Karnataka High Court
Late B Vishwanath Shetty Since Deceased ... vs P N Padmavathi on 25 February, 2010
Author: N.Kumar
Bench: N.Kumar
iN 1'IIE HIGH COURT OF KARNATAKA xr BANGAI.,ORE
DATE!) THIS TilE 25" 1)AY OF' FEBRUARY 9010
PRESEN I
ThE HON'I3LE E
4
MR. JVSTIC N K! MAR
ANT)
HE I1ONI3LE MRJUSTI( E ARALI NAGARAJ
REGLjLAR FIRST APPFQfljQflOO2
Between:
LATE B VISHWANATH SI IE'fl'Y
(SINCE DECEASED BY LRs)
1.(A) MT SHANTHA. SHE! LY.
AGED ABOUT 70 YEARS
W/O. LAL B. VISHWANAIII SHE rn.
I.(B) AT1SH V. SIIflY.
AGE!' ABOCI 43 IFARS
"/0. LAth. B TT1WANAIII *IEAY.
REPRFSFNFI) BY GP4 HOLDFR
(.AJiJT SiLl '.
1(1) JAC%l)iSI. sITEJY.
GF'i) ABQU' It Vi \L4S
' OLAIF B XTSHWANITTaHFTW
I [1 IITRK .11411..
%bOt ii, FUc'
xr i ' s n A ri ST. 1..
ALL ARE RESII)IN( AT NO239/ 10.
MAHADESI IWARA PRAS ANNA,
NEAR I T
A'IA TALKIES,
BULL FEMPLE ROAD.
(HAMARAJPET.
I3ANGALORE 560018. APPELLANTS
(13Y SRI. S. SHEKAR SHETTY AND ANILKUMAR
SHFTFY AI)VS)
ANL)
1. RN. PADMAVATHI.
W/O. LATE NAPAYAN HEBF3AR,
AGED ABOUT 82 YEARS
2 RN. SRINIVAS
8/0 I Afji P NARAY'\N lIE' BB \Jx
AGEI) ABOUT 5) YEARS.
'3 P. DI\k \KAR
S/U LATE P AR\'ANA HERBAR
\GEL) I3O T '3 F RS
SI\1 I I ALITITA HUl LÀ.
) ) d\ F ° AA
Hi F SI I I I
CHi)SS \V[LHi)N UAPDE\
AGED ABOUT 61 YEARS.
M/S. ASPA PVT. LII). NO22/2.
VITFAL NAGAR.
CI IAMARA WET,
BANGALORE 560018.
6. SMI. GEETILA HILA1.
W/0. LATEA.K. BHAT,
AGEI) AI3OT 56 YEARS.
RESIDING AT NO. 452.
'3RD CROSS. WILSON GARDEN.
BANGALORE-560027.
7 SM1 MALA BHANDARY
AGEL) ABOUT 16 YEARS,
D/O. LATE. B. VISHWANATIJA SHETT'Y.
NO.239/10,
MM fADES HWARA PRASAN NA.
NEAR UMA TALKIES,
BULL TEMPLE ROAD,
C HAMARAJ PET.
BANGALORE 560018
YASIJODA BIJANDARY
F)jQ. LAFE R \JSITWA\A1'JT HETTV.
AGED ABOUT Ii) YE\RS.
RI EM RFSIDF'N(Y N( u5
ZM3ELI ROAT,
t)'T 'F'
L
1 1'\i .._
\( LI) 3OI 12 F M
MAI L\I'EF-iXV \RA PRAS McAA.
T \IA FALKILS
FAR
S I pIMP
4
RESPONDENTS
(B SRI S V I3H \T D\ J
.
G .
4•
THIS R F A IS FILED 1 /5 9b OF C P( AIi'S1
THE JLDGMEN1 AND FINAL DEC REE DATED
12 72002 PASSED IN OS NO 1061 /I98I ON ThE
FILE OF fHE XXV ADDfl1OL CITY CIVIL JUDGE
BANGALORE, DIRECTING THE L.RS OF THE FIRST
I)EFENDANT TO PAY MESNE PROFITS TO THE
RESPONDENT U4/PLAINTS ANT) ETC,
THIS REGULAR FIRST APPEAL COMING UP FOR
HEARING f'HIS DA\ N KUMAR J DEl IVERED THE
FOLLOWING: -
JUDGMENT
This is a defendant's appeal against the judgment and decree of the trial Court which has partly decreed the suit of the plaintiff for mesne profits as prayed for in
2. For the purpose of convenience the paiies are referred to tis t.he.v arc referred to in tie origi.nal su.it, 5 3 The suit of the plaintiff is for possession and for payment of mesne profits at the rates mentioned in the prayer (olumn, The ase of the plaintiffs is as under.
3 1 Late Sri, P Narayana Hebbar was a hotelkeeper and was fairly successful, lie acquired considerable properties in the city of Bangalore with his own earnings. The brothers of Sri P,Narayana Hebbar started claiming shares in his acquisitions A partition suit ame to b filed in 0 S No 30/1958 on the file of the Subordinate Judge Mangalore TJltimatelv th suit ended in mpromisc and omprc misc Ic c rc C ame Ic n s I 2 90 I dcr II p m I A Ic c I i pr e i 0 / F P 0 C ) Iii lc i 6 t storeyed building and a few shops. In the said three storeyed building, Sri Narayana Hebbar was running a Hotel known as 'Eastern Lunch Home".
