Bangalore District Court
Kotha Shiva Kumar vs Sri.Mutta Thmma Poojari on 20 August, 2016
IN THE COURT OF THE XXX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY
DATED THIS THE 20th DAY OF AUGUST 2016
PRESENT: SRI. M.G.KUDAVAKKALIGER,B.Com.LLM.
XXX Addl.City Civil Sessions Judge,
Bengaluru.
O.S.NO.5667/2011
PLAINTIFF/S. Kotha Shiva Kumar,
S/oKotha Kamakshaiah Setty,
No.33/3, National High School
Road, Vishweshwarpuram,
Bengaluru-560 004.
(By Pleader Sri.Riyaz Ahmed
Shriff, adv.)
/VS/
DEFENDANT/S. Sri.Mutta Thmma Poojari,
S/o Thimma Poojari,
Hotel Mini Sagar,
No.189/2, Brigade Road,
Bengaluru-560 001.
(By Pleader Sri.T.M.S., Adv.)
*****
2
O.S.No.5667/2011.
DATE OF INSTITUTION 04-08-2011
NATURE OF THE SUIT (Suit on Suit for
Pronote, Suit for declaration and Ejectment
Possession, Suit for injunction, etc.)
DATE OF THE COMMENCEMENT 06-11-2013
OF RECORDING OF THE EVIDENCE
DATE ON WHICH THE JUDGEMENT 20-08-2016
WAS PRONOUNCED
TOTAL DURATION : YEAR/S MONTH/S DAY/S
5 - 16
(M.G.KUDAVAKKALIGER),
XXX ADDL.CITY CIVIL JUDGE,
BENGALURU.
3
O.S.No.5667/2011.
JUDGEMENT
1. Plaintiff has filed this suit against the defendant to quit and deliver the vacant possession of the suit schedule premises to the plaintiff.
2. The following are the brief and relevant facts leading to the plaintiff's case:
That the plaintiff is the absolute owner of the shop premises on the southern side in the ground floor of the commercial complex of the building bearing No.189/2, situated at Brigade Road, Bengaluru-560 001. Defendant is the tenant of the said property on a monthly rent of Rs.8640/- and the tenancy commences from 1st day of each calendar month. The schedule premises is reasonably, bonafide required by the plaintiff and his grownup sons to carrying the business in Motor Spare parts and the schedule premises is very much suitable and convenient to the needs of the plaintiff's sons and grandsons. The plaintiff further 4 O.S.No.5667/2011.
averred that he has informed the defendant to vacate and deliver vacant possession of the schedule premises so as to accommodate his sons to do the business. The defendant earlier agreed but did not vacate the premises. Hence, plaintiff got terminated the tenancy by issuing a legal notice dtd.28-5-2011 and the defendant has received the said notice and replied admitting that he is the tenant under the plaintiff but denied the termination of the tenancy. After receipt of said legal notice, the defendant filed a suit for permanent injunction in O.S.No.4623/2011 on the file of the City Civil Judge, Bengaluru and the said suit is still pending. Hence, plaintiff is hereby constrained to file this suit and prayed to decree the suit with costs.
3. After registration of the suit, suit summons was issued to the defendant. Pursuant to the suit summons, defendant has put appearance through the advocate and filed the written statement contending inter-alia that 5 O.S.No.5667/2011.
the suit schedule property measures less than 14 sq.meters and hence, the provisions of the Karnataka Rent Act is applicable. The plaintiff cannot file the above suit for ejectment. This Court has no jurisdiction to decide this suit and hence, the suit is liable to be dismissed. The defendant further averred that he became the tenant under the registered agreement of lease dtd.19-8-1977 and at that time the rent was Rs.400/-. Thereafter, plaintiff has enhanced the rent from time to time and plaintiff has executed a fresh agreement on 30-7-2001 and under the said agreement the monthly rent was Rs.5,000/-. Now, the defendant is paying enhanced monthly rent of Rs.8,640/-. The lease is for a period of 10 years commencing from 1-7-2001, the lease expired on 30-6-2011 and the same shall be extended for the further period. The defendant has requested the plaintiff to extend the lease for further period of 10 years. Though the plaintiff has agreed to extend the same, but has failed to do so. Thereafter, 6 O.S.No.5667/2011.
