Bangalore District Court
Smt. Komala W/O. Sri vs Sri Nawaz Pasha S/O on 28 January, 2020
1
IN THE COURT OF THE VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH NO.19), BENGALURU
Dated : This the 28th day of January, 2020
PRESENT
Smt.M.LATHA KUMARI, M.A., LL.M.,
VII Addl. City Civil & Sessions Judge,
BENGALURU.
O.S.No.8619/2014
Plaintiff: Smt. Komala W/o. Sri
L. Murthy, Aged about 69
years, R/at No.132, 70th
Cross, 5th Block,
Rajajinagar, Bangalore.
(By Sri H.N Manjunath -
Adv.)
Vs.
Defendant: Sri Nawaz Pasha S/o.
M.A.Ramzan, Aged about
45 years, R/at No.104
Nawaz Rope Distributor,
Regipet, Bangalore-
560002.
[By Sri Riyaz Ahemed Sheriff
Adv.]
Date of institution of suit 11.11.2014
Nature of the suit Ejectment
2 OS.No.8619/2014
Date of commencement 10.07.2017
of recording of evidence
Date on which Judgment 28.01.2020
was pronounced
Total duration Days Months Years
17 02 05
JUDGMENT
This is suit for ejectment of the defendant from the property bearing Corporation No.19 at Hanumanthappa lay out BBMP Nayanda halli, Bangalore -560 039, ground floor shed measuring 30x 22 ft, with lighting facility , toilet, common bore-well water and security services, herein after referred to as 'suit schedule property' and also for consequential relief of arrears of rent, security charges, electricity charges water bill and damages by way of mesne profits at the rate of 20,000/- p.m. from the date of termination of the tenancy i.e., from 1.10.2014 till delivery of the vacant possession of the suit schedule property to the plaintiff.
2. The brief facts of the plaintiff's case is that, plaintiff being the land lord of the suit schedule property 3 OS.No.8619/2014 considering the request of the defendant let out the suit schedule property for industrial shed at a monthly rent of Rs.5,250/-. The rent agreement dt: 5.2.2010 entered into between the plaintiff and the defendant, as per the terms and conditions of the agreement which was valid for 11 months and shall be renewed subject to enhancement of rent at the rate of 10% on the existing rent amount. Accordingly, the defendant used to pay the rent every month to the plaintiff by way of cheque and water charges electricity charges and also security charges were paid in cash against receipt issued by plaintiff. Defendant has paid the same till September 2013 and not paid the rent from October 2013 at the enhanced rate of rent. He is due of Rs.1,17,670/- till October 2014. The defendant who agreed to abide by the conditions of the rent agreement dt: 5.2.2010 failed to comply with the same and became chronic defaulter and irregular in payment of rent and other incidental charges referred supra. That apart, the schedule property is very much necessary and 4 OS.No.8619/2014 urgent required for the plaintiff and her family members for their own use and occupation. Plaintiff's son is running plastic business and he wants to utilize the suit schedule property. Though defendant agreed to abide by the conditions of the rent agreement, intentionally violated the same by non-paying the rent and other charges and also not ready to vacate and hand over the suit schedule property to the plaintiff, inspite of his repeated request and demand. Having no other way, plaintiff has got issued legal notice dt:1.9.2014 to the defendant by terminating the tenancy of the defendant by giving mandatory time of one month notice covering upto 1.10.2014. The rent agreement dt:5.2.2010 stands canceled and thereby called upon the defendant to vacate the suit schedule property and hand over the vacant possession of the same along with the arrears of rent due and other charges towards security, water and electricity supply. Inspite of said notice, defendant neither replied the same nor complied with the said notice. Having no other way 5 OS.No.8619/2014 plaintiff constrained to file this suit for the reliefs mentioned supra.
