Bangalore District Court
Sri. M.K.Ramesh vs M/S. Hema Ventures (Opc) Pvt on 7 March, 2023
1 O.S.No.4137/2019
KABC010184622019
IN THE COURT OF THE I ADDL. CITY CIVIL &
SESSIONS JUDGE, AT BENGALURU (CCH-2)
PRESENT
SRI. SREENIVASA, B.A., LL.B.
I Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 7 th day of March, 2023
O.S. NO.4137 / 2019
Plaintiff: Sri. M.K.Ramesh,
Aged about 71 years,
S/o. Late M. Krishna Iyengar,
R/at #62, 10th B Main, I Block,
Jayanagar, Bengaluru-560 011.
(By Sri.B.G.Sriram, Adv.)
- VS -
Defendant: M/s. Hema Ventures (OPC) Pvt.
Ltd.,
Rep. by its Director,
Mr.Venkatesh K Hegde,
S/o. Krishna V Hegde,
R/at #111, 4th Cross, 5th Main,
BSK II Stage, Padmanabhanagar,
Bengaluru-560 070.
(By Sri.Kumara.L., Adv)
2 O.S.No.4137/2019
Date of Institution of the suit 12.06.2019.
Nature of the Suit (suit for
pronote, Suit for declaration Ejectment suit.
and possession, Suit for
injunction, etc.):
Date of the commencement
05.03.2022.
of recording of the Evidence:
Date on which the Judgment 07.03.2023.
was pronounced:
Total duration: Year/s Month/s Day/s
03 18 25
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by the plaintiff against the defendant for a judgment and decree to direct the defendant to quit and deliver the vacant possession of the suit schedule property to the plaintiff and to remit the arrears of rent of Rs.4,00,000/- and to remit a sum of Rs.55,125/- per month from the date of suit till the date of the defendant delivering vacant possession of the schedule property by restoring the schedule property to its original condition as described in the schedule by issuing mandatory injunction.
3 O.S.No.4137/20192. The facts of the plaintiff's case in brief are that;
a) That, he is the sole, exclusive and absolute owner of the immovable property bearing No.5 situated at Puttalingaiah Road, Padmanabhanagar, Bengaluru consisting of a building with a accommodation comprising of Verandah, Hall, two bedrooms, kitchen, pooja room, toilet and water closet i.e., suit schedule property. The defendant represented by its Director Venkatesh K. Hegde during the month of April - May 2018 approached the plaintiff and requested him to let out the schedule property on lease for the purpose of boutique / textile showroom. Boutique vegetarian restaurant. While offering to take the said premises on lease, the defendant also categorical assured that, there will not be any manufacturing process. Adverting to the request of the defendant, the plaintiff agreed to let out the schedule property subject to certain strict terms and conditions, for which, the defendant categorically agreed too. The plaintiff also insisted that, the lease deed to be entered should be compulsorily be registered to and that strict compliance of the terms should be adhered by the defendant, for which, the defendant agreed too. Having agreed in principal to let out the schedule premises in favour of the defendant, both the parties to this suit entered into a registered lease deed dated 07.05.2018.
2b) It is further submitted that, under the said indenture, the lease period agreed to between the plaintiff and the defendant was for a period of three years commencing from 01.05.2018 and ending on 30.04.2021. The rate of rent per month for the 1st year i.e., from 01.05.2018 to 30.04.2019 is Rs.50,000/-. The 2nd year commencing from 01.05.2019 to 30.04.2020 is Rs.52,500/- and 4 O.S.No.4137/2019 accordingly the last year 3rd year commencing from 01.05.2020 to 30.04.2021, the rent payable is Rs.55,125/-. The defendant issued a cheque for a sum of Rs.5,00,000/- bearing No.949611 drawn on Canara Bank, D.V.G.Road Branch, Bengaluru, favouring the Lessor towards the payment of security deposit amount, which is agreed to be refunded to the defendant at the time of the defendant vacating and handing over vacant possession of the schedule property in terms of the aforesaid lease deed subject to the condition that, there are no arrears of rent, statutory dues, damage to the property etc. On receipt of the aforesaid cheque, the plaintiff presented the same for clearance through his bankers. To the utter shock and surprise of the plaintiff, the said cheque came to be returned dishonoured vide memo dated 11.05.2018 as funds insufficient. Immediately, without any loss of time, the plaintiff contacted the defendant and informed about dishonour of the cheque. Thereafter, the defendant regretting his action, transferred the aforesaid amount by NEFT to the plaintiff's account.
