Bangalore District Court
Miss. Anasuya M vs Sri. P.V.Anandaram on 1 February, 2021
IN THE COURT OF SMALL CAUSES
AT BENGALURU (SCCH5)
DATED THIS THE 1ST DAY OF FEBRUARY, 2021
PRESENT: SMT. SHARMILA. S, B.Com, LL.B.,
VIII ADDL. JUDGE & ACMM,
COURT OF SMALL CAUSES,
BENGALURU.
S.C No.3170/2011
PLAINTIFF : Miss. Anasuya M.
D/o. Late. Dr. H.S.Mohan Rao
Aged about 37 years
Residing at No.33,
"SHRI", Sampige Road,
Between 2nd & 3rd Cross,
Malleshwaram,
Bengaluru - 560 003.
Represented by her mother and
Power of Attorney Holder
Smt. Sharada M. Rao
(By Sri.S. Srinivasa Murthy, Adv.)
V/s
DEFENDANTS : 1. Sri. P.V.Anandaram
Major,
S/o. Late. Vasudev Hebbar P.
No.25, 1st Floor,
'Venkateshwara Nilayam',
1st Main Road,
Kempanna Brothers Layout,
Sheshadripuram,
Bengaluru - 560 020.
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S.C.No.3170/2011
SCCH5
Also at:
Modern Cafe,
No.190 (Old No.3),
Subedar Chatram Road,
Bengaluru - 560 020.
(By M/s.G.S.Bhat & Associates)
2. Smt. P. Lakshmi
Major
W/o. Late. Vasudev Hebbar P.
No.23, 'Ganga Nivasa',
3rd Cross, Muneshwara Block3,
Palace Guttahalli,
Bengaluru - 560 003.
3. Sri. P. Udaya
Major
S/o. Late. Vasudev Hebbar P.
No.24, 3rd Cross,
Muneshwara Block - 3,
Palace Guttahalli,
Bengaluru - 560 003.
4. Sri. P. Umesha
Major
S/o. Late. Vasudev Hebbar P.
5. Smt. Usha Kumari
Major
D/o. Late. Vasudev Hebbar P.
6. Smt. Vrunda
Major
D/o. Late. Vasudev Hebbar P.
Defendants No.4 to 6
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S.C.No.3170/2011
SCCH5
Residing at No.23,
'Ganga Nivasa', 3rd Cross,
Muneshwara Block 3,
Palace Guttahalli,
Bengaluru - 560 003.
(D2 to D6 By GKM Associates)
Date of Institution :
of the suit 25.11.2011
Nature of the suit : Ejectment
Date of :
commencement
recording of the 25.05.2012
evidence
Date on which the :
judgment was 01.02.2021
pronounced
Total Duration : Years Month/s Days
09 02 07
(SHARMILA.S.)
VIII ADDL. SCJ & ACMM,
BENGALURU.
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S.C.No.3170/2011
SCCH5
::JUDGMENT::
This is a suit filed by the Plaintiff against the Defendants for the relief of eviction praying to quit and deliver the vacant possession of the suit schedule property and also to pay a sum of Rs.6,14,376/ towards damages at Rs.45/ per sq. ft. from 01.09.2010 till
02.12.2010 along with interest at the rate of 18% p.a. accruing thereon till the date of payment.
2. The Plaintiff case in brief is as follows: The Plaintiff contended that, she is the owner of the commercial property bearing No.190 (Old No.3 and 3/1) situated at Subedar Chatram Road, Seshadripuram, Bengaluru having site area measuring 3248.5 sq. ft. comprising of Ground Floor measuring 2296 sq. ft. and first floor measuring 2156 sq.ft. In all measuring 4452 sq. ft, which is morefully described in the schedule. 5
S.C.No.3170/2011 SCCH5
3. It is contended that, Dr.H.S.Mohan Rao, Plaintiff's father let out the schedule property to Sri.Vasudev Hebbar, the father of the Defendant. On 03.02.1997, Dr.H.S.Mohan Rao requested Sri.Vasudeva Hebbar to pay rents to the Plaintiff. In this regard, the Plaintiff also wrote a letter on 03.03.1997 to Sri.Vasudeva Hebbar to pay rents to her. Accordingly Sri.Vasudeva Hebbar was paying rents upto March, 2010 to the Plaintiff. The last paid rent was Rs.7,000/ p.m. and there is no lease agreement or deed entered into between Sri.Vasudeva Hebbar and the Plaintiff and tenancy is on month to month basis.
4. Further it is contended that, 1st Defendant informed the Plaintiff that, his father Sri.Vasudeva Hebbar expired on 12.03.2010. Sri.Vasudeva Hebbar left behind the Defendants as his legal heirs and 1st 6 S.C.No.3170/2011 SCCH5 Defendant also informed the Plaintiff that his father Late. Vasudeva Hebbar had executed a Registered Will dated 04.03.2002 transferring the tenancy rights in respect of the above property in his favour. Further it is contended that, the 1st Defendant also furnished a copy of the will dated 04.03.2002, based on which the 1 st Defendant represented that he will be continuing as tenant and tendered the rents by cheques for the month of April, May and June 2010.
5. The Defendant No.1 is claiming to be entitled to continue as tenant in the schedule property, in order to obviate any untenable objections and further in order to prevent the other legal heirs of Late. Vasudeva Hebbar taking different stand, all the legal heirs have been arrayed as Defendants in this suit.
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6. The Plaintiff further contended that, the hotel business and related activity had been stopped by Vasudeva Hebbar in the schedule property for the past about 8 years. The schedule property is not being used for the purpose for which it was let out viz., hotel business. Instead of handing over the schedule property to the Plaintiff, all the Defendants are retaining the schedule property only to harass the Plaintiff. Hence, the Plaintiff left with no other option got issued a legal notice dated 12.08.2010 intimating the Defendants that, she is no more interested in continuing the tenancy in favour of the 1st Defendant or any other Defendants in respect of the schedule property.
