Bangalore District Court
Mrs. Anu Mertil Michael vs Mr. Clement Jai Singh on 30 September, 2020
IN THE COURT OF THE IV ADDL. CITY CIVIL AND SESSIONS
JUDGE MAYOHALL UNIT, BENGALURU (CCH21)
Dated this 30th Day of September 2020
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
(CONCURRENT CHARGE)
ORIGINAL SUIT NO. 25759/2018
PLAINTIFFS : 1 MRS. ANU MERTIL MICHAEL
Aged about 41 years
D/o. Mr. Michael Bastian
REP BY GPA HOLDER:
Mr. MICHAEL BASTIAN
2 MRS. JEAN SEARA MICHAEL
Aged about 67 years
W/o. Mr. Michael Bastian
REP BY GPA HOLDER:
Mr. MICHAEL BASTIAN
ALL ARE R/AT:
No.1186, 22nd Cross
14th Main
HSR Layout, Secor III
Bengaluru - 560102.
V/s
DEFENDANT: MR. CLEMENT JAI SINGH
2
OS.25759/2018
Aged about 61 years
S/o. Late A.Andrews
Flat No.201, Rose Dale Apartment
15 Hutchins Road, Cook Town
Bengaluru - 560005.
PERMANENT R/OF:
No.31/15th Main Road
III Stage Pillanna Garden
Bengaluru - 560045.
Date of Institution of the suit 28.06.2018
Nature of the Suit (Suit on pronote, suit for
EJECTMENT
declaration and possession, suit for injunction, etc.)
Date of the commencement of recording of the Evidence. 16.04.2019
Date of pronouncement of Judgment 30.09.2020
Total duration Year/s Month/s Day/s
02 03 02
JUDGMENT
Plaintiffs have filed the instant suit to eject the defendant from the suit premises, for recovery of damages of Rs.30,000/ per month and cost. FACTS OF THE CASE:
2. 2nd plaintiff put the defendant in possession of suit premises as montly tenant by executing Lease Agreement dated:01.07.2015. The 3 OS.25759/2018 said lease was for 11 months. After expiry of 11 months, on 19.05.2016 & on 28.04.2017 the lease was renewed and extended for 11 months. The lease was expired on 31.03.2018 due to efflux of time. As on the date of expiry of lease, the rent was Rs.26,000/ per month. 2 Nd plaintiff and her husband has bequeathed the lease premises in favor of their daughter, the 1st plaintiff by executing Gift Deed dated:24.01.2018. By virtue of the said Gift Deed, 1st plaintiff became the landlord. 2 Nd plaintiff informed the defendant about execution of Gift Deed in favor of her daughter, the 1 st plaintiff and requested him to vacate the suit premises after expiry of lease period. In this regard, the letter dated:21.02.2018 was written to defendant. After expiry of lease period, defendant did not vacate the suit premises. He unauthorizedly continued his possession over the suit premises. Therefore on 05.05.2018 plaintiffs issued Legal Notice and called upon the defendant to vacate and hand over the vacant possession of the suit premises and also to pay damages of Rs.30,000/ per month for his illegal stay and occupation in the suit premises. After receipt of Notice, defendant sent reply dated:24.05.2018 raising untenable contentions, but did not vacate the suit premises. Therefore left with no 4 OS.25759/2018 alternative, plaintiffs filed the instant suit. On these and other grounds stated in the plaint, plaintiffs pray to decree the suit and to grant the relief of ejectment and damages as prayed for.
3. Defendant resisted the suit by filing written statement. He admitted that, he was put in possession of the suit premises by 2 nd plaintiff as per the lease agreement dated:01.072015; the said lease agreement is for 11 months and after the expiry of 11 months, the lease was extended twice on 19.05.2016 & 28.04.2017. Defendant contends that, at the time of entering into lease agreement, he paid security deposit of Rs.2,10,000/. He denied that, 2nd plaintiff informed him about the execution of Gift deed dated:24.01.2018 in favor of 1 st plaintiff. He contends that, he has no knowledge about the above said Gift deed. He has not attorned the tenancy to 1st plaintiff. Therefore the 1st plaintiff has no right to issue quit notice. Further he submits that, his tenancy is not legally terminated. Therefore he continued his possession of the suit premises as tenant by depositing the rents regularly. He contends that, his tenancy is not legally terminated. Therefore he is neither liable to 5 OS.25759/2018 vacate and handover the vacant possession of the suit premises to plaintiffs nor to pay damages or mesne profit. On these and other grounds stated in the written statement, defendant prays to dismiss the instant suit.
