Bangalore District Court
Sri.M.Kempaiah vs Sri.N.Prem Chand on 22 October, 2016
C.R.P.67 Government of Karnataka
Form No. TITLE SHEET FOR JUDGMENTS IN SUITS
9 (Civil) IN THE COURT OF THE SMALL CAUSES AT
Title BANGALORE.
Sheet for
Judgment Present: Sri.A.SAMIULLA, B.Sc LL.B.
in Suits XIX Addl SCJ, MACT & XLI ACMM,
(R.P.91) Bangalore.
S.C.No.722/2012
PLAINTIFFS: Sri.M.Kempaiah,
S/o Late.Maraiyappa,
73 years,
Dead by legal representatives,
1(a) Smt.Nanjamma,
W/o Late.M.Kemapaiah,
53 years,
1(b) Smt.K.Manjula,
W/o Sri.Chandrashekar,
D/o Late.M.Kemapaiah,
30 years,
1(c) Miss.K.Suma,
D/o Late.M.Kemapaiah,
27 years,
1(d) Sri.K.Srinivas,
S/o Late.M.Kempaiah,
24 years, All are R/at
# 121, Old Madras Road,
Ulsoor, Bangalore-08.
(By Sri.SVG)
V/s
SCCH 17 2 SC.No.722/12
DEFENDANT: Sri.N.Prem Chand,
S/o Late.Nemichand,
C/o Heera Pawn Brokers,
Shop No.1/3, G.No.10th Street,
Old Madras Road,
Ulsoor, Bangalore-08.
(By Sri.HJS)
Date of Institution of the Suit: 25.05.2012.
Nature of the Suit: Ejectment suit.
Date of the commencement of
Recording of the evidence: 03.06.2008.
Date on which judgment
Was pronounced: 22.10.2016.
Total Duration: Year/s Month/s Day/s
04 04 27
(A.Samiulla)
XIX ADDL.JUDGE.
J U D G M E N T
Suit is for ejectment and for damages/mesne profits at the rate of Rs.9,000/- per month from the date of suit till delivery of possession.
SCCH 17 3 SC.No.722/12
2. Suit property is a shop bearing No.1/3, G.No.10 Street, forming part and parcel of the immovable property bearing No.G.No.10 Street of Old Madras Road, Bengaluru.
3. At the first instance suit was filed on the file of City Civil Court, Bengaluru in O.S.No.5121/05. Subsequently it was transferred to the Court of Small Causes on the point of jurisdiction. Suit is filed by Sri.M.Kempaiah through his GPA Holder Smt.M.Nanjamma, who is his wife. During proceedings the plaintiff breathed his last, his legal representatives Smt.M.Nanjamma and her children were brought on record.
4. The say of plaintiff is that, he is the absolute owner of immovable property bearing No.121 and 122 situated at Old Madras Road and property bearing No.1, G.No.10th Street, Ulsoor, Bengaluru, in which defendant is a tenant of a portion, which is the suit premises. The plinth area of suit SCCH 17 4 SC.No.722/12 property is more than 14 square meters and the last paid rent is Rs.500/- per month.
5. Defendant is using the suit property for commercial purpose and the tenancy is monthly. Plaintiff not being interested in continuing tenancy got issued a quit notice dated 4/4/05 through the power of attorney holder terminating the tenancy and calling upon the defendant to quit and deliver the vacant possession of suit property within 15 days from the date of service of notice. Notice sent through registered post acknowledgment due served on the defendant. In spite of service of quit notice he failed to vacate the premises and becomes a tenant at sufferance, suit premises is in the prime locality and it fetches a sum of Rs.9,000/- per month as rent, which is prevailing in the area, where it is situated, as such he is liable to be pay damages at the rate of Rs.9,000/- per month for the SCCH 17 5 SC.No.722/12 occupation of property after termination of tenancy. Hence suit is filed.
