Karnataka High Court
Sri Joharilal Jain vs The Karnataka Rajya Kaigarika Vanijya ... on 25 February, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
CIVIL REVISION PETITION No.273/2019
BETWEEN:
Sri.Joharilal Jain,
S/o Sri.Okhchandji,
Aged about 65 years,
R/at 3rd floor shop,
Karnataka Rajya Kaigarika
Sahakara Bank Building,
No.136/137, Avenue Road,
Bengaluru - 560002.
...Petitioner
(By Sri.H.J.Sanghvi, Advocate)
AND:
1. The Karnataka Rajya Kaigarika
Vanijya Sahakara Bank Niyamitha,
No.11, Bull Temple Road,
Basavanagudi,
Bengaluru - 560004.
Represented by
Managing Director.
2. Smt.U.Saroja,
W/o S.Umesh Kumar,
Aged about 54 years.
3. Sri.S.Umesh Kumar
S/o Late.L.Sampathraj,
2
Aged about 58 years.
Plaintiff No.2 & 3 are
R/at No.734,
60th Cross, 5th Block,
Rajajinagar,
Bengaluru - 560010.
...Respondents
(By Sri.V.Ramesh Babu, Advocate for C/R2 & R3)
This CRP is filed under Section 18 of the Karnataka
Small Causes Courts Act, 1964, against the judgment
dated 11.04.2019 passed in SC No.3028/2011 on the file
of the XVI Addl. Judge, Court of Small Causes,
Bengaluru decreeing the suit for ejectment.
This CRP coming on for Admission, this day, the
Court made the following:
ORDER
The petition has been filed by the tenant challenging the judgment passed in S.C.No.1328/2011 directing the defendant to quit, vacate and deliver vacant possession of the suit schedule property to plaintiff Nos.2 and 3 within two months. The Court of small causes has also directed the defendant to pay mesne profit at the rate of Rs.70/- per Sq.ft per month in respect of the schedule premises till delivery of vacant possession. The 3 parties are referred to by their ranks before the trial Court.
2. The defendant has challenged the judgment and has contended that fraud has been played by plaintiff No.1, that the plaintiff No.1 has changed its constitution and identity by changing the name as Karnataka Rajya Kaigarika Vanijya Sahakara Bank Niyamitha, that the plaintiffs before the trial Court had no locus-standi to initiate suit for eviction, that the original plaintiff had lost right, title and interest over the suit property as the license of the bank has been cancelled.
3. The plaintiff on the other hand has contended that the question regarding title of plaintiff Nos.2 and 3 has been correctly appreciated by the Court of small causes and in fact the High Court has considered the contention raised by the defendant in CRP No.124/2016 whereby the judgment in S.C.No.3028/2011 came to be 4 set aside and the matter was remanded back to the Court where the purchaser was granted liberty to get himself impleaded and pursue the suit. It is submitted that thereafter after remand the said purchaser has come on record by filing the application under Order 22 Rule 10 of CPC., and the said order has not been challenged.
4. Learned counsel for the defendant has further contended that the Court of small causes has no jurisdiction to grant damages as has been granted in the present case at the rate of Rs.70/- per Sq.ft., that there has been no enquiry and the Court on mere surmises and conjunctures has arrived at the conclusion that the mesne profits at the rate of Rs.70/- per Sq.ft would be appropriate.
5. It is further submitted that evidence on record does not justify awarding of mesne profits at the rate of Rs.70/- per Sq.ft.
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6. Heard both the sides.
7. Insofar as the issue of termination notice is concerned it is matter of record as noticed by the trial Court that the notice of termination has been sent as per ExsP2 and P3 on 08.02.2005. The trial court has recorded the finding that the notice sent has been returned with shara "Not Claimed". However, trial Court has noticed that address that is shown at Ex.P2 and P3 has to be taken to be a correct address in absence of any rebuttal as regards the correctness of the address and accordingly, has held that there was due service of notice. Accordingly, the said finding of the trial Court regarding due service of notice is to be accepted and no ground is made out for interference with the said finding. It is not in dispute that the suit has been filed after the time prescribed in the notice.
8. Insofar as the contention regarding the title of the plaintiff it must be noted that the judgment at the 6 earlier occasion came to be set aside and remanded as per the order in CRP No.124/2016.