4. On the basis of the afore said pleadings, on 05.02.2019 the then presiding officer has formulated the following:
ISSUES
1. Whether the plaintiffs prove that, there is being existence of jural relationship of landlord and tenant in between the plaintiffs and defendant?
2. Whether plaintiffs prove that, they have duly terminated the tenancy of the defendant?
3. Whether defendant proves that, he has paid the monthly rent regularly to the suit schedule property as contended in their written statement?
4. Whether plaintiffs prove that, they are entitled for damages of Rs.30,000/ per month for unlawful use and occupation of the suit schedule property from the defendant till the date of 6 OS.25759/2018 handing over the vacant possession of the suit premises to the plaintiffs?
5. Whether plaintiffs prove that, they are entitled for the suit reliefs?
6. What order or decree?
5. On behalf of plaintiffs, Michael Bastian - the attorney holder of plaintiffs was examined as PW1 and produced documents marked at Ex.P.1 to Ex.P.8. Defendant examined himself as DW1.
6. When the case was posted for defendant's arguments, on 21.08.2020 defendant filed application U/Sec.340 of Cr.P.C. alleging that, plaintiffs and their attorney holder PW1 Michael Bastian created Ex.P.1 & 2 power of attorneys and Ex.P.3 Gift deed dated:24.01.2018.
7. Counsel for the plaintiffs filed objection to the said application.
8. Heard the arguments on both side. The counsel for plaintiffs in addition to oral arguments has filed written arguments.
9. My findings on the above Issues are as under: 7
OS.25759/2018 ISSUE NO.1: In the Affirmative.
ISSUE NO.2: In the Affirmative.
ISSUE NO.3: In the Negative.
ISSUE NO.4: Partly in Affirmative.
ISSUE NO.5: Partly in Affirmative.
ISSUE NO.6: As per the final order for the following:
REASONS
10. ISSUE NO.1: Plaintiffs contend that, 2nd plaintiff let out the suit premises to the defendant on monthly rent by executing Lease Agreement dated:01.07.2015. The said lease is for 11 months. After expiry of 11 months, lease was extended twice i.e., on 19.05.2016 & 28.04.2017. Plaintiffs contend that, 2 nd plaintiff and her husband Mr. Michael Bastian bequeathed the suit premises in favor of their daughter, the 1st plaintiff by making Gift Deed dated:24.01.2018. By virtue of the said Gift deed, 1st plaintiff has become the owner of the suit premises and she steps into the shoes of 2 nd plaintiff, the landlord and since 24.01.2018 defendant is in possession of the suit premises as tenant under the 1 st plaintiff. Defendant admitted that, he put up in possession of the suit premises by 2nd plaintiff as monthly tenant, regarding tenancy lease 8 OS.25759/2018 agreement dated:01.07.2015 was made. He contends that, he has no knowledge about execution of Gift Deed dated:24.01.2018 by 2 nd plaintiff & her husband in favor of their daughter, the 1 st plaintiff. 2Nd plaintiff or her husband not informed him about the said Gift Deed. Even after the execution of the said Gift Deed, 2nd plaintiff has been collecting rents from him. He never paid rents to 1 st plaintiff nor attorned the tenancy to her. Thus there is no relationship of landlord and tenant between him and 1st plaintiff.