3.2 He (Narayana Hebbar) came to be afflicted with diabetes and blood pressure and he also suffered from "Strokes" in about 1960-63. Therefore, he was unable to look after the hotel business properly. Out of sheer necessity, he was compelled to enter into a partnership with his eldest son - 211(1 defendant herein on 5.10.1963. The business was run under the name "Eastern Lunch Home". The 2" defendant was the Managing Partner. The premises was treated as having been leased by Sri. P. Narayana Hebbar to the partnership firm. The business did not improve much. Therefore, they leased the hotel to "MIs. Elengikal Brothers" as per registered lease deed dated 25.3.1964 for a period of five years on a monthly rent of Rs.3,000/-. Additional rent for furniture and other movables was payable at the rate of Rs. 1,500/- l' defendant became the sub lesace of the said premise 3 'inder M/s Elengikul Brother'."
33 1 ate Sn Narayana Hebbar was not gitting the rents regularly irom 14/s Elengikal Brother'. and on coming to know of the sublease without his permission. all of them sat together and entered Into an agreement wider which the l' defendant took the premises on lease under a fresh registered lease deed The lease deed was executed on 4.11.1968 It was fin a period of 10 years. Ihe rent payable was Rs.2 000/ per month The fact that the rent was rediLcedi from Rs.3.000/ to s 2 000/ hc.ws the helplessness of Sn I Naraiana Hebbar rind die 2" rleit ndanl No St pararr rent wa'.
vat fo hc zo bles 'is 1 lu w Id 1 ye
i i
14
i.ar I. hI ;t c_p..rcd na r;, 1. E I On tilt utati' I \ trayana Hrbissr i"t 1 flu 'ut be en iiui 1 1 t 2 dic xi • .--ariv-- t.• cfli .d II-" 1 1r..pt'rIi. rh-' oF --' on •.
C C 1
S
artnership deed was
fresh 1 entered into. The 2
defendant. beine: his eldest son. assumed rnanacement of the prOperties and was collecting the rentals from the tenants and paving ihe out onus and that too not fully, 35 In 1978 the 21cI defendant gave up management and the 2'' plaintiff started managing the affairs. Recognizing this, the 1' defendant started paying rents to the plaintiff. The lease deed provided for renewal of the lease after its expirv on or before I 44. 197$ on a rental to he mutually aLreed upon and the same must be evidenced by a fresh lease deed, i defendant. did •m.ii..,.make any request for renewal of the lease. As difference had arisen between the legal he.i.rs of Narayana Hebbar, the lease was not renewed. .After the expiry of the lease period, as lease was riot renewed, 1st defènda.nt be.eame a tres pas.se.r in the eve of law I, e.. aftei. 3 1.. 1 0. 1 9 78 Tde let.i.i hei..rsA i'tarava 110 H ebbar ci not con en t 1.Or t.flO 1. 0 Ic W.r(1t iii 9 continuing as a lessee after the expiry of the original period. Therefore, l defendant cannot he deemed to be a tenant holding over. Mere mentioning the word rent' in the receipts issued after the expiry of the period of lease, would not in law make it a rent or a lease The 2nd defendant relinquished all his rights in the estate left by Sri, P. Narayana Hebhar as per registered release dated 7.7l98O.
3$ The building taken on lease was 'L shaped and contained two wings. The wing facing Police Road contained Cellars a ground floor and the other contairnd ground floor md two floors On the daft of lease ther er 72 rooms 'n th premises leiced to ft e defen lant A )art of the ground floor A as msed by e If d e fen ni 'mse dic n t cmi hc c I nI p c let oi pM ntiffs I M Ar in I t hr rf I f .
I0 first defendant" lease since there was a dispute and a cult was pezidinta. The 1 ipper floor was used by the I"
defendant as a Lodging House". l)urlng the last 10 years die room rent had gone on incnitsing steeply.
The jst defendant had constnic"ted additional rooms In both the wings. The plaintiffs learnt that there were 95 rooms which were let out to daily Boarders The rental varied from Rs.8/ to 35/ per day. There were Single occupation". i)ouble occupatIon" and ¶rriple a eupation zooms 3 7 Accordlnu to the information of the plaintill IC daily ontal ecewed aas not k% liar R' 00 tht are. rjf thi WX;tiiid fjnor wherein the retaura1t was i. .tsr 1cc tli Rs OCR v lit ri nthl ntai i'i ffi ...rn intl . x,r ..ni MulL L:1 R 300. 'liii is a' flit 'te & Ks. I e' .q.lt I br tale-i the I.anl fo ii 'ic xw is lc Iii i 0?' jui Ic S'. 11P ) 1 tt'. ITj':IItjJi' j rual Fn •h' pfy )'1l'Ijp F I) upied daily. Hence.
that more than 90% rooms were occ g an income not less the 1st defendant was easily gettin rental of the rooms than of 40,000/- both on account of floor which the 1' which were let out and the ground for running his defendant was himself occupying possession was restaurant. SInce. 1st defendant's mesne profits to unlawful, 1st defendant is liable to pay dent at the rate of the plaintiff and the 3" respon Rs,40.000/- per month.
ly and without 3.8 1st defendant had unauthorised intiffs converted a the concurrence/permission of the pla e shop about ten portion of the restaurant Into a win been continuously years back and defendant had been earning a running the wine shop and had 000/- per month. 13t minimum of Rs. 10,000/- to Rs. 15, profits atleast from defendant is liable to pay mesne sne profits since, the 31.8.1982. As regards the past me 1" defendant. past rate was hotly contested by the e of Rs. 10,000/- per mesne profit are claimed at the rat 12 month. If on a proper enquiry, the Court is pleased to 1k the niesrie proflt% at a higher rare. the plaintiffs and 3 d defendant are willing to pa the additional Court fee on the %ald hirther mesne profits.
