex.P.26, para No.3, the legal
notice has been issued by Sri. Ramashetty, advocate and
contents of para No.3 of said document may be looked into
and as per the Ex.P.27, termination notice issued to the sub-
tenants in which the terms of lease are reproduced. He has
also relied upon Ex.P.25 which is letter dated: 16.04.2012 in
which, the last three lines may be looked into stating that it is
SCCH - 11 52 SC No.384/2013
a final letter and if plaintiff Sujatha, her son and daughter
come and talk with him, he will arrange to give their site to
them.
31) The learned counsel for plaintiff has submitted in
reply arguments that, the man who is having control over the
property can write such letter and he was in commendable
position and said letter is the last correspondence letter to the
defendants. He has also pressed upon Section 115 of Evidence
of regarding promissory estoppel and also relied upon the
cross-examination portion dated: 30.06.2014. He has also
submitted in his reply arguments that, the Hon'ble High Court
has confirmed the order of trial court and there was not
extinguishment of surrender of lease and the court while
passing previous judgment has scanned the documents and
held that, there is no privity of contract and sub-tenant is not
necessary party in this case and any order passed is binding
upon the sub-tenants. He has also submitted that, the
memorandum of understanding is hit by Section 23 of
SCCH - 11 53 SC No.384/2013
Contract Act which is against law and memorandum of
understanding is not admissible in evidence. He has submitted
that, if power of attorney is not registered, it shall be
impounded and stamp duty can be recovered by the court and
and even at the time of passing the judgment, the court can
recover the stamp duty and penalty. He has also submitted
that, memorandum of understanding and general power of
attorney are prepared by an advocate Sri. Ramashetty, who
appeared before any Civil Court. He has also contended that
on 25.03.2003, corrigendum was issued by the plaintiffs to
correct the mistakes in the damages and in case of term lease,
notice of termination is not required and tenancy will expire
due to efflux of time. He has contended that the suit is not
filed against 36 tenements and lease agreement is between
defendant No.1 and 2 and plaintiffs, question of issuing legal
notice to the sub-tenants does not arise at all. He has also
submitted that, the Hon'ble High Court has given full liberty to
the plaintiffs to file fresh suit. He has also contended that, in
the cross-examination of DW.1, he has stated that, there is no
SCCH - 11 54 SC No.384/2013
need to secure possession from M/s Kalyan Buildings. He has
also argued that, in earlier suit, termination notice was issued,
which is not replied by the defendant and said notice is
containing 28 pages and in the cross-examination of DW.1 at
page No.19, para No.4, he has stated that, he does not
remember that, whether he has shown in the balance sheet
about payment of Rs.1,00,000/- towards advance amount.
32) On perusal of evidence adduced by both parties
and documentary evidence on record and arguments
advanced by both parties, it is undisputed fact that, the
subject matter of the suit is entire property bearing No.71,
(old No.495), Avenue Road, Bangalore measuring East-west-
98 feet and North-South-14 ½ sq. feet and said property is
comprising of ground floor, first floor and second floor and in
ground floor, there are 12 shops and in the first floor, there
are 12 shops and in the second floor, there are 12 shops. This
admitted fact need not be proved by both parties. It is also
undisputed fact that, the plaintiffs had filed suit bearing
SCCH - 11 55 SC No.384/2013
O.S.No.15284/2004 against the sub-tenants seeking the
relief of eviction and other reliefs before Honble XXVIth Addl.