2c) It is further submitted that, the defendant having taken the schedule property on lease, failed to remit the rents as agreed upon since the very first month itself. The defendant had occupied the schedule property on 07.05.2018 and the defendant became liable to remit rents from 01.05.2018 and continued to be a chronic defaulter in payment of rents. The defendant had become due in payment of rents to the tune of Rs.6,00,000/- being the rents for the period 01.05.2018 till 01.04.2019 at the rate of Rs.50,000/- per month in terms of the aforesaid lease period. As things stood thus, on constant persuasion by the plaintiff asking the defendant to regularize the rents and be punctual in payment of future rents, the 5 O.S.No.4137/2019 defendant on 01.12.2018 transferred a sum of Rs.1,00,000/- by NEFT, a sum of Rs.50,000/- on 10.01.2019 and another sum of Rs.50,000/- on 17.01.2019. As such, the total sum remitted by the defendant is Rs.2,00,000/- out of the arrears of rent of Rs.6,00,000/-, the balance of rent of a sum of Rs.4,00,000/- remained unpaid. On account of the default in payment of rents regularly, the defendant committed breach of the terms of the lease deed referred supra. On 06.10.2018, the defendant issued a cheque bearing No.396871 for a sum of Rs.1,50,000/- favouring the plaintiff drawn on Canara Bank, DVG Road Branch, Bengaluru. On presentation of the same, the said instrument came to be returned with an endorsement dated 10.10.2018 as funds insufficient. Notwithstanding the above, the defendant issued one more cheque bearing No.951162 dated 09.11.2018 drawn on Syndicate Bank, Padmanabhanagar Branch, Bengaluru, for a sum of Rs.2,00,000/- favouring the plaintiff towards the arrears of rent. On presentation, the said cheque returned with an endorsement dated 12.11.2018 as funds insufficient. In view of the same, the defendant continued to be a chronic defaulter in payment of rents.
2d) It is further submitted that, having received the said endorsements, the plaintiff despite having persisted with the defendant to clear the arrears of rents and be regular in payment of the future rents, the defendant failed to do so, thus, continued to commit breach of the terms of the lease deed referred to supra. The defendant has misused the maximum indulgence shown by the plaintiff in this regard. Notwithstanding the above, the defendant has damaged the schedule property to such an extent that it has lost its originality and the entire property has been reduced to shambles. Having defaulted in payment of rents, the 6 O.S.No.4137/2019 defendant did not even have the courtesy to approach the plaintiff and seek his written consent to alter the existing building. High handedly, the defendant went to demolish the existing structure to his convenience without the consent of the plaintiff, thus committing further breach of the terms of the lease referred to supra. When the plaintiff became aware of the illegal acts of the defendant, the plaintiff strongly protested, the defendant regretted his action and promised the plaintiff that he would restore the premises to its original condition. The damage caused to the building and the structure of the premises which was in existence at the time of the defendant taking the premises on lease is to such an extent that, he has removed the entire flooring, removed the existing wall of the bedrooms, kitchen and bathroom, dismantled the front canopy and chajjas, removed all the windows and cubboards. The defendant did not take the permission or consent from the plaintiff while causing all the above damages to the schedule property, which also a breach of the terms of the lease deed referred to supra. The extent of damage caused to the building and if the same is required to be restored, the same will cost several lakhs of rupees, which the defendant is also aware of the same. The plaintiff reserves his right to seek all such damages on the failure of the defendant failed to restore the premises to its original condition.
