Bangalore District Court
Smt. Sharadamma vs Sri. K. Thyagaraju on 21 March, 2020
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU (CCH75)
Dated this 21st Day of March 2020
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 27300/2009
PLAINTIFFS: 1 SMT. SHARADAMMA
W/o. Late Chikka Byanna
Aged about 65 years
2 SRI. C.NARAYANA @ BABU
S/o. Late Chikka Byanna
Aged about 38 years
BOTH ARE R/AT:
No.486, 7th "A" cross
1st Main Road
II Stage, Vijayanagar
Bengaluru - 560 040.
(REP BY: SRI. SHANMUKHAPPA)
V/s
DEFENDANTS: 1 SRI. K. THYAGARAJU
2 SMT. GEETA JAYARAMU REDDY
W/o. Jayaramu Reddy
Aged about 40 years
3 SRI. JAYARAMU REDDY K.N.
S/o. Bhoja Reddy
Aged about 40 years
2
OS.27300/2009
All are carrying on business at:
No. 486, 1st Main Road
7th Cross Vijayanagar
Bengaluru - 560 040.
Date of Institution of the suit 19.11.2009
Nature of the Suit (Suit on pronote, suit for
EJECTMENT
declaration and possession, suit for injunction, etc.)
Date of the commencement of recording of the
11.08.2010
Evidence.
Date of pronouncement of Judgment 21.03.2020
Year/s Month/ Day/s
Total duration
s
10 04 02
JUDGMENT
Plaintiffs have filed the instant suit against defendants for eviction, recovery of arrears of rent of Rs.3,60,000/ and damages at the rate of Rs.20,000/ per month from the date of the suit till defendants vacate and deliver the vacant possession of schedule shop rooms and costs.
FACTS OF THE CASE:
2. Plaintiffs are the owners of suit shop rooms. They let out the same to the 1st defendant by executing rent agreement 3 OS.27300/2009 dated:04.11.1999. As per the rent agreement, 1st defendant has to pay monthly rental of Rs.10,000/. Without the consent and permission of plaintiffs, 1st defendant subleased the suit shop rooms to defendants 2 & 3. Defendants 2 & 3 are running a gas agency in one shop room and flour mill in another shop room. To do the said business, they have not obtained requisite license and permissions of the competent authorities. Plaintiffs contend that, defendants are the chronic defaulters in payment of rents. As on the date of filing of the suit, they were in due of rent of Rs.3,60,000/. Plaintiffs contend that, they terminated the tenancy of 1st defendant by issuing Quit notice dated:18.06.2009. As abundant caution, they served the said quit notice to defendants 2 & 3 - the sub lessees. After termination of tenancy, defendants not vacated the suit shop rooms. Therefore they are liable to pay damages/ mesne profit at the rate of Rs.20,000/ per month. On these and other grounds stated in the plaint, plaintiffs pray to decree the suit and to grant the reliefs as prayed for. 4
OS.27300/2009
3. After service of summons, 1st defendant did not appear before the Court in person or through counsel. Therefore he has been placed exparte.