City Civil Judge, Bangalore and said suit came to be
dismissed vide judgment and decree dated 24.10.2011. On
perusal of oral evidence of PW1 and contents of ExP.1, they
reveal that, deceased Sri. Venkataraju Gupta executed
registered lease deed dated 24.6.1985 in favour of
Sri.A.Ramanath and Sri.A.Prakash in respect of property
No.71(old No.496), Avenue Road, Bangalore measuring East-
West-98 and North-South 14.6 sq feet for the period of 18
years including construction period upon certain terms and
conditions enunciated in the recitals of said document. The
said document has been registered in the office of Sub-
Registrar Gandhinagar, Bangalore under Book No,3203,
volume No,147-158 at page No.916 on 26.6.1985. On going
the recitals of said document, it was executed by deceased
Venkataraju Gupta in favour of Sri.A.Ramanath S/o
A.Ashwathanarayana Shetty and Sri.A.Prakash S/o
Ranganath and grandson of Sri. A.Ashwathanarayana Shetty
SCCH - 11 56 SC No.384/2013
who are defendants of this suit and partners of M/s Subhash
Stores. As per contents of said document, the said building is
42 years old and not in a habitable condition and lease was
executed for the period of 18 years including period of
construction. As per the terms and conditions of lease
agreement, the defendants agreed to pay Rs.20,000/- as
security deposit which shall be refundable without interest on
determination of lease and on monthly rent of Rs.250/- to
Rs.2,2,50 as per clause 3 of lease agreement. As per clause 1
of said document, the period of lease shall be 16 years
commencing from the date of completion of new building or
two years from the date thereof whichever is earlier with
discretion and option for the lessors to renew the same for the
further period of five years on the same terms or on the terms
bound to be agreed upon by both parties. As per clause 14 of
lease deed, the lessees are entitled to grant lease or licence or
sublet or under let the whole or portions of leased property
and building that may be put up thereof. As per clause 19 of
said document, on expiry of stipulated period of lease or
SCCH - 11 57 SC No.384/2013
renewed period of termination of lease, the lessees shall
without delay deliver the entire schedule property except
portion occupied by lessee for doing their business together
with construction and fittings appurtenant thereto to the
lessor.
33) Plaintiffs have produced certified copy of sub lease
executed by the defendants in favour of M/s Kalyan Buildings
under registered sub lease deed dated 28.8.1986 which has
been registered in the office of Sub-Registrar Gandhinagar,
Bangalore under Book No I, volume No,3222 at page No.30 to
39 dated 2.9.1986. As per recitals of said document, the
defendants being lessees of said property have sub-let the
said property in favour of M/s Sree Kalyan Buildings for the
period of 16 years 11 months which shall come into force
from 2.7.1986 and said sub lease was granted subject to
terms and conditions mentioned in the lease deed dated
24.6.1985. As per contents of said document, during the
period of construction of new building, the rent payable is
SCCH - 11 58 SC No.384/2013
Rs.250 per month upto ground floor construction and
Rs.750/- per month till the end of construction with
maximum rent of Rs.2,250 for entire building payable on or
before 10 day of every month. As per clause 8 of said
document, the sub tenant was authorised to demolish and
pull down the building at his costs and put up new
construction thereon.
34) The plaintiffs have also produced certified copy of
plaint in O.S.No.15284/2004 on the file of Hon'ble 26th Addl.
City Civil Judge (CCH), Bangalore and as per the said
document, these plaintiffs filed said suit through Power of
Attorney holder by name A. Prakash S/o Sri. A. Ranganath
who is the defendant of this suit against the sub-tenants
claiming possession of suit schedule premises. In the said
plaint, the contents of this plaint are repeated. The said suit
was filed against the sub-tenants and not against the
defendant No.1 and 2 of this suit. In the said suit, the
defendant No.2 of this suit has given evidence as Power of
SCCH - 11 59 SC No.384/2013
Attorney holder of Sri. G. Venkataraju Gupta and he has been
examined as PW.1 and after full-fledged trial, the Hon'ble
Court passed judgment and decree dated: 24.10.2011 and
dismissed the said suit. The Hon'ble Court relied upon
decision of Hon'ble Supreme Court reported in AIR 2002 SC
797 and held that, there is no privity of contract between
transferee and lessor and lessee is a necessary party and Sri.
A. Ramanath and Sri. A. Prakash are not made as party to
this suit and suit is bad for non-joinder of necessary parties.
The Hon'ble Court also observed in para No.23 at page No.27
of the judgment that, without impleading original lessee, the
plaintiff cannot maintain suit against the defendants as he
has no local standi to file this suit. In page No.28 at para
No.24, the Hon'ble Court observed that, the plaintiff failed to
prove that, there exists jural relationship of landlord and
tenant between plaintiff and defendant and accordingly
answered issue No.6 and 7 in the negative and issue No.3 in
partly affirmative and ultimately answered issue No.5 in
negative and dismissed the suit. In the said suit, the present
SCCH - 11 60 SC No.384/2013
defendants were not impleaded as party and the said suit
came to be dismissed on the ground that, the lessees who are
the necessary parties are not impleaded in the said suit. The
plaintiffs have produced certified copy of judgment in RFA
No.631/2012 in which, Hon'ble High Court has upheld the
judgment passed in O.S.No.15284/2004 and made
observation in para No.3 at page No.7 of judgment that, the
mistake was committed by the appellant, he should suffer the
consequences which does not mean that, the court should be
oblivious to the suffering of the owner of the property who
was obviously mislead by his counsel's ill advice. It is also
observed in the judgment that, if any fresh proceedings at
initiated, the trial court shall bear in view that, the hardship
that, the appellants would shall also have to undergo in
recovery of the premises, if the matter is delayed. With these
observations, the said appeal was dismissed on 13.03.2013.
