Bangalore District Court
Sri.Tarun Kumar S. Jain vs M/S. Kamal Agency on 5 November, 2016
SCCH 17 SC.No.167/14
BEFORE THE COURT OF THE SMALL CAUSES JUDGE;
B'LORE (SCCH-17)
DATED THIS THE 5th DAY OF NOVEMBER, 2016
PRESENT; Sri.A.SAMIULLA, B.Sc., LL.B.,
XIX Addl SCJ & XLI ACMM.
S.C.No.167/2014
PLAINTIFFS: 1. Sri.Tarun Kumar S. Jain,
S/o Sukanraj S. Jain,
43 years,
2. Smt.Rajni Devi,
W/o Tarun Kumar S. Jain,
39 years,
3. Sri.Bhupaendra Kumar,
S/o Sukanraj S. Jain,
38 years,
4. Smt.Pushpa Devi,
W/o Bhupendra Kumar,
36 years,
Plaintiffs-1 to 4 are residing
At No.1234, Suraj Bhavan,
Sowrashtrapet,
K.V.Temple Street,
Bangalore-560053.
(By Sri.PDS)
V/s
2 SC 167/14
DEFENDANT: M/s. Kamal Agency,
A firm of partners,
Carrying business at
Ground Floor, Gavirangappa
& Sons Building,
No.2, 13th Cross,
Rangaswamy Temple Street,
B.V.K.Iyengar Road,
Bangalore-560053.
R/by its partner
Sri.Vinod J.Parvani,
Aged about 40 years,
S/o Late Sri.Jagadish Parvani.
(By Sri.SS)
J U D G M E N T
Suit is for ejectment and for mesne profits at the rate of Rs.35,000/- per month from the date of suit till delivery of possession.
2. Suit property is a shop premises measuring 671.56 square feet i.e., entire first floor portion of building known as S.Gavirangappa 3 SC 167/14 & Sons building situated at Municipal No.2, 13th Cross Road, R.T Street, B.V.K.Iyengar Road, Bangalore-53.
3. Plaintiffs pleaded that, the defendant was inducted as a tenant of suit premises under registered lease deed dated 15/1/05 executed by the landlords Sri.S.G.Venaktesh and Sri.S.S.Nagaraju, which was executed in pursuance of understanding between them and the defendant, who had become a tenant from 1/4/04 for a agreed period of nine years, which commences from 1/4/04 and ends on 31/3/13 with rent of Rs.5,250/- per month for the first three years, Rs.6,050/- for the second three years and Rs.6,950/- for the last three years.
4. The land lord S.S.Venkatesh breathed his last leaving behind six sons, who succeeded to his estate as per Will dated 21/7/04, who along with S.S.Nagaraju sold the entire property 4 SC 167/14 including suit premises, which is portion of it to the plaintiffs under a registered sale deed dated 11/9/13, which is informed to the defendant, who had filed a suit OS.No.5949/13 in respect of the first floor portion and the plaintiffs are also impleaded in the said suit in which the defendant herein admits the ownership of S.G.Venkatesh and his sons. The daughter of S.G.Venkatesh i.e., Smt.Hemavathi had filed a suit OS.No.7406/13, which ended in compromise, wherein said Hemavathi admits the ownership of plaintiff over suit property.
5. The tenancy of defendant comes to an end on 31/3/13 as per the lease deed; despite it continued the possession as a tenant at sufferance. The landlords namely S.G.Nagaraju and children of S.G.Venkatesh issued quit notice after completion of lease period calling upon the defendant to vacate the premises 5 SC 167/14 but it failed to do so. Suit premises are let out for commercial use and its plinth area exceeds 14 square meters, as such Karnataka Rent Act 1999 is not applicable to it. Plaintiffs also issued notice of termination dated 10/12/13, which is served on the defendant on 14/12/13. It failed to vacate the premises and issued untenable reply dated 3/1/14. It failed to pay the arrears of rent till the 30th November 2013.
6. The defendant is carrying on business in electrical appliances in ground floor portion of the property and it is using the suit premises as a godown for which the premises was taken on lease. Suit premises is located in the midst of one of the business locality of Bangalore, at present it will command a monthly rent of Rs.35,000/-, as such defendant is liable to pay the mesne profits at the rate of Rs.35,000/- per month from the 6 SC 167/14 date of suit till the date of delivery of the possession. Hence suit is filed.