9. It must be noted that there is no dispute that the plaintiff Nos.2 and 3 have purchased the property through an auction in Court proceedings and the validity of the said auction remains undisturbed. It is no doubt true that plaintiff Nos.2 and 3 are subsequent purchasers and have come on record. This would in no way alter the rights of the original lessor. The defendant admittedly having paid rents to the plaintiffs is estopped from denying title of the plaintiff. On perusal of the reply notice at Ex.D.7 would indicate that though there is a dispute with respect to the title of the plaintiff, the same is a weak defence in light of the averments in the 2nd paragraph of Ex.D.7 which reads as follows:
"Our client informs us that from time to time the lease was renewed. Not only this your client got issued a letter dated 18.06.1996 thereby demanding the rent at Rs.8,800/- per month."7
10. It is further contended in the said reply notice that the tenancy between the plaintiff No.1 and defendant was on the basis of permanent lease. Accordingly, it must be noted that denial of landlord and tenancy relationship is a sham defence. The trial Court has considered the contentions including as regards to the finding relating to the landlord and tenancy relationship. It is to be noted that in light of the limited scope of defence that could be raised in proceedings for ejectment, other contentions raised by the defendant cannot be looked into. Finding of the trial Court do not deserve interference as regards to the existence of landlord and tenancy relationship and also as regards to the right of plaintiff Nos.2 and 3 to continue prosecuting the proceedings initiated by the 1st defendant.
11. In fact plaintiff Nos.2 and 3 have become owners as referred to earlier by way of Court auction and Ex.P.6 is a Sale Certificate and Ex.P.7 is Khatha 8 Certificate. The contention relating to the identity of the property and the property number has also been dealt with by the trial Court wherein the Court has noticed that Municipal No.136 was assigned to the property subsequently and rejected such contention. In light of the Section 109 of the transfer of property Act, 1882, the purchaser has acquired rights of the lessor as noticed by the trial Court. Further as per the order passed in CRP No.124/2016, the purchasers were entitled to come on record in the proceedings by filing application under Order 22 Rule 10 of CPC. Pursuant to such order the purchasers have come on record and the said order has become final. In light of the same the contentions of the defendant are liable to be rejected and findings of the trial Court are to be upheld. Insofar as the locus standi of the original plaintiff, the trial Court by relying upon the evidence of the defendant by way of cross examination has rightly held that the change in the name of the bank is not material.
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12. Accordingly, no ground is made out to interfere with the findings of the Court of small causes regarding the decree for eviction that has been granted and the defendant is to vacate and hand over possession within a period of 60 days from today.
13. Insofar as the determination of the trial Court with respect to mesne profits/damages the trial Curt has awarded damages at the rate of Rs.70/- per Sq.ft. The trial Court has proceeded to fix mesne profits after taking note of the claim of the plaintiffs at the rate of Rs.100/- per Sq.ft. The trial Court has taken the mesne profit on the basis of prevailing market rate of rent. There is no logical basis for the trial Court to come to the conclusion that the plaintiff is entitled to mesne profits at the rate of Rs.70/- per sq.ft. However, taking note of the contention as regards to the jurisdiction of the Court of small causes to award damages beyond its peculiar limits and also noticing that trial Court has arrived at market rate of 10 rent as Rs.70/- per Sq.ft. which is disputed by the learned counsel for the petitioner, insofar as the claim for mesne profit, it would be appropriate to direct the Court of small causes to conduct enquiry under Order XX Rule 12 of CPC afresh..
14. Accordingly, the petition is allowed in part and the direction to the defendant to quit, vacate and deliver vacant possession to plaintiff Nos.2 and 3 is affirmed. The defendant is given further time of three months from today to vacate and hand over vacant possession. Insofar as mesne profit is concerned, matter is remanded to the Court of small causes with a direction to make a fresh enquiry under Order XX Rule 12 of CPC after affording opportunity to both the parties and in light of the observations made above.
15. Needless to state that the respondents are not to create any third party interest and the pending execution proceedings to be kept in abeyance insofar as 11 direction regarding handing over vacant possession and if there is any default in handing over the possession within the period as aforestated, the execution proceedings may be revived insofar as vacation and handing over of possession.
As regards the claim for mesne profits separate enquiry as contemplated under Order XX Rule 12 of CPC to be made.
Accordingly, the petition is disposed off subject to the above observations.
Sd/-
JUDGE NS