Bangalore District Court
Shri.Mahadevaprasad vs Shri.R.Prashanth on 1 February, 2023
KABC020133732021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU. (SCCH-11)
DATED THIS THE 01ST DAY OF FEBRUARY - 2023
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
SC No.347/2021
PLAINTIFF:
Shri.Mahadevaprasad,
S/o.Late Muddappa,
Aged about 68 years,
R/at No.40, 9th Main, M.C.Layout,
Vijayanagar,
Bengaluru - 560040.
Rep by his Power of Attorney Holder,
Shri.B.Banumurthy,
S/o.Shri.B.Krishnamurthy Setty,
Aged about 52 years,
R/at No.22/1, 1st Main,
Sameerpura, Chamarajpet,
Bengaluru - 560 018.
Plaintiff is deceased and
Represented by his LR
1(a) Smt.Rajeshwari.M.R.,
SCCH-11 2 SC No.347/2021
W/o.Late.M.Mahadevaprasad,
Aged about 60 years,
R/at No.127, 8th Main Road,
4th Block, 4th Phase,
Basaveshwaranagar,
Bengaluru - 560 079.
(By Sri.V.B.Shivakumar, Adv.)
//Versus//
DEFENDANT:
Shri.R.Prashanth,
S/o.Smt.R.Rajeshwari and
Shri.Ramakrishnaiah Shetty,
Aged Major,
SMMS Market, S.V.Lane,
BBT Street, Ward No.28,
Mamulpet,
Bengaluru - 560 053.
Also At:
Shri.R.Prashanth,
S/o.Smt.R.Rajeshwari and
Shri.Ramakrishnaiah Shetty,
Aged Major,
Shop No.24/4, SMMS Market,
S.V.Lane (BBT Street), Ward No.28,
Mamulpet,
Bengaluru - 560 053.
(By Sri.T.Subramanya, Advocate)
JUDGMENT
This is a suit filed by the plaintiff against the defendant for SCCH-11 3 SC No.347/2021 relief of eviction and deliver of vacant possession of suit schedule property.
2. The case of the plaintiffs in brief is that:-
The plaintiff is unable to move out of his house, as such he has executed GPA in favour of Shri.B.Banumurthy to conduct the case. Earlier, the mother of defendant Smt.R.Rajeshwari was tenant in suit schedule premises for monthly rent of ₹.5,500/-.
After her demise, the defendant has been in possession of suit schedule premises as a tenant. The defendant paid rent up to 01.12.2020. Thereafter, no rent was paid to plaintiff. After demise of mother of defendant, he being the son of Late.R.Rajeshwari, he continued to occupy and remain in possession and occupation of suit schedule premises. There is outstanding arrears of rent due to plaintiff for a period of three months amounting to ₹.16,500/-. The plaintiff requested for payment of rent, but the defendant failed to pay rent. Further it is pleaded that suit schedule premises is required to accommodate to watchman and watchman is necessary to manage the entire building. The provisions of Karnataka Rent Act SCCH-11 4 SC No.347/2021 is not applicable to the facts of case and that the tenancy is from month to month tenancy and defendant is in occupation of suit schedule premises on monthly rent of ₹.5,500/- from 21.11.2006, which is more than the statutory rent fixed . Plaintiff has issued a Legal Notice to defendant through his advocate on 29.03.2021 calling up on the defendant to avail 15 days time from the date of receipt of notice and quit, vacate and handover the vacant physical possession of suit schedule premises to the plaintiff after removing all his belongings on 16 th day and also to pay the arrears of rent in a sum of ₹.16,500/-. The notice was served upon the defendant. The schedule shop premises is situated out of city and it is commercial property located in busy area and the monthly rent would fetch ₹.1,50,000/- which is prevailing rent in the area and plaintiff reserves right to claim mesne profit from the defendant at the rate of ₹.1,50,000/- per month. Hence, the suit.
