Karnataka High Court
Smt Suparna Krishna vs K N Mahesh on 4 June, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
REGULAR FIRST APPEAL NO.827 OF 2013 (RES-SJ)
C/W
REGULAR FIRST APPEAL NO.829 OF 2013(RES-SJ)
BETWEEN:
Smt.Suparna Krishna
W/o Sri A.R.Krishna Prasad
Aged about 41 years
Proprietrix, M/s.Kistech CNC & Toolings,
Having her place of business at No.45/30 (B),
Gubbanna Industrial Estate, 6th Block,
Rajajinagar, Bangalore - 560 010
And R/at No.45/2, 1st Floor, Promenade Place,
Promenade Road, Bangalore - 560 042.
....APPELLANT
COMMON
(By Sri R.Veerendra Sharma, Advocate)
AND:
K.N.Mahesh
S/o K.N.Naganna
2
Aged about 43 years
R/at No.3/2, Palace Loop Road,
Vasanthnagar, Bangalore - 560 052.
...RESPONDENT
COMMON
(By Sri S.R.Kamalcharan, Advocate
Sri Sundarswamy & Sri Ramdas, Advocate for C/R)
*****
This RFA.No.827/2013 filed under Order 41, Rule
1, R/w Section 96 of CPC, against the Judgment and
decree dated 20.02.2013 passed in O.S.No.3917/2011
on the file of the X-Addl. City Civil and Sessions Judge,
Bangalore, partly decreeing the suit for possession,
arrears of rent and damages.
This RFA.No.829/2013 filed under Order 41, Rule
1, R/w Section 96 of CPC, against the Judgment and
decree dated 20.02.2013 passed in O.S.No.3919/2011
on the file of the X-Addl. City Civil and Sessions Judge,
Bangalore, partly decreeing the suit for possession,
arrears of rent and damages.
These RFAs coming on for orders this day, the
Court delivered the following:-
JUDGMENT
As the parties to these two appeals are common, the appeals were heard together and are being disposed off by this common judgment.
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2. These two appeals are by the defendants in O.S.No.3917/2011 and 3919/2011 on the file of the 10th Additional City Civil and Sessions Judge, Bangalore and they are directed against the independent but identical judgments dated 20.02.2013 decreeing the suits filed by the common respondent / plaintiff and directing the common appellant / defendant to handover the vacant possession of the suit schedule premises to the plaintiff and also directing the common defendant to pay the arrears of rent, as well as the mesne profit with interest at 10% per annum from the date of suit till its recovery in full and directing an enquiry to be held under Order-20, Rule-12 of C.P.C. , in respect of future mesne profits.
3. The subject matter of the suit in O.S.No.3917/2011, is the ground-floor portion of the premises bearing No.45/30, situated in 9th Cross, Gubbanna Industrial Estate, 6th Bock, Rajajinagar, Bangalore, while subject matter of the suit in O.S. No.3919/2011, is the first 4 floor portion of the very same property bearing No.45/30, situated in 9th Cross, Gubbanna Industrial Estate, 6th Bock, Rajajinagar, Bangalore.
4. In the course of judgment, the parties herein shall be referred to their ranking in the trial court. The common plaintiff filed aforesaid suits inter-alia contending that the defendant is the tenant in respect of the suit schedule premises on monthly rental of Rs.25,250/- in respect of the ground floor and Rs.9,000/- in respect of the first floor per month. That the defendant has been irregular in the matter of payment of rents from the beginning and has failed to pay the rentals in respect of these premises as and when they became due. That the tenancy of the defendant in respect of the two premises came to be terminated by issuing legal notices on 03.02.2011 and the defendant was called upon to quit and deliver the vacant possession of the two premises by the end of February'2011 and also to pay arrears of rent. That though the notices were served on the defendant, the defendant has failed to vacate 5 the premises and also to pay the arrears of rent as demanded in the notices. Therefore, the plaintiff sought for an order of ejectment of the defendant from the suit premises and also to pay the arrears of rent and mesne profits by way of damages upto the date of filing of the suit and also sought for enquiry into the future mesne profits from the date of suit till delivery of vacant possession of schedule premises by the defendant.