6 Defendant resisted the suit by filing written statement. He specifically contended that, M/s Balaji Silver Palace is the real tenant of suit property, who obtained the premises from the real owner M.Kempaiah on a permanent lease in the year 1982 by paying good will of Rs.50,000/- and advance sum of Rs.5,000/- & monthly rent of Rs.100/-. Thus, suit is bad for non joinder of real tenant i.e., M/s. Balaji Silver Palace. Shop premises is measuring less than 14 square meters as such this Court has no jurisdiction in view of bar created by Section 50 of the Karnataka Rent Act, 1999. It is not in dispute that the suit premise is a residential cum commercial premises as such this Court has no jurisdiction to try the case. The property belongs to temple and plaintiff has no right to institute the suit. At no SCCH 17 6 SC.No.722/12 point of time the schedule property leased to the defendant for commercial purpose.
7. In fact the plaintiff let out the schedule premises for the residential purpose of the defendant and he was enjoying it as residential cum shop premises. In Bangalore Mahanagara Palike the schedule premises is assessed as residential premises only. Hence this Court has no jurisdiction to try this suit.
8. It is contended that, the defendant along with M/s. Balaji Silver Palace got executed a permanent registered lease deed on 1/10/85 and the same is a permanent registered lease deed, wherein it was agreed by the plaintiff that under no circumstances he disturb or interrupt the peaceful possession of the shop premises and business of M/s. Balaji Silver Palace. It was also agreed that the lessee shall be entitle to renew the lease for a SCCH 17 7 SC.No.722/12 further period from time to time subject to the enhancement of rent by 20 per cent and the defendant duly enhanced the rent from time to time. As per the clause 9 it was agreed by the plaintiff that, under no circumstances the plaintiff will disturb the peaceful possession and under clause 10 it was agreed by the plaintiff that the lessee shall be entitled to renew the lease for a further period on the same terms and conditions. Since, the said Lease Deed is registered as No.2010/85-86 and the defendant getting protection under the Benefit of Permanent Lease the plaintiff has no locus-standi to terminate the tenancy or disturb the peaceful possession of the defendant.
9. It is true that the plaintiff got issued the most defective legal notice on 4/4/05, which was issued by Smt.M.Nanjamma without having any power to terminate the tenancy; notice was suitably replied on 18/4/05. Thus it is SCCH 17 8 SC.No.722/12 clear that the plaintiff has no locus-standi to terminate the tenancy when the Lease Deed is a permanent lease and which was initially obtained for residential as well as commercial purpose. Legal notice being the most defective notice is not having any value or binding on the defendant.
10. The schedule premises is in a dilapidated condition and he spent a sum of Rs.25,000/- for renovation and he is entitle to recover the said amount along with goodwill and advance amount paid by the defendant as well as real tenant M/s. Balaji Silver Palace. Suit is not properly valued and Court fee paid is in sufficient. Among these grounds defendant prays to dismiss the suit.
11. Defendant filed additional written statement by contending that, the legal representatives of plaintiff have no locus standi to prosecute the case. There is serious dispute regarding the ownership. The Charitable Trust and SCCH 17 9 SC.No.722/12 Temple are claiming ownership. Even the brothers and sisters of Kempaiah are claiming ownership. The special land acquisition office has already acquired the property for the purpose of Metro Rail Project and the plaintiff's legal representatives have already received the compensation.
12. Following issues and additional issues arise for consideration.
1) Whether the termination of tenancy of the defendant is valid and is in accordance with law?
2) Whether plaintiff is entitled for possession of suit property from the defendant?
3) Whether plaintiff is entitled for mesne profits/damages as claimed?
4) Whether defendant proves that the suit is bad for non-joinder for real tenants M/s. Balaji Silver Palace as contended in para 3 of the written statement?
5) Whether defendant proves that suit is bad for mis-joinder of necessary parties?
