Karnataka High Court
Sri Kempahanumiah vs M/S Allied Motors Service Station on 27 February, 2012
Equivalent citations: AIR 2012 KARNATAKA 100, 2012 (2) AIR KAR R 810, (2012) 4 CIVLJ 528, (2012) 3 KANT LJ 353, (2013) 1 ICC 239, (2012) 120 ALLINDCAS 774 (KAR), (2012) 2 KCCR 1459
Author: H.S.Kempanna
Bench: H.S.Kempanna
JUDGMENT This appeal is by the plaintiff thle" . judgement and decree of the trial eioulrtdreziisrnissing 'the suit filed by him for ejectrnent, rnesne profits': reliefs against respondents l herein-.--
2. For the salie ;_of parties in this appeal Wotild rankings as they are arraye_d5Iin;'._the_stilt before Court. if sjchledulelllproperty is the property bearing' No; 29 -. Avalahalli, Uttarahalli, Mysore road, Bangalore .9.'-2lE5'.nieasuring of 7000 sq.ft. morefully «in the""s'cVhedule to the plaint (hereinafter the suit schedule property).
is the case of the plaintiff that he is the 0' absolute owner in possession of the suit schedule
-0 'property. The first defendant represented by its partners "are the tenants under the plaintiff in respect of the suit 0' schedule property on a monthly rent of Rs.l3,000/~ for the first six rnsnths and thereafter Rs.1'7,500/--. The a/ 5 years from 07.06.2001, the date on which thVe§t:"':Vere inducted as tenants and as the suit 18.03.2005 before the expiry of the lease--pieriodtisuitt.. not majntainable, premature and liablefltozhedi-srnissed, .0
6. On the basis of theaboxre the Court framed the following 0 "*7.
Whether the'- 2 tenancy of the 3i_Jalid4_"and' "'LS'"iTl accordance with _ .0 the"pl_aintgff is entitled for possession V "of suit' the defendant?
Whether the plaintiff is entitled for mesne profits ciaimed?
.' the defendant No.2 and 4 prove that ' ~. suit is not maintainable?
VVhat decree or order?
The piaintiff in support of his case, got 0' examined himself as PWZ1 and got marked three documents as Exs.P1 to P3. The defendants did not %/ choose to examine any witnesswrlor got"
documents in support of their case. ~
8. Thereafter, the Court..orr' hearing the learned counsel for parties on going through the evidence and record, held that plaintiff 'h.aS- failedtto -'preys, that there is valid termination is not entitled to possession property and rnesne proved that the suit is not maintainabl.e.* Accoifdingly, by the impugned judgement an_¢f«decree date'd..._?,_5;O1.2007, dismissed the suit of the A 9_,.~ appellant/ plaintiff being aggrieved of the V'~».judgrf1er*§t and decree of the Trial Court is in appeal it ' 'V this Court.
10. The learned counsel appearing for the id "appellant / plaintiff submitted that the trial Court was not justified in dismissing the suit on the ground that lease period has not expired. He r submitted that the judgement rendered by the Vittal Bai Private Limited vs. in ILR 2005 KarnatakaV._:p.gge'A'1l.S;31V."._V.A§g;e--..,.further'f' submitted that in View of l_ Court reported in 2006 (5)VzAi.iI:r'*3 __478 in the case of Smt G. Kusuma 82, Ors., in the abseneeléoflha re-gistered"lease'~deed stipulating the period of » be from month to rnontlair this factual position in law erred' the suit and therefore the impngned jhudgexiienlt: and decree be set--aside and the '~ _AappeaL_be allowed: ----- -« * ll contra, the learned counsel appearing for
0. the''-c'ontesting'respondents / defendants submitted before this Covert on 25.02.2012 that the firm~respondent No.1 '0 "has"-been vacated and respondent No.4 who is one of the acting on behedf of the other partners has " "delivered Vacant possession to its original owners in the year 2009 ie, A.C. Narasimhaiah and others. As such, contesting respondents in this appeal, i.e., respondents 5% / Cit»/' 1 to 4 as on date, have no interhestiri «-the 'schedule:
property. s -
12. Before adverting tojtiie appeal it is pertinent to note 'th_at pend'ent':y of this appeal Misc.CV1.No.9l23/2'(}-15;' filed by the applicant Sri permission to irnplead proceedings as respondent_No__.
" p' In ' filed in support of the applieatiolleyby the llirnlpleading applicant, it is stated that '_ th§_%~a.ppellantV.'i'11Vthisappeal is not the owner of the suit On the other hand, he is only power lief of""the owners of the suit property namely A.N. Gangadhar, A.N. Shivaramu, Bhagyamma and Smt Uma Devi who had executed of Attorney in favour of the appellant, in respect of d -the suit schedule property. As the appellant was acting detrimental to the interest of executors of GPA, they have revoked the Power of Attorney executed in favour of the appellant on 15.07.2006, and thereby the appellant has '":X.i,/ 11 as the owner of the property and therei7ore:lp impleaded as respondent No.5 in__tlie__aboV.el K V'
14. The said application hasohlfieen appellant herein. The appelllant» in his~.ol)jectioEr1sVlto the application inter~alia ithat irnpleading applicant is not a partl3l7lt~o'_the .lt.li'e_"_'_trial Court and therefore he tpoicome on record.
The suit ejection wherein the dispute the relationship between tenant and as such there was no dispute iVith*.regard to either title of the appellant p_ or v_tllieVstatusnoVer____the suit schedule property. No relief for by the appellant against the applicants presence is not required to decide ..,.'the:"lappeal or to pass any effective orders as V"'againstV----him. The suit is one for simple ejection between landlord and tenant. The applicant being a third j claiming and setting up title in himself is neither a proper nor a necessary party to the proceedings and therefore he cannot seek permission to implead himself %/ 12 as a party to the proceedings. If the applicant is impleaded, as he has no interest in the would change the complexity of the scope by converting into a title " V' controversies which are beyond the 7sc'ope1'of'this_ is not permissible in law. l'.t_"i~sy further' .conte~n"ded"'that"' the applicant alleges. to l"pn2rchase--d the suit schedule property on pendency of the suit and of lis-pendens and come on record as respondent hand, the appellant is entitledto of the impleading applicant in a, -properly, i11stit1ited comprehensive civil suit before Court in the simple proceedings of the llVd'.l»t:.:~'is also contended that, admittedly the appellant empowered and authorised to lease out the property'. which is done in the year 2001 in favour of it "':fespondents/ defendants 1 to 4 by virtue of Section '7 of it "the Transfer of Property Act, 1882 and consequently the appellant is a lessor as defined under Section 10.5 of the Transfer of Property Act, l882 and the defendants are V' 13 lessees under him. Viewed from _this,al'so",, the"' impleading applicant cannot come <)r:..-record. laslaf-pa:iity and contest the claim of the lappellant llliereinll
15. The learned filedllthe present impleading applicationyv-as the Court when the matter Wasijheardi It is posted today for ft1_rtl;§e'r_ at-gu'r.r1ent_s;._ V " Today also he has remained the application is only for implee:r;din§_;lltil:e left yyith no alternative to hear the learned appellant and to proceed to order as appeal which has been contested by , A the»respondents/defendants has been heard. learned counsel appearing for the appellant reiterating the contentions urged in the filed in respect of the application filed for iriipleading, relied upon the judgement reported in AIR SC 1061 and submitted that the application does it not merit any consideration as the applicant has no interest in the proceedings. At this stage, if at all if he claims any title, it is in between the appellant and 16 executed by the appellant agreeing to lease the property for a period of 8 years from 07.06.2001 as such no valid termination of the tenancy and . maintainable. The trial Court acee.pting;the"..the 0"' respondents/ defendants has plaintiff, which is now =ehalle'n.ge' 'appeal. During the pendencypxof "_:a.pp_e_al,hl lapplidant has purchased the property vzpttdinittedly it is on
07.06.2001, the; "the property in favour of Vwas no dispute with regarditol " landlord and tenant between appellant / plaintiff and the respondents/._defendants. 1 to 4. No relief has also been appellant against the present impleading from this, the impleading applicant has sought' 'permission to come on record, during the pendeney of this appeal, as the owner of the property, 0 elairning that he has valid title to the property. In my 2 "View, application of this nature does not merit eensideration as it will enlarge the scope of the dispute inasmuch as, it will have to be treated as a suit for c\g\&/'/ 17 declaration of the title between the parties. In View of the facts and circumstance of the ease, as the'V.s1_1Jit,i'si:4 for simple ejeetment and as the impleadthg: _ claims that he has purchased the pendency of the suit hV1s_reque--s_t'to Corrie reioordfi cannot be granted as it is law. this connection, the Apex' Ltd.
