Karnataka High Court
Webbing And Belting Factory (P) Ltd. And ... vs C.M. Shashikumar on 5 December, 2005
Equivalent citations: AIR 2006 KARNATAKA 173, 2006 (3) ALL LJ NOC 572, 2006 (3) ABR (NOC) 540 (KAR), 2006 (2) AIR KANT HCR 588, 2006 AIHC 2242, (2006) 1 RENCJ 464, (2006) 1 RENCR 517, (2006) 2 RENTLR 6, (2006) 2 RECCIVR 808
Author: V. Gopala Gowda
Bench: V. Gopala Gowda, Ashok B. Hinchigeri
JUDGMENT V. Gopala Gowda, J.
1. This appeal is filed by the defendants questioning the correctness of the judgment and decree passed by the I Addl. City Civil and Sessions Judge, Bangalore (CCH-2) in O. S. No. 3699/2002 dated 7-11-2005 decreeing the suit with a direction to the defendants to vacate and deliver the vacant possession of the suit schedule property to the plaintiff within 30 days from the date of judgment and further decreed and ordered that the defendants shall pay a sum of Rs. 10,000/ as interim damages from 1-3-2002 till the date of delivery of possession of the suit schedule property to the plaintiff, urging various legal contentions and prayed for setting aside the same by allowing this appeal and dismissing the original suit.
2. The rank of the parties is referred to as assigned in the judgment passed by the trial Court for the sake of convenience.
3. The brief facts are as follows :- The first defendant is a tenant in respect of the suit schedule premises on the basis of the lease deed dated 18-5-1956. Originally, the lease period was for 11 months with a condition to renew the same for further period as agreed by the parties. As on the date of termination of the tenancy, the rent payable by the tenant is Rs. 500/- per month. It is the case of the plaintiff that the defendants have been paying the rent by cheques to the plaintiff. After defendants were informed of the partition of the schedule property by the plaintiff, the first defendant had taken the property on lease and it is carrying on the business in the name and style of Everest Hand-Woven by appointing a manager. The HRC proceedings were initiated against the defendants in HRC No. 1934/96, which came to be closed as abated on 7-2-2000. Thereafter, the plaintiff got issued quit notice dated 11-2-2002 and terminated the tenancy with effect from midnight of 28-2-2002 by invoking his right under Section 111 of the Transfer of the Property Act, 1988 (hereinafter referred as T.P. Act') calling upon them to vacate and deliver the vacant possession of the suit premises to the plaintiff. .
4. It is the case of the plaintiff that the defendants have refused to vacate the premises despite the fact determination of tenancy on the ground that the plaintiff is not the owner of the suit property as per the reply dated 20-2-2002. Therefore, it is stated by the plaintiff that the continuation in occupation by the defendants in the suit property with effect from 1-3-2002 is unauthorised and partakes the character of trespasser. Therefore, the plaintiff claimed damages at the rate of Rs. 10,000/- per month, till the date of delivery of vacant possession of the suit property by the defendants to him.
5. The suit was resisted by the defendants by filing written statement inter-alia contending that the same is not maintainable in law and that the plaintiff is not the owner of the suit schedule property and they have not admitted the registered partition deed between the plaintiff and his father dated 30-3-1981. However, it is admitted that the first defendant as the tenant of the suit property under one C. K. Channappa as per the lease deed dated 18-5-1986 and disclosed the relationship between the plaintiff and said Sri C. K. Channappa. Further they admitted that the lease period was initially for a period of 11 months and the same was renewed for further period of 11 months. Further they have admitted that it was a monthly tenancy and the rate of rent was to be enhanced from time to time. The first defendant disputes that the defendants have paid the rents by means of cheques after the defendants were informed of the partition between the plaintiff and his father. The fact of institution of HRC proceedings is not disputed in the said proceedings and also the jural relationship between them is disputed. It is further contended that the plaintiff has no locus standi to institute the suit and further taken the stand that they are not liable to pay the damages claimed by him w.e.f. 1-3-2002 much less at Rs. 10,000/- per month. It is further stated that there is no cause of action for the trial Court to try the suit.
6. The trial Court on the basis of pleadings, framed the following issues:
1. Whether the plaintiff is the lawful owner of the suit premises?
2. Whether there exists jural relationship of landlord and tenants between plaintiff and defendant?
3. Whether the plaintiff is entitled to the damages as sought for?
4. Whether the termination of tenancy is proper?
5. Whether the plaintiff is entitled to the reliefs claimed?
6. Whether this Court has got jurisdiction to try the case?
7. Whether the plaintiff is entitled to possession?
8. To what relief ?
7. The case went for trial. On behalf of the plaintiff, he himself got examined as P.W. 1 and got marked the documents as Exhibits P-1 to P-25(a) in justification of his claim. On behalf of the defendants, two witnesses namely, the Managing Director of first defendant company and the other one being the manager of second defendant-firm were examined in justification of their claim.
