Karnataka High Court
Sri Erappa G vs Sri K M Manjunath on 19 April, 2022
C.R.P.No.500/2013
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CIVIL REVISION PETITION NO.500/2013
BETWEEN:
SRI ERAPPA. G
SINCE DEAD BY HIS L.RS
a) SMT. K. JAYALAKSHMI
W/O LATE ERAPPA
AGED ABOUT 63 YEARS
b) SRI JANARDHANA ERAPPA
S/O LATE ERAPPA
AGED ABOUT 43 YEARS
c) SMT. E.MALA
D/O LATE ERAPPA
W/O YOGESH
AGED ABOUT 40 YEARS
ALL ARE R/AT NO.12
VENKATARAMA LAYOUT
MARUTHISEVANAGAR
BANGALORE-560 033 ...PETITIONERS
(BY SRI JANARDHANA G., ADVOCATE)
AND:
SRI K.M.MANJUNATH
S/O K.P.NAGENDRASHETTI
AGED ABOUT 50 YEARS
SHOP NO.12, SRI.NANJUNDESHWARA
EARAPPA REDDY LAYOUT
BANASWADI MAIN ROAD
BANGALORE-560 043 ...RESPONDENT
(BY SRI SAILESH S.K., ADVOCATE)
C.R.P.No.500/2013
2
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 18 OF KARNATAKA SMALL CAUSE COURTS ACT
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
31.08.2013 PASSED BY THE XV ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, MAYOHALL UNIT, BANGALORE IN
S.C.NO.15577/2011.
THIS CIVIL REVISION PETITION COMING ON FOR
FURTHER HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCING MADE THE FOLLOWING:
ORDER
Heard.
2. Aggrieved by the dismissal of his suit for ejectment, the plaintiff in S.C.No.15577/2011 on the file of XV Additional Judge and Court of Small Causes, Bengaluru has preferred the above petition.
3. During the pendency of the petition, the petitioner died and his legal representatives have continued the case. For the purpose of convenience, the parties will be referred to as per their ranks before the trial Court.
4. The subject matter of the suit was property bearing Shop No.12 in Ground Floor bearing Khata No.6/1 situated at Erappa Layout, Banaswadi Main Road, Bengaluru measuring 13 feet x 24 feet. C.R.P.No.500/2013 3
5. The case of the plaintiff in brief is as follows:
He let out the suit premises to the defendant under lease agreement dated 01.04.1998 on monthly rent of Rs.1,000/- and sum of Rs.20,000/- was paid as security deposit. The rent was increased and rate of rent payable as on the date of suit is Rs.1,400/- per month. After expiry of the term of the lease, he requested the defendant to handover the possession of the property which was not complied. Ultimately, he got issued notice dated
06.12.2006 demanding vacant possession of the property. Despite service of notice, the defendant has not vacated the premises. Thus he claims decree for possession and damages at the rate of Rs.3,500/- per month from the date of the suit till possession is delivered to him.
6. The defendant contested the suit by filing written statement. His defence was as follows:
He was tenant of the suit property since 15.02.1989.
The rate of rent was enhanced from time to time. The last such agreement was dated 29.09.1995. He disputes the agreement dated 01.04.1998. The issuance of service of termination notice was disputed. Since tenancy was not C.R.P.No.500/2013 4 terminated as per Section 106 of the Transfer of Property Act, 1882 ('the Act' for short), the suit was not maintainable.
7. On the basis of the pleadings, the trial Court framed the following issues:
1. Whether plaintiff proves that he had validly terminated tenancy of defendant?
2. Whether suit of the plaintiff is maintainable?
3. Whether plaintiff proves the jural relationship of landlord and tenant in respect of suit schedule property?
4. Whether this court has got jurisdiction to try the suit?
5. Whether plaintiff is entitled for the reliefs sought for?
6. What decree or Order?
8. The parties adduced evidence. The plaintiff got examined himself as PW.1 and got marked Exs.P1 to P5. The defendant got himself examined as DW.1 and got marked Exs.D1 to D7.