Plaintiffs have produced office copy of legal notice which is
marked as Ex.P.8 dated: 15.03.2013 issued under Section
106 of Transfer of Property Act to the defendant No.1 and 2
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and said notice is served upon the defendant No.2 and postal
acknowledgement is produced which is marked as Ex.P.9. He
has also produced corrigendum dated: 25.03.2013, which is
marked as Ex.P.13 stating that, the plaintiffs have claimed
damages towards unauthorized use and occupation of the
premises at Rs.15,000/- per month instead of Rs.1,66,666/-
per month and same amounting to Rs.20,00,000/- which is
prevailing rate of rent on square feet basis. They have also
produced office copy of legal notice and postal receipts and
acknowledgements about service of legal notice dated:
25.03.2013 which is served upon the defendant No.1.
35) On perusal of the postal receipts and postal
acknowledgements and office copy of legal notice, after
dismissal of the RFA No.631/2012 dated: 13.03.2013, the
plaintiffs issued legal notice to the defendant No.1 and 2 on
15.03.2013 and the legal notice dated: 15.03.2013 is served
upon the defendant No.2 on 20.03.2013 and legal notice
issued to the defendant No.1 is not served as no such person
SCCH - 11 62 SC No.384/2013
and fresh notice is issued as per Ex.P.14 on 25.03.2013,
which is served upon the defendant No.1 on 26.03.2013.
DW.1 produced the Ex.D.1 which is the office copy of legal
notice dated : 10.03.2012.
36) On careful perusal of lease agreement executed
between Sri.G.Venkataraju Gupta and defendant No1 and 2,
the lease was entered into under registered lease deed dated
24.6.1985 for the period of 18 years including construction
period upon the terms and conditions mentioned therein. The
said lease deed came into force on 2.8.1985. As per
conditions incorporated in the said document, the defendant
No1 and 2 were permitted to sub lease the said property and
demolish existing building and construct the new building. As
per clause 19 of lease agreement, on the expiry of stipulated
period of lease or renewed period of termination of the lease,
the lessees shall without delay deliver to the lessor of entire
schedule properties except portion occupied by the lessee for
doing their business together with the construction and
SCCH - 11 63 SC No.384/2013
fittings appurtenant thereto and lessees shall cease to have
right to continue on the possession thereafter and same shall
vest in the lessor without any liability on them to pay any
compensation therefor to be retained for their use by the
lessees or by their successors, the rent of lease may be fixed
at the reasonable rate with mutual discussions or meeting.
As per clause 20 of lease agreement, lessee shall settle the
amounts of the sub-tenants and other occupants of the
schedule property and repay all advance, earnest money etc
before expiry of lease period fixed thereunder or the renewed
period that is before handing over possession of the building
vide clause above.
37) It is clear from foregoing clause that, lessees shall
deliver entire schedule property except occupied by them to
the lessor who was Sri.Venkataraja Gupta on the expiry of
stipulated period of lease or renewed period of termination of
lease. But in this case, the lease has not been renewed and it
SCCH - 11 64 SC No.384/2013
was expired due to efflux of time which was fixed for
construction of building and sub letting.