the defendant got issued the legal notice to the plaintiff dtd.20-5-2011 calling upon the plaintiff to renew the lease for further period of 10 years and to execute a fresh lease deed on fresh terms and conditions and the said notice was served on the plaintiff on 21-5-2011. The defendant further averred that the plaintiff has got issued the legal notice dtd.4- 5-2011 terminating the tenancy of the defendant and called upon the defendant to vacate the premises on or before 30-6-2011. The defendant has replied to the said notice on 26-5-2011. The defendant admits that he is paying the monthly rent of Rs.8,640/- from July 2010 through cheque. The plaintiff has received the rent up to April 2011 and has not collected the rent for the month of May 2011 and refused to receive the same when tendered. The defendant got issued the notice dtd.17-6-2011 calling upon the plaintiff to receive the cheque towards the rent for the month of May 2011 and sent the rent of Rs.8,640/- through cheque bearing 7 O.S.No.5667/2011.
No.090679 dtd.10-6-2011, but the plaintiff has not encashed the same till today. The defendant is doing the business in the suit property and has invested Rs.10 lakhs for the interior decoration and improvement of the business. The defendant has invested the said amount by borrowing the loan from his relatives and friends. Plaintiff has tried to take the forcible possession from the defendant and hence, he has filed O.S.No.4623/2011 and the same is pending. The defendant has denied the bonafide requirement of the schedule premises by the plaintiff and his sons. The plaintiff has not mentioned the suit schedule property properly. Suit schedule premises consists of ground, first, second, third and forth floor. In the ground floor there ware two tenements and plaintiff has got the adjacent portion vacated and kept it under lock. First floor has been let out to the tenant recently and second, third and fourth floor are vacant. Hence, the suit schedule premises is not at all required by the plaintiff 8 O.S.No.5667/2011.
for his bonafide use and occupation. The tenancy of the defendant is not properly terminated and hence, the question of paying the damages doesn't arise. Hence, it is requested to dismiss the suit with costs.
4. On the basis of the rival contentions taken up by respective parties in the above pleadings, the following issues have been framed by my Learned Predecessor in office for disposal of the case:
1. Whether the suit in the present form is not maintainable?
2. Whether the termination notice is in accordance with law?
3. Whether the plaintiff is entitled to get the possession of the suit property by ejecting the defendant?
4. To what order or relief the plaintiff is entitled?
5. On 23-11-2013 case has been sent for mediation, but there was no settlement before the mediation and case returned to CCCH.25. Thereafter, as per the 9 O.S.No.5667/2011.
notification No.PPS/CCC/68/2014 dtd.1-12-2014 this Case transferred to this Court from CCCH No.25.
6. In order to substantiate the case made out by the plaintiff, plaintiff has entered into witness box and has filed the affidavit evidence under Order 18 Rule 4 of C.P.C. as per P.W.1 and got marked as many as 13 documents as per Ex.P.1 to P.13 and closed its side. The learned Counsel for the defendant has cross-examined P.W.1 in full. Thereafter in order to rebut the case of the plaintiff, defendant has entered into witness box filed his affirmative evidence. The learned Counsel for the plaintiff has cross-examined D.W.1 in full. During the course of cross-examination, the learned Counsel for the plaintiff has confronted the witness and shown the copy of the judgment in O.S.No.4623/2011 which has been admitted by D.W.1, hence, marked as Ex.P.14. defendant's side closed. Case posted for arguments. 10
O.S.No.5667/2011.
7. I have heard the arguments on both side and perused the materials placed on record.
8. On the basis of the evidence both oral and documentary and other materials., I record my findings to the above issues as follows:
Issue No.1: Suit is maintainable. Issue No.2: Termination notice is in accordance with law.