9. The trial Court on hearing both side by the impugned judgment and order dismissed the suit on the C.R.P.No.500/2013 5 sole ground that there was no valid termination of the tenancy, therefore the suit was ejectment was not maintainable.
Submissions of Sri Janardhana.G., learned Counsel for the plaintiff:
10. There was no dispute with regard to jural relationship. As per Ex.D7 the respondent's own document i.e. lease agreement dated 29.09.1995, the parties agreed to be governed by the provisions of the Act if any term of that was inconsistent with the said Act. As per Section 106 of the Act when there is no period fixed with regard to the immovable property and evidenced by unregistered document it has to be treated as 11 months lease. When the lease of immovable property is for a term, as per Section 111(a) of the Act, the lease gets determined by efflux of time. In such cases, notice of termination under Section 106 of the Act is not required. Mere acceptance of the rent does not amount to waiver of the termination of the tenancy. Therefore the trial Court committed error in holding that the lease was not validly terminated. C.R.P.No.500/2013 6
11. In support of his submissions, he relies on the following judgments:
(i) M.C.Mohammed v. Smt.Gowramma1
(ii) Shanti Prasad Devi v. Shankar Mahto2 Submissions of Sri Sailesh S.K. learned Counsel for the defendant:
12. The service of notice as required under Section 106 of the Act was not proved. In the suit for ejectment without service of termination notice as required under Section 106 of the Act, the suit is not maintainable. In the lease deeds Exs.D1 to D7 the term of the lease is not mentioned. Therefore there is no merit in the contention that the lease was for eleven months and Section 111(a) of the Act applies. The contention regarding applicability of Section 111(a) of the Act was not raised before the trial Court. Therefore the plaintiff is estopped from taking such plea before this Court for the first time. The judgment in Shanti Prasad Devi's case referred to supra does not say that Section 106 of the Act shall be given go bye. Even otherwise the said judgment is not applicable to the facts 1 AIR 2007 KAR 46 2 AIR 2005 SC 2905 C.R.P.No.500/2013 7 of the case. Even in case of month to month tenancy, the compliance of Section 106 of the Act is mandatory, therefore the trial Court was justified in dismissing the suit.
13. In support of his submissions, he relies on the judgment in Dharam Pal v. Harbans Singh3
14. In the light of the rival submissions and the materials on record, the point that arises for consideration of this Court is "whether the trial Court was justified in dismissing the suit for want of notice of termination"?
15. Though the defendant in the initial part of the written statement denied the jural relationship, he himself set up Exs.D1 to D7 lease agreements. In the suit for ejectment the only material questions are whether there was jural relationship between the parties and whether tenancy was duly terminated.
16. So far as jural relationship, though the defendant in the earlier part of the written statement disputed the jural relationship, in the latter part of the written statement contended that he was tenant of the 3 (2006) 9 SCC 216 C.R.P.No.500/2013 8 premises right from 1989. To prove that he himself produced Exs.D1 to D7 the lease agreements between him and the plaintiff. Exs.D1 to D7 show that for the first time the parties entered into lease agreement on 15.02.1989. Thereafter till 29.09.1995 every year they went on executing the lease agreements which is evident from Exs.D1 to D7.
17. According to the plaintiff, the defendant agreed to execute agreement as per Ex.P1. But he resiled thereafter. Since Ex.P1 did not bear the signature of the defendant, the trial Court rightly held that the said document was not proved. In Ex.D7 no doubt the term of lease is not mentioned. But for every calendar year they went on executing lease agreements. That shows that the term of lease was one year. In para 4 of the second page of the agreement Ex.D7 the parties have agreed as follows:
"In the matter not herein specifically provided for an not inconsistent with contrary to tenancy and conditions of this lease deed under provisions of the Transfer of Property Act shall guide the lessor and lessee."C.R.P.No.500/2013 9
18. Thus it becomes clear that wherever agreement is inconsistent with the provisions of the Act, the parties have agreed to be governed by the provision of the Act. As per Section 107 of the Act the lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
19. Though Ex.D7 related to immovable property and possession was delivered, that was not registered. Under Ex.D7 the rent agreed was Rs.800/- per month. A sum of Rs.15,000/- was paid as security deposit. Since Exs.D1 to D7 were executed every year, it can be inferred that the parties intended to renew the tenancy every year. Since they were not registered, it has to be treated as eleven months tenancy. As the parties agreed to go by the provisions of the Act the lease has to be treated as lease for a period of eleven months. Therefore in such cases, the tenancy gets determined by efflux of time by virtue of Section 111(a) of the Act.