38) On perusal of sub lease agreement executed by
the defendant No1 and 2 in favour of the M/s Kalyan
Buildings, it was also in similar terms and conditions of lease
agreement. But it was for the period of 16 years and 11
months and as per clause 9 of said document, the lessee
defendants authorised M/s Kalyan Buildings to demolish
existing structure and construct new building and any charge
or liability created by sub lessee shall be discharged by the
lessor tenant who are defendants at least two years before
expiry of lease period as per clause 14 of said document. In
the memorandum of understanding executed by
Sri.Venkataraju Gupta in favour of the defendant No2, the
contents of lease agreement and sub- lease agreement are
repeated about names of parties to the documents and period
of lease and sub-lease. In the said document, it is mentioned
about execution of lease deed dated 24.6.1985 by
SCCH - 11 65 SC No.384/2013
Sri.Venkataraj Gupta in favour of defendant No1 and 2
which has been registered under as document No.916/1985-
86, Book I, Volume No.3203 at page No 147 to 158 in the
office of sub-registrar Gandhinagar, Bangalore city and
execution of sub-lease deed dated 28.8.1986 which has been
executed in between M/s Kalyan Buildings and defendant
No1 and 2 which has been registered as document
No.1430/1986-87, Book I, Volume No.3292 at page No.30 to
39 in the office of Sub-Registrar, Gandhinagar, Bangalore. As
per contents of said document, sub-lease was determined by
efflux of time on 2.6.2003 and terminated between the parties
and lease deed dated 24.6.1985 which was commenced from
2.8.1985 for 18 years also determined by efflux of time on
2.8.2003 and lease is not subsisting and not renewed
between the parties and lease hold rights including right to
renew the lease have been surrendered and there is no
relationship of landlord and tenant between Sri. Venkataraj
Gupta and defendant No1 and 2. Now the question arises for
my consideration is if lease hold rights are surrendered and
SCCH - 11 66 SC No.384/2013
tenancy is determined by efflux of time and tenancy is
terminated as on 2.8.2003, what is status of parties to the
documents? Because, tenancy is determined by efflux of time,
position of defendants would be tenants holding over as
possession of constructed building has not been delivered.
Though DW1 has stated in his cross examination that, after
sub lease of said property to M/s Kalyan Buildings, he has no
power and he has delivered symbolic possession as per
memorandum of understanding, is he exempted from
obligation mentioned in lease agreement dated 24.6.1985?
Because as per conditions mentioned in the clause 20 of lease
agreement, on the expiry of stipulated period of lease or
renewed period of termination of the lease, the lessees shall
without delay deliver to the lessor of entire schedule
properties except portion occupied by the lessee for doing
their business together with the construction and fittings
appurtenant thereto and lessees shall cease to have right to
continue on the possession thereafter and same shall vest in
the lessor without any liability on them to pay any
SCCH - 11 67 SC No.384/2013
compensation therefor. It is clear from the foregoing
provisions made in the lease agreement, the lessees have no
right to retain the possession and on perusal of memorandum
of understanding, the possession has not been delivered
though lease has been determined by efflux of time on
2.8.2003 and lease hold rights are surrendered to the lessor.
The defendant No2 being tenant of scheduled property has
played three roles in the matter. He is tenant of suit schedule
premises and he also acted as Power of Attorney Holder of
plaintiffs and also acted party to the sub lease. He has
conducted the suit bearing O.S.No.15284/2004 by
representing the plaintiffs as Power of Attorney Holder and he
has given evidence in that suit and said suit, ultimately ended
with result of dismissal of said suit. The plaintiffs challenged
the judgment and decree passed in the said suit before
Hon'ble High Court in R.F.A.No.631/2012 which is dismissed
by Hon'ble High Court with observation that, in any fresh
proceedings that may be initiated, the trial court shall bear in
view, the hardship that the appellant would also have to
SCCH - 11 68 SC No.384/2013
undergo in recovery of premises, if the matter is delayed and
appropriate expedition shall infuse the fresh proceedings
which court below is requested to apply in such proceedings.
On perusal of order of Hon'ble High Court, liberty has been
given to file fresh proceedings and initiation of fresh
proceedings is not declined to the plaintiffs in the order
passed in R.F.A.No. 631/2012. Even plaintiffs are not
debarred from filing fresh suit as they have to right to file suit
until possession is recovered from tenants. The defendant
No1 and 2 have not complied the condition No 19 and 20 of
lease agreement dated 24.6.1985 and they have not delivered
possession of schedule property to the plaintiffs as
contemplated under clause 19 and 20 of said document.
Merely for the reason that, it is mentioned in the
memorandum of understanding about termination of lease
and surrender of lease hold rights, the possession has not
been delivered and though DW1 has stated in his evidence
that, he has delivered symbolic possession, there are no
documents to that effect. Because word ''surrender'' has been
SCCH - 11 69 SC No.384/2013
defined in the Sohani's Transfer of Property Act Fourth
Edition at page No.1377 as under:
" Surrender - It is settled law that the surrender may be
either express or implied. Express surrender need not be in
writing. No particular words are essential to make a good
surrender and a surrender may be oral if accompanied with
delivery of possession. There may be an implied surrender by
relinquishment of possession. In the instant case, the lessor
admits that he was informed by his counsel that his tenant
surrendered the key, but he instructed his counsel to return the
key. The petitioner - tenant is certainly not responsible for the
return of the key. When once he expressed his intention that,
he does not want to continue his tenancy he would not be
liable for the rent for the subsequent period. Further, there is
an admission made by the respondent/landlord that, he
allowed a person to occupy the premises and accepted rent
from him. The respondent cannot claim rent once again from
the petitioner".