11. Plaintiffs to prove the jural relationship of landlord and tenant between 1st plaintiff & defendant, examined their attorney holder PW1 Mr. Michael Bastian, the father of 1 st plaintiff and the husband of 2nd plaintiff. PW1 in his examination in chief has reiterated and reaffirmed the facts of the case. He produced Ex.P.1 Power of Attorney dated:24.01.2018 executed by 1st plaintiff; Ex.P.2 Power of Attorney dated:24.01.2018 executed by 2nd plaintiff; Ex.P.3 certified copy of the Gift Deed dated:24.01.2018; Ex.P.4 Katha extract; Ex.P.5 Katha certificate. A perusal of plaint would show that, it was signed and 9 OS.25759/2018 presented by PW1 Mr. Michael Bastian in his capacity as the attorney holder of plaintiffs.
12. Defendant has not disputed Ex.P.1 Power of Attorney. A perusal of Ex.P.1 Power of Attorney would show that, 1 st plaintiff has authorized her father PW1 Michael Bastian interalia to let out the suit premises, collect the rent, to file or defend the suit in respect of suit premises.
13. Ex.P.2 is the Power of attorney executed by 2nd plaintiff in favor of her husband, PW1 Mr. Michael Bastian to file or defend the suit in respect of suit premises. Thus from Ex.P.1 & Ex.P.2 Power of attorneys, it is clear that, plaintiffs have authorized their Attorney holder Mr. Michael Bastian to file a suit in respect of suit premises. Therefore the contention of the defendant that, under Ex.P.1 & 2 plaintiffs have not authorized PW1 Michael Bastian to file a suit on their behalf, is not sustainable.10
OS.25759/2018
14. As I have already stated above in the instant case, there is no dispute that, 2nd plaintiff has put the defendant in possession of suit premises as monthly tenant and an agreement of lease dated:01.07.2015 was took place between them. Defendant by admitting that, as tenant of 2nd plaintiff, he was put in possession of the suit premises contends he has no knowledge about execution of Ex.P.3 Gift Deed dated:24.01.2018 by 2nd plaintiff and her husband Michael Bastian in favor of 1 st plaintiff. Defendant who was examined as DW1 has stated that, 1 st plaintiff or her parents have not informed him about making of the above Gift deed. He never paid rent to 1st plaintiff. Even after making of the above gift deed, 2nd plaintiff continued to exercise her powers as landlord. DW1 has stated that, he has not attorned the tenancy to 1 st plaintiff. Therefore there is no jural relationship of landlord and tenant between him and 1 st plaintiff.
15. Admittedly the suit premises belongs to 2 nd plaintiff & her husband PW1 Michael Bastian. PW1 in his personal capacity and also as attorney holder of his wife, the 2nd plaintiff on oath has stated that, he and his wife bequeathed the suit premises in favor of 1 st plaintiff by executing 11 OS.25759/2018 Ex.P.3 Gift Deed. Thus in the instant case, there is no dispute between donors and donee regarding making of Ex.P.3 Gift Deed. When there is no dispute between donors and donee regarding making of gift deed, acceptance of gift and handing over of possession, tenant - a 3 rd person cannot deny the gift. In the instant case, defendant has not disputed the execution of Ex.P.3 Gift deed. His contention is that, despite the gift deed was made during the subsistence of tenancy, either the donee or the donor have not informed him about the said gift deed. He never considered the donee i.e., 1st plaintiff as his land lord and thus he has not attorned the tenancy to the 1st plaintiff.
16. PW1 in the evidence has stated that, after making of Ex.P.3 Gift Deed, he and the 2nd plaintiff orally and also by sending message informed the defendant about making of Ex.P.3 Gift deed. Except the statement of PW1 on oath, there is no documentary evidence to prove that, plaintiffs or PW1 informed the defendant about making of Ex.P.3 gift Deed. When such is the case, the point for consideration is, is there any legal requirement or mandate on the transferee or transferor of lease 12 OS.25759/2018 premises to inform the tenant about the transfer. If not informed and the tenant has not attorned the tenancy to the transferee, whether it prevent the right of transferee to get right as contemplated U/Sec.109 of T.P.Act.
17. The learned counsel for the plaintiffs has strenuously contended that, Sec.109 of Transfer of Property Act (T.P. Act) would not insist the transferor or the transferee to inform the tenant of the property transferred or to get an attornment. He contends that, the moment the transferee acquires title over the tenanted property, he steps into the shoes of the transferor landlord and acquires the right of lessor. In support of his arguments, he placed reliance on the following judgments:
1. 2010 SCC KAR 303 : (2010) 3 KLJ 619 - BASAVARAJ V/s. PUTTARAJU (Since Deceased) by HIS LRs & ANOTHER.
