Bangalore District Court
M/S Chandrika Enterprises vs G.Vittala Rao S/O Ganapaiah on 30 November, 2015
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 30th day of November 2015
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:342/2007
Plaintiff M/s Chandrika Enterprises, Represented by
its Managing Partner Sri.K.G.Jagnath Rao,
Aged about 73 years, S/o Late Govinda
Adiga, No.39, N.S.Iyengar Street,
Bangalore-560 020.
(By Sri.MNB, Advocate)
Vs
Defendants G.Vittala Rao S/o Ganapaiah, Aged about
70 years, No.5, Old No.16/3, II Cross,
Ramakrishnapuram, Bangalore-560 009,
since deceased by his L.Rs.
D1(a) V.Dinesh Rao S/o Late G.Vittal Rao,
Major,
D1(b) V.Anand Rao S/o Late G.Vittal Rao,
Major,
Both are residing at No.5, Old No.16/3, 2nd
Cross, Ramakrishnapuram, Bangalore-
560009.
(D1(a) & D1(b) by Sri.NM, Advocate)
Date of Institution 10.1.2007
Nature of suit Ejectment, arrears of rent,
2 O.S.No:342/2007
for damages and for
permanent injunction
Date of commencement of 26.10.09
evidence
Date on which the judgment was 30.11.2015
pronounced.
Total Duration: Years Month Days
8 10 20
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for ejectment, arrears of rent, for damages and for permanent injunction.
2. The suit schedule property is a "shop" in property bearing Corporation No:5, New no16, situating at Ramakrishna Puram, Bangalore-560 009 and bounded by East - Cross Road, West - Bakery portion in the same property, South - Ramalinga Reddy's property and North - shop portion under the occupation of the plaintiff.
3. In nutshell the plaint averments are that; the plaintiff is the absolute owner of the entire building bearing property No:5, Old No:16/3 situating at 2nd Cross, Ramakrishna Puram, Bangalore, wherein the suit shop is part of it. The defendant is the tenant of plaintiff in respect of the schedule shop on a rent of Rs.2,000/- per month and tenancy commences on 16th of 3 O.S.No:342/2007 every month and ends on 15th of succeeding month. That the plaintiff inducted the defendant in the schedule shop pursuant to the order passed in Ex.Petition No:726/1999 by the Chief Judge, Small Causes on 16.6.2001. In the said petition itself the said court had fixed the fair rent at Rs.2,000/- per month. Against the said order of fixing the rate of rent, the defendant preferred HRRP on the file of Hon'ble High Court and it was came to be dismissed on 17.6.2006, however while admitting the said revision petition, as an interim measure, the Hon'ble High Court had directed the defendant to pay Rs.500/- as rent till disposal of the said revision. That after disposal of the said revision petition, the defendant has not paid the balance amount of Rs.1,500/- per month from the date of induction and now it has become Rs.1 lakh as on June 2001 after deducting Rs.30,000/- deposited by this defendant in the Hon'ble High Court. Apart from the said arrears of rent the defendant is a chronic defaulter in the payment of electricity charges at Rs.375/- per month as shop is provided with electric facility with a common meter. Till 2006 the cumulative arrears towards electricity charges amounts to Rs.22,750/-. Therefore in order to evict the defendant from the schedule shop the plaintiff filed petition under the provisions of the Karnataka Rent Act at HRC.No:428/2005 on the file of Chief Judge for Small Causes and later it was withdrawn as the said Rent Act is not applicable to the newly constructed buildings for a period of 15 years. Hence, the plaintiff is entitled to seek eviction of the defendant under the provisions of the Transfer of Property 4 O.S.No:342/2007 Act, accordingly he issued legal notice on 25.11.2006 calling upon the defendant to pay the arrears of rent, electricity charges and also surrender the vacant possession of the schedule property immediately after the expiry of 15 days from the date of service of notice. The said notice was sent by RPAD as well as under
certificate of posting. The postal department has endorsed that though the intimation was delivered to the defendant on 27.11.2006 and on 28.11.2006 he has not claimed, rather refused to receive the notice. So far as notice sent by UCP is concerned, it is duly served. That in spite of service of notice the defendant has not come forward to comply the same. The schedule shop is situating in commercial area and similar size shop in that area fetches more than Rs.10,000/- rent per month. It is very much nearer to the Bus Stand, Railway Station, Film theaters and shopping complex, lodging and restaurants where there will be always floating population. The rent which was paid by the defendant was very meager, so court is required to hold an enquiry under the provisions of Order 20 Rule 12 of CPC till possession is delivered, until then the defendant agrees to receive Rs.2,000/- per month as damages which is equivalent to the rate of rent fixed in the execution petition. The plaintiff came to know that owing to huge liability towards arrears of rent, electric charges and the damages, the defendant is trying to sub lease the schedule shop to third parties which is illegal. Hence plaintiff seeks an order for ejectment to direct the defendant to surrender and hand over the vacant possession of the schedule 5 O.S.No:342/2007 shop; to direct the defendant to pay Rs.1,02,000/- towards arrears of rent and damages and a sum of Rs.23,125/- towards electricity consumption charges payable up to December 2006; to direct the defendant to go on paying future damages at the rate of Rs.2,000/- per month from the date of suit till the actual damages are determined or till vacating or surrendering the schedule shop; to determine the damages as provided under Order 20 Rule 12 of CPC and for permanent injunction to restrain the defendant, his legal representatives, successor in interest or any other person claiming under him from sub-leasing or to part with possession to third parties.
4. The defendant entered appearance through his counsel and filed the written statement as under:
the suit is misconceived and same is not maintainable on both law and on facts, hence it is liable to be dismissed in limine. That this court has no jurisdiction to entertain this suit and the plaintiff has approached this court with a speculative claims. The description of the parties as shown in the cause title to the plaint is incorrect. The legal status of the plaintiff is not disclosed and there is no authority in favour of the person, who has signed the plaint, so on this count also suit deserves to be dismissed. It is denied that the plaintiff is the absolute owner of the suit shop and he must be put to strict proof of the same. Without prejudice to the above contentions the defendant submits that the plaintiff had filed eviction petition against this defendant in 6 O.S.No:342/2007 HRC.No:191/1984 which culminated in HRRP No:5649/1988. The said HRRP was also rejected by the Hon'ble High Court, still with the consent of the parties it was agreed that pre-existing old building shall have to be demolished for construction of new building and after completion of construction, the plaintiff has to provide a shop to the defendant at ground floor. It is submitted that the plaintiff had no regard to the said order and did not adhere to it even after giving an undertaking in the court, wherefore the defendant was compelled to file execution petition No:726/1999 for restoration of shop in terms of the compromise. Contrary to the undertaking given in the HRRP, the plaintiff continued to resist the execution petition and finally he was compelled to deliver possession as per the order passed in that case. The rate of rent was a matter of dispute between the parties, wherefore, the HRRP No:290/02 was filed by the defendant. As per the interim order passed in that case, the defendant is depositing Rs.500/- per month. That the defendant is not defaulter in the matter of payment of rent and he is paying it regularly. It is denied that the plaintiff is entitled for rent at the rate of Rs.2,000/- per month. The alleged commencement of tenancy is also incorrect and inspite of the order of court, the plaintiff has not provided electric facility to the defendant, therefore the alleged arrears of rent and electricity charges are unfounded. Such being the case once again the plaintiff filed eviction proceedings at HRC.No:428/05 on frivolous grounds and same was came to be dismissed as not maintainable. All the 7 O.S.No:342/2007 reasons assigned by the plaintiff are incorrect. It is denied that said petition was dismissed for the reasons as alleged in the plaint. It is further denied that the plaintiff has issued notice of termination and it was deliberately avoided by the defendant. The defendant is not at all liable to pay any damages as claimed in the suit and further more the defendant is under no obligation to deliver possession of the schedule property and alleged future mesne profits. Wherefore the defendant prays to dismiss the suit with costs.
5. During the pendency of the suit, the defendant died, among his L.Rs, his two sons were brought on record as D1(a) and D1(b). The said L.Rs filed additional written statement as under and summary of it that;
like the written statement of their father/late defendant, the L.Rs also contended that suit is not maintainable and it is misconceived, this court has no jurisdiction to entertain the suit as admittedly building was constructed in the year 1998 and 15 years have elapsed as of now and it is also not maintainable since the leasehold rights in respect of the schedule shop are succeeded by the other heirs of the deceased defendant. This suit is bad for non-joinder and mis-joinder of necessary parties. The alleged power of attorney holder of plaintiff has no locus-standi to represent the plaintiff. Wherefore on these grounds and other grounds they have prayed to dismiss the suit with costs.
8 O.S.No:342/20076. Based on the said pleadings, my predecessor in office has framed the following issues:
ISSUES
1. Whether suit of the plaintiff is maintainable?
2. Whether plaintiff has terminated tenancy of the defendant and same is in accordance with law?
3. Whether defendant is in arrears of rent and if so what is the rent arrears payable by the defendant?
4. Whether plaintiff is entitled to the reliefs sought for?
5. What order or Decree?
7. In support of his case plaintiff examined its Managing Partner as PW1 and through him got marked Ex.P1 to P18. Before subjecting him to cross-examination, the plaintiff examined the power of attorney holder of PW1 as PW2 and through him got marked totally Ex.P1 to P19. The defendant no.1(a) examined himself as DW1 and no document is marked on his behalf. Heard the arguments of Sri.MNB, Advocate for the plaintiff and Sri.AKS, Advocate for the defendant. Perused the decisions relied by them.
9 O.S.No:342/20078. My findings on the above issues are as under:
Issue No.1 - In the affirmative Issue No.2 - In the affirmative Issue No.3 - In the affirmative Issue No.4 - In the affirmative Issue No.5 - As per final order, for the following:
REASONS Issue No.1 to 4:
9. Since majority of the facts in this case are undisputed and very limited disputed points are to be answered in this lis, I have taken all these issues simultaneously.
10. This case has got a checkered history. This is a third round of litigation in respect of a tenement between the plaintiff and the defendant. Let me say about the admitted facts which are also a matter of record followed by enough documentary evidence. Initially the present plaintiff, which is a registered partnership firm and also the owner of the property bearing Corporation No:5, New No:16 wherein the suit tenement is a part of it, situating at Ramakrishnapuram, Bangalore, filed eviction proceedings against this defendant under the provisions of the Karnataka Rent Control Act at HRC.No:191/84. After trial it was dismissed. Against the said findings the plaintiff filed HRRP No:5649/88 on the file of Hon'ble High Court, there matter was compromised and it was agreed that the defendant has to vacate 10 O.S.No:342/2007 the tenement and plaintiff has to construct a new complex and wherein he has to provide a shop to the defendant. It appears that after completion of the construction of new building there was no consensus between the parties regarding taking possession or fixation of rent, therefore the defendant filed Ex.Pet. No:726/1999 on the file of Chief Judge, Small Causes Court, Bangalore as per Ex.P1 and wherein the possession of the suit tenement was delivered to him on 16.6.2001, further an enquiry was held to determine the rate of rent and by its order dt.6.2.2001 the said court fixed the rent of the tenement at Rs.2,000/- per month from the date of delivery of possession. The certified copy of the said order is at Ex.P3. The Ex.P2 is an affidavit of the defendant accompanying the Ex.P1. Questioning the fixation of said rent both defendant as well as plaintiff filed two separate HRRPs at No:290/02 and 371/02 respectively, both were clubbed and they came to be dismissed on 17.6.2006.The Ex.P5 is the certified copy of the petition in HRRP.No:290/02, Ex.P6 is the certified copy of the I.A. filed in HRRP to stay the impugned order in execution petition and Ex.P4 is the certified copy of the order sheet of Hon'ble High Court in the HRRP No:290/02, wherein HRRP No:371/02 was clubbed. While entertaining the HRRP No:290/02 the Hon'ble High Court directed the defendant to pay Rs.500/- as rent per month until disposal of it. In accordance with the said direction the defendant also paid said rent for quite some time. After dismissal of both HRRPs, it goes without saying that order passed by the Chief Judge, Court 11 O.S.No:342/2007 of Small Causes in E.P.No:726/99 attained its finality, so the defendant was expected to pay Rs.2,000/- per month from 16.6.2001, the day on which he was put in possession of the suit tenement, admittedly he did not do so and that led to the second round of litigation by way of filing HRC.No:428/05 by the plaintiff seeking his eviction from the suit tenement. The Ex.P7 is the certified copy of the petition, Ex.P8 is the certified copy of the objection statement of defendant, who was respondent in that case, Ex.P9 is the certified copy of the objection statement, Ex.P10 is the interim application filed u/s 45(1) & (4) of the Karnataka Rent Act, 1999 seeking direction to the defendant to deposit the arrears of rent and electricity charges, Ex.P11 is the certified copy of the IA filed by this defendant u/o 7 Rule 11 of CPC to reject that petition as the said court has no jurisdiction. The Ex.P12 is the I.A. filed by this plaintiff, pursuant to the I.A. to reject the petition, to withdraw his petition with a liberty to permit him to file suit for ejectment. Considering the said IAs, Small Causes Court, Bangalore permitted the plaintiff to withdraw the said HRC petition with a liberty to file the suit for ejectment. The certified copy of the order sheet in that HRC No:428/05 is at Ex.P13. Consequently this third round of litigation commenced in the form of ejectment suit. So far as these things are concerned parties are at consensus, the only unacceptable contention of the defendant is that notwithstanding the dismissal of HRRP No:290/02 and 371/02 still he is bound to pay only Rs.500/- per month. Of-course such adamant stand cannot accepted by any 12 O.S.No:342/2007 court of law. It is also further contention of the defendant that notice of termination was not served on him and there is no valid termination. Apart from that on the death of defendant during the tenancy of the suit when his two L.Rs were brought on record, the said L.Rs took additional defence by contending that this suit is not maintainable for non-impleading of other heirs of their father and it is also not maintainable as period of 15 years as contemplated u/s 2(3) (f) of the Rent Act is already over and they are not liable to pay any arrears of rent, electricity charges or the damages. I would come to these aspects one by one.
11. First I will take up the issue of alleged non-
maintainability of the suit on account of completion of 15 years of construction as envisaged u/s 2(3)(f) of the Rent Act. It is undisputed that as stated in the affidavit of the defendant to the I.A. for rejection of plaint filed in HRC.No:428/05 (Ex.P11) after demolishing the old building, the plaintiff constructed and completed the new building in the year 1999. Regarding this aspect there is an admission in this case also. As per the admission of PW2 recorded in Para-16 of his cross-exam, the building was reconstructed in 1998. Sec.2(3)(f) of the Rent Act 1999 speaks that nothing contained in the said Act shall apply to any premises constructed or substantially renovated, either before or after the commencement of this Act for a period of fifteen years from the date of completion of such construction or substantial renovation. With obvious intention the legislators have enacted that provision so that a landlord, who invests his hard 13 O.S.No:342/2007 earned money should not get entangled in litigation when he will be under the pressure of discharging his debts, if any, incurred in the construction. It is well-known that if a proceeding is initiated for eviction of a tenant under the provisions of Rent Act, a landlord has to toil hard, therefore in order to save the landlord from the rigors of the provisions of the Rent Act, Sec.2(3)(f) is enacted. Now the question in the instant case is, as the suit tenement was constructed in 1998-99 does it mean that after expiry of 15 years the said protection having gone out would disentitle the plaintiff in prosecuting this suit which is admittedly filed in 2007 i.e. before the expiry of said 15 years? Certainly answer to this point would be in the negative. It is the cause of action as on the date of suit that has to be taken cognizance and not the subsequent development. If such argument of the defendant is accepted, an unscrupulous tenat like the defendant may unnecessarily prolong the litigation for years together and then turn around and set up a defence that because 15 years have elapsed, he cannot be proceed against under the provisions of Sec.106 of T.P. Act. I afraid it is not the intention of the legislators to encourage such habitual litigant. Behind every provision of an enactment, there will be some object and the same has to be interpreted by the court in a manner conducive to it. Any extraneous importation would negate the object behind such provision, therefore I straightaway reject the contention of the defendants that suit is not maintainable as tenement is less 14 O.S.No:342/2007 than 14 sq.meters as contended in Sec.2(3)(g) of the Karnataka Rent Act.
