Bangalore District Court
Suresh Babu C vs Varadarajan V on 18 March, 2025
KABC010245282024
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 18th day of March, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.6726/2024
Plaintiff: Sri Suresh Babu, C.
s/o Late Chinnaswamy
Aged about 57 years
R/at No.484, Ground Floor
8th Main, Sadanandanagar
Indiranagar Post
NGEF Layout
Bengaluru-560 038.
(By Sri V. Vijayashekara Gowda, Adv.)
Vs.
Defendants: 1) Sri V. Varadarajan
Aged about 94 years
2) Smt.Vani Prakash
d/o V. Varadarajan
w/o Prakash
Aged about 60 years
Both are r/at No.485
8th Main, Sadanandanagar
NGEF Layout, Indra Nagar Post
Bengaluru-560 038.
(By Sri Jaysham J. Rao, Adv.)
Date of institution of the suit 20.09.2024
2 O.S.No.6726/2024
Nature of the suit For permanent prohibitory
injunction
Counter claim by D.1 For the ejectment of the
plaintiff from the suit
schedule property
Date of the commencement Nil
of recording of evidence
Date on which the judgment 18.03.2025
Pronounced
Total duration Years Months Days
00 05 28
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff to restrain the defendants from forcibly dispossessing the plaintiff from the suit schedule rented premises. The counter claim is filed by the defendant No.1 for the ejectment of the plaintiff from the suit schedule premises.
2. As per the case of the plaintiff, the first defendant, being the owner of the schedule residential house, let out it to the plaintiff through a lease deed dated 01.03.2013 initially for a monthly rent of ₹20,000/- by receiving interest free security deposit of ₹2 lakhs and it was agreed that annual rent shall be increased 5%. Defendant No.2 is the daughter of defendant No.1. They are residing in the eastern side of the suit schedule property 3 O.S.No.6726/2024 bearing house No.485. The plaintiff has been paying the monthly rent without default and the present monthly rent is ₹31,000/- per month. The son of the plaintiff Master Nitheesh Suresh is studying in IX standard at Bishop Cotton boys School at Bengaluru and without considering the education career of the son of the plaintiff, the defendants oftenly knocking the doors of the plaintiff and demanding the plaintiff to vacate the premises on or before 30.09.2024, for which the plaintiff has even lodged a complaint and they have tried to forcefully evict the plaintiff from the suit schedule property and hence filed this suit.
3. Pursuant to the suit summons issued by this Court, the defendants entered appearance and filed the written statement and also a counter claim for the ejectment of the plaintiff from the suit schedule property. In the written statement, the defendant No.1 has admitted their jural relationship and the lease deed dated 01.03.2013 and also the rate of rent agreed between the parties. The defendants have denied the attempt made by the them for the forceful dispossession of the plaintiff from the suit schedule property. It is contended by the defendant No.1 that the defendant No.1 is aged about 94 years and requested the plaintiff during April 2024 to vacate the schedule property since he wanted to occupy it for himself and his wife. They have further pleaded that the plaintiff promised to vacate the 4 O.S.No.6726/2024 suit schedule property within three months and therefore defendant No.1 temporarily relocated to the present address, which is the residence of defendant No.2 until the plaintiff vacates the suit schedule property and in spite of the promise given by the plaintiff, he did not vacate it. They have further pleaded that since the plaintiff continued to squat over the suit schedule property in spite of the promise, the defendant No.1 issued a quit notice dated 01.10.2024, which is served to the plaintiff on 03.10.2024 and therefore the plaintiff is liable to quit and deliver the vacant possession of the property to the defendant No.1 and accordingly filed the counter claim.