3. On issuance of suit summons, defendant appeared through his Counsel and filed his written statement asserting that, the contention of the plaintiff that, she is the absolute owner of property No.19 situated at Hanumanthappa layout, Bangalore is not correct. In the khata and tax paid receipts the name is mentioned as holder and in the bracket the name of plaintiff is forth- coming and this itself establishes that, the khata in respect of the suit schedule property does not belongs to plaintiff. This defendant in para-4 of his written statement, admits execution of lease deed with plaintiff on 5.2.2010. It is further mentioned that, he is paying regularly rents to the plaintiff even though she is not the owner nor the land lady of the schedule property. It is also asserted that, when defendant demanded property documents from the plaintiff, she lodged a police complaint against defendant and his workers in the year 2013 and she locked the 6 OS.No.8619/2014 premises and also prevented the defendant's workers to enter into the suit schedule property. There are other adjacent go-downs to the suit schedule property and she has disconnected the electricity and water facilities and continued to lodge a complaint after complaint to the police against defendant and their workers. Concerned police in pursuance of such complaint by plaintiff, detain the workers of defendant on several times and thereby, defendant's workers left the job of the defendant in the schedule premises. At that time, the defendant filed a suit against plaintiff for permanent injunction and said suit is still pending. In the said suit OS.2583/2013 the defendant also made an application praying for remove the lock put up by the plaintiff upon the outer door of the suit schedule property and same is still pending consideration. The defendant is not due of any arrears of rent. He has paid some rents in OS.2583/2013. This defendant has denied the contention of plaintiff that, he is due of rents from October 2013. The question of betterment charges and 7 OS.No.8619/2014 water charges are not at all stipulated in the lease agreement. The plaintiff's claim in this regard establishes her mischief against defendant. At Para-6 of his written statement the defendant mentioned that, there are 9 work shop in the row of the suit schedule property and the same has been let out by the plaintiff. Recently, 3 of such work shops got vacated and same is let out for higher rent with huge advance to other tenants. If plaintiff's son had any genuine need of shop premises, he had no difficulty to use one such shop for his bonafide use. All these circumstances establishes that, plaintiff has filed this false case against the defendant. There is no question of claiming damages from the plaintiff since the plaintiff prevented the defendant to run the work shop and put the lock on the outer door of the schedule premises on the mid of 2013. there is no cause of action for the plaintiff to file this suit. He also reserves his right to amend his written statement and to claim counter claim against plaintiff. The plaintiff has demanded the higher rent at the 8 OS.No.8619/2014 rate of Rs.15,000/- per month and advance of Rs.5,00,000/- from the defendant. Since defendant did not agree for the same, plaintiff is adopting all illegal activities to take possession of the schedule premises by hook or crook. There is no notice of termination issued to him, and no notice has been received or refused by defendant at any point of time. Suit is bad for mis-joinder and non-joinder of parties. Hence, pray for dismissal of this suit with cost.
4. Based on these pleadings, this Court framed following issues:
1. Whether the plaintiff proves that she has terminated the tenancy rights of the Defendant legally and validly?
2. Whether the Plaintiff proves that the Defendant is in arrears of rent?
3. Whether the Plaintiff is entitled for damage and mesne profit?
4. What Order or decree?9 OS.No.8619/2014
5. On behalf of plaintiff, her son who is also her GPA holder got examined himself as PW.1 and got marked as many as 8 documents as per Ex.P.1 to Ex.P.8.
On behalf of defendant, defendant got examined himself as DW.1 and got marked as many as 24 documents Ex.D1 to D24.
6. I have carefully scrutinized entire records before me. Heard the arguments
7. My findings on the above Issues are:
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : As per final order, for the following:
REAS O NS
8. ISSUE NO.1. Plaintiff's son who got examined himself as PW.1 by reiterating entire plaint averments got marked as many as 8 documents. The vital document is, Ex.P2-Office copy of legal notice dt:1.9.2014 and Ex.P3- Postal receipt, Ex.P4-Postal acknowledgement for having 10 OS.No.8619/2014 served the said quit notice on defendant on 2.9.2014. The execution of Rent Agreement, Ex.P5 between the parties is not in dispute. In the cross-examination of PW.1 recorded on 22.2.2019, it is elicited that, plaintiff has produced khata and tax paid receipts to establish his ownership over suit schedule property and not produced title deed pertaining to suit schedule property. This is a plaintiff's suit for ejectment of the defendant and defendant concedes that, he has entered into lease agreement with plaintiff as per Ex.P5 and he was paying rent regularly to the plaintiff and he has also paid some rent before the Court in OS.No.25835/2013 filed by him against plaintiff and PW.1 for the relief of permanent injunction. This version of plaintiff and also the nature of suit filed by plaintiff makes it clear that, there is no dispute with regard to relation-ship between