6) Whether defendant proves that schedule premises is less than 14 square meters and that this Court has no jurisdiction to try this suit?
7) Whether defendant proves that plaintiff has no locus standi to file this suit?
SCCH 17 10 SC.No.722/12
8) Whether defendant proves that the suit is not properly valued and proper Court fee is not paid?
9) What order?
ADDITIONAL ISSUES
1) Whether the legal representatives of the plaintiff have no locus-standi to prosecute the suit?
2) Whether this court has no jurisdiction to decide the suit?
13. To prove the case, plaintiffs examined one R.Chandrashekar as Pw.1 and documents Ex.P1 to 3 were marked. Legal representative No.1(d) was examined as Pw.2 and documents Ex.P4 to 6 were marked. Defendant did not choose to adduce evidence.
14. Heard arguments from both sides.
15. Findings on the above issues are as follows:
Issue-1: Affirmative.
Issue-2: Affirmative.
Issue-3: Separate enquiry.
Issue-4: Negative.
Issue-5: Negative.
Issue-6: Negative.
Issue-7: Negative.
Issue-8: Negative.
Addl.Isues-1 & 2: Negative.
Issue-9: As per final order for the following;
SCCH 17 11 SC.No.722/12
REASONS
16. Iusses-1 to 3: These issues are inter linked, as such taken together for common discussion to avoid repetition.
17. Plaintiff asserted that, he is the owner of suit premises and defendant is tenant on monthly rent of Rs.500/- and the tenancy is terminated by issuing quit notice dated 4/4/05, which is evasively replied by the defendant and in spite of termination of tenancy he continued as a tenant at sufferance, as such he is liable to pay damages/mesne profits at the rate of Rs.9,000/- per month as the suit premises is situated in the prime locality and fetches rent of Rs.9,000/- per month. Per contra the defendant contended that the suit is not maintainable and this Court has no jurisdiction to try the suit.
SCCH 17 12 SC.No.722/12
18. On careful scrutiny of rival pleadings one can see that absolutely there is no dispute with respect to the jural relationship between the plaintiff and defendant. This can be gathered in the para number 3, 7 & 8 of written statement, wherein the defendant categorically admits the existence of jural relationship. It is also not in dispute that the tenancy is month to month. Under these circumstances the crucial point for consideration is whether tenancy is lawfully terminated.
19. It is worth to note that Section 106 of Transfer of Property Act was amended by the Transfer of Property (Amendment) Act, 2002, wherein sub section 3 of Section 106 reads thus, A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-
SCCH 17 13 SC.No.722/12 section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
20. In the case on hand the tenancy is month to month.
Thus, it will fall in the second limb of Section 106 of Transfer of Property Act requiring 15 days prior notice to terminate it. Hence, quit notice (Ex.P1) was issued on 4/4/05 terminating the tenancy and calling upon the defendant to deliver possession of property within 15 days from the date of service of notice. Thus determination of tenancy is valid. Here, tenancy is determined by efflux of time also. In the backdrop of discussion supra it is very clear that the tenancy is lawfully terminated and the plaintiff is entitled for possession of suit property.
21. The facts situation on hand manifest that the tenancy is lawfully terminated. After termination of tenancy the tenant becomes a tenant at sufferance i.e., his possession is SCCH 17 14 SC.No.722/12 without owner's consent. Thus the tenant is liable to pay damages for wrongful occupation of suit premises. In the case on hand, except a bare self serving statement that the suit premises fetch rent at the rate of Rs.9,000/- per month, absolutely there is no reliable evidence to ascertain actual damages. Under these circumstances separate enquiry is warranted to determine the damages/mesne profits as envisages under Order 20 Rule 12 CPC.
22. The defendant contended that there is permanent registered lease deed and the plaintiff has no locus standi to terminate the tenancy. It is worth to note that the contentions raised by the defendant remained as it is for want of proof as he not tendered either oral or documentary evidence.