The words ''implied surrender'' and ''express surrender''
have been defined in Sohani's Transfer of Property Act Fourth
Edition at page No.1382 as under -
" An express surrender effectuates the clear and
unambiguous intention of the lessee to 'Surrender and yield up'
his lease-hold to the lessor. It is, therefore, a matter of
intention of the parties and not a matter of implication of the
law. But in an implied surrender, an intention to surrender is
not expressed. It is inferred by the law. An implied surrender
is an act of the law and takes place independently of, and in
SCCH - 11 70 SC No.384/2013
some cases even in spite of the intention of the parties. The
law infers such surrender from the act and conduct of the
parties. "Thus, it is property applied to cases where the owner
of a particular estate has been party to some act having some
other object than that of a surrender, but which object cannot
be effected whilst the particular estate continues, and the
validity of which act he is by law estopped from disputing".
In the decision reported in Ouseph Lonan V/s
Kochunarayana Pisharady AIR 1973 Kerala 76 wherein it is
held as under -
"Where tenancy expires by efflux of time, the tenant
becomes a trespasser - a tenant on sufferance. He occupies
that position because the landlord has not expressed his
agreement or disagreement with the tenant continuing in
possession. It might be that the landlord by accepting rent or
otherwise assenting to his continuance in possession, created
a tenancy by holding over. The question whether a valid
notice to quit without anything more would make an erstwhile
tenant a trespasser. But when once there is an unequivocal
demand for possession by the landlord after the termination of
the tenancy either by efflux of time or by a legal notice to quit,
the possession of the tenant, if he has no other valid claim to
remain possession would assume the character of trespasser".
In one more decision reported in Smt. Renuka Seal and
others V/s Smt. Sabitri Dey and others AIR 2008 Calcutta
75 wherein it is held as under -
SCCH - 11 71 SC No.384/2013
" In the instant case, the original lease was limited for a
period of 21 years was extended for a further period of ten
years as per the agreement contained in clause(5) of the said
lease deed and thus, the said lease continued for a period of
31 years and in fact the rent receipts showed that the
defendants appellants paid rent at the enhanced agreed rate
as mentioned in the renewal clause of the original registered
lease deed to the plaintiff respondents, therefore, no reason
was found to interfere with the conclusion of the Trial Court
that plaintiffs respondents were entitled to obtain decree for
eviction against defendant appellants on expiry of the lease by
efflux of time".
In another decision reported in Smt. Pool Rani Trivedi
and another V/s Sheel Chandra AIR 2004 Delhi 424
wherein it is held as under -
"Where lease stood determined by efflux of time and
lease deed contained no renewal clause and the notice has
been proved by the testimony of postal receipt and further
letter written by the plaintiff in which it was specifically stated
that acceptance of amount paid was without prejudice to the
termination of tenancy and said amount was on account of
compensation/damages for use and actuation of the premises,
so it was held that lease had expired as such landlord was
entitled to decree for possession and mesne profits".
39) In the decision reported in (Balumai P.Seth
Vs.Giriyappa), I.L.R 1991 KAR 1256, it has been discussed
in detail about lawful sub-letting and unlawful sub-letting.
SCCH - 11 72 SC No.384/2013
The facts and circumstances of the said case and facts and
circumstances of this case are one and same. In the said
decision, Hon'ble High Court referred decision reported in
(Abdul Azeez Vs. Sakamma), I.L.R 1987 KAR 498 wherein
it is held as under
" In fact, Section 30 specifically states that
notwithstanding anything contained in any other law, where
the interest of a tenant is determined, for any reason and an
order made by a Court for recovery of possession under this
Act shall be binding on all persons who may be in occupation
of the premises. The proviso states that, nothing in this Section
shall apply to any person who has an independent title to such
premises. Mere fact of impleading of sub-tenant as a party to
the proceeding will not oust the jurisdiction. Sub-tenant in
whose favour sub-lease is created after coming into force of
this Act, if otherwise lawfully permissible, gets relegated to the
status of a tenant vide Section 22 of the Act. In sum and
substance, issue as to whether sub-lease is with the consent or
authorization of owner or in contravention of clause (f)
exclusively lies within the jurisdiction of the court as defined
and by implication general jurisdiction of the Civil Court is
deemed to have been ousted......".