the parties. PW.1 has produced khata extract and also tax paid receipts to establish that, she is the khata holder of the property and accordingly, paying necessary taxes to concerned authorities. On the 11 OS.No.8619/2014 other hand, the defendant who vaguely contends that, though plaintiff is not the owner of suit schedule property he is paying rent to her and entered into Lease Agreement as per Ex.P5 with plaintiff, has not produced any document to establish that, plaintiff is not the owner of suit schedule property and it is somebody else. In the absence of such authenticated material, the defence taken by defendant appears vague and baseless. The plaintiff by producing khata extract has discharged her primary burden, whereas, defendant has not rebutted the same by producing cogent material. When such being the case, question of discussing much about ownership of plaintiff does not arise in a suit for eviction like this, where defendant has admitted that, he is a tenant under plaintiff. Under such circumstances, cross-examination of PW.1 at length in this regard is not of much helpful to the defendant. It is also suggested that, in Ex.P5 the signature of defendant is not forth-coming. As I have already stated, Ex.P5 is the Rent Agreement dt:5.2.2010 12 OS.No.8619/2014 the defendant in his written statement at Para-4 admits that, he has executed lease agreement on 5.2.2010 in favour of plaintiff. Inspite of such admission in the written statement, the suggestion that, the signature of defendant is not forthcoming in the lease agreement in Ex.P5 holds no water. In Page.8 of the cross-examination of PW.1 it is suggested that, no such quit notice has been served to defendant. Whereas, plaintiff has produced postal acknowledgement as per Ex.P5 for having served the quit notice on defendant. Further, defendant admits in his cross-examination that, he has been served with said notice. Under such circumstances, issuance of quit notice as required u/S.106 of Transfer Property Act cannot be denied. Having received the said notice defendant has not at all issued reply. Considering these oral and documentary evidence, I have answered this issue No.1 in the affirmative.
9. ISSUE NO.2: In the cross-examination of PW.1 it is suggested that, defendant is not at all due of any rent to 13 OS.No.8619/2014 the plaintiff. It is also suggested that, rent has been deposited in the suit filed by the defendant in OS.No.25835/2013. Defendant who got examined himself as DW.1 has produced certified copy of entire order sheet, which is as per Ex.D1. According to this document, the suit filed by the defendant for the relief of permanent injunction against plaintiff in respect of very suit property has been dismissed on 18.1.2017. As per order sheet dt:1.9.2016 in the said suit the defendant i.e., the plaintiff and her son herein have filed Memo seeking direction to the plaintiff in that suit i.e., the defendant herein to pay a balance of rent of Rs.3,20,000/-. Even in the judgment passed in OS.No.25835/2013 at Page.9 it is observed that, the plaintiff has not paid rents and he is due of sum of Rs.2,23.490/- till October 2015. It is also observed that, defendant without paying rent is continued to be in possession of suit schedule property. As per Order Sheet Ex.D1, the defendant herein has paid rent by way of DD for Rs.17,050/- on 3.8.2013 and another three demand 14 OS.No.8619/2014 drafts for Rs.6,350/- each on 18.8.2014 in OS.No.25835/2013. In the said suit itself the learned counsel for the land lord filed memo on 7.10.2015 stating that, defendant is due of Rs.2,14,555/- to the plaintiff herein. Inspite of such Memo of Calculation and also subsequent memo seeking to pay a balance of rent of Rs.3,20,000/- as on 1.9.2016 the defendant herein who was plaintiff in the said suit has not cleared the same. As per this order sheet, except six months rent at the rate of Rs.6,350/- the defendant has not paid the rent from the date of suit in OS.No.25835/2013 till dismissal of the same on 18.1.2017.
In the cross-examination of DW.1, DW.1 admits that he is not paying either the electricity bill or the water bill pertaining to the suit schedule property. He also admits that in Ex.P7 there is an observation that, DW.1 is due of Rs.2,23,490/-. Though DW.1 asserts that he is not at all due of any rent to the plaintiff, he has not produced any document for having cleared the upto date rent. On the 15 OS.No.8619/2014 other hand, he has produced Ex.D4 to D14 for having deposited the DD before this Court for Rs.6,350/- from 4.12.2017 to 30.11.2018. Whereas, it is the contention of plaintiff that, defendant has not paid the rent after lapse of 11 months though in the agreement there is a clause to the effect that, he shall pay the rent at the rate of enhancement of 10% on the existing rent. Plaintiff specifically mentioned that, defendant has paid the rent till September 2013. To show that, from October 2014 till date defendant has paid the rent, he has not produced up to date rent receipts, only during the year 2018 defendant has deposited rent by way of DD before this Court as per Ex.D3 to D14. Since this suit was pending from 11.11.2014 and also the suit filed by the plaintiff in OS.No.25835/2013 was also pending there was no impediment for the defendant to deposit the rent either before this Court of in his suit for permanent injunction. Whereas, in the said suit he has deposited the rent only for six months and in this suit for a period of 11 months. 16 OS.No.8619/2014 Whereas, he is due of rent from October 2013. Considering the same, I have answered issue No.2 also in the affirmative.
