Bangalore District Court
Sri.Mohan vs Sri.K.R.Nagesh on 16 January, 2020
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU.
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge.
Dated this the 16th day of January, 2020.
O.S. No.26528/2018
Plaintiff: Sri.Mohan,
S/o.Sri.Krishnaswamy, aged
about 61 yrs, R/at.No.29/1,
Fort 'A' Street, K.R.Road,
Bengaluru560002.
(By Smt.Haripriya Mohan - Adv.)
V/s
Defendant: Sri.K.R.Nagesh,
S/o.Sri.K.P.Ramakrishnappa,
aged about 42 yrs, R/at.No.24,
B.E.M.L. Layout,
Rajarajeshwarinagar 3rd Stage,
Gattigere, Bengaluru560098.
Also at No.29/1, Fort 'A'
Street, K.R.Road, Bengaluru
560002.
(Deft.Exparte)
2 O.S. No.26528/2018
Date of Institution of the suit 04122018
Nature of the (Suit or pronote,
suit for declaration and
Ejectment
possession, suit for injunction,
etc.)
Date of the commencement of
31.07.2019
recording of the Evidence.
Date on which the Judgment was
16.01.2020
pronounced.
Year/s Month/s Day/s
Total duration 01 01 12
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
(CCH74), Bengaluru.
JUDGMENT
The plaintiff has filed this suit for ejectment, directing the defendant to quit and deliver the vacant possession of the suit premises to the plaintiff, for recovery of arrears of rent Rs.1,31,000/ due to the plaintiff. Further sought for enquiry into the damages for use and occupation of premises from the date of termination of tenancy.
2. Brief facts of the plaintiff's case:
3 O.S. No.26528/2018
It is the case of the plaintiff that the plaintiff is the absolute owner of shop premises bearing No.29/1, Fort 'A' Street, K.R. Road, Bengaluru560002, which consist of a shed, defendant took portion of said premises, consist of an AC sheet shed, on monthly rent of Rs.23,000/, which is described as suit schedule property, shown in the suit schedule for the period from 01.01.2015 to 02.03.2018, and defendant has to pay monthly rent of Rs.27,000/ from the month of August 2018, the lease period expired on 02.03.2018. Further it is the case of the plaintiff that he is under requirement of suit premises for his own use to carry the business in the suit premises, for that, the plaintiff has demanded in several time for vacating the suit premises, hand over the vacant possession of the suit property. But defendant, on one or the other grounds postponing the same. And defendant has not paid rents from the month of July 2018, which is due of Rs.1,04,000/, the defendant has no right to continue to occupy in the suit premises after expiry of lease period. The defendant has paid Rs.5,90,000/ as advance, at the time of execution of agreement of lease, thereafter, in the year 2018, the defendant has paid an 4 O.S. No.26528/2018 additional sum of Rs.1,50,000/. So, the defendant has paid total advance amount of Rs.7,40,000/.
Further it is the case of the plaintiff that the defendant has executed lease deed on 01.01.2015, which is inadmissible in evidence for want of registration and stamp duty. However, the period of lease was expired, after expiry of the lease period the plaintiff repeatedly requesting the defendant to vacate and hand over the vacant possession of the suit premises, but defendant did not heed the request of the plaintiff, postponing to vacate and hand over the suit premises. Hence, the plaintiff got issued legal notice to the defendant on 30.11.2018, expressing the intention of termination of tenancy through RPAD. But, RPAD envelope returned with endorsement as "Unclaimed". Hence, service of summons held duly served and defendant placed exparte on 20.06.2019.
3. The plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.7. Since, defendant placed exparte, hence, cross of P.W.1 was taken as no cross and posted for argument. 5 O.S. No.26528/2018
4. Heard argument of the learned counsel for plaintiff and perused averments of the plaint and oral and documentary evidence led by the plaintiff and the material placed before the court. On perusal of the same, the points that would arise for my consideration are as follows:
1. Whether plaintiff proves that he has put the defendant in possession of the suit premises as lessee as per the terms of lease deed dated 01.01.2015?