4. Defendants 2 & 3 contested the suit by filing written statement. They admitted that, plaintiffs are the owners of suit shop rooms. They denied that, plaintiffs let out the suit shop rooms to 1st defendant by executing rent agreement dated:04.11.1999 on monthly rental of Rs.10,000/ and the 1st defendant has subleased the same to them (defendants 2 & 3). They contend that, 1st defendant is the relative of plaintiffs. Plaintiffs and 1st defendant colluding with each other have defraud them. They contend that, plaintiffs through 1st defendant falsely represented that, they are the owners of suit shop rooms. Believing them, they came forward to take one shop room on rent. Accordingly on 15.07.1998 they were inducted in one shop room as tenants on monthly rental of Rs.1,650/. At that time, they paid security deposit of Rs.1,20,000/. After taking one shop room, they started to run flour mill. After sometime they took the another shop room and rent. At that time they agreed to pay rent 5 OS.27300/2009 of Rs.4,000/ per month to both the shop rooms. The rent was subsequently enhanced to Rs.4,300/. They contend that, after taking the 2nd shop room on rent, they started to do gas agency by obtaining license from BBMP and other departments. Defendants 2 & 3 contend that, in the year 2005, plaintiffs by stating that, they were in financial difficulties, demanded to pay Rs.5,00,000/. Accordingly in the month of December 2005, they paid Rs.5,00,000/ to plaintiffs. Thus in total, they paid a sum of Rs.6,20,000/ to the plaintiffs. Plaintiffs contend that, the said amount will be considered as mortgage money. Defendants 2 & 3 contend that, in the month of February 2008, plaintiffs offered to sell the suit shop rooms to them. They agreed to purchase the same. Accordingly, in the month of February 2008, they paid Rs.10,00,000/ to the plaintiffs. Plaintiffs assured to execute sale deed of suit shop rooms after getting katha in their name. Defendants 2 & 3 contend that, they are illiterate and new to Bengaluru. In the year 1998 when they shifted to Bengaluru to earn bread, they met plaintiffs through 1st defendant and took the suit shop rooms to do business. Plaintiffs are having vast properties adjacent to suit shop rooms. They let out their 6 OS.27300/2009 properties on rents to so many persons. They are not having the habit of either making rent agreement with tenants or issuing rent receipts. Believing plaintiffs, they also paid money as demanded by them without insisting documents. Defendants 2 & 3 contend that, on 08.03.2009 an unfortunate incident took place in their gas agency. While filling the gas, due to the leakage, fire was caught. Therefore the suit shop rooms were damaged. In the said incident, their brother Renukareddy sustained injuries and died. After the said unfortunate incident, the plaintiffs started demanding to vacate the suit shop rooms. They gave false information to the police stating that, they are running the gas agency illegally. On the basis of the false information given by plaintiffs, the police registered false case against them. Defendants 2 & 3 contend that, after the payment of Rs.10,00,000/ in the month of February 2008, they are in possession of the suit shop rooms as intending purchasers. They contend that, initially they were inducted into the shop rooms as tenants. Thereafter their position is changed as mortgagees and finally as intending purchasers. They contend that, in total they paid Rs.16,20,000/ to plaintiffs to purchase the suit shop rooms. Therefore at the time 7 OS.27300/2009 of issuing the quit notice, there is no relationship of landlord and tenant between them and plaintiffs. Therefore the quit notice is bad in law. They contend that, they are not liable to pay either rents or mesne profit/ damages to plaintiffs. Defendants 2 & 3 contend that, plaintiffs colluding with their relative, the 1 st defendant have filed the instant suit by falsely contending that, 1 st defendant is the original tenant of the suit shop rooms and he let out the same to them without obtaining their consent or permission. The said averments of the plaint are false to the knowledge of the plaintiffs. Defendants 2 & 3 contend that, plaintiffs by falsely representing that, they are the owners of suit shop rooms, have inducted them therein as tenants and received in total a sum of Rs.16,20,000/. In the year 2009 they came to know that, plaintiffs are not the absolute owners of suit shop rooms. The family members of the plaintiffs have filed Os.25594/2007 in the City Civil Court, Mayo Hall Unit interalia claiming partition of suit shop rooms. The said suit is pending for consideration. Defendants 2 & 3 contend that, having regard to the factual facts, the plaintiffs cannot terminate their tenancy. Therefore there is no cause of action to file the instant suit. On 8 OS.27300/2009 these and other grounds stated in the written statement, defendants 2 & 3 pray to dismiss the suit.
5. On the basis of the afore said pleadings, on 07.07.2010 the then presiding officer has formulated the following:
ISSUES
1. Whether plaintiffs prove that, they had validity terminated the tenancy of defendant?2. Whether defendant No.2 and 3
proves that, they have paid
additional advance amount in the
month of December 2005 as
mortgage amount?
3. Whether plaintiff proves that,
defendants are in arrears of
rent?
4. Whether plaintiff is entitled
for damages at the rate of
Rs.20,000/ per month?
5. Whether the plaintiff is
entitled for the relief's sought
for?
6. What decree or order?
9
OS.27300/2009
6. Having regard to the contentions taken by the parties, the Court is of the view that, Issue No.2 is recasted and the following additional issues are to be framed. Accordingly Issue No.2 is recasted and following additional issues are framed.