5. The common defendant upon her appearance before the trial court filed the written statement where under she admitted her status as tenant in the suit schedule premises under the plaintiff. She also admitted rate of monthly rentals as alleged in the plaint. However she denied that she was irregular in the matter of payment of rent, but she did not dispute the fact that there is arrear of rent. She contended that when she offered to pay the monthly rents, the plaintiff who was bent upon to terminate the tenancy and to evict the defendant from the premises refused to receive the same, as such, the rentals have remained 6 unpaid. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
Issue in O.S. No.3917/2011
"1) Whether the plaintiff proves that the defendant has become defaulter in paying the rents regularly?
2) Whether the defendant proves that the plaintiff has deliberately refused to accept the rent?
3) Whether there is valid termination of
tenancy by plaintiff?
4) Whether the plaintiff is entitled for recovery
of rent of Rs.2,77,750/- and mesne profits at the rate of Rs.32,000/- p.m.?
5) Whether the plaintiff is entitled for relief claimed?"
Issue in O.S. No.3919/2011:
"1) Whether the plaintiff proves that the defendant has become defaulter in paying the rents regularly?7
2) Whether the defendant proves that the plaintiff has deliberately refused to accept the rent?
3) Whether there is valid termination of
tenancy by plaintiff?
4) Whether the plaintiff is entitled for recovery
of rent of Rs.99,000/- and mesne profits at the rate of Rs.13,000/- p.m.?
5) Whether the plaintiff is entitled for relief claimed?"
6. In support of his case, the common plaintiff examined himself as PW-1 in both the suits and got marked Exhibits-P1 to P3 in O.S. No.3917/2011 and Exhibit-P1 and Exhibit-P2 in O.S. No.3919/2011. However, the defendant did not participate in the trial and failed to cross-examine PW-1. She also did not lead any oral evidence nor produced any documentary evidence.
7. The learned Trial Judge on appreciation of the oral and documentary evidence, by the Judgments under appeal held that the tenancy of the defendant in respect of 8 the suit schedule premises has been duly terminated by issuing notices and therefore, the defendant has no right to continue in the suit schedule premises, as such, the plaintiff is entitled for a decree as sought for in the suit. The Court below also came to the conclusion that the defendant has failed to pay the arrears of rent and damages upto the date of suit as indicated in the plaints. Therefore, the trial court decreed the suit directing the defendant to handover the possession of the two premises to the plaintiff within three months from the date of the order and also directed the defendant to pay Rs.2,77,750/- and Rs.75,750/- in O.S.No.3917/2011 and Rs.99,000/- and Rs.27,000/- in O.S. No.3919/2011 being the arrears of rent and towards mesne profit with interest at 10% per annum from the date of suit till its recovery in full. In both the suits, the trial court directed an enquiry to be held under Order-20, Rule-12, of C.P.C., with regard to the future mesne-profits from the date of the suit till handing over the vacant possession. Aggrieved by the judgment and decree, the common defendant has presented these appeals.
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8. I have heard the learned counsel for the appellant and the learned counsel appearing for the plaintiff / respondent. Perused the records of the lower courts and the judgments under appeal.
9. At the outset, it is necessary to note that though there is a decree directing the appellant / defendant to pay the arrears of rent upto to the date of the suit, as on the date of presentation of these appeals, the defendant did not deposit the amount. When it was brought to the notice of this Court that even during the pendency of the suit, the defendant failed to pay the agreed rent in respect of the two premises, this Court by order dated 27.05.2013 directed the appellant/defendant in both these appeals to deposit the entire arrears of rent including the decreetal amount upto the date of presentation of the appeal at the rate prevailing on the date of termination of the tenancy on or before 30.05.2013. Once again at the request of the learned counsel for the appellant, the time to comply with the said order was extended till 03.06.2013.
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10. Today the learned counsel for the appellant / defendant submitted before the Court that the appellant is not in a position to comply with the direction issued by this Court. As noticed above, the direction issued by the trial court regarding the payment of arrears of rent and damages was up to the date of filing of the suit. Merely because the plaintiff filed suit for ejectment after terminating the tenancy, the liability on the part of the defendant / tenant to pay the rent / damages atleast at the agreed rate does not cease. The suit was pending nearly for two years before the trial court. During this period, the defendant has failed to pay the rentals at the agreed rate subject to the determination of mesne profits payable in an enquiry. These conduct on the part of the defendant disentitles him from seeking any relief from the hands of this Court.
11. Admittedly, the defendant is the tenant in respect of the two premises under the plaintiff. There is no dispute as to the rate of rent. The defendant has not 11 disputed the fact that the tenancy in respect of the two premises have been duly terminated by issuing notices as required under Section - 106 of the Transfer of Property Act. Having regard to the fact the tenancy of the defendants in respect of these premises have been duly terminated, the defendant has no right to continue in possession of the premises. Therefore, the trial court in my considered opinion is justified in decreeing the suits of the plaintiff and directing the defendant to quit and deliver vacant possession of the premises to the plaintiff. The judgment under appeal in that regard is sound and reasonable.
12. Regard being had the facts and circumstances of the case, the evidence on record, and the defendant having not chosen to contest the suits after filing the written statement, has conceded the case of the plaintiff. Therefore, in the absence of any rebuttal evidence on the part of the defendant, the trial court is justified in accepting the evidence of the plaintiff and decreeing the suit. Hence, the 12 judgment under appeal does not suffer from any illegality or irregularity warranting interference by this Court.
13. The finding of the Trial Court with regard to the arrears of rent and damages up to the date of suit is also based on the admitted facts. In the notices issued the plaintiff had called upon the defendant to pay the arrears of rent. The defendant in her written statement has not disputed the fact that the rents as indicated in the notices have remained unpaid. However, the defendant has tried to justify the non-payment only by stating that since the plaintiff was refusing to receive the rents with a view to evict her from the premises, the rents have remained unpaid. Though the defendant in her written statement has stated that she is ready to pay the arrears of rent, she has not come forward to pay the same. In this view of the matter the decrees directing the defendant to pay the arrears of rent as indicated therein also does not suffer from any illegality or irregularity warranting interference of this Court. 13
14. As indicated above, the conduct of the defendant in not paying the arrears of rent up to the date of the suit and also in not paying the rentals / damages even atleast at the agreed rate of rent during the pendency of the suit, in my considered opinion, is sufficient to deny any relief to the appellant/defendant. This conduct on the part of the defendant disentitles him from seeking extension of time to vacate the premises.
15. Having regard to the facts and circumstances of the case and discussion made above, I'am of the considered opinion that there are no merits in the appeals and no justifiable ground is made out to admit the appeals for hearing. In this view of the matter, the appeals are liable to be dismissed.
16. At this stage, the learned counsel for the appellant sought for grant of some reasonable time to vacate the premises. According to the learned counsel there are heavy machineries installed in the premises and all those 14 machineries are hypothecated with a financial institutions and it is highly difficult to remove those machineries without damaging the property, and that some reasonable time is required for removing all the heavy machineries to an alternative premises, and thereafter handover the vacant possession. However, the learned counsel for the respondent/plaintiff opposed grant of any further time to the appellant.
17. Having regard to the conduct of the defendant, I do see considerable force in the submissions of the learned counsel for the respondent. Admittedly, the tenancy of the defendant in respect of these premises were terminated by the end of February'2011 that is about two years three months ago. The defendant ought to have made necessary arrangements to secure alternate accommodation. The defendant appears to have not taken any steps in this regard. The trial court granted three months time to the defendant to vacate the premises. The time granted by the trial court has since expired. However, having regard to the 15 fact that the defendant has failed to pay the arrears of rent for nearly three years, in my considered opinion, the defendant is not entitled for a longer time. However, having regard to the submission made by the learned counsel for the defendant that heavy machinery are installed inside the premises, some breathing time is necessary for the appellant to remove those machineries, by locating an alternative premises or to inform the financial institutions to which these machineries are stated to have been hypothecated or pledged to shift them. In this view of the matter, the interest of justice would be met by granting two months time from today to the appellant to quit and deliver possession of the premises.
18. Accordingly, the appeals are dismissed. The judgment and decrees of the trial court passed in O.S.No.3917/2011 and O.S.No.3919/2011 are affirmed. However, the appellant / defendant is granted time till 31.07.2013 to quit and deliver vacant possession of the suit premises to the plaintiff. While removing the machineries 16 stated to have been installed in the premises, if it is necessary to demolish the door portion of the premises, the defendant shall restore the same to its original condition after removal of the machineries.
Sd/-
JUDGE JJ