39 1 " defendant is liable to pay interest on both past and future mesne profits at the rate of 20% per annum since the 1 • defendant was ninning a commercial establislunent and since the prevailing rate of interest on rommenjaj ranqaction was not less than 25% per annum They also estimated the damages to the buildine at Rslfl.000/-
310 Therefore the piuntnf filed hi iii fr paymen p4 ',sc%sk)ii Ii 'r t Of fln'%n( profit at the rare of Rs4.0O)I U ic iontno .111 a A uc i$ a' h mt rect at thc itt' M 17. me ne rrli it the rite ,4 R 1(1.0011: jA 'nllrii •r' 1 . 9.1 W' 11. taft atii 'f iii d 'it u re oil t c te of R., -11' t hj'I. 1 , r ninnirli trr'r'• hw -'laIt el ilic '%tfl 'j1 tlic I S Ft r per annum. In addition a um of Rs. 10.000/. was claimed as damage4 with Interest at the rate of 20'o.
4. Alter sen ice of stnnnion 1 defendant appeared and filed his written statement contesting the claim. He admitted that he is a tenant in respect of the suit schedule property under 2 registered lease deed dated 4 11.1968 The period was len years. V' delëndant had got even- right to renew the lease for a further period of ten years As the lease was taken from the partnership firm irid on tu death o' one of the partncr.. he partnership iad ome n an rd the plaintiff, a' t"tai stranger had no right to file a stilt 4 1. 2 "
dt lendani 'h, as a real lessor had rce it tli t' a e 25%' 'lh e I fendC vas Truant ftnldiniL 1k' ia', nut . Tr'%pHssrr flu %tIlt •i;t ti ta p'ni''tlft% 'I' .. 'Iflf fl ;; flU)jfll Iji .')Ie' ;,nCi C IC lit I. C 14 otherwise, the suit filed for ejectment by some of the legal representatives against the tenant when other legal representatives ere agreeing to tenancy was misc oneez ed under law Notice of tennination of tenancy was not in accordance with law and there was no proper tennination of tenancy. Therefore, suit for ejectment was liable to be dismissed in liminc flen the defendant, who was a surviving lessor, had given in writing to renew the lease the suit filed for ejectment was not maintainable 2 3 defendant had alrc3d filed a suit for paititi r x d ep ate possession f hr ha e I ne plain iffs ould not marntai i he present iiit fi ii it c I pt d ii i legiti n f t Ia r if th it r e in ii o I' view of the not call the F delendant. a trespasser. in of Karnataka definition ol a Tenant" tinder Section 3(r) rent Act 1Q61 A tenant who is c ontinuing in falls within possession cccii after Lh' termindt ion also ld not be the definition of a 9'enant" Therefore. he cou called as a trespasser After the expI ot the original hout any period, the rent wa' received for 4 ycan wit protest Therefore, F' delendant was a tenant holdina over on the same terms and conditions.
a 43 % tnann was to be terminated b siut of 110th e under SC( lion 106 of the 1 ransfer of Property Act then ad..nn ( ii; oh ei nn AIS t)' t hot 1 it ii aiiel prcwtnns, if ft ii. i t'as manul v turinp I S 10] m iIlIfl,Jt( I ttlnt mm ft tWit A' ml''. 'a p,i Ii 1.1 t, '(3 ewgIatci I. I "
rn 1) 13' di 1(111. VP t t 1 ii 0 J IL' t !Ii'n .151) 1 it3 1 t 1 d)I i it. Thc 'nd
1) ''t) ii 'I ,': ii-' • 16 of Rs.2000/- but he was not liable to pay any damages or mesne profits under law. He was not a trespasser. Therefore, the question of paying damages did not arise tifi he was duly evicted from the premises. He was liable to pay agreed rent. Hence. the claim for damages was niisconceived. The defendant was not liable to pay damages at the rate of Rs. 10,000/- per month. Plaintiffs were not entitled for any reliefs.
5. - 3'° defendant - the daughter of Narayana Hebbar filed a written statement supporting the case of the tenant.
6. On the aforesaid pleadings. the trial Court framed the following Issues:
1.Whether the plaintiff proves that lt defendant Is a trespasser or in the alternate a tenant in the suit property on a monthly rent of Rs.2000/-?
'-7--
2.If the defendant No. 1 is a tenant, whether his tenancy has been duly terminated?
3. Whether the plaintiff is entitled for possession of the stilt schedule property'
4. Whether the plaintiff is entitled to mesne profits (past and future) and if so at what rate?
5 Whether the plaintiff is entitled to damages.
if so how much?
6. Vhether the defendant proves that the q plaintiff has no locus standi to file the suit? 1 Whetli r the 'nil r PjC'flftflellt 1 i'- "ct 'Ildmtamabh P. What den cc or order?
f, r It
'tim. 'rn d laint Snm 1-k hi' PW1
.ti'd 1)1 rwl,red 26 ck,'iimeur uli& h tert mat led jc
L"--.P I t. P .'h 7'; th tin lit C rt .t' r;p-- rr n 'al
I I Ii
I
IS
4'
Shetty was examined as DW 1. He produced 6 documents which were marked as Exs.Dl to 116.
