Bangalore District Court
Sri. Palakshan B.V vs Shabbeer Ahmed on 12 April, 2017
BEFORE THE I ADDL. JUDGE, COURT OF SMALL CAUSES,
BANGALORE. (SCCH-11)
DATED THIS THE 12TH DAY OF APRIL, 2017
PRESENT: SMT. B. N. SUJATHA, B.Sc., LL.B.,
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
SC.324/2016
PLAINTIFF: Sri. Palakshan B.V,
Aged about 50 years,
S/o. Late P. Veeranna,
No. B-43, CFTRI Quarters,
CFTRI Campus,
Mysore - 570 020.
(By pleader - Sri.Rameshchandra)
- V/S -
DEFENDANT: Shabbeer Ahmed,
S/o. Mohd Ismail,
G-2 (Front portion)
Ground Floor,
Sri Veerabadraswamy Residency,
Gokul Layout, After Pattannagere,
L.G.Godown, After Tender Beauty Parlour,
Pattannagere, Bengaluru - 560 098.
(By pleader - Sri.S.Guruprasad)
SCCH - 11 2 SC 324/2016
JUDGMENT
The plaintiff has filed this petition against the defendant for ejectment by termination of tenancy, for directing the defendant to quit, vacate and deliver vacant possession of the suit schedule premises, future damages at the rate of Rs.15,000/- per month for use and occupation of the schedule premises after the termination of the tenancy and for costs.
2) The case of the plaintiff is as hereunder:
It is averred that plaintiff is the absolute owner and landlord of the property bearing G-2 (Front portion) front portion, Ground Floor which is fully described in the plaint schedule and that the defendant is tenant of the said premises on rent of Rs.9,000/- per month excluding electricity and other charges. It is averred that the defendant is chronic defaulter and has not paid rent from 01.05.2015 to 31.01.2016 and is due rents in a sum of Rs.81,000/- which the defendant has not paid in spite of repeated demands and SCCH - 11 3 SC 324/2016 requests. Since the defendant did not pay rent regularly, the plaintiff caused the legal notice dated 01.02.2016 through registered post by terminating the tenancy of the defendant immediately after the expiry of 15 days from the date of service of notice as contemplated under Section 106 of the Transfer of Property Act. It is averred that the notice is duly served to the defendant on 06.02.2016 and that the defendant instead of complying with the terms of notice has sent untenable reply on 16.02.2016. That in the reply notice the defendant has requested the plaintiff to adjust Rs.80,000/- towards arrears of rent which was paid as advance. After adjustment the defendant is liable to pay a sum of Rs.3,000/- i.e. Rs.1,000/- being arrears of rents and Rs.2,000/- being legal notice charges. Further it is averred that the defendant is liable to pay rent from 01.02.2016 to 21.02.2016 and is also liable to pay damages for wrongful use and occupation of premises after 21.02.2016. On these grounds plaintiff has filed the above suit for the reliefs stated supra.SCCH - 11 4 SC 324/2016
3) In pursuance of summons the defendant has appeared before court and has filed written statement. The defendant has admitted the averments of para No.1 and 2 of the plaint as true and correct. The defendant has partly admitted the averments made in para No.3 of the plaint as true. It is admitted that the defendant is a tenant of the suit schedule premises under the plaintiff on a monthly rent of Rs.9,000/- excluding electricity and other charges. It is contended that the legal notice sent by the plaintiff dated 01.02.2016 was replied on 16.02.2016, the plaintiff could have sought for amicable discussion and resolved the issue instead of coming to the court. It is contended that the damages of Rs.15,000/- per month claimed by plaintiff for use and occupation of the suit schedule premises is exorbitant. It is contended that the plaintiff in order to claim higher rent and huge deposit amount as taunted the defendant. On these grounds the defendant has sought for dismissal of the suit.
SCCH - 11 5 SC 324/2016
4) In order to substantiate the case of plaintiff, the plaintiff himself has got examined as PW.1 and has got marked documents as Ex.P1 to 3 and on behalf of the defendant, defendant himself has got examined as DW.1 and closed his evidence.
5) Heard the arguments on the side of plaintiff and defendant has filed written arguments.
6) The following points that arise for my consideration are:
1) Whether the plaintiff proves that the defendant has not vacated the premises and has not paid the rents inspite of legal notice ?
2) Whether the plaintiff is entitled for the relief as sought in the plaint to what Order or Decree?