RECASTED ISSUE NO.2 Whether defendants 2 & 3 prove that, in the month of December 2005, they paid Rs.5,00,000/ to the plaintiffs and the said amount would be considered as mortgage money?
ADDITIONAL ISSUES
1. Whether the plaintiffs prove that, they have given the suit shop rooms on rent to the 1st defendant by executing rent agreement dated:04.11.1999 subject to payment of monthly rental of Rs.10,000/?
2. Whether the plaintiffs prove that, without their knowledge and approval, 1st defendant has subleased the suit shop rooms to defendants 2 & 3?
10
OS.27300/2009
3. Whether defendants 2 & 3 prove that, they took the suit shop rooms on rent from plaintiffs by making payment of security deposit of Rs.1,20,000/ and agreeing to pay rent of Rs.4,000/ per month?
4. Whether defendants 2 & 3 prove that, on the assurance given by plaintiffs, they paid Rs.10,00,000/ to them to purchase the suit shop rooms?
7. On behalf of plaintiffs, 2nd plaintiff was examined as PW1 and produced documents marked at Ex.P.1 to Ex.P.9.
8. On behalf of defendants, 3rd defendant was examined as DW1 & produced documents marked at Ex.D.1 to Ex.D.23.
9. A perusal of record would show that, the parties have lead evidence as per their pleadings. They have not lead evidence taken into consideration, the issues framed. In view of parties have lead evidence as per their respective pleadings, the evidence on record would cover on all the issues and additional issues. 11
OS.27300/2009 Therefore after framing of additional issues, there is no necessity to give opportunity to the parties to lead further evidence.
10. Heard the arguments on both side and perused record.
11. My findings on the above Issues are as under:
ISSUE NO.1 :In the Affirmative
RECASTED ISSUE NO.2 :In the Negative
ISSUE NO.3 :In the Affirmative
ISSUE NO.4 :Partly in Affirmative
ISSUE NO.5 :In the Affirmative
ADDL. ISSUE NO.1 :In the Negative
ADDL. ISSUE NO.2 :In the Negative
ADDL. ISSUE NO.3 :Partly in Affirmative
ADDL. ISSUE NO.4 :In the Negative
ISSUE NO.6 :As per the final order
for the following
REASONS
12. ADDL. ISSUE NO.1 & 2: These 2 Issues are in
respect of jural relationship of landlord and tenant between plaintiffs and 1st defendant. Therefore to avoid repetition of facts and evidence and also for convenience, they are taken together for consideration.
12
OS.27300/2009
13. Plaintiffs contend that, they have given the suit shop rooms on rent to 1st defendant by executing Rent agreement dated:04.11.1999 subject to payment of rent of Rs.10,000/ per month. Defendants 2 & 3 denied the said contention and they contend that, they took the suit shop rooms on rent from plaintiffs. After service of summons 1st defendant has remained exparte. 2nd plaintiff who was examined as PW1 has reiterated the plaint averments. He has not produced the rent agreement dated:04.11.1999 alleged to have been took place between plaintiffs and 1st defendant or the rent paid receipts or any other document to prove that, 1st defendant has taken the suit shop rooms on rent. Thus except the selfserving testimony of PW1, there is no cogent and convincing evidence to prove that, plaintiffs have given the suit shop rooms on rent to 1st defendant by executing rent agreement dated:04.11.1999. In the absence of rent agreement or rent paid receipts, the oral testimony of PW1 is not sufficient to hold that, plaintiffs have given the suit shop rooms on rent to 1st defendant. In view of plaintiffs failed to prove that, they have given the suit shop rooms on rent to 1 st defendant, their contention that, 1st defendant has subleased the suit shop 13 OS.27300/2009 rooms to defendants 2 & 3 cannot be believed. In view of the above, I answer Additional Issue No.1 & 2 in the NEGATIVE.
14. ADDL. ISSUE NO.3, 4 & RECASTED ISSUE NO.2:
These issues are in respect of contentions put forth by defendants 2 & 3 about their relationship with plaintiffs in respect of suit shop rooms. Therefore to avoid repetition of facts and evidence and also for convenience, they are taken together for consideration.