Though the learned counsel for plaintiff has relied upon
decision reported in (Shyamal Kumar Roy Vs. Sushil
Kumar Agrawal), A.I.R 2007 SC 637. (Hindustan Steels
Limited and M/s. Dilip Constructions Co.,) A.I.R 1969 SC
SCCH - 11 73 SC No.384/2013
1238, in support of his contention regarding marking of
memorandum of understanding and power of attorney. The
said contention is not at all acceptable. Because in the
decision reported in A.I.R 2007 SC 637, Hon'ble Supreme
Court has clearly held that, 'once the document is marked, it
cannot be questioned and it is not open either to the trial court
or to a court of appeal or revision to go behind that order'. By
following the decision reported in (Javer Chand and Ors. Vs.
Pukhraj Surana), A.I.R 1961 SC 1655, in the decision relied
upon by the plaintiff himself, it is clearly held that, the
documents marked without obligation cannot be questioned
regarding insufficiency of stamp duty and admissibility of the
said documents. In the decision reported in (Raghuram Rao
and others Vs. Eric P.Mathias and other), A.I.R 2002 SC
797 which has been referred in O.S.No.15284/2004, it is
clearly held that, the lessee is necessary party and transferees
would be only proper parties. But without presence of the
lessees, lease cannot be determined and decree for possession
cannot be passed. Based upon the said decision, the Hon'ble
SCCH - 11 74 SC No.384/2013
City Civil Court dismissed the earlier suit for the reasons, the
plaintiffs have not impleaded lessees as party to the suit.
Though the learned counsel for defendants taken contention
that, there are 36 tenements and there are 36 sub-tenants
who are in the possession of the 36 shops and they are
necessary parties to this suit is not acceptable in the light of
principle laid down in the decision reported in A.I.R 2002 SC
797. In the light of principle laid down in the decision, I hold
that, the sub-tenants are not necessary party for adjudication
of the matter and determination of lease and only the tenants
are the necessary party to the proceedings. The suit cannot
be dismissed for non impleadment of proper parties, but can
be dismissed for non impleadment of necessary party only.
The plaintiffs have issued legal notice to the defendants and
said legal notice was served upon the defendants and tenancy
has been terminated and defendant No.1 and 2 tenants are at
sufferance as held in the decisions reported in (M/s.
Rapatakos Brett and Co. Ltd., Vs. Ganesh Property), A.I.R
1998 SC 3085 wherein it is held as under -
SCCH - 11 75 SC No.384/2013
"Transfer of property Act, 1882 - Section 111(d) -
Erstwhile tenant-Continuing in possession on expiry of lease
period - His status is to be treated as tenant at sufferance akin
to a trespasser having no right to continue in possession - Suit
for recovery of possession - Landlord has nothing to do with
contract of tenancy which already came to an end. On the
expiry of the period lease, the erstwhile lessee continued in
possession because of the law of the land, namely, that the
original landlord cannot physically throw out such an erstwhile
tenant by force. He must get his claim for possession
adjudicated by a competent court as per the relevant provisions
of law. The status of an erstwhile tenant has to be treated as
a tenant at sufferance akin to a trespasser having no
independent right to continue in possession. In a suit by
landlord against the erstwhile tenant the claim for possession
by itself has nothing to do with the contract of tenancy which
had already came to an end. For such claim there is no
question of the source of right to possession being its erstwhile
contract which is dead and gone. It cannot necessarily be the
foundation of the cause of action unless the plaint itself refers
to such a cause of action arising out of the terms of the
conditions of the erstwhile contract which according to the
plaint are still subsisting on the date of the suit. Thus, it
cannot be generalized that the every case when on the expiry
of the period of lease the landlord seeks to recover possession
from the erstwhile tenant such a suit must necessarily be said
to be one for enforcement of right arising from the contract of
tenancy with third party Ex-tenant".