7. Further it is contended that, Plaintiff is in need of the schedule property and therefore issued the above notice terminating the tenancy w.e.f. 31.08.2010 calling 8 S.C.No.3170/2011 SCCH5 upon the Defendants to quit ad deliver vacant possession of the schedule property with effect from 01.09.2010 failing which the Defendants are liable to pay damages at the rate of Rs.50,000/ p.m. to the Plaintiff from 01.09.2010 onwards apart from payment of costs. However, the amount mentioned in the notice is very less compared to the actual rent payable by the Defendants if they want to carry on business in similar locality and within the same area. Therefore, the Plaintiff is claiming a sum of Rs.45/ per sq. ft. per month.
8. The Plaintiff has encashed the cheques issued by the Defendant No.1 for the month of April, May and June 2010 i.e., prior to the issuance of notice and termination of the tenancy. Plaintiff has not encashed the cheques issued subsequent to the issuance of notice of termination.
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S.C.No.3170/2011 SCCH5
9. It is contended that, Defendant No.1 has sent an untenable reply and has refused to hand over the vacant possession of the schedule property to the Plaintiff. The other Defendants have not sent any reply nor complied with the demand. All the Defendants are squatting on the schedule property for reasons best known to them. Plaintiff having no other alternative is filing the present suit seeking ejectment of the Defendants from the suit schedule property.
10. The Plaintiff is also entitled to receive damages from 01.09.2010 till the Defendants vacate and hand over vacant possession of the schedule property. Their continuing to occupy the schedule property from 01.09.2010 is unlawful and they are liable to pay damages/mesne profits for use and occupation of the 10 S.C.No.3170/2011 SCCH5 same from 01.09.2010 till the vacant possession is handed over to the Plaintiff.
11. It is the contentions of the Plaintiff that, the Defendants are not carrying on any business in the schedule property. The Defendants are making efforts to sublease or transfer their whatever rights they have in the schedule property in favour of third parties. The cause of action for the suit arose on when Sri.Vasudeva Hebbar took the schedule property on lease from Dr.H.S.Mohan Rao. On 03.02.1997 when Dr.H.S.Mohan Rao requested Sri.Vasudeva Hebbar to treat the Plaintiff as landlord and pay rents to her. On 03.03.1997, when the Plaintiff requested Sri.Vasudeva Hebbar to pay rents to her. On various dates when Sri.Vasudeva Hebbar paid rents to the Plaintiff and on 12.03.2010 Vasudeva Hebbar was expired. During April 2010 when the 1 st 11 S.C.No.3170/2011 SCCH5 Defendant informed the Plaintiff that his father had executed a Registered Will dated 04.03.2002 transferring the tenancy rights in respect of the schedule property in his favour. On 12.08.2010 when the Plaintiff got issued a legal notice to the Defendants. On 25.08.2010 when the Defendant No.1 sent the reply and refused to vacate the schedule property. On 31.08.2010 when the Defendants failed to vacate and handover the schedule property to the Plaintiff as per notice dated 12.08.2010 and subsequently within the jurisdiction of the Hon'ble Court where the schedule property is situated and also where the Defendants are residing. Among other grounds, the Plaintiff prays to decree the suit.
12. After issuing of Court summons and notice to the Defendants, they appeared before the Court through their respective counsels and filed their written statement 12 S.C.No.3170/2011 SCCH5 separately. Defendant No.1 filed written statement by denying the entire averments of the plaint and also contended that, the suit is not maintainable either in law or on facts. Further the Defendant contends that, his father Late.P.Vasudeva Hebbar was a tenant under the Plaintiff's father and he was doing Hotel Business and other related business activities. In the 1 st floor there are few rooms which are let out to guests on monthly rental basis in a schedule premises which is continued even to this day and which are within the knowledge of Plaintiff and her father. According to the 1st Defendant when the schedule premises was let out it was extremely in a bad shape and this Defendant's father keep up the promises and continued with the business and this Defendant has spent large sum of money. During the lifetime of Late.Sri.P Vasudeva Hebbar he has assigned his tenancy 13 S.C.No.3170/2011 SCCH5 right in favour of the 1st Defendant with intimation to the landlord in which the 1st Defendant was doing the Hotel business along with his father. After the death of 1st Defendant's father, the licence obtained from the appropriate authority has been seized in view of the death of Sri.P.Vasudeva Hebbar which licence was granted in his name. Immediately after the death of his father the 1st Defendant has applied for licence to continue the same hotel business before appropriate authority and the same is under process. Further this Defendant contends that, he has no other alternative business and he is seeking out livelihood in the business carried on by him in the schedule property and the said business of Restaurant carried on in the name of the Modern Cafe in the ground floor is suspended for some time due to unavoidable reasons and the Defendant 14 S.C.No.3170/2011 SCCH5 intends to renew the business shortly. Other related business activities are carried on in the ground floor and first floor have been continued. According to this Defendant, the Plaintiff is well settled and is very well placed doing good avocation and has several buildings in and around Bengaluru and she is not in need of schedule premises. The Plaintiff has filed this suit with a malafide intention to evict the Defendant from the schedule premises. The Defendant is very deligent and honest in terms of payment of monthly rents in which the present Plaintiff was receiving rent without any demor and same was paying through cheques but the Plaintiff with a malafide intention and a collateral reason after receipt of monthly rents failed to deposit the same and has come with the above suit with a oblique motive which are 15 S.C.No.3170/2011 SCCH5 against to the law and not supported by any documents. Among other grounds prays to dismiss the plaint.
13. Further the Defendant No.2 to 6 have filed their written statement by denying the entire averments of the plaint and also contends that, there is no contractual obligations between these Defendants and Plaintiff and they are not the necessary and proper parties to the suit. These defendants contends that, the 1st Defendant is the tenant in respect of suit schedule property and he is in possession and occupation of the same. These Defendants are neither tenants nor in possession or occupation of the suit schedule property. According to these Defendants, they are not necessary and proper parties to the suit. Among other grounds prays to dismiss the plaint.