3. On service of summons, the defendant appeared through his counsel and filed his written statement.
In his written statement, he has stated that his mother SCCH-11 5 SC No.347/2021 Smt.R.Rajeshwari had occupied the suit schedule premises as per the rent note dated: 21.11.2006 and she has done her business in suit schedule shop premises till her life time. Later on that shop was occupied by him and the owner of this shop had agreed to accept him as his tenant and use to receive the rents regularly till December 2020, he has paid up to date rent at the rate of ₹.5,500/- per month and he has tendered three cheques i.e., one cheque for ₹.5,500/- by putting the date as 10.01.2021 and the other two cheques for ₹..5,500/- each by putting the date as 12.01.2021 were given to the plaintiff all cheques enchased by plaintiff. Then there was no rent due up to December 2020. After death of his mother, he told to plaintiff that he will continue as tenant and then the plaintiff without any word of protest, he had agreed to remain in possession and occupation of suit schedule premises by him. Further it is contended that plaintiff demanded rent of ₹.11,000/- per month and asked to give some more amount as additional advance, but not specified the quantum of additional advance amount. At the first instance, he has not agreed for the demands of the plaintiff, SCCH-11 6 SC No.347/2021 then he had also decided to enhance the rents from ₹.5,500/- to ₹.9,000/- per month and offered it to plaintiff by considering the present cost of tax on the owners of building and also not to lose the good relationship of landlord and tenant. But the plaintiff not accepted his request and asked to vacate and hand over the possession of shop premises. Then he asked plaintiff to adjust the amount of ₹.1,00,000/-, which was given to him in the year 2015. Then the plaintiff told him he will execute the rent note in his name, but after receiving amount of ₹.1,00,000/-, he kept quiet and not executed any rent note. The plaintiff accepted the tenancy of him and use to receive the rents regularly. The plaintiff refused to accept for ₹.9,000/- as rent per month and he did not agree for ₹.11,000/- as rent. Then the plaintiff started to canvass that suit schedule premises is required for watchman. He has suitably replied to legal notice issued by plaintiff. The suit schedule shop premises is not required to plaintiff for his alleged bonafide use and occupation. It is plan to rent it out for higher rate of rent and advance after getting the shop vacated from him. Further he has sated that though there was no business in SCCH-11 7 SC No.347/2021 the year 2020, he was forced to close the shop without doing any business for Covid-19, he has paid the rents up to December 2020. Even after that also in the year 2021, the various problem was still continued and he is poor man and he is earning his bread running a Novelty Store under the name and style of M/s.Rajeshwari Novelties". He had also agreed for the enhancement of rent from ₹.5,500/- to ₹.9,000/- per month and asked to adjust the amount of ₹.1,00,000/- given by him in the year 2015. As this plaintiff had failed to execute the rent note as per his words in the name of defendant, all the receipts are flowing till today in the name of his mother. He had sent the rent at the rate of ₹.9,000/- per month to plaintiff covering upto 31.03.2021, but he was refused to receive the rent, then he has sent rent through RPAD cover with three cheques of ₹.27,000/-, then finally he has paid rent through RTGS. Hence, prays to dismiss the suit.
4. In order to prove case of plaintiff, the Power of Attorney Holder of Plaintiff stepped into witness box and filed an affidavit in lieu of chief examination by reiterating plaint SCCH-11 8 SC No.347/2021 averments and got produced and marked documents at Ex.P.1 to Ex.P12 and closed his side of evidence. Per contra, in order to disprove the case of plaintiff, the defendant himself stepped into witness box, filed an affidavit in lieu of chief examination by reiterating the averments of written statement and examined as DW1 and no documents have been marked on his behalf and closed his side of evidence.
5. I have heard arguments on both sides and perused the entire records.
6. The points that arise for my considerations are;
1) Whether the plaintiff proves jural
relationship of landlord and
tenant?
2) Whether plaintiff terminated the
tenancy of defendant by issuing
statutory quit notice?
3) What Order or decree?
7. My findings to the above points are as follows:
Point No.1 : In the Affirmative.
Point No.2 : In the Affirmative.SCCH-11 9 SC No.347/2021
Point No.3 : As per the final order; for the following :
REASONS
8. Point No.1 & 2 :- Both points are inter related, as such they are taken up together for discussion in order to avoid repetition of facts and evidence.
9. It is the case of plaintiff that he is the owner of suit schedule property. Earlier the mother of defendant was tenant and paying monthly rent of ₹.5,500/-. After demise of mother of defendant, the defendant continued as a tenant and paying rent up to 01.12.2020. The defendant is not paying rent regularly and the suit schedule premises is required for the occupation of watchman. He has issued legal notice calling upon the defendant to quit, vacate and handover the physical vacant possession of suit schedule premises.
10. The learned counsel for plaintiff vehemently argued that there is no dispute regarding relationship of landlord and tenant, he has issued legal notice calling upon the defendant to quit, vacate and handover the vacant physical possession of suit SCCH-11 10 SC No.347/2021 schedule premises. When plaintiff refused to accept rent the defendant deposited the amount in Bank account of plaintiff. The plaintiff not demanded to pay rent and not accepted the rent paid by the plaintiff. Further argued that under Sec.106 of Transfer of property Act proving of bonafide necessity is not required and termination of tenancy is sufficient. There is no written rent agreement, as such he has issued 15 days quit notice.
11. Per contra, the learned counsel for defendant vehemently argued that earlier mother of defendant was tenant, now the defendant is tenant in suit schedule premises. The defendant continued his business in suit schedule premises, after demise of his mother. There was no written rent agreement between plaintiff and defendant. Further the learned counsel for defendant vehemently argued that there is no dispute regarding relationship of landlord and tenant. Further the learned counsel for defendant argued that the defendant paying up to date rent to plaintiff even in the period of covid-19. There is no due rent from the side of defendant. When there was no due and SCCH-11 11 SC No.347/2021 defendant is not defaulter, then the suit is not maintainable. There is no bonafide claim, only to get more rent, he has filed this suit. The plaintiff has not proved bonafide necessity. Further the learned counsel for defendant vehemently argued that the plaintiff with an intention to get higher rent, he has filed this suit and the suit schedule premises is not required for occupation of watchman. The pleadings of plaintiff itself shows intention of plaintiff and it clearly shows that in order to get more rent he has filed this suit and not for any other bonafide necessity.
12. In addition to the arguments, the learned counsel for defendant also produced copy of Order XII Admissions. Further the defendant also relied on Chapter V of T.P.Act, "A lease of immovable property. I have carefully perused the Chapter V of T.P.Act and Admissions.
13. The plaintiff has produced Ex.P.6 to P.8 revenue documents to show that the plaintiff is owner of suit schedule premises and same is in the name of plaintiff. The defendant in his reply notice and also in his evidence, he has admitted that plaintiff is landlord and he is tenant in suit schedule premises. On SCCH-11 12 SC No.347/2021 perusal of entire record there is no dispute regarding relationship of landlord and tenant. So, there is no need to discuss more on relationship of land lord and tenant.
14. The specific contention of defendant is that he has paid up to date rent to plaintiff and there is no bonofide necessity, as such the suit is not maintainable.
15. PW.1 in his cross examination, he has admitted that the plaintiff has received rent up to September 2022 and there is no dispute regarding rent paid by defendant. But the case of plaintiff is that he has not received the rent, but the defendant has credited the rent to his Bank account as he has not agreed to receive rent from defendant. PW.1 also admitted that defendant credited the rent to Bank account of plaintiff through NEFT. On meticulous perusal of cross examination of PW.1, there is no due of rent.
16. The case of defendant that plaintiff demanded to pay rent of ₹.11,000/- per month, but he only offered to pay ₹.9,000/- per month, as such the plaintiff is trying to evict him from suit SCCH-11 13 SC No.347/2021 schedule premises. DW.1 in his cross examination admitted that after death of her mother, he was paying rent of ₹.5,500/- per month. Further in his cross examination, he has deposed that the plaintiff demanded to pay ₹.11,000/- and additional advance amount, for that he has refused to pay and he offered to pay only ₹.9,000/-. Further he has admitted that he has sent ₹.27,000/- of Cheque through RPAD and it was refused by plaintiff and thereafter he has credited ₹.27,000/- through NEFT. Further he has admitted that the plaintiff not demanded to pay ₹.27,000/-.
17. Further on perusal of cross examination of DW.1, he is paying rent of ₹.9,000/- voluntarily to plaintiff through NEFT. The specific contention of defendant that the plaintiff accepted the rent, as such the suit is not maintainable as per the provisions of T.P.Act. On meticulous perusal of entire case of plaintiff and defendant, there is difference in fixing of quantum of rent. On perusal of cross examination of Dw1, the plaintiff not accepted the rent offered by defendant but the defendant himself depositing rent to the Bank account of plaintiff. On perusal of SCCH-11 14 SC No.347/2021 entire record it is gathered that the plaintiff not accepted the rent offered by defendant, then it cannot be said that plaintiff accepted the rent offered by defendant and he agreed to continue the tenancy of defendant. Further on perusal of record it gathered that plaintiff not intend to continue defendant as his tenant.