7. Defendant resisted the suit by filing written statement. It contended that this Court has no jurisdiction to try the suit. The suit is bad for non joinder for necessary parties i.e., the other partners of defendant firm. It stated that the owner S.G.Nagaraju and S.G.Venkatesh inducted it as a tenant in respect of ground floor premises in terms of the lease deed dated 29/12/99 for a period of nine years and thereafter to be renewed for a further period up to 31/12/32 on fresh terms and conditions in accordance with the supplemental agreement dated 30/12/99 and accordingly it paid the revised rent and advance and in view of the breach committed by the owners it has filed a suit for specific performance of the supplemental agreement 7 SC 167/14 dated 30/12/99 against the real owners in which the present plaintiffs have also been impleaded in OS.No.5949/13, which is pending on the file of the Additional City Civil Judge, Bangalore.
8. The Ground Floor premises is being used by the defendant firm as a Show Room for electrical appliances and it required a godown, at that point of time the original owners offered the entire first floor of the property, which has an access from within and also had suited the need and requirement of the firm and accordingly the first floor was taken on rent in terms of registered lease deed dated 15/1/05. The original owners had sealed and closed the entry which earlier existed on the northern side of the first floor property and there is no entry to the first floor except through the ground floor portion, which is in the possession of defendant firm. The access to the first floor is 8 SC 167/14 totally restricted through the existing ground floor in respect of which a suit for specific performance is pending.
9. The plaintiffs do not disclose the access to first floor, as such the suit for ejectment is not maintainable as any effective or executable order can be passed in view of interconnection between the ground floor and the first floor. The defendant firm is in possession of first floor, which is an integral part of the ground floor though the original owners were receiving separate rent for the first floor. Defendant firm does not admit the ownership of the plaintiffs in respect of first floor and it denied the existence of jural relationship. The question of segregation of the first floor and the ground floor not been practical, the outcome of the result in O.S.No.5949/13 has to be waited which relates to the ground floor portion regarding specific 9 SC 167/14 performance. There is no legal termination of notice as there is no jural relationship. Among these grounds it prays to dismiss the suit.
10. Following issues arises for consideration:
1) Whether plaintiffs prove the jural relationship between them and the defendant?
2) Whether plaintiffs prove the termination of tenancy is in accordance with law?
3) Whether plaintiffs prove that they are entitled for mesne profits at Rs.35,000/- per month from the date of suit, till the date of delivery of suit premises?
4) What Order or Decree?
11. To prove their case, plaintiffs examined the third plaintiff as Pw.1 and documents Ex.P1 to 14 were marked. Whereas, the defendant examined its two partners and other four witnesses as Dw.1 to 6 and documents Ex.D1 to 4 were marked.
10 SC 167/14
12. Heard arguments from both sides
13. Answer to the above points is as follows;
Issue-1: Affirmative.
Issue-2: Affirmative.
Issue-3: Affirmative.
Issue-4: As per final order for the following;
R E A S O N S
14. Issue-1: Plaintiffs asserted that they are owners of suit premises, defendant is a tenant and there exists jural relationship between them. Per contra, defendant denied the ownership of plaintiffs and existence of jural relationship.
15. It is well settled that the burden of proof is on the person who asserts the fact in issue. Thus the initial burden is on the plaintiffs to demonstrate the existence of jural relationship between them and the defendant.
11 SC 167/14
16. On careful scrutiny of rival pleadings put forth by the parties to lis, one can see that absolutely there is no dispute with respect to the previous ownership over suit property and inductment of defendant as tenant by the previous owners. This can be gathered from the para-6 & 7 of written statement, wherein the defendant pleaded that the suit property originally belonged to S.G.Nagaraju and S.G.Venkatesh and during their ownership the defendant firm was inducted as tenant under registered lease deeds dated 29/12/99 and 15/1/05.
17. Plaintiffs stated that, they purchased the suit property under a registered sale deed dated 11/09/13 from the landlords i.e., S.G.Nagaraju and children of deceased S.G.Venkatesh, which is denied by the defendant by contending that the sale deed is a 12 SC 167/14 sham document and does not convey any right, title or interest over suit property in favour of the plaintiffs.