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14. Based on this plaint and documents produced by the Plaintiff the following point arises for my consideration:
1. Whether the Plaintiff proves that she is the absolute owner of the schedule property?
2. Whether the Plaintiff is entitled to the relief sought for?
3. What Order or decree?
15. Heard arguments on both counsels. Learned counsel for the Plaintiff and Defendant No.1 have filed written arguments and synopsis on their behalf. The learned counsel for the Plaintiff relied on a decisions reported in
1. AIR 1960 SC 941 between Satyadhyan Gosal and others vs Deorajin Debi and others 17 S.C.No.3170/2011 SCCH5
2. (1976) 4 SCC 66 between Y.B.Patil and others Vs Y.L.Patil
3. AIR 2005 SC 446 between U.P.State Road Transport Corporation Vs State of U.P. and others
4. V.Shankaranarayana Setty Vs G.Sudheer in O.S.No.5623/2015 decided by District and Sessions Judge, Bangalore City on 11 th October 2017.
5. RFA NO.792/2018 in between M/s.
Hindustan Motors Ltd., Vs M/s Seven Seas Leasing Ltd., decided on 19th September 2018 by Hon'ble Delhi High Court.
6. AIR 1996 Delhi 32 between Vinod Khanna and Ors., Vs Bakshi Sachdev.
7. (2006) 4 Supreme Court Cases 205 between Sarup Singh Gupta Vs S.Jagdish Singh and others.
8. Arrangement of Sections under Transfer of Property Act, 1882 18 S.C.No.3170/2011 SCCH5
9. Civil Appeal No.7251/2019 between K.V.Sathyavathi Though G.P.A Vs. M/S Auto World.
16. The learned counsel for the Defendant has relied on a decision reported in AIR 2015 Karnataka 128 between M/s. Auto World , Bangalore Vs. Smt.I.V.Sathyavathi.
17. My findings on the above points for consideration are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per my final order for the following:
::REASONS::
18. Points No.1 and 2: As the Plaintiff relied on the same set of facts in order to substantiate these 19 S.C.No.3170/2011 SCCH5 points, I have taken up both points together for common discussion.
19. To substantiate the above points, the mother/GPA holder of the Plaintiff herself examined as PW1 and got marked Ex.P.1 to Ex.P.14 documents. Further the Plaintiff herself examined as PW2 and got marked Ex.P.15 document and closed her side evidence. In the crossexamination of DW1, 13 cheques were marked as Ex.P16(a) to 16(l). Per contra, the Defendant No.1 himself examined as DW1 and got marked Ex.D.1 to Ex.D.8 documents and closed his side evidence. During the pendency of the suit, the 1st Defendant's counsel filed memo reporting the death of 2 nd Defendant who died on 30th June 2020.
20. According to the PW1 and PW2, the Plaintiff is the owner of the commercial property bearing No.190 20 S.C.No.3170/2011 SCCH5 (Old No.3 and 3/1) situated at Subedar Chatram Road, Sheshadripuram, Bangalore. The father of the Plaintiff has let out the schedule property in favour of Sri.Vasudev Hebbar, the father of the Defendant No.1 on 03.02.1997, Dr.H.S.Mohan Rao, the father of the Plaintiff requested Vasudeva Hebbar to pay rents to the Plaintiff. This regard, the Plaintiff also wrote a letter on 03.03.1997 to Sri.Vasudeva Hebbar to pay rents to him and accordingly, he was paying rents up to March, 2010 to the Plaintiff. There is no lease agreement or deed entered in to between the Plaintiff and the Defendant and tenancy is on month to month basis. The 1 st Defendant informed the Plaintiff that his father expired on 12.03.2010 leaving behind the Defendants as his legal heirs and his father had executed a Registered Will dated 04.03.2002 transferring the tenancy rights in respect of 21 S.C.No.3170/2011 SCCH5 the suit property in his favour. Based on which he will be continuing as tenant and tendered the rents by cheques for the month of April, May and June 2010.
21. In order to substantiate her contention, the GPA Holder of the Plaintiff and also the Plaintiff themselves examined as PW1 and PW2 and got marked Ex.P.1 to Ex.P.14 documents i.e., Khatha Extract, Khata Certificate, Property Tax Paid Receipts, Legal Notice, Postal Receipts, Reply to the Legal Notice, Postal Envelope and GPA. PW1 and PW2 have been cross examined by the learned counsel for the 1 st Defendant which consists of bear suggestions and denials. Further it is suggested for PW1 that, on the basis of Will the 1 st Defendant is continuing as tenant and he is paying rents, for which she denied and deposed that, the Defendant is paying rents and they are receiving. Further PW1 22 S.C.No.3170/2011 SCCH5 deposed that, she is the owner of the suit property and the Defendant No.1 is in possession of the said property. She has issued legal notice to the Defendant No.1 in the month of August 2010. Further PW2 deposed in her chiefexamination that, she is the daughter of PW1 and she is an Engineering Graduate with B.E. and M.Phil. qualification, she is working as Senior Engineering Manager at Philips Innovation Campus for Philips Healthcare. She is the owner of the suit schedule property and she has given a power of attorney dated 21.06.2003 in favour of her mother to initiate proceedings in respect of the suit property. In pursuant of her power of attorney, she initiated the above proceedings and zerox copy of the same was filed earlier when the suit was filed. Since, the original power of attorney dated 21.06.2003 was produced in another 23 S.C.No.3170/2011 SCCH5 case, when the evidence was let in the original could not be marked as the Defendants have opposed. Therefore, she executed one more power of attorney on 23.06.2012 in favour of her mother which is marked as Ex.P.14.