2e) The plaintiff has further submitted that, left with no other alternative, on account of the breach of the terms of the lease deed stated supra committed by the defendant, the plaintiff got issued a legal notice dated 11.04.2019, thereby, terminating the lease granted in favour of the defendant not only demanding vacant possession of the schedule property, but also the arrears of 7 O.S.No.4137/2019 rent as well as demanding restoration of the schedule premises to its original condition. The said notice issued by registered post / acknowledgement due and the defendant has received the said notice on 12.04.2019 as per the postal acknowledgement. Despite having acknowledged the said notice, the defendant has failed to comply with the demand made in the said notice. Left with no other alternative, the plaintiff has filed this suit. As on the date of termination of notice is due in a sum of Rs.6,00,000/-. After giving deductions to a sum of Rs.2,00,000/- remitted by the defendant, the defendant is still due in a sum of Rs.4,00,000/-. The defendant having continued to occupy the schedule property even after the period of termination, the defendant has become liable to remit the damages / mesne profits at the rate of Rs.55,125/- per month, till he vacates and handover the vacant possession of the schedule premises subject to the defendant restoring the schedule premises to its original condition.
3. a) After the service of summons, the defendant has appeared through his counsel and filed written statement. In the written statement, the defendant has admitted that, the plaintiff is the owner of the suit schedule property and the defendant is the tenant under him and also he has admitted that, the plaintiff and defendant had entered into the registered lease deed dated 07.05.2018 agreeing for a period of 3 years commencing from 01.05.2018 to 30.04.2019 is at Rs.50,000/-, the second year commencing from 01.05.2019 to 30.04.2020 is at Rs.52,500/- and third year commencing from 01.05.2020 to 30.04.2021, the rent payable is at Rs.55,125/-. Further, the defendant has admitted that, he paid Rs.1,00,000/- on 01.12.2018 by way of account transfer, a sum of Rs.50,000/- by 8 O.S.No.4137/2019 way of account transfer on 10.01.2019 and another sum of Rs.50,000/- on 17.01.2019 by way of account transfer towards the rent. The defendant has disputed other allegations and taken contention that, the defendant has paid monthly rent regularly. The plaintiff along with his agents are disturbing the peaceful possession of the defendant towards the schedule premises since from 1st week of January 2019. The plaintiff is not allowing the defendant to do his business as per the clause-6 of the registered lease agreement.
3b) The defendant has further submitted that, due to the obstructions of the plaintiff, the defendant is putting under mental agony. The plaintiff with an intention to dispossess the defendant from the suit schedule premises had entered several occasions to the suit schedule premises with the help of rowdy elements and threatened the defendant to vacate the suit schedule property without any valid reasons and hence, the plaintiff has breached the terms and conditions of the lease agreement. Ever since, the plaintiff has breached the clauses 6 of the lease deed, the defendant was not able to run any business in the suit schedule property. Due to the act of the plaintiff, the defendant has lost his investment money towards the business. Hence, the plaintiff is liable to pay the damages to the defendant herein for his illegal Act of obstructions to run the agreed business in the schedule premises as per clause 6 of the lease deed. During the 1st week of May 2019, the plaintiff had trespassed the suit schedule property with the help of rowdy elements and has made illegal efforts to dispossess the defendant from the suit schedule property. Immediately, after the said incident, the defendant had approached the jurisdictional Police with regard to the illegal act 9 O.S.No.4137/2019 of the plaintiff, but the concerned Police had directed the defendant to approach the civil court since the dispute is in civil in nature. Hence, without having any other remedy, the defendant has approached the Civil Court and has filed the suit for permanent injunction in O.S.No.3549/2019 on the file of CCH-63. The said case is pending for consideration. During the pendency of O.S.No.3549/2019, the plaintiff herein has not allowed the defendant to run his business as per clause 6 of the lease deed. Hence, question of paying arrears of rent does not arise since the conditions of the lease agreement has been violated by the plaintiff. The defendant has further submitted that, the plaintiff has not approached this Court with clean hands and has filed instant suit by suppressing the material facts. The plaintiff has violated the clause 6 of the lease agreement and has not allowed the defendant to do his business as mentioned in the clause-6 of the lease agreement. The defendant is having documentary evidence to prove the same. Since the plaintiff has violated the terms and conditions of the lease agreement, question of paying damages and arrears of rent does not arise.