2. Whether plaintiff proves that he terminated the tenancy of the defendant in accordance with law?
3. Whether plaintiff is entitle for the possession of the suit premises?
4. Whether the plaintiff is entitle for sum of Rs.1,31,000/ towards arrears of rent, entitle for adjusting the arrears of rent from the advance of Rs.7,40,000/ paid by the defendant to the plaintiff?
5. Whether plaintiff proves that he is entitle for damages for use and occupation of the suit premises from the date of termination of tenancy till handing over the vacant possession of the suit premises?
6 O.S. No.26528/2018
6. Whether plaintiff proves that he is entitled for the relief sought in the plaint?
7. What order or decree?
5. I have perused the oral and documentary evidence and material placed before the court with the averments of the plaint, my answer to the above points are as follows: Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: In the Affirmative, Point No.4: In the Affirmative, Point No.5: In the Negative, Point No.6: In the Affirmative, Point No.7: As per final order, for the following: REASONS
6. POINT No.1: In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.7. The plaintiff is examined by filing affidavit in lieu of examination in chief, reiterating the averments of the plaint. It is the case of the 7 O.S. No.26528/2018 plaintiff that he is the owner of the shop premises bearing No.29/1, Fort 'A' Street, K.R. Road, Bengaluru, which consist a shed, and portion of shed baring No.29/1, consist an AC sheet shed, which is described as suit schedule property, has given on lease to the defendant, as per the unregistered lease deed dated 01.01.2015, on the monthly rent of Rs.23,000/ as agreed by the defendant, lease was expired on 02.03.2018. After expiry of lease, the plaintiff has demanded for vacant possession of suit premises for his own use. But, defendant did not heed the demand of the plaintiff and continued in the occupation of the premises without payment of rent from July 2018. Lastly the plaintiff has issued notice to the defendant through RPAD and said notice returned with endorsement as "Unclaimed". Hence, the plaintiff prayed for direction to vacant the suit premises and hand over vacant premises to the plaintiff and with direction to pay arrears of rent and for enquiry of damages for use and occupation of suit premises after expiry of lease period.
7. The plaintiff has not produced lease deed for perusal of the lease period and terms and condition of the lease period. It is 8 O.S. No.26528/2018 the contention of the plaintiff that lease deed has not been produced, since it is not registered and not properly stamped, hence same is inadmissible on evidence. But, plaintiff has pleaded in the plaint the terms of lease deed dated 01.01.2015.
8. The plaintiff has produced the office copy of the legal notice issued by him through his counsel in RPAD, which is marked at Ex.P.1. I have perused Ex.P.1, it is contended that the defendant was inducted in the suit premises as tenant on monthly rent of Rs.23,000/, on 01.01.2015, which expired on 02.03.2018, defendant became chronic defaulter of payment of rent from July 2018, called upon the defendant to pay arrears of rent and damages and called upon the defendant to hand over the vacant possession of the suit premises for the use of plaintiff. Ex.P.2 is the postal receipt for having send notice to the defendant. Ex.P.3 is the RPAD envelope issued by plaintiff, returned with endorsement unclaimed on 01.11.2018. Ex.P.4 is the khatha extract. Ex.P.5 is the khatha certificate. Ex.P.6 is the taxpaid receipt. On perusal of the Exs.P.4 to P.6, it is seen that the suit premises stands in the name of the plaintiff, in Ex.P.4 Khatha 9 O.S. No.26528/2018 Extract, Ex.P.5 Khatha Certificate, the name of the plaintiff found in owners column with number of suit premises. Ex.P.6 is the tax paid receipt paid by the plaintiff in respect of suit property.
