Karnataka High Court
Naraindas Bodaram vs Dcm Ltd on 16 December, 2010
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGI--I COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16"" DAY OE DECEIVIEER 2010.--.__ BEFORE V. 'I'I~ii*3I~1ON'BI.E MRJUSTICE SUBHASH E-.A'DI REGULAR FIRST APPEAL NG."1"I~97 I BETWEEN: NARAJNDAS BODARAM S/O BODARAM, _ 5 AGED ABOUT 67 YEARS," * ;. , RESIDING AT No.35/2, 2M>'C,RGSS; ' SRIKANTAIAH IAY'OUT, -- " " CRESCENT ROAD; - BANGAI.ORE:¥*565'1Q9.1."--:t A' _ _ -- ...APPELLAN'I' [BY SR1 sIADAsHI'»IAI9E_A;~ ADV .,I AND: V ' ' ' DCM - V' 'AQCOMP;ANY'IR&G1ST'ERED UNDER THE INDIA COIvI_PA.NIEs.AC.T. HAVING ITS ' IREGISTERED' OPEICE AT NO.18, . _' ' n.MANAG1vN'G DIRECTOR. KANCI1iAN;::"LI_NG1X BUILDING, BAR_AKAM.BA-ROAD, NEW DELHI -- I I0 001. REPRESIENTED BY ITS ."RESPONDENT [BY SR1 PALAKSHAIAH, ADv_,} IQ 'I'I~~IIS RFA FILED U/ S 96 OF CPC AGAINST TI-IE JUDGMENT AND DI-JCREE DT. 17.02.2006 PASSED IN NO. 9293/.1998 ON THE) FILE OF 'I"I~I'££ XIV ADDL. CI"-.I'Y CIVIL JUDGE, sANGA1.oRI::' (cc1~1.No.28) DISM1SSli\I~_I'FEIE_V SUIT F OR POSSESSION. T}-IIS APPEAL COMING om I+'Oi{mHEARING"*iIIf{IS'=I)AY, I I THE COURT DELIVERED THE FOLLOVVING',_ JUooE:yz_:;iy_T I This appeal is filed by.*'i11e_:'-}§II'a.intifi:Iagaidst the judgment and decree on the file of x1VmAc1c11. cm':.igu:1ge,;BeIfiga1ér'éI_' 'V V' he v4,é{1:§"1"eIfer1'ed as per their ranking in the t.ria1IC.r_VjIurt.S V' I The suit'. is one for possession of the suit schedule and for mean profits. Case of the . pleiiritiff iihzxt defendant - company entered into a d§.§ree1ne1'1i, with the plaintiff on I8.8.1973 in respect. of shop No.2 situated in premises No.26; Kempegowda Circle, Bangalore. measure 453 sq. ft and it is non . The lease commenced from 513'} (_]1,.1}§r'.!..>E'973'JHllfiliifilfjiiilflsfVtlfleav lease was for a period was for fivé':-. years'§ l*§owe'ver,f"izhelji lease was continued thereeilt._e'i'....xalslob the premises were on monfthly from 5:21 of evfiry month' had expired and the lessee" the plaintiff had filed e_iect:ment of the defendant)" theidelfendarit claimed that he is entitled the premises for a further period of fife years. tr-:)lrri~*l3.7.1983 on enhanced rent of xpaise;" **** "However, in Vi€W of the judicial pr'onoun'cernent,"*.. on interpretation of Se(:.3l of the Control Act protection was given to the ll'~v__l'~tenants_oi" non~ residential premises. Therefore. the suit Ne.2242/84 came to be dismissed on the ground The suit p1jern"i.s€:s that Civil Court has no _jurisdiction to entertaiti the suit. Plaintiff had filed evietiori petition under [h)(f)[o){p) of the Karnataka Rent Control Act . called as 'Act' for brevity) in HRC i\lo.. l__E339__/" "' V petition was also dismissed by order 'l3Ol'-'J. 1997 as not maintainable in of the deelisAiQn--v.o.f the Honble Supreme Court..reversi.n1'g..,tr1--e_ jLidgrn.eAnt,f§of this Court on interpretationllltoll It is in this regard the 3.11.1997 terminating; expiring on 5. 12_1'C*':"V"9'7".'i' the notice dt. 1{).11.1:.l9'-§3'l7l as Plaintiff also Claimed darriages at tAh_elr'ate of Rs.9.06O/M at the rate of sqlll":ft.';'lVper day. in all he claimed Rs}.,llU8.l:7--?,lU,7'~Ve.[jtowards damages and sought for possessi'on the suit. property along with damages. gm 4. After service of the summons, defendant filed written statement. and contended that the suit. schedule premises was taken on rent of Rs.l._925/-- per _mon.