Bangalore District Court
Sri.M.Kempaiah vs Sri.B.M. Gulriaz on 22 October, 2016
C.R.P.67 Government of Karnataka
Form No. TITLE SHEET FOR JUDGMENTS IN SUITS
9 (Civil) IN THE COURT OF THE SMALL CAUSES
ATTitle BANGALORE.
Sheet for
Judgment Present: Sri.A.SAMIULLA, B.Sc LL.B.
in Suits XIX Addl SCJ, MACT & XLI ACMM,
(R.P.91) Bangalore.
S.C.No.723/2012
PLAINTIFFS: Sri.M.Kempaiah,
S/o Late.Maraiyappa,
73 years,
Residing at No.121,
Old Madras Road, Ulsoor,
Bangalore-560008.
Dead by legal representatives,
1(a) Smt.Nanjamma,
W/o Late.M.Kemapaiah,
53 years,
1(b) Smt.K.Manjula,
W/o Sri.Chandrashekar,
D/o Late.M.Kemapaiah,
30 years,
1(c) Miss.K.Suma,
D/o Late.M.Kemapaiah,
27 years,
SCCH 17 2 SC.No.723/12
1(d) Sri.K.Srinivas,
S/o Late.M.Kempaiah,
24 years,
All are residing at
# 121, Old Madras Road,
Ulsoor, Bangalore-560008.
(By Sri.SVG)
V/s
DEFENDANT: Sri.B.M. Gulriaz,
S/o Mohd.Yakoob,
C/o U Delighted Dry Cleaners
And Medivel Chemists and Druggists,
Shop No.122/2 & 122/3,
Old Madras Road,
Ulsoor, Bangalore-560008.
(By Sri.HJS)
Date of Institution of the Suit: 25.05.2012.
Nature of the Suit: Ejectment.
Date of the commencement of
Recording of the evidence: 03.06.2008.
Date on which judgment
Was pronounced: 22.10.2016
Total Duration: Year/s Month/s Day/s
04 04 28
(A.Samiulla)
XIX ADDL.JUDGE.
SCCH 17 3 SC.No.723/12
J U D G M E N T
Suit is for ejectment and for damages/mesne profits at the rate of Rs.9,000/- per month from the date of suit till delivery of possession.
2. Suit property is a shop bearing No.122/2 and 122/3 forming part and parcel of the immovable property bearing No.122 situated at Old Madras Road, Bengaluru-560008.
3. At the first instance suit was filed on the file of City Civil Court, Bengaluru in O.S.No.5123/05. Subsequently it was transferred to the Court of Small Causes on the point of jurisdiction. Suit is filed by Sri.M.Kempaiah through his GPA Holder Smt.M.Nanjamma, who is his wife. During proceedings the plaintiff breathed his last, his legal representatives Smt.M.Nanjamma and her children were brought on record.
SCCH 17 4 SC.No.723/12
4. The say of plaintiff is that, he is the absolute owner of immovable property bearing No.122/2 and 122/3 situated at Old Madras Road, Bengaluru and property bearing No.122, in which defendant is a tenant of a portion, which is the suit premises. The plinth area of suit property is more than 14 square meters and the last paid rent is Rs.1000/- per month.
5. Defendant is using the suit property for commercial purpose and the tenancy is monthly. Plaintiff not being interested in continuing tenancy got issued a quit notice dated 4/4/05 through the power of attorney holder terminating the tenancy and calling upon the defendant to quit and deliver the vacant possession of suit property within 15 days from the date of service of notice. Notice sent through registered post acknowledgment due served on the defendant. In spite of service of quit notice he failed to SCCH 17 5 SC.No.723/12 vacate the premises and becomes a tenant at sufferance, suit premises is in the prime locality and it fetches a sum of Rs.9,000/- per month as rent, which is prevailing in the area, where it is situated, as such he is liable to pay damages at the rate of Rs.9,000/- per month for the occupation of property after termination of tenancy. Hence suit is filed.
6 Defendant resisted the suit by filing written statement. He specifically contended that, the plaintiff is not the owner of property bearing No. 121 and 122, who is only a rent collector. He is tenant in property bearing No. 122/2, Old Madras road, Bangalore- 8. Property No. 122/3 is occupied by Mr.Nuhrez Khan independently running business under the name and style M/s. Medivel Chemists and Druggists, he has nothing to do with property No. 122/3 and he is not in possession of it. Measurement of property in SCCH 17 6 SC.No.723/12 his possession is 9 x 15 feet, which renders the suit not maintainable before this Court. Suit property measures less than 14 square meters and also there is serious dispute regarding identity of suit property, as such this Court has no jurisdiction to try the suit. He is paying Rs.500/- towards rent in respect of property in his possession. There is no relationship of land lord and tenant between him and plaintiff. There is no proper termination of tenancy as alleged by the plaintiff. Suit property being a small one does not fetch a sum of Rs.9,000/- per month. Suit property is under the ownership of Subramanya temple and under the contol of Muzari Endownment of temples department. Suit is bad for non-joinder of necessary parties. Among these grounds he prays to dismiss the suit.
7. Defendant filed additional written statement contending that, the legal representative of plaintiff have no locus SCCH 17 7 SC.No.723/12 standi to prosecute the case. There is serious dispute regarding the ownership. The charitable trust and temple are claiming ownership. The special land acquisition office has acquired the entire schedule premises along with property No.122 situated at Swamy Vivekananda road, Halsoor and they have demolished substantial portion of property. He has received notice from special land acquisition officer to vacate the suit property. There are two independent shop premises and each shop dimension is below 14 sq. meters. One shop is run by Nuhrez, he is an independent tenant paying rent of Rs.500/- per month.
8. Following issues and additional issues arise for consideration.
1) Whether the plaintiff proves relationship of landlord and tenant between plaintiff and defendant?
2) Whether the termination of tenancy of the defendant is valid and is in accordance with law?
SCCH 17 8 SC.No.723/12
3) Whether the plaintiff is entitled for possession of suit property from the defendant?
4) Whether plaintiff is entitled for mesne profits as claimed?
5) Whether defendant proves that he is a tenant only in respect of Shop No.122/2 and not Shop No.122/3 and that the same measures less than 14 square meters and that this court has no jurisdiction to try this suit in view of Karnataka Rent Act?
6) Whether defendant proves that the suit is not properly valued and proper court fee is not paid?
7) What order?
ADDITIONAL ISSUES
1) Whether the legal representatives of the plaintiff have no locus-standi to prosecute the suit?
2) Whether this court has no jurisdiction to decide the suit?
9. To prove the case, plaintiffs examined one R.Chandrashekar as Pw.1 and documents Ex.P1 to 5 were marked. Legal representative No.1(d) was examined as Pw.2. The P.w.1 was not tendered for cross-examination. Whereas SCCH 17 9 SC.No.723/12 defendant examined himself as D.w.1, he did not offer himself for cross-examination.
10. Heard arguments from both sides.
11. Findings on the above issues are as follows:
Issue-1: Affirmative. Issue-2: Affirmative. Issue-3: Affirmative Issue-4:Separate enquiry. Issue-5: Negative.
Issue-6: Negative.
Addl.Isues-1 & 2: Negative. Issue-7: As per final order for the following;
REASONS
12. Iusses-1 to 4: These issues are inter linked, as such taken together for common discussion to avoid repetition.
13. Plaintiff asserted that, he is the owner of suit premises and defendant is tenant on monthly rent of Rs.1000/- and the tenancy is terminated by issuing quit notice dated 4/4/05, which is evasively replied by the SCCH 17 10 SC.No.723/12 defendant and in spite of termination of tenancy he continued as a tenant at sufferance, as such he is liable to pay damages/mesne profits at the rate of Rs.9,000/- per month as the suit premises is situated in the prime locality and fetches rent of Rs.9,000/- per month. Per contra the defendant contended that the suit is not maintainable and this Court has no jurisdiction to try the suit.