18. Now the plaintiff contending that the suit schedule premises is required for accommodation of watchman. But the contention of defendant that the intention of plaintiff only to evict the defendant from suit schedule premises and to let the suit schedule premises to some other person to get more rent. The learned counsel for defendant by referring to legal notice, plaint and evidence of PW.1 vehemently argued that the intention of plaintiff is only to evict the defendant to get more rent. Further the argument of defendant that the plaintiff has not proved bonafide necessity.
19. Admittedly, there was no written agreement between plaintiff and defendant, when there was no written rent SCCH-11 15 SC No.347/2021 agreement between plaintiff and defendant then section Sec.106 of T.P.Act is applicable.
Sec.106 of T.P.Act reads as follows:
"(1) In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by fifteen days notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
"(3) 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."
Case on hand, the plaintiff issued legal notice to defendant. As per Ex.P.2 on 29.03.2021 calling upon the defendant to quit and vacate the suit schedule premises. The defendant also admitted issuance of legal notice and he has also issued a reply notice to said legal notice as per Ex.P.11. So, admittedly the plaintiff issued a legal notice as per Sec.106 of T.P.Act, by terminating the tenancy of defendant.
SCCH-11 16 SC No.347/2021
20. The learned counsel for plaintiff relied upon decisions reported in AIR 2006 Supreme Court 1734 in between Sarup Singh Gupta Vs. S.Jagdish Singh and Ors, wherein the Hon'ble Supreme Court of India held at Para.8 as follows:
"8. In the instant case, as we have noticed earlier, two notices to quit were given on 10 th February, 1979 and 17th Marc, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there by any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction SCCH-11 17 SC No.347/2021 proceeding by the landlord suggests otherwise."
21. Further, the learned counsel for plaintiff also relied upon decision reported in AIR 2005 Supreme Court 2905 in between Shanti Prasad Devi and Ors Vs. Shankar Mahto and Ors., wherein the Hon'ble Supreme Court of India held at Para.18 as follows:
"18. The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e., on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was 'an agreement to the contrary' within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clause (7) and (9) for seeking renewal there could be no implied renewal by holding over on mere acceptance of the rent offered by the lease. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was holding over as a lessee within the meaning of Section 116 of Transfer of Property Act."
22. Further, the learned counsel for plaintiff relied upon SCCH-11 18 SC No.347/2021 decision reported in 2019 (2) AKR 774 in between K.S.Mani S/o.Krishnaswamy Mudliar Vs. K.Vasudeva S/o.M.Kariyanna, wherein the Hon'ble Supreme Court of India at Para.15 held as follows:
"15. The learned counsel for the appellants raised another point that the respondents lost right to evict the appellants having accepted rent from the former after issuance of termination notice. He submitted that the appellants became tenants by holding over according to Section 116 of the Act. In support of his argument he has relied upon the judgment of this court in the case of M/s.Auto World (AIR 2015 KAR 128) (supra). I do not think that this argument can be accepted. The respondents do not dispute the fact of receiving rents after issuing termination notice and also during pendency of suit. Mere acceptance of rent after termination of lease does not result in waiver of right to evict a tenant. It all depends on the intention of the landlord. The judgment of the Supreme Court in the case of Swaroop Singh Gupta Vs. Jagadish Singh (AIR 2006 SC 1734) and a judgment of this court in the case of Vasanth Kumar.D.Shah V. Sugandha Raman (2006 (6) AIR KAR R 308) were cited before the learned judge who decided the case of Auto World (supra). It was held that the principles laid down in the judgment of the Supreme Court and this Court were best authorities for the cases decided therein. Another earlier judgment of the Supreme Court in the case of Tayabali Jaffarbhai Tankiwala Vs. M/s. Asha and Company (1970 (1) SCC 46): (AIR 1971 SC 102) was followed to hold that there was waiver of notice of termination of lease. In my opinion the judgment of the Supreme Court in the case of Swaroop Singh Gupta (supra) being later in point of time holds the field and therefore the judgment in M/s.Auto World, SCCH-11 19 SC No.347/2021 Bengaluru (AIR 2015 KAR 128) (supra) cannot be followed. Even otherwise acceptance of rent after termination of tenancy by issuing a notice does not take away the right of the landlord to evict his tenant.