§.l:..._ On 19.8.1972 an advance amount of paid to the plaintiff. The defenda.nt~wis_ysubslessleie the plaintiff. Plaintiff delibe1*ately"«idid_l7Iilotill'diselo$elit-hjeivi.i name of the original ownerlloilthe suit__; The tenancy period was fomtg period .fiVe_ yeai'svvfron'i 1973. Thus, the tenancy hadleon;n1e.n(;':edl 5.7.1973 and extended for:.. till 1983. Subseqiilen1';ly;vf, demanded additional advaricefiof. also enhanced rent of Rs.2,A818/--lll"p,1_'n.Vfor lt;he"°§3eriod of five years from July é.j"When "" "defendant did not agree to pay amount of Rs.75,O00/M, the plaintiff the rent and filed HRC No.2545/83. 1?l;vlll984 the plaintiff had issued a legal notice ll 9. 7 te'rm.i*nating the tenancy and had also filed 0.8. i«%»§.et No.2242/84 for ejeetriiem. The defendant:. was compelled to tile a petition before the House Reiit, Controller in FRC No.3/89 for fixing the fair House Rent. Controller fixed the fair rent; 18,'; pm. from 27.4.1989 by order defendant was paying the rent..__i'egLi'iatI'y. Act, was struck out by this yetiitlgfiled in OS. N02242/84 for of tent was dismissed.'=--(v')n it was contended _th"a,t et1'3't'=i_Vs 1'__i.et;- Vmainltainable nor the Plaintiff ti Ker (3'Eeree'." ' ' _%"5_. the. Of these pleadings the trial ~C'o'urt framed two' ivssiues as under 1 the tenancy has been lawfully it _« . 'V"'e?t.t:-fminetteed'? hlhfhether the plaintiff entitled to it it possession, damages and mense profits prayed for'? 6. P1aint.iff was examined as PW.1. Ex.P.1 t.o 13.6 were marked in the evidence of PW.1. One. Kutti. the Speciai Officer of defendant. was _ i)W.1 and Ex.D.1 to [).3 were marked '* The trial Court considering termination notice dt. 3.111.193? was :1ot1'..se§r'v--e.dV -'on 10.11.1997, but served on and such there was no clear 15 oiistgexflmination, it was only 1.4 days cor1tf'ary to Sec.106 of Tra17.'sfe1' ""Ac'cordi11g1y, the suit was dismissed.' judgment the plaintiff is in this appea.1.a"~ __Sr'1 B__._._.Sada.shivappa, iearned counsel for p';ai'mif'1"v._;'sn'bi?nit,ted that the notice dt. 3.11.1997 was onv'vds:"i_1(.§5.11.97. Even if the acknowledgment. '<.,Ex.P.5~ mnsidered, 15 days time had expired. In the alternative. he also relied on the provisions of See.__106 (3) of the 'l'ransfer of Property Act and submitted notice under sub section {1} of See. lO6 of tl_"gt¥--- ~ of Property Act shall not be deemed~~to_l;)e V because period mentioned therein fs..1lA' specified, if the suit is i'iled'-sftiii' mentioned in the sub' vlseetiond-Oéiviiof T.P. Act. In View of this suit is filed beyond 15 days period had expired is no requirement to consider 'the._te'1*rniI1ation notice fulfils the at the end of calendar rnontlix, The' trial ..'Co'L1rt"':wit.hout even referring to the "provisions Sec.Vi"O6 has erroneously dismissed the suit_;-. On the other hand, the learned counsel for defeiidzmt. sub_miti;ed that 15 days notice is 9 maI1dat.o1"y under See.106 of the Act as t.e1121ney is 1"' monthly tenancy and considerir:.g Ex.P.a which shows that it was servetl on 19. 1 1 . 1997 and month €I1dS..£V)I'1445.'_V" of every month. Between these two days it x days but it is only 1-4 days as such the t:ria1~'..':Cjf011fl.; V' dismissed the suit. 9. The point that arisetor co'11siderlatio~n"iV:1. this appeal is as to : ' ' 91"' ' Whether there is of tevnlanley? 1' that the plaintiff has issued 1egé11--._n0tiee_ for: the termination of tenancy and was iAs's'u.e_d_«'on 3.11.1997 as per Ex.P.4 and "is:'l'tlh'e:acknowledgment. There is dispute as of receipt of notice. The defendant ll'-,.._lyelaimedlthat it: is on 19.11.1997 and the plaintiff that it is on 10.11.1997. that as it nriay, .«%:t~:«L .,. 10 there is no need for going into the said aspect as the suit is filed on 4.12.1998. much much after of 15 days When the trial Court has Sec.l06 of the Act. it ought to sectzion before dismissing the Slllfil'. Secf iO8_ef the reads as under: "106 Duration z-ozf ce;t'airi_:'!