22. From the above evidence, the Defendant No.1 has taken a contention that the suit filed by one Smt.Sharada.M. Rao on behalf of Plaintiff on the strength of Power of Attorney which is not maintainable either in law or on facts and same is liable to be dismissed. In view of the fact that without holding any power of attorney of the Plaintiff Anasuya.M, the mother of the Plaintiff has filed the suit. Further the 1 st Defendant contends that, according to Plaintiff she has given power of attorney to his mother but till this day she has not produced either original copy or certified copy of the same. As such the Defendant questioned the same before this Court and 24 S.C.No.3170/2011 SCCH5 therefore the Plaintiff filed an application for summoning the document and this has dismissed their application. The Plaintiff not challenged the order of this Court in regard to dismissal of the application for summoning the document from the Court. It is the contention of the Defendant that, under law without producing the original documents i.e., General Power of Attorney cannot maintain the suit and the person who has filed the suit is also not entitled to issue legal notice i.e, termination of notice on behalf of the Plaintiff without holding the authority.
23. In this regard Hon'ble High Court of Karnataka in its order dated 23rd April 2015 in W.P.No.49519 49520/2013(GMCPC) which was preferred by the 1st Defendant against the order passed by this Court on dated 05.09.2013 wherein it was observed that: 25
S.C.No.3170/2011 SCCH5 "Time and again this Court has made it very clear that a party can file a suit personally. He can also file a suit through an authorized agent. If a suit is to be filed through an authorized agent, it should be authorized as required under law. But, in order to depose, no authorization is required, no power of attorney is required. If a person who is not duly authorized or who is not aware with the facts of the case were to give evidence, it would be a hear say evidence, it will have no value".
24. Further in W.P.No.15890/2016(GMCPC) decided on 29th March 2016 wherein Hon'ble High Court of Karnataka observed that:
"Plaintiff instituted the suit through her mother and power of attorney holder and she has been examined as PW1. An application under Order 3 Rule 1 and 2 R/w. Sec.151 of 26 S.C.No.3170/2011 SCCH5 CPC was filed by Plaintiff i.e., IA No.5 seeking permission for the power of attorney holder to represent and to appear on behalf of Plaintiff and tender evidence. Said application was allowed by Trial Court by order dated 05.09.2013 which was the subject matter of challenge before this Court which came to be dismissed with costs quantified at Rs.5,000/. It was also made clear in the said order that in order to depose no authorization is required and if a person were to enter the witness box and tender evidence who is not duly authorized or who is not aware of the facts of the case were to give evidence, it would become hear say evidence and it would have no value. As such it was held that there was no necessity for the Plaintiff to seek permission under Order 3 Rule 1 and 2 of CPC to examine power of attorney holder".27
S.C.No.3170/2011 SCCH5
25. This is a suit filed by the Plaintiff represented by her mother GPA holder Smt.Sharada M.Rao praying to direct the Defendants to quit and deliver the vacant possession of the suit property to the Plaintiff and prays to pay damages and also for mesne profit. Initially this suit which was pending before the Hon'ble XACCJ, Bangalore was numbered as O.S.44/2011. But during the pendency of that suit as per the order of Hon'ble X ACCJ, Bangalore this suit transferred to this Court of Small Causes and thereafter numbered as S.C.No.3170/2011 and made over to this Court. In this suit the P.A.Holder has filed her affidavit for examinationinchief and documents as Ex.P.1 to 14. The Defendant No.1 appearance though his counsel resisted the claim of the Plaintiff by filing written statement, wherein he has not raised any such objection that the 28 S.C.No.3170/2011 SCCH5 P.A.Holder has no authority to file the suit and she has no knowledge about the facts of the case. Order 3 Rule 2 of CPC postulates that, "any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing applying or acting as the case may be. On his behalf provided that any such appearance shall if the Court so directs be made by the party in person".
26. It is specific contention of the 1st Defendant that, the Plaintiff has executed a Power of Attorney in her favour in the year 2003 itself. But the original Power of 29 S.C.No.3170/2011 SCCH5 Attorney is produced in O.S.No.10336/2006 which is pending on the file of Hon'ble City Civil Judge, Bangalore (CCH13). The Plaintiff has produced the certified copy of the power of attorney executed on 21.06.2003 and has also produced the second Power of Attorney executed by the Plaintiff on 23.06.2012 which is marked as Ex.P.14. On perusal of Ex.P.14 it reveals that, there is a recital that the Plaintiff has already executed the GPA in favour of the agent on 21.06.2003, the said power of attorney is produced in one of the cases filed against the neighbor. The Plaintiff without suppressing the execution of earlier power of attorney has clearly mentioned the same in subsequent Power of Attorney executed in favour of the mother of the Plaintiff. The only question arises that whether the entire proceeding vitiates if there are two power of attorneys executed by same party to the same 30 S.C.No.3170/2011 SCCH5 person. The Plaintiff has not disputed regarding the execution of the power of attorney in favour of Smt. Sharada M Rao, who has filed affidavit in the present case for her examinationinchief. The certified copy of the power of attorney dated 21.06.2003 which is marked in O.S.No.10366/2006 shows that the Plaintiff has already executed GPA in favour of her mother in the year 2003 itself. On the strength of that power of attorney by producing the copy of the same, the present suit instituted by the Plaintiff represented by her mother on the file of Hon'ble X ACCJ, Bangalore and the same was numbered as O.S.No.44/2010. Thereafter, during the pendency of that suit on the point of jurisdiction by relying the decision of Hon'ble High Court of Karnataka which is reported in ILR 2011 Karnataka 229 between Abdul Wajid Vs A.S.Omkarappa, the Hon'ble X ACCJ, 31 S.C.No.3170/2011 SCCH5 Bangalore was pleased to pass an order on 08.11.2011 to transfer this case to the Court of Small Causes, Bangalore. On perusal of the records it reveals that, on the strength of the power of attorney executed by the Plaintiff dated 21.06.2003, the suit in O.S.44/2010 was instituted. After transferring of this case to this Court, the Plaintiff has executed another power of attorney as per Ex.P.14 in order to avoid the delay in proceedings. There is no such law to prohibit to any person to execute more than one power of attorney in favour of the same person. Hence, the arguments of the 1 st Defendant that the suit is not maintainable either in law or on facts in view of the fact that without holding any power of attorney of the Plaintiff the mother has filed the suit, is not sustainable.