In this judgment, the Hon'ble High Court of Karnataka has held as under:
"Transfer of Property Act, 1882 - S.109 -
Attornment of tenancy - Section does not insist that transfer of lessor's rights can take effect only if the tenant attorns - Attornment by the tenant is unnecessary to confer validity to the transfer of the lessor's rights - However, the section protects payment of rent by the tenant 13 OS.25759/2018 to the transferor without notice of the transfer."
2. AIR 2015 SC 2459 - Dr. AMBICA PRASAD V/s. Md. ALAM & ANOTHER.
In this judgment, the Hon'ble Supreme Court of India has held as under:
"After the transfer of lessor's right in favor of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. S.109 does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornmet by the tenant is not required, a notice U/Sec.106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit of ejectment."
3. AIR 2008 KAR 32 - M/s. MUJAWAR & CO. V/s. FAZLUR REHMAN.
18. I went through the above cited judgments, wherein it has been clearly stated that, Sec.109 of T.P.Act would not insist about attornment of tenancy by a tenant in favor of the transferee of the lease 14 OS.25759/2018 premises. The moment the transferee acquires right over the lease premises, he steps into the shoes of the transferor/ lessor and automatically become the lessor of the tenant and he is having right to evict the tenant and also to collect arrears of rent from the date of transfer. In view of the ratio laid down in the above said judgments, I am of the view that, the contention of the defendant that, after making of Ex.P.3 Gift deed, he has not attorned the tenancy in favor of 1 st plaintiff, therefore there is no jural relationship of landlord & tenant between him and 1st plaintiff, is not sustainable.
19. As I have already stated above, in the instant case, defendant is not disputing Ex.P.3 Gift Deed. PW1 on oath has stated that, he and his wife the 2 nd plaintiff executed Ex.P.3 Gift Deed bequeathing the suit premises in favor of their daughter, the 1 st plaintiff. The said evidence has remained unchallenged. In view of 1 st plaintiff acquired right over the suit premises by virtue of Ex.P.3 Gift Deed dated:24.01.2018, as per Sec.109 of T.P.Act, she steps into the shoes of transferee landlord i.e., the 2nd plaintiff and become the landlord of the defendant in respect of suit premises. In view of the above, I hold that, 15 OS.25759/2018 plaintiffs proved the jural relationship of landlord and tenant between 1 st plaintiff & defendant. In view of the above, I answer Issue No.1 in the AFFIRMATIVE.
20. ISSUE NO.2: Plaintiffs contend that, the last lease agreement executed by 2nd plaintiff in favor of defendant is dated:
28.04.2017. It is for 11 months commencing from 01.05.2017 and would end on 31.03.2018. Therefore the lease ends on 31.03.2018 by efflux of time. Defendant in para No.13 of the written statement has admitted about lease agreement dated: 28.04.2017 and also its duration. Defendant (DW1) in the cross examination has admitted that, lease would expire on 31.03.2018. Thus in the instant case, there is no dispute that, due to efflux of time, the lease of defendant would expire on 31.03.2018.
21. PW1 has stated that, after expiry of lease period, due to efflux of time, defendant did not vacate the suit premises. Therefore plaintiffs issued Ex.P.7 Legal Notice dated:05.05.2018 informing the defendant that, the lease was expired due to efflux of time and called upon him to vacate the suit premises within 15 days from the date of receipt of 16 OS.25759/2018 the notice. Ex.P.8 is the reply dated:24.05.2018 issued by defendant. In Ex.P.8 reply, defendant has admitted that, he received Ex.P.7 Notice on 05.05.2018. In Ex.P.8 reply, the defendant has contended that, his tenancy is not properly terminated, therefore he is not liable to vacate the suit premises.