Payment of rent is an obligation on the tenant. In a suit for ejectment if the landlord is entitled to claim arrears of rent or damages for use and occupation, mere acceptance of rent after issuance of notice and during pendency of the suit does not alter the right of landlord to evict his tenant."
With due respect to the Hon'ble Supreme Court of India and the Hon'ble High Court of Karnataka. I have carefully perused the above judgments, the ratio and dictum laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court of Karnataka is aptly applicable to case on hand. Case on hand, the plaintiff voluntarily not accepted the rent from the defendant. However, the defendant paying regularly rent to the plaintiff. The Hon'ble Supreme Court of India and the Hon'ble High Court of Karnataka held that mere acceptance of rent after termination of rent does not result in waiver of right of landlord to evict the tenant and it depends on intention of landlord. Case on hand, the intention of landlord is to evict the defendant from suit schedule premises. So, the ratio and dictum laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court of SCCH-11 20 SC No.347/2021 Karnataka is aptly applicable to the case on hand.
23. Further, the plaintiff relied on citations reported in AIRONLINE 2012 SC 723 in between Payal Vision Ltd., Vs. M/s.V.Radhika Choudhary, wherein the Hon'ble Supreme Court of India held at Para.6 as follows:
"6. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff-landlord is the existence of the jural relationship of landlord and tenant between the parties, and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the CPC, which reads as under:
"Judgment on admissions -(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, made such order to give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
Case on hand, there is no dispute regarding landlord and SCCH-11 21 SC No.347/2021 tenant and plaintiff also issued quit notice as per Sec.106 of T.P.Act. I have carefully perused the above reported judgment . The ratio and dictum laid down by the Hon'ble Supreme Court of India is aptly applicable to the case on hand.
24. In view of ratio laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court of Katakana, the arguments canvassed by the learned counsel for defendant that the suit is not maintainable as plaintiff not proved bonafide necessity and the defendant is regular in payment of rent is not tenable. Hence, I answered Point No.1 & 2 in the Affirmative.
25. Point No.3: In view of my findings given to point No.1 and 2, this Court proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs.
The Defendant is hereby directed to vacate and hand over the suit schedule premises to the plaintiff, within three months from the date of this order. Failing which the plaintiff is at liberty to SCCH-11 22 SC No.347/2021 precede with due process of law.
Draw decree accordingly.
(Dictated to the stenographer directly typed by her script corrected and revised by me and then pronounced in the open court on this 01st day of February - 2023.) (D.RAGHAVENDRA) I ADDL.SMALL CAUSES JUDGE SCHEDULE All that part and parcel of the Shop No.24/4, SMMS Market,S.V. Lane, (Belli Basavanna Temple Street), Ward No.28, Mamulpet, Bengaluru - 560 053 (now 560056), measuring East to West 8 feet and North to South 8 feet, situated in the ground floor and bounded on the:
East by : Open Passage:
West by : Shop No.24/3;
North by : Shop No.24/5; and
South by : Common Passage;
ANNEXURE
WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 - Sri.B.Banumurthy
SCCH-11 23 SC No.347/2021
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 Power of Attorney
Ex.P.2 Copy of Legal Notice
Ex.P.3 2 RPAD receipts
Ex.P.4 2 RPAD Acknowledgments
Ex.P.5 Rent Receipt
Ex.P.6 Khatha Certificate
Ex.P.7 Khatha Extract
Ex.P.8 3 Property Tax Receipts
Ex.P.9 2 Bank Pass Book
Ex.P.10 Original Rent Receipt Book
Ex.P.10(a-d) Receipts
Ex.P.11 Copy of Reply Notice
Ex.P.12 RPAD Cover
WITNESSES EXAMINED FOR DEFENDANT:
DW.1 - Sri.Prashanth
DOCUMENTS MARKED FOR DEFENDANT:
-NIL-
(D.RAGHAVENDRA)
I ADDL.SMALL CAUSES JUDGE
BENGALURU