15. Defendants 2 & 3 to prove that, they have taken the suit shop rooms from plaintiffs are placing reliance on the testimony of 3rd defendant who was examined as DW1. DW1 in his examination in chief has reiterated the facts stated in the written statement. He produced Ex.D.1 Receipt; Ex.D.2, 3 & 6 Trade License; Ex.D.4 Composition Tax Registration Certificate obtained U/Sec.22 of Karnataka Value Added Tax Act 2003; Ex.D.5, 8 , 9 to 11, 13 to 16 & 20 Invoices/ Bills; Ex.D.7, 12, 17 & 18 Bills regarding gas cylinders; Ex.D.21 & 22 Electricity Demand Bills and Ex.D.23 Electricity Bill paid receipt. Except Ex.D.1 plaintiffs have not disputed the rest of the documents produced by defendants 2 & 3. The above documents would support the contention of the 14 OS.27300/2009 defendants 2 & 3 that, they are in the possession of suit shop rooms and by taking license, they are running gas agency in one shop room. In the instant case, there is no dispute that, defendants 2 & 3 are in possession of suit shop rooms. The point for consideration is, under what capacity they are in possession of the said shop rooms.
16. DW1 on oath has stated that, on 15.07.1998 defendants 2 & 3 took one shop room on rent from plaintiffs for running flour mill agreeing to pay rent on Rs.1,650/. After sometime they took another shop room on rent. At that time, defendants 2 & 3 agreed to pay monthly rent of Rs.4,000/ and the same was subsequently enhanced for Rs.4,300/. Plaintiffs have produced Ex.P.6 to 9 certified copy of Ordersheet, plaint and written statement of OS.3050/2009. In para No.4 of Ex.P.7 Plaint, defendants 2 & 3 have stated that, they have taken the suit shop rooms on rent from plaintiffs, agreeing to pay monthly rent of Rs.4,000/ and paid security deposit of Rs.1,20,000/. Plaintiffs of the instant case, who are the defendants in the said case in the written statement have reiterated their contention that, they have 15 OS.27300/2009 given the suit shop rooms on rent to 1 st defendant Thyagarajan. While answering Addl. Issue No.1 & 2 I have held that, plaintiffs failed to prove that, they given the suit shop rooms on rent to 1 st defendant and 1st defendant has subleased the said shop rooms to defendants 2 & 3.
17. In the instant case, plaintiffs have filed written arguments. In para No.8 of the written arguments, plaintiffs contend that, in view of the contention of defendants 2 & 3 in this case and in OS.3050/2009 by considering them as tenants, the Court has to hold that, their tenancy was validly terminated. When such is the case, from the oral and documentary evidence on record and the contention taken by plaintiffs in their written arguments, the Court can safely come to the conclusion that, defendants 2 & 3 are in possession of suit shop rooms as tenants.
18. Admittedly, there is no rent agreement between plaintiffs and defendants 2 & 3. Defendants 2 & 3 to prove that, at the time of taking the suit shop rooms on rent, they paid security deposit of Rs.1,20,000/ to plaintiffs, are placing reliance on Ex.D.1 Receipt alleged to have been executed by 2 nd plaintiff. PW1 16 OS.27300/2009 has denied the execution of the said receipt. The admitted signatures of PW1 (2nd plaintiff) are available on record. A bare comparison of the disputed signature of 2nd plaintiff on Ex.D.1 with his admitted signature available on record with naked eyes, without any difficulty, it can be said that, they are not similar. In the cross examination of PW1, the learned counsel for the defendants 2 & 3 has made a suggestion that, to defraud defendants 2 & 3 on Ex.D.1 he put the signature differently. PW1 has denied the said suggestion. According to defendants, plaintiffs are joint owners of suit shop rooms. When such is the case, at the time of taking shop rooms, if really they would have paid security deposit of Rs.1,20,000/, they could have made an agreement in that regard with the plaintiffs instead of taking receipt. Taking receipt by the tenant for payment of security deposit without making rent agreement is not an usual practice. Defendants 2 & 3 contend that, plaintiffs are not having the habit of issuing any receipts for receipt of money or for payment of rents. In view of the said contention, the statement of DW1 that, 2 nd plaintiff has issued Ex.D.1 Receipt acknowledging the security deposit of Rs.1,20,000/ cannot be believed.