20. In para 17 of the judgment in Shanti Prasad Devi's case referred to supra Hon'ble Supreme Court held C.R.P.No.500/2013 10 that mere acceptance of the rent by the landlord after expiry of the period of lease does not amount to waiver of the termination of the lease. It was further held that option to seek renewal of the lease before expiry of the term of the lease has to be exercised by tenant, otherwise the lease gets determined by virtue of Section 116 of the Act.
21. The Division Bench of this Court in para 27 of the judgment in M.C.Mohammed's case referred to supra held that when under the agreement, the term of lease is fixed, the tenant is not entitled to notice under Section 106 of the Act on the expiry of the period of lease. Para 27 reads as follows:
"27. Section 111 prescribes mode of determination of tenancy. Once the lease determines in any of the modes prescribed under Section 111, the contract comes to an end and there is no question of giving a notice to quit to such lessee, who continued in possession after determination of lease i.e, after the contract comes to an end, there is no question of terminating the contract over and again by notice. Learned Counsel for the respondents-landlords also relied on a decision reported in AIR 1964 SC 461 (Supra) wherein it is envisaged that the C.R.P.No.500/2013 11 termination of tenancy by efflux of time, the question of statutory notice under Section 106 does not arise. In the similar circumstances, the Apex Court in a judgment reported in AIR 1988 SC 1845 has held that no notice is necessary. In the identical circumstances, in a decision reported in (1981) 2 SCC 199 (AIR 1981 SC 1550) (Supra), it is reiterated that no notice is necessary in case of the expiry of the lease by efflux of time. From the principles enunciated by the Apex Court in the decisions referred to above and from the reading of the provisions of Section 111 of the T.P Act, it is clear that on the expiry of the lease period by efflux of time, no further termination of the tenancy arises as no subsisting contract remains after the lease period is over."
(Emphasis supplied)
22. In this case also, Exs.D1 to D7 make it clear that term of the lease was eleven months in view of operation of Section 107 of the Act. After expiry of the said eleven months, lease automatically gets determined by efflux of time. Therefore the defendant was not entitled to notice under Section 106 of the Act.
23. Reading of the judgment in Dharm Pal's case referred to supra does not indicate that there was any written lease agreement like Exs.D1 to D7. That does not C.R.P.No.500/2013 12 even refer to Section 107 and 111 of the Act, therefore the said judgment cannot be justifiably applied to the facts of the case.
24. Under the circumstances, the trial Court committed error in dismissing the suit on the ground that the notice of termination under Section 106 of the Act was required and the suit was not preceded by the same.
25. In the written statement, the defendant admitted that the rate of rent at the time of institution of the suit was Rs.1,400/- per month. The suit is of the year 2011. Admittedly the rent was paid only upto 2016. Therefore the defendant is liable to pay rent at the rate of Rs.1,400/- per month from January 2017 till he hands over the possession of the property after adjusting the security deposit with the rent payable. The petition is partly allowed.
The impugned judgment and decree is hereby set aside. The suit of the plaintiff is partly decreed.
The defendant is hereby directed to pay arrears of rent at the rate of Rs.1,400/- per month from 01.01.2017 till he hands over the possession of the property. He shall C.R.P.No.500/2013 13 handover the possession of the property to the petitioners within 60 days from the date of receipt of copy of this order.
Decree shall be drawn accordingly.
Sd/-
JUDGE KSR