22. The learned counsel for the defendant has strenuously contended that, PW1 in the cross examination has admitted that, even after issuance of Ex.P.7 Notice, plaintiffs collected rents from defendant. Collection of rents by plaintiffs after issuance of quit notice would amount to waiver of quit notice. Further he submits that, as per the lease agreement, in addition to the rented premises, the defendant is having a right to park the car. Under Ex.P.7 notice the right of defendant to park his car is not terminated. Therefore the termination of tenancy is improper and invalid. The learned counsel for the defendant in support of his arguments has placed reliance on the following judgments:
AIR 2015 KAR 128 - M/s. AUTO
WORLD, BANGALORE V/s. SMT.
K.V.SATHYAVATHI.
17
OS.25759/2018
1970 (1) SCC 46 - TAYABALI
JAFFARBHAI TANKIWALA V/s. M/s.
ASHA & CO. & ANOTHER.
(2006) 1 SCC 228 - C.ALBERT
MORRIS V/s. K.CHANDRASEKARAN &
OTHERS.
23. The learned counsel for the plaintiffs has submitted that, from the evidence on record would show that, due to efflux of time, the lease would stand terminated on 31.03.2018. By issuing Ex.P.7 Notice, plaintiffs by informing the defendant that, his lease was expired on 31.03.2018 called upon him to vacate the suit premises. He submits that, when the lease is expired due to efflux of time, there is no necessity to issue quit notice as contemplated U/Sec.106 of T.P.Act. Further he submits that, receipt of rent by plaintiffs after expiry of lease is not a rent, but it is towards damages/ mesne profit for illegal occupation of defendant over the suit premises. Therefore the deposit of rent by defendant to the bank account of plaintiffs even after expiry of lease period would not amounts to waiver. In support of his arguments, the 18 OS.25759/2018 learned counsel for the plaintiffs placed reliance on the following judgments:
AIR 2019 SC 2664 - SEVOKE
PROPERTIES LTD., V/s. WEST
BENGAL STATE ELECTRICITY
DISTRIBUTION CO. LTD.
(2006) 1 SCC 228 C.ALBERT
MORRIS V/s. K.CHANDRASEKARAN &
OTHERS.
24. I went through the above cited judgments. In the case of "SEVOKE PROPERTIES LTD.," cited supra, the Hon'ble Supreme Court of India has held that, when the lease period was expired by efflux of time, there is no necessity of issuing notice U/Sec.106 of T.P.Act to terminate the tenancy. In the instant case, the defendant in his pleadings and also in his evidence has admitted that, the last rent agreement made on 28.04.2017 would expire on 31.03.2018. After expiry of lease on 31.03.2018, no fresh lease agreement was made. PW1 in the examination in chief has stated that, the tenancy of the defendant was expired on 31.03.2018. The said statement of PW1 has remained unchallenged. A perusal of Ex.P.7 Legal notice dated:05.05.2018 would show that, it was 19 OS.25759/2018 not issued to terminate the tenancy but to inform the defendant that, his tenancy would stand terminated on 31.03.2018 due to efflux of time & called upon him to vacate the suit premises. In Ex.P.8 reply the defendant has not stated anything about termination of tenancy by efflux of time. Thus from the material on record, it is evident that, the tenancy of defendant would stand terminated on 31.03.018 due to efflux of time. When such is the case, as per the ratio laid down in the case of "SEVOKE PROPERTIES LTD.," there is no necessity for the 1 st plaintiff to issue Quit notice to terminate the tenancy of defendant.
25. PW1 on oath has stated that, before termination of tenancy, the 2nd plaintiff has written Ex.P. 6 letter to defendant informing him that, his tenancy would expire on 31.03.2018 and he was called upon to inform on which day, he is going to vacate suit premises. Ex.P.6(a) is a postal receipt. A perusal of the same would show that, on 22.02.2018 Ex.P.6 letter was sent to defendant through registered post. Defendant contends that, Ex.P.6 Letter was not served to him. He did not dispute his address mentioned in Ex.P.6 Notice and Ex.P.6(a) Postal receipt. 20
OS.25759/2018 When such is the case as per Sec.27 of General Clauses Act, the registered post sent to a person by mentioning correct address is deemed to have been served. Defendant admitted that, he received Ex.P.7 notice. In Ex.P.7 notice, plaintiffs by informing defendant about termination of his tenancy by efflux of time on 31.03.2018 called upon him to vacate the suit premises within 15 days from the receipt of notice. Plaintiffs have filed the instant suit on 28.06.2018. Thus from the evidence on record would show that before 10 days of termination of tenancy by efflux of time, it was informed to the defendant by writing Ex.P.6 Letter and called upon him to vacate the suit premises and within 2 months from the date of issuance of Ex.P.7 Legal notice, plaintiffs have filed the instant suit. From this it could be inferred that, 1 st plaintiff has no intention to continue the tenancy of defendant.