Issue No.3: The plaintiff is entitled to get the possession of the suit schedule property.
Issue No.4: As per the final order for the following:
REASONS
9. ISSUE NOS.1 TO 3: As Issue Nos.1 to 3 are interlinked, discussion on one issue has its direct bearing on the discussion on another issue, with a view to avoid repetition of discussion, facts & evidence, I am going to consider all these issues jointly.
10. The brief facts of the plaintiffs' case are that the plaintiff is the absolute owner of the shop premises, 11 O.S.No.5667/2011.
defendant is the tenant on a monthly rent of Rs.8640/- and the tenancy commences from 1st day of each calendar month. The schedule premises is required by the plaintiff's sons and grandsons for doing motor vehicle spares business. Hence, plaintiff got terminated the tenancy by issuing a legal notice dtd.28-5-2011 and the defendant has received the said notice and replied admitting that he is the tenant under the plaintiff but denied the termination of the tenancy. After receipt of said legal notice, the defendant filed a suit for permanent injunction in O.S.No.4623/2011 on the file of the City Civil Judge, Bengaluru. Hence, plaintiff is hereby constrained to file this suit and prayed to decree the suit with costs. After registration of the suit, suit summons was issued to the defendant. Pursuant to the suit summons, defendant has put appearance through the advocate and filed the written statement contending inter-alia that the suit schedule property is measuring less than 14 sq. meters and hence, 12 O.S.No.5667/2011.
the provisions of the Karnataka Rent Act is applicable. The plaintiff cannot file the above suit for ejectment. This Court has no jurisdiction to decide this suit and hence, prayed to dismiss the suit. The legal notice issued by the plaintiff is defective. Defendant has also got issued legal notice on 17-5-2011 calling upon the plaintiff to extend the lease and called upon to execute fresh lease agreement. But the plaintiff has failed to execute the fresh lease agreement. Hence, suit is liable to be dismissed. The defendant further averred that he became the tenant under the registered agreement of lease dtd.19-8-1977 and at that time the rent was Rs.400/-. Thereafter, plaintiff has enhanced the rent from time to time and plaintiff has executed a fresh agreement on 30-7-2001 and under the said agreement the monthly rent was Rs.5,000/-. Now, the defendant is paying enhanced monthly rent of Rs.8,640/-. The lease is for a period of 10 years commencing from 1-7-2001, the lease expired on 30-6-2011 and the same shall be 13 O.S.No.5667/2011.
extended for the further period. The defendant has requested the plaintiff to extend the lease for further period of 10 years. Though the plaintiff has agreed to extend the same, but has failed to do so. Thereafter, the defendant got issued the legal notice to the plaintiff dtd.20-5-2011 calling upon the plaintiff to renew the lease for further period of 10 years and to execute a fresh lease deed on fresh terms and conditions and the said notice was served on the plaintiff on 21-5-2011. The defendant further averred that the plaintiff has got issued the legal notice dtd.4- 5-2011 terminating the tenancy of the defendant and called upon the defendant to vacate the premises on or before 30-6-2011. The defendant is doing the business in the suit property and has invested Rs.10 lakhs for the interior decoration and improvement of the business. Plaintiff has tried to take the forcible possession from the defendant and hence, he has filed O.S.No.4623/2011 and the same is pending. The 14 O.S.No.5667/2011.
defendant has denied the bonafide requirement of the schedule premises by the plaintiff and his sons. Suit schedule premises consists of ground, first, second, third and forth floor. In the ground floor there ware two tenements and plaintiff has got the adjacent portion vacated and kept it under lock. First floor has been let out to the tenant recently and second, third and fourth floor are vacant. Hence, the suit schedule premises is not at all required by the plaintiff for his bonafide use and occupation. The tenancy of the defendant is not properly terminated and hence, the question of paying the damages doesn't arise. Hence, it is requested to dismiss the suit with costs.