So, I hold that, the tenancy will not end unless tenant
gives possession of premises as required under law. In the
book written by Sohoni's Transfer of Property Act, Fourth
SCCH - 11 76 SC No.384/2013
edition at page No.1066 it is discusses about obligation of the
tenant as under -
" Tenancy does not end unless the tenant gives
possession of premises as required by law - a tenancy except
where it is at will, may be terminated only on the expiry of the
period of notice of a specified duration under the contract,
custom or statute governing the premises in question. A tenant
does not absolve himself from the obligations of his tenancy by
intimating that as from a particular date, he will cease to be in
occupation under the landlord and that someone else whom
the landlord is not willing to accept will be the tenant. It is one
of the obligations of a contract of tenancy that the tenant will,
on determination of the tenancy, put the landlord in possession
of the property demised. Unless possession is delivered to the
landlord before the expiry of the period of the requisite notice,
the tenant continues to hold the premises during the period as
tenant. Therefore, by merely assigning the rights, the tenancy
of the company did not come to an end. In W.H.King Vs.
Republic of India, there is a clear distinction between an
assignment of a tenancy on the one hand and a relinquishment
or surrender on the other. In the case of an assignment, the
assignor continues to be liable to the landlord for the
performance of his obligations under the tenancy and this
liability is contractual, while the assignee becomes liable by
reason of privity of estate. The consent of the landlord to an
assignment is not necessary, in the absence of a contract or
local usage to the contrary. But in the case of relinquishment it
cannot be a unilateral termination it can only be in favour of
the lessor by mutual agreement between them.
Relinquishment of possession should be to the lessor or one
who holds his interest; and surrender or relinquishment
terminates the lessee's rights and lets in the lessor".
SCCH - 11 77 SC No.384/2013
Even surrender of part of premises does not amount to
surrender of whole which has been clearly dismissed in the
said book at page No.1067 as under -
" Surrender of lease - surrender of part of premises does
not amount to surrender of whole - If a lessee for years accepts
a new lease by indenture of part of the lands, it is a surrender
for that part only, and not for the whole (k); and though a
contract for years cannot be so divided, as to be avoided for
part of the years and to subsist for the residue, either by act of
the party or act in law; yet the land itself may be divided, and
the tenant may surrender one or two acres, either expressly or
by act of law, and the lease for the residue will stand good and
untouched.
A surrender is implied when the tenant remains in
occupation of the premises in a capacity inconsistent with his
being tenant, where, for instance, he becomes the landlord's
employee, or where the parties agree that the tenant is in
future to occupy the premises rent free for life as a licensee. An
agreement by the tenant to purchase the reversion does not of
itself effect a surrender, as the purchase is conditional on a
good title being made by the landlord. It has been held that,
acceptance of a new lease of part only of the demised premises
operates as a surrender of the part and no more; but any
arrangement between landlord and tenant which operates as a
fresh demise will work as surrender of the old tenancy, and
this may result from an agreement under which the tenant
gives up part of the premises and pays a diminished rent for
the remainder - and it may result from the mere alteration in
the amount of rent payable; where one only of two or more
lessees accepts a new lease, it is a surrender only of his share.
SCCH - 11 78 SC No.384/2013
Any arrangement between the landlord and tenant which
operates as a fresh demise will work a surrender of the old
tenancy; and this may result from an agreement under which
the tenant gives up part of the premises and pays diminished
rent for the remainder, provided a substantial difference is
thereby made in the conditions of the tenancy. But a surrender
does not follow from a mere agreement made during the
tenancy for the reduction or increase of rent, or other variation
of its terms, unless there is some special reason to infer a new
tenancy, where, for instance, the parties make the change in
the rent in the belief that, the old tenancy is at an end.
From the above passages it can be inferred that
surrender of a part does not amount to implied surrender of the
entire tenancy and the rest of the tenancy remains untouched.
It can, therefore, be seen that, surrender of the part of the lease
does not amount to surrender of the whole. In N.M.Ponniah
Nadar Vs.Smt.Kamalakshmi Ammal, a mere increase or
reduction of rent will not necessarily import a surrender of an
existing lease and the grant of a new tenancy. So, also if on
account of the variation in the quantum of rent any
consequential change is made regarding the time and manner
of the payment of the rent it cannot have the effect of graver
consequences being imported into the change of rent than what
the parties had intended and warrant a finding by the Court,
that the parties had intended to create a new tenancy in
supersession of the earlier one of that by operation of law a
new tenancy had come into existence".
So, I hold that, the plaintiffs have proved termination of
tenancy and landlord and tenant relationship. So, I answer
Point No.1 in Affirmative.