18. It is worth to note that in cross-examination of Pw.1 the defendant has not at all questioned the Pw.1 about the validity of sale deed and the ownership of plaintiffs over suit property. In cross-examination the Pw.1 stated that the owner handed over the documents viz., sale deed and will. He stated that prior to purchase he inspected the building. In cross-examination not even a single suggestion is made denying the oral and documentary evidence i.e., sale deed, khatha extract and khatha certificate (Ex.P6, 13 & 14) produced by the plaintiffs, which establish their ownership over suit property by virtue of registered sale deed. Learned counsel for plaintiffs relied on a decision reported in (2003) 1 SCC 240 (Sarwan Singh V/s State of Punjab), wherein 13 SC 167/14 the Hon'ble Apex Court at para 9 held that, it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. In the case on hand, as stated supra though the defendant cross-examined the Pw.1 at length but not even a single suggestion is made denying the title of plaintiffs over the suit property. In addition to this the defendant itself examined the previous owners of suit property.
Sri.Mohan and Sri.Mukund.S.V (Dw.4 & 5) stated that, after selling the property all the original documents including building plan were given to the plaintiffs. Sri.S.G.Nagaraju (Dw.6) stated that at the time of executing sale deed to the plaintiffs all the original documents were handed over to them. In cross- 14 SC 167/14 examination at page 8 the Dw.1 stated that, when he received notice then only he came to know that S.G.Nagaraju and children of deceased S.G.Venkatesh sold the property to the plaintiffs and in the said notice it is mentioned that he has to pay rent to the plaintiffs. He admits that after he came to know about the purchase of property by the plaintiffs he impleaded them in OS No.5949/13. The cumulative reading of evidence supra manifest that the plaintiffs purchased the suit property from the landlords of the defendant and they step into the shoes of landlords and defendant becomes their tenant.
19. Let us consider another contention raised by the defendant that the suit property is an integral part of ground floor and it has no separate access except the internal access from the ground floor and both the portion are one single unit, as such 15 SC 167/14 relief sought in the plaint cannot be granted. On the other hand plaintiffs averred that the ground floor and first floor are different and the first floor has separate access and it has nothing to do with the ground floor.
20. It is pertinent to note that in plaint the suit property is specifically described as entire first floor. The registered lease deed dated 15/1/05 (Ex.P7) executed by the previous owners in favour of defendant is an undisputed document, wherein the property is clearly described as first floor. Plaint schedule property tallies with the property described in the lease deed.
21. In lease deed not even a single word is whispered about ground floor and the existence of composite tenancy. Under these circumstances the defendant cannot adduce oral evidence to vary the terms of lease deed as envisages under Section 91 & 16 SC 167/14 92 of Indian Evidence Act, which speaks about, when any matter required by law to be reduced to the form of a document have been proved by the production of the document, no evidence of any oral agreement or statement shall be admitted as between the parties to any such document for the purpose of contradicting varying, adding to or subtracting from, its terms. There are six exceptions, which are not applicable to the facts situation on hand.
22. The document Ex.P8 is the certified copy of plaint in OS.No.5949/13 filed by the defendant against the previous owners and present plaintiffs (subsequently impleaded them after purchase of property). Said suit is filed in respect of ground floor. Nothing is stated about the first floor and the existence 17 SC 167/14 of composite tenancy. Plaint is dead silent in respect of first floor.
23. In cross-examination at Page 7 the Dw.1 stated that, in the year 1999 it was not a complete building. It consists of ground, mezzanine, first, second, third and fourth floors. He started business in the year 1999 as a tenant in the premises of ground and mezzanine floor under a registered lease deed. In the year 1999 no body occupied the first floor. He stated that Ahuja Electrical is the tenant in the first floor and further stated that, it was tenant in both ground floor and first floor as it is a composite building. He became tenant of first floor in the year 1999 under lease deed as per Ex.P7. At page 8 he stated that, it is true in Ex.P7 nothing is mentioned about the ground floor. It is true the property faces towards BVK Iyengar Road and there is a 18 SC 167/14 stair case from BVK Iyengar Road. Defendant examined the previous owners as witnesses on its behalf; all of them have clearly stated that ground floor and first floor are different properties.