8. The trial Court. on appreciation of the aforesaid oral and documentary evidence on record, held that the plaintiff has failed to prove that lt defendant Is the In trespasser of the schedule property. he Is a tenant respect of the schedule property on a monthly rent of Rs.2000/-. It held that the tenancy of the jat defendant had been duly terminated by Issue of a legal notice. Consequently, It held the plaintiffs are entitled for 1st possession of the schedule property from the defendant. It further held the defendant shall pay mesne profits at the rate of Rs.2000/- per month from the date of termination of the lease till they hand over 3c possession of the suit property to the plaintiffs and defendant. It held the plaintiff was not entItled for damages as claimed in the plaint. 1st defendant has failed to prove that the plaintiffs had no locus standi to 19 file the suit. The suit for ejeetment was maintainable and It was not hit by the pros islons of the Karnataka Rent Control Art Tlw'relore. it passed a decree cirecUng the h defendant to handover 'a' ant possession of the schedule propc ny to the plaintiff and 3rd defendant. 1' defendant is further ordered to pay mesne profits for use and oc cupatlon of the stilt premises from 1982 till the date of delivery of possession excluding the amount already deposited hi Court. The suit caine to be decreed with costs 9 AggrIeved b3 the s iid judgment and decree of the trial ('nun. the 1 - defendant preferred an appeal in RI-A .s45i8 D'u inn tb wudc'ncv -n th- airl appca' tt jat e e I ii c ni rc ' I J ' tct iii Ci r f a c' tt ad into bt cc 'n di ii • cs 1 dctcida'n i€., 21' t!i t.rie i11 •() '-1 9('fl4 1ei' Pr .:u nt .fl f'%l('J) •! n .tt. r. ft . • i-i 20 would pay compensation In a sum of Rs.20.000/ per month foi the use and occupation of the premises from 1.10.2000 to 309 2004 The payment of the amount mentioned above shall be subject mid iihont J)rejlldicc to the right% of the l' defendant in the proceedings before the trial Court for determination of the mesne profits legally payable by them. It was made clear, In the event of the trial Court coming to the conclusion that the amount legally payable h> the 1' defendant is less than Rs 20,000/ per month the excess paid b3 them during the period ol occupation. under this order. shall not be relundable to thient 1-- defendant was dirnicd I p v nc n prflt ti it of R. 2( )0/ pe nat upt J( )JOOCI h sad av art hill bt nadi mO i'i ehr ftL wtic by ut t, flial cleternititatiori a Lht an'c.iii't it' a ires" nqii'r. 1mb hc nI ott a 'Ire' NI ild a pa dii i a s i I ista T j'_ in'. fl;
1(1, Ti •i ; .
I..
2!
4%
by the trial Court was set-aside: The matter was remitted back to the trial Court In terms of Order XX Rule 12 of CPC to hold an enquiry as to the amount lawfully payable by the 1' defendant towards the mesne profits for the past as also the period upto the date of delivery of possession to the decree-holder. The Cross- objections filed by the respondents shall stand allowed to that extent. All contentions in regard to the liability to pay the mesne profits were however left open. The trial Court shall, after holding an enquiry, pass a final decree in regard to the mesne profits as expeditiously as possible preferably within one year.
10. Thus in the said RFA 335/98 the decree for eJectment was conflnned, the decree for mesne profits of Rs.2000/- was set-aside and the matter was remitted back to the trial Court for a fresh enquiry on the question whether the 1st defendant was liable to pay mesne profits? If he is so liable, at what rate?. 22 *1 uced
11. After remand, both the parties have add could fetch evidence In respect of the rent the property after the after the expiry of the lease period and notice under termination of the tenancy by Issue of a . Exs.P.27 to Section 106 of the Transfer of Property Act plaintiffs and P.37 caine to be marked on behalf of the Exs.D. 1 to In support of the case of the 1t defendant, D.7 have been marked.
12. The trial Court, on re-appreciation of the uced after evidence and the additional evidence add le to pay remand, has held that 1st defendant Is liab profits at the mesne profits and It determined the mesne the rate of rate of Rs.5000/- per month with Interest at then from &16 from 1.9.1982 for a period of 10 years and nth with 1.9.1982 at the rate of Rs.10,000/- per mo of ten years Interest at the rate of 646 P.A. for a period session of the and then from 1.9.2002 dli delivery of pos 21 stilt property at the rate of Rs.20.000/ per month with interest at the rate of 6°o PS and with a further direction to adjust the deposit ainowit ol Rs.50,000/ paid by the l defendant to thc plaintiff towards thc aforesaid amounts.
IS. Aggrieved by the said judgment and decree passed on 12.7.2002. the present appeal is tiled. Therefore the 3ubject matter of thl appeal Is only regarding tht liability ot the first defrudazit to pay mesne prolits to h t e plainti.tf% rind the rate at which It ha. t Fenuc 14 ..)11 S.itktat i 1 Shc 1 am ' mi ci .tpjtt ii iv for p w Ian's €esat!iiic ile trnnc'nd ,ikIarfl( it anti e 1 ' rr c lmnaeci ihc t 'tat" s o hat clef' n'l Ant i 4o °n 'cci by tir' K ii tv' t.ik; Rent C cn .trol •' 1 e€ sr i' rh '1 pivd 4)11 t ''ibi Ii ' flu t' )ng"i a C P 1 t I C • I ' I it 2$ lease deed c ontained a renewal clause Eien after the exphy of the penod I defendant paid rent at the rate of us 2000/ per month which was received and therefore, 1' defendant became a tenant holdmg over Even otherwise when a notice came to be Issued under Section 106 of the Transfer of Property Act terminating the tenancy what was terminated was only a contractual tenancy After the contractual tenancy caine to be terminated he became a statutory tenant as defined under the Act 2nd therefore his liability was rnly t. pa, the at n agieed TIc lid 1 ot beome .
resps e H ot iable t pa'i the m n profits r
ntl
a a . trw
o A
compensation in a sum of Rs.20.000/ for use and
occupation of the 'chedule property and though he is a tenant under the New Rent Act. 1999, ii was passed subsequently. he is no' liable to pay any mesnc profits prior to that date from the date of temilnatlon as claimed by the plaintiff The trial Court committed a serious error In holding that with the termination. the defendant became a trespasser and that he is liable to pay mesne profits as ordered by It. Therefore. lie submits the judgment and decree requires to be set asidv.