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27. The Plaintiff contends that, she is the absolute owner of the suit schedule property and Plaintiff's father let out the schedule property to the father of the Defendant on 03.02.1997. After his death the 1 st Defendant continuing as tenant and tendered the rents by cheques for the month of April, May and June 2010. In order to substantiate her contention, the GPA Holder of the Plaintiff examined as PW1 and got marked Ex.P.1 to 14 documents i.e., Katha Extract, Khata Certificate, Property Tax Paid Receipts, Legal Notice, Postal Receipts, Reply to the Legal Notice, Postal Envelope and General Power of Attorney. PW1 has been crossexamined by the Defendant's counsel which consists of bear suggestions and denials. Further it is the contention of the Defendant that, during the life time of Late. Vasudeva Hebbar, the Plaintiff was receiving rent from him and subsequently 33 S.C.No.3170/2011 SCCH5 she was receiving the rent from the 1st Defendant by admitting tenancy of the 1st Defendant and during the course of crossexamination also PW1 has admitted in her evidence that 1st Defendant was paying rent and she was receiving the same and accepted the tenancy.
28. Further it is the contention of the Defendant that, Plaintiff is not required the schedule premises and nowhere she is stated in her notice and also in her affidavit evidence that, she wanted the premises for her livelihood, but she has asked for vacating the premises casually and she has admitted that she is gainfully employed and drawing handsome salary and not depending on this premises. But the 1 st Defendant is concerned from day one at the young age, he was doing Hotel Business along with his father and after the death of his father, he continued the same in the schedule 34 S.C.No.3170/2011 SCCH5 premises and except this business, particularly the schedule premises what he was doing for his business and he is fully depending on Hotel Business and he has no other avocation other than this present Hotel Business. From the above evidence, the Defendant has taken a contention that the Plaintiff is not required the suit property for bonafide use and occupation and if the Defendant evicted from the suit property, he will suffering from hardship.
29. On perusal of the written statement, the Defendant has admitted that his father was a tenant under Plaintiff's father and he was doing Hotel Business and other related business activities. During the life time of Vasudeva Hebbar, he has assigned his tenancy right in favour of the 1st Defendant with intimation to the 35 S.C.No.3170/2011 SCCH5 landlord in which the 1st Defendant was doing the Hotel Business along with his father.
30. In order to disprove the contention of the Plaintiff, the Defendant himself examined as DW1 and got marked Ex.D.1 to Ex.D.8 documents i.e., Original Pass Book, Endorsement issued by the BBMP, Trade Licence Application with Acknowledgement, Letter dated 24.09.2018, Postal Receipt, Letter dated 04.03.2011 and Postal Receipt. During the course of his cross examination the Defendant admitted that, his father was paying rents to the Plaintiff. The Plaintiffs have issued Legal Notice in favour of him and other Defendants as per Ex.P.10 which has been duly served on them and they gave reply as per Ex.P.12.
31. In the crossexamination of PW1, the Defendant admitted that after the death of his father he 36 S.C.No.3170/2011 SCCH5 is continuing as tenant in the suit property under Plaintiff, he continues to pay the rents to the Plaintiff in respect of the suit schedule premises. The unimpeached evidence of PW1 & 2 disclose that, the Plaintiff is the absolute owner of the suit schedule property on the basis the Khatha Certificate and Khatha Extract and the Plaintiffs have the let out the schedule premises to the Defendant.
32. At this stage it is useful to refer a decision reported in AIR 2015 SC 2459 between Dr.Ambica Prasad Vs Md.Alam wherein Hon'ble Supreme Court held that:
"It is well settled that a transferee of the landlord's rights steps in to the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the 37 S.C.No.3170/2011 SCCH5 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 attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment".
33. By virtue of Section 109 of Transfer of Property Act, 1882, there is statutory attornment of tenancy in favour of transferee. This view is supported by judgment of this Court in the case of M/S.POPULAR AUTOMOBILES vs. N.VEERASWAMY reported in ILR 1989 Kar. 1555 wherein it has been held as under; 38
S.C.No.3170/2011 SCCH5 "14. The very fact that the vendor of the respondent S. Rajagopal had addressed a letter to the petitioner apprising the sale in favour of the respondent and requesting the petitioner to attorn as a tenant of the respondent and to pay the rents due in respect of the schedule premises to the respondent with effect from 111982 is not disputed. When the communication has been received from S. Rajagopal with whom the petitioner claims the relationship of landlord and tenant, it is rather strange that the petitioner not only denies the sale but also the validity of the sale deed and insists that S. Rajagopal continues to be the owner of the schedule premises as well as the landlord in so far as the petitioner is concerned. The stand taken by the petitioner is incongruous and strange indeed. By operation of law, 39 S.C.No.3170/2011 SCCH5 even assuming that the petitioner regards the sale as null and void, there is what is known as statutory attornment and until and unless the sale is set aside by a competent Court, the petitioner has to be regarded as a tenant of the purchaser of the schedule premises. In other words, the respondent is deemed to be the landlord of the petitioner".
34. The position of law being declared thus, the contention of the Defendant that the Plaintiffs have no locustandi to issue legal notice terminating the tenancy and to maintain this suit for ejectment cannot be countenanced. The evidence of PW1 & 2 disclosed that they have attorned their tenancy in favour of the Defendant by paying rentals of the schedule premises. It is therefore clear that, there exists jural relationship of landlord and tenant in between the parties to this suit in 40 S.C.No.3170/2011 SCCH5 relation to the schedule premises and this suit is perfectly maintainable.
35. Further the Defendant contends that the Plaintiff is not required the schedule premises and nowhere she is stated in her notice and in her affidavit evidence that, she wanted the premises for her livelihood. But the 1st Defendant is concerned from day one at the young age he was doing Hotel Business along with his father and after his death, he continued the same in the schedule premises and except this business particularly in the suit schedule property. From this it reveals that, till today the Defendant is continuing in possession of the suit property unlawfully even after the expiry of the lease period.
