Bangalore District Court
Smt.H.Lalitha Bai W/O Late B.Gopal ... vs Ramaiah on 19 September, 2016
1 O.S.No:7707/2014
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 19th day of September 2016
st
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:7707/2014
Plaintiff Smt.H.Lalitha Bai W/o Late B.Gopal Singh,
Aged about 72 years, R/at No.985, 1st
Cross, Kamala Nehru Extension,
Yeshwanthapura, Bangalore-560 022.
(By Sri.MCH, Advocate)
V/S
Defendant Ramaiah, Prop: TALISAM CONSULTING,
Aged about 72 years, Resident of No.22,
West of Chord Road, III Stage, III Block,
Basaveswara Nagara, Bangalore-560 079.
(By Sri.ANJ, Advocate)
Date of Institution : 13.10.2014
Nature of Suit : For ejectment
Date of Commencement of : 27.8.2015
evidence
Date of pronouncement of : 19.9.2016
Judgment
Total Duration : Year/s Month/s Day/s
1 11 6
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
2 O.S.No:7707/2014
JUDGEMENT
This is a suit for ejectment and for damages.
2. The suit schedule consists of two properties;
SCHEDULE-I First floor portion of property bearing No.22 I Floor (wrongly mentioned as II Floor), West of Chord road, III Stage, III Block, Basaveshwara Nagara, Bangalore-560 079 consisting of a sit out, one hall, 3 rooms, dining hall, bathroom and toilets and bounded by;
East - Property No.21 West - Property No.23 North - Private property South - Remaining portion of the building and main road SCHEDULE-II One big hall in the second floor of the above property.
3. The substance of the plaint averments is that; the plaintiff is the absolute owner of the schedule properties and the defendant is the tenant. Initially the defendant took the Schedule-I property under rental agreement dt.1.8.2005 and later on 1.6.2010 he took the Schedule-II property under another rental agreement. That the rate of rent per month in respect of Schedule-I property was Rs.13,000/- per month and 3 O.S.No:7707/2014 that of Schedule-II was Rs.11,000/- per month as on the date of termination of tenancy. Thus in all the defendant was liable to pay Rs.24,000/- per month in respect of the schedule premises. The defendant took the Schedule-I property for residential purpose and Schedule-II property for running business in the name and style "Talisma Consulting". The said rents were excluding of water and electricity charges. That from the beginning the defendant was not regular in the matter of payment of rent, more so as the plaintiff requires the schedule properties for her personal occupation and to accommodate her son, and that apart the defendant is owning two storied house at II Cross, 4th Main, BML Layout, Rajarajeshwari Nagar, Bangalore and has rented the same to third party, by causing legal notice on 22.5.2014 the plaintiff terminated the tenancy and called upon him to quit, vacate and hand over the vacant possession of both properties. The defendant did not reply that notice nor complied it. Instead the defendant issued two cheques for Rs.24,000/- each in respect of June and July 2014 months' rent and on presentation of the same they were bounced for want of funds. Regarding which the plaintiff caused legal notice on 26.8.2014 and it was duly served on the defendant. Immediately the defendant cleared the outstanding amount. That the plaintiff is not interested to continue the tenancy so possession of defendant subsequent to the termination of tenancy being illegal, is liable to pay damages at the rate of Rs.24,000/- per month and also Rs.1 lakh towards said damages till possession is delivered, 4 O.S.No:7707/2014 wherefore the plaintiff prays for judgment and decree for ejectment; to direct the defendant to pay damages of Rs.1 lakh and to direct further to pay Rs.24,000/- per month as mesne profits from the date of suit till vacant possession is delivered.
4. The defendant appeared and filed his written statement as under;
it is true that the plaintiff is the owner of the schedule premises and she let out the Schedule-I premises on 1.8.2005 and Schedule-II premises on 1.6.2010, but it is denied that from the beginning this defendant is irregular in the matter of payment of rent. It is true that two cheques were came to be dis-honoured as defendant was not in good health, but the said amounts were paid immediately after receiving the legal notice. That the plaintiff is greedy of enhancing the rent oftenly and she has not whispered regarding receipt of Rs.1 lakh as a security deposit while letting out the Schedule-I premises and Rs.2 lakh while letting out the Schedule-II premises. Infact looking at the promptness of this defendant in paying the rent to the Schedule-I premises, the plaintiff herself persuaded this defendant to take Schedule-II premises on rental basis, that too for ten years, wherefore, this defendant has invested more than Rs.30 lakhs for it's interior decoration and other things. Hence now the plaintiff is not justified in calling upon this defendant to vacate the schedule premises before the expiry of said agreed period. That this defendant has paid enhanced rent as agreed to both premises in addition to paying the water charges to BWSSB at commercial rate though he is not 5 O.S.No:7707/2014 exclusively using the said facility. Infact the said water tap connection was obtained for another tenant, to whom the plaintiff has let out the ground floor. Often and again the defendant requested the plaintiff to enter into new rent agreements in lieu of the old one as they no-longer subsist, but the plaintiff went on postponing the dates on the reason that she has to pay huge income tax on the rental income and even she retained the original rent deed with her by furnishing their copies to the defendant. It is true that the plaintiff had caused legal notice on 22.5.2014 and it has been suitably replied by the defendant. There is no cause of action for the suit and the alleged one is false and invented, wherefore the defendant prays to dismiss the suit with costs.
5. Based on the said pleadings following issues have been framed:
ISSUES
1. Whether the plaintiff proves the valid termination of tenancy?
2. Whether the plaintiff proves that defendant is liable to pay damages as prayed?
3. Whether the plaintiff is entitled for mesne profits?
4. Whether the plaintiff is entitled for the reliefs as prayed?6 O.S.No:7707/2014
5. What order or decree?
6. In support of her case plaintiff examined herself as PW1 and got marked 14 documents. Whereas the defendant examined himself as DW1, no document is marked on his behalf. Heard the arguments. Perused the decisions relied by the plaintiff, written arguments filed by the defendant and the entire case file.
7. My findings on the above issues are as under:
Issue No.1 - In the affirmative Issue No.2 - In the negative Issue No.3 - In the affirmative Issue No.4 - Partly in the affirmative Issue No.5 - As per final order for the following;
REASONS Issue No.1:
8. The defendant fairly concedes that the plaintiff is the absolute owner of the schedule premises and he took them on two different rent agreements. According to him he is regularly paying the rent and there is no default on his part whereas the plaintiff submits that the defendant is habitual defaulter and moreover as she requires the schedule premises and the defendant is also having his own accommodation she has terminated the tenancy by causing legal notice to him. Here it is material to note that though the plaintiff alleged that the 7 O.S.No:7707/2014 defendant did not reply her legal notice, in his written statement even with respect to the said notice the defendant fairly submits that he has received it and replied the same, what I mean to say is that he has not denied the service of notice. In this background I can only say that the whole dispute is in narrow compass requires no much deliberation, inspite of it I have gone through the oral and documentary evidence let-
in by the parties.