11. In order to substantiate her case, plaintiff entered into witness box and filed the affidavit evidence as per P.W.1 and got marked as many as 14 documents as per Ex.P.1 to P.13 in his examination in chief and another document during the course of cross-examination of 15 O.S.No.5667/2011.
D.W.1 as Ex.P.14. In his examination-in-chief plaintiff reiterated all the averments made in the plaint and deposed that the suit schedule property is required for their personal use of grownup sons and grandsons for doing motor vehicles spare part business. Hence, he has filed this suit for ejectment and prayed to handover the vacant possession of the suit schedule property.
12. It is the admitted fact of the plaintiff and defendant that there was relationship of landlord and tenant between the plaintiff and defendant. The defendant has contended that a registered agreement of lease dtd.19- 8-1977, which has been registered before the Sub- Registrar on 20-8-1977. At that time the rent was Rs.400/-. Thereafter, tenancy has been continued, rent has been enhanced from time to time. On 30-7-2001, there was a fresh lease agreement, monthly rent was fixed at Rs.5,000/-, fresh lease agreement was executed for a period of 10 years, the lease agreement 16 O.S.No.5667/2011.
expired on 30-6-2011, the defendant is paying monthly rent of Rs.8,640/- and same shall be extended for a further period.
13. The defendant has taken defence that the suit schedule property measures less than 14 sq.mts. Hence, Karnataka Rent Act is applicable, this Court has no jurisdiction to try this suit and D.W.1 has also deposed in his evidence that property is measuring less than 14 sq.mts. the provisions of Karnataka Rent Act is applicable, the plaintiff cannot file this suit for ejectment, hence, prayed to dismiss the same and submitted his argument on the same ground. However, on careful perusal of the provisions of Karnataka Rent Act with regard to the application of the said Act, Sec.2 of the Act discloses the provisions about the application of the Act, which runs as under:
Karnataka Rent Act, 1999, Sec.2:Application of the Act.- (1) Chapters-Ito III and Chapter-V to VIII of this Act shall apply to areas specified in the first schedule.17
O.S.No.5667/2011.
(2) Chapters I, and IV shall apply only to areas specified in the second Schedule. (3) Nothing contained in this Act shall apply-
(a) to any premises belonging to
(i) the State Government or the Central Government or a local authority;
(ii) a Muzarai or religious or charitable institution;
(iii) a Wakf.
Explanation: If any doubt arises whether any institution referred to in sub-
clause(ii) and (iii) above is a muzarai or religious or charitable institution or a wakf, the decision of the Divisional Commissioner shall be final.
(b) xxxx
(c) xxxx
(d) xxxx
(e) to any premises, deemed rent on the date of commencement of this Act or the standard rent of which exceeds.-
(i) three thousand five hundred rupees per month in any area referred to in part A of the first schedule; and
(ii) two thousand rupees per month in any other area.
Explanation: "Deemed rent on the date of commencement of this Act" shall be the rent calculated in the manner provided in Sec.7, together with revision, if any, as provided in Sec.9 and decreased in the case of premises 18 O.S.No.5667/2011.
constructed after the commencement of this Act at the same rate as the rate of enhancement stipulated in the third Schedule to reflect the position on the date of commencement of this Act;
(f)xxxx Explanation-I: xxxxx Explanation-II: xxxx
(g) to any premises used for non-
residential purpose but excluding premises having a plinth area of not exceeding fourteen square meters used for commercial purpose.
FIRST SCHEDULE Areas to which Chapters I to III and V to VIII apply.
Part -A Areas within the limits of Cities constituted under the Karnataka Municipal Corporation Act 1976 and within a radius of three kilometers from the limit of the said cities.
Part -B Areas within the limits of the City Municipal Councils constituted under Karnataka Municipalities Act 1964.