12. Now coming to the second contention that suit is not maintainable since other L.Rs are not brought on record, I would straightaway refer to the decision of the Hon'ble Apex Court in the case case of Mohd. Hussain (dead) by L.Rs & Ors. V Occhavlal & Ors. reported at AIR 2008 SC 1462. In that case also the plaintiffs filed suit for redemption of mortgage and during the pendency of the suit when the mortgagee died, as some of the heirs of said mortgagee were only brought on record and his other heirs were not brought on record. After trial the said suit was decreed, but in the appeal, only on the reason that his other heirs were not brought on record, the judgement of the trial court was reversed by the Hon'ble High Court of Madhya Pradesh. When the matter came up before the Hon'ble Apex Court, reversing the findings of Hon'ble High Court and restoring the decree of trial court, the Hon'ble Apex Court held that it is too much technical to submit that other heirs are also necessary parties for valid drawing up of decree. In the instant case also as brought out in the evidence of DW1 on the death of defendant plaintiff and L.Rs application is filed to bring only two heirs of the deceased defendant on record and they are none other than DW1 and his another brother Anand (respondent no.1(a) and 1(b)). As brought out in the cross-examination of DW1 his father died leaving behind, including him, three sons, a daughter and wife. Admittedly another son Sathish, daughter Sudha and wife of the 15 O.S.No:342/2007 deceased defendant are not parties to this suit. When this DW1 was cross-examined thoroughly about the whereabouts, the particulars and interest of the said persons in the schedule tenement, the DW1 himself stated that it is he and respondent no.1(b) who alone are running shop in the suit tenement, his other brother Sathish is residing at Kundapur by working in a factory there and he has no interest in the said shop. So far as Smt.Sudha is concerned though he claimed that she is married and given to one Subramani of Kundapur and they are running hotel there, without any supporting documentary evidence he stated that she is residing with him and she has also subsisting interest in the shop with their mother. According to me even assuming for a moment that his other brother, sister and mother are also having interest in the schedule property, the tenancy having been terminated during the life time of defendant, these defendants on record would only represent their father for the purpose of delivering possession on valid termination of tenancy and nothing more than that. As on the date of death when the defendant was not a tenant as his tenancy rights were terminated, the defendants are nothing but unlawful occupants' right from the days of their father, who was also an unlawful occupant, therefore it is enough for the plaintiff to file suit only against those persons who are in unlawful possession of the schedule property. As per Sec.108(q) of the T.P. Act once the tenancy is terminated it is duty of the tenant to hand over physical possession of the schedule property, otherwise it 16 O.S.No:342/2007 amounts to unlawful possession. Such unlawful occupant cannot claim that his interest would percolate to his heirs. When the new provisions of the Rent Act 1999 themselves disentitle the heirs of the deceased tenant protected under the said law from inheriting the tenancy rights, it is too much for the defendant to contend that the right to defend would also arise in favour of the other left out heirs. Therefore viewed from any angle either factually or legally the said contention are unacceptable and it is rejected.
13. In view of the above discussion, the decisions reported at AIR 1940 CALCUTTA 89 (Anwarali Bepari and Ors. V Jamini Lal Roy Choudhury and Ors.) as well as AIR 1982 Gujarat 152 (Ishwarlal Pranjivandas and Anr. V Labhshankar Hargovind Das Bhatt), relied by the defendants will not come to their help. In those cases it is the tenancy right that were inherited by the L.Rs of the deceased tenants. So the facts involved in those cases and this case are quite distinguishable. Once again I hold that there is no substance in the contention of the defendants that other heirs of the deceased defendant are also necessary parties.