3c) The defendant has further submitted that, the suit schedule property with all fixture and fittings along with a water pump, consisting of one hall, three bedrooms, kitchen, verandah, attached bathroom, toilet and also common bathroom and one car garage and provided with wardrobes / shelves. The defendant and plaintiff after entering into registered lease agreement dated 07.05.2019 in respect of the suit schedule property, the defendant herein has obtained absolute physical possession over the suit schedule property by way of registered lease agreement dated 07.05.2018 and enjoying the physical 10 O.S.No.4137/2019 possession of the suit schedule property since from 07.05.2018 without any third parties interference. As per the terms and conditions of the agreement, the defendant has paid Rs.5,00,000/- towards the security deposit and also agreed to pay a sum of Rs.50,000/- towards monthly rent. The defendant herein has also agreed to pay enhancement monthly rent as per clause-8 of lease agreement. The lease period fixed from 01.05.2018 to 30.04.2021. The defendant has taken the suit schedule property for the purpose mentioned in the clause 6 of the lease agreement dated 07.05.2019 and the same is for the purpose of carrying on its business in boutique / textile showroom, boutique veg restaurant. The suit schedule premises is agreed to be used as a showroom and the lessee undertakes not to use the same as manufacturing unit. The defendant as per the terms and conditions has paid up to date monthly rent by way of cash and by way of RTGS and as on today, there is no arrears of rent towards the lease agreement. The plaintiff has not paid proper Court fees in the instant suit. Hence, this Court may frame preliminary issues in this regard. The documents produced by the plaintiff along with the plaint are created documents for the purpose of the instant case. No cause of action to file this suit. On these grounds, the defendant prays to dismiss the suit.
4. On the basis of the pleadings, the following issues have been framed by my predecessor:
1. Whether the plaintiff proves that, he has terminated the tenancy of the defendant over the suit schedule property by issuance of legal notice under Sec.106 of T.P.Act ?11 O.S.No.4137/2019
2. Whether the plaintiff further proves that, the defendant is liable to pay arrears of rent of Rs.4,00,000/- ?
3. Whether the plaintiff further proves that, the defendant is liable to pay rent of Rs.55,125/-
p.m. from the date of suit till vacate the suit schedule property ?
4. Whether the plaintiff is entitled for the reliefs as sought for ?
5. What order or decree?
5. In order to prove the case, the plaintiff examined himself as P.W.1 and got marked the documents at Ex.P.1 to P.29. On the other hand, in the cross-examination of PW.1, the defendant got marked Ex.D.1 to Ex.D.5.
6. Heard the arguments on behalf of the plaintiff. In spite of opportunities, on 28.02.2023 the counsel for the defendant prays time for argument, hence prayer is rejected and posted the matter for judgment with liberty to the defendant to file written arguments within 03.03.2023. Perused the entire materials on record.
7. My findings on the above issues are as under :-
Issue Nos.1 to 3 :- In the affirmative, Issue No.4 :- Partly in the affirmative, Issue No.5 :- As per final order;
for the following :-
REASONS
8. ISSUE Nos.1 TO 4:- All the issues are interconnected with each other, hence they are taken together for discussion in order to avoid repetition of facts.