9. In accordance with her plaint averments PW1 filed her affidavit in lieu of her examination in chief and produced the khatha certificate and khatha extract issued by BBMP at Ex.P1 and P2 to show that property bearing No.22, Ward No:19, Basaveshwaranagar, 3rd Stage, 3rd Block is owned by her and as rightly contended by defendant that the plaintiff herself has retained the original rent agreements with her by providing only their copies to him, the plaintiff herself produced the said deeds at Ex.P3 and P4. The Ex.P3 is dt.1.8.05 and it is in respect of Schedule-I and Ex.P4 is dt.1.6.2010 and it is in respect of Schedule-II property. As per Ex.P3 tenancy was for 12 months making it compulsorily registerable, but the Ex.P4 is for 11 months making it's registration optional. Both documents describe the properties let out under the respective deed, the rate of rent, the percentage at which enhancement is to be made in the event parties agree to continue the tenancy etc,. With the causing of termination notice the said deeds having lost their credence, one need not lay too much emphasis on them. I first of all wonder whether the plaintiff as a landlord 8 O.S.No:7707/2014 could have possessed the said original deeds instead of handing over them to the tenant. It is not the case of making rent deeds in two sets so that both parties can possess the original deeds. Whatever may be the irregularity committed by the parties in that regard, confining myself to the issue in hand I have gone through the office copy of the termination notice produced at Ex.P5. It shows that by referring to both schedule premises plaintiff has caused the said composite notice expressing her intention unequivocally in terminating the tenancy of both premises. The only interesting point is that overlooking the contents of Sec.106 of T.P. Act she terminated the tenancy with the expiry of 90 days from the date of service of that notice. Obviously it is so done as both deeds provide that in the event of termination pre-maturally by either party, it has to issue three months notice. The postal acknowledgement produced in respect of the said notice at Ex.P12 reveal that it was served on the defendant on 26.5.2014. If one goes by Sec.106 of T.P. Act tenancy stood terminated in respect of both premises w.e.f 10.6.2014. If liberal approach is taken in terms of the contents of the said notice, by the end of August 2014 i.e. after expiry of 90 days the tenancy stood terminated. In this background if plaint is gone through, it is evident that this suit was filed on 13.10.2014 i.e. substantially after effective termination of tenancy. In order to show that he has replied that notice the defendant has not produced any document. On the other hand another legal notice dt.26.8.2014 produced at Ex.P6 postal receipt pertaining to it at Ex.P7 and postal 9 O.S.No:7707/2014 acknowledgement at Ex.P8 banker's memo at Ex.P10 and P11 and bank account extract of plaintiff at Ex.P14 show that two cheques issued by the defendant towards payment of rent were came to be dishonoured for want of funds and later the amount was adjusted by the defendant. This fact has been admitted by DW1/defendant in his cross-exam. It shows that the defendant committed default in the matter of payment of rent twice.
10. The contention of defendant that the plaintiff had agreed to let-out the Schedule-II premises for a period of 10 years so he invested Rs.30 lakhs for its interior to enable his daughter the start software business there, as such the plaintiff cannot prematurely terminate the tenancy in respect of the same etc., I find no convincing evidence, instead in his cross- exam the defendant admitted that as per the terms and conditions contained in Ex.P3 and P4 as on the date of filing of the suit he was expected to pay Rs.15,000/- in respect of Schedule Premises-I and Rs.12,500/- for Schedule Premises-II against Rs.13,000/- and Rs.11,000/- respectively. He admitted that he did not pay the rent at the rate he agreed to enhance and even he conceded that he has no document to show that he has paid excess rent to the plaintiff. He further admitted that there is no condition in both rent agreements to let out the premises for a period of ten years. Lastly he admitted that he has no document to show that he has invested more than Rs.30 lakhs for the interior work of Schedule Premises -II. Per 10 O.S.No:7707/2014 contra in the cross-examination of plaintiff the defendant has totally failed to show how the Ex.P5 is invalid in the eye of law.
11. I have gone through the ratios laid down in the decisions reported at AIR 2012 KAR 100 (Kempahanumiah Vs M/s Allied Motors Service Station & Ors), AIR 2012 (NOC) 344 (ALL.)(C) (Syed Mustajab Husain Vs Additional District Judge, Agra & Ors), (2009) 15 SCC 693 (Biswanath Agarwalla Vs Sabitri Bera and others), AIR 2002 NOC 254 (KANT) (U.P.Jayaram, Vs K.Leelalvathi Rai and others), RFA:697/2010 (Sky Land International Pvt. Ltd. Vs Kavita Plaintiff Lalwani) of Hon'ble High Court of Delhi and AIR 2002 NOC 191 (ALL.) (Bank of Baroda Vs Sardar Arvinder Singh). The substance of these decisions is that even if the rental agreements are inadmissible in evidence like for want of registration etc., the tenancy being month to month, termination can be effected by causing notice as envisaged U/Sec.106 of T.P. Act and quit notice is not necessary if the lease period stipulated in the deed has already expired. It is also held that once the tenancy stands terminated the possession of the tenant is like a trespasser. It is also held that a suit for ejectment cannot be dismissed on the ground of invalidity of termination notice. In the background of these decisions and the facts aforementioned, I have no hesitation to conclude that the plaintiff has validly terminated the tenancy in respect of both premises. Hence I answer this issue in the affirmative.
11 O.S.No:7707/2014Issue No.2 to 4:
12. Perhaps under the wrong illusion that "damages" and "mesne profits" are distinct and different the plaintiff seeks damages of Rs.1 lakh and at the same time she seeks Rs.24,000/- compositely per month to both premises as mesne profits from the date of suit till possession is delivered to her. In this regard I have once again gone through the evidence adduced by the parties. In her cross-examination the plaintiff admitted that she has not raised the issue of arrears of rent in Ex.P5. According to me it is not the case of the plaintiff also. However in his cross-examination the defendant admitted that from September 2014 he has not paid rent to the plaintiff till the date of his cross-exam and he has to pay nearly Rs.5 to 6 lakhs as arrears of rent. Here also I would like to clarify one thing that after termination of tenancy plaintiff cannot expect "rent" but she can only expect "damages", therefore even if the parties have wrongly moving under the belief that there is arrears of rent, damages and mesne profits etc., etc., in my assessment, in terms of the prayer of plaintiff she is entitled for damages from September 2014 till possession is delivered to her that too at the rate of Rs.24,000/- per month to which she is herself is satisfied, till possession is restored to her. Regarding her claim for damages of Rs.1 lakh, which is unknown to law, it is liable to be rejected.
13. Since both plaintiff and defendant are senior citizens in order to avoid one more round of litigation between them 12 O.S.No:7707/2014 and also taking note of the prayer of plaintiff ie, restricting her claim of damages at Rs.24,000/- I have quantified the said rate in this proceeding itself. Thus from September 2014 till the end of August 2016 i.e. for 24 months at the rate of Rs.24,000/- per month as damages, the defendant is liable to pay Rs.5,76,000/- and he shall continue to pay Rs.24,000/- as damages till possession of both premises is restored to the plaintiff. With this I answer issue no.2 in the negative, issue no.3 in the affirmative consequently issue no.4 partly in the affirmative.
Issue No.5:
14. In the result, I proceed to make the following:
ORDER Suit is partly decreed.
The defendant is directed to quit, vacate and hand over the vacant possession of the Schedule premises-I & II within three months from the date of this judgement, failing which the plaintiff shall be at liberty to take possession through process of court.
The defendant is further directed to pay arrears of damages/mesne profits of Rs.5,76,000/- covering the period September 2014 to till the end of August 2016 and he shall continue to pay Rs.24,000/- per month as 13 O.S.No:7707/2014 damages from September 2016 till possession is restored.
Parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgement Writer, transcription computerized, then corrected and pronounced by me in open court this the 19th day of September 2016) (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.
List of witnesses examined for the plaintiff side:
PW1 Smt.H.Lalitha Bai List of documents exhibited for the plaintiff side:
Ex.P1 Khatha certificate
Ex.P2 Khatha extract
Ex.P3 Rental agreement dt.1.8.05
Ex.P4 Rental agreement dt.1.6.10
Ex.P5 Legal notice
Ex.P6 Legal notice
Ex.P7 Postal receipt
Ex.P8 Postal acknowledgement
Ex.P9 Lease deed
Ex.P10 & 11 Bank statements
Ex.P12 Postal acknowledgement
Ex.P13 Tax paid receipt
Ex.P14 S.B. A/c extract
14 O.S.No:7707/2014
List of witness examined for the defendant side:
DW1 Ramaiah List of documents exhibited for the defendant side:
Nil (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.