9. Ex.P.7 is the account statement of the defendant maintained in the SBI Bank.
10. As per the contents of plaint, evidence of P.W.1 the lease period is from 01.01.2015 to 02.03.2018 for three years, the rent agreed was Rs.23,000/ per month. Further as per oral evidence the defendant has to pay monthly rent of Rs.27,000/ per month from August 2018. It is admitted by the plaintiff in the plaint as well as in his evidence that in all, the defendant has paid advance amount of Rs.7,40,000/ to the plaintiff as security deposit. As per the material placed before the court, the defendant has vacant the suit premises on efflux of time, as the lease expired on 02.03.2018. The plaintiff has issued one month notice to the defendant expressing the termination of tenancy, informed that lease was expired on 02.03.2018. Plaintiff produced documents in support of his claim. The oral and documentary evidence led by the plaintiff remained unchallenged, 10 O.S. No.26528/2018 under the circumstances, I am of the opinion that the plaintiff has proved the facts that the plaintiff has inducted the defendant in the suit premises as lessee on monthly rent of Rs.23,000/ which expired on 02.03.2018. But, there is no documents to show that the defendant agreed to pay monthly rent of Rs.27,000/ from August 2018. Further though notice served on the defendant issued by the plaintiff prior to filing of the suit, but, defendant did not reply the same and this court has issued the summons to the defendant, served duly, but defendant placed exparte. Under such circumstances, I am of the opinion that the plaintiff has inducted the defendant in possession of the suit schedule property as contended in the plaint. Though the plaintiff has not produced the original lease deed, but, he has admitted that the defendant has paid advance amount of Rs.7,40,000/. Under such circumstances, I am of the opinion that when the plaintiff undertakes such liability of Rs.7,40,000/. Under such circumstances I am of the opinion that the plaintiff has proved this point. The learned counsel for the plaintiff has relied on the judgment of the Hon'ble High Court of Karnataka at Bengaluru in 11 O.S. No.26528/2018 RFA No.404/2012 decided on 18.3.2013 in case of Archana Associates v/s Agamathraya Maha Mandala. The entire judgment of the said decision reads thus:
"1. Heard the learned counsel for the appellant. The appellant was the defendant in the suit for ejectment. The suit having been decreed and the appellant having been directed to vacate and deliver the vacant possession of the suit property, the appellant is before this Court.
2. It is contended that there was a lease agreement for a period of 30 years in respect of the suit property.
However, the said agreement not having been produced by the plaintiff, was produced by the defendant by way of confronting the plaintiff in crossexamination and same was even marked as an Exhibit. That document was also admitted by the plaintiff. In that light of the matter, the plaintiff 12 O.S. No.26528/2018 having sought to rely upon yet another agreement which was for a lesser term and the Court having acted on the second agreement which was not produced and marked in evidence, did not entitle the plaintiff to any such decree.
3. Since the only contention that the appellant seeks to place reliance on the lease agreement which was for a period 30 years in respect of the property was admitted and therefore, the suit could not have been decreed,the question is whether the trail court was bound to act on the admission by the plaintiff in this regard. No doubt it is laid down under Order XII Rule 6 of the Code of Civil Procedure, 1908 that, where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may, at any stage of the suit, either on the application of any party or on its 13 O.S. No.26528/2018 own motion and without waiting for the determination of any other question between the parties, may pass such order or give such judgment as it may think having regard to such admissions. This would not support a document which was required to be compulsorily registered. Therefore, to contend that the above admission would entitle the defendant to a decree of dismissal of the suit by virtue of the same, is not available to the appellant. The appellant having paid the duty and penalty in respect of the document would not save the day for the defendant as the document was a compulsorily registrable document and want of registration would not be supplied by the payment of such duty and penalty. The only defeat that is cured is the duty with penalty attracted under the Karnataka Stamp Act, 1957 was collected.14 O.S. No.26528/2018
This by itself would not enable the court to act upon an unregistered document which was compulsorily registrable. Therefore, the same having been marked in evidence, would not advance the case of the appellant."
With the above observation and reasons assigned and relying on the decision referred above, I answer this point in the Affirmative.
11. POINT No.2: As per the evidence and pleading of the plaintiff, lease period was expired on 02.03.2018. So, terminated by efflux of time as per Section 106 of T.P. Act as the plaintiff deposed in his evidence that lease period was from 01.01.2015 and expired on 02.03.2018, and plaintiff has given notice dated 30.11.2018.
12. Plaintiff contended that the defendant has not paid rent from July 2018, defendant even after lease period, did not handed over the suit premises, illegally continued the occupation even after notice, demanding the possession of the suit premises for the use of plaintiff. As per requirement of law, 15 days notice has to 15 O.S. No.26528/2018 be given, plaintiff has given notice which served on the defendant on 01.11.2018. On perusal of the contents of the plaint, it is clearly shows that the lease expired as on 02.03.2018 by efflux time, even then plaintiff has given notice expressing his intention and lease was terminated due to efflux of time. So, lease was terminated as per requirement of Section 106 of T.P. Act. Hence, I answer this point in the Affirmative.
13. POINT No.3: The plaintiff has produced Exs.P.4 to 7, original khatha extract, original khatha certificate, computerized taxpaid receipts and computerized bank statement. I have perused Ex.P.1, it is contended that the defendant was inducted in the suit premises as tenant on monthly rent of Rs.23,000/, on 01.01.2015, which expired on 02.03.2018, defendant became chronic defaulter of payment of rent from July 2018, called upon the defendant to pay arrears of rent and damages and called upon the defendant to hand over the vacant possession of the suit premises for the use of plaintiff. Ex.P.2 is the postal receipt for having send notice to the defendant. Ex.P.3 is the RPAD envelope issued by plaintiff, returned with endorsement unclaimed on 16 O.S. No.26528/2018 01.11.2018. Ex.P.4 is the khatha extract. Ex.P.5 is the khatha certificate. Ex.P.6 is the taxpaid receipt. On perusal of the Exs.P.4 to P.6, it is seen that the suit premises stands in the name of the plaintiff, in Ex.P.4 Khatha Extract, Ex.P.5 Khatha Certificate, the name of the plaintiff found in owners column with number of suit premises. Ex.P.6 is the taxpaid receipt paid by the plaintiff in respect of suit property. Thus the plaintiff being owner was in possession of the suit premises has inducted the defendant in the suit premises on monthly rent of Rs.23,000/, the lease period was expired on 02.03.2008, lease was terminated as per law. Hence, plaintiff is entitled for the possession of the suit premises. Hence, I answer this point in the Affirmative.
14. POINT No.4: As per the evidence of the plaintiff and averments of the plaint, the agreed monthly rent was Rs.23,000/ and lease period was expired on 02.03.2018. The defendant has not paid rent from August 2018, at the rate of Rs.27,000/ per month. The evidence of plaintiff remained unchallenged. It is the admitted in the plaint that the defendant took the suit premises from the plaintiff on 1.1.2015 on monthly rent of Rs.23,000/ and 17 O.S. No.26528/2018 lease period expired on 2.3.2018. So, further it is the case of the plaintiff that the defendant failed to pay monthly rent from July 2018. Now it is clear that the defendant has paid rent in respect of suit premises from 1.1.2015 till lease period; i.e., 2.3.2018 and after expiry of the lease period the defendant has paid rent till July 2018 as contended in the para5 of the plaint. So, from July 2008 the rent of the premises is due till 31.11.2018. On considering these facts it is clear that the plaintiff is entitled for the due amount of Rs.1,31,000/. It is admitted by the plaintiff that the defendant has deposited Rs.7,40,000/ with the plaintiff as a security amount. Under these circumstances, the plaintiff is entitled to deduct the due amount of Rs.1,31,000/ from the security amount of Rs.7,40,000/. With this observation, I answer this point in the Affirmative.
15. POINT No.5: It is the case of the plaintiff that the defendant is the tenant under him and he used to pay monthly rent of Rs.23,000/ and the lease period is expired on 2.3.2018. The defendant is still in the possession of the suit schedule property though lease has been terminated by giving notice as 18 O.S. No.26528/2018 required u/S 106 of T.P.Act. Even the lease was expired by efflux of time. But, the plaintiff has sought for enquiry of damages for the use and enjoyment of the suit schedule property after lease period is over. But, the plaintiff has not produced any document to show that the damage as sought by the plaintiff is to be determined by separate enquiry. On perusal of the materials placed before the court it is clear that no material evidence has been produced to direct for separate enquiry for determination of damages. Except oral evidence no material documents are produced by the plaintiff to hold that there is necessary for separate enquiry for determination of damages. Hence, the plaintiff failed to prove this point. With this observation, I answer this point in the Negative.