15 Pci ennira. Itartied . (flii"d' apptarinc l'n tILL
It pondcnt %/plan)titfs • onrtiids. tile l-a%t d opens L.s
r sidential pi-npc itt 1L r' t.s "10 t
a n ij
rnnnih 1lierri: Dpyg 5 ..t tin
R S jO! tltr
.,nd it
K.iriiaIcK Re sit 3 i
('n
i ' 'l di'l t'Ot •ijpl !'i lii'- 'h1(j
11' (fig %jOj1 )flj. 't %t1411' .1tft iI, Re U' :'r
JU 't , •f . 1 .,i..j
h f
j
1 ' ''!.'e g.,•j ••.'I' •
16
constrained to file a suit for ejectment and therefore, after termination of tenancy he is a trespasser and he is liable to pay compensation for use and occupation of the premises and therefore the trial Court was justified in decreeing the suit of the plaintiff
16. Secondly, he submitted, even if the definition of tenant' under the Act contemplates the status of a tenant even after termination of tenancy, that termination should be in accordance with the Act and not under the provisions of the Tranter of Property Act as tenancy is determined under the Transfer of Property Act and h tnt ct ha io appli ation i th premise ii Illest ion i not ntit led t the b& nefit of he fri r 3r leKitaik Rn A 9$ I h nd th h h p a cit o sist I om left r d mt I h a RsOO 21 J rooms. though the enlist nietion of 23 rooms was done 1w the J%I defendant at his cost. he Is liable to pay ineslie profits or compensation far use and occupation of these 23 rooms. In that view of the mattel. he submIts n race for interference to the judgment and decree Is made out.
17. In reply, the learned counsel for the appellants submitted. under the tenns of the lease deed. the plaintlfi permitted to make Improvements to the e2asthig building In pul%uance of that right. he has put up construction of 23 rooms for 'vhich the deceased N1araana Hebbai tü opt rated ciiit! iii fart thert h a ciatte in tlic agiet mein that if the lea%e i' not rent we'l alt' i :l,c &pn ' f l'.i sean p.--i 1 .' 'lit e 1 or i1 d'-- ft r"iinhII'c tilt U. c.sc' yY . nf .b. •';'e ''1 .r,iAnt t;"ii .hiet tli' h n 4 t not drir,' after Ttjt;fifl,, 1'• \u-ii'i ti't
-. a--sc' md t r Jt !tljt 'h it'' '. . t C , it Ii' .3' . idi • J( A), ''U ''1 U i: •' %( 1 .A Z• --
'S rooms constructed b him In tenns of the lease deed during the subsistence ol tile lease.
18. In tii light of the afoirsaid facts. the material cm record and the rival contentions, the points that arise for our consideration are as under:
(1) Whether the clelendam Is liable to pay mesne profits after the termination at tenancy under the provisions of the Kaniataka Rent Control Act 1961?
(2) Whtther the reni nt H.' 2(100/ igreed to between
tlic. pa Ce i iclud 'd th '3 mu n' "owtru'ted after
lit l"asc (lint iPtC X't tiC 1 her t
t kiid hal 1% )
1
ala ' t ' J' P. It Wj P_4.) 'nit ft
11 'Lild cd tic j"I 23 tOt tfl%,
29
(3) Whether awarding of the mesne profits by the trial Court is valid and legal or it calls for any interference?
POINT No.1
19. The fact that the 181 defendant is a tenant of the schedule property Is not In dispute. The material on record discloses that the original owner of the property Narayana Hebbar constituted a partnership along with 2nd defendant - his son and in turn he leased the property to MIs Elengikal Brothers to run a hotel business including boarding and lodging. The rent agreed for the said lease was Rs.3000/- for the building and Rs.1500/- for the furnitures. As the said tenant failed to pay the rents promptly and in the meanwhile sublet the property to the let defendant herein, after negotiations, the let defendant was recognised as a tenant, in the suit which was filed between the parties. 30 4 ' Accordingly a registered lease deed came to be executed on 4.11.1968 In favour of the 1st defendant for a period 10 years. Under the lease deed, a sum of Rs.2000/- was agreed to be paid as rent for the demised premises. It Is not In dispute between the parties that on the day the property was demised In favour of the jet defendant under the lease deed, there were only 72 rooms. It Is the specific case of the jst defendant that after such demise In terms of the lease deed, he has put up construction of 23 rooms at his cost. It Is his further case after the plaintiffs refused to renew the lease after the expiry of the Initial period of 10 years. they are liable to pay 50% of the cost of construction of 23 rooms.
20. Admlttedly. the lease was not renewed. But, notwithstanding the non-renewal of the lease, jet defendant continued In possession of the demised premises from 1978 to 2004 I.e.. for 26 long years. If the 1 defendant, on refusal on the part of the plaintiffs li_.
31to renew the lease. had delivered possession of the demised premises, then certainly he would have been entitled to 50% of the cost of construction. Notwithstanding the non-renewal, when he continued for a period of 26 long years, he is not entitled to claim 50% of the cost of construction from the plaintiffs. That Is not the purport of the said clause.
21. Reliance Is placed on Clauses 7 and 8 of the lease deed to contend that plaintiff had the right to put up additional constructions at his cost without paying any additional rent. Clause 7 reads as under:
"The Lessee agrees to make such structural alterations and modifications and Improvements as required within a period of six months from this day and amount so spent shall be certified by the lessor. It Is agreed that in the event of the Lessor not renewing the lease for further period of ten years on the ground that the Lessor himself would carry on the business, the Lessor shall pay half the amount, certified by him. spent within six months for effecting alterations and V modifications and improvement for the purpose of running a Restaurant and Boarding and Lodging Sen Ion as well as to safeguard the building However, the Lessor i not bound to pay any amount towards repairs, alterations, modifications carricd out 1w the Lessee after SIX months from this day and during the rest of the lease period"
Clau'e 8 reads as under:
The Lessor is at Liberty to effect further Improvement alterations and additions to the buildings suitable for the purpose of the business of Restaurant, Boarding and Lodging in the schedule premises without causing any injury to the xisting structurt leased out to the Lessee 01 rn any manner diminishing the floor spac e itid alw of (lie buildlnf.