SCCH - 11 79 SC No.384/2013
40) POINT No.2:- In view of my discussion in point
No.1 in detail, I hold that, plaintiffs are entitled for the relief of
eviction of defendants from the suit schedule premises.
Though the plaintiffs have pleaded in para No.15 of the plaint
about the damages, there is no specific relief sought for
damages in prayer of column of the plaint and they have only
sought for relief of future damages for unauthorized use and
occupation by defendants. Since, the claim for damages
sought in the legal notice and corrigendum which has been
explained in para 15 of the plaint has not been sought in the
prayer column of the plaint, plaintiffs are not entitled for the
prayer for damages. Because in para 16 of the plaint, they
have reserved their right to sue against the defendants for
recovery of past damages for un-authorised use and
occupation and tax due to BBMP in respect of suit property in
a separate suit for which separate application filed under
Order 2 Rule 3 of C.P.C. and in this case, the past damages
has not been claimed by the plaintiffs. In the cross-
SCCH - 11 80 SC No.384/2013
examination of DW.1, it is clearly suggested and it is admitted
by the DW.1 that, the plaintiffs have filed suit bearing
O.S.2936/2013 and claimed compensation of Rs.75,00,000/-
which includes past damages of Rs.60,00,000/- and tax duty
to the BBMP. Since, there is separate suit pending regarding
damages, plaintiffs are not entitled for damages in this suit.
So, I hold that, plaintiffs are only entitled for eviction. So, I
answer point No.2 in partly affirmative.
41) POINT No.3: In view of answer to points No.1 & 2,
I proceed to pass the following:
ORDER
The suit of the plaintiffs is partly decreed with costs.
Decree of eviction is granted against the defendants directing them to vacate and handover the vacant possession of the suit property to the plaintiffs within three months from the date of decree.
SCCH - 11 81 SC No.384/2013 On failure to handover the vacant possession of the suit property within the aforesaid period, the plaintiffs are at liberty to vacate the defendants by taking recourse of law.
The relief of future damages sought by the plaintiffs is rejected.
SCHEDULE All that piece and parcel together with existing structures standing thereon the Property bearing No.71 (Old No.495) situated at Avenue road, Bangalore consisting of 36 shops as detained below:
a) In Ground Floor 12 shops (Shop Nos. 1 to 12)
b) In First Floor 12 shops (Shop Nos. 13 to 24)
c) In Second floor 12 shops (Shop Nos.25 to 36) and the entire property bounded on:
East by : Property of Sri.D.Rajachari;
West by : Avenue Road;
North by : Property bearing No.70 and
South by : Common passage and thereafter
property bearing No.72.
And measuring East to West : 98 ft and North to South : 14.6 ft In total : 1430.8 Sq.ft.
SCCH - 11 82 SC No.384/2013 Draw decree accordingly.
(Typed to my dictation by the Stenographer, corrected by me and then pronounced in the open court on this the 1st day of September, 2015. ) (Ganapati Gurusidda Badami) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 - Sri. G.V.Srikanth LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT: DW.1 - A.Prakash
LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 - Rent agreement
Ex.P.2 - Rent agreement
Ex.P.3 - Copy of plaint in O.S.No.15284/2004
Ex.P.4 - Power of attorney
Ex.P.5 - Statement
Ex.P.6 - Judgment in OS. No.15284/2004
SCCH - 11 83 SC No.384/2013
Ex.P.7 - Judgment in RFA No.631/2012
Ex.P.8 - Legal notice
Ex.P.9 - Postal acknowledgment
Ex.P.10&11- Postal receipts
Ex.P.12 - Unserved postal cover
Ex.P.13&14- Copy of legal notices
Ex.P.15 - Postal acknowledgment
Ex.P.16-18 - 3 postal receipts
Ex.P.19 - Unserved postal cover
Ex.P.20 - Copy of Khatha
Ex.P.21 - Power of attorney
Ex.P.22 - Notice
Ex.P.23&24- Signatures in postal acknowledgment
Ex.P.25 - Reply to the notice
Ex.P.26 - Notice
Ex.P.27 - Lease deed
Ex.P.28 - Signatures
Ex.P.29 - CC of written statement in
O.S.No.15284/2004
LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANT:
Ex.D.1 - Partnership Regulation Deed Ex.D.1(a) - Dissolution of partnership Ex.D.2 - Memorandum of Understanding Ex.D.3 - General Power of Attorney SCCH - 11 84 SC No.384/2013 Ex.D.4 - Office of notice.
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM