Bangalore District Court
Smt. Sulatha Gopinath W/O K.M. Gopinath vs Mr. S.P. Bopanna on 5 January, 2022
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No. 26010/2019
Dated this 5th day of January 2022
Plaintiff:- 1. Smt. Sulatha Gopinath W/o K.M. Gopinath,
Aged about 67 years, R/at No.108,
Rainbow Residency, Junnasandra,
Opp to Wipro Office, Sarjapur Road,
Bangalore- 560 035.
Represented by her GPA holder
Sri. K.M. Gopinath
(Rep by Sri. K.Sundaram and Associates Advocate)
V/S
Defendant:- 1. Mr. S.P. Bopanna, Proprietor,
M/s. Wash 2 Wear, No. 313,
24th Main Road, VI Phase,
J.P. Nagar, Bangalore- 560 078.
Also at: No. 706, 24th Main Road,
16th Cross, 6th Phase, J.P. Nagar,
Next to Nandini Hotel. Bangalore- 78.
(Rep by Sri. B.R. Prakash Advocate)
Date of Institution of the suit 29/07/2019
Nature of the (Suit or pro-note, suit
for declaration and possession, suit
Ejectment, Recovery of rent changes
for injunction, etc.)
2
Judgment OS No.26010/2019
Date of the commencement of recording
of the Evidence.
25/02/2021
Date on which the Judgment
05/01/2022
pronounced
Total duration Year/s Month/s Day/s
02 05 06
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
The GPA holder of plaintiff filed suit against the defendant for ejectment, recovery of arrears of rent and damages.
2. The brief facts of plaint averments is as under:
The GPA holder of plaintiff submits that the plaintiff is absolute owner of suit schedule property mentioned below.
:SUIT SCHECULE PROPERTY:
All that piece and parcel of the portion of ground floor of property bearing No.313, Katha No.315/10/10-4/1, 24th Main Road, VI Phase, J.P. 3 Judgment OS No.26010/2019 Nagar, Bangalore-5600078 totally measuring about 450 square feet of built up area.
The GPA holder of plaintiff further submits that defendant is tenant in the suit schedule property under plaintiff being inducted as such under lease agreement dated:03/02/2018, which was renewed under an agreement dated: 29/09/2018 on monthly rent of Rs. 40,000/- which is enhanced at the rate of 10% every year. The defendant has also paid sum of Rs. 4,00,000/- towards the security deposit to plaintiff. The defendant is running business of laundry under the name and style of Wash 2 Wear. As per the terms of lease defendant was specifically permitted to fix Chimney with permitted capacity which shall be opened on the terrace above the second floor which was fixed accordingly when the defendant started commercial activities. However latter on plaintiff and her husband noticed that the chimney was removed from its original position and was found lying on the floor. When plaintiff enquired the defendant informed that the chimney came 4 Judgment OS No.26010/2019 off the wall and will re-fix it very shortly. However during recent visit plaintiff's husband noticed that the chimney was not yet fixed and defendant has removed the pipeline from main exhaust out line to the second floor and connected all the outlet lines to the setback areas of the building in the ground floor, due to which bad air and fumes emitting from the washing machines are let out into the set back area causing air pollution to the neighborhood which further spread to footpath on the main road through the common entrance causing health hazard not only to the General Public but also to the patients visiting the Dental Hospital situated at 1st and 2nd floor of the building in particular.
3. The GPA of plaintiff further submits that it is also noticed that in addition to the existing machines defendant added few more machines which is beyond permitted consumption of Electricity. As per the terms of lease the permitted power consumption shall be within 4.5 KW and any excess use will be in violation of the terms of lease, and in case of any kind of 5 Judgment OS No.26010/2019 damage to building defendant will be held liable and responsible. That defendant have fixed large size signboard in front of the place damaging the other portion of building and causing inconvenience to other tenants similarly placed which is in violation of terms of lease agreement. The signboard is fixed encroaching upon the footpath. Another violation noticed is that defendant illegally using the open common space for washing and cleaning of hospital clothes which is not permitted under the lease agreement as it causes air pollution. The defendant has no manner of right or interest over the common set back area and usage of the said area is illegal which need to be stopped immediately. The defendant has no right to transgress the bounds and use the area beyond what is given under the lease deed. The plaintiff has already received complaints from the patients who visit the Dental Hospital and some public who use footfath regularly. Further defendant is also using the toilet for washing of clothes which is also permitted. The defendant have been 6 Judgment OS No.26010/2019 keeping heavy materials on the set back and blocking and preventing free flow of rain water which in turn may cause damage to the building. The defendant has illegally fixed plywood sheet on the teakwood window to fix pipeline to let the hot air emitting from the machines in to the open setback area and caused damage. In this regard the defendant is liable to compensate the damage caused to expensive teakwood window. The above facts show that defendant is in gross violation of the terms of the lease and have no manner of right or authority to continue to occupy the premises. In this regard notice was sent to the defendant calling upon him to adhere to the terms of the agreement and desist from illegal use and occupation of the premises. Therefore the defendant has no moral or legal right or authority to continue the tenancy. Hence she has left with no option but to terminate the tenancy exercising powers conferred on his client under lease agreement.
7
Judgment OS No.26010/2019
4. The GPA holder of plaintiff further submits that defendant has established and are running the cloth washing unit with electricity operated machines illegally without obtaining any license and permission issued by the competent authorities, for which she will also be held liable for prosecution by the competent authorities for no fault, which fact is evidenced by the closure notice issued by BBMP, Bommanahalli office. The defendant is in gross violation of the terms of lease agreement. The defendant has established the washing unit without obtaining proper license from competent authority and accordingly the pollution control board has directed defendant to close the unit immediately for running the unit illegally without obtaining necessary sanction and permissions from the competent authorities. After closure order issued by the pollution control board defendant expressed his desire to quit and vacate and continued to run the illegally even after closure order issued by the pollution control board. In spite of repeated demands the 8 Judgment OS No.26010/2019 defendant continued to run the unit illegally, even though the defendant undertook to shift the unit within two month in writing submitted to the pollution Control Board. Subsequently action was initiated by Karnataka Pollution Control Board and issued closure order on 30/04/2019 directed BESCOM to disconnect power supply and power was disconnected by BESCOM after 10 days, the defendant shifted the unit to new address. Even though E-mail communication defendant informed that he has vacated premises the defendant did not handover the vacant possession of property to plaintiff inspite of repeated demands by plaintiff. The defendant is in arrear of rent from January 2019 to July 2019 and fell in arrears of Rs.3,40,000/- and sum of Rs.13,756/- towards Water consumption bill and sum of Rs.6,322/- towards Electricity Charges, all together sum of Rs.3,60,078/- is due by the defendant. Since the defendant committed breach of terms of lease plaintiff has terminated tenancy by issuing notice of termination dated: 15/11/2018 notifying the defendant that 9 Judgment OS No.26010/2019 tenancy created under the lease deed dated: 29/09/2018 shall stand terminated on the close of 01/12/2018 and called upon the defendant to vacate and handover possession of the schedule property on or before 01/12/2018 as required U/s 106 of Transfer of Property Act. The defendant was also notified that occupation of the schedule premises from 01/12/2018 would be illegal and unauthorized. Since the defendant failed to comply with the demand of the plaintiff tenancy/lease stands terminated and the occupation of suit schedule premises by the defendant is illegal and calls for interference by this court. The statutory notice sent by her was duly served on defendant. The defendant has knowledge of issuance of notice by her. The occupation of suit premises by defendant from 01/12/2018 is illegal and unauthorized and is liable to pay damage for use and occupation of premises from 01/12/2018 till delivery of vacant possession of schedule premises to plaintiff.
10
Judgment OS No.26010/2019
5. The GPA holder of plaintiff further submits that the cause of action arose when she issued notice of termination of tenancy dated: 15/11/2018 and on 01/12/2018 when the defendant failed to vacate and deliver vacant possession of the suit schedule premise to her and thereafter when the defendant failed to pay damage, which is recurring in nature. The GPA holder of plaintiff prays to decree the suit directing the defendant to vacate and hand over possession of the schedule premises to plaintiff and direct the defendant to pay sum of Rs.3,60,078/- towards arrears of rent along with interest and future interest at the rate of 24% per annum from the date of receipt till the date of payment of entire amount. The GPA holder of plaintiff further prays to direct the defendant pay damages for unauthorized use of the suit schedule property from 01/12/2018 at the rate of Rs.5,000/- per day and directing the defendant to pay costs of the proceedings.
6. The defendant filed written statement submitting that the averments made in para 3 of the plaint that the plaintiff is the 11 Judgment OS No.26010/2019 absolute owner of the portion of ground floor of the property bearing No. 313, Katha No.315/10/10-4/1, 244 th Main Road, VI Phase, J.P. Nagar, Banglore totally measuring about 450 sq. feet of built up area is true and correct. Further avermenter of plaint para No.4 that defendant is the tenant in the suit schedule property under the plaintiff being inducted as such under lease agreement dated: 03/02/2018, which was renewed under an agreement dated: 29/09/2018 on a monthly rent of Rs.40,000/- which is enhanced at the rate of 10% every year. The defendant has also paid sum of Rs.4,00,000/- towards the security deposit to the plaintiff. The defendant is running business of laundry under the name and style of wash 2 wear. As per the terms of lease defendant was specifically permitted to fix chimney with permitted capacity which shall be opened on the terrace above the second floor which was fixed accordingly when the defendant started commercial activities is true and correct. The averments made in para 5 of plaint that however it was notice by the 12 Judgment OS No.26010/2019 plaintiff and her husband later that the chimney was removed from its original position and was found lying on the floor, when enquired the defendant informed that the chimney came off the wall and will re-fix it very shortly, however during a recent visit of plaintiff's husband it was noticed that the chimney was not yet fixed and it was further notice that defendant has removed the pipeline from the main exhaust out line to the second floor and connected all the outlet lines to the setback areas off the building in the ground floor, due to which bad air and fumes emitting from the washing machines are let out into the set back area causing air pollution to the neighborhood which further spread to footpath on the main road through the common entrance causing health hazard not only to the general public but also to the patients visiting the Dental Hospital situated at 1 st and 2nd floor of the building in particular is false. The averment made in para 6 of the plaint that in addition to existent machines defendant added few more machines which is beyond the permitted consumption 13 Judgment OS No.26010/2019 off electricity is entirely false. Further averments made in same para as per the terms of the lease the permitted power consumption shall be within 4.5 kw and any excess use will be in violation of the terms of the lease, and in case of any kind of damage to building defendant will be held liable and responsible is entirely false. The averments made in para No.7 of the plaint that the defendant have fixed large size signboard in front of place damaging other portion of building and causing inconvenience to other tenants similarly placed which is in violation of the terms of the lease agreement, the signboard is fixed encroaching upon the footpath is false. The averments made in para 8 of the plaint another violation noticed is that defendant illegally using the open common space set back area for washing and cleaning of hospital clothes which is not permitted under the lease agreement as it causes air pollution, the defendant have no manner of right or interest over the common set back area and usage of the said area is illegal which need to be 14 Judgment OS No.26010/2019 stopped immediately, defendant have no right to transgress the bounds and use the area beyond what is given under the lease deed, the plaintiff has already received complaints from the patients who visit the Dental Hospital and some public who use the foot path regularly about the pollution caused by defendant illegal activities, further defendant is also using the toilet for washing of clothes which is also not permitted, the defendant have been keeping heavy materials on the set back and blocking and preventing free flow of rain water which in turn may cause damage to the building is false and it is created story by the plaintiff for the purpose of this suit.
7. The defendant further submits that the averment made in para 9 of the plaint that defendant has illegally plowed sheet on the teakwood window to fix pipeline to let the hot air emitting from the machines in the open setback area and caused damage, in this regard the defendant is liable to compensate the damage caused to expensive teak wood window is entirely false. The 15 Judgment OS No.26010/2019 averments made in para 10 of plaint that the above facts clearly show that the defendant is in gross violation of the terms of the lease and have no manner of right or authority to continue to occupy the premises, in this regard notice was sent to the defendant calling upon him to adhere to the terms of the agreement and desist from illegal use and occupation of the premises, therefore the defendant have no moral or legal right or authority to continue the tenancy etc is false. The averments made in para 11 of the plaint that defendant has established and are running the cloth washing unit with electricity operated machines illegally without obtaining any license and permissions issued by the competent authorities, for which plaintiff will also be held for prosecution by the competent authorities for no fault is entirely false. The averments made in para 12 of the plaint that defendant is in gross violation of the terms of lease agreement, the defendant has established the washing unit without obtaining proper license from the competent authority and accordingly the 16 Judgment OS No.26010/2019 pollution control board has directed the defendant to close the unit immediately for running the unit illegally without loaning necessary sanction and permission from competent authorities, after closure order issued by the pollution control board the defendant expressed his desire to quit and vacate the premises to the plaintiff, but later on the changed his version and continued to run the unit illegally even after the closure order issued by the pollution control board, in spite of repeated demands the defendant continuation to run the unit illegally, even though the defendant undertook to shift the unit within two months in writing submitted to the pollution control board is false. The averments made in para No.13 of the plaint that subsequently action was initiated by Karnataka pollution control board and issued closure order on 30/04/2019 directed BESCOM to disconnect power supply and power was disconnected by BESCOM after 10 days, the defendant shifted the unit to the new address, even through email communication defendant informed 17 Judgment OS No.26010/2019 that he has vacated the premises the defendant did not handover the vacant possession of the property the plaintiff inspite of repeated demands by the plaintiff is false.
8. The defendant further submits that averments made in para 14 of the plaint that the defendant is in arrears of rent from January 2019 to July 2019 and fell in arrears of Rs.3,40,000/- and sum of Rs.13,756/- towards water consumption bill and sum of Rs.632/- towards electricity charges, all together sum of Rs.3,60,070/- is due by the defendant is entirely false. The averment of plaint para 15 that since the defendant committed breach form the terms of the lease the plaintiff determined the tenancy, by issuing notice of termination in writing dated:
15/11/2018, notifying the defendant that the tenancy created under the lease deed dated:01/12/2018 and called upon the defendant to vacate and handover possession of the muscatel property on or before 01/12/2018 as required U/S 106 of the Transfer of Property Act. The defendant was also notified that 18 Judgment OS No.26010/2019 the occupation of the schedule premises from 01/12/2018 would be illegal and unauthorized etc is put to strict proof of the same. The defendant has given a tenable reply to the same. There is no cause of action arose to file the above suit and one stated is created one just for filing this suit.
9. The defendant submits that the defendant is tenant under plaintiff in respect of one portion of the ground floor from the North-East to the end of North-West three rooms, the property bearing No.313, Khatha No.315/10/10-4//1, 24th Main Road, 6th Phase, J.P. Nagar, Bengalore-078 measuring 450 sq.ft by virtue of Rent Agreement dated:29/09/2018. The rent period was fixed for period of 10 years from 03/02/2018. The defendant has paid rent advance of Rs. 4,00,000/- by way of bank transfer to the plaintiff bank account. The rant of rent at the time of rent agreement was Rs.40,000/- and enhanced at 10% every year. The defendant has invested lakhs of rupees for interior and decoration and for obtaining licences for running landary business as Government 19 Judgment OS No.26010/2019 Registration Rs.40,000/-, Plumbing Charges Rs.60,000/-, Electricity Charges Rs.4,00,000/-, Interiors Rs.2,40,000, Marketing Rs.20,000/- total Rs.4,000,000/-. The defendant is running the laundary business within the rental premises in the name and style of Wash and Wear No. 313, 24 th Main Road, J.P.Nagar, VI Phase, Bengaluru-78. The rent agreement was registered on 29/09/2018 for a period of 10 years and having lock in period of 3 years as possession and enjoyment clause No.19 of rent agreement and the plaintiff has caused legal notice to the defendant on 27/10/2018. Thereafter the plaintiff has been complaining before the Government authorities against the defendant for which the Government has caused notice to the defendant, for which the defendant has given tenable reply to the government authorities. The government authorities considered the reply of the defendant and have dropped the proceedings against the defendant. In fact the agreement entered into between the plaintiff and defendant on 29/09/2018 in respect of the lease 20 Judgment OS No.26010/2019 of the premises is registered one and the same do not contemplate fixing of any chimneys. Since the agreement do not contemplate fixing of any chimneys, the fixing or removing the original position is redundant. Though the business of his client would require chimney to be erected and the same has been erected having regard to the feasibility of the premises and also to run the business smoothly. The defendant has not used any excess power, as such business of defendant does not require consumption of such power. The defendant has taken the premises for the purpose of running the business and that the premises is let out for commercial activities, the defendant in order to identify the business being run has put up signboard commensurate with the area available for the said purpose and the said signboard has not caused any hindrance nor has caused any inconvenience to other tenants of the building. The signboard is also not causing any hindrance and is not encroaching upon foot path as alleged. There are no complaints whatsoever from any of 21 Judgment OS No.26010/2019 the neighbours and it is the plaintiff along with oblique motives is creating false and fictitious problems. In fact it is plaintiff who has instigating the persons in and around the locality and is also advising them not provide no objection for defendant to obtain required license to run the business. The defendant has not let any hot air, emitting from the machines question of compensating the defendant as demanded would not arise. The plaintiff entered into registered lease agreement with defendant with oblique motive has made false and reckless allegations against the defendant nor unlawfully evict the defendant from the premises. There is no breach of contract by the defendant. The defendant is regular in the payment of monthly rent and there is no arrears of rent payable by the defendant to the plaintiff. The defendant has every right to remain in possession of the premises and continue the tenancy until the expiry of period of 10 years from 03/02/2018.
The plaintiff has right to whatsoever to disturb tenancy of defendant or to terminate tenancy of defendant during said 22 Judgment OS No.26010/2019 period. The defendant has lodged complaint against plaintiff for having abused the defendant in filthy language and disturbing the business of plaintiff. In this regard Puttenahalli police have registered case in Crime No.11/2019 for offence punishable U/S 342, 504, 506 of IPC against the plaintiff's husband and others. The defendant prays to dismiss the suit with exemplary costs.
10. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiff proves that the defendant is tenant in the suit schedule property belonging to her as per lease agreement dt: 03/02/2018 for running laundry business and permitted the defendant to fix the Chimney in the said property?
(2) Whether the plaintiff proves that the defendant removed the Chimney fixed in the suit property, when she notice same and enquired the defendant, he informed that he will fix the Chimney shortly, but latter on not fixed and violated terms of lease agreement? 23
Judgment OS No.26010/2019 (3) Whether the plaintiff further the defendant started to use the set back area of suit property for washing and cleaning the hospital cloths and it caused inconvenience to public to use foot path?
(4) Whether the plaintiff proves that the defendant shifted his business from suit property to the new address, but not handed over vacant possession of suit property to her? (5) Whether the plaintiff proves that the defendant is due to pay rent from January 2019 to July 2019, water consumption bill, electricity bill of Rs. 3,60,078/- with interest @ 24% p.a. from the the date of receipt till payment of entire due amount and damages of Rs.5,000/- per month for unauthorized use of suit property from 01/12/2018?
(6) whether the defendant proves that lease period between him with plaintiff is for 10 years from 03/02/2018, and he is paying rent to the plaintiff regularly hence plaintiff has no right to terminate tenancy?
(7) Whether the plaintiff proves that she is entitled for reliefs as prayed in plaint?
(8) What order or decree?24
Judgment OS No.26010/2019
11. The GPA holder of plaintiff examined as PW.1 and marked documents ExP1 to ExP12. The defendant not cross-examined PW.1 an also not led any oral evidence on his side and not marked documents.
12. The plaintiff counsel argued. Inspite of opportunity given, the defendant counsel not argued. Perused the records.
13. My findings to the above Issues are as under:-
Issue No.1: In Affirmative Issue No.2: In Affirmative Issue No.3: In Affirmative Issue No.4: In Affirmative Issue No.5: In Affirmative Issue No.6: In Negative Issue No.7: In Affirmative Issue No.8: See final order for following:
:REASONS:
14. Issues No.1 to 7:25
Judgment OS No.26010/2019 The GPA holder of plaintiff K.M. Gopinath S/o late. K.M. Kaimal filed his affidavit in lieu of examination in chief as PW.1 and deposed the evidence that the plaintiff is the owner of the plaintiff is absolute owner of suit schedule property. The defendant is the tenant in the suit schedule property under the plaintiff being inducted as such under a Lease agreement dated:03/02/2018, which was renewed under an agreement dated:
29/09/2018 on a monthly rent of Rs. 40,000/- which is enhanced at the rate of 10% every year. The defendant has also paid sum of Rs. 4,00,000/- towards the security deposit to the plaintiff. The defendant is running a business of Lundry under the name and style of Wash 2 Wear. As per the terms of the lease the defendant was specifically permitted to fix Chimney with permitted capacity which shall be opened on the Terrace above the second floor which was fixed accordingly when the defendant started commercial activities. However it was noticed by the plaintiff and her husband later that the chimney was removed 26 Judgment OS No.26010/2019 from it's original position and was found lying on the floor. When enquired the defendant informed that the chimney came off the wall and will re-fix it very shortly. However during he visit the property he was noticed that the Chimney was not yet fixed and it was further noticed that defendant has removed the pipeline from the main exhaust out line to the second floor and connected all the outlet lines to the setback areas of the building in the ground floor, due to which bad air and fumes emitting from the washing machines are let out into the set back area causing air pollution to the neighborhood which further spread to footpath on the main road through the common entrance causing health hazard not only to the General Public but also to the patients visiting the Dental Hospital situated at 1st and 2nd floor of the building in particular.
15. The PW.1 further deposed evidence that is also noticed by plaintiff that in addition to the existing machines defendant added few more machines which is beyond permitted consumption of 27 Judgment OS No.26010/2019 Electricity. As per the terms of the Lease the permitted power consumption shall be within 4.5 KW and any excess use will be in violation of the terms of the Lease, and in case of any kind of damage to the building defendant will be held liable and responsible. That defendant have fixed a large size signboard in front of the place damaging the other portion of the building and causing inconvenience to other tenants similarly placed which is in violation of the terms of the lease agreement. The signboard is fixed encroaching upon the footpath. Another violation noticed is that defendant illegally using the open common space for washing and cleaning of hospital clothes which is not permitted under the lease agreement as it causes air pollution. The defendant have no manner of right or interest over the common set back area and usage of the said area is illegal which need to be stopped immediately. The defendant has no right to transgress the bounds and use the area beyond what is given under the lease deed. The plaintiff has already received complains from the 28 Judgment OS No.26010/2019 patients who visit the Dental Hospital and some public who use the activities. Further defendant is also using the toilet for washing of clothes which is also not permitted. The defendant has been keeping heavy materials on the set back and blocking and preventing free flow of rain water which in turn may cause damage to the building. The defendant has illegally fixed plywood sheet on the teakwood window to fix pipeline to let the hot air emitting from the machines in to the open setback area and caused damage. In this regard the defendant is liable to compensate the damage caused to expensive teakwood window.
The above facts clearly show that the defendant is in gross violation of the terms of the lease and have no manner of right or authority to continue to occupy the premises. In this regard notice was sent to the defendant calling upon him to adhere to the terms of the agreement and desist from illegal use and occupation of the premises. Therefore the defendant has no moral or legal right or authority to continue the tenancy. Hence plaintiff is left 29 Judgment OS No.26010/2019 with no option but to terminate the tenancy exercising powers conferred on his client under the Lease agreement.
16. The PW.1 further deposed evidence that the defendant has established and are running cloth washing unit with electricity operated machines illegally without obtaining any license and permissions issued by the competent authorities, for which plaintiff will also be held liable for prosecution by the competent authorities for no fault, which fact is evidenced by the closure notice issued by the BBMP, Bommanahalli office. The defendant is in gross violation of the terms of lease agreement. The defendant has established the washing unit without obtaining proper license from the competent authority and accordingly the pollution control board has directed the defendant to close the unit immediately for running the inti illegally without obtaining necessary sanction and permissions from the competent authorities. After closure order issued by the pollution control board the defendant expressed his desire to quit and vacate and 30 Judgment OS No.26010/2019 the premises, but latter on he has charged his version and continued to run the illegally even after the closure order issued by the pollution control board. In spite of repeated demands the defendant continued to run the unit illegally, even though the defendant undertook to shift the unit within two month in writing submitted to the pollution Control Board. Subsequently, action was initiated by Karnataka Pollution Control Board and issued closure order on 30/04/2019, directed BESCOM to disconnect power supply and power was disconnected by Bescom after 10 days, the defendant shifted the unit to the new address. Even though E-mail communication defendant informed that he has vacated the premises the defendant did not handover the vacant possession of the property to the plaintiff inspite of repeated demands by the plaintiff. The defendant is in arrear of rent from January 2019 to July 2019 and fell in arrears of Rs. 3,40,000/- and sum of Rs.13,756/- towards Water consumption bill and sum of Rs.6,322/- towards Electricity Charges, all together a sum of 31 Judgment OS No.26010/2019 Rs. 3,60,078/- is due by the defendant. As on date the defendant did not pay any amount towards monthly rents and other charges to plaintiff even after filing the present suit. Since the defendant committed breach of the terms of the lease plaintiff determined the tenancy, by issuing notice of termination in writing dated:
15/11/2018, notifying the defendant that the tenancy created under the lease deed dated: 29/09/2018 shall stand determined on the close of 01/12/2018 and called upon the defendant to vacate and handover possession of the schedule property on or before 01/12/2018 as required U/s 106 of the Transfer of Property Act. The defendant was also notified that the occupation of the schedule premises from 01/12/2018 would be illegal and unauthorized. Since the defendant failed to comply with the demand of the plaintiff the tenancy/lease stands terminated and the occupation of the suit schedule premises by the defendant is illegal and calls for interference by this court. The statutory notice sent by the plaintiff was duly served on the defendant. Hence the 32 Judgment OS No.26010/2019 defendant has the knowledge of the issuance of the notice by the plaintiff, the occupation of suit premises by the defendant from 01/12/2018 is illegal and unauthorized and is liable to pay damage for use and occupation of premises from 01/12/2018 till the delivery of the vacant possession of the schedule premises to the plaintiff. The PW.1 prays to decree the suit as prayed. In support of oral evidence PW.1 marked ExP1 to ExP12.
17. The ExP1 is GPA executed by plaintiff Sulatha Gopinath in favour of her husband K.M. Gopinath for conducting the present case. The ExP2 is certified copy of the rental agreement dated: 29/09/2018 between plaintiff and defendant relating to the suit schedule property, wherein the rent period commences from 03/02/2018 and rent period is for 10 years from 03/02/2018 and in the rental agreement there are several conditions mentioned. The ExP3 is the notice given by the Health Officer, BBMP, Bengaluru to the defendant mentioning that owner of the property where the defendant is running business filed complaint before 33 Judgment OS No.26010/2019 the Karnataka State Pollution Control Board and intimated the defendant to get permission from the owner as well as no objection certificate from the Karnataka State Pollution Control Board to run the business and till then intimated to close the business, otherwise action will be taken through the Department. The ExP4 is endorsement given by the Health Office, BBMP, Bengaluru to defendant relating to Order dated 14/01/2021. The ExP5 is letter given by the defendant to the Senior Environmental Officer, Karnataka State Pollution Control Board, Nisarga Bhavan, Bengaluru praying that after taking permission he shift his Wash2Wear at #313, 24th Main, J.P. Nagar, within two months. The ExP6 is letter of defendant. The ExP7 and ExP8 are the information furnished by the Public Information Officer of Karnataka State Pollution Control Board to the defendant. The ExP9 is order passed by the Karnataka State Pollution Control Board regarding closure Wash2Wear industry situated at 313, 24 th Main Road, VI Phase, J.P. Nagar, Bengaluru for non compliance 34 Judgment OS No.26010/2019 of provision of Water (Prevention & Control of Pollution) Rules 1974 which is run by the defendant. The ExP10 is legal notice dated 15/11/2018 issued by the plaintiff to the defendant intimating the defendant to quit and hand over the vacant possession of the suit schedule property on or before 01/12/2018 and pay damages for unauthorized occupation of the property at the rate of Rs.10,000/- per day from 01/12/2018 to handing over possession. The ExP11 is postal receipt and ExP12 is postal acknowledgement.
18. The defendant appeared and filed the written statement and the defendant admits that he is the tenant in the suit schedule property as per the rental agreement dated 29/09/2018. The defendant denied the entire other allegations of plaint para No.5 to 16. The defendant contending that he is regularly paying rent to the plaintiff as per the rental agreement and he has not violated any conditions of the rental agreement and in the lease agreement does not contemplate fixing of any chimney. Since the agreement 35 Judgment OS No.26010/2019 does not contemplate any chimney the fixing or removing the original position is redundant. Further defendant has not used any excess power and the business of defendant also do not require consumption of such power. That as per the plaintiff mentioned in the plaint that as per the terms of lease defendant was specifically permitted to fix his chimney with permitted capacity he shall be obtained on the second floor which was fixed accordingly when the defendant started commercial activities. However it was noticed by the plaintiff and her husband later on that Chimney was removed from its original position and found laying on the floor, when enquired the defendant, he informed that chimney came off the wall and will re-fix it very shortly. However during the recent visit by the plaintiff husband it was noticed that chimney was not yet fixed and the defendant has removed the pipe line from the main exhaust out line to the second floor and connected all the outlet lines to the setback areas of the building in the ground floor, due to which bad aid and fumes emitting 36 Judgment OS No.26010/2019 from the washing machine are let out into the set back area causing air pollution to the neighbor which further spread to footpath on the main road through the common entrance causing health hazard not only to the general public but also to the patients visit the Dental Hospital situated first and second floor of the building in particular. In addition to the existing machines defendant added few more machines which is beyond the permitted consumption of Electricity. As per the terms of lease the permitted power consumption shall be within 4.5 KW and any excess use will be in violation of the terms of the lease and in case of any kind of damage to the building the defendant will be held liable and responsible. Therefore the main contention of plaintiff that defendant has violated the terms and conditions of lease agreement and terminated the tenancy with the defendant and directed the defendant to hand over vacant possession of the suit schedule property on or before 01/12/2018 as required U/s 106 of TP Act.
37
Judgment OS No.26010/2019
19. Whereas the defendant in his written statement denied the allegations of the plaintiff that he is defaulter in payment of the rent and also violated the terms sand conditions of the lease agreement. Further the defendant contended that to the notice issued by the plaintiff U/s 106 of T.P. Act termination of the tenancy he has given the suitable reply. But the defendant even though appeared through his counsel and filed the written statement contesting the suit, but the defendant has not cross- examined the PW.1 and also he has not led evidence not marked any documents i.e., reply given to the notice of the plaintiff for termination of the tenancy. That GPA Holder of the plaintiff examined as PW.1 on 25/02/2021 and thereafter matter adjourned on several dates for further examination-in-chief till 05/08/2021, but defendant counsel not present before the Court on those dates of hearing. On 05/08/2021 the plaintiff counsel filed IA No.3 for production of the documents, defendant counsel absent, case posted for objection to IA No.3 on 25/08/2021. Then on 38 Judgment OS No.26010/2019 25/08/2021 the plaintiff and defendant counsel was present and that day IA No.3 was allowed and posted case for further examination-in-chief of PW.1 on 14/09/2021. Then on 14/09/2021 the plaintiff counsel and PW.1 present before the Court and defendant counsel absent and matter was passed over till 12.15 p.m, then also PW.1 and counsel present, defendant counsel absent, on that day PW.1 further examined and marked the ExP1 to ExP12 and defendant counsel was absent. Hence the cross-examination of PW.1 was taken as nil and on that day plaintiff counsel closed the evidence, case posted for defendant evidence on 28/09/2021. That on 28/09/2021 plaintiff counsel was present, but defendant counsel absent, hence defendant side evidence taken as nil and posted for arguments on 19/10/2021 and then on 26/10/2021. On 26/10/2021 plaintiff and defendant counsel present, defendant counsel filed IA No.4 & 5 for reopen of the case and recall of PW.1 for cross examination and plaintiff counsel taken time for objection, matter adjourned on 08/11/2021. 39
Judgment OS No.26010/2019 On 08/11/2021 plaintiff and defendant counsel present, the plaintiff counsel submitted no objection to IA No.4 & 5 on cost. Hence IA No.4 & 5 were allowed and PW.1 recalled for cross- examination by the defendant side as last chance and adjourned on 16/11/2021. On 16/11/2021 PW.1 and counsel present and defendant counsel also present and matter was passed over and again called at 1.20 p.m, at that time plaintiff counsel and PW.1 were present, the defendant counsel absent and on behalf of the defendant counsel another one advocate prays time, but prayer was rejected and cross-examination of PW.1 was taken as nil and case was posted for arguments. Then on 07/12/2021 the plaintiff and defendant counsel present. The defendant filed IA No.6 & 7 for reopen and recall of PW.1 for cross-examination and case posted for objection on 16/12/2021 and on 16/12/2021 plaintiff and counsel present and defendant counsel on record absent and on behalf of the defendant counsel another one advocate present, the plaintiff counsel submitted no objection to IA No.6 & 7. 40
Judgment OS No.26010/2019 Hence IA No.6 & 7 allowed on cost and PW.1 recalled for cross- examination and matter passed over and again called out at 11.50 a.m, at that time PW.1 and counsel present, but defendant counsel absent, again matter passed over and called out at 12.50 p.m, at that time also PW.1 and counsel present and on behalf of the defendant counsel another one advocate prays time for cross- examination of PW.1 as his senior counsel out of station, then the prayer was rejected and cross-examination of PW.1 is taken as nil and again case posted for arguments. The plaintiff counsel filed written arguments and defendant side not advanced any arguments. Therefore the proceedings of the order sheet discloses that maximum opportunity was given to the defendant side for cross-examination of PW.1 and leading their evidence, but they have not utilized the opportunity and not cross-examined PW.1 and also not led the evidence. Hence the defendant failed to prove the defence taken in the written statement. The oral evidence of PW.1 deposed and documents marked as ExP1 to ExP12 are 41 Judgment OS No.26010/2019 unchallenged and there is no unrebuttal evidence to the evidence of PW.1. The defendant admits that plaintiff is the owner of the suit schedule property and defendant is the tenant in the said suit schedule property. That as per ExP10 notice the plaintiff has terminated the tenancy of the defendant in view of the violation of the conditions of lease agreement. Hence the plaintiff is entitled for the possession of the suit schedule property from the defendant and also entitle for arrears of rent with interest. But the damages of Rs.5,000/- per day claimed by plaintiff for unauthorized use and occupation of the suit schedule property by the defendant from 01/12/2018 is excessive, hence plaintiff is entitle for damages of Rs.1,500/- per days for unauthorized use and occupation of suit schedule property from the defendant from 01/12/2018.. Therefore the plaintiff proved Issue No.1 to 5 & 7 and defendant failed to prove Issue No.6. Hence I answer Issues No.1 to 5 & 7 in Affirmative and Issue No.6 in Negative. 42
Judgment OS No.26010/2019 20. Issue No.8 :
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby decreed with costs.
It is ordered and decreed that the defendant is directed to vacate and hand over the vacant possession of the suit schedule property to the plaintiff within 30 days from the date of this order.
Further the defendant is directed to pay sum of Rs.3,60,078/- towards arrears of rent along with future interest at the rate of 9% p.a from the date of order till the repayment of entire amount to the plaintiff.43
Judgment OS No.26010/2019 Further the defendant is directed to pay damages for unauthorized use and occupation of the schedule premises at the rate of Rs.1,500/- per day from 01/12/2018 till handing over possession of the suit schedule property to the plaintiff.
Draw decree accordingly.
(Dictated to the stenographer, typed by him. Corrected on line in computer, taken printout, then again corrected, signed and pronounced by me in the open court on this 5th day of January 2022).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : K.M. Gopinath S/o. Late. K.M. Kaimal
DOCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 : Certified Copy of GPA dated:23/07/2021
ExP2 : Certified Copy of Rental Agreement
ExP3 : Certified Copy of Endorsement dated:14/01/2019
44
Judgment OS No.26010/2019
ExP4 & 5 : Letters
ExP7 & 8 : Letter to the Karnataka State Pollution Control
Board
ExP9 : Copy of Order copy issued by Karnataka State
Pollution Control Board
ExP10 : Letter dated: 15/11/2018
ExP11 : Postal receipt
ExP12 : Postal acknowledgment
WITNESSES EXAMINED FOR THE DEFENDANTS:
-Nil-
DOCUMENTS MARKED FOR THE DEFENDANTS:
-Nil-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT : BANGALORE.