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36. In a decision reported in (2014) 15 SCC 610 between Anil Bajaj and another Vs Vinod Ahuja wherein Hon'ble Supreme Court held that:
"It is not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises from which eviction is sought for the purpose of this business. It is also not the tenant's case that the landlord purposes to rent out vacant the tenanted premises after obtaining possession thereof or to use the same in any way inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively be 42 S.C.No.3170/2011 SCCH5 carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business".
37. Further in (2016) 10 SCC 209 between Bhupinder Singh Bawa Vs Asha Devi wherein the Apex Court held that:
"The High Court rightly relied on the ratio of Anil Bajaj Vs Vinod Ahuja to hold that it is perfectly open to the landlord to choose a 43 S.C.No.3170/2011 SCCH5 more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to which shop her son should start business from".
38. I have carefully gone through the above decisions. It is no doubt true that it is open for the Defendant to question the derivative title of the landlord. That apart the Defendant has paid the rent to the Plaintiff, which would conclusively prove that the Defendant has acknowledged the title of the Plaintiffs. From this fact it reveals that, the Defendant had admitted the ownership of the Plaintiff over the suit schedule property.
39. It is to be noticed that there is no other compelling reason as to why the Defendant should not be 44 S.C.No.3170/2011 SCCH5 allowed to challenge the right of the Plaintiff to prosecute the suit. The Plaintiff has clearly averred in the pleadings that the Defendant is a tenant under the Plaintiff on the same terms and conditions of Lease Agreement by continuing the same tenancy on a monthly rent of Rs.7,000/. Thus by conduct have attorned the tenancy, in respect of the suit schedule premises as per the terms of the agreement. Added to this in the written statement and in the chief evidence, the Defendant admitted the ownership of the Plaintiff and his father was tenant under her. Hence, when once the relationship with the previous owner is admitted it is sufficient to conclude that there is existence of jural relationship between the parties.
40. On perusal of Ex.P.10 discloses that, the Plaintiffs haves got issued a legal notice dated 45 S.C.No.3170/2011 SCCH5 12.08.2010 through his counsel by means of Registered Post A.D., terminating the tenancy of the Defendant and called upon him to quit and deliver the vacant possession of the schedule premises. Ex.P.12 discloses that the Defendant had issued reply dated 25.08.2010 to the legal notice of the Plaintiff.
41. During the arguments learned counsel for the Defendant relied on a decision reported in AIR 2015 Karnataka 128 between M/S Auto World, Bangalore Vs Smt.K.V.Sathvathai wherein Hon'ble High Court of Karnataka held that:
"Transfer of Property Act, Ss.116,106 EvictionWaiver of notice by landlordTenant remaining in occupation of premises, continued to remit rents by way of demand drafts after quit noticeSame received without demur and unconditionally over 46 S.C.No.3170/2011 SCCH5 years, during pendency of suitIt amounts to waiver of quit notice even if receipt of said amounts established as damages for use and occupation".
42. Contrary to the said decision, learned counsel for the Plaintiffs relied on a decision of Supreme Court of India decided in Civil Appeal No.7251 of 2019 between Sathyavathi Thorugh GPA VS M/S Auto World decided on September 13, 2019 wherein it was held that:
"We are thus of the view that the impugned order not being sustainable, is liable to be set aside and the order of the Trial Court dated 6th November, 2014 is restored. The appeal is accordingly allowed".
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43. It is noted that, as per Sec.106(1) of the Transfer of Property Act, 1882, in the absence of contract or local law or usage to the contrary, a lease of immovable property for any purpose other than agricultural or manufacturing purpose shall deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days notice. The Sub Section(2) of Sec.106 provides that, the period mentioned in Sub Section (1) shall commence from the date of receipt of the given on lease to the Defendant for business purpose. The said legal notice as per Ex.P.10 was issued terminating the tenancy of the Defendant with effect from, the Defendant had been asked to quit and deliver the vacant possession of the schedule premises. It is therefore clear that, the duration mentioned in the legal notice to quit and deliver the 48 S.C.No.3170/2011 SCCH5 vacant possession of the premises falls short of the period specified under Sub Section(1) of Section 106 of T.P.Act.
44. It is settled law that in the context of the Act what appears to be the meaning of the term "owner" is that visàvis the tenant the owner should be something more than the tenant. The position in law is that the "ownership" of the landlord for the purpose of maintaining a petition under Section 14(1)(e) of the Act is not required to be an absolute ownership of the property, and that it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition under Section 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when 49 S.C.No.3170/2011 SCCH5 the tenant has been paying the rent to the landlord. The tenant inducted by landlord is estopped and cannot dispute the title of his landlord in view of the provisions of Section 116 of the Indian Evidence Act without there being any subsequent change in the situation.
45. In the present case also, the Defendant No.1 admitted that his father was inducted as tenant by the father of the Plaintiff and the Defendant has attorned his tenancy in favour of the Plaintiff by paying rents of the schedule premises. Hence, this Court has no air of suspicion on the pleadings of the Plaintiff case. According to them the schedule property is bonafide required for them.
46. From the above evidence it shows that, the Plaintiff has suffered minimum extent because of the act of the Defendant and they neither get the possession nor 50 S.C.No.3170/2011 SCCH5 get any rent from the Defendant. Hence, the Defendant has to vacate and handover the possession of the suit schedule property. Consequently in my opinion the Plaintiffs are entitled for the relief sought for.
47. The Plaintiff contends that, the Defendants are in unlawful possession after the termination of the tenancy and therefore they are liable to pay damages/mesne profits for use and occupation of the same from 01.09.2010 till the vacant possession is handed over to the Plaintiff. According to the Plaintiff, the schedule premises is situated in commercial locality the floor area of the schedule premises measuring 4452 sq. ft. and at the rate of Rs.45 per sq. ft. which is the market rate prevailing for similar accommodation in the vicinity of the schedule property. The Plaintiff has paid the court fee on the damages as per separate valuation slip and 51 S.C.No.3170/2011 SCCH5 she is ready and willing to pay the difference in court fee, if any payable on the amount of mense profit/to be quantified after due enquiry from the date of suit up to the date of delivery of vacant possession. On the other hand, the Defendant No.1 contends that he is fully depending on the hotel business, particularly in the schedule premises since his father was doing hotel business from day one the Plaintiff's grandfather purchased the property and let it out the same to the father of the Defendant and thereafter the father of the Defendant's made further structural alteration by investing huge amount of Rs.20,00,000/ and it is the only property left for him and his family avocation. If this Court comes to the conclusion that, if the Plaintiff is going to sell the property to any other third party, may direct the Plaintiff to sell the same to this Defendant at 52 S.C.No.3170/2011 SCCH5 the then prevailing market rate. The Plaintiff admitted the fact that the Plaintiff has accepted the 1st Defendant's tenancy and she was receiving the rent even after issuance of termination of notice without any objection and nowhere they produced any document to show that they were receiving the said amount of Rs.7,000/ as damages.
48. The undisputed position is that, the Plaintiff is the landlord and the Defendants are the tenant and the period of tenancy is over. No doubt after the termination of the tenancy, at the first instance by a notice, there were some amounts accepted by the Plaintiff but that is claimed by the Plaintiff to be towards damages. There is no fresh tenancy created nor documents executed in that behalf. Thus at best in my view, the Defendants are tenant on a month to month basis. According to the 53 S.C.No.3170/2011 SCCH5 Defendant No.1, the amount towards the alleged rent @ Rs.7,000/ per month was remitted but not accepted.
49. The learned counsel for the Plaintiff has relied on a decision reported in (2006)4 Supreme Court Cases 205 between Sarup Singh Gupta Vs S.Jagdish Singh and others wherein it was held that:
"Rent Control and EvictionNoticeWaiver of notice to quitAcceptance of rent by landlord after service of notice to quit and before initiation of eviction suitIf amounts to waiver of noticeInference of such waiver, necessary condition is that there must be some act on the part of person giving notice which evinces an intention to treat the lease as subsisting Further, the express or implied consent of person to whom such notice is given must also be establishedWhether such intention to waive the notice has been shown by the act 54 S.C.No.3170/2011 SCCH5 concerned is essentially a question of fact, and court must consider all relevant facts and circumstancesMere fact that rent has been tendered and accepted after service of such notice, cannot be determinativeThere has to be other evidence to prove or establish that the landlord intended such waiverin present case,no such intention had been eviced by acceptance of such rent by the landlord, since even after accepting the rent tendered, landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was paid to him by the tenantIn any case, even if rent was neither tendered nor accepted, landlord in event of success would be entitled to payment of arrears of rentTransfer of Property Act, 1882Ss.113 and 111(h) Applicability".55
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50. In the instant case, as noticed earlier, notice to quit was given on 12.08.2010 and the suit filed on 3 rd December 2010. The tenant offered and the landlord accepted the rent for the months of April, May and June 2010 and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. Mere acceptance of rent did not by itself constitute an act of nature envisaged by Sec.113 of T.P.Act showing an intention to treat the lease as subsisting. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. It cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, 56 S.C.No.3170/2011 SCCH5 in the event of termination of lease the practice followed by the courts is to remit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to monthly rent payable by the tenant. As discussed above the Defendants are in unlawful possession after the termination of the tenancy and therefore they are liable to pay damages for use and occupation of the same after conducting separate enquiry.
51. The Defendant No.1 contends that, the Defendant No.2 to 6 are not necessary parties. The Defendants No.2 to 6 have also filed written statement contending that there is no contractual obligation between the Plaintiff and these Defendants and they are not the necessary and proper parties to the suit and hence prays to delete these Defendants from the suit. 57
S.C.No.3170/2011 SCCH5 According to these Defendants they are never in possession or occupation of the suit schedule premises. When the suit property is in possession of the 1 st Defendant, the land lord and tenant relationship is between the Plaintiff and 1st Defendant only, the question of payment of any rent or damages by these Defendants does not arise. In order to substantiate their contentions the Defendants No.2 to 6 have not come forwarded to adduce any evidence nor produced any documents to show that they are not in possession of the suit schedule property.
52. Now in the changing of circumstances, the law of Karnataka Rent Control Act has been structurally modified and suitably moulded as Karnataka Rent Act. Hence, it is relevant to discuss the spirit of law enacted by our legislatures about the amended Rent Act of 1999. 58
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1. Karnataka Rent Act, 1999 has replaced all the earlier laws, which were in operation in our State, in particular, the Karnataka Rent Control Act, 1961. Before I go to the salient features of the new Act, it is necessary to have a look at the working of the earlier Rent Control Act, 1961 so that we will be in a better position to appreciate the new Rent Act. The Rent Control Act, 1961 restricted the rights of the landlord to evict the tenant and the landlord could seek an eviction only on those grounds, which are mentioned in Sec.21 of the Act. Before seeking an eviction the landlord was required to establish that the premises in question was needed by him for his bonafide occupation.
2. The actual working of the Rent Control Act saw several difficulties faced both by the landlords as well as tenants. In fact, the long time taken for the litigation to end actually caused heart burn to the needy landlords. On the whole, the old Act did not fulfill the objects in spirit and instead of 59 S.C.No.3170/2011 SCCH5 the cases being disposed of in quick time, actually litigation prolonged for many years and there were many instances the landlord not living to see the premises being vacated by the tenant following the Court orders.
3. All the above difficulties faced by the litigant public led the lawmakers to have a fresh look at the rent legislations in our Country. More particularly the recommendations of the Economic Administrative Reforms Commission and the National Commission on Urbanization led the Government of India to formulate a model Rent Control Law which took care to balance the interests of both landlord and tenant and also provided them future construction. The State Governments took note of these developments and in our State the Government came up with a new legislation known as the Karnataka Rent Act, 1999 and this Act now replaces the earlier Rent Control Act, 1961.