14. Plaintiffs relied on documents Ex.P.1 to 5. Ex.P.1 is legal notice dated 4.4.2005 issued by Smt.Nanjamma the power of attorney of Sri.Kempaiah calling upon the defendant to vacate the premises and to pay damages. Ex.P.2 & 3 are postal receipt and acknowledgement. Ex.P.4 is reply notice issued by the defendant. Ex.P.5 is deed of lease dated 1.3.1995 entered between Kempaiah and the defendant in respect of suit premises.
SCCH 17 11 SC.No.723/12
15. In cross-examination the P.w.2 stated that, he and his family are the absolute owners of suit property. It is suggested that, Kempaiah is not the owner of suit property and he has got only rights to enjoy the rents and trust is the owner, he denied it. In cross-examination of P.w.2 the defendant has not disputed the documentary evidence produced by the plaintiffs.
16. On the other hand defendant filed evidence affidavit reiterating the written statement averments. Thereafter he did not step into the witness box to face the acid test of cross-examination. Since the evidence of defendant is not tested by the cross-examination, it is no evidence in the eye of law and it looses its credibility, no relief can be granted on the basis of such evidence. Defendant avoided to face cross-examination, which results in drawing adverse inference.
SCCH 17 12 SC.No.723/12
17. In the case on hand the oral and documentary evidence placed by the plaintiff clearly demonstrate his case. Though the defendant denied the right of plaintiff by stating that he is only a rent collector, he failed to substantiate it. Even if his contention is taken into consideration then also suit survives because a rent collector can maintain a suit against the tenant.
18. Let us consider whether the tenancy is lawfully terminated. 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.
SCCH 17 13 SC.No.723/12
19. In the case on hand the 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. Hence, quit notice (Ex.P1) was issued on 4/4/05 terminating the tenancy and calling upon the defendant to deliver possession of property within 15 days from the date of service of notice. Thus determination of tenancy is valid. Here, tenancy is determined by efflux of time also. In the backdrop of discussion supra it is very clear that the tenancy is lawfully terminated and the plaintiff is entitled for possession of suit property.
20. Defendant contended that suit premises consists of two shops, he is in occupation of one shop and another is occupied by Nuhrez, who is an independent tenant, as such quit notice is defective and suit is not maintainable. This contention is not maintainable because the lease deed SCCH 17 14 SC.No.723/12 (Ex.P5) manifest that there is single lease deed in respect of suit property and it is entered between Kempaiah and defendant and in clause 7 it is clearly mentioned that the lessee is already in occupation of shop premises No.122/2 and 123/2. This shows that a single lease was entered in respect of two shops. Even otherwise if the version of defendant that Nuhrez is true, it shows the defendant might have sub leased it without owner's consent, if it is so, it is also one of ground for eviction of plaintiff.
21. 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 consent. Thus the tenant is liable to pay damages for wrongful occupation of suit premises. In the case on hand, except a bare self serving statement that the suit premises fetch rent at the rate of Rs.9,000/- per SCCH 17 15 SC.No.723/12 month, absolutely there is no reliable evidence to ascertain actual damages. Under these circumstances separate enquiry is warranted to determine the damages/mesne profits as envisages under Order 20 Rule 12 CPC.
22. In the background of discussion supra without hesitation it can be said that the tenancy is lawfully determined and plaintiff is entitled for possession and there shall be a separate enquiry to determine damages/mesne profits. Accordingly, above issues are answered.
23. Issues-5,6, additional issue-1 & 2: These issues are taken together for common discussion to avoid repetition.
24. It is pertinent to note that the defendant utterly failed to demonstrate any of the contentions raised by him, as he has not offer himself for cross-examination.