23. In the background of discussion supra without hesitation it can be said that the tenancy is lawfully SCCH 17 15 SC.No.722/12 determined and plaintiff is entitled for possession and there shall be a separate enquiry to determine damages/mesne profits. Hence, above issues are answered accordingly.
24. Issues-4,5,7&8 and additional issue-1: These issues are taken together for common discussion to avoid repetition.
The defendant specifically contended that the suit is bad for non-joinder of real tenant M/s. Balaji Silver Palace, and the plaintiff and his legal representatives have no locus standi to file suit.
25. It is pertinent to note that the defendant utterly failed to demonstrate any of the contentions raised by him, as he has not adduced evidence. In addition to this here defendant does not appear into the witness box and states his own case on oath and does not offer himself to be cross-
SCCH 17 16 SC.No.722/12 examined by the other side, the assumption would arise that the case set up by him is not correct. In addition to this the defendant admits the jural relationship, as such he is estopped from denying the title of landlord and locus standi to file suit. Hence above issues are answered in negative.
26. Issue-6 & Addl.Issue-2: Defendant contended that the suit premises is measuring less than 14 square meters, as such this Court has no jurisdiction. Section 2 (3) (g) of Karnataka Rent Act envisages that, the said Act is applicable to premises used for non-residential purpose having a plinth area of not exceeding fourteen square meters used for commercial purpose.
27. In the instant suit at the instance of defendant Court Commissioner was appointed to measure the property and to report thereon, who carried out the commission work and submitted report. Though both parties filed objections but SCCH 17 17 SC.No.722/12 none of them cross-examined the Court Commissioner to destroy the report submitted by him which becomes part of Court record.
28. It is well settled that the plinth area includes the area beneath the walls. Therefore, in finding out the measurement of the non-residential premises not only the actual space available between the walls i.e., carpet area but the area covered by the walls has to be taken into consideration. In this background the contention of defendant that the carpet area is to be taken into consideration is not sustainable. As per Commissioner report the plinth area is East to West is 8.11 feet and North to South is 19 feet which comes to 154.09 square feet, if converted to meters it comes to 14.31 square meters. This shows that the suit premise is measuring more than the fourteen square meters. Thus the contention raised by the SCCH 17 18 SC.No.722/12 defendant that the plinth area is less than fourteen square meters and this Court has no jurisdiction is not tenable.
29. It is argued that the Pw.1 in cross-examination stated that the gift deed was executed by his grand mother and he can produce it and also stated that his father executed will with respect to suit property. It is argued that neither gift deed nor will is produced and proved them in accordance with law. This shows that there is serious dispute about the ownership and this Court cannot decide the dispute with respect to title. To strengthen his contention the defendant relied on decisions reported in ILR 2011 KAR 229 (Abdul Wajid V/s A.S.Omkarappa), wherein it is held that the Courts of Small Causes have jurisdiction to take cognizance of not only a bare suit for ejectment but also a suit for ejectment with a prayer for recovery of mesne profits or damages, subject to its pecuniary limits, in SCCH 17 19 SC.No.722/12 respect of the premises to which Karnataka Rent Act is not applicable.
Defendant also relied on Section 68 of Evidence Act, which envisages about proof of execution of document required by law to be attested.
Defendant relied on a decision reported in ILR 2015 KAR 3443 (Sri.Avinash Lal Chandani & Others V/s Sri.P.A. Nirajnan & Others), wherein the Hon'ble Court held that, when the Court as contemplated under Karnataka Rent Act is a Court of limited jurisdiction, it cannot go into the niceties of title.
30. It is pertinent to note that no one can dispute the proposition of law laid in the decisions relied by the defendant. But said decisions are not applicable to the case on hand because here the defendant admits the jural relationship and the plaintiff proves the lawful termination SCCH 17 20 SC.No.722/12 of tenancy, and there is no occasion for this Court to touch the niceties of title. Thus the contention raised by defendant holds no water.