h ci Lq nt c I
1 *11 itlx I ci tenlant ii I '1 *dirgIL I- pit
liji ?,ltlitlt;ihIi ) i"OP" ti .h.' t'2i1%t11g Cfli,'1I11( tflfl
Fit 'it 1 1 chlflt 'ftli ,atc I eQ 1 i
I
11 ) ti )
rooms put on
of any additional construction by way of Struetural the schedule property. The words used are, alteratioiic and modifications iid improvements and additions again further improvements. alterations aHd to the bui1ding There is no whisper of putting up 23 At any additional rooms to the existing construction.
preamble to rate. the rent agreed upon is clear from the tine lease (iced which reads as under:
The rent hereinafter reserved and the covenants on the part of the Lessee I iereinafter contained th ne lessor hereby demises to the Lesse all the prenuses xvitii building for the puirpo'e of rtinning a Restaurant and l3oarding and Lodging. xtath all th fitting, fixtures furniwres etc more Iulh described in the 'hedule and the list aiiuexed to this. te hold 1hi said )renns( ) the Iesse Iron tire I day of )o ember I 96X [or a ierni of 10 t ars ' pku irtg thrrefni dtrin& th' 'ud term 1h thly it ii I R 2000' i Ic s i 1 tIle irl of ii ii i ii tnt is t re r ad ,r I ) miter 0h,' I iii d'a i mci t 21 \ch i it i I i,' l I 4 S 14 of lease.
therefore. they could not be the cubjeet mattex ther the It is in this background, we have to decide whe ha C plaintiffs are entitled to the mesne profll& as the3 claimed.
25. Though the schedule property is not a re than tesidentlal property and the rent of which is mo nataka Rs.500/ per month, the provisions of the Kar es as it Rent Contiol Act are attracted to the premis Section does not fall within the e'cepted category under J'herefore. the definition of i "re.nant 2 of the Act created tinder the a squarely apphes to the tenancy c l't lule p. op th uniter lie in i cspc Cr of Lilt VePl• fl.
Iia'
t titt 'v'!flt
lb SCtei 3(j 01 '
i
t ' \At
lcnoni hi h nad' a t n I r
1 Cfl Dli it JIi UI' [1
a AJ 1 1)'
)r t h %t ac 01i11 itsat ;
I u i
1 f11h1C eI .1 I)
iJil i'lt
3.)
F
surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant In the premises as a member of the tenanfs family lip to the death of the tenant and a person continuing in possession after the tennination of the tenancy In his favour. but does not include a person placed In occupation of a premises by Its tenant or a person to whom the collection of rents or fees In a public market. cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authorltf Therefore a person continuing In possession after the termination of the tenancy m his favour. contmues to be a tenant under the Act The whole objett of this nictmert q o protcct tcnants from illea1 ciction, FAct ifacxi act altenarn, s enninttd be use f I ex i i id r h it c in ( C le n n t'.t ci ii t ir S c tt i nvi nn '1- Ii i 1 at Q )n 1 ti t i (ci cc r-- ii 1 1' 1 36 4ab tenant. he is liable to pay the rent agreed to between the parties and he Is not liable to pay any mesne profits. In fact. this point Is no more resintegra. A Division Bench of this Court had an occasion to consider this aspect In the case of MESSRS MOCA VS MORZARJA PRODUCTS (I') LTD. reported In ILR 1991 Kar., 1492 whereIn it was held as under
"From the definition, it is clear that even after termination of the tenancy the person continuing in possession is included in the definition of the word "tenant". As the continuation of the defendants in possession was lawful having regard to the definition of the word 'tenant' ft is not possible to hold that the defendants were liable to pay mesne profits. They were liable to pay only the rent at the agreed rate. Consequently, It follows that the decree passed by the trial Court for mesne profits Is liable to be set aside".
It is in this context, learned counsel for the plaintiff submitted that would be a legal position If a tenancy is terminated under the Act and not dehors the Act.
U--
37
27. Tn the instant case. he submits the tenancy is not terminated under the Act but tenancy is terminated under the Transfer of Property Act as Part V of the Act, has no application to the tenancy in question and therefore, he submits the said Judgment has no application and after termination of tenancy, jst defendant becomes a trespasser and he Is liable to pay mesne profits.
28. Though Part V of the Act has no application to the tenancy in question, as the rate of rent is more than Rs.500/- and the schedule premises is a non residential one and the said tenancy has to be terminated under the provisions of the Transfer of Property Act, before a suit for ejectment is to be ified In a Civil Court, the entire premise or the basis for the filing of the suit is. he ceased to be a tenant and he Is not entitled for protection under the Act and the landlord is entitled to get compensation under the Gciieral Law, t3v this Act, if a t enancv is i crininal ed. the question of '1cctiIu a 1 cilaIll from tlic premises would not arise. In i he entire Act, tliei e i' tin pros isioii for terminating the tenancy of a tenant, The termination of tenancy referred to in Section 3 ' is only the termination of tenancy under Section lO€ of the Transfer of Property Act. Even, if such tenancy is terminated this statute gives him the protection and treats him as a tenant and his right to occupy the premises uflie to m end not only nfter 'he passing iif the e ictioll decree under die Aci but only wlicii he i octualk evi ted from the sehcuuF pn fuses aict then IOTC. w l iiO fiud in sibstan iu ti e sdld I It i H )r ( ft I h () F (II ) \ I I I 39 .0 ered to be Transfer of Property Act and he was ord Part V evicted by the Clvii Court in view of the fact that all other of the Act was not applicable in respect ci Act. He aspects he continues to be a tenant under the It cannot does not become a trespasser and therefore, after such be said that he Is liable to pay mesne profits 'Ic that extent. thc learned trial Judge jq termination e.