4. The plaintiff has filed written statement to the counter claim. In the written statement, the plaintiff has taken up a contention that in a suit for permanent injunction, comprehensive relief of ejectment cannot be sought and therefore the counterclaim itself is not maintainable. But, the plaintiff has admitted that the lease agreement is expired on 28.02.2014 and thereafter the plaintiff has continued to occupy the schedule property on month to month basis as governed by Section 106 of Transfer of Property Act. It is contended by the plaintiff that the defendant has no right to evict the plaintiff as the plaintiff has been regularly paying the rent. The plaintiff has admitted the quit notice issued by the defendant No.1 on 01.10.2024 and he has 5 O.S.No.6726/2024 contended that he has replied the same on 08.10.2024. He has also pleaded that the valuation made is not proper and therefore the counter claim is liable to be dismissed.
5. On the basis of the above pleadings, this Court has framed the following issues:-
1) Whether the tenancy of the plaintiff over the suit schedule premises is determined by efflux of time?
2) Whether the tenancy of the plaintiff over the suit schedule premises is terminated by defendant No.1 through the quit notice dated 01.10.2024?
3) Whether in a suit for a bare injunction filed by the plaintiff, defendant is entitled to seek the relief of ejectment of the plaintiff/tenant by filing a counter claim?
4) Whether the plaintiff is entitled for the relief of injunction sought in the suit?
5) Whether the defendant is entitled for the relief of ejectment of the plaintiff sought in the counter claim?
6) What order or decree?
6. After framing of the issues, in the order dated 27.01.2022, this Court has observed that there is no dispute with regard to the facts relating to the tenancy and issuance of the quit notice and reply submitted by the plaintiff and hence, evidence is 6 O.S.No.6726/2024 not required as there are no disputed facts. Consequently, the case is posted for the arguments on the main suit.
7. Heard the arguments of the learned counsels appearing for both the parties.
8. Findings of this Court on the above issues are as under:
Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the affirmative Issue No.4 : In the negative Issue No.5 : In the affirmative Issue No.6 : As per final order, for the following:
REASONS
9. Issue Nos.1 and 2:- The plaintiff has specifically pleaded in the plaint that he has occupied the suit schedule premises through a lease deed dated 01.03.2013 for a monthly rent of ₹20,000/- per month by paying interest free security deposit of ₹2 lakhs and it was mutually agreed that annual rent increment shall be 5%. This is admitted by the defendants. In the counterclaim filed by the defendant No.1, in para No.30 of the counter claim, the defendant No.1 has pleaded that both the plaintiff and defendant No.1 did not choose to renew the lease agreement upon its expiry on 28.02.2014, however, the plaintiff continued to occupy the schedule property on a month to month 7 O.S.No.6726/2024 basis as governed under section 106 of T.P. Act, 1982. The specific pleading of the defendant No.1 in para Nos.29 and 30 of their written statement/counter claim is extracted for ready reference:-
"29. The plaintiff entered into Lease Deed dated 01.03.2013 along with the defendant No.1 taking schedule property on a monthly rent of Rs.20,000/- for a period of twelve months from 01.03.2013. The original Lease Deed dated 01.03.2013 is produced herewith and marked as document No.1.
30. It was agreed therein that, there would be an increment of 5% in rent on the expiry of 12 months. Both the plaintiff and the defendant No.1 did not choose to renew the said lease agreement upon its expiry on 28.02.2014, however, the plaintiff continued to occupy the schedule property on a month-to-month basis as governed under Section 106 of Transfer of Property Act, 1882".
10. In para No.5 & 6 of the written statement filed by the plaintiff to the counterclaim filed by the defendant, plaintiff has admitted the contents of above para number 29 and 30 in the following words:-
"5. The plaintiff submits that he is hereby admits the facts made in para 29 together with document No.1 of the written statement and CC are true and correct.8 O.S.No.6726/2024
6. The plaintiff submits that he is hereby admits the facts made in para 30 of the written statement and CC are true and correct. However, the defendants cannot terminate the tenancy of the plaintiff under Section 106 of TP Act".