26. In the instant case, plaintiffs have not terminated the tenancy of defendant by issuing quit notice. On the other hand, the tenancy would stand terminated due to efflux of time. When such is the case, the question of waiver would not arise. In addition to that, the Hon'ble Supreme Court of India in the case of "C.ALBERT MORRIS" 21
OS.25759/2018 cited supra has held that, the rent deposited by tenant after termination of tenancy is to be adjusted towards damages/ compensation for unauthorized stay of tenant in the leased premises and it would not amounts to waiver of quit notice. In view of the ratio laid down by the Hon'ble Supreme Court of India, in the above cited judgment & having regard to the fact that, in the instant case, the tenancy of the defendant was not terminated by issuing quit notice, on the other hand it would stand terminated due to efflux of time, the question of waiver would not arise. Therefore the contention of the defendant that, even after issuance of Ex.P.7 Notice & filing of this case, he continued to deposit the rent in the bank account of his landlord & it would amount to waiver of quit notice, does not hold water.
27. Defendant contends that, as per the lease agreement, he is having right to park the car in the parking slot of the apartment. Under Ex.P.7 notice, his tenancy in respect of his right of parking was not terminated, hence the termination is defective.
22
OS.25759/2018
28. As I have already stated above, in the instant case, tenancy of defendant is not terminated by issuing Quit notice. On the other hand, it would stand terminated due to efflux of time. When such is the case, the contention of the defendant that, Ex.P.7 notice is silent regarding his right to park car in the parking slot, hence the quit notice is defective and thus his tenancy is not terminated properly, is not sustainable. In view of my afore said findings, I hold that, the judgments cited by the learned counsel for the defendant regarding waiver are not applicable to the case on hand. In view of the above, I hold that, plaintiffs have proved that, the tenancy of defendant would stand terminated on 31.03.2018 due to efflux of time. Accordingly I answer Issue No.2 in the AFFIRMATIVE.
29. ISSUE NO.3 & 4: For convenience these 2 issues are taken together for consideration.
30. In the instant case, it is not the contention of the plaintiff that, defendant is in arrears of rent. PW1 has stated that, defendant has paid rent till the expiry of lease period. After expiry of lease period also, defendant is depositing the amount equal to monthly rent in the bank 23 OS.25759/2018 account of plaintiffs. In the foregoing paras placing reliance on the judgment of Hon'ble Supreme Court of India, I have held that, the said amount is to be adjusted towards damages/ mesne profit for the unauthorized occupation of defendant in the lease premises after expiry of lease period.
31. Plaintiffs claimed mesne profit of Rs.30,000/ per month. Except th bald statement of PW1 that, plaintiffs are entitled for mesne profit/ damages of Rs.30,000/ per month, they have not produced any cogent material to prove the rental value of the suit premises prevailing in the month of March or April 2018. Admittedly, as on 31.03.2018 on which day the lease would expire, the rate of rent was Rs.26,000/ per month. In the absence of any material to prove the prevailing rental value of the suit premises at the relevant point of time, the court is of the opinion that, it would be just and proper to grant damages/ mesne profit at the rate of Rs.26,000/ per month i.e., the admitted rate of rent at the time of expiry of lease period. In the above, I have stated that, the lease of defendant would expire on 31.03.2018. Therefore the possession of 24 OS.25759/2018 defendant from 01.04.2018 in the suit premises is unauthorized. Hence he is liable to pay mesne profit, at the rate of Rs.26,000/ per month from 01.04.2018 till he vacate and handover the vacant possession of suit premises to plaintiffs. The amount deposited by defendant to the bank account of plaintiffs from 01.04.2018 is to be adjusted towards damages/ mesne profit. In view of the above, I hold that, the payments made by defendant after 01.04.2018 is not a rent, but it is towards damages. Accordingly, I answer Issue No.3 in the NEGATIVE and Issue No.4 PARTLY IN AFFIRMATIVE.