17
OS.27300/2009
19. A perusal of Ex.D.1 would show that, 2 persons namely Renuka Prasad & Jayaram have signed on it as witnesses. A perusal of ordersheet would show that, when the case was posted for arguments, defendants filed IA.No.8 & 9 seeking permission to lead further evidence and to issue summons to witness Renuka Prasad. The said application was allowed by imposing cost of Rs.2,000/. Against the said order plaintiffs have filed W.P.55720 - 55721/2017. In the said Writ petitions, stay was not granted. Therefore on 25.03.2019 the Court has passed an order to issue summons to witness, if steps taken. Defendants 2 & 3 did not take steps. On 16.04.2019 defendants 2 & 3 and their counsel absent. They did not take steps to issue witness summons. Therefore the case was posted for arguments. On 01.07.2019 defendant 2 & 3 have filed IA.No.1/19 for reopening of the case and permit them to take witness summons. The said application was allowed on 16.07.2019 and the defendants 2 & 3 were directed to take steps to issue witness summons through court process and also by RPAD within 7 days with a rider that, if they failed to take steps within 7 days, IA.No.1/19 would stand 18 OS.27300/2009 dismissed. The summons sent to the witness did not serve. Therefore defendants 2 & 3 took hand summons. On 21.12.2019 the counsel for plaintiff filed memo stating that, the Writ petition filed by defendants 2 & 3 was dismissed. Therefore on 21.12.2019 once again summons was issued to witness through Court process and also by RPAD. Defendants 2 & 3 neither took steps nor returned the hand summons. Thus though sufficient opportunity has been given, defendants 2 & 3 have not examined witnesses of Ex.D.1 Receipt. In the above, I have stated that, the signature on Ex.D.1 would not tally with the admitted signature of 2 nd plaintiff available on record. Further I have hold that, at the time of creating tenancy, if the tenant paid the security deposit, normally a rent agreement would be made stating the terms and conditions of lease. Taking receipt in the form of Ex.D.1 to evidence the payment of security deposit by the tenant to the land lord is not an usual practice. In view of my said finding, I am of the view that, the testimony of DW1 that, at the time of taking the suit shop rooms on rent, they paid Security deposit amount of Rs.1,20,000/ to plaintiffs and to evidence the same, Ex.D.1 Receipt was made, does not inspire confidence of the Court. In view of the above, I 19 OS.27300/2009 hold that, defendants 2 & 3 failed to prove that, at the time of taking the suit shop rooms on lease, they paid security deposit amount of Rs.1,20,000/ to the plaintiffs.
20. DW1 has stated that, in the month of December 2005, plaintiffs demanded defendants 2 & 3 to pay a sum of Rs.5,00,000/ stating that, they are facing financial difficulties. Therefore they paid a sum of Rs.5,00,000/ to plaintiffs. Further DW1 has stated that, in the month of February 2008, plaintiffs have given assurance to defendants 2 & 3 that, they will sell the suit shop rooms to them. He stated that, the relationship of plaintiffs and defendants 2 & 3 was good. Therefore believing the version of plaintiffs, defendants 2 & 3 paid a sum of Rs.10,00,000/ to them. Plaintiffs have denied the said contention. According to defendants 2 & 3, no document was made to evidence either payment of Rs.5,00,000/ in the month of December 2005 or Rs.10,00,000/ in the month of February 2008.