SCCH 17 16 SC.No.723/12 Examination in chief of defendant is not tested by the cross-examination, as such it is no evidence in the eye of law. In addition to this the defendant admits the jural relationship by stating that the plaintiff is only a rent collector, as such he is estopped from denying the title of landlord and locus standi to file suit.
25. Defendant contended that the suit premises is measuring less than 14 square meters, as such this Court has no jurisdiction. Section 2 (3) (g) of Karnataka Rent Act envisages that, the said Act is applicable to premises used for non-residential purpose having a plinth area of not exceeding fourteen square meters used for commercial purpose.
26. In the instant suit at the instance of defendant Court Commissioner was appointed to measure the property and to report thereon, who carried out the commission work and SCCH 17 17 SC.No.723/12 submitted report. Though both parties filed objections but none of them cross-examined the Court Commissioner to destroy the report submitted by him which becomes part of Court record.
27. It is well settled that the plinth area includes the area beneath the walls. Therefore, in finding out the measurement of the non-residential premises not only the actual space available between the walls i.e., carpet area but the area covered by the walls has to be taken into consideration. In this background the contention of defendant that the carpet area is to be taken into consideration is not sustainable. As per Commissioner report the plinth area of two shops is East to West is 15.9 feet and North to South is 16.9 feet which comes to 268.71 square feet, if converted to meters it comes to 81.90 square meters. This shows that the suit premises is SCCH 17 18 SC.No.723/12 measuring more than the fourteen square meters. In addition to this, here, two shop premises taken on lease by single tenant as per Ex.P.5. There are no separate lease deeds and rent receipts. In the absence of said documents it can be said that only one tenancy existed as on the date of quit notice. The total area of two shops measures more than 14 square meters, as such tenancy is not protected under Rent Act. Thus the contention raised by the defendant that the plinth area is less than fourteen square meters and this Court has no jurisdiction is not tenable.
28. It is argued that the Pw.1 in cross-examination stated that the gift deed was executed by his grand mother and he can produce it and also stated that his father executed will with respect to suit property. It is argued that neither gift deed nor will is produced and proved them in accordance with law. This shows that there is serious dispute about the SCCH 17 19 SC.No.723/12 ownership and this Court cannot decide the dispute with respect to title. To strengthen his contention the defendant relied on decisions reported in ILR 2011 KAR 229 (Abdul Wajid V/s A.S.Omkarappa), wherein it is held that the Courts of Small Causes have jurisdiction to take cognizance of not only a bare suit for ejectment but also a suit for ejectment with a prayer for recovery of mesne profits or damages, subject to its pecuniary limits, in respect of the premises to which Karnataka Rent Act is not applicable.
Defendant also relied on Section 68 of Evidence Act, which envisages about proof of execution of document required by law to be attested.
Defendant relied on a decision reported in ILR 2015 KAR 3443 (Sri.Avinash Lal Chandani & Others V/s Sri.P.A. Nirajnan & Others), wherein the Hon'ble Court held that, when the Court as contemplated under Karnataka Rent Act SCCH 17 20 SC.No.723/12 is a Court of limited jurisdiction, it cannot go into the niceties of title.
29. It is pertinent to note that no one can dispute the proposition of law laid in the decisions relied by the defendant. But said decisions are not applicable to the case on hand because here the plaintiff proves the jural relationship and the lawful termination of tenancy, and there is no occasion for this Court to touch the niceties of title. Thus the contention raised by defendant holds no water. Accordingly, above issues are answered in negative.
30. Issue-7: Discussion supra makes it clear that the plaintiff establishes the jural relationship, legal termination of tenancy, entitlement for possession and damages. Hence Court proceeds to pass the following;
SCCH 17 21 SC.No.723/12
O R D E R
Suit is decreed in part with costs.
Defendant is directed to vacate the suit premises and handover vacant possession to the plaintiffs within two months from the date of decree.
There shall be a separate enquiry as per Order 20 Rule 12 CPC for mesne profits/ damages.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 22nd day of October, 2016) (A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE.
ANNEXURE List of witnesses examined on behalf of Plaintiff: P.w.1-Sri.R.Chandra Shekar.
P.w.2-Sri.Srinivas.K SCCH 17 22 SC.No.723/12 List of exhibits marked on behalf of Plaintiff:
Ex.P1 Office copy of legal notice
Ex.P2 Postal receipt
Ex.P3 Acknowledgment
Ex.P4 Reply notice
Ex.P5 Lease Agreement
List of witnesses examined on behalf of defendant:
D.W.1: Sri. B.M. Gulriaz Khan Documents:
Nil.
(A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE SCHEDULE All that piece and parcel of the shop premises bearing Nos.122/2 and 122/3, forming part and parcel of the immovable property bearing No.122, situated at Old Madras Road, Bangalore - 560008.
East-: Portion of the property bearing No.1 G-10 Street;
West-: Old Madras Road; North-: Property bearing No.122/1 of the plaintiff;and South: G.No.10 Street.
(A.SAMIULLA)
XIX Addl SCJ, MACT & XLI ACMM
BANGALORE
SCCH 17 23 SC.No.723/12
IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
DECREE S.C.No.723/2012 PLAINTIFFS: Sri.M.Kempaiah, S/o Late.Maraiyappa, 73 years, Residing at No.121, Old Madras Road, Ulsoor, Bangalore-560008.
Dead by legal representatives, 1(a) Smt.Nanjamma, W/o Late.M.Kemapaiah, 53 years, 1(b) Smt.K.Manjula, W/o Sri.Chandrashekar, D/o Late.M.Kemapaiah, 30 years, 1(c) Miss.K.Suma, D/o Late.M.Kemapaiah, 27 years, SCCH 17 24 SC.No.723/12 1(d) Sri.K.Srinivas, S/o Late.M.Kempaiah, 24 years, All are residing at # 121, Old Madras Road, Ulsoor, Bangalore-560008.
(By Sri.SVG) V/s DEFENDANT: Sri.B.M. Gulriaz, S/o Mohd.Yakoob, C/o U Delighted Dry Cleaners And Medivel Chemists and Druggists, Shop No.122/2 & 122/3, Old Madras Road, Ulsoor, Bangalore-560008.
(By Sri.HJS) Claim: Suit filed on prays for directing defendant to Quit, vacate and deliver the vacate possession of the schedule property. This suit coming on for final disposal before Sri. A. Samiulla, XIX Addl. Judge, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
And it is further ordered and decreed that defendant do pay to the plaintiff sum of Rupees being the amount towards costs.
ORDER Suit is decreed in part with costs.
SCCH 17 25 SC.No.723/12
Defendant is directed to vacate the suit
premises and handover vacant possession to the plaintiffs within two months from the date of decree.
There shall be a separate enquiry as per Order 20 Rule 12 CPC for mesne profits/ damages.
Given under my hand and the seal of the Court this Day of 2016.
REGISTRAR COURT OF SMALL CAUSES, BANGALORE MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee ____________________________ Total of Rs. _____________________________ Amount payable by the defendant to the plaintiff is Rs.
SCCH 17 26 SC.No.723/12
SCHEDULE
All that piece and parcel of the shop premises bearing Nos.122/2 and 122/3, forming part and parcel of the immovable property bearing No.122, situated at Old Madras Road, Bangalore - 560008.
East-: Portion of the property bearing No.1 G-10 Street;
West-: Old Madras Road;
North-: Property bearing No.122/1
of the plaintiff;and
South: G.No.10 Street.
Decree Drafted Scrutinised by REGISTRAR
COURT OF SMALL CAUSES,
BANGALORE
Decree Clerk SHERISTEDAR