10. ISSUE NO.3: In the cross examination of PW1 it is suggested that defendant is not having any other shop premises to carry out the said business. It is also elicited that defendant filed suit for injunction against plaintiff and her son, since they demanded rent from the defendant. It is further elicited that, PW1 has produced VAT Certificate to establish that they want suit schedule premises for their bonafide use. In the cross-examination of DW1, DW1 admits that, in page 9 of the judgment Ex.P7 it is observed that defendant is due of Rs.2,23,490/-. DW1 further admits that if he vacates the suit schedule property he will not put to hardship. Though DW1 voluntarily stated that he is not in due of any rent to the plaintiff and he has paid up to date rent, he has not produced any document for having paid the same. DW1 admits that he is also having another shop premises of his own. In page 7 of his cross-examination, DW1 admits that in Ex.P-5 there is a 17 OS.No.8619/2014 recital to the effect that if lease period is extended there shall be enhancement of rent to an extent of 10% against existing rent. DW1 also states that he has not increase the rent amount in accordance with recitals in Ex.P-5. DW1 specifically states that after lapse of 11 months he informed plaintiff that, he is going to vacate suit schedule premises and plaintiff informed him that she is not having amount to refund security deposit and thereby requested defendant to continue in the suit schedule premises. He is also admits that he is not paying either electricity bills or water bills pertaining to suit schedule property. It is not in dispute that the suit for equitable relief of permanent injunction filed by defendant against plaintiff and her son in O.S.25835/2013 as been dismissed with an observation that defendant is in un-authorised possession of suit schedule property without paying the rent and other charges.
Ex.P7 is the certified copy of the said judgment and decree. These circumstances establishes that defendant continued to be in possession of suit schedule property 18 OS.No.8619/2014 without paying the rent and other charges towards electricity and water supply connection. The oral testimony of DW1 also establishes that he has having another accommodation. In page 6 of his cross-examination, DW1 voluntarily stated that he has having one shop premises of his own and same is situated at City Market. Whereas, in the cross-examination of PW1 it is suggested that defendant is not at all having any such alternative accommodation. All these circumstances establishes that defendant not at all approached this court with clean hand. Since execution of lease agreement Ex.P-5 is not in dispute and defendant has paid only few months rent before the court in O.S. 25835/2013 and same is not in dispute to show that defendant has paid up-to-date rent, he has not produced any piece of paper. When it was suggested that defendant is having his own properties near suit schedule property itself, DW1 states that he is having shop premises at Market. However, he has not produced the said document to establish that he is not having shop premises near suit schedule property but same is situated at City Market. Since 19 OS.No.8619/2014 Ex.P-5 is not in dispute defendant is liable to pay rent as agreed under the same i.e., with an enhancement of 10% in rent after lapse of every 11 months against existing rent.
Prior to filing of the suit itself defendant was in due of rent and plaintiff herein has claimed the same in the suit for injunction Ex.D1 filed by defendant herein. Considering the nature of suit and also huge arrears of rent due against plaintiff, amount of Rs. 20,000/- p.m. claimed by plaintiff towards damages from 01.10.2014 till delivery of vacant possession of suit schedule property by the defendant to the plaintiff appears appopriate. Having establish the arrears of rent due from defendant and also the conduct of defendant that he is having his own alternate shop and he is in un- authorised possession of suit schedule premises without paying rent, plaintiff is entitled for damages and mesne profit. Accordingly I have answered issue No.4 in affirmative.
11. ISSUE NO.4: In view of my findings on issue No.1 to 3, plaintiff is entitled to recover possession of suit schedule property from the defendant along with damages at the rate of 20 OS.No.8619/2014 Rs.20,000/-p.m. from 01.10.2014 till delivery of vacant possession of the suit schedule shop premises to the plaintiff. However, with regard to arrears of rent by way of mesne profits there shall be a separate enquiry. Accordingly, I proceed to pass the following:
ORDER Suit filed by the plaintiff praying for ejectment of the defendant from the suit schedule premises, is decreed with cost.