24. The combined reading of above evidence and the contents of undisputed documents makes it crystal clear that the ground floor and first floor are different properties and they have separate access. The first floor is not the integral part of ground floor having access from ground floor only. This view is further fortified from the execution of two separate lease deeds in respect of ground floor and first floor and receipt of separate rents for the said floors. All these facts manifest that the contention raised by the defendant holds no water. 19 SC 167/14
25. Defendant contended that, it had filed a suit for specific performance in respect of ground floor and said suit is pending for adjudication, as such the present suit for ejectment of first floor is not maintainable. This contention is not tenable because there are two separate lease deeds in respect of ground and first floor, which are independent properties having their own access and they are not interdependent with each other in any angle. Moreover, plaintiffs also filed suit for ejectment of defendant from ground floor, which is also pending for adjudication. In this backdrop the suit for specific performance filed by the defendant is no way considered as hurdle to the plaintiffs to seek the relief in this suit in respect of first floor. Hence issue-1 is answered in affirmative.
20 SC 167/14
26. Issue-2: Plaintiffs pleaded that the tenancy is terminated by issuing quit notice. On the contrary defendant contended that the notice is invalid.
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-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
27. In the case on hand 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. Lease deed 21 SC 167/14 (Ex.P7) was executed on 15/1/15, wherein the clause No.15 depicts that, the lessee, upon the expiry of the lease hereby granted or its sooner determination thereof, shall deliver back vacant possession of the schedule shop to the lessors, subject to changes caused by natural wear and tear. Ex.P7 depicts that the duration of lease is nine years with effect from 1/4/04. This shows that the tenancy expires on 31/3/13. Quit notice was issued on 10/12/13 calling upon the defendant to vacate the suit premises, which is served on 14/12/13. Suit is filed on 24/1/14. Thus the determination of tenancy is valid. In addition to this, the lease is for fixed period of nine years from 1/4/04 and come to an end on 31/3/13. Tenancy is determined by efflux of time. No notice is necessary if a lease of immovable property is determined under clause (a) of Section 111 of the Transfer of Property Act by efflux of time limited thereby. Defendant 22 SC 167/14 continued in possession after determination of lease by efflux of time, as such question of notice to quit to such a lessee, who continued in possession after determination of tenancy by efflux of time, does not arise. In the backdrop of discussion supra it is very clear that the tenancy is lawfully terminated and the plaintiffs are entitle for possession of suit property. Accordingly, issue-2 is answered in affirmative.
28. Issue-3: Plaintiffs claim mesne profits at the rate of Rs.35,000/- per month from the date of suit till the date of delivery of possession. On the contrary defendant denied it.
29. Plaintiffs pleaded that the suit shop premises is located in midst of one of the busiest business locality in Bangalore and at present it will fetch monthly rent of Rs.35,000/-, as such 23 SC 167/14 defendant is liable to pay the mesne profits at such rate from the date of suit till the delivery of possession.
30. In written statement the pleading supra in respect of mesne profits is not specifically denied. At para 8 of written statement it is only stated that, the claim of mesne profits does not comes within the purview of the monetary jurisdiction of this Court and the plaintiffs are not entitled to claim any mesne profits in the suit since it is a Court of Small Causes and the defendant firm is not liable to pay any mesne profits to the plaintiffs. It is worth to note that the rate at which mesne profits are claimed is not specifically denied by the defendant. Order 8 Rule 5 CPC envisages that, when averments made in the plaint are not denied in the written statement, the effect is that 24 SC 167/14 such averment would be deemed to be admitted. Admitted facts need not be proved under Section 58 of Evidence Act.
31. In quit notice (Ex.P1) the plaintiffs claimed mesne profits at the rate of Rs.35,000/- month. In reply notices (Ex.P4 & 5) the rate of mesne profits is not denied.