12 O.S.No.4137/20199. To prove the facts in issue, the plaintiff examined himself as P.W.1 by way of affidavit and in his evidence, he has reiterated the same facts which are narrated in the plaint averments. PW.1 in his evidence has stated that, he is the owner of the suit schedule property. The defendant requested him to let out the schedule property on lease for the purpose of boutique / textile showroom and Boutique vegetarian restaurant. As per his request, he let out the suit schedule property in favour of the defendant. Both the parties have entered into a registered lease deed dated 07.05.2018. As per the lease deed, the defendant agreed to pay rent per month for the 1st year i.e., from 01.05.2018 to 30.04.2019 at Rs.50,000/-, the 2nd year commencing from 01.05.2019 to 30.04.2020 is at Rs.52,500/- and accordingly the 3 rd year commencing from 01.05.2020 to 30.04.2021, the rent payable is at Rs.55,125/-. Further, PW.1 has stated that, the defendant issued a cheque for a sum of Rs.5,00,000/- bearing No.949611 drawn on Canara Bank, D.V.G.Road Branch, Bengaluru, favouring the Lessor towards the payment of refundable security deposit amount. When the aforesaid cheque was presented, it was dishonoured vide memo dated 11.05.2018 as funds insufficient. Further, PW.1 has stated that, when the plaintiff contacted the defendant and informed about dishonour of the cheque, the defendant regretting his action, transferred the aforesaid amount by NEFT to the plaintiff's account. The defendant had occupied the schedule property on 07.05.2018 and he is liable to remit rents from 01.05.2018. The defendant become a chronic defaulter in payment of rents and the defendant had become due in payment of rents to the tune of Rs.6,00,000/- being the rents for the period 01.05.2018 till 01.04.2019 at the rate 13 O.S.No.4137/2019 of Rs.50,000/- per month in terms of the aforesaid lease period. Out of Rs.6,00,000/-, the defendant on 01.12.2018 transferred a sum of Rs.1,00,000/- by NEFT, a sum of Rs.50,000/- on 10.01.2019 and another sum of Rs.50,000/- on 17.01.2019. As such, the total sum remitted by the defendant is Rs.2,00,000/- out of the arrears of rent of Rs.6,00,000/-, the balance of rent of a sum of Rs.4,00,000/- remained unpaid. On account of the default in payment of rents regularly, the defendant committed breach of the terms of the lease deed referred supra. On 06.10.2018, the defendant issued a cheque bearing No.396871 for a sum of Rs.1,50,000/- in his favour, on presentation of the same, the said instrument came to be returned with an endorsement dated 10.10.2018 as funds insufficient and the defendant has issued one more cheque bearing No.951162 dated 09.11.2018 drawn on Syndicate Bank, Padmanabhanagar Branch, Bengaluru, for a sum of Rs.2,00,000/- in his favour, on presentation, the said cheque returned with an endorsement dated 12.11.2018 as funds insufficient. In view of the same, the defendant continued to be a chronic defaulter in payment of rents. The defendant has demolished the existing structure of the suit schedule property without his consent and caused damage.
10. The defendant has admitted regarding the relationship of landlord and tenant and also admitted regarding the lease agreement entered into between them. Further, the defendant has also admitted regarding the rate of rent and also regarding deposit of Rs.5,00,000/- towards refundable security deposit. But the defendant has contended that, he has paid the entire rent amount, but the plaintiff herein has not allowed him to do his business as per the clause 6 of the lease agreement. Thereafter, 14 O.S.No.4137/2019 he filed suit in O.S.No.3549/2019. During the pendency of the suit also, the plaintiff has not allowed the defendant to run his business and not returned the security deposit.
11. In view of the specific contention taken by the defendant, the initial burden lies on the plaintiff to prove that, the defendant without his consent caused damage and he is defaulter in paying the rents. Further, the burden is on the plaintiff to establish that, he terminated the tenancy of the defendant in accordance with law. After that, the burden shifts on the defendant to prove that, he has paid the entire rent amount and there is no due. To prove these facts, the plaintiff in additional to his oral evidence has produced the documents at Ex.P.1 to Ex.P.29.
12. Ex.P.1 is the certified copy of the lease deed dated 07.05.2018 executed between the plaintiff and the defendant in respect of the suit schedule property. It shows that the plaintiff is the owner and the defendant is the tenant under the plaintiff. The plaintiff let out the suit schedule property to the defendant on 07.05.2018 on lease for the purpose of boutique / textile showroom and Boutique vegetarian restaurant. The defendant agreed to pay monthly rent of Rs.50,000/- from 07.05.2018 to 01.04.2019. Further, the document discloses that, the defendant agreed to pay Rs.52,500/- per month for the period from 01.05.2019 to 30.04.2020 and Rs.55,125/- per month for the period from 01.05.2020 to 30.04.2021. These facts are not disputed by the defendant. Even the defendant has admitted that, he has taken the suit schedule premises on monthly rental basis and regarding the refundable security deposit paid by him to the 15 O.S.No.4137/2019 plaintiff. So, the Court can held that, the plaintiff is the owner and the defendant is the tenant in respect of the suit schedule property and the plaintiff let out the suit schedule property to the defendant as per the terms and conditions of the lease agreement.
