Bangalore District Court
M/S Rathna & Company vs Sri. B.N. Shivalingamurthy on 17 December, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 17th DAY OF DECEMBER 2016
OS.NO.932 OF 2015
PLAINTIFF/S M/S RATHNA & COMPANY
No.40:42, 11TH CROSS,
2ND STAGE, 1ST MAIN ROAD,
KENGERI SATELLITE TOWN,
BANGALORE
BY ITS MANAGING PARTNER,
SRI. C. SADEYAPPAN
AGED ABOUT 50 YEARS.
(by M/s Jayaraj & Assocaites, Adv.)
Versus
DEFENDANT/S SRI. B.N. SHIVALINGAMURTHY
S/O LATE B.V. NARAYAN
AGED ABOUT 52 YEARS,
RESIDINGA The No. 236,
6TH MAIN ROAD,
KENGERI SATELLITE TOWN
BANGALORE - 560 060.
(By Sri. R.S.R. Adv.)
Date of Institution of the 29.01.2015
suit
Nature of suit Suit for permanent
injunction
2
O.S.No. 932 / 2015
Date of commencement of 17.11.2015
recording of evidence.
Date on which judgment 17.12.2016
was pronounced.
Total Duration. Years Months Days
01 10 18
XXXVII ACCJ, BANGALORE
3
O.S.No. 932 / 2015
JUDGMENT
Plaintiff filed this suit for permanent injunction against defendant restraining him from interfering with the possession of suit schedule property and also not to evict the plaintiff without due process of law from the suit schedule property.
2. The brief facts of the case are as follows.
The suit schedule property is shown as under.
SCHEDULE PROPERTY All that piece and parcel of the premises bearing Sy. No. 106/2, Kengeri Municipal Katha, No. 558/2 and 889/2 situated at Kengeri Village, Kengeri Hobli, Bangalore South Taluk, measuring East to West 70 ft. an North to South 170 ft. and bounded on -
East by : Mori (Hall)
West by : Road from Mysore Road towards
defendant's property.
North by : Mysore Highway
South by : Property belonging to defendant.
Plaintiff is a tenant under the defendant with
respect to the suit schedule property by virtue of lease agreement dated 26.11.2004 and monthly rental is fixed at Rs. 15,000/-. At present the rate of rent is at Rs. 17,000/- p.m. According to the plaintiff he has been paying the rent regularly and punctually and no default 4 O.S.No. 932 / 2015 in payment of rent. The plaintiff is running a business of selling automobile workshop materials and service station, weigh-bridge and building materials in the suit schedule property. It was agreed between the parties to pay monthly rent within 10th of every month. It was further agreed between the parties that plaintiff shall not carry on any other business, which is prohibiting under law. The plaintiff was permitted to put up construction i.e. office premises and work shop with sheet roof and compound wall around suit schedule property. Plaintiff has obtained power connection from the authorities concerned at the cost of defendant and carrying on his business. Plaintiff has paid a sum of Rs. 4 lakhs as security deposit subject to refund at the time of delivering the possession of suit schedule property to the defendant. It was agreed to enhance the rent by Rs. 1,000/- per annum. There is renewal clause in the rent agreement and lease period has been renewed from time to time. That being the position, the defendant issued notice on 14.05.2015 to the plaintiff, terminating the tenancy of the plaintiff. In spite of service of sending rent with notice the defendant did not receive the same. It is submitted 5 O.S.No. 932 / 2015 that defendant is intended to dispossess the plaintiff from the suit schedule property without due process of law and attempt was made on 20.01.2015, 21.01.2015 and 22.01.2015, respectively. It is contended that plaintiff cannot be evicted without due process of law. Since there is threat to the possession of the plaintiff over the suit schedule property the plaintiff was constrained to file this suit.
3. On being summoned, defendant put appearance and filed written statement. It is admitted that the plaintiff is a tenant under defendant. It is submitted that a rental agreement was executed on 16.06.2010 for a period of 3 years and expired on 15.06.2013. Thereafter lease period was not renewed. It is submitted that present rate of rent is at Rs. 17,000/-. It is also admitted that it was agreed to enhance the rent for Rs. 1,000/- per annum after expiry of 3 years. According to this defendant, a quit notice came to be issued on 14.05.2015 and tenancy of the plaintiff was terminated. It is submitted that plaintiff himself has violated the conditions of rental agreement. It is alleged that infact, 6 O.S.No. 932 / 2015 plaintiff is not carrying on any automobile work shop, weigh -bridge and service station in the suit schedule property. On the other hand, plaintiff has sub-let the suit schedule property in favour of one Sri. Basha @ Chatri Basha and started to receive the rent from him. It is submitted that plaintiff never intended to dispossess the plaintiff from the suit schedule property without due process of law. Since already quit notice came to be issued defendant is going to file ejectment suit against the plaintiff. Plaintiff is irregular in paying monthly rental and became defaulter. There is no cause of action to file this suit. Since plaintiff has sub-let the suit schedule property in favour of third party, possession of the plaintiff is unlawful. It is submitted that plaintiff is not in lawful possession of the suit schedule property. On these grounds the defendant seeks dismissal of the suit with cost.
4. Out of the above pleadings, my predecessor in office has farmed the following issues.
1. Whether the plaintiff proves that he is in lawful possession of suit schedule property as a tenant?
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O.S.No. 932 / 2015
2. Whether the plaintiff proves that, interference caused by the defendant?
3. What order or decree?
5. During the course of trial, Manager of the plaintiff company was examined as PW 1 and Ex.P1 to P25 got marked. Defendant was examined as DW 1 and Ex.D1 to D5 got marked.
6. Heard arguments of learned counsels for plaintiff and defendant.
7. My findings on the above issues are as under.
Issue No.1 : In Negative
Issue No.2 : In Negative
Issue No.3 : As per final order,
for the following.
REASONS
8. ISSUE NO.1: This issue has been framed in such
a fashion that whether plaintiff proves his lawful possession over the suit schedule property as on the date of the filing of the suit. In other words, the burden is on the plaintiff to prove that he is in lawful possession of suit schedule property. Of course, there is no dispute regarding relationship of landlord and tenant, till the 8 O.S.No. 932 / 2015 issuance of termination notice dated 14.05.2015. It discloses that plaintiff company was indicted as tenant under the defendant by virtue of the rental agreement dated 16.11.2004. It has come in evidence that the tenancy period was for 3 years. It can be noticed that though this rental agreement is not produced by either party fact remains that it is an unregistered rental agreement. A rental agreement exceeds the period of 11 months compulsorily requires registration. According to the plaintiff the tenancy period has been renewed from time to time. Defendant has not admitted this renewal of tenancy as contended by the plaintiff. It has come in the evidence that no tenancy period has been renewed after 2013. In the absence of any written rental agreement, only scope is that this tenancy is oral tenancy. There is no dispute that present rate of rent is Rs. 17,000/-. Earlier it was fixed at Rs. 15,000/- p.m. On going through the evidence placed on record, it goes to very clear that mutual terms and conditions have been incorporated in the rental agreement. It is also not in dispute that the defendant as owner / landlord of the plaintiff issued a quit notice dated 14.05.2015 through 9 O.S.No. 932 / 2015 registered post against the plaintiff. It is pertinent to note that the tenancy of the plaintiff has been terminated on the ground that he has sub-let the suit schedule property in favour of one Basha @ Chatri Basha who is carrying on the scrap business in the suit schedule property. It can be further noticed that this termination notice came to be issued to Basha @ Chatri Basha also. According to the defendant, plaintiff refused to take the notice. However, he replied to the said notice. Ex.P22 is the copy of the quit notice dated 14.05.2015. By this notice, plaintiff and Basha @ Chatri Basha were called upon to deliver the vacant possession of suit schedule property within 15 days from the date of receipt of the notice. Ex.P23 is reply given by plaintiff dated 28.05.2015. Of course, plaintiff has denied the allegations made against him to the effect that he has sub-let the suit schedule property in favour of one Basha @ Chatri Basha. According to plaintiff the said Basha @ Chatri Basha is the worker under him and he is carrying on the business in the suit schedule property. It is pertinent to note that the quit notice served on Basha @ Chatri Basha. Ex.D5 is the postal acknowledgement for 10 O.S.No. 932 / 2015 having received the said notice by Basha @ Chatri Basha. In spite of service of notice, the said Basha @ Chatri Basha has not chosen to give any reply to the said notice. In the ordinary course, it is expected that if really the suit schedule property is not sub-let in favour of any sub-tenant, the sub-tenant would have answered the notice. Section 114 of Indian Evidence Act, deals with existence of presumption of certain facts. As per Section 114 of Evidence Act, the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. In the case on hand, Basha @ Chatri Basha has not chosen to give any reply to the said notice. On the other hand, plaintiff has admitted to the extent that the said Basha @ Chatri Basha is worker under him. It is settled principle of law that there is no direct evidence in case of sub-letting. A sub-letting is required to be proved only by indirect evidence. It can be noticed that the plaintiff has not produced any recent documents to show that he is carrying on his business of automobiles, weigh-bridge, 11 O.S.No. 932 / 2015 service station etc. in the suit schedule property. Of course, the plaintiff has produced licence issued by the Kengeri Municipality. It is dated 11.08.2005. Whether this licence has been renewed or not. Generally, a licence is required to be renewed for every year or after expiry of particular period. Plaintiff has produced some electricity bills of the year 2011. It can be noticed that all these receipts are pertaining to prior to filing of the suit. Nothing was prevented the plaintiff to produce the recent documents to show that he is still carrying his business in the schedule premises. Of course, some photographs have been produced by the plaintiff. On considering these photographs it cannot be understood that still the plaintiff is carrying on his business, as a tenant in the schedule premises. Even Basha @ Chatri Basha was not examined on behalf of the plaintiff. A serious doubt is created with regard to sub-letting of suit schedule property in favour of Basha @ Chatri Basha. The burden is on the plaintiff to prove that he ha snot sub-let the suit schedule property in favour of any third party. On considering the available evidence placed before this court, an adverse inference can be drawn under Section 12 O.S.No. 932 / 2015 114 of Evidence Act with regard to creating sub-tenancy in favourof Basha @ Chatri Basha. Of course, this is not a proper suit to give any specific finding whether suit schedule property has been sub-let or not by the plaintiff. However, in order to give a finding on the question of lawful possession of the plaintiff over the suit schedule property, a minimum discussion is necessary on this aspect. As per Ex.P23 defendant terminated the tenancy of the plaintiff over the suit schedule property. It is the principle of law that from the date of service of quit notice, the possession of the tenant is unlawful possession. Of course, there is statutory protection to the tenant from dispossessing his without due process of law. For that reason compensation / damage is claimed against the tenant from the date of termination of the tenancy till defendant is in possession. When the defendant is not interested to continue the tenancy of the plaintiff and it was terminated by issuing quit notice naturally the possession of tenant becomes unlawful. In the case on hand, there is every reason to believe that the plaintiff has sub-let the suit schedule property in favour of Basha @ Chatri Basha and collecting the rent from 13 O.S.No. 932 / 2015 him. That being the position, it cannot be held that the possession of the plaintiff is lawful possession as on the date of the filing of the suit. Accordingly, I answer issue No.1 in negative.
9. ISSUE No.2: A specific finding has been already given to the effect that there is an evidence to show that plaintiff has sub-let the suit schedule property in favour of Basha @ Chatri Basha. If that being the position, a question of interference by the defendant does not arise. Even as per plaint averments, defendant tried to interfere with the possession on 20.01.2015, 21.05.2015, 22.01.2015. A serious allegation has been made in the plaint. In the ordinary course, if defendant had committed such an illegal act, it is expected that the plaintiff would have filed a complaint before the police. There is no evidence to show that the plaintiff has filed a complaint against the defendant. Mere allegation is not sufficient to prove the interference by defendant. When there is prima facie evidence to show that the plaintiff has sub-let the suit schedule property in favour of Basha @ Chatri Basha, question of interference as alleged by 14 O.S.No. 932 / 2015 plaintiff does not arise. Without further discussion, I answer issue No.2 in negative.
10. ISSUE No.3: The subject matter of this issue is granting of relief by the court. Plaintiff seeks grant of permanent injunction against defendant restraining him from dispossessing him without due process of law. Issues No.1 and 2 have been answered against plaintiff. Already quit notice has been issued against the plaintiff on 14.05.2015 and through this notice, tenancy has been terminated. There is a specific plea in the written statement to the effect that this defendant is about to initiate legal proceedings against plaintiff to evict him from the suit schedule property. This defendant is law- abiding citizen and plaintiff will be evicted by following due process of law. By this pleading the intention of the defendant can be gathered that he is not interested to dispossess the plaintiff forcibly. On the other hand, he is interested to initiate legal proceedings against the plaintiff in due course of time. That being the position and intention of the defendant, it is sufficient to protect the interest of the plaintiff if he is continued as tenant 15 O.S.No. 932 / 2015 under defendant. But there is evidence to show that plaintiff has but-let suit schedule property in favour of one Basha @ Chatri Basha and collecting rent from him. No reply has been given by Basha @ Chatri Basha. There is adverse interference to the effect that Basha @ Chatri Basha has admitted the plea of sub-letting by plaintiff. IN other words, it can be stated that plaintiff has not approached the court of law with clean hands. Section 38 of Specific Relief Act deals with grant of permanent injunction. It is equitable relief based on the sound principle of law. A court is required to exercise judicial discretion in granting relief of permanent injunction. The conduct of the plaintiff negatives the grant of permanent injunction. Section 41 of Specific Relief Act contemplates in what circumstances, injunction can be refused. As per Section 41 (i) when conduct of the plaintiff or his agent has been such as to disentitle him to be the assistance of the Court, in such event the court cannot grant injunction. In the case on hand, the plaintiff has not approached the court of law with clean hands. Certainly the person who approaches the court of law with un- cleaned hands, the court cannot extend the assistance to 16 O.S.No. 932 / 2015 him. So looking from any angle, the plaintiff is not entitled for any equitable relief of permanent injunction. Accordingly, I answer issue No.3 in negative.
11. In the result, I proceed to pass the following:
ORDER Suit is dismissed.
Parties are directed to bear their own cost. (Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 17th DAY OF DECEMBER 2016) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. C. Sadeyappan Documents marked on behalf of the plaintiff/s:
Ex.P1 - Trade licence
Ex.P2to11 - Electricity bills
Ex.P12 - Legal notice
Ex.P13to21- Photos
Ex.P22 - Legal notice
Ex.P23 - Reply notice
Ex.P24 - Postal acknowledgment
Ex.P25 - Postal receipt.
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O.S.No. 932 / 2015
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. Shivalingamurthy Documents marked on behalf of the Defendant/s:
Ex.D1 - Legal notice.
Ex.D2 - Postal receipt
Ex.D3 - Postal cover
Ex.D4 - Postal receipt
Ex.D5 - Postal acknowledgement
XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BANGALORE.
18
O.S.No. 932 / 2015
Judgment passed and pronounced in
the open court (vide separate judgment). The operation portion of the order reads thus -
Suit is dismissed.
Parties are directed to bear their own cost.
XXXVII ACCJ, (CCH-38)