14. Then it was contended by the defendants that PW2 has no authority to depose on behalf of the plaintiff firm and more over he is not authorized to represent the firm. It was also contended that as the power of attorney executed by PW1 produced at Ex.P19 is signed by the said PW1 alone, there is no validly acceptable evidence on behalf of the plaintiff and suit is liable to be dismissed without going into the merit of it. I afraid 17 O.S.No:342/2007 the said submission of the defendant is not only devoid of merit even it is also in ignorance of the provisions of Transfer of Property Act. As per Sec.18 of the said Act, every partner is the agent of other partner. Further Sec.19 of the Act prohibits certain acts which cannot be done by a partner. In the instant case admittedly PW1 is the Managing Partner of the firm and he has executed the power of attorney in favour of PW2 to depose on behalf of the firm. Being the managing partner PW1 is having the authority to represent the interest of the firm, so he could have very well executed the power of attorney in favour of PW2. It is not necessary that all the partners should sign the said power of attorney/Ex.P19. When a similar question came up before the Hon'ble Supreme Court in the decision reported at AIR 1961 SC 325 in the case of Purushottam Umedbhai and Co., v M/s Manilal and Sons the Hon'ble Court at Para-10 held that it is not necessary that power of attorney should be signed by all the partners of the firm. In that case also only managing partner had executed power of attorney to represent the firm in that suit. Referring to Sec.18 and 19 of the Partnership Firm Act, the Hon'ble Court made the said observation. According to me, the ratio laid down in that case squarely applies to this case. Then it was also contended by the defendant that PW2 has no authority to depose for the firm as he has no knowledge of the factual aspects. In my opinion the said contention is also unacceptable as nothing was elicited to show that the said person has no knowledge of the facts. Moreover as held in the decision reported 18 O.S.No:342/2007 at ILR 2006 KAR 3129 in the case of Bhimappa and others v Allisab and others, it is permissible for a party to suit, to engage his attorney to speak on his behalf. Wherefore the said submission is also rejected.
15. It was further argued by the defendants that there is no valid termination of tenancy. It was their contention that notice of termination produced at Ex.P4 is not served on them. It may be noted that in addition to producing the office copy of the said notice dt.25.11.2006, PW2 has also produced the postal window receipt at Ex.P15, the Certificate of Posting at Ex.P16, returned registered postal envelope with copy of notice contained in it at Ex.P17 and P18. They together show that notice was issued to the defendant under RPAD and also under COP. In Para-7 of the plaint the plaintiff has specifically pleaded that the intimation in respect of the said registered notice was duly served to the defendant on 27.11.2006 on 28.11.2006 at 3 p.m. and 4 p.m. respectively and it is also pleaded that notice sent under COP was duly served on the defendant. Thus it is alleged that the defendant intentionally avoided to receive the notice sent through RPAD. It is interesting that this specific pleading is not denied by the defendants or by his L.Rs in their additional written statement. Even this aspect is not disputed in the cross- examination of PW2. I have gone through the cross-examination of PW2 again and again and I am unable to find any suggestion disputing the service of notice. On the contrary in his cross- examination at Page No.8 at second paragraph theDW-1 did not 19 O.S.No:342/2007 deny the direct suggestion that his father (defendant) refused to take the legal notice. With non-denial the said suggestion and the endorsement of the postal department on Ex.P17 stating that intimation was delivered by the concerned postman on the days and time referred above, it is crystal clear that notice was duly served to the deceased defendant. As per Sec.114(e) of the Evidence Act court has to draw presumption that the routine official works were properly carried out by the concerned office and in the event if contrary is asserted, it is for such party to prove the same. In the decision reported at 2010(1) KCCR Short Note 33, the Division Bench of our Hon'ble High Court held that notice to quit can also be sent by COP. When there is no denial of the oral and documentary evidence produced by the plaintiff, the irresistible inference would be that the said notice was duly served. If this conclusion is arrived then the next point would be whether it terminated the tenancy as required by law. Admittedly this defendant was inducted in the suit tenement by virtue of the order passed in the Execution Petition on 16.6.2001 indicating that tenancy commences on 16th of every calendar month and ends of 15th of succeeding month. In this case by issuing quit notice on 25.11.2006 and by giving 15 days time from the date of receipt of such notice the plaintiff has terminated the tenancy. It satisfies the requirement of Sec.106 of T.P. Act. So for the sake of easier discussion it can be said that by the end of December 2006 the tenancy of defendant stood terminated. In view of the 20 O.S.No:342/2007 discussion the contention of the defendant that there is no valid termination of tenancy is also liable to be rejected.