The defendant is directed to vacate and hand over the vacant possession of the suit schedule premises to the plaintiff within One month from today.
Defendant is further directed to pay the damages at the rate of Rs. 20,000/- p.m. from 01.10.2014 till he quit and deliver the vacant possession of the suit schedule premises to the plaintiff.21 OS.No.8619/2014
Failing which, plaintiff is at liberty to get the defendant evicted and recover the damages from defendant in accordance with law.
With regard to arrears of rent by way of mesne profits there shall be a separate enquiry.
Draw decree accordingly.
*** (Dictated to the J.W, computerized and print out taken by her, revised, corrected and then pronounced by me in open Court today the 28th day of January, 2020).
(M.LATHA KUMARI), VII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE Witnesses examined on behalf of Plaintiff:
PW.1 : Lakshmikanth M.Satish Witness examined on behalf of Defendant:
DW.1 : Nawaz Pasha Documents marked on behalf of Plaintiff:
Ex.P.1 Special power of attorney executed by Plaintiff 22 OS.No.8619/2014 Ex.P.2 Office copy of legal notice dated 01.09.2014.
Ex.P.3 Postal receipt
Ex.P.4 Postal acknowledgment
Ex.P.5 Certified copy of Rent agreement
dated 05.02.2010
Ex.P.6 Copy of 6 photographs in 3 pages
belongs to defendants
Ex.P.7 Certified copy of Judgment and
Decree in O.S 25835/2013 filed by
defendant
Ex.P.8 6 bank vouchers for having paid the
rent by defendant through bank
Documents marked on behalf of Defendant:
Ex.D.1 Certified copy of entire order sheet in O.S 25835/2013 Ex.D.2 Certified copy of acknowledgement dated 07.11.2014 along with police notice Ex.D.3 Certified copy Memo dated 05.12.2017 along with copy of cheque Ex.D.4 Certified copy Memo dated 09.01.2018 along with copy of cheque Ex.D.5 Certified copy Memo dated 05.02.2017 Ex.D.6 Certified copy Memo dated dated 05.03.2017 along with copy of the cheque Ex.D.7 Certified copy Memo dated 09.04.2017 along with copy of the cheque 23 OS.No.8619/2014 Ex.D.8 Certified copy Memo dated 24.04.2018 Ex.D.9 Certified copy Memo dated 04.06.2018 Ex.D.10 Certified copy Memo dated 05.07.2018 along with copy of cheque Ex.D.11 Certified copy Memo dated Dated 02.08.2018 along with copy of cheque Ex.D.12 Certified copy Memo dated 04.09.2018 with the copy of cheque Ex.D.13 Certified copy Memo dated 03.10.2018 along with copy of cheque Ex.D.14 Certified copy Memo dated 01.12.2018 along with copy of cheque Ex.D.15 Certified copy Memo dated 05.02.2019 Ex.D16 Certified copy Memo dated 05.03.2019 along with cheque Ex.D.17 Certified copy Memo dated05.01.2019 along with cheque Ex.D.18 Certified copy Memo dated 14.11.2017 Ex.D.19 Certified copy Memo dated 29.03.2019 Ex.D.20 Certified copy Memo dated 20.06.2017 along with cheque Ex.D.21 Bank statement issued by Bank of Maharasthra (necessary entires in the name of Komala are highlighted with marker) Ex.D.22 to Memo for having deposited rent in the D.24 Court by way of DD.
(M.LATHA KUMARI), VII Addl. City Civil & Sessions Judge, Bengaluru.
24 OS.No.8619/2014Judgment pronounced in the open Court (vide separate Judgment) ORDER Suit filed by the plaintiff praying for ejectment of the defendant from the suit schedule premises, is decreed with cost.
The defendant is directed to vacate and hand over the vacant possession of the suit schedule premises to the plaintiff within One month from today.
Defendant is further directed to pay the damages at the rate of Rs. 20,000/- p.m. from 01.10.2014 till he quit and deliver the vacant possession of the suit schedule premises to the plaintiff.
Failing which, plaintiff is at liberty to get the defendant evicted and recover the damages from defendant in accordance with law.
With regard to arrears of rent by way of mesne profits there shall be a separate enquiry.
Draw decree accordingly.
(LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
25 OS.No.8619/2014