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53. On perusal of the spirit and value of the above said moderate idea of the legislature, the case in hand, the relationship between the Plaintiffs and Defendant strained and due to the pendency of the litigation the Plaintiff and Defendants locked their horn and facing legal battle to get back their let out premises back. In turn the Defendants made a herculean effort to retain the let out premises as owner and they wants to continue further by denying the title of the Plaintiff over the same. Connected to this fact, the Defendant admitted that he is the tenant under Plaintiff and also admitted that he is a tenant in respect of the suit premises.
54. The above said admission given in the written statement clearly goes to show that the Defendant No.1 is the tenant under the Plaintiff and who is the absolute owner of the suit property. Though the Defendants No.2 61 S.C.No.3170/2011 SCCH5 to 6 have denied their relationship of tenants and landlord between themselves and Plaintiff, but they have not produced any documents to substantiate their contentions. Hence, they were also considered as tenants in respect of the suit property.
55. The attitude of the Defendants is against to the interest and spirit of the law of Rent Act. On this ground, the Defendants misused the Rent Acts Laws and Rules and defeat the real interest of the Plaintiff to take back the let out premises to his custody.
56. The Plaintiffs already fed up with the attitude of the Defendants and disheartened to allow the Defendants to continue as her tenants. Once the rental agreement was expired by changing of circumstances or ownership, it is obvious that the Defendants are in the unauthorized possession of the suit schedule property. 62
S.C.No.3170/2011 SCCH5 This cannot be cured in any other means. Such being the situation, the rental agreement was expired after affluence of time. Hence, I am of the opinion that the Defendants are no more tenant under the Plaintiff let out premises. So, they are in unauthorized occupation of the same. Hence, Defendants have to quit and vacate the schedule property and handover the same to the Plaintiff. Hence, I answer Point No.2 in the Affirmative.
57. Point No.3: On scrutinize the evidence and documents, it is pertinent to note that though the Defendants are the tenants under the Plaintiff, not vacated the schedule premises even after quit notice. So, the Plaintiffs are entitled for damages after conducting separate enquiry.
58. Since, the Plaintiffs have proved their ownership over the suit schedule property and also jural 63 S.C.No.3170/2011 SCCH5 relationship between herself and Defendants, within the tune of two months the Defendants have to quit and vacate the suit schedule property to the Plaintiff along with arrears of rent and the Plaintiffs have got every right to take back their property from the Defendant. From the above observations, the Court is of the opinion that the Plaintiff is entitled for the relief sought for in the plaint.
59. In other hand, the Defendant has stated that he is fully depending on the hotel business, particularly in the schedule premises and he has no other alternative business and is seeking out livelihood in the business carried on by him in the schedule premises and the business of restaurant carried on in the name of Modern Café in the ground floor is suspended for some time due to unavoidable circumstances. If he evict suddenly it is very difficult for him to eke out his livelihood. Hence, the 64 S.C.No.3170/2011 SCCH5 Court is of the opinion that it is better to give two months time to the Defendant to quit and vacate the suit property. Within the tune of two months the Defendants have to quit and vacate the suit schedule property to the Plaintiff along with arrears of rent. In view of above assigned reasons to the Point No.1 and 2, I proceed to pass the following:
::ORDER::
The suit of the Plaintiffs is hereby decreed with costs.
The Defendants No.1, 3 to 6 are hereby directed to vacate and handover the suit schedule property to the Plaintiff within two months from the date of this order.
Failing which the Plaintiffs are at liberty to proceed with due process of law.65
S.C.No.3170/2011 SCCH5 Further the Plaintiff is entitled for mesne profit/damages after conducting separate enquiry.
Draw decree accordingly. (Dictated to the stenographer directly on the computer, typed by her thereof, corrected and then pronounced by me on this the 1st day of February 2021) (SHARMILA.S) VIII ADDL. JUDGE & ACMM, COURT OF SMALL CAUSES, BENGALURU.
::SCHEDULE PROPERTY::
All that piece and parcel of the Commercial Property bearing No.190, (Old No.3 and 3/1) situated at Subedar Chatram Road (S.C.Road), Seshadripuram, Bengaluru, comprising Ground Floor measuring 2296 Sq.Ft. and First Floor measuring 2156 Sq.Ft. in all measuring 4452 Sq.Ft. measurement and bounded as follows:66
S.C.No.3170/2011 SCCH5 MEASUREMENTS OF THE SITE:
East to West : (37 + 36) /2 Ft.
North to South : (81 ½ + 96 ½)/2 Ft
In all measuring : 3248.5 Sq.Ft.
BOUNDARIES:
East by : Conservancy
West by : Property bearing No.189 and No.189/1
of S.C.Road (Old No.2)
North by : Thayamma's Property
South by : Subedar Chatram Road
(SHARMILA.S)
VIII ADDL. JUDGE & ACMM,
COURT OF SMALL CAUSES,
BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF:
PW1 : Smt. Sharada M. Rao
PW2 : Smt. Anasuya M.
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SCCH5
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF:
Ex.P.1 : Khata Extract Ex.P.2 : Khata Certificate Ex.P.3 to : Property Tax Paid Receipts Ex.P.9 Ex.P.10 : Office Copy of Legal Notice Ex.P.11 : 4 RPAD Receipts Ex.P.12 : Reply to the Legal Notice Ex.P.13 : Postal Envelope Ex.P.14 : Original General Power of Attorney Ex.P.14(a) to : Signatures (d) Ex.P.15 : Copy of GPA Ex.P.16, : Cheques (13 in Nos.) 16(a) to Ex.P.16(l)
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS:
DW1 : Sri. Anandaram P.V. LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS:
Ex.D.1 & : Original Pass Books (2 in Nos.) Ex.D.2 Ex.D.3 : Endorsement issued by the BBMP (marked subject to objection) 68 S.C.No.3170/2011 SCCH5 Ex.D.4 : Trade Licence Application with Acknowledgment and Fee Paid Receipt Ex.D.5 : Letter dated 24.09.2018 Ex.D.6 : Postal Receipt Ex.D.7 : Letter dated 04.03.2011 Ex.D.8 : Postal Receipt (SHARMILA.S) VIII ADDL. JUDGE & ACMM, COURT OF SMALL CAUSES, BENGALURU.