13. Further, Ex.P.2 is the encumbrance certificate, wherein, it discloses that, the defendant is the tenant under the plaintiff.
14. Ex.P.3 is the legal notice. Ex.P.4 and Ex.P.5 are the postal receipts. These documents discloses that, the plaintiff got issued the legal notice to the defendant calling upon him to vacate the suit schedule premises and also to pay the arrears of rent. This document is disputed by the defendant and he has taken contention that, the legal notice has not been duly served on him on 12.04.2019. In this regard Ex.P.4 postal receipt and Ex.P.5 postal acknowledgement clearly disclose that, the same has been duly served on him. If really, the signature found on Ex.P.5 is not the signature of the defendant, he could have examined the concerned postal official to show that, the postal official has not visited to his company and served the said notice to some third person. To prove this fact, the defendant has not examined the concerned official and from the records, it discloses that, the plaintiff has issued the legal notice to the address given in the lease agreement. In order to show that, the defendant has changed his address and he is running the business in some other place, no documents are placed before this Court. Even to establish his case also, the defendant has not stepped into the witness box. In the absence of documentary evidence, it cannot be said that, the legal notice has not been served on him as 16 O.S.No.4137/2019 contended by the defendant. On the other hand, I would like to refer the citation reported in AIR 1999 SC page 1441 in the case of Vidhyadhar Vs Mankikrao and another, wherein, it is held that: (A) Evidence Act (1 of 1872), S.114 - Adverse inference
- Party to suit - Not entering the witness box - Give rise to inference adverse against him. Where a party to the suit does not appear into the witness box and states his own case on oath and odes not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct." With due respect, the facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are one and the same since in the instant case, the defendant has filed written statement, but he has not stepped into the witness box, hence, the Court can draw adverse inference against the defendant.
15. Further the plaintiff has relied upon the photos at Ex.P.6 to Ex.P.23. According to the plaintiff, the defendant has changed the structure after taking the premises on lease. But the defendant has disputed the said photos. Under the said circumstances, the burden is on the plaintiff to prove that, the defendant has changed the structure after he taken the suit property on lease and these photos were taken at that time. To prove these facts, first of all the plaintiff has not produced the receipts. The receipts are very much relevant to reach a conclusion that, on which date the photos were taken. The date is not find place on the photos. Under the said circumstances, the receipts for having received the amount to take the photos by the photographer is a material document. But he has not produced the said document. On the other hand, PW.1 in his cross-
17 O.S.No.4137/2019examination has stated that, ನ.ಪ.6 ರರದ 8 ನನನ ಪಪತವವದಗಗ ದವವವ ಆಸಸಯನನನ ಬವಡಗಗಗಗ ಕಗಕಡನವ ಮದಲನ ತಗಗಗಯಲವಗದಗ. As per his admission, Ex.P.6 to Ex.P.8 were taken before letting out the suit schedule premises to the defendant. So, Ex.P.6 to Ex.P.8 are not relevant to arrive at a conclusion that, the defendant has changed the nature of the suit schedule property after he taken the suit schedule premises on lease. Further, PW.1 in his cross- examination has stated that, ನ.ಪ.9 ರರದ 22 ನನನ ನಮಮ ಪಪಟಗಕಪಗವಪಫರರ ತಗಗಗದದವದರಗ. ಆ ಪಪಟಗಕಪ ತಗಗಗದ ಪಪಟಗಕಪಗವಪಫರರ ಹಗಸರನ ನನಗಗ ನಗನಪಲಲ. ನ.ಪ.9 ರರದ 22 ನನನ ಯವವ ದನವರಕ ರರದನ ತಗಗಗಯಲವಗದಗ ಎರದನ ಹಗಪಳಲನ ಹವಗನವವದಲಲ. ನ.ಪ.6 ರರದನ 8 ಅನನನ ತಗಗಗದವಗ ನ.