16. POINT No.6: It is the case of the plaintiff that before filing the suit the plaintiff got issued notice and same was served but defendant did not replied. Further, this court has issued summons to the defendant same was duly served but defendant did not choose to appear before the court. Under such circumstances, the materials placed before the court are satisfied 19 O.S. No.26528/2018 to hold that the plaintiff is entitled for the relief sought in the plaint. In support my opinion I relied on the decision reported in (2006) 5 SCC 566, in case of Pushpadevi Bhagat (Dead) through Lr's Sadhana Rai. The lordship in the judgment at Para 29 which reads thus:
"29. At the cost of repetition, we may recapitulate the facts of this case. The suit was a simple suit possession by a landlord against a tenant filed in the year 1993. The plaintiff's evidence was closed in 1998. The contesting defendant (Defendant 2) did not lead any evidence, and her evidence was treated as closed. The matter was dragged on for 3 years for the defendant's evidence after the conclusion of the plaintiff's evidence. It was noted on 19.5.2001 that no further adjournment will be granted for the evidence of defendant 4 and 5 (who are not contesting the 20 O.S. No.26528/2018 matter), on the next date of hearing (23.5.2001) When the matter finally came up on 23.5.2001, no evidence was tendered. On the other hand, a statement was made agreeing to vacate the premises by 22.01.2002. The trial court tool care to ensure that the statement of both counsel were recorded on oath and signed. Thereafter, it passed a consent decree. The attempts of tenants in such matters to protract the litigation indefinitely by raising frivolous and vexatious contentions regarding the compromise and going back on the solemn undertaking given to the court, should be deprecated. In this context, we may refer to the observation made by this court in a similar situation in Jamilabai Abdul kadar V. Shakarlal Gulabchand:(SCC pp. 62324, [paras 2527)."21 O.S. No.26528/2018
Looking to the facts and circumstances of the case and on the ground of equity, the opportunity has to be given to the defendant to vacate and hand over the vacant possession of the suit schedule property to the plaintiff. Considering the admitted fact and observation made above and relying on the decision referred above, I answer this point in the Affirmative.
17. POINT No.7: In view of the discussion made on point Nos.1 to 6, I proceed to pass the following: ORDER Suit filed by the plaintiff is hereby decreed with costs. Consequently, defendant is hereby directed to vacate and hand over the suit schedule property to the plaintiff on or before 16.02.2020.
The plaintiff is entitled to receive an amount of Rs.1,31,000/ towards arrears of rent. Consequently the defendant is hereby directed to pay the said amount of 22 O.S. No.26528/2018 Rs.1,31,000/ to the plaintiff on or before 16.02.2020.
On default on part of the defendant to vacate and deliver the possession of the suit schedule property to the plaintiff as per order, the plaintiff will entitle to receive from the defendant an amount of Rs.23,000/ per month from the date of 16.02.2020 till the date of delivery of possession of the suit schedule property to the plaintiff.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 16th day of January, 2020).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 23 O.S. No.26528/2018 SUIT SCHEDULE PROPERTY All that piece and parcel of the premises bearing No.29/1, Fort 'A' Street, K.R.Road, Bengaluru560002, consisting of a A.C.sheet roofing shop, measuring 22 x 14 square feet and bounded on the:
East by: Private property;
West by: Private property;
North by: Road; and on
South by: Private property.
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru. (CCH74)
ANNEXURES
List of witness examined for the plaintiff's side:
P.W.1 Sri.Mohan List of documents exhibited for the plaintiff's side:
Ex.P.1 Legal notice dated 26.10.2018 Ex.P.2 Postal receipt Ex.P.3 RPAD cover returned Ex.P.4 Original khatha certificate Ex.P.5 Original khatha extract 24 O.S. No.26528/2018 Ex.P.6 Computerized taxpaid receipt Ex.P.7 Computerized bank statement List of witness examined for the defendant's side :
NIL List of document exhibited for the defendant's side:
NIL (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 25 O.S. No.26528/2018 26 O.S. No.26528/2018 27 O.S. No.26528/2018 28 O.S. No.26528/2018 29 O.S. No.26528/2018