31. Issue-9: Discussion supra makes it clear that the plaintiff establishes the jural relationship, legal termination of tenancy, entitlement for possession and damages. Hence Court proceeds to pass the following;
ORDER Suit is decreed in part with costs.
Defendant is directed to vacate the suit premises and handover vacant possession to the plaintiffs within two months from the date of decree.
There shall be a separate enquiry as per order 20 Rule 12 CPC for mesne profits/ damages.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 22nd day of October, 2016) (A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE.
SCCH 17 21 SC.No.722/12
ANNEXURE
List of witnesses examined on behalf of Plaintiff: P.w.1-Sri.R.Chandra Shekar.
P.w.2-Sri.Srinivas.K List of exhibits marked on behalf of Plaintiff:
Ex.P1 Office copy of legal notice Ex.P2 Reply notice Ex.P3 Lease Agreement Ex.P4 Original legal notice Ex.P5 Original Reply notice Ex.P6 Original Lease Agreement List of witnesses examined and exhibits marked on behalf of Defendant: Nil.
(A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE SCHEDULE All that piece and parcel of the shop premises bearing No.1/3, G.No.10 Street, forming part and parcel of the immovable property bearing No.1, G.No.10 Street, situated at Old Madras Road, Bangalore - 560008.
East-: Shop No.1/4 of the plaintiff; West-: Shop No.1/2 of the plaintiff; North-: Property bearing No.121 of the plaintiff; South: G.No.10 Street.
(A.SAMIULLA)
XIX Addl SCJ, MACT & XLI ACMM
BANGALORE
SCCH 17 22 SC.No.722/12
IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
```AWARD S.C.No.722/2012 PLAINTIFFS: Sri.M.Kempaiah, S/o Late.Maraiyappa, 73 years, Dead by legal representatives, 1(a) Smt.Nanjamma, W/o Late.M.Kemapaiah, 53 years, 1(b) Smt.K.Manjula, W/o Sri.Chandrashekar, D/o Late.M.Kemapaiah, 30 years, 1(c) Miss.K.Suma, D/o Late.M.Kemapaiah, 27 years, 1(d) Sri.K.Srinivas, S/o Late.M.Kempaiah, 24 years, All are R/at # 121, Old Madras Road, Ulsoor, Bangalore-08.
(By Sri.SVG) V/s DEFENDANT: Sri.N.Prem Chand, S/o Late.Nemichand, C/o Heera Pawn Brokers, SCCH 17 23 SC.No.722/12 Shop No.1/3, G.No.10th Street, Old Madras Road, Ulsoor, Bangalore-08.
(By Sri.HJS) Claim: Suit filed on prays for directing defendant to Quit, vacate and deliver the vacate possession of the schedule property. This suit coming on for final disposal before Sri. A. Samiulla, XIX Addl. Judge, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
And it is further ordered and decreed that defendant do pay to the plaintiff sum of Rupees being the amount towards costs.
ORDER Suit is decreed in part with costs.
Defendant is directed to vacate the suit premises and handover vacant possession to the plaintiffs within two months from the date of decree.
There shall be a separate enquiry as per order 20 Rule 12 CPC for mesne profits/ damages.
SCCH 17 24 SC.No.722/12 Given under my hand and the seal of the Court this Day of 2016.
REGISTRAR COURT OF SMALL CAUSES, BANGALORE MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee ____________________________ Total of Rs. _____________________________ Amount payable by the defendant to the plaintiff is Rs.
SCHEDULE All that piece and parcel of the shop premises bearing No.1/3, G.No.10 Street, forming part and parcel of the immovable property bearing No.1, G.No.10 Street, situated at Old Madras Road, Bangalore - 560008.
East-: Shop No.1/4 of the plaintiff;
West-: Shop No.1/2 of the plaintiff;
North-: Property bearing No.121 of the plaintiff; South: G.No.10 Street.