ಪ.9 ರರದ 22 ಪಪಟಗಕಪ ತಗಗಗಯಲವಗದಗ ಎರದರಗ ಸವಕಕ ಇರಬಹನದನ ನನಗಗ ಗಗಕತಸಲಲ ಎರದನ ಹಗಪಳನತವಸರಗ. As admitted by PW.1, his photographer has taken the photos. If really, the structure of the premises was changed as contended by the plaintiff only after he letting out the suit schedule premises to the defendant, he could have examined the photographer to establish that, the defendant after taking the premises on lease, he changed the structure of the premises, at that time, he taken the photos. To prove this fact, the photographer has not been examined by the plaintiff. Non-examination of the photographer is fatal to the case of the plaintiff. Further, if really, the defendant has changed the structure without the consent of the plaintiff and the defendant completed his work, the plaintiff could have lodged the complaint before the Police or he could have issued the legal notice to stop the work immediately when the defendant started to change the structure of the premises. In this regard also, no documents are produced before this Court. No-lodging of the complaint before the Police and non-issuance of the notice to the defendant, is also fatal to the case of the plaintiff and further he has not examined 18 O.S.No.4137/2019 the workers, who changed the structure as per the direction of the defendant. Further, no persons are found place in the photos to arrive at a conclusion that, after the plaintiff let out the premises to the defendant on lease, the defendant changed the structure, If really, the defendant changed the structure, he could have taken the photo of the premises along with the workers who carrying the work to show that, the defendant changed the structure. In order to show that, the defendant changed the structure and demolished the building as alleged by the plaintiff, no cogent evidence is produced before this Court. No doubt, the defendant has not stepped into the witness box to establish his case, but in the instant case, the plaintiff has asserted that, the defendant has changed the structure of the building. Under the said circumstances, without standing on the weakness of the defendant, the plaintiff has to prove that, the defendant has changed the structure of the premises after he obtained the building on lease. But in order to prove this fact, no cogent evidence is produced. In the absence of documentary evidence, it cannot be said that, the defendant changed the nature of the suit after he obtained the premises on lease. Under the said circumstances, the plaintiff is not entitled for mandatory injunction as prayed.
16. Further, PW.1 has produced Ex.P.24 to Ex.P.29. Ex.P.24 is the cheque bearing No.949611 dated 25.04.2018 for Rs.5,00,000/- issued by the defendant in favour of the plaintiff. Ex.P.25 is the bank memo intimating return of Ex.P.24 for funds insufficient. But as admitted by the plaintiff, the defendant transferred the said amount through NEFT to the account of the plaintiff.
19 O.S.No.4137/201917. Ex.P.26 is the cheque dated 06.10.2018 bearing No.396871 for Rs.1,50,000/- issued by the defendant in favour of the plaintiff. Ex.P.27 is the bank memo intimating return of Ex.P.26 for funds insufficient. Ex.P.28 is the cheque bearing No.951162 dated 09.11.2018 for Rs.2,00,000/- issued by the defendant in favour of the plaintiff. Ex.P.29 is the bank memo intimating return of Ex.P.28. All the memo shows that cheque issued by the defendant returned as funds insufficient, to show that, Ex.P.24, Ex.P.26 and Ex.P.28 were honoured by the bank, no documents are placed .
18. Further, the defendant has taken contention that, he paid the entire rent to the plaintiff. In order to show that, the defendant has paid the rents up todate, no documents are produced before this Court. As per the case of the plaintiff, the defendant is liable to pay Rs.6,00,000/-, out of it, he received Rs.2,00,000/- and the defendant is liable to pay the balance arrears of rent at Rs.4,00,000/- plus rents from the date of suit. The defendant has contended that, he has paid the entire amount and there is no due. But as stated above, to prove it, the defendant has not stepped into the witness, but only he got marked Ex.D.1 to Ex.D.5 through PW.1. These documents discloses that, the defendant has filed the suit against the plaintiff for permanent injunction. But in order to show that, the defendant has paid the rents promptly, no documents are produced before this Court. The burden is on the defendant to prove that, he paid the entire rents to the plaintiff. It is the duty of the defendant to prove that, he paid the entire arrears or rent and the burden of proof is not on the plaintiff to prove that he received the rent as 20 O.S.No.4137/2019 observed by the Hon'ble Lordships of the Hon'ble High Court of Karnataka in AIR 1993 KAR page 49 (Manjunatha Shetty Vs S.Susheela Thimmegowda). But no documents are placed, hence it cannot be said that, the defendant has paid the entire rent to the plaintiff.