iii error and that finding deserves to be set- asid POINT NO.2 JO. IIojtver In the penilini tacts of this case.
ihc question Mill to be ansnt-rc ci is Whc thc r the
P'alntitt entitled U a r c profits or c ompeinatlon for
I tc' 'upation cf Ui 3 ic oni cot js(i ic ted
thc is .i .
ask" I" ttiiiis f tb' pt-tails ' vi (1 1 -
fhcti mdc - thc. igitc.meiit and admittedi 1' ii v'r
l 'ci'
40
31. We have cet-otit the relevant clauses referred to abovc with Ii are pan of the lease deed. Those clauses do not give any Indication that the lessee was permitted to put up an additional construction of 23 rooms in the context in which these 2 clauses are provided read with the other clauses, all that the clauses mean Is that the lessee is at liberty to make alterations, additions and improvements to the premises which is demised ft does not refer to constniction of 23 addItional rooms. This Is vhs It was staled when the c.o,t of these uidlitionul i oonn is bol ftc b' the 1 defendant lie 1% entitled to reiiewai 1)1 least tor a I'inh'-r pcrind ol In vtar. 11 thu rt'nnai not r;iritt d. the 1ccnr should pay halt th" C"! :( cOil't'u' 01)11 E n o lent i% theil l'w th sc tildittiacti 1CYPfl' F 'fl 'bC tt g.r iii til. ]I:1%e ch-' :t r''t JC),%lhIE 1 i% t' .il * Ic' it it' •d K 2 .Yi iLr( • • 41 upon is inelusiw of this 23 iooms which were constructed subsequent to the lease of the property. There is no oral evideiu e on this aspect. It is In this background Ills necessary to look it the oral evidence of DW- 1. In the examination-In-chief. 1w has siated as athe property was in a vent bad shape when It was taken on lease by my father It was agreed that in ease of any repairs. they would pay 50% of repair charges. We completed alterations and repairs within six months by incurring cost of Rs. 1.35.000/-. Paratneshwara Hebbar apprnved tht expenses mcurred. In ease they did not ant t ' nne the lease tlxy li-id t pa '50°c of rlaracs incurred for repairs. 11iev have- nut paid the id m nt A,ir fR .000 , IMdath it nt 1-n rf-- 1rtiW'a' . i, 1 ni 1 I- 300 1t n oti bin 'hn liii. buildint •'a' 1ractI h• •lergual hrolheI% 'nc I, tili IA 'i i. n U ' It 1' tr' a'i H' 2 n(d. I tfl. Ur '1 fj f.I.Ij(% 1(111 nfl tr cii )t1 tj edit l(i)l'iJ' 1 • . 42 I completed the alterations and repairs in Apr11 1969. Ihe suit property was obtained on lease for manufacturing food products and lodging purposes. We ha c furnished all the rooms and retaurant and wine shops. My father was not paying any amount more than Rs.2,000/ as the rent The suit property is near City Market, I3angalore at a distance of half a kilometre from Kalas'ipalyain Bus Stand and 2 kms. from Bus Stand and Railway Station. There are 95 rooms in the suit building. We get income of Rs.45.000/ p.m from the wine husiness. Again h said ht gets an income of Rs.4.000/ tu R 5000/. per month. In 196M 1 t r n his fathi r fink Ibe sun pm mist s nr lease tlierc w it 12 r in fl% li_it th 1 ..uldmg u€ s tILItSFiT H ahrt' 1pselsiaic (11S11C ,)r' fl (51 1 cit 'l30( t.
t (Cr t I I t
F I ) 111' ii ft ni u•
41
property.a The documentary evidence produced In this case discLoses that the fIrst defendant sought for penrnsion ol the rented AeeoinmodatIon ('oatroller for enhancement of ihe room rent In support of that, he had ified an affidavit. The relevant pam at Ex.P1O In the affidavit reads, as under:
'The following enhanced rates are excluding water and light charges. All the rooms are provided ith a separate water and lighting.
1) SIngle room 62 Rs.lO-00
2) Double room etc 24 Rs.25-00
3) Trlble room S Rs.30 00
4) Fourbed 1 RcSSOO
In view of the abo e facts I request Ihc inc med iutliontle md order gi e effect o the ievised rate, a fair Iatcs/rent%' 3 Ag in a çei FP 3 htich clued
- % ii hut lb ii t '. hi ' ri fr.ljtiiiving rijhqag t'd ;'t'' 'iii rcii' at.,, It if! li.I h t.,( f h jj'il' •I Q ic'c' '. 1i a °•'' k .'a'•' and lighting. All tile rooms are provided with a separate water and lighting.
1) SINGLE ROOM 62 Rs,20O0
2) DOUBLE ROOM 24 Rs.45-00
3) TR1BLE ROOM 8 Rs.50-00
4) FOUR BED 1 R.s.60-00
in view of the above facts, I request the
concerned authorities and order to give effect to the revised rates, as fair rates/rents."
34. On such representation. the rents were revised as under:
The fair rates for the lodging prov.ided at Hotel Nataral. No. 107. Police Road, Cliv ;arket-53 were revised as noted below:
Accommodation No, o.f Existing Rates
availa.bie room rates approved
per day per day
I. Single Bed Room 10-00 20-00
2 Bcbi I t(1 PQ IL 25- 00 4o-UU
3. iripie Ned Room 30-00 30-lW)
4. Four Bed Rcom - (iv 61)-00
45
S
4
This order came to be passed on 05.12. 1986. It is as per Ex.P15.
35. In fact the Bangalore City Corporation, as per Ex.P16, revised the rental value of the premises. As is clear from Ex.P16 where they fixed the tax payable by taking the rental value of the premises at Rs.3.000/-.