32. ISSUE NO.5: The learned counsel for the defendant has strenuously contended that, as per Order 3 Rule 2 of CPC, the attorney holder has to seek permission of the Court to prosecute the case on behalf of his principal. In the instant case, the attorney holder has not filed application U/O.3 Rule 2 of CPC seeking permission to prosecute the case on behalf of his principals viz., plaintiffs. Therefore the instant suit filed by the attorney holder without seeking permission U/O.3 Rule 2 of CPC is not maintainable. In support of his arguments, the learned 25 OS.25759/2018 counsel for the defendant placed reliance on the judgment of Hon'ble High Court of Karnataka, reported in ILR 2014 KAR 84 -
"R.NARASIMHA V/s. S.P.SRIDHAR".
33. I went through the above cited judgment. In the above judgment, it has been clearly stated that, there is no impediment in law for a party to prosecute his case through his attorney holder. Order 3 Rule 2 of CPC permits the attorney holder to represent his principal in the Court. In Order 3 Rule 2 of CPC it is not stated that, an attorney holder to represent on behalf of his master, he has to seek permission of the Court. When the law permits the attorney holder to represent on behalf of of his principal in Court or in other judicial proceedings seeking prior permission of a Court is not necessary. In this case, a perusal of plaint would show that, it was signed and presented by attorney holder. The defendant resisted the suit by filing written statement. During trial, PW1, the attorney holder lead evidence on behalf of plaintiffs & he was subjected for cross examination. When such is the case, for the sake of arguments, even if the contention of the defendant that, an attorney holder has to obtain prior permission to prosecute the case on behalf of his 26 OS.25759/2018 principals is accepted for a while, acceptance of plaint presented by attorney holder, non raising of the contention by defendant to dismiss the suit as not maintainable due to want of prior permission & parties went on for trial after framing of issues would amount to grant of implied permission by the Court to the power of attorney holder to prosecute the case on behalf of his principals viz., plaintiffs. Therefore the contention of the defendant that, in view of attorney holder has not obtained prior permission to prosecute the case on behalf of his principals, the suit is to be dismissed as not maintainable, is not sustainable.
34. The learned counsel for the defendant has also placed reliance on the judgment of Hon'ble Supreme Court of India in the case of "JANKI VASHDEO BHOJWANI & ANOTHER V/s. INDUSIND BANK LTD. & OTHERS" reported in (2005) 2 SCC 217.
35. The learned counsel for the plaintiffs placed reliance on the judgment of Hon'ble High Court of Karnataka in the case of "KAJU DEVI & OTHERS" reported in ILR 2005 KAR 4370.
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OS.25759/2018
36. I went through the above cited judgments. In the above judgments, it has been held that, an attorney holder cannot give evidence on behalf of principal. He can give evidence in respect of a fact which are within his personal knowledge. In the instant case, PW1 is none other than the father of 1st plaintiff & husband of 2nd plaintiff. From the facts stated by him would show that, he has personal knowledge about the facts of the case. In the instant case, defendant has admitted tenancy & also the date on which the tenancy would expire. Therefore in the instant case, there is no serious disputed facts in issue. The disputed points are technical points i.e., in view of Ex.P.3 Gift deed, whether the 1 st plaintiff become the landlord or not, whether the tenancy was validly terminated or not, whether the power of attorney holder can institute a suit without seeking permission or not, etc. Therefore having regard to the contentions raised by the defendant, the evidence of PW1, the attorney holder is not of much importance to decide the case. During the course of arguments, the counsel for the defendant has not pointed out any portion of statement of PW1 which cannot be believed due to want of personal knowledge. Therefore the judgment in the case of "JANKI VASHDEO BHOJWANI 28 OS.25759/2018 & ANOTHER" cited by the learned counsel for the defendant is not helpful to decide the case on hand.
