Bangalore District Court
Kumar M B Alias Kiran vs Jayalakshmi on 16 April, 2024
KABC010089072015
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 16th DAY OF APRIL 2024
Present: Sri.S.B.Kembhavi., B.A., L.L.B.(Hons),L.L.M.,
XXXV Addl. City Civil & Sessions Judge,Bengaluru.
O.S.No.3491/2015
Plaintiff : Sri.M.B.Kumar @ Kiran,
S/o. Basavaiah,
Aged about 28 years,
No.19, 6th A Cross,
Near Government Hospital,
Rotary Nagar,
Kodichikkanahalli,
Bangalore-72.
(Sri.BRCA, Advocate)
-Vs-
Defendant : Smt.Jayalakshmi,
W/o.B.Venkataswamy,
Age Major,
R/at.JVS Enclave,
Sy.No.2, 1st Main Road,
Kadabesanahalli,
Outer Ring Road,
Marathhalli, Bangalore-87.
(Sri.CSA., Advocate)
******
2
Date of institution of the suit : 16-04-2015
Nature of the suit : Injunction
Date of commencement of : 14-03-2022
recording of the evidence
Date on which the judgment : 16-04-2024
was pronounced
Total duration Years/s Month/s Day/s
09 00 00
Digitally signed by S B
SB KEMBHAVI
KEMBHAVI Date: 2024.04.27
12:32:08 +0530
(S.B.KEMBHAVI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The plaintiff has filed this suit against the defendant seeking for the relief of permanent injunction restraining the defendant, their henchmen/person or persons claiming through them from interfering with the plaintiff's lawful and peaceful possession and enjoyment of suit schedule property and for costs.
2. In brief, the case of the plaintiff is as under:-
3
Plaintiff is a tenant, under the defendant and the defendant is the absolute owner of the suit schedule property bearing Sy.No.2, 1 st main road, Kadabesanahalli, Outer Ring Road, Marathhalli, Bangalore-87, consisting totally seven houses. The plaintiff and defendant entered into Rent Agreement, dated 19-11-2014 for renting the suit schedule property to the plaintiff to establish and run the Paying Guest Accommodation for ladies. In this regard, the plaintiff has paid Rs.5,00,000/- lakhs as advance amount of which, Rs.4,50,000/- was paid to the defendant by way of cheque in favour of husband of the defendant by name B.Venkataswamy through cheque bearing No.000105, dated 16-12-2014 drawn on HDFC Bank, HSR Layout Branch, Bengaluru and remaining Rs.50,000/- was paid by way of cash. It was agreed between the parties that monthly rent to be at Rs.80,000/-. As per the agreement, the plaintiff had paid advance amount to the defendant and in turn, the defendant had handed over the possession of the suit schedule property on the same day. Thus, the plaintiff established Ladies Paying Guest Accommodation in the name and style of JVS accommodation for ladies in the suit schedule property and he is running the business till date. There are 45 4 members staying in the Paying Guest Accommodation facility provided in the suit schedule property. It is the further case of the plaintiff that he was paying the rents regularly through the mode of cash, cheque or NEFT transaction to the account of defendant. As the plaintiff established Paying Guest Accommodation and doing fairly good business in the locality, the defendant become eye-soar and started demanding higher rent than the agreed rent and started telling the plaintiff to hand over the PG to the defendant to run the business of PG Accommodation. The plaintiff had invested huge money to the tune of Rs.20,00,000/- for establishing PG accommodation apart from security deposit paid to the defendant. The defendant has started demanding additional rent of Rs.20,000/- p.m. The plaintiff expressed his inability to pay enhanced rate of rent. Thereafter, the defendant is sending her persons demanding higher rate of rent and threatening the plaintiff that she will be forcefully vacated from the suit schedule property. On 13- 04-2015 and 14-04-2015 at about 8.00 a.m., the defendant along with 6-7 persons entered the Paying Guest, threatened the plaintiff to vacate the house and to give up his right over the suit schedule property voluntarily failing which, they will take over the suit schedule property by 5 forceful means. With great difficulty, the plaintiff resisted the forcible entry of the defendant and approached the jurisdictional police for necessary action. Police have not taken any action stating that it is a civil matter. The defendant is a very powerful person in the locality and got men and money at her command. Hence, the highhanded and illegal acts of the defendant cannot be curtailed without interference and assistance of this Court. Hence, cause of action arose to file this suit. Accordingly, prayed to decree the suit.