32. The Pw.1 in evidence affidavit stated that the defendant is liable to pay mesne profits at rate of Rs.35,000/- per month from the date of suit till the date of delivery of possession of suit premises. In cross-examination of Pw.1 not even a single suggestion is made denying the rate of mesne profits and entitlement of mesne profits by the plaintiffs. The ratio laid in decision (supra) squarely applicable here, as such the evidence tendered on the issue of mesne profits ought to be accepted. 25 SC 167/14
33. In cross-examination at page-9, the Pw.1 stated that, he does not know if the first floor premises is rented the rental value would be Rs.50/- to Rs.60/- per square feet. The Dw.3 in cross-examination at page-7 stated that, BVK Iyengar Road is a public road of business. It is center part of Bangalore. It is one of the busiest business places in the city. She stated that she does not know that as on today the property at BVK Iyengar Road costs Rs.50,000/- per square feet.
34. The evidence relating to the rate of mesne profits is not denied by the defendant. Thus without any hesitation the rate of mesne profits pleaded by the plaintiffs can be accepted. 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 without owner's 26 SC 167/14 consent. Thus the tenant is liable to pay mesne profits for wrongful occupation of suit premises at the rate of Rs.35,000/- per month from the date of suit till the date of delivery of suit premises. Accordingly issue-3 is answered in affirmative
35. Before partying let us consider the contention raised by the defendant that the mesne profits claimed is not within the pecuniary limits of this Court, as such suit is not entertaianble by this Court for want of pecuniary jurisdiction. To counter this contention the plaintiffs placed reliance on a decision reported in ILR 2015 KAR 4939 (Sri.Sandeep Chouhan & another V/s Sri. Krishnaraj Bhat), wherein it is held that, Future mesne profits will not determine the cause of action. The cause of action on the date of institution of the suit will have no relevance to the mesne profits, which the defendant-tenant would be liable to pay 27 SC 167/14 for occupation of the premises during the pendency of the suit. It would not be possible for the plaintiff to plead cause of action or to value his suit based on the future mesne profits for the purpose of pecuniary jurisdiction or for that matter for the purpose of payment of Court fee. Therefore, for determining pecuniary jurisdiction of the Small Causes Court, the amount of future mesne profits sought will not have any relevance. In this backdrop, the contention raised by the defendant is not tenable.
36. It is argued that the decree passed should be executable but in the instant case if decree is passed it is un executable as there is no access to first floor which is an integral part of ground floor. This contention is not sustainable because this Court already opined that the ground floor and first floor are 28 SC 167/14 different properties having own access and first floor is not the integral part of ground floor.
37. Issue-4: By virtue of above findings Court proceeds to pass the following;
ORDER Suit is decreed with costs.
Defendant is directed to vacate the suit premises and hand over the vacant possession to the plaintiff within two months from the date of this judgment.
Plaintiffs are entitle for mesne profits at the rate of Rs.35,000/- per month from the date of suit till the delivery of vacant possession.
29 SC 167/14Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 5th day of November, 2016).
(A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE.
ANNEXURE List of witnesses examined on behalf of Plaintiff: P.w.1- Sri.Bhupendra Kumar List of exhibits marked on behalf of Plaintiff:
Ex.P.1 Copy of legal notice dated: 10-12-2013 Ex.P.2 Postal receipt Ex.P.3 Postal acknowledgment Ex.P.4 Reply notice dated: 31-12-2013 Ex.P.5 Another reply notice dated: 03-01-2014 Ex.P.6 Copy of sale deed Ex.P.7 Copy of lease deed dated: 15-01-2005 Ex.P.8 Copy of plaint in OS.5949/2013 Ex.P.9 Plaint in OS.7406/2013 30 SC 167/14 Ex.P.10 Compromise petition in OS.No.7406/2013 Ex.P.11 Order sheet in OS.No. 7406/2013 Ex.P.12 Decree in OS.No.7406/2013 Ex.P.13 Khatha extract Ex.P.14 Khatha certificate Defendant/s:
Dw.1: Sri.Vinod J. Parwani Dw.2: Sri.S.V.Ranganath Dw.3: Sri.Sathaynarayana Dw.4: Sri.S.Mohan Dw.5: Sri.Mukund.S.V Dw.6: Sri.S.G.Nagaraju List of exhibits marked on behalf of Defendant:
Ex.D.1 VAT registration certificate
Ex.D.2 Copy of orders on IA No.1 in OS No.5949/2013
Ex.D.3 Certified copy of partnership deed
Ex.D.4 Certified copy of release deed
(A.SAMIULLA)
XIX Addl SCJ, MACT & XLI ACMM
BANGALORE