11. In view of the admission of the plaintiff that he remains in possession even after the determination of the lease on 28.02.2014, the status of the plaintiff is a tenant holding over within the meaning of Section 116 of T.P. Act. The defendant No.1 has admitted this status of the plaintiff by accepting the rent even after determination of the lease. Learned counsel appearing for the defendant No.1 by relying upon the decision of the Hon'ble Supreme Court rendered in the case of R.V. Bhupal Prasad v/s State of A.P. and others (1995)5 SCC 698 rightly pointed out that a distinction should be drawn between a tenant continuing in possession after the determination of the lease without the consent of the landlord and a tenant doing so with the consent of the landlord. If continuation of possession after the determination of the lease is with the consent of the landlord, such tenancy is "tenant holding over" or a "tenant at will" and the continuation of possession by a tenant after the determination of the lease without the consent of the landlord is "tenant at sufferance". In the present case, though the tenancy of the plaintiff is determined by efflux of time the act of the landlord/the 9 O.S.No.6726/2024 defendant No.1 by accepting the rent, a tenant by sufferance is converted into a tenancy at will. In this situation, the landlord is expected to give 15 days notice of termination to the tenant which his not required to a tenant at sufferance.
12. The specific case of the defendants is that the defendant No.1 was residing at Vellore, who is aged about 94 years and he wanted to shift his residence to the suit schedule property and therefore requested the plaintiff during April 2024 to vacate the suit schedule property as he wanted to occupy along with his wife. It is further contended that on the basis of the promise made by the plaintiff to vacate it within three months, he had temporarily shifted his residence of defendant No.2 which is adjacent to the suit schedule premises. It is further contended that since the plaintiff has failed to keep up his promise, he was constrained to issue quit notice dated 01.10.2024, which is served to the plaintiff on 03.12.2024. The plaintiff has categorically admitted in his written statement filed to the counter claim about the quit notice issued by the defendant No.1 on 01.10.2024 and also reply notice given by him on 08.03.2024.
13. In view of the above pleadings, it is admitted that the written lease deed executed on 01.03.2013 was only for a period of 12 months effective from 01.03.2013 and it is expired on 28.02.2014. It is also admitted by the parties that thereafter the 10 O.S.No.6726/2024 monthly tenancy was continued on the oral consent of the defendant No.1 by accepting the rent agreed between the parties. It is also admitted fact that the defendant No.1 has issued a quit notice dated 01.10.2024, demanding the plaintiff to quit and deliver the vacant possession of the suit schedule property within 15 days from the date of the receipt of the notice and the period of 15 days has expired by 16.10.2024. It is also admitted that the plaintiff has received the said notice on 03.10.2024 and he has sent a reply on 08.10.2024. In view of the admission of the plaintiff in para Nos.5 & 6 of his written statement, the lease is not renewed after 28.02.2014 and therefore it is admitted that the plaintiff has continued to occupy the suit property on month to month basis after 28.02.2014. Therefore, it is also admitted fact that the tenancy of the plaintiff is terminable by issuing 15 days quit notice as per Section 106(1) of T.P.Act 1882, which is admittedly complied by the defendant No.1. Having regard to these aspects, the tenancy of the plaintiff is not only determined by efflux of time as per Section 111(a) of T.P. Act but also legally terminated by the defendant No.1 through the quit notice dated 01.10.2024. Consequently, issues No.1 & 2 are answered in the affirmative.
14. Issue No.3:- The main contention urged by the plaintiff is that in this suit filed by the plaintiff for an order of permanent 11 O.S.No.6726/2024 prohibitory injunction, the defendant is not entitled to seek the relief of ejectment, which is a comprehensive relief. Order VIII Rule 6A of CPC provides for filing of a counter claim. It provides that the defendant can file a counter claim against the claim of the plaintiff in respect of any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired whether such counterclaim is in the nature of claim for damages or not. In the present case, the written lease agreement is expired on 28.02.2014,and thereafter the defendant No.1 has issued the quit notice on 01.10.2024, demanding the plaintiff to deliver the vacant possession of the suit schedule property to him within 15 days and thereby the 15 days time fixed by the defendants expired as on 16.10.2024. Hence, the cause of action to the defendants arose to institute the counter claim on 16.10.2024. Consequently, the defendants have filed their written statement along with the counter claim before this court on 22.11.2024.
15. The contention raised by the plaintiff is that since the suit filed by him is only for injunction, the relief of ejectment cannot be permitted to be sought as a counterclaim. Order VIII Rule 6A do not make such distinction. On the other hand, Order 12 O.S.No.6726/2024 VIII Rule 6A is wide enough to seek all the reliefs in respect of the property involved in the suit. In this regard, in the decision of the Hon'ble Supreme Court rendered in the case of Jag Mohan Chawla v/s Dera Radha Swami Satsang (1996)4 SCC 699, the Hon'ble Supreme Court has elaborately discussed these aspects and observed as hereunder :-
"On appeal, per majority this Court had accepted the respondents' plea in the written statement to be a counter-claim for settlement of their claim and defence in written statement as a cross suit. The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right to the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In Sub-rule (1) of Rule 6A, the language is so couched with the words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with 13 O.S.No.6726/2024 the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" - would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protraction, the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit..."14 O.S.No.6726/2024
16. Learned counsel appearing for the defendants has also relied on the decision of our Hon'ble High Court rendered in the case of Sri D.Logan v/s Smt.Radha,V dated 22.10.2018 in RFA No.361/2016(INJ) wherein the Hon'ble High Court has recognized the right of a landlord to file the counterclaim for ejectment in a suit for bare injunction filed by the plaintiff and remanded the matter to the trial court for the adjudication of the counter claim. In the decision of Hon'ble Kerala High Court rendered in the case of Smt.Thankamma Velayudhan & others v/ s Smt.Mariamma Antony & others in RSA No.65/2014, the Hon'ble Kerala High Court has recognised the right of a landlord to seek ejectment of the tenant by filing a counterclaim. Similarly, in the another decision of the Hon'ble Kerala High Court in the case of Smt.Puchalapalli Vijitha and another v/s PittaHari Babu in Civil Revision Petition No.5/2023 relied upon by the counsel appearing for the defendants, the Hon'ble Kerala High Court has categorically held that a counterclaim by the landlord in a suit for injunction seeking the relief of ejectment is fully maintainable. In view of these reasons, the court is unable to accept the contention of the learned counsel appearing for the plaintiff that in a suit for bare injunction, the defendant landlord cannot seek the relief of ejectment. Consequently, issue No.3 is answered in the affirmative.
15 O.S.No.6726/2024
17. Issues No.4 to 6:- While answering issues No.1 & 2, this court has held that the tenancy of the plaintiff is terminated by the defendants by issuing quit notice dated 01.10.2024 with effect from 16.10.2024. One of the contentions raised by the learned counsel appearing for the plaintiff is that when the defendant No.1 is having alternative accommodation, he is not entitled to evict the plaintiff from the suit schedule property who has been paying the rent regularly as agreed between the parties. But, if the suit premises is governed by the provisions of Transfer of Property Act, the protection is not available to a tenant as provided in Karnataka Rent Act 1999. Therefore, the plaintiff cannot insist the landlord to reside in any other premises even if he is holding any other premises. Hence, the question of bonafide requirement cannot be considered when the counter claim is filed by the defendant landlord under Section 106 of TP Act.
