Bangalore District Court
M/S Manmayi Fiancial Services vs Smt.R.Saraswathi on 29 June, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL&
SESSIONS JUDGE,MAYOHALL UNIT, BENGALURU
(CCH-74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE
Dated this the 29th day of June, 2019.
OS NO. 25429/ 2013
Plaintiff: M/s Manmayi fiancial Services,
A proprietary concern represented,
By its proprietor, Smt.Shilpa G.R.,
Aged about 30 years,
No.41, 2nd Floor, Castle Street,
Ashok Nagar, Bengaluru-560025.
(By Sri.M.Sandesh Kumar - Adv.)
V/s
Defendants: 1.Smt.R.Saraswathi,
Aged about 72 years,
W/o late V.Rajarathnam,
2.Sri.R.Keshavan,
Aged about 46 years,
S/o late V.Rajarathnam,
3.Smt.Sarala Devi,
Aged about 40 years,
W/o Sri.R.Keshavan,
All are residing at No.21,
PR Street, Ashok Nagar,
Bengaluru-560025.
(For D.1 By Sri.K.T.Anand For D.2 & 3
By Sri.Vranda M.Shetty - Adv.)
Date of Institution of the suit 08.03.2013
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of
14.06.2016
recording of the Evidence.
Date on which the Judgment was
29.06.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 03 21
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74),
JUDGMENT
The plaintiff has filed this suit for permanent injunction, restraining the Defendants from interfering with the Plaintiff's possession and enjoyment of the suit property, further restraining the Defendants from dispossession the Plaintiff or his servants from suit property, further restraining the Defendant from causing disturbance by shouting or using foul language.
2. Brief facts of the plaintiff's case:
The Plaintiff contended in the plaint that, Plaintiff is the tenant in the suit premises and doing financial business in the suit premises through its representative by name Smt.Shilpa G.R. and Defendant No.1 has executed lease deed on 28-06- 2006, on monthly rent of Rs.6,000/-, with advance amount of Rs.60,000/-, the lease period, initially, was for two years and later on it was renewed periodically with a increase of 10% of rent, from time to time. Presently the Plaintiff is paying rent per month Rs.7,986/-, for each time, when the lease was renewed, a fresh lease agreement was executed. Further it is a case of the Plaintiff that the lease agreement is produced only for collateral purpose to show that the Plaintiff is in lawful possession, lease is till subsisting and it was not terminated. Further contended that Plaintiff is doing financial business in the suit premises and more than 200 clients are use to visit the office regularly, in order to have better infrastructure the schedule premises was renovated by spending more than Rs.2,00,000/-, Plaintiff has installed telephone in schedule premises and regularly paying rents. Such being the fact, the Defendant No.2, who is the son of Defendant No.1 had come to the schedule premises on 12-02-2013 and started to demand the rent stating that the Plaintiff was in arrears of rent. The Defendant No.3 who is his wife, also joined him, the Plaintiff has explained to them that he is regular in payment of rent and shown them the rent receipts issued by Defendant No.1. Thereafter the Defendants No.2 & 3 gave a threat to dispossess the Plaintiff. Despite this, the Defendant No.2 & 3 continue to gave a threat by saying that they are going to lock the passage leading to the schedule property and gave a threat to dispossess from the suit schedule property. Hence, Plaintiff has filed this suit.
3. Defendants have appeared through their counsel. Defendant No.1 has filed Written Statement and Defendant No.2 and 3 have filed their Written Statement jointly. It is the case of the Defendant No.1 that after death of her husband Sri.Raja Rathnam, the Defendant No.2 and 3 have authorized and permitted the Defendant No.1 to execute the lease deed and let out the suit premises on the lease, accordingly the Khatha was changed in the name of Defendant No.1 and she let out the suit premises to tenants and collecting the rents. The Defendant No.1 alone was authorized by her family members to let out the suit premises and said arrangement is still continuing.
4. Further it is contended in the Written Statement that based upon the arrangement, she has let out the suit premises to tenants and collecting the rents for herself and on behalf of the joint family. Similarly the Plaintiff was inducted into the suit schedule property by executing lease deed dated 01-07- 2010, which was subsequently renewed upto the year 2014, with the increase of 10% rent over the existing rent. Thus the Plaintiff is in possession of the suit property as a tenant. Further Defendant No.1 contended in her Written Statement that Defendant No.2 is her son, Defendant No.2 wants to have his share in the properties belonging to the family and started hostile attitude towards other family members and prevented them from doing their work. Ultimately, all the members of the family have decide to file a suit for partition. Accordingly, suit No.25873/2012 was came to be filed and in the said suit Defendant No.2 has filed the application seeking 1/6th share in the family property in which the Defendant No.2 admits that Plaintiff is in occupation of the above said suit schedule property, as tenants.
5. Further Defendant No.1 contended that in the meantime Defendant No.2 along with his wife, Defendant No.3 herein, started disturbing the tenants and threatened to vacant the suit premises. Further Defendant No.1 contended that, she is not intended to vacate the Plaintiff as long as the rent is being paid in time without default as agreed upon by him.