14. As per Section 2 of the Karnataka Rent Act, 1999, this Act does not apply to the buildings belonging to State 19 O.S.No.5667/2011.
and Central Govt. Buildings, Local Authorities, Co- operative Societies, Market Committees, Muzarayi Area, Religious and Charitable institutions, Wakf Buildings, the tenancy created by grant made by the Government, and premises those rent is not more than Rs.3,500/- p.m. In Part -A of the I Schedule and not more than Rs.2,000/- p.m. in other areas, it also does not apply for the premises constructed or renovated for a period of 15 years. Non-residential building whose plinth area is less than 14 squares is excluded so also group of the buildings to which the State Government may exempt. On careful perusal of the contents of the written statement para No.3, the defendant himself has admitted that as per the fresh lease agreement dtd.30- 7-2001, rent was fixed for Rs.5,000/- and it was enhanced from time to time and now the defendant is paying monthly rent of Rs.8,640/-. Hence, though the plinth area as admitted by both plaintiff and defendant is less than 14 sq.mts., the actual rent paid by the 20 O.S.No.5667/2011.
defendant is more than Rs.8,640/- p.m. as on the date of filing of the suit. Hence, the provisions of Karnataka Rent act 1999 are not applicable to the premises in question. Hence, the contentions taken up by the defendant is not sustainable in the eye of law and this Court is having jurisdiction to entertain the ejectment suit filed by the plaintiff. Therefore, the present suit filed by the plaintiff in the present form is maintainable. Hence, I answer issue No.1 that present suit in the present form is maintainable.
15. The next contention taken up by the defendant that the notice issued by the plaintiff is defective, hence, plaintiff has not validly terminated the tenancy as per the provisions of law. On the basis of the rival contentions of the defendant, the issue No.2 has been framed placing the burden on the plaintiff to prove the validity of the notice. It is the admitted fact that initial registered lease agreement executed on 19-8-1977. 21
O.S.No.5667/2011.
Thereafter, on 30-7-2001 it was executed for a period of 10 years commencing from 1-7-2011 and the lease agreement was expired on 30-6-2011, thereafter no agreement between the plaintiff and defendant. Thereafter plaintiff had issued legal notice as per Ex.P.7 on 4-5-2011 terminating the lease deed dtd. 3-7- 2001 and call the defendant to quit and deliver the vacant possession of the suit schedule property on or before 30-6-2011. Thereafter, on 17-5-2011 defendant has issued legal notice without referring to the notice issued by the plaintiff and sought to extend the lease period for a further period of 10 years on fresh terms and conditions within a period of 10 days with a direction to renew the lease. Looking to the date of reciprocal notices issued by plaintiff and defendant, it is the plaintiff who has issued legal notice on 5-4-2011 is the earlier notice to quit and deliver the vacant possession. Sec.106 of Transfer of Property Act, 1882 governs the provisions as to how the lease of the 22 O.S.No.5667/2011.
immovable property be terminated. Sec.106 of the Transfer of Property Act, 1882 governs as to how the lease of immovable property be terminated i.e. (i) lease from year to year or exceeding one year or reserving yearly rent terminable on the part of either lessor or lessee by six months written notice expiring with the end of the year of the tenancy,(ii) lease of immovable property from month to month terminable on the part of either lessor or lessee by giving 15 days written notice expiring with the end of month of the tenancy. However, the termination notice issued by the plaintiff as per Ex.P.7 the counsel for the plaintiff has directed the defendant and called upon to vacate and deliver the vacant physical possession of the suit schedule property on or before 30-6-2011, hence, defendant claimed the notice is bad in law. As per the provision 15 days notice in case of termination of months to months tenancy or six months notice in case of yearly tenancy. However, Sub-Sec.3 of Sec.106 of Transfer of Property Act, 23 O.S.No.5667/2011.
1882 mandates that notice under Sub-Sec.1 shall not be deemed to be invalid merely because period mentioned therein falls short of the period specified under that sub-section. Where a suit or proceedings is filed after the expiry of period mentioned in that sub-section, suit is not vitiated. For better appreciation I cull out the provisions of Sec.106 Clause-3 of Transfer of Property Act, 1882 which runs as under:
(3) A notice under sub-section(1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceedings is filed after the expiry of the period mentioned in that sub-section.