8. The trial Court, on appreciation of the pleadings of the parties answered Issues Nos. 2, 3, 4 and 7 in affirmative and Issue No. 5 is partly in the affirmative in favour of plaintiff and finally decreed the suit directing the defendants to vacate and deliver the vacant possession of the suit schedule property to the plaintiff within thirty days from the date of judgment. Further, the trial Court ordered the defendants to pay a sum of Rs. 10,000/- as interim damages from 1-3-2002 till the date of delivery of possession to the plaintiff, by recording its findings with reasons on the contentious issue.
9. The correctness of the findings and reasons recorded by the trial Court on the aforesaid contentious issues are seriously questioned by Sri M. Ramakrishna, learned Counsel appearing on behalf of the defendants contending that the finding recorded on issue No. 3 is erroneous as they have disputed the occupation of the suit schedule property and the claim towards the damages at Rs. 10.000/- is exorbitant. The trial Court has not given an opportunity to adduce evidence on this issue. In this regard, he contended that the trial Court has not determined the contentious issues, which arose for consideration. After determination, if it comes to the conclusion that defendants have continued in occupation of the suit premises after termination of tenancy, then an enquiry as provided under Order 22 Rule 10 CPC has to be conducted and damages by way of mesne profits can be awarded on the basis of legal evidence that would be placed on record. That has not been done in the instant case. Though the claim of damages Rs. 10,000/- per month from 1-3-2002 is claimed by the plaintiff, the trial Court without jurisdiction on the basis of legal evidence adduced by the plaintiff has accepted the claim and awarded the same as an interim relief, pending determination of quantum of damages in the suit against the defendants for their continued occupation of the suit premises even after determination of tenancy, which is not legal and valid. Therefore, the learned Counsel for the defendants contends that portion of the decree and judgment is liable to be set aside.
10. The first ground of attack of the impugned judgment is that findings and reasons recorded on the issue Nos. 1, 2 and 4 in the affirmative is not legal and valid for the reason that the quit notice issued by the Court is served only upon the second defendant, who is not the tenant as per the lease deed referred to supra. Therefore the termination of tenancy of the suit premises without serving the notice upon the first defendant lessee, the same is bad in law. Non-consideration of this important aspect of the matter and recording the finding has rendered the findings on the above contentious issue erroneous in law. Therefore, he has urged that the findings recorded on the above contentious issue are liable to be set aside.
11. Sri. Ashok B. Patil who has entered caveat on behalf of the plaintiff sought to justify the findings and reasons recorded on the contentious issues contending that it is not an undisputed fact that second defendant being the Manager of Everest Hand Wovens has been carrying on the business in the suit schedule property on behalf of the first defendant. Further, he contended that, quit notice issued to the suit schedule premises has been acknowledged by him. The same is produced at Ex. P.22 for having acknowledged the legal notice Ex. P.21. Having acknowledged the same, it does not lie in the mouth of the defendants to turn round and contend that second defendant is not the authority to acknowledge the legal notice at Ex. P. 21. Apart from this fact, after receipt of the legal notice, reply notice was issued by the defendants as per Ex. P.24 dated 20-2-2002 to the plaintiffs counsel. Therefore, he submits that the contention urged by the defendants in this regard is untenable in law. Therefore he has requested this Court to reject this contention.
12. The learned Counsel fairly submits that the claim made with regard to the damages for unauthorized occupation of tenancy w.e.f. 1-3-2002 till the date of delivery of possession is not by way of interim relief. Therefore, the trial Court has erred in awarding the interim relief. He would not press that portion of the Judgment, however, he fairly submits to this Court that portion of the Judgment may be modified as damages towards mesne profits as the plaintiff has taken a plea claiming damages at Rs. 10.000/- at para 10 of the plaint and evidence is adduced in this regard and cross-examination of DW-2 is made. Since, no evidence is adduced from the defendants' side with regard to the damages, no blame can be attributed to the plaintiff.
13. With reference to the above said legal contentions, we have examined the impugned Judgment to find out whether the findings and the reasons recorded on the contentious issues by the trial Court particularly, 2, 3, 4, 5 and 7 in favour of the plaintiff and the same are erroneous, which call for interference by this Court in this appeal in exercise of its power?
14. The learned trial Judge has referred to the pleadings and the evidence on record. While answering the above contentious issues, the first ground urged with regard to the determination of the tenancy does not hold water having regard to the undisputed fact that the second defendant is Manager on behalf of first defendant-Company, which is carrying on business in the suit schedule property. The legal notice Ex.P. 21 got issued and Ex.P. 22 is the postal acknowledgment and after receipt of the same, the defendants got issued reply notice to the plaintiffs counsel as per Ex.P. 24. Therefore, it does not lie in the mouth of defendants to contend that determination ,of the tenancy by serving legal notice upon second defendant is not a valid quit notice, who is lessee under plaintiff is wholly untenable in law. The same is liable to be rejected. The trial Court after referring to the pleadings and evidence on record has rightly answered holding that the termination of tenancy in respect of the suit schedule premises is legal and valid. Since findings and reasons recorded on other contentious issues are not seriously disputed by the defendants, this Court need not refer to the same and answer in this Judgment.