6. The Defendant No.2 & 3 has filed their Written Statement contending that Defendant No.1 has executed lease deed dated 28-07-2006, in favour of the Plaintiff as a absolute owner is false. Further submitted that the owner of the property died on 04-03-1986, Defendant No.1 & 2 are joint owners and in possession and enjoyment of entire schedule property as a joint owner. Further it is denied the case of the Plaintiff that Defendant No.1 is not absolute owner and in possession of the suit property. The Defendant No.1 has created bogus lease deed to defraud the Defendant No.2. Further the Defendant No.2 & 3 contended that the partition suit filed by their family members is under consideration. By denying the entire case of Plaintiff, the Defendant No.2 and 3 have prayed for dismissal of suit.
7. On the pleading of the parties my learned predecessor framed the following:
ISSUES
1. Whether Plaintiff proves that, it was in lawful possession and enjoyment of the suit schedule property, as on the date of suit?
2. Whether Plaintiff proves alleged interference?
3. Whether Plaintiff is entitled for relief of Permanent injunction?
4. What order or decree?
8. In order to prove his case Plaintiff is examined as PW.1 and got marked Ex.P1 to P11 and closed his side. It is pertinent to note here that, on perusal of the Ex.P7 to P10 it is found unsigned by my learned predecessor, hence I put my signature on Ex.P7 to P10 as it was found in the evidence of PW.1. After giving sufficient opportunity to the Defendant, the evidence of Defendant side is taken as nil on 06-06-2019 and case was posted for argument. When case was posted for arguments both parties and their respective counsel remained absent for 3 adjournment, the learned counsel for the parties have not addressed their argument hence, arguments on both side as taken as heard.
9. My answer to above Issues are as follows:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : As per the final order, for the following:
REASONS
10. Issue No.1: The representative of the Plaintiff Company is examined as PW.1 and got marked Ex.P1 to P11. PW.1 filed affidavit in lieu of examination in chief, reiterating the averments of the plaint. It is the case of the Plaintiff that, Plaintiff is the tenant under the Defendant. Defendant No.1 has executed lease deed on 28-07-2006, on monthly rent of Rs.6,000/-, with a advance amount of Rs.60,000/-, in respect of suit property in favour of the Plaintiff. PW.1 deposed that, lease period was initially for 2 years and later on it was renewed periodically with 10% increase of rent from time to time. Presently the Plaintiff is paying monthly rent of Rs.7,986/-, and Plaintiff is running his business in the suit premises.
11. In support of his oral evidence the Plaintiff had produced Ex.P1 to P.11. Ex.P1 is the authorization letter, Ex.P2 to P4 are the photos of suit schedule premises, Ex.P5 is the CD , Ex.P6 is the rent receipt (3 rent receipt marked jointly), which reflects the payment of rent by the Plaintiff in respect of suit premises, rent paid for the month of November and December 2012 and for the month of January 2013, Ex.P7 is the rent receipt for the month of May 2016, Ex.P8 is the letter issued by Airtel Company and Ex.P9 is the lease agreement dated 28-07-2010, the Plaintiff submitted that Ex.P9 lease agreement is produced only for collateral purpose to show the possession of the Plaintiff. Ex.P10 is the order sheet in O.S.No.25873/2012 and Ex.P11 is the IA u/S 151 of CPC filed in O.S.NO.25873/2012.
12. The Defendants have appeared through their counsel and filed the Written Statement. The Defendant No.1 had cross examined PW.1 but cross of PW.1 by Defendant No.2 & 3 was taken as nil after giving sufficient opportunity. Thereafter Defendant No.2 has filed IA u/O 18 R. 17 of CPC for recall of PW.1. After recall of PW.1, PW.1 remained absent and did not tendered for Cross-examination. Hence, cross of PW.1 by Defendant No.2 is closed. Defendants did not choose to lead their evidence in support of their defence, even sufficient opportunity has been provided.
13. Defendant No.1 has admitted in her Written Statement to the effect that after death of her husband, she is the only eldest family members, she has executed lease agreement in favour of Plaintiff on behalf of her entire family including Defendant No.2 & 3. Further she contended in the Written Statement that the Plaintiff is the tenant, running business in the suit premises and paying rent regularly in terms of agreement and lease is being renewed time to time, there is no due.
14. Further the Defendant No.1 contended in her Written Statement that she has no intention to vacate the Plaintiff from the suit schedule property as long as the rent is being paid in time without default as agreed upon and Defendant No.1 or any member of her family will not dispossess the Plaintiff in the manner not known to law.
15. Defendant No.2 & 3 have filed their Written Statement admitting the possession of pf, the relevant portion of the Written Statement of Defendant No.2 & 3 at Para 7 which reads thus:
7.It is submitted that, the Plaintiffs have earlier in the year 2006, entered into an rental agreement with Defendant No.2 for running a partnership firm in the name of Kotak Mahendra finance limited and were paying rents to the Defendant No.2, however since 2012 onwards the Plaintiffs have stopped paying rents to the Defendants.