16. The defendant denied the rate of rent at Rs.2,000/- per month even after having suffered the order in HRRP No:290/02. The way DW1 answered shows that he has no regard for the truth and he is bent upon to depose the falsehood. When it was directly to put him that in view of the dismissal of HRRP, they are liable to be pay Rs.2,000/- per month from the date of induction till the date of termination of tenancy he answered that they would pay Rs.500/- only and he further replied that previously also they have paid at the said rate. So one thing is clear that neither the defendant nor on his death his L.Rs have paid rent at Rs.2,000/- per month. In this background if the cross- examination of PW2 and further cross-examination of DW1 are gone through, it can be seen that in his chief at Para-12 the PW2 stated that as on July 2011 the defendant was liable to pay Rs.1,84,000/- towards arrears of rent and Rs.43,375/- towards arrears of electricity charges. Inspite of contending that no electricity facility is provided to the suit shop, no attempt was made by the defendant to cross-exam the PW2 on said issue. The brief cross-examination of PW2 shows that there was no serious attempt to deny the oral evidence contained in Para-12 of the chief. Added to this on Page no.7 of the cross-examination of DW2 when it was unambiguously put to him that they have accumulated rent to the tune of Rs.3,10,000/- till September 2015 and Rs.61,500/- towards arrears of electricity charges till 21 O.S.No:342/2007 June 2015, though the said witness denied them as false, with regard to electricity charges he claimed that since electric facility is not provided to them they are not liable to pay charges for the same. If really electric facility was not provided to the defendant certainly he should have raised this while determining the fair rent by the Chief Judge, Court of Small Causes, Bangalore or atleast they should have raised this issue before Hon'ble High Court in the HRRP. In the cross-examination of PW2, as I said earlier no suggestion was made to him stating that electric facility is not provided to the suit tenement, therefore the say of the defendants that since there is no electric facility to the suit tenement, they are not liable to pay the electric charges etc., has to be rejected summarily. When admittedly they have not paid the electric bills, they are very much liable to pay arrears of electricity bill as claimed by the plaintiff right from the day of taking possession, accumulated up to June 2015. Regarding the arrears of rent, even for the sake of discussion if it is held that the defendant has regularly paid rent at Rs.500/- per month, as claimed by them only, the difference amount per annum as per the order of Small Causes Court, Bangalore which came to be confirmed by the Hon'ble High Court would be Rs.18,000/- (Rs.2000X12) = Rs.24,000/-, minus (Rs.500x12) = 6,000/- and if calculation is made at Rs.18,000/- per annum from June 2001 it will come to approximately Rs.2,62,000/-. It is further allegation of the plaintiff that the defendant is not paying even rent of Rs.500/- regularly. Regarding this when DW2 was questioned he 22 O.S.No:342/2007 too conceded that they have no document to prove the payment. In a given situation it cannot be said that the defendant or his L.Rs have paid the rent as and when it accrued. Therefore they are liable to pay arrears of rent of Rs.3,10,000/- accumulated up to September 2015.
17. Now coming to the question of quantum of damages. The plaintiff himself in Para-9 of the plaint pleaded that shop like suit property fetches Rs.10,000/- per month now and he seeks to have separate enquiry u/o 22 Rule 12 of CPC to determine its quantum, until then court can take the damages at the rate of Rs.2,000/- per month. In view of the said submission keeping open that point for the time being, i.e., till possession is delivered by the defendant or by his L.Rs, they can be directed to pay Rs.2,000/- as damages. In this regard I refer to the decision reported at AIR 1966 SC 735 in the case of Bhagwati Prasad v Chandramaul). In that case at Head Note B, the Hon'ble Court held that in a decree for ejectment court must also award future mesne profits or damages. Wherefore I hold that notwithstanding the payment of Rs.2,000/- as interim damages from the date of termination of tenancy i.e. from January 2007, the defendant is also liable to pay the damages, to be decided in the separate enquiry. In the total amount of damages, the amount paid so far from January 2007 can be adjusted. The decision reported at AIR 2001 SC 1253 in the case of Naresh Chandra Agarwal v Bank of Baroda and Ors. relied by the defendant has no relevance to the case in hand. Therefore holding that none of the ground urged by 23 O.S.No:342/2007 the defendant or by his L.Rs have any substance in them, I conclude that plaintiff has proved the maintainability of the suit and further that he has terminated the tenancy in accordance with law as well as the arrears of rent and electricity charges. Wherefore he is entitled for the relief as prayed for. Accordingly I answer issue no.1 to 4 in the affirmative.
Issue No.5:
18. In the result, I proceed to make the following:
ORDER Suit is decreed with costs The defendant/s is/are directed to quit, vacate and hand over the vacant possession of the schedule property within two months from the date of this judgment and they are further directed to pay the arrears of rent of Rs.3,10,000/- accumulated till September 2015 and Rs.61,500/- towards electricity charges till June 2015 within the said period of two months.
It is further held that there shall be separate enquiry as envisaged U/O 20 Rule 12 of CPC to determine the quantum of damages from January 2007. In the said quantum of damages, the arrears of damages paid subsequent to January 2007 shall be deducted.24 O.S.No:342/2007
In the event defendant/s is/are fails to comply the above direction, the plaintiff is at liberty to take the possession through the process of court.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in open court, this the 30th day of November 2015) (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witness examined for the plaintiff side:
PW1 K.G.Jagannatha Rao PW2 S.V.Srinivas
List of documents exhibited for the plaintiff side:
Ex.P1 Certified copy of the E.P.No:726/99
Ex.P2 Certified copy of the affidavit
Ex.P3 Certified copy of the order
Ex.P4 Certified copy of the order sheet in HRRP.290/02
Ex.P5 Certified copy of the HRPetition
Ex.P6 Certified copy of the Interim application
Ex.P7 Certified copy of the amended petition in
HRC.428/05
Ex.P8 Certified copy of the objection
Ex.P9 Certified copy of the additional objection
Ex.P10 Certified copy of the affidavit
Ex.P11 & P12 Certified copies of the interim applications Ex.P13 Certified copy of the order sheet Ex.P14 Copy of legal notice 25 O.S.No:342/2007 Ex.P15 Postal receipt Ex.P16 COP Ex.P17 Postal cover Ex.P18 Notice kept in postal cover Ex.P19 GPA List of witness examined for the defendant/s side:
DW1 Dinesh List of documents exhibited for the defendant/s side:
Nil (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.26 O.S.No:342/2007
Judgement pronounced in open court vide separate order ORDER Suit is decreed with costs The defendant/s is/are directed to quit, vacate and hand over the vacant possession of the schedule property within two months from the date of this judgment and they are further directed to pay the arrears of rent of Rs.3,10,000/- accumulated till September 2015 and Rs.61,500/- towards electricity charges till June 2015 within the said period of two months.
It is further held that there shall be separate enquiry as envisaged U/O 20 Rule 12 of CPC to determine the 27 O.S.No:342/2007 quantum of damages from January 2007. In the said quantum of damages, the arrears of damages paid subsequent to January 2007 shall be deducted.
In the event defendant/s is/are fails to comply the above direction, the plaintiff is at liberty to take the possession through the process of court.
Draw decree accordingly.
III Addl. City Civil & Sessions Judge, Bengaluru.