Accordingly tax has been fixed. In respect of the restaurant portion of the building Rs.6,97,640/- is taken as the annual rent received In respect of these 95 rooms and therefore Rs.2,87,860/- is taken as the rental value of the entire building and accordingly the building was taxed.
36. Therefore, from the material on record It is clear that clauses 7 and 8 of the lease deed do not contemplate construction of 23 addItional rooms. They only refer to repairs, additions, alterations and Improvements to the existing building. As the building was In a bad state. It required Immediate repairs and the lessee was permitted to carry out necessary repairs, additions, alterations and if the lease is lint rencwd for a period ot ten ears in addition to the initial penod of 10 years, the lessee agreed to pay 50-'o of the expenditure jncurred, lii this regard. tin' condition precedent for paying the said amount is on the lessors but the lessee should surrender possession If the lessee has c'oiitinued possession as stated earlier, he is not entitled to b0°o expenses agreed to he reimbursed But all this has nothing in do with the rent or . ompensath n payable to the use and occupatIon of 23 tcw room' nstruccd by the lessee In these 1rc,mrj1icc it I'- not possible to lold that the rPnt ot 2 )0( tt ] ide the dister d a& d cI OK Ii iSi\ 01 thiS et\ UI itI Ut 1 R Se it uutnr nit tie IiH \a at a' Hc bbs' who ft Ki( ,
1)O51cT 1i i't -f 11! lit ii I 41 Inducted earning on business by himseit. The tenant the first defendant into possession. Narayana Hebbar was forced to accept tile first defendant as a tenant and years leased the proper'3 to him for a period of ten under a registered lease deed. Though the agreed rate of rent by the previous lessee was Rs.3.000/ towa rds building and Its. 1.500/ towards furniture. when It came to be leased to the first defendant recognising him as a lessee. It was leased to him for a paltr3 sum of Rs.2.000/. Even if the reason given kv DW-l that the building was hi a very had shape and required immediate repair'; is to be iceepted after effe ting repairs for niakmu 72 rooms habitable, the r5set. put up another 23 new rooms br being let mit. a*rayan i Hebbar Ii d and 'ispule aro between talnll3 mle, 1' ii 3sttlti'I fli fi '4 ckfendus took full ath an a* n. it. a ' ic. r ran the-- wriilcn '.1 iit'nwt i tjj(.j it r v pr--s in lit 'vi tht I i-Tfl A .r ;f s liii It 'tii '*iit it Idil ;h a' • '•j an 48 in these circumstances, the had not been able to give proper attention to the lease created by their father and even after the expirv of the original period about renewal and negotiating terms and claiming rent in respect of 23 new rooms constructed, Now the material on record clearly establishes that after the expirv of original period of ten years. for nearly 26 years. the lessee has enjoyed the property In all he has enjoyed the property for a period of 36 long years In 2000 when he entered into a compromise in the 'ery same proceedings by an 1 nf parties Rs °R000/ gremen 's fixed fo use arid oc upation of the (ntlre building I he agr ed ren in 368 2 000 her fter om I led 3u tigath r flc start d ir 38 h 1 t elf f t Ic I 19 not meant to protect the Interest of tenants, who are In occupation of 95 rooms, 'i restaurant and a wine shop Ihe whole object of the Act was to protect the weaker section of the Soclet3 who are unable to iithstand the demands of a powerful section of the Society namely the landlords. The protection was given to those weaker section of the Society, but unfortunately those provisions are used by persons who are economically strong and the weak landlords have been harassed The present case is a glanng example Without the tenancy bemg renewed the tenant paying i paltn sum of Rs2 000 uihich as igieed to lx paid in the sear 968h ontin I c ip h pci-i r p110 f 2€ cr eiis afttr thc xpir 01 thc igmal ixuod C I a t p1 39 U I in
38. Under these nrcumstances, we are satisfied that the rent agreed upon under the least deed did not Include the rents/compencatInn payable for use and occupation 01 23 rooms constructed after coming Into force of the lease and nothing has been paid admittedly for these 23 rooms either during the lifetime of the original tenant or after his death by his legal heirs as clearly admitted in their evidence. Though the learned Trial Judge has not looked at the case from this angle. he has arrived at a right conclusion and right resuk. He has awarded mcsne profits. Though the iord may not be ippropnatc ompensat ion for tht ise and nn'upat Ion of aHead 23 11t34 i oorn at tilE raft ot l,t000 in 9829 a 1€tther oHs OOO Ii nn 199? 2 RD i i iii' wit ci o ca ' f nc I ' i ijc Ii t1 " lJdltA 1 ittn-- agiecd to 11(1; R.2O.i'OO, 101 1 tu r I I ii
39. In that view of the matter. we are satisfied that the amount fixed by tile learned Trial Judge is reasonable. and does not call br any Interference. though not for the reasons given by the learned Inal Judge. However he has awarded the interest on the amount awarded as and when It became due. It may not be proper because the liability to pay the said mesne profits or compensation arises only after It Is adjudged by the Court by way of decree and therefore grant ol interest on the amount as and when It became due is not juctlficd To that c'tcnt. i.e. the interest portion. is insustainabie. but the rest of the ordei t mds 10 abc satished th kanwd lii ids or 1 a •c'nvl.'i t nion .d flit oral 1 d(r\'ilant.tn tnir n irIei n 1 1 it C ncI chiC ikiiiiz 'iott ul thu : it- ia; Oi rIte poiii bc'--
e C • c flst •,jIi ,' thr j:i.'' .'i. ir: iti1 •j --2 he matter, we do not see any merit iii this appeal. \ceordin1v. we J)ISS the following ORDER Appeal is partly allowed, disallowing interest awarded by the trial Court. However the rest of the decree stands affirmed, No costs if $ A
6)'