18. Learned counsel appearing for the plaintiff has vehemently contended that when the court has framed the issues, the court should have posted the case for evidence and without recording evidence, the court cannot dispose the suit. Needless to mention that evidence is required for the purpose of recording a finding on the disputed facts. In the present case, as already observed above, there is no disputed facts with regard to the tenancy and issue of quit notice by the defendant terminating 16 O.S.No.6726/2024 the tenancy. It is also necessary to point out that evidence is required only if an issue is framed with regard to the disputed facts and no evidence is required in respect of an issue of law. Even if the case is posted for recording the evidence, in the present case, it will not make any difference as there is no disputed facts. It is true that a tenant has a right not to dispossess him without following due process of law. Indian law recognises the possessory right and gives protection to a person who is in possession of the property from forcible dispossession. Due process of law means the process by the intervention of the court. Due process of law cannot be stretched to contend that eviction order can be passed only after recording the evidence even if there are no disputed facts. Any other interpretation would lead to mischief and thereby permit the tenant to illegally squat over the property of a landlord against the statutory rights conferred to a landlord. In the decision of the Hon'ble Supreme Court in the case of Hameed Kunju v/s Nazim (Civil Appeal No.9151/2017 dated 17.07.2017), the Hon'ble Supreme Court has expressed that eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bonafide need of the landlord. The Hon'ble Supreme Court has further expressed its hope and trust that due attention would be paid by all courts to ensure speedy disposal of 17 O.S.No.6726/2024 eviction cases. Though a tenant can be dispossessed only by following due process of law, in the guise of due process of law, a tenant cannot be permitted to squat over the property without any right taking the shelter of judicial process for several years. The defendant No.1 is a senior citizen aged 94 years. Therefore, in the present case, when all the facts with regard to the tenancy and its duration is admitted, there is no need for recording evidence and hence I am unable to accept the submission made by the learned counsel appearing for the plaintiff that the court shall have to record the evidence.
19. In view of the termination of the tenancy, the plaintiff has no right to continue in the suit schedule property. The very fact that defendant has issued the quit notice and filed a suit for ejectment indicates that he wanted to evict the plaintiff by following due process of law. Mere demand made by the defendant to the plaintiff to vacate the premises cannot be construed as an attempt for forcible dispossession. Therefore, the plaintiff is not entitled for the relief of injunction. On the other hand, in view of the termination the tenancy the defendant No.1 is entitled for ejecting the plaintiff from the suit schedule property and for possession of the suit schedule property.
20. Learned counsel appearing for the defendants has submitted that since the defendant No.1 is aged 94 years, the 18 O.S.No.6726/2024 possession may be delivered at the earliest without any delay. As per Section 106 of T.P. Act, after the termination of the tenancy, the tenant will have only 15 days time to vacate the premises. Therefore, when the statute itself provides 15 days time to vacate the premises, normally, the court by exercising its inherent power cannot extend the time to the tenant to vacate the premises. But, in the plaint, the plaintiff has pleaded that his son Master Nitheesh Suresh is studying in 9th standard at Bishop Cotton Boys' School at Bengaluru. He has also pleaded that he is unable to get suitable alternative accommodation within the vicinity. The same cannot be disbelieved. Therefore, when the plaintiff has paid the rent regularly as agreed between the parties and considering the educational career of his son who is studying in the 9th standard, in the opinion of the court, this case shall be considered as an exceptional case and a reasonable time should be given to the plaintiff to vacate the premises. This academic year will be ending at the most by March or April. Therefore, in the opinion of the court, it would be appropriate to direct the plaintiff to quit and deliver the vacant possession of the suit premises within 90 days from today. Consequently, issue No.4 is answered in the negative and issue No.5 in the affirmative. Accordingly, the following order is passed:-
19 O.S.No.6726/2024
ORDER This suit filed by the plaintiff for the relief of permanent prohibitory injunction to restrain the defendants from dispossessing the plaintiff from the suit schedule property is dismissed.
The counter claim filed by the defendant No.1 for the ejectment of the plaintiff from the suit schedule premises is decreed with costs.
The plaintiff is directed to quit and deliver the vacant possession of the suit schedule premises within 90 days from today to the defendant No.1 subject to payment of up-to-date agreed rate of rent.
Draw decree accordingly.
(Judgment prepared through Speech to Text App with the assistance of Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 18th day of March, 2025) Digitally signed by VIJAYA (Vijaya Kumar Rai) VIJAYA X Addl. City Civil & SessionsKUMAR Judge, RAI B KUMARBengaluru.
Date:
RAI B 2025.03.19
17:16:12
+0530