7) I have heard the arguments and my findings on the above points are as under:
Point No.1 : In the affirmative;
Point No.2 : As per final order, for the following: SCCH - 11 6 SC 324/2016
REASONS
8) POINT NO.1: It is the case of the plaintiff that he is the absolute owner and landlord of the property bearing G-
2 (Front portion) front portion, Ground Floor which is fully described in the plaint schedule and that the defendant is tenant of the said premises on rent of Rs.9,000/- per month excluding electricity and other charges. It is further case that the defendant is chronic defaulter and has not paid rent from 01.05.2015 to 31.01.2016 and is due rents in a sum of Rs.81,000/- which the defendant has not paid in spite of repeated demands and requests. Since the defendant did not pay rent regularly, the plaintiff caused the legal notice dated 01.02.2016 through registered post by terminating the tenancy of the defendant immediately after the expiry of 15 days from the date of service of notice as contemplated under Section 106 of the Transfer of Property Act. It is the case of the plaintiff that the notice is duly served to the defendant on 06.02.2016 and that the defendant instead of complying with SCCH - 11 7 SC 324/2016 the terms of notice has sent untenable reply on 16.02.2016. That in the reply notice the defendant has requested the plaintiff to adjust Rs.80,000/- towards arrears of rent which was paid as advance. After adjustment the defendant is liable to pay a sum of Rs.3,000/- i.e. Rs.1,000/- being arrears of rents and Rs.2,000/- being legal notice charges. Further it is the case of the plaintiff that the defendant is liable to pay rent from 01.02.2016 to 21.02.2016 and is also liable to pay damages for wrongful use and occupation of premises after 21.02.2016.
9) On the other hand the defendant has admitted the averments of para No.1 and 2 of the plaint as true and correct. The defendant has partly admitted the averments made in para No.3 of the plaint as true. It is admitted that the defendant is a tenant of the suit schedule premises under the plaintiff on a monthly rent of Rs.9,000/- excluding electricity and other charges. It is contended that the legal notice sent by the plaintiff dated 01.02.2016 was replied on SCCH - 11 8 SC 324/2016 16.02.2016, the plaintiff could have sought for amicable discussion and resolved the issue instead of coming to the court. It is contended that the damages of Rs.15,000/- per month claimed by plaintiff for use and occupation of the suit schedule premises is exorbitant. It is contended that the plaintiff in order to claim higher rent and huge deposit amount as taunted the defendant and has sought for dismissal of the suit.
10) The plaintiff in order to substantiate his case has got himself examined as PW.1 and has filed affidavit in lieu of his examination in chief and has reiterated to the averments made in the plaint. In his further examination in chief he has produced office copy of legal notice dated 01.02.2016, acknowledgment and reply notice the same are marked as Ex.P.1 to 3. In the course of cross-examination by learned counsel appearing for defendant it is elicited that plaintiff is working in CFTRI and is residing in the quarters belonging to CFTRI at Mysore. It is denied suggestion that the schedule SCCH - 11 9 SC 324/2016 premises is not required for own use of the plaintiff. It is denied suggestion that schedule premises was lying vacant and this witness forcibly inducted the defendant as tenant of the schedule premises. It is denied suggestion that the defendant has paid rent regularly and is not a defaulter. It is denied suggestion that this witness has filed this suit with malafide intention. On the other hand defendant has got himself examined as DW.1 and has filed affidavit in lieu of his examination in chief. In his further cross-examination he has not produced any records. In the course of cross-examination by learned counsel appearing for plaintiff it is admitted suggestion that " £Á£ÀÄ PÀqÉAiÀÄzÁV wAUÀ½UÉ gÀÆ . 9000/- §ÁrUÉAiÀÄAvÉ ªÀiÁZïð ªÀÄvÀÄÛ K¦æ¯ï 2016 JgÀqÀÄ wAUÀ¼À ¨ÁrUÉ ºÀt gÀÆ .18,000/- PÀÉÆnÖgÀÄvÉÛãÉ". It is admitted suggestion that " ¢£ÁAPÀ 01.05.2015 jAzÀ ¨ÁrUÉ ¥ÁªÀw ªÀiÁr®è JAzÀgÉ ¸Àj" . It is admitted suggestion that " ªÉÄà 2015 jAzÀ dÆ£ï 2015 gÀ ¨ÁrUÉ ºÀtªÀ£ÀÄß £Á£ÀÄ ZÉPï ªÀÄÆ®PÀ SCCH - 11 10 SC 324/2016 PÉÆnÖgÀÄvÀÉÛÃ£É . DzÀgÉ ¸ÀzjÀ ZÉPÀÄÌUÀ¼À£ÀÄß £ÀUÀ¢ÃPÀgÀtPÉÌ ¨ÁåAPïUÉ ºÁdgÀÄ¥Àr¸À¨ÃÉ r £Á£ÀÄ ªÀÄÆgÀÄ wAUÀ¼À ¨ÁrUÉ ºÀtªÀ£ÀÄß £ÀUÀzÁV ¤ÃqÀÄvÉÛãÉAzÀÄ ªÁ¢UÉ ºÉýgÀÄvÉÃÛ £É ".
11) It is admitted suggestion that this witness has not paid three months rents and has not taken return of the cheque. This witness has stated that during October 2015 plaintiff refused to receive rents of Rs.54,000/- though defendant was ready to pay the rents. It is admitted suggestion that the said amount is not deposited to the plaintiff Bank. This witness has stated that " £Á£ÀÄ ¨ÉÃgÉ ªÀÄ£ÉAiÀÄ£ÀÄß ¨ÁrUÉUÉ vÉUÉzÀÄPÉƼÀî®Ä ¸ÀzÀj ªÀÄ£ÉAiÀÄ ªÀiÁ°ÃPÀjUÉ ¢ .11.10.2015 gÀAzÀÄ gÀÆ .90,000/- ¨ÀszÀævÁ oÉêÀuÉ ºÀtªÀ£ÀÄß PÉÆnÖzÀÄÝ CzÀ£ÀÄß ¥ÀÅ£ÀB CªÀjAzÀ ªÁ¥À¸ÀÄì ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃ£É ".
12) It is admitted regarding exchange of notice between plaintiff and defendant. It is denied suggestion that schedule premises fetches rents of Rs.15,000/- per month. It is admitted suggestion that even after filing of this suit this witness has not deposited rents to the Bank. It is admitted SCCH - 11 11 SC 324/2016 suggestion that in the reply notice this witness had requested the plaintiff to adjust the advance amount towards arrears of rents. The defendant has filed an additional affidavit on 02.03.2017 by way of examination in chief along with Xerox copy of the rental agreement. At this juncture I have perused the Order sheet dated 02.03.2017 it is mentioned as here under -
" Both parties and their counsels are present. Counsel for defendant has filed affidavit as further evidence of the defendant by way of affidavit along with Xerox copy of the rental agreement. Counsel for plaintiff opposed the said affidavit and submitted to the court that defendant is already cross examined and at this juncture this affidavit does not survive. It is further submitted that the case is set down for further evidence of the defendant. Counsel for defendant submits that he would make efforts to settle the matter and seeks time. The defendant and counsel admit that they have not paid rents to the plaintiff. The defendant submits that plaintiff refused to receive the rents. As this juncture court SCCH - 11 12 SC 324/2016 intervened and directed the defendant to deposit the admitted rents in the court".
13) Both parties have signed Order sheet but thereafter the defendant has not paid arrears of rents. Hence further evidence on the side of defendant is taken as nil and posted the case for arguments. The defendant filed written arguments and heard on the side of the plaintiff. In the written arguments it is contended that the plaintiff has demanded exorbitant rent of Rs.15,000/- per month vide legal notice dated 01.02.2016. The rent was not paid from May 2015 to February 2016 for 10 months because the plaintiff did not accept the rent. Rent was not paid from March 2016 to January 2017 11 months as plaintiff has not demanded the rents during the pendency of this case. The defendant is due rents for 21 months as the rate of Rs.9,000/- per month in a sum of Rs.1,89,000/-. It is contended that the plaintiff is holding refundable advance deposit of Rs.80,000/-. That due SCCH - 11 13 SC 324/2016 to harassment and illegal act of the plaintiff, the defendant was put to hardship.
14) In this case the ownership of the property, relationship of the plaintiff and the defendant as landlord and tenant and quantum of rent i.e. rent of Rs.9,000/- per month are admitted by the defendant. It is admitted that the plaintiff ahs terminated the tenancy and defendant has replied to it. It is admitted by the defendant that he is due rents to the plaintiff in a sum of Rs.1,89,000/- from May 2015 to January 2017, almost all facts of the case are admitted by the defendant. The defendant has stated that he has paid advance of Rs.80,000/- but no records. In one word I would like to say that the defendant has admitted the whole case of the plaintiff. It is well settled principle of law that admitted facts need not to be proved. The contention urged by the defendant in his written statement and in evidence that the plaintiff did not require the premises for his self use and occupation and that the plaintiff has harassed the defendant are of no purpose and SCCH - 11 14 SC 324/2016 it does not come to the aid of the defendant for the adjudication of the case of present nature. The termination of the tenancy by issuance of 15 days clear notice is admitted. The defendant relied upon innumerable citations. I have gone through the same and they are not applicable to the case on hand as such I have not considered the citation relied upon by the defendant. In the light of the above discussion I have no hesitation to answer point No.1 in the affirmative.
15) POINT No.2: In view of my findings given to point No.1, I proceed to pass the following:
ORDER The suit of the plaintiff is partly decreed with costs. Defendant shall quit, vacate and hand over the vacant possession of the suit schedule premises to the plaintiff within one month from the date of this Order.
Further defendant shall pay arrears of rent of Rs.1,89,000/- to the plaintiff within above said period.
As far as damages are concerned there shall be separate enquiry as contemplated under Order 20 Rule 12 of CPC. SCCH - 11 15 SC 324/2016
SCHEDULE A premises (Flat) bearing G-2 (Front Portion) Ground Floor, in property bearing No.53/52/2/3/5, "Sri Veerabadraswamy Residency", Gokul Layout, After Pattannagere, L.G. Godown, After Tender Beauty Parlour, Pattannagere, Bengaluru - 560 098.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her and corrected by me, then pronounced in Open court on this the 12th day of April, 2017.) (B.N.SUJATHA) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 - Palakshan B.V
LIST OF WITNESSES EXAMINED ON BEHALF OF
DEFENDANT:
DW.1 - Shabbeer Ahmed
SCCH - 11 16 SC 324/2016
LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 Legal notice Ex.P.2 Postal acknowledgment Ex.P.3 Reply to legal notice
LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANT:
-- NIL ---
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
*SR