Sri M.C. Mohammed S/O Hassan vs Smt. Gowrmmma W/O Jayarama Reddy And ... on 9 November, 2006

[Cites 29, Cited by 5]

Karnataka High Court

Sri M.C. Mohammed S/O Hassan vs Smt. Gowrmmma W/O Jayarama Reddy And ... on 9 November, 2006

Equivalent citations: AIR2007KANT46, ILR2006KAR4584, 2007(1)KARLJ378, AIR 2007 KARNATAKA 46, 2007 (2) ALJ (NOC) 335 (KAR.) = AIR 2007 KARNATAKA 46, 2007 (1) AIR KAR R 296, 2007 A I H C 731, (2007) 53 ALLINDCAS 461 (KAR), 2007 (53) ALLINDCAS 461, (2006) ILR (KANT) 4584, (2007) 1 KANT LJ 378, (2007) 3 ICC 315, (2007) 1 RENTLR 556

1. Though the matter was posted for admission, since the contesting respondents-1 to 5 - plaintiffs had entered caveat and as the question involved in this appeal is only as to whether the termination of tenancy is valid or not, matter was taken up for disposal.

2. This is the first defendant's appeal, questioning the judgment and decree dated 7th January 2006 in O.S. No. 8183/1999 on the file of the XV Additional City Civil & Sessions Judge, Bangalore.

3. Respondents-1 to 6 are the plaintiffs. As far as respondents-7 to 11 are concerned, they were the defendants-2 to 6 in the trial court and had not contested the suit.

4. The suit is one for ejectment of the defendants from the suit schedule property and also for mesne profits at the rate of Rs. 500/- per day till the plaintiffs are put in possession.

5. Property bearing No. 83, Bazar Street, Ulsoor, Bangalore, measuring 73 feet x 30 feet was owned by one Jayarama Reddy and after his death, the plaintiffs have succeeded to the estate as wile and children of said Jayarama Reddy. Defendant No. 1 - appellant herein was put in possession of the suit schedule property as a tenant by deceased Jayarama Reddy on 12.9.1977 under a lease deed, for a period of 5 years on agreed rent of Rs. 800/- per month at the inception and Rs. 900/- for the first two years. Since the tenancy rights were protected under the provisions of the Karnataka Rent Control Act and Section 31 of the said Act having been struck down, plaintiffs had filed H.R.C. No. 1069/1997. However, the said H.R.G. came to be dismissed as not maintainable by order dated 2.12.1998 in view of restoration of Section 31 of Karnataka Rent Control Act. As the premises being non-residential premises having rent of more than Rs. 500/-, after the dismissal of the HRC petition as not maintainable, plaintiffs got issued legal notice dated 6.6.1999 terminating the tenancy from the expiry of the tenancy month of June 1999, which came into effect on 11.7.1999. First defendant though received the notice did not vacate the premises. Plaintiffs were forced to file the ejectment suit.

6. Defendant No. 1 on appearance filed his written statement. Defendant Nos. 2 to 6 did not appear even after the receipt of the summons and they were placed exparte.

7. Defendant No. 1 in his written statement denied the allegations that he was inducted in the year 1977 for the period of five years. He also denied the receipt of the notice issued by the plaintiffs and further stated that he had not sublet the suit property and also denies his liability to pay the damages to the plaintiffs.

8. On the basis of the pleadings of the parties, the trial court framed the following issues:

1. Whether the plaintiffs prove the termination of tenancy in accordance with law?

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2. Whether the plaintiffs further prove that they are entitled for mesne profits at Rs. 500/- per day from the date of suit, till the date of delivery of plaint premises?

3. To what order or decree?

The second plaintiff Dr. J. Ramachandra Reddy got himself examined as PW-1 and also got Exs.P1 to P12 marked in his evidence. First defendant got himself examined as DW-1 and got Exs.Dl to D13 marked in his evidence. The trial court on appreciation of the evidence held that the termination is proper and also held that the plaintiffs are entitled for mesne profits at the rate of Rs. 8,760/- per month from the date of filing of the suit till the delivery of possession. It is this judgment and decree of the trial court is called in question in this appeal.