15. The second ground urged in this case on behalf of the second defendat with regard to contentious issue No. 3 is also carefully examined by this Court. The pleadings of the plaintiff at para 10 of the impugned Judgment disclose that he has claimed the rent at the rate of Rs. 10.000/-. It is an undisputed fact that even after termination of tenancy, the defendant continued in occupation of the suit schedule property is an undisputed fact. In this regard, before termination of the tenancy under Section 111 of the Transfer of Property Act, he got issued two legal notices to defendants demanding them to deliver the vacant possession of the suit schedule property to the plaintiff as there is no clause in the lease agreement for renewal of the lease in respect of the suit premises. The defendants continued in occupation of the premises even after the period specified in the quit notice. Therefore, the defendants are liable to pay the damages in view of law laid down by the Supreme Court in the case of Raptakos Brett and Co. Ltd. v. Ganesh Property .
16. It is an undisputed fact that, the property is in a prime area viz., commercial street which is one of the important commercial areas in Bangalore City though it is disputed by the defendants with regard to the area, no positive evidence is adduced before the trial Court that they are not liable to pay damages at Rs. 10.000/- as claimed by the plaintiff, the grievance of the defendants is that an application for appointing the Court Commissioner to measure and find out the correct area of the suit premises for the purpose of determination of the damages for having continued in occupation of the suit property by the defendants which came to be rejected by the trial Court. Against which, order Writ Petition Nos. 14883/05 and 23919/05 were filed by them before this Court, which are still pending consideration of this Court, Therefore, it is contended by the defendants' counsel that opportunity was not given to the defendants to prove this fact. The defendants did not adduce evidence regarding the quantum of prevailing market rate of rent prevailing in the area in question in respect of similar buildings as that of the suit premises to determine the damages by way of mesne profits, as the defendants have continued occupation after termination of tenancy. This contention cannot be accepted by this Court for the reasons that the trial Court at paragraph 10.03 has answered issue No. 3 in favour of plaintiff after referring to the pleadings and evidence on record and held that there is no reason to disbelieve the evidence at Ex.P-25, which goes to show that the suit schedule property would fetch more than Rs. 10,000/- a month, as rent. Further, the trial Court has referred to the cross-examination of DW-2, wherein he is unable to state as to what is the rent, that would fetch to the suit property on the basis of prevailing market rate of rent in the area in question and in respect of similarly placed premises in the Commercial Street. Further it has referred to the documentary evidence Ex.P.25 and 25(a) simplified Khatha scheme book and the relevant page published by the Bangalore Mahanagara Palike fixing the rental value for the properties situated at Commercial Street. In this regard, the learned Counsel for the plaintiff submitted that, the Bangalore Mahanagara Palike has fixed the property tax at Rs. 20/- per sq. ft. which is to be taken into consideration while determining the market rate of rent which would be not less than Rs. 10,000/- as awarded by the trial Court.
17. Having regard to the undisputed facts, pleadings and the evidence placed by the plaintiff and in the absence of rebuttal evidence placed by defendants in this regard to show that the damages awarded will not be the correct rate of rent prevailing in the area. The finding of fact recorded by the trial Court on the above contentious issue in favour of the plaintiff after proper appreciation of evidence on record cannot be found fault with by this Court and termed as erroneous, particularly having regard to the fixation of the market value by the Bangalore Mahanagara Palike in respect of the similarly placed buildings as that of the suit premises for the purpose of fixing the property tax under the self assessment scheme. Therefore, we do not find any good reason to interfere with the said findings and reasons recorded on the contentious issues. Since the defendants have not adduced their rebuttal evidence in respect of the prevailing market value of the property and the prevailing rate of rent in the area in question and therefore the determination of damages at Rs. 10,000/- per month by the trial Court cannot be found fault with by us. Defendants have not availed the opportunity though the trial Court has given opportunity to adduce the evidence on all the issues. In view of its findings and reasons recorded on issue No. 3 at paragraph 10 of the impugned Judgment the trial Court has recorded its finding on issue No. 5 in the affirmative in favour of plaintiff. However, we modiiy the Judgment that Rs. 10.000/- is the occupation charges from 1-3-2002 till delivering of possession in place of Rs. 10,000/- as interim damages as awarded by the trial Court.
18. We are in full agreement with the findings and reasons recorded by the trial Court particularly on issue Nos. 2 and 3 with regard to jural relationship between the parties and the damages awarded by it. Therefore we do not find any good reason to interfere with the same in this appeal, as we do not find any reason what so ever.
19. Hence, the appeal is dismissed. In view of dismissal of the appeal, though the trial Court has granted 30 days time, it is just and proper for this Court to grant 6 months' time from today to vacate and deliver the vacant possession of the suit schedule property to the plaintiff subject to the condition that the defendants shall file an understanding affidavit within a week from receipt of the copy of this Judgment stating that they would pay the occupation charges as determined from 1-3-2002 till this date within six weeks from today. In case of failure on the part of defendants of filing an undertaking affidavit and payment of damages amount, it is open for the plaintiff to execute the decree against the defendants and take possession and collect the decreetal amount.