16. On careful perusal of oral and documentary evidence and fact admitted by the Defendants about the possession of the Plaintiff in the suit premises it is clear that the plaintiff is in possession of the suit premises as a tenant and paying rent regularly. When fact of possession of the Plaintiff is admitted by the Defendants then this issue not required much appreciation of evidence of the parties. Though Defendants have not led their evidence but the admitted fact in the pleading can be consider. With this, I answer this issue in the Affirmative.
17. Issue No.2: The case of the Plaintiff is that, the Plaintiff is in possession and enjoyment of the suit premises as a tenant under the lease agreement executed by Defendant No.1 in favour of the Plaintiff. It is also admitted fact by the Defendants that, they are receiving the rents from the Plaintiff in terms of lease agreement. Such being the fact, the Defendant No.2 & 3 have started obstruction and interference in peaceful possession and enjoyment of the suit schedule property.
18. The Defendant No.1 has contended in her Written Statement at Para 3 that Defendant No.2 is her son, as he wants to have his share in the properties belongs to the family, the Defendant No.2 took hostile attitude towards other family members and prevented them from doing their own work. Ultimately, all the members of the family have decided to file a partition suit in respect of family property. Suit O.S.No.25873/2012 is came to be filed for partition in respect of family property same is pending before the court.
19. It is relevant to note here the relevant portion of Written Statement of Defendant No.1 to answer this issue as to whether there is interference or not. Defendant No.1 has contended in her Written Statement at Para 4 which reads thus:
4.The Defendant No.1 submits that in the meantime the Defendant No.2 along with his wife, the Defendant No.3 herein started disturbing the tenants and threatened them to vacate the premises if they fail to pay the rent to them. This has become the order of day. Despite the advice of other family members not to disturb the tenants, the Defendant No.2 & 3 continue to obstruct the tenants. That has resulted in filing of the above suit.
Some other tenants also have filed similar suits.
20. So, on careful perusal of the Para 4 of Written Statement filed by the Defendant No.1 it is clear that there was a interference by the Defendants in peaceful possession and enjoyment of the suit property. When there is a admission in written statement then Plaintiff need not proved the admitted fact of interference of the Defendant in peaceful possession of the suit property.
21. So, on perusal of the oral and documentary evidence and admitted fact in the pleading it is clear that, the Plaintiff is in possession of the suit property as a tenant and paying rent regularly to the Defendants. Further it is clear that due to family dispute the Defendants have interfered in the peaceful possession and enjoyment of the suit property. When possession and interference is not disputed then it can be safely held that the Plaintiff has proved this issue against the Defendants. With this observation, I answer this issue in the Affirmative.
22. Issue No.3: The fact that the Plaintiff is in possession and enjoyment of the suit property as tenant and running business in the suit premises, paying rent regularly and Defendants have admitted the interference, under such circumstances, I am of the opinion that, Plaintiff is entitle for the relief sought in the plaint. Though the Defendants have appeared through their counsel and filed their Written Statement but they did not choose to lead their evidence in support of their defence taken in the Written Statement. On perusal of the Written Statement of Defendants the Defendants have admitted the possession and interference. In support of my opinion I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordship have held in the decision thus:
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie. Considering the oral and documentary evidence and relying on the decision referred above, I hold the Plaintiff is entitle for the relief's sought in the plaint. With this, I answer this issue in the Affirmative.
23. Issue No.4 :- In-view of the discussion made on Issue No.1 to 3, I proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby decreed. Consequently, Defendants, their relatives or any person claiming under them, are hereby restrained form interfering with Plaintiff's possession and enjoyment of the suit property.
Further Defendants or any person claiming under them are hereby restrained from dispossessing the Plaintiff, his servants from suit property without due process of law, by order of permanent injunction.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 29th day of June, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH-74) SUIT SCHEDULE PROPERTY All that part and parcel of portion of the premises at Second floor bearing No.41, situated at Castle Street, Ashoknagar, Bengaluru-560025 measuring approximately 320.00 Square feet and bounded on the East by : Richmond Road, West by : IES Educational Services North by: Road, Castle Street South by: Richmond Road.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH-74) ANNEXURE List of witnesses examined for the plaintiff's side:
PW1: Smt.Shilpa G.R. List of documents exhibited for the plaintiff's side: Ex.P.1 : Notarized attested copy of Service Tax Certificate Ex.P.2 to 4 : 3 photographs Ex.P.5 : C.D Ex.P.6 : 3 rent receipt Ex.P.7 : Rent receipt Ex.P.8 : Original Airtel Bill Ex.P.9 : Lease agreement Ex.P.10: Certificate copy of order sheet in O.S.No.25873/2012 Ex.P.11: Certificate copy of the IA and affidavit filed u/S 151 of CPC in O.S.No.25873/2012 List of witness examined for the defendant side :
---Nil.---
List of documents exhibited for the defendant's side:
---Nil.---
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH-74)