é'as_es ir1"ahsence of written contract Valor l'-l9fca.1l4""iisa'ge_ - In the absence of a contracts»-9ar_ ilocal :.la\y".or"l'-.ti*sage to the contrary, "-of iirirrinixl/a..brle....l.f«property for agrictiltural v.;pnrp0ses shall be deemedto la '§t3:;a_se-- year to year, terrninable, on part or lessee, by six months' notice end of a year of the tenancy; elfsimmovable property for any otherE_1§'u1jpose"'sh_a]l«'be deemed to be a lease from » to-,rn--0nth, terminable on the part of either by fifteen days' notice expiring tihe of a m0nt:h of the tenancy. ~~ Every notice under this section must be in it signed by or on behalf of the person giving seq o/U ll it, and [either be sent by post to the party who intended to be bound by it or be tendered.._ii>1j_'".__ delivered personally to such party}, or to onevie-fl , A' family or servants at his residence, or '(if sueli b tender or delivery is not practicable} iioV"a_l_ Conspicuous part of the prope1'ty., {1} In the absenee_ of a"'e_onti1*aet»'o:f loeal law or usage to the l"eo:r1trary,"* of immovable property ag.rieult.'m*--al..vvVE or manufacturing p1i1;olosesg_ deemed to be a lease from yea1f,...to'_year, on the part of eit'l'§er1"1essorg or bylflsix months' notice; property for deemed to be a lease terminable, on the part either lessee, by fifteen days' ,r10tice.K"' Vi . A it s l :21 _¢CO.nvta,i'ne7d ___in any other law for the time being *-vt-withstanding anything .t'er_(:e.,;""".'x',he period mentioned in sub- '--~..__seeti'oni{«'1A} shall commence from the date of reeeilat. of notice. (3) not be deemed to be invalid merelv because i..he_ A notice under subwseetion { 1) shall period mentioned t.he1'ein falls short. C57--.t'i1.e'_" , " period specified under that sub--seetio11';. a suit or inroeeedinszs is filed.-aftzeifi the period mentioned in i [emphasis s»L'1pp1ied'].__"" u _ (4) Every not:iee"V"t1:nde1' must be in writing, oiiiibehaigf of the person givingiiiiga and_ by post to the party xxrhoviisinterided to'.beii_3-o"und by it or be tei'ide"§e"d de11«7:e1fed:.'iéersoiially to such pa1'tiy,i'or'V:foioiie_ or servaiits at his ' o:i3f:,;{i.f teI'zvde1'§ or delivery is not conspicuous part of theiipropeftgrf' it it :.11._ A" sub section (3) makes it d«"ab'uVfidan'it.1y"'clear if the suit is filed after expiry of $5 date of receipt of t.ermiI1ation notice. it is de«eh1c;'d't0--""be 21 valid terminatioii. There is no dispute V:tIh21Vte,_ aseifiii the date of filirig oft'.11e suit. 15 days time had ézww V/"KW r lapsed however, igr'1o1'ii'1g the date of fiiing of the strit, trial Court Without cronsideriiig the legs} proVision's tmneeessarily on the basis of the (iiSI)L3t.C?§_:i:" ' exhibit »~ P5 has eri'o11eot1s1y trial Court had taken iittle eare provision in its entirety. the 's:1:iiti%xrro.i1id. been dismissed. This is :*'n.ot.hing" wéiste of valuable time. 12. in triai Court without 1ooking'hVinto'r'ti;ie stfeit.:itory p:'oifision, has committed a grave error in disfr:.1issir1g.g_VV't}je' suit and has made the plaintiff t.o'<fi1e sari' _af)peai'_.*against the same. The finding thatégthere is" vzilid termination of tenancy, is "=error1eoues 'vi-giiid the'""same is required to be set aside. A<.:e{;rding'iy",i_ipass the i'o11o\vir1g : sits' ORDER
Appeal is allowed. Impugned : V' is set aside. The matter is remit.ted" to «the 't'.}_,'iE1xl'~fT(3LiX't:'i()Hn. proceed with the suit on its I1'v1€}"itSi'V_'Pd};'_1V"A.£.iE3S at "
to lead evidence, if any. All the finding as regards» '0a_iidityi'61;'.i.ej;"ifiir1«atiefi"of tenancy. are kept open. Furthedri directed to dispose of the§~s1::i:ftVL:1itsei:Ai_; from the date of receipt V 'E S»'::'Li;''i''' :
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