The learned Counsel for the plaintiff has argued that after the amendment to Sec.106 of Transfer of Property Act, 1882, Clause-3 was introduced. As per the provisions of Clause-3 if the notice is short of the period specified in Sub-clauses-1, but the suit or proceedings is filed after the expiry of period mentioned in sub-section 1. The notice shall not be deemed to be invalid. The learned Counsel for 24 O.S.No.5667/2011.
the plaintiff relied on the rulings reported in the case of Shree Ram Urban Infrastructure Limited (Formerly known as Shree Ram Mills Ltd.) Vs. Court Receiver, High Court of Bomany1. Their Lordship of the Hon'ble Supreme Court held that:
(A) xxxx (B) Transfer of Property Act (4 of 1882) S.106 - Eviction suit- Quit notice falling short of period specified - But suit filed 6 months after notice- Not invalid.
Para.16: --- The second point urged by Mr.Ranjit Kumar, learned Senior Counsel, is that the suit is bad with rgard to Section 106 of the Transfer of property; Act. We have duly considered the said question and we find that the suit was filed after six months from the date of the notice issued under Sec.106 of Transfer of Property Act, 1882, by the Receiver and furthermore, after the amendment of Sec.106(3) which reads as follows:
(3) A notice under sub-section(1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-
section, where a suit or proceedings is filed 1 AIR 2014 SC 2286 25 O.S.No.5667/2011.
after the expiry of the period mentioned in that sub-section.
We have noticed that the High Court duly considered the question of notice and correctly came to the conclusion that the Legislature wanted to plug the loopholes and to redress the mischief by making a change in the law. Therefore, if the notice is short of the period specified in Sub- section (1) but the suit or proceeding is filed after the expiry of the period mentioned in sub-section (1), the notice shall not be deemed to be invalid.
16. Let me consider the facts of this case in the light of the principles evolved by their Lordships of our own Hon'ble High Court in the case of Smt.Rudravva and others .VS. Smt.Suma and others2 held that:
(a) xxxxxx
(b) If there is an oral lease for manufacturing purpose, not created by registered written lease, such lease cannot be construed as from year to year terminable by six months notice as per Section 106 of the TP Act. It is held that, 15 days notice terminating the tenancy would be valid.
2 ILR 2015 KAR 2188 26 O.S.No.5667/2011.
(c) Section 106 of the TP Act has stood amended with effect from 31-12-2002 vide Act 3 of 2003 of the Parliament. Sub-Section 3 of Section 106 of amended Act, a notice under sub- Section 1 of Section 1206 shall not be deemed to be invalid, merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry, the period mentioned in that sub-section. Section 3 of Act 3 of 2003 provides for transitory provisions. The provisions of Section 106 of the Principal Act as amended by Section 2 shall apply to all notices in pursuance of which any suit or proceedings pending on the finding of the Act and all notices which would have been issued before commencing of the Act, but where no suit has been filed before such commencement. Therefore, the case on hand is also perfectly covered under the transitory provisions as per Sub-Section 3 of Act 3 of 2003 also.
Therefore, for all practical purposes, notice, so got issued is a valid notice within the purview of Section 106 of the TP Act."
17. In view of these statutory provisions and the principles evolved by the Lordships of the Hon'ble Supreme Court and our own Hon'ble High Court, in the light of the facts of the present case, it clearly establishes that in this case, the notice was issued on 4-5-2011. The defendant has issued reply notice on 26-5-2011. However, the suit 27 O.S.No.5667/2011.
was actually filed on 4-8-2011 i.e. after the expiry of 3 months from the date of quit notice. Therefore, the notice issued by the plaintiff cannot be declared or deemed to be invalid. Hence, this Court is of the opinion that the plaintiff has validly terminated the tenancy by issuing legal notice dtd.4-5-2011. Hence, this Court is of the opinion that the termination notice issued by the plaintiff to the defendant is in accordance with law. Hence, I answer issue No.2 accordingly.