3. In response to the summons issued by this Court, the defendant appeared and filed written statement contending that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. The defendant further contended that she is the owner of M/s.Jayalakshmi JVS Enclave, situated at Sy.No.2, 1st Main Road, Kadabeesanahalli, Outer Ring Road, Marathahalli, Bengaluru, consisting one kitchen, two bed rooms, two common bathroom of each, in seven houses and separate kitchen room in 4 th floor. The said building constructed by the defendant consists of ground floor + four floors and the same came to be constructed over 6 0.01 ½ guntas of land. The defendant has further contended that one M/s.Sumithra took the suit schedule property on monthly rental basis for running the Paying Guest Accommodation by entering into Rent Agreement, dated 7-3-2011. The said Sumithra has not paid rents properly and regularly and has vacated the suit schedule property in the month of August 2013. Subsequently, the defendant continuously running the ladies PG in the suit schedule property from August 2013. The defendant has further contended that she is seriously bedridden due to stomach pain and subsequently, undergone operation. Hence, the defendant appointed the plaintiff to supervise the said ladies Paying Guest Accommodation on a monthly salary of Rs.6.000/-. The plaintiff was appointed from August 2013 to collect the amounts from members of the ladies Paying Guest Accommodation. The plaintiff in order to pay such amount collected from the members of the ladies Paying Guest issued cheque bearing No.000103 dated 10-02-2015 for Rs.18,00,000/-. The defendant has further submitted that according to the instructions of the plaintiff, she had presented the cheque on 10-02- 2015 through Indian Overseas Bank, ISRO Branch, Bengaluru. On 19-2-2015, the said cheque dishonoured with an endorsement 7 'payment stopped by the drawer'. The plaintiff cheated the defendant and has not paid Rs.18,00,000/- collected from the members of ladies Paying Guest Accommodation facilities. The defendant has further specifically contended that the plaintiff has created alleged rental agreement dated 19-02-2015 with forged signature of defendant. The defendant has further specifically contended on the basis of alleged Rent Agreement dated 19-11-2014, plaintiff entered agreement with other Company to provide paying guest service. On 18-5-2015 at about 7.30 a.m., the defendant came near suit schedule property in which, Paying Guest Accommodation was arranged along with her husband and Anand S/o.Late Pillappa to inspect the building. The plaintiff illegally confined the defendant by engaging rowdy agency in front of the said PG and resisted the defendant to enter the said defendant's building and threatened the life of the defendant and her husband with deadly weapons i.e., chopper and tried to assault the defendant with his hands. Subsequently, the defendant came to know that in the night illegally without permission of defendant break opened two stores consisting in the ground floor and without any authority and rights, illegally taken possession of the said two stores, by trespassing the 8 premises. The alleged rent agreement dated 19-11-2004 did not cover the ground floor building. The plaintiff caused loss of Rs.5,00,000/- by removing center wall and caused loss of Rs.1 crore from the said PG. The plaintiff illegally confined the defendant and cheated her and committed breach of trust and caused damage and illegally break opened the stores and taken possession. Hence, the defendant has lodged private complaint against the plaintiff. The plaintiff has approached the defendant's husband and taken hand loan of Rs.5 lakhs from the said Venkataswamy through cheque bearing No.686440 to improve M.K.Technologies and in this regard, the plaintiff executed loan bond paper on 22-08-2013 in favour of the husband of plaintiff. Subsequently, the plaintiff repaid Rs.4,50,000/- to the said Venkataswamy through cheque bearing No.000105, dated 16-12-2014. The plaintiff has created alleged rent agreement and filed this false suit. Hence, prayed to dismiss the suit with heavy costs.
4. Based on the pleadings and documents of both sides, the Court has framed the following issues:-
1. Whether plaintiff proves that he is a tenant, under the defendant in respect of 9 the suit property based on an unregistered Rental Agreement, dated 19-11-2014?
2. Whether plaintiff further proves that he has paid a sum of Rs.5,00,000/- towards security deposit?
3. Whether plaintiff proves that he has agreed to pay rent a sum of Rs.80,000/-
only per month?