9. Learned Counsel Sri. Shaker Shetty appearing for the appellant submitted that the first appeals filed under Section 96 of the Code of Civil Procedure before this Court are required to be admitted automatically. He further submitted that the first appeals are not required to be posted for admission. He submitted that this appeal cannot be disposed of at the admission stage. Nextly, he submitted that the decree is liable to be set aside, as there is no termination of tenancy in terms of Section 106 of the Transfer of Property Act as the first defendant is not issued with notice of termination. He further submitted that the first defendant is a tenant holding over and requires a valid termination of tenancy.

10. In support of his first contention, learned Counsel for the appellant relied on Section 96 of CPC and submitted that an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear the appeal from the decision of such court. He further submitted that this being a first appeal requires no admission and it has to be treated that, the matter is deemed to have been admitted and only after the records are called, the matter could be heard. In this regard, he relied on Section 5 of the Karnataka High Court Act 1961 (hereinafter referred to as 'the Act') and submitted that all first appeals against a decree or order passed in a suit or other proceedings, the value of subject matter of which is Rs. 3 lakhs or more shall be heard by a Bench consisting of not less than two Judges of the High Court and other first appeals, having value of subject matter more than Rs. 1 lakh and less than Rs. 3 lakhs shall be heard by learned Single Judge of the High Court. In support of his case, he relied on the High Court (Karnataka) Rules 1959 (hereinafter referred to as the Rules) and submitted that Chapter VI of the Rules deals with appeals. Rule 5 of Chapter VI does not provide for any admission of the first appeal. He referred to Rule 5 of Chapter V of the Rules and submitted that, in case of Regular First Appeal, an appeal against the orders against which an appeal lies as of right both on law and on fact under the law applicable to it, the appellant is required to file a memorandum of appeal along with memo in a prescribed form for issue of process or notice to the respondent with appropriate amount of process fee Axed thereto, any court fee label together with, as many plaint paper copies of the memorandum of appeal as there are respondents to be served along with envelopes, postal acknowledgement and names and addresses of the respondents to be served. Page 0018 By referring to Rule 5, he submitted that all that the appellant is required under this Rule to file an appeal memorandum along with necessary process fee, cover, acknowledgement and the memorandum of appeal copies. He also referred to Rule 6 of Chapter V of the Rules and submitted that only in case of Second Appeals, the matter is required to be notified for admission and insofar as First Appeals are concerned, they are not required to be notified for admission.

11. He further submitted that High Court Rules will prevail over the provisions of Civil Procedure Code and in this regard, he referred to the provisions of Section 122 of C.P.C. and submitted that High Court is conferred with power to frame the Rules regulating its own procedure and the procedure of the Civil Courts subject to their superintendence. The High Court has power to annul, alter or add to all or any of the Rules in the First Schedule. By referring to Section 122, learned Counsel for the appellant submitted that the High Court has power to annul, alter or add in the First Schedule of C.P.C. By referring to these provisions, learned Counsel for the appellant submitted that Rule 5 of Chapter VI of the High Court Rules completely governs the procedure in respect of First Appeals before this Court and in view of the said Rule, the applicability of the provisions of CPC in the matter of regulating the procedure of admission or hearing of the first appeal does not arise, He further submitted that Order XLI Rule 11 is not applicable to the First Appeals as the procedure is prescribed under the High Court Act and the Rules framed thereunder.

12. In support of his contention, learned Counsel for the appellant relied on a decision of the Apex Court in the matter of Shanta Genevienve Pommerat and Anr. v. Sakal Papers Pvt. Ltd and Ors. Relying on this judgment, learned Counsel for the appellant submitted that Rules framed by the High Court will prevail over the other procedure and further submitted that if the Rule does not prescribe for admission, the Court has no power to dismiss or dispose of the appeal at the admission stage. He also relied on a judgment in the matter of Madhukar and Ors. v. Sangram and Ors. and submitted that the First Appeal is required to be heard on both questions of law and on fact and the Appellate Court must address itself to all the issues of law and fact and decide the same by giving reasons in support of its finding. In this context, he further relied on one more decision in the matter of Mahdev Tukaram Vetale and Ors. v. Smt. Sugandha and Anr. and submitted that summary dismissal of appeal under Order XLI Rule 11 is not justifiable.

13. The second contention of the learned Counsel for the appellant is that the appellant has not received notice from the plaintiffs and as such, the decree for ejectment granted by the trial court is not sustainable. He further submitted that in the notice, description of the name of the plaintiff No. 4 is shown as Smt. J. Rachamma instead of J. Radhamma. He also submitted that there has Page 0019 been no service of notice on the first defendant nor the address given by the plaintiffs is correct. In this regard, learned Counsel for the appellant relied on judgment of learned Single Judge of this Court reported in ILR 1991 Kar 2185 in the matter of Sanaulla Khan v. Hansraj and Company and submitted that the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act is rebuttal and once the defendant denies service of the notice, the plaintiff is required to prove the service of notice by clear and convincing evidence. He further relied on a judgment of the Apex Court reported in (1992) 2 SCC 46 in the matter of Kulkarni Patterns Pvt. Ltd. and Ors. v. Vasant Baburao Ashtekar and Ors. and submitted that presumption of service of notice can be drawn in favour of the landlord, if the notices are sent by registered post acknowledgement due correctly addressed. The tenant can lead rebuttal evidence as regards to the issue of notice. He also relied on another decision of learned Single Judge of this Court reported in AIR 1976 KAR 97 in the matter of B. Padmavathi Rai v. Parvathiamma and submitted that the defendant - appellant by examining himself can state that the endorsement of refusal is not true, once that is stated, then the plaintiff is required to prove by cogent evidence, that the endorsement made by the postman is true. He also submitted that notice issued by certificate of posting cannot be a proof of service of notice.

14. Learned Counsel for the appellant nextly submitted, that the appellant being a tenant holding over, he is protected under the provisions of the Karnataka Rent Control Act. Section 31 of the Karnataka Rent Control Act only provided for eviction of the appellant and his status as a tenant otherwise continues. In this regard, he relied on a decision in the matter of Ganga Dutt Murarka v. Kartik Chandra Das and Ors. and submitted that the appellant is a tenant holding over and the tenancy has been continued, as such, he submitted that the ejectment suit is not maintainable on the basis of the alleged termination of tenancy. He also relied on a decision in the matter of Raptakos Brett & Company Limited v. Ganesh Property and submitted that appellant was a statutory tenant, till new Rent Act came into force, he was protected under the Karnataka Rent Control Act.

15. He also relied on an unreported judgment of this Court in R.F.A. No. 1086/2005 dated 1st December 2005 and submitted that the rights of the parties are required to be adjudicated only with reference to the law prevailing at the time of the institution of the suit and not at the time of deciding the suit and is a trite position in law. Relying on this judgment, he submitted that as on the date of the filing of the suit, the Karnataka Rent Control Act was in force and the appellant was protected as a statutory tenant and he continued to be a statutory tenant. He also submitted that since the appellant has been continued as a statutory tenant, he is not liable to pay mesne Page 0020 profits more than the agreed rate. In this regard, he relied on a judgment of this Court reported in BLR 1991 KAR 1492 in the matter of Messrs Moca v. Morzaria Products (P) Limited and submitted that Section 31 of the Karnataka Rent Control Act only bars the landlords from seeking eviction under the provisions of the Karnataka Rent Control Act, but the other provisions of the Karnataka Rent Control Act were applicable and the tenant is not liable to pay mesne profits or the damages.

16. Learned Counsel Sri. Surana appearing for the respondents-1 to 5 submitted that Ex.P1 is the lease deed for a period of five years, is not in dispute. It is also not in dispute that the lease period has expired. He also relied on Clause-8 of Ex.P1 and submitted that the landlord has a right to evict or eject the tenant without notice. He further submitted that since the tenant was protected under the provisions of Karnataka Rent Control Act, the landlords filed a H.R.C. No. 1069/1997 seeking eviction of the appellant as at relevant time, Section 31 of the Karnataka Rent Control Act was struck down. However, in view of the restoration of Section 31 of Karnataka Rent Control Act by order dated 2.12.1998, the said HRC came to be dismissed as not maintainable. He further submitted that by notice dated 6.6.1999, respondents-1 to 6, terminated the tenancy of the appellant - defendant No. 1 with effect from the end of June 1999, which came to be expired on 11th June 1999. He also submitted that the suit is filed on 4.11.1999 i.e., after the expiry of the statutory period.

17. In response to the contentions of the learned Counsel for the appellant, Sri. Surana submitted that Order XLI Rule 11 of CPC confers power on the Court to dismiss appeal without sending notice. He further submitted that the Appellate Court after fixing a day for hearing the appellant or his Pleader and hearing him accordingly if he appears on that day may dismiss the appeal. By referring the provisions of Order XLI Rule 11, learned Counsel for respondents-1 to 5 submitted that this provision confers power on this Court to dismiss the appeal without even issuing notice. Learned Counsel further submitted that once the matter is notified for admission, it is required to be heard for admission and that this Court has power to dismiss the appeal without notice. Relying on Order XLI Rule 11, learned Counsel for the respondents-1 to 5 submitted that the said provision is neither altered nor annulled and is applicable to the procedure of admission in case of First Appeals also and as far as the power of the High Court is concerned, he submitted that in exercise of power conferred under Section 122 of the CPC, an amendment has been brought to Order XLI Rule 11 wherein the proviso is added, which reads as under:

Provided that the Appellate Court may dispense with the notice on the respondents, who have remained absent, against whom the suit has proceeded exparte in court from whose decree the appeal is preferred and who have been declared absent from the said Court.

This is the only amendment, which has been brought by the High Court to the Code of Civil Procedure in exercise of power conferred under Section 122 of the CPC.

18. As regards to the termination of the notice, learned Counsel Sri. Surana submitted that DW-1 has admitted in his evidence that the notice is also Page 0021 served by affixture. The said defendant has also admitted that the address mentioned on the notice Ex.P2 is his residential address. He also referred to the evidence of DW-1 and submitted that the notice sent by the Court was also not received by the appellant. Referring to Section 106 of the Transfer of Property Act, learned Counsel for the respondents-1 to 5 submitted that the notice may be sent by registered post acknowledgement due or by tendering the same or by affixture.

19. Learned Counsel for the respondents further submitted that in case of expiry of the lease period, no notice is necessary under Section 106 of the Transfer of Property Act and in this regard, he referred to a decision reported in AIR 1964 SC 461 in the matter of Pooran Chand v. Motilal and Ors. and submitted that no notice is required, once the tenancy period has expired by efflux of time. He also relied on a judgment in the matter of Firm Sardari Lal Vishwa Nath and Ors. v. Pritam Singh and submitted that tenant is not entitled to notice under Section 106 of T.P. Act in case of expiry of lease by efflux of time. In the same regard, he also relied on a decision in the matter of Smt. Rajbit Kaur and Anr. v. S. Chokosiri and Company and in the matter of Smt. Shanti Devi v. Amal Kumar Banerjee. Relying on these decisions, he submitted that even the tenant holding over is not entitled for a notice. He referred to Section 111 of the T.P. Act and submitted that by expiry of lease period, tenancy gets determined and the question of termination of the tenancy does not arise. He further submitted that the appellant is not a tenant holding over nor a statutory tenant. His statutory tenancy was protected only during the subsistence of the Karnataka Rent Control Act and not under the Karnataka Rent Act. He submitted that admittedly the suit schedule property is being used for commercial purpose and the plinth area of the said premises is more than 14 square meters, the provisions of Karnataka Rent Act are not applicable and further submitted that the tenant, who has been continued even after the efflux of time, is not entitle for notice of termination, as the termination has come into effect with the expiry of the time and he was continued only under the protection of the provisions of Karnataka Rent Control Act.

20. As regards to the mesne profits, he submitted that the tenant after the expiry of the contractual period of tenancy is liable to pay the mesne profits. Referring to Order XX Rule 12 Clause (ba), he submitted that the plaintiffs - respondent Nos. 1 to 5 have led the evidence in proof of the damage they are entitled to and in the light of the evidence led by the plaintiffs, they are entitled for mesne profits. However, he also submitted that in view of the protection under the provisions of Karnataka Rent Control Act, the appellant - defendant No. 1 continued as tenant till the repeal of Karnataka Rent Control Act and he would be liable to pay the damage at the agreed rent but Page 0022 he will be liable to pay the damage for the remaining period i.e., from the date of repeal of Karnataka Rent Control Act till delivery of possession.

21. In the light of the rival contentions, the points that arise for consideration are:

1. Whether Rule 5 of Chapter VI of the High Court (Karnataka) Rules, 1961 dispense the: posting of the First Appeals for admission?

2. Whether by efflux of time, tenant, who is continuing in possession under the protection of the provisions of Karnataka Rent Control Act, requires a termination notice under Section 106 of the Transfer of Property Act?

3. Whether the tenant is liable for mesne profits after the repeal of the Karnataka Rent Control Act?

22. Re. POINT No. l:

It is not disputed by both the sides that Order XLI Rule 11 CPC does confer power on the Appellate Court to dismiss the appeal without sending the notice. The said provision reads as under:

11. Power to dismiss appeal without sending notice to Lower Court.- (P) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly he appears on that day may dismiss the appeal.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(4) Where an appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1) it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.

Section 122 of the CPC confers power on the High Courts to make Rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence, and also provides power on the High Court to annul, alter or add to all or any of the Rules in the First Schedule. By reading the provisions of Section 122, it is clear that the High Court has the power to make Rules regulating its own procedure as well as the procedure of the Civil Courts. It has also power to annul, alter or add to all or any of the Rules of the First Schedule. Section 122 provides for the matters for which Rules may be framed. Under this Section, the Rules framed shall not be inconsistent with the provisions in the Code of Civil Procedure, but subject thereto may provide for any matters relating to procedure of the Civil Court. In consonance with the provisions of Section 122 of CPC, this Court has framed the High Court (Karnataka) Rules 1959. These rules apply to all the proceedings and the matters in the High Court. Chapter II deals with the definition. Rule 1 Clause (p) of this Chapter defines "to admit a case", which reads as under:

(p) "To admit a case" means to decide to issue notice to respondent or direct issue of notice to respondent after preliminary perusal of papers Page 0023 or preliminary hearing under the provisions of Order 41, Rule 11 of the Code of Civil Procedure or Section 421 of the Code of Criminal Procedure or any other like provision of any other law for the time being in force.

The words "Admission", "For Admission or similar expressions shall be construed according.

Whereupon such preliminary perusal or hearing the Court decides not to issue notice, the case is said to be dismissed summarily.

"To admit a case to Register" is defined under Rule 1 Clause (q) of this Chapter. It reads as under:

To Admit a Case to Register" or "To Register a case" means entering the same in the appropriate register and giving a number in accordance with the practice of the Court after the Registrar is satisfied that the papers of the particular case have been presented to the High Court within the time, if any, limited therefore by any law for the time being in force, that proper court fee, if any, payable in respect of those papers has been paid, that all enclosures required by or under these Rules have been furnished and that ht papers in all respects comply with the provisions of law and of these Rules applicable to the same relating to the presentation of such papers.

By reading of the definition "to admit a case" indicates that the matter if it is listed for admission, it should be dealt with for preliminary hearing under the provisions of Order XLI Rule 11 or similar provisions. Rule 6 of this Chapter reads as under:

6. In cases of Second Appeals and of Appeals against orders against which an appeal lies under the law applicable to them only upon specified conditions or restrictions, the enclosures mentioned in Rule 5 need not be furnished along with the memorandum of appeal, but shall be furnished within seven days from the date on which the admission of the appeal is notified on the notice board of the Court. This rule shall also apply to appeals presented after the expiry of the period prescribed therefor by law and also to appeals presented in forma pauperis.

In order to appreciate the contentions raised by the parties, it may be relevant to read the provisions of Chapter XIII also, which deals with issue and service of notice. Rule 1 of this Chapter states as under:

1. When cases are admitted and notice to respondents directed therein, the Registrar shall cause notice to issue in appropriate forms prescribed for the purpose, signed by the Registrar and sealed with the seal of the Court.

Every such notice shall be accompanied by a copy of the memorandum of appeal or petition or similar principal pleading in the matter to which the notice relates.

By reading of definition "to admit a case" and Chapter VI dealing with First Appeal clearly indicates that notice could be issued to the respondents only at the direction of the Court. The Registry shall cause notice only after the matter is admitted or the notice is directed. Chapter XV of the Rules deals with posting and adjournments of the case. Under Rule 1, list of all cases Page 0024 admitted either by the Registrar or by the Court, shall be put up on the Notice Board of the Court and such list shall contain the following particulars:

(a) Number of the case on the file of the Lower Court;

(b) Number of the case on the file of the High Court;

(c) And the name of the Advocate or the party presenting the same.

Rule-2 deals with cases shall ordinarily be posted for admission within a fortnight of presentation if the papers are in order. A list of such case shall be put on the Notice Board of the High Court giving the same particulars as are mentioned in the last preceding rule. By reading of these rules, they do not indicate that the First Appeals are not required to be listed for admission. The procedure contemplated under the Rules clearly indicates that the Registry is required to notify the matters for admission and it is only after the Court directs the issue of notice, the Registry will cause notice to the respondents and in this regard, the appellant is required to furnish necessary process fee, cover, acknowledgement, appeal memo in such number as may be required in a given case. Non-mention of the admission under Rule 5 of Chapter VI, does not mean that the matter is automatically admitted. Section 128 of CPC clearly indicates that Rules framed by the High Court should not be inconsistent with the provisions of the body of the Code. Reference to Order XLI Rule 11 in the definition of to admit a case and the provisions of Order XLI Rule 11 and other provisions of the Rules framed by this Court do not indicate that the first appeal shall not be dismissed at the stage of admission.

23. A decision relied on by the learned Counsel for the appellant (supra) is a matter arising under the provisions of Companies Act under the original jurisdiction of the Bombay High Court and not on the appellate jurisdiction. An appeal also arises from the original decree passed by the Bombay High Court before the same Court and in this regard, Rules are framed by the Bombay High Court dealing with the filing of the appeal. The Rules framed by the said Court did not provide for placing the appeal for admission under Rule 966-A. In interpretation of the said Rule, the Apex Court found that dismissal of the appeal in limine is incorrect and held that the matter has to be admitted. As regards to the another decision of the Apex Court (supra) is concerned, there is no dispute as to the principle enunciated in the said decision, inasmuch as the first appeal is a valuable right to the parties and is required to be heard both on law and on facts and the Appellate Court is required to address itself to all the issues by giving reasons. That does not mean that after hearing appellant, appeal cannot be dismissed at the admission stage. Learned Counsel for the respondents has not disputed that hearing on merit includes hearing on all the issues. As such, this decision relied on by the learned Counsel for the appellant is of no assistance. Learned Counsel for the appellant has also relied on another decision (supra), which deals with summary dismissal of the appeal. There is no dispute on the principle enunciated in the said decision inasmuch as no appeal could be dismissed summarily without addressing to all the issues involved in the case.

24. In the light of the provisions of Order XLI Rule 11, Section 128 of CPC and the provisions of the Rules made by this Court under Section 122 of Page 0025 CPC, we do not find there is any justification in the contention of the learned Counsel for the appellant that the appeal cannot be disposed of at the admission stage. We hold that the Regular First Appeals are required to be posted for admission and also are required to be heard for admission and it is only after the Court satisfies itself of the prima facie case for admission, either the Court may admit or may issue notice, if no case is made out for admission or if the matter could be disposed of after hearing both the contesting sides at the stage of admission itself the Court can dispose of the appeal at the admission stage.

25. As regards to the second contention of the learned Counsel for the appellant that there is no valid termination of notice, he submitted that the appellant was not issued with the notice. It has come in the evidence of DW-1 that the notice was served by affixture. It has also come in tine evidence that the address mentioned on the cover was correct and it was his residential address. It has also come in the evidence that even the notice sent by the Court is not received by the appellant. Section 106 of the Transfer of Property Act requires the notice to be served either by registered post acknowledgement due or by tender or by affixture. In this case, the notice is returned as it was refused by the appellant. Further there is a service of notice by affixture. In our considered view, in the light of the admission of DW-1 in his cross-examination that the address shown on the cover of the notice is his residential address and in the light of the notice having been sent by registered post acknowledgement due, the cover containing the document and being properly stamped, properly addressed with acknowledgement due, the shara of the Postal Department carries a presumption under Section 27 of the General Clauses Act and also under Section 114 of the Evidence Act and the appellant, who denies the same, is required to lead rebuttal evidence. In this case, the appellant having admitted the address being correct address, we hold that the service is effected in terms of Section 106 of the T.P. Act.

26. Even otherwise, in this case, the notice is not required to be served on the appellant. It is not in dispute that the appellant was put in possession as a tenant under Ex.P1 - lease deed and the said lease deed is admittedly for a period of five years. It is also not in dispute that the said period has expired. Section 111 of the T.P. Act deals with determination of the tenancy. Once the tenancy gets determined by virtue of expiry of the time, no further determination arises in law. Appellant after the expiry of lease period continued in possession under the protection of Karnataka Rent Control Act as a statutory tenant. It is on record that the respondent Nos. 1 to 6 had filed H.R.C. No. 1069/1997 as the old Section 31 of the Karnataka Rent Control Act at relevant point of time was struck down. It is also not in dispute that the said HRC case was dismissed as not maintainable. As such, the only procedure that was available for the respondents - landlords was to seek ejectment of tenant by instituting suit. In this case, the respondents - landlords had issued notice dated 6.6.1999 terminating the tenancy and the suit is filed alter the stipulated period under Section 106 of T.P. Act. It is also on record that the tenancy is monthly tenancy. Even otherwise, tenant continuing as a statutory tenant after the expiry of the contractual period, does not require another notice of termination of his tenancy. In this Page 0026 regard, learned Counsel for the respondents-landlords relied on the decisions reported in AIR 1978 SC 1518 (supra). The Apex Court referring to Sections 106, 111(a) and 116 has held a statutory tenant is not entitled to notice as envisaged by Section 106 of the T.P. Act before an action in ejectment is commenced against him under any of the enabling provisions of the relevant Rent Restriction Act. Such a tenant for the sake of convenience is described as a statutory tenant. It would not be open to such a tenant to urge by way of defence, in a suit for ejectment brought against him under the provisions of the Rent Restriction Act, that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.

27. Section 111 prescribes mode of determination of tenancy. Once the lease determines in any of the modes prescribed under Section 111, the contract comes to an end and there is no question of giving a notice to quit to such lessee, who continued in possession after determination of lease i.e., after the contract comes to an end, there is no question of terminating the contract over and again by notice. Learned Counsel for the respondents - landlords also relied on a decision reported in AIR 1964 SC 461 (supra) wherein it is envisaged that the termination of tenancy by efflux of time, the question of statutory notice under Section 106 does not arise. In the similar circumstances, the Apex Court in a judgment reported in AIR 1988 SC 1845 has held that no notice is necessary. In the identical circumstances, in a decision reported in (1981) 2 SCC 199 (supra), it is reiterated that no notice is necessary in case of the expiry of the lease by efflux of time. From the principles enunciated by the Apex Court in the decisions referred to above and from the reading of the provisions of Section 111 of the T.P. Act, it is clear that on the expiry of the lease period by efflux of time, no further termination of the tenancy arises as no subsisting contract remains after the lease period is over.

28. In this case, the respondents-landlords have shown that there is no requirement of issue of notice, still they had issued notice, terminating the tenancy. There is no dispute that the lease period has expired much before the filing of the suit. On appreciation of the evidence and from the findings of the trial court, it is clear that the trial court relying on the evidence of DW-1 and also relying on the principles enunciated by the Apex Court, has found that the lease period has expired and the respondents-landlords had issued notice. Hence, in the light of the evidence and findings of the trial court, we find no justification to interfere with the said finding.

29. It is clear from the evidence that the appellant continued in possession only because of the protection under the provisions of Rent Control Act and that possession cannot be relegated to the possession of tenant holding over under Section 116 of the T.P. Act. Even otherwise, payment of rent by statutory tenant after the efflux of time does not confer the status of tenant holding over. As such, we hold that the termination of tenancy under Section 106 of the T.P. Act by the respondents - landlords is valid and even otherwise also by efflux of time, the tenancy has got terminated.

30. As regards to the mesne profits, learned Counsel for the appellant had relied on a decision reported in ILR 1991(2) Kar 1492 and submitted that a tenant even after determination of lease, who is protected under the Rent Page 0027 Control Act as a statutory tenant, is not liable to pay the mesne profits more than the agreed rent. From the reading of the said judgment, it is clear that Section 31 of the Karnataka Rent Control Act did not provide for the eviction of tenant of a premises used for non-residential purpose and rent of which is more than Rs. 500/-. Under Chapter V of the Rent Control Act, however, all other provisions were applicable. Section 3 Clause (r) defines the tenant and under the definition of the tenant, even tenant, who is continuing in possession after the expiry of the lease period will remain as a statutory tenant. If the statutory tenant is liable to pay only the rent, the question that arises is, whether he is liable to pay the mesne profits because his lease period has expired. In the light of the decision of the Division Bench of this Court referred to above and in the light of the provisions of Rent Control Act being made applicable to tenants, whose eviction was barred under Section 31 of the said Act, they are not liable to pay the mesne profits more than the agreed rent as long as they are protected as statutory tenant.

31. However, in this case, the question is as to whether the appellant is only required to pay the rent agreed by way of mesne profits till he delivers possession or he is required to pay the damages for the period after the repeal of the Karnataka Rent Control Act? The Karnataka Rent Control Act is repealed by virtue of the Karnataka Rent Act, which came into force on 31.12.2001. No doubt till 31.12.2001, the appellant continued to be a statutory tenant and in law was liable to pay only rent. Accordingly, we hold that the appellant is liable to pay the damages at the agreed rent till 31.12.2001. But for the remaining period, since the Rent Act is not applicable to the non-residential premises, having plinth area of more than 14 square meters, the appellant will not continue as a statutory tenant and said benefit is not available under the Rent Act. As such, for the remaining period from 1.1.2002 onwards, the appellant is not protected as a statutory tenant and is liable to pay the damages or mesne profits. In this case, the trial court on the evidence available on record has found that the tenant is liable to pay mesne profits at the rate of Rs. 8,760/ per month. Accordingly, we hold that the appellant is liable to pay mesne profits from 1.1.2002 till the delivery of possession at the rate of Rs. 8,760/- per month. We also hold that the trial court has a power to determine the mesne profits under the provisions of Order XX Rule 12(ba) in case the evidence is available on record. Having regard to the facts and circumstances of this case, insofar as mesne profits is concerned, we modify the judgment and decree, holding that the appellant is liable to pay the damages at the rate of agreed rent upto 31.12.2001 and for the remaining period, the appellant is liable to pay the damages as determined by the trial court till the delivery of possession.

Accordingly, the appeal is partly allowed. The judgment and decree dated 7th January 2006 in O.S. No. 8183/1999 on the file of the XV Additional City Civil & Sessions Judge, Bangalore, insofar as granting of mesne profits is concerned, is modified by awarding the mesne profits at the rate of agreed rent till 31.12.2001 and for the remaining period, the damages at the rate of Rs. 8,760/-p.m. Except this, on all other points, the judgment and decree of the trial court is confirmed.

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Karnataka High Court