18. The plaintiff has filed this suit for recovery of possession of the suit schedule property to meet out their reasonable and bonafide requirement to provide accommodation to the grown up sons Kotha Harikumar and Navin Kumar Kotha and their grandsons to carry on the business in motor spare parts and their grandsons. The defendant has contended that he is doing business in the suit schedule property and he has invested Rs.10 lakhs for the purpose of interior decoration and 28 O.S.No.5667/2011.
improvement of the business by borrowing loan from his relatives and friends and suit schedule property is not required for the plaintiff. In the present suit filed by the plaintiff there is no scope to discuss about the hardships on either side unlike the suit filed under the Rent Act. In the instant case, the plaintiff has filed the suit against the defendant to quit and vacate and deliver the vacant possession of the suit schedule property for their bonafide personal use. Defendant has not furnished any material evidence that he has invested the money of Rs.10 lakhs for the interior decorations. It is the responsibility of the person making business to make interior decorations to suite his business to attract the customers which is not the concern of the landlord. Therefore, the landlord is not at responsible for the amount spent for the interior decoration. Therefore, the claim of the defendant is not sustainable in the eye of law. Hence, this Court is of the opinion that the plaintiff is entitled for vacant possession of 29 O.S.No.5667/2011.
the suit schedule property. Hence, I answer issue no.3 in the affirmative.
19. ISSUE NO.4: Looking to the prayer of the plaintiff, plaintiff has not sought for any arrears of rent or damages. Looking to the entire order sheet, there is an endorsement that the plaintiff has deposited Rs.4,46,920/- through cheque No.123019 dtd.6-10-2015 drawn on Hotel Industrialist Co-operative Bank Ltd., Halsoor, Bengaluru. Again defendant has deposited money of Rs.17,280/- through cheque No.123021 on 15- 12-2015 and Rs.43,200/- through cheque on 27-6-2016 for which there was an endorsement in the order sheet. Hence, there is no much arrears of rent/damages during the pendency of the suit. However, if any arrears is there, plaintiff is at liberty to file memo of calculation with regard to the arrears of rent or damages till the defendant is disposed in due process of law the plaintiff is entitled for the same. During the course of the trial, 30 O.S.No.5667/2011.
defendant has taken number of adjournments and filed number of I.As. Those I.As. have been allowed and adjournments have been granted on imposing costs. The defendant has paid costs of Rs.1,400/-on 13-4-2016 and Rs.500/- on 7-6-2016. But, the defendant has not paid the subsequent costs. Hence, the plaintiff is also entitled to the costs imposed by the Court during the pendency of the suit. In view of my above discussions and the reasons stated therein, this Court is of the opinion that the plaintiff is entitled for the possession of the suit schedule property and also arrears of rent/damages if any and costs noted above. Hence, I answer issue No.4 accordingly and proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with costs.
The plaintiff is entitled for vacant possession of the suit schedule property 31 O.S.No.5667/2011.
and recover the arrears of rent and damages/mesne profits if any till dispossession of the defendant with due process of law.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, corrected, signed and then pronounced by me in the open Court on this THE 20th DAY OF AUGUST 2016).
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W. 1 Kotha Shivakumar WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 Mutta Thimma Poojri DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 Receipt.
Ex.P.2 Tax paid receipt.
Ex.P.3 to 5 Cheques.
Ex.P.6 Copy of Sale Deed.
32
O.S.No.5667/2011.
Ex.P.7 Notice.
Ex.P.8 Notice.
Ex.P.9 Reply.
Ex.P.10 Reply.
Ex.P.11 Acknowledgement.
Ex.P.12& 13 judgment and decree in O.S.No.4623/11. DOCUMENTS MARKED FOR THE DEFENDANTS/S:
NIL.
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.