19. Further, the defendant has contended that, the plaintiff has not allowed the defendant to run his business. Hence, the plaintiff is not entitled to receive the rents. If the plaintiff has not allowed the defendant to run his business, why the defendant possess the premises without handing over the keys. He retained the possession of the suit schedule premises from 07.05.2018 till today. Under the said circumstances, the defendant is liable to pay the arrears of rent of Rs.4,00,000/-. Ex.P.1 discloses that, the defendant has agreed to pay rent of Rs.55,125/- per month from 01.05.2020 to 30.04.2021. Under the said circumstance, the plaintiff is entitled to receive monthly rent of Rs.55,125/-. So, I am of the opinion that, the plaintiff has proved that, he is the owner of the suit schedule premises and the defendant is his tenant and the defendant taken the suit schedule premises on lease basis to run his business and further, the plaintiff has proved that, the defendant is defaulter in paying the rents. Further, the plaintiff has failed to prove that, the defendant has damaged the premises. In view of the above discussions, I answer issue Nos.1 to 3 are in the affirmative and issue No.4 is partly in the affirmative.
20. ISSUE NO.5:- For the aforementioned discussions, I proceed to pass the following:-
21 O.S.No.4137/2019ORDER The suit of the plaintiff is hereby partly decreed with cost.
The defendant is hereby directed to quit, vacate and deliver the vacant possession of the suit schedule premises to the plaintiff within three months from the date of this order.
Further, the defendant is hereby directed to pay the balance arrears of rent of Rs.4,00,000/- to the plaintiff.
Further, the defendant is hereby directed to pay the damages at the rate of Rs.55,125/- per month from the date of suit till delivery of vacant possession of the suit schedule premises to the plaintiff.
The plaintiff is permitted to adjust the security deposit amount of Rs.5,00,000/- towards arrears of rent and damages, if the defendant failed to pay arrears of rent. After adjustment, the defendant is liable to pay the balance to the plaintiff.22 O.S.No.4137/2019
The suit filed by the plaintiff for the relief of mandatory injunction is hereby dismissed.
Draw the decree accordingly.
(Dictated to the Stenographer, transcription computerized by her, corrected and then pronounced by me in the open court on this the 7 th day of March 2023) (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF :-
PW.1 :- Sri.M.K.Ramesh. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:- Ex.P1 :- CC of the lease deed dated 07.05.2018.
Ex.P2 :- EC.
Ex.P3 :- Office copy of the legal notice.
Ex.P4 :- Postal receipt.
Ex.P5 :- Postal acknowledgement.
Ex.P6 to 22 :- Photographs.
Ex.P23 :- CD.
Ex.P.24 :- Cheque
Ex.P.24(a) Signature.
Ex.P.25 :- Bank memo.
Ex.P.26 :- Cheque
Ex.P.26(a) Signature.
Ex.P.27 :- Bank memo.
Ex.P.28 :- Cheque
23 O.S.No.4137/2019
Ex.P.28(a) Signature.
Ex.P.29 :- Bank memo.
WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT :-
Nil DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:-
(In the cross-examination of PW.1.)
Ex.D.1 :- Certified copy of the plaint in
O.S.No.3549/2019.
Ex.D.2 :- Certified copy of the written statement in
OS.No.3549/2019.
Ex.D3 :- Vakalath.
Ex.D.4 :- Certified copy of the objections filed by the
defendant to the application filed by the
plaintiff under Order 39 R1 and 2 r/w
Sec.151 of CPC.
Ex.D.5 :- Certified copy of the issues framed in
O.S.No.3540/2019.
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.