37. The counsel for the defendant submits that, as per Ex.P.3 Gift Deed dated:24.01.2018, if the 1 st plaintiff become the landlord of the suit premises, then the 2nd plaintiff is misjoinder of party. Therefore the suit is bad for misjoinder of party.
38. The counsel for the plaintiff submits that, by virtue of gift deed 1st plaintiff has become the landlord of the suit premises. 2 Nd plaintiff is none other than the mother of 1 st plaintiff and she let out the suit premises to defendant by executing Lease Agreement dated:01.07.2015, therefore she is made as 2nd plaintiff.
39. A suit cannot be dismissed on the count of misjoinder of parties. If the plaintiff has made a misjoinder as defendant, that mis joinder is entitled for cost. In this case, the misjoinder is nonother than the mother of 1st plaintiff. There is no dispute between plaintiffs. Therefore having regard to the facts of the case, including 2 nd plaintiff as a party is not fatal to plaintiffs and the suit cannot be dismissed on that 29 OS.25759/2018 count. In view of the above and in view of my findings on Issue No.1 to 4, I hold that, 1st plaintiff is entitled for the relief of ejectment and damages of Rs.26,000/ per month from 01.04.2018 till the defendant vacate and handover the vacant possession of the suit premises. Accordingly I answer Issue No.5 PARTLY IN AFFIRMATIVE.
40. When the case was posted for defendant's argument. Defendant has filed application U/Sec.340 of Cr.P.C. to make a complaint against plaintiffs & PW1 for creating Ex.P.1 & 2 Power of attorneys & Ex.P.3 Gift deed.
41. Order 3 Rule 2 of CPC permits a party to appoint his/her agent, attorney holder to represent on his behalf in the Court and to do the acts permissible in law. Therefore execution of power of attorney by plaintiffs cannot be considered as offence or a creation of document for the purpose of the suit. 2Nd plaintiff and her husband PW1, Mr.Michael Bastian being the owners of suit premises, made the gift deed in favor of their daughter, the 1st plaintiff. Defendant being a tenant has no right to question the said gift deed. As I have already stated above, between 30 OS.25759/2018 plaintiffs & PW1 there is no dispute either regarding execution of Power of attorneys or gift deed. Defendant is stranger to those documents. He cannot question the legality of the said documents. From the material available on record & having regard to the contention put forth by the defendant would show that, his intention is to drag on the matter to continue his possession over the suit premises. With malafied intention he filed the said application to gain time. Hence the said application is deserve for dismissal with costs.
42. ISSUE NO.6: In view of my reasons& findings on Issues 1 to 5, I pass the following:
ORDER Plaintiffs suit is partly decreed with costs. Defendant is directed to vacate and handover the vacant possession of suit premises to 1st plaintiff within a month from this day and to pay damages/ mesne profit of Rs.26,000/ per month from 01.04.2018 till the defendant vacate and handover the vacant possession of the suit premises.
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OS.25759/2018
The application filed by defendant
U/Sec.340 of Cr.P.C. is dismissed with cost of Rs.2,000/ to 1st plaintiff.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 30 th day of September 2020) (MOHAMMED MUJEER ULLA C.G.) C/C. IV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 21) ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 MICHAEL BASTIAN
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Notarized copy of GPA dated:24.01.2018
Ex.P.2 Notarized copy of GPA dated:24.01.2018
Ex.P.3 Notarized copy of Gift Deed dated:24.01.2018
Ex.P.4 Katha extract
Ex.P.5 Katha certificate
Ex.P.6 Legal notice dated:21.02.2018
Ex.P.7 Legal notice dated:05.05.2018
Ex.P.8 Reply dated:24.05.2018
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OS.25759/2018
LIST OF WITNESS EXAMINED FOR THE DEFENDANT:
DW1 CLEMENT JAI SINGH
LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:
NIL
(MOHAMMED MUJEER ULLA C.G.)
C/C. IV Addl. City Civil & Sessions Judge
Mayohall Unit, City Civil Court
Bengaluru. (CCH - 21)