and others vs.__M.R. reported in AIR 2002 Court ,"i1'ae;i1e1d as follows:
(F) ciu,ae1$;:?:, V5 gf'i1i19o81;iio§g1i;'R.10 ---- Suit for euictionéf Inipleadrrient of parties --
Relatiorzshifi ~ . of s iicipal Corporation, the original oil5ne4i*.of;"9fi_.emises with landlords and ;j'lTl1é.3iT' mutiial rights and obligations are not it gernmne towthle proceedings - Similarly, the i."-of title between sister of landlords " landlords cannot be decided in these p~roc'eedings --- Impleadment of Municipal Corporation and sister of landlord would change complexion of litigation and raise such controversies as are beyond scope of this litigation ---- Presence of either of the applicants is neither necessary for decision of question involved in these proceedings nor their <\\,,/ 21 the irnpleading applicant and accordingly, it is liable to be dismissed.
21. Re. Point Nos 2 and 3 :-
It is the case of the plaintiff that:-h.efivis--oothe' the suit schedule property. aleasepd favour of respondents /'defenda_nts_ to the year 2001 to be more specitiellony lt is stated in the plaint that 'then of 8 years under an the lease was extending. :was an unregistered lease deed committed default in paying thellrent. lthetiplaiiritiff took steps to issue legal 0_3.0l3§'20.Q_4le and since there was no reply steps to issue another legal notice on upon the defendants to quit and 'deliver vacant possession and also to pay the arrears of 'r-e1:a.t_. The defendants in response to second legal notice, an untenable reply dated 23.02.2005 as per EX.P3. ~ . Lln the said reply they contended that the lease was for a period of 8 years and therefore as the period has not %//l ,,M!3 26 for a period of more than one year, the leas'e'tiiillphav'eV '4 "V be construed as monthly and not ~:' . V ' i
24. In the present also" jut-defendants / tenants have relied uun_registere'd lease deed which is also on record.
An unregisteredlease in evidence. But unregistelredw admitted in evidence for the lit-n-iteld' v"l'he collateral purpose in this 'his between the parties as land lord for this collateral purpose, the "will consider the unregistered lease deed _vo'ther'purpose. The court will not enforce the terrns__pand""eoI1ditions of an unregistered lease deed. In _ the ilnstajiit -case, according to the defendants one of the oft.-ilthe lease deed is eight years lease period. Eterrn in the unregistered lease deed is v..u,1_1enforceable in the court of law. The Trial Court fcornrnitted an illegality in considering this term of eight years in the unregistered lease deed in the impugned %/ ....:..é 27 judgment. Therefore, the impugned liahle ._ to be set~aside.
25. Even if the lease -}:)_:e1?iod .8 'yefarsfltflenj the" 2 same is subject to performing---olfvoti1er ohligations by the defendants. Admittedly; the are the tenants under the plaintiff inj..tiallyfAfor pfetiold six months @ Rs. 13,0oo/- and xherelaiteer "@--~*Rs. 1 7,500 /- p.m. Plaintiff have Committed default"in' payInef*.;t-of~Inonthly"1'ents and they were due in a on 1.3.2004. There is no evidence reeord that the defendants have paid; the rents :¢gu1a§~1y as and when the same fell due. termtnation of tenancy of defendants for of lease in payment of monthly rents is Valid in ff 00 As already held, the defendants are monthly tenants. 011 15.2.2005, the plaintiff got issued a 04 la.wyer's notice terminating the tenancy of defendants. The defendants by their reply dated 23.2.2005 contended that the tenancy is not duly terminated. The egm//~"
29
of the matter, the impugned judgment and decree of the trial Court cannot be sustained.
28. Re-point No. 4.
For the reasons stated to ab_ove_._I p'roee'e?_iu.i:Vo' ii"
the following :
oaoegp The appeal is allowed.
The impugned of the trial Court is set asides' is decreed as prayed for ' whee;cxfi,9i2s/Zolais}fisfinssed.
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