4. Whether the plaintiff proves that the defendant tried to dispossess him forcefully from the suit property?
5. What Order or Decree?
5. The plaintiff in order to prove his case got examined himself as P.W.1 and got marked Exs.P.1 to P.45 documents. There is no oral or documentary evidence on behalf of the defendant.
6. Heard arguments of learned counsel for plaintiff. In spite of grant of sufficient time, the Counsel for the defendant has not submitted his arguments and subsequently by issuing notice to the defendant got retired from the case on behalf of the defendant. Perused the pleadings and evidence on record.
7. My findings to the above issues are as follows:-
10
Issue No.1 : Does not arise for consideration
Issue No.2 : Does not arise for consideration
Issue No.3 : Does not arise for consideration
Issue No.4 : Does not arise for consideration
Issue No.5 : As per final order for the following:-
REASONS
8. Issue Nos.1 to 4:- Since these issues are interlinked and interconnected with each other in order to avoid repetition of discussion and reasonings, they have been taken up together for consideration.
The plaintiff has filed this suit against the defendant, seeking for the relief of permanent injunction restraining the defendant from interfering with his possession and enjoyment of suit schedule property. It is the further case of the plaintiff that the defendant is the owner of the suit schedule property and he is a tenant, under the defendant in respect of suit schedule property and thereby, enter into Rent Agreement dated 19-11-2014 and paid Rs.5 lakhs as advance amount and agreed to pay rents of Rs.80,000/- p.m. It is the further case of the plaintiff that he took the suit schedule property on rental basis for running ladies PG accommodation in the name and style of JVS 11 accommodation for ladies only. It is further case of the plaintiff that when once he started running the ladies PG accommodation, he got a fairly good business and got reputation in the locality. This has become the eye-soar to the defendant and thereby, the defendant started demanding high rate of rent or else to vacate and hand over the PG to her to be run by her. The defendant along with her henchmen came to the suit schedule property on 13-4-2015 and 14-4-2015 threatened the plaintiff to vacate the schedule premises or else they will forcibly take over the suit schedule property. Hence, the plaintiff was constrained to file the above suit.
9. On the other hand, the specific defence of the defendant is that she is the absolute owner of the suit schedule property and she is running Paying Guest in the suit schedule property in the name and style as M/s.JVS ladies paying guest accommodation. It is the further case of the defendant that she had appointed the plaintiff to supervise the running of Paying Guest, on a monthly salary of Rs.6,000/- p.m. from August 2013. Thereby, the plaintiff started collecting the amounts from the members of PG on monthly basis. Likewise, the plaintiff 12 instead of handing over the amount collected from members of the paying guest issued cheque bearing No.000103 dated 10-2-2015 for Rs.18,00,000/-. When the defendant has presented the said cheque, through her Banker on 19-2-2015, the same was returned with an endorsement payment stopped by the drawer. Thus, it is the specific defence of the defendant that she has never executed Rent Agreement dated 10-11-2014 and the plaintiff has concocted such Rent Agreement by forging her signatures and also cheated her by not paying the amount collected from members of the paying guest in a sum of Rs.18,00,000/-. Accordingly, the defendant has prayed to dismiss the suit.
10. The plaintiff in order to prove his case got examined himself as P.W.1 and reiterated the averments of the plaint in his affidavit. In support of his oral evidence, P.W.1 has produced and got marked as many as 45 documents at Exs.P.1 to P.45. The plaintiff has produced original agreement dated 19-11-2014 at Ex.P.1. On perusal of the same, it is to be noted that the said agreement alleged to have been executed by the defendant herein in favour of the plaintiff for letting out 13 the entire schedule property for a period of three years commencing from 1-12-2014 subject to renewal upon mutual consent with increase of 6% of rents. As per Ex.P.1 rate of rent was fixed at Rs.80,000/- p.m. and security deposit in a sum of Rs.5,00,000/- which shall be refundable at the time of vacating the schedule property.
11. It is relevant here to note that Ex.P.1 Rent Agreement is for a period of three years. But, the rent agreement is not registered document as required under law. Further, the said agreement also does not bear necessary stamp duty for the rent agreement. The plaintiff has further produced account extract of accounts with HDFC Bank at Ex.P.2 to show payment of Rs.4,50,000/- in favour of husband of the defendant. Exs.P.3 to P.21 are the applications by members of Paying Guest Accommodation. Ex.P.21 is the bank statement of the plaintiff himself with HDFC Bank. Exs.P.23 to P.41 are electricity bills and bill paid receipts. Ex.P.43 is customer account details of INDUS IND Bank. Ex.P.44 is the acknowledgment copy of complaint made by plaintiff against defendant on 13-4-2015. Ex.P.45 is the endorsement issued by HAL police for having received the complaint of plaintiff. 14
12. It is to be noted that in spite of grant of sufficient time, P.W.1 has not been cross-examined by Advocate for defendant. Accordingly, cross-examination of P.W.1 has been taken as 'nil'. When the case was posted for evidence of the defendant, the advocate for defendant has submitted that the plaintiff has vacated the premises and thereby, he has no evidence to be lead on behalf of the defendant. Further, the advocate for defendant has filed I.A.Nos.7 & 8 for reopening the case and recall of P.W.1 for cross-examination. The said applications came to be allowed. In spite of grant of time, P.W.1 was again not cross- examined by advocate for defendant.
13. It is to be noted that the advocate for plaintiff during the course of arguments submitted that the husband of the defendant is a police constable and brother of the defendant is a Police Sub-Inspector and thereby, the defendant with use of force, dispossessed the plaintiff from the suit schedule property. The advocate for plaintiff has also submitted that in this regard, the plaintiff has filed an application under Order 39 Rule 2(A) of CPC, for violating the order of temporary injunction. It is to be noted that such application filed under Order 39 15 Rule 2(A) of CPC by the plaintiff is ordered to be registered as separate Miscellaneous at Mis.No.153/2018 and it is pending for enquiry.
14. In this case, it is to be noted that the plaintiff has sought for the relief of permanent injunction restraining the defendant from dispossessing him from the suit schedule property without due process of law. But, it is to be noted that the plaintiff has made an application under Order 39 Rule 2(A) of CPC, alleging forceful eviction. On the other hand, advocate for defendant has submitted that the plaintiff himself has vacated the suit schedule property. Under such circumstances, the relief sought in the present suit become infructuous and thereby, question of considering issues framed in this suit does not arise at all. Whether there was a forceful eviction of plaintiff from the suit schedule property or not and whether there is willful dis-obedience of temporary injunction order passed by this Court are the matters to be considered in Mis.No.153/2018. This Court cannot give its findings on these aspects in this suit for the reason that the relief sought in the present suit has become infructuous. However, the plaintiff is at liberty to establish his case in Mis.No.153/2018 regarding his forceful eviction 16 from the suit schedule property. Further, it is to be noted that even the plaintiff has clearly admitting that the defendant is the landlord and he is a tenant, under the defendant. Under such circumstances, this Court cannot go deep into the issues framed in this suit for the reason that the relief sought by the plaintiff have become infructuous. Accordingly, question of considering issue Nos.1 to 4 does not arise at all. Accordingly, issue Nos.1 to 4 are answered as does not arise at all.
15. Issue No.5:- In view of my findings on issue Nos.1 to 4, it is just and proper to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed.
Draw Decree accordingly.
[Dictated to the Stenographer Grade-I, transcribed by her, corrected and then pronounced by me, in the Open Court on this the 16 th day of April 2024.] Digitally signed by S SB B KEMBHAVI KEMBHAVI Date: 2024.04.27 12:32:26 +0530 [S.B.Kembhavi] XXXV Addl. City Civil & Sessions Judge Bengaluru 17 ANNEXURE Witnesses examined on behalf of the plaintiff P.W.1 : Sri.Kiran @ Kiran Kumar Witnesses examined on behalf of the defendant
-Nil -
Documents marked on behalf of the plaintiff
Ex.P.1 : Rental Agreement dated 19-04-2014
Ex.P.2 : Account Extract
Exs.P.3 : Bank Account Statement
Ex.P.21 :
Ex.P.22 : Bank Account Statement
Exs.P.23 : BESCOM receipts
to P.41
Ex.P.42 : Bank statement
Ex.P.43 : Customer account details of Indus Ind
Bank
Ex.P.44 : Copy of the police complaint
Ex.P.45 : NC endorsement
18
Documents marked on behalf of the defendant.
- Nil-
Digitally signed by S
SB B KEMBHAVI
KEMBHAVI Date: 2024.04.27
12:32:32 +0530
(S.B.KEMBHAVI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru