Bangalore District Court
Mr.Anand Kumar Kshatriya vs Smt.Naayemah Noorie on 9 July, 2015
IN THE COURT OF V ADDL. SMALL CAUSES
JUDGE & XXIV A.C.M.M
Court of Small Causes, Mayo Hall Unit, Bangalore
(SCCH.20)
Dated this the 09th day of July, 2015
Present: Smt.K.BHAGYA,
B.Com., LL.B.
V Addl. Small Causes Judge & XXIV A.C.M.M.,
S.C.No.15018/2015
Plaintiff : Mr.Anand Kumar Kshatriya,
S/o Late Kishore M.K. alias Gulu,
Aged about 29 years,
Residing at No.52/1, Sham Kunj,
II Floor, Kalinga Rao Road,
Sampangiramnagar,
Bangalore -560 027.
(By Pleader Sri.S.A.H.Razvi)
:Vs:
Defendant : Smt.Naayemah Noorie,
D/o Mr.Nissar,
Aged about 29 years,
Residing at No.10/2, Ground Floor,
Gollar Lane, 1st Cross,
Commercial Street,
Bangalore-560 001.
(By Pleader Sri.P.H.Ramalingam)
******
(SCH-20) 2 SC 15018/15
J U D G M E N T
The plaintiff has filed the present suit against the defendant in respect of suit schedule property directing her to quit and deliver vacant possession of the same and also to pay damages at the rate of Rs.6,850-00 p.m. from the date of termination till the date of delivery of vacant possession of the suit schedule property to the plaintiff.
02. It is the case of the plaintiff that, the plaintiff is the absolute owner of the Northern portion of Commercial building consisting of shops and office units on the Ground, First and Second Floor bearing Municipal New No.10, Old No.2, situated at Gollar Lane, Commercial Street, 1st Cross, in BMP Ward No.79, PID No.79-40-10, New PID No.110- WO107-4-1, Bangalore-560 001. The defendant is a tenant in respect of the Ground Floor premises bearing No.10/2 situated at the above mentioned address, on a monthly rent of Rs.6,613-00. The tenancy is month to month tenancy and the suit schedule property is commercial one and it is older (SCH-20) 3 SC 15018/15 than 15 years, hence the Karnataka Rent Act shall not apply. Similarly the rent is more than Rs.3,500-00 p.m. and thereafter the said Act is not applicable.
03. It is further case of the plaintiff that, he was no longer interested in continuing the defendant's tenancy. Hence, he has issued a notice U/Sec 106 of T.P. Act dt:15-09-2014 terminating the tenancy of the defendant. However the defendant has not vacated the suit schedule property till now and thereafter the occupation of the defendant is unauthorized under law and thereafter the defendant is liable to be ejected. As the defendant has failed to deliver the suit schedule property and neglected to comply with the legal notice, the defendant is liable to pay a sum of Rs.6,850-00 p.m. as damages for unauthorized use and occupation of the same from the date of termination of tenancy. The defendant had not paid the rent for the month of September 2014 for a sum of Rs.6,613-00 which is adjusted in advance amount paid by the defendant. (SCH-20) 4 SC 15018/15 So, the plaintiff came up with the present suit before this Court.
04. After registration of the suit, the summons have been issued to the defendant. She has appeared before the Court through her counsel and filed her written statement, in which she has denied all the averments made in the plaint. Further she has also contended that, the suit is not maintainable either in law or on facts and the same is liable to be dismissed in limine. She further contended that, she entered into an agreement with Sri.Kishore.M.K, in respect of the schedule property which is in her possession with an unregistered lease deed between the said Kishore and the defendant which is meant for the purpose of occupation for a period of 12 months which is in her possession and the said Kishore was the owner of the schedule property and he was passed away leaving behind many other heirs and legal representatives who succeeded to his estate. The plaintiff is not alone absolute owner of the schedule property. All the legal representatives of said late Kishore have not filed the plaint jointly against the defendant, on (SCH-20) 5 SC 15018/15 this ground alone the suit is liable to be dismissed for non-joinder of necessary parties.
05. She has further contended that, apart from paying the amount demanded as lumpsum, the respondent has paid further amount of Rs.2,25,000-00 to said Kishore by way of cheque and cash as a refundable security deposit. Even to this day she is regular in payment of rents and she has not defaulter in payment of rents and the plaintiff has not issued any receipt for the rents received. The plaintiff in order to rent out the schedule property to the third parties for higher rent has created a false story. At no point of time the plaintiff requested the defendant to vacate the schedule property, on the contrary the plaintiff was insisting upon to enhance the rent and to pay huge security refundable deposit as the claim was abnormal. There is no cause of action to file this suit and the alleged cause of action set out by the plaintiff is false and frivolous. By contending like this, the defendant prayed to dismiss the suit. (SCH-20) 6 SC 15018/15
SCHEDULE All that part and parcel of the Ground Floor Premises bearing No.10/2, situated at New No.10, Old No.2, Gollar Lane, Commercial Street 1st Cross, in BMP Ward No.79, PID No.79-40-10, New PID No.110-WO107-4-1, Bangalore-560 001. Measurement: 10 x 9 ft = 90 sq. ft (Ninety square feet) Carpet Area and bounded as follows:
East by : Shop No.10/1
West by : Shop No.10/3
North by : Private property
South by : Common Passage
06. Now the points that arises for my consideration is as follows:
01. Whether the plaintiff proves that, defendant is the tenant under him in respect of suit schedule property?
02. Whether the plaintiff has terminated the tenancy of the defendant as per law?
03. Whether the plaintiff is entitled for relief sought in the suit?
04. What order?(SCH-20) 7 SC 15018/15
07. In order to prove the case of the plaintiff, plaintiff himself got examined as P.W.1 and documents Ex.P.1 to Ex.P.11 got marked on his behalf. On the otherhand, the defendant has not led any evidence inspite of giving sufficient opportunity.
08. Heard the arguments of both side.
09. My answer to the above points are as under:
Point No.1 In the affirmative
Point No.2 In the affirmative
Point No.3 In the affirmative
Point No.4 As per final order
for the following:
REASONS
10. Point Nos.1 to 3:- As these points are interlinked with each other, in order to avoid the repetition of facts, I took these points together for discussion.
11. Here, I have already observed above, the plaintiff has filed this suit against the defendant for (SCH-20) 8 SC 15018/15 the vacant possession of the suit schedule premises and also for damages at the rate of Rs.6,850-00 p.m. from the date of termination till the date of delivery of vacant possession of the suit schedule premises.
12. It is the case of the plaintiff that, the defendant is a tenant under him in respect of the suit schedule premises. But she is a chronic defaulter in payment of rents. Moreover he is in need of the suit schedule premises for his bonafide use and occupation. So he has terminated the tenancy of the defendant by issuing legal notice.
13. But the defence of the defendant is that, she entered into an agreement with Sri.Kishore.M.K, in respect of the schedule property which is in her possession with an unregistered lease deed for the purpose of occupation for a period of 12 months and the said Kishore was the owner of the schedule property and he was passed away leaving behind many other heirs and legal representatives who succeeded to his estate. The plaintiff is not alone absolute owner of the schedule property. All the legal representatives of said late Kishore have not filed (SCH-20) 9 SC 15018/15 the plaint jointly against the defendant, on this ground alone the suit is liable to be dismissed for non-joinder of necessary parties.
14. The plaintiff by name Sri.Anand Kumar Kshatriya filed his affidavit in lieu of his chief examination as P.W.1 in which he has reiterated all the averments made in the plaint itself. He has also produced 11 documents i.e., Ex.P.1 is the copy of Deed of Partition dt:08-08-2014 entered into between Mr.Anand Kumar Kshatriya-plaintiff and Mr.Yogesh Kshatriya, the brother of the plaintiff. Ex.P.2 is the copy of Death certificate of Kishore.M.K. Ex.P.3 & Ex.P.4 are the Rent receipts counterfoils. Ex.P.5 to Ex.P.7 are the Central Bank of India cheque presented counterfoils. Ex.P.8 is the notarized copy of Central Bank of India Passbook of the plaintiff. Ex.P.9 is the Office copy of Legal notice dt:15-09-2014. Ex.P.10 is the RPAD receipt. Ex.P.11 is the Postal acknowledgment.
15. Here, the P.W.1 not been cross-examined by the advocate for defendant, though the defendant appeared before the Court through her counsel and (SCH-20) 10 SC 15018/15 filed her written statement by denying all the averments made in the plaint itself and also taken some specific contentions, not cross-examined and not adduced any evidence on her behalf to prove her contentions.
16. Moreover, the plaintiff got issued legal notice calling upon the defendant to vacate the suit schedule premises and to hand over the same. The said notice was served on the defendant, but she has not complied with the notice nor gave any reply.
17. The plaintiff has produced the Deed of partition to prove how he got the suit schedule property. He has also produced the Death certificate of his father Sri.Kishore.M.K. The rent receipt counterfoils reveal the monthly rent was Rs.6,613-00 which is in the name of this defendant. So, these documents reveal that, the plaintiff is the owner of the suit schedule property and the defendant is a tenant under the plaintiff.
18. Here, it is important to note that the evidence led by the plaintiff stands unrebutted. On the basis (SCH-20) 11 SC 15018/15 of evidence of P.W.1 along with Ex.P.1 to Ex.P.11, the plaintiff has successfully proved his case.
19. In this case the plaintiff also sought for damages at the rate of Rs.6,850-00 p.m. from the date of termination till the date of delivery of possession to the plaintiff. Here, the plaintiff sought for the damages merely at the rate of monthly rent. After the termination of the tenancy, the possession over the suit schedule property by the defendant becomes unauthorized occupation. Hence, from the date of termination of tenancy, till the date of handing over the vacant possession of the premises to the plaintiff, the defendant has to pay damages at the rate of Rs.6,850-00.
20. For the above said reasons and discussions, I answered point Nos.1 to 3 in the affirmative.
21. Point No.4:- In view of my findings on point Nos.1 to 3, I proceed to pass the following:
ORDER Suit is decreed with costs. (SCH-20) 12 SC 15018/15 The defendant is hereby directed to vacate and deliver vacant possession of the suit schedule premises to the plaintiff within 60 days from the date of this Order.
The defendant is also hereby directed to pay damages at the rate of Rs.6,850-00 p.m. from the date of termination of the tenancy, till the defendant hand over the vacant possession of the premises to the plaintiff.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in the open court on this day of 09th July, 2015).
(K.BHAGYA) V ASCJ & 24th ACMM Court of Small Causes, Mayo Hall Unit, Bangalore. ANNEXURES Plaintiff's Witnesses:
P.W.1 Anand Kumar Kshatriya
(SCH-20) 13 SC 15018/15
Plaintiff's Exhibits:
Ex.P.1 copy of Deed of Partition dt:08-08-2014
Ex.P.2 copy of Death certificate of Kishore.M.K
Ex.P.3 &
Ex.P.4 Rent receipts counterfoils
Ex.P.5 to
Ex.P.7 Central Bank of India cheque presented
counterfoils
Ex.P.8 notarized copy of Central Bank of India
Passbook of the plaintiff
Ex.P.9 Office copy of Legal notice dt:15-09-2014
Ex.P.10 RPAD receipt
Ex.P.11 Postal acknowledgment
Defendants Witnesses:
-Nil-
Defendants Exhibits:
-Nil-
(K.BHAGYA)
V ASCJ & 24th ACMM
Court of Small Causes,
Mayo Hall Unit, Bangalore.