21. Defendants 2 & 3 the husband and wife are the businessmen. To do business, they have obtained license and also VAT certificate. Obtaining gas agency license is not an easy task. 20
OS.27300/2009 Therefore having regard to the occupation of the defendants 2 & 3, without any difficulty it can be said that, they are having worldly knowledge. No person having worldly knowledge would give their hard earned money in lakhs of rupees without making a document. As contended by defendants 2 & 3, if the plaintiffs are not having a habit of issuing receipts for receipt of money, if virtually defendants 2 & 3 would have paid hefty amount of Rs.5,00,000/ & Rs.10,00,000/ to the plaintiffs, they could have paid it through cheque, DD or through any other banking transaction modes. DW1 except baldy stating that, in the month of December 2005 defendants 2 & 3 paid Rs.5,00,000/ and in the month of February 2008, they paid Rs.10,00,000/ to the plaintiffs, has not stated on which date, they paid the said amounts to plaintiffs. Defendants 2 & 3 have also not produced any document to show that, in the month of December 2005 and in the month of February 2008, virtually they were having that much of amount with them. According to defendants 2 & 3, on the assurance of plaintiffs that, the amount of Rs.5,00,000/ would be considered as mortgage money they paid Rs.5,00,000/ and on the assurance of plaintiffs that, they will sell the suit shop rooms to 21 OS.27300/2009 them, they paid Rs.10,00,000/. Therefore according to defendants 2 & 3, they have paid Rs.5,00,000/ & Rs.10,00,000/ to plaintiffs to change their relationship with plaintiffs in respect of suit shop rooms i.e., from tenants to mortgagees and mortgagees to intending purchasers. When such is the case, no man of common prudent will pay such huge amount without making document. Admittedly after receipt of Ex.P.1 Notice, defendants 2 & 3 have issued Ex.P.5 Reply. In Ex.P.5 Reply defendants 2 & 3 have stated that, they have paid the rents of suit shop rooms up to May 2009. As contended by defendants 2 & 3, if virtually they would have paid Rs.5,00,000/ to plaintiffs in the month of December 2005 and the plaintiffs would have considered the said amount as mortgage money and in the month of February 2008 they would have paid Rs.10,00,000/ to plaintiffs as an advance to purchase the suit shop rooms, there is no necessity for them to pay rents to plaintiffs up to the month of May 2009. Thus there is no consistency in the contentions of defendants 2 & 3. They are blowing hot and cold simultaneously. In view of the above, I hold that, except selfserving testimony of DW1, which appears to be highly unnatural and improbable 22 OS.27300/2009 having regard to the business and worldly knowledge to defendants 2 & 3, there is no cogent and convincing evidence to prove that, in the month of December 2005 and in the month of February 2008, defendants 2 & 3 paid a sum of Rs.5,00,000/ and Rs.10,00,000/ to the plaintiffs respectively.
22. In the written statement and in Ex.P.7 plaint, defendants 2 & 3 have admitted that, the last rate of rent which they agreed to pay to plaintiffs in respect of suit shop rooms is Rs.4,300/ per month. In Ex.P.5 reply, defendants 2 & 3 contend that, they paid rents of Rs.4,300/ per month to plaintiffs up to May 2009. In the above, I have stated that, defendants 2 & 3 have proved that, as tenants they are in possession of suit shop rooms. In view of my said findings, I hold that, defendants 2 & 3 are in possession of suit shop rooms as tenants on monthly rental of Rs.4,300/. In view of my afore said findings, I hold that, defendants 2 & 3 have proved that, they are in possession of suit shop rooms as tenants under plaintiffs on monthly rental of Rs.4,300/. They failed to prove that, at the time of taking the suit shop rooms on rent, they paid security deposit of Rs.1,20,000/, in 23 OS.27300/2009 the month of December 2005 they paid Rs.5,00,000/ and in the month of February 2008 they paid Rs.10,00,000/ to the plaintiffs. Accordingly I answer Recasted Issue No.2 & Addl. Issue No.4 in the NEGATIVE and Addl. Issue No.3 PARTLY IN AFFIRMATIVE.
23. ISSUE NO.1: plaintiffs have produced Ex.P.1 Office copy of Quit Notice dated:18.06.2009. Ex.P.4 is the returned postal cover. At the time of marking, by mistake Ex.P.4 returned postal cover was not opened to see what is there in it. At the time of passing the judgment, I opened it. In the said returned postal cover, the original quit notice dated:18.06.2009 is there. For convenience it is marked at Ex.P.4(a). A perusal of Ex.P.10 to 12 postal receipts would show that, plaintiffs sent Ex.P.1 notice to defendants on 04.08.2009. After receipt of Ex.P.1 Notice, defendants 2 & 3 sent Ex.P.5 Reply. In Ex.P.1 Notice plaintiffs referred defendants 2 & 3 as subtenants/ sublessees. While answering Addl. Issue No.3 I have held that, defendants 2 & 3 are in possession of suit shop rooms as tenants. In view of my said findings, the point for consideration is by issuing Ex.P.1 Notice, 24 OS.27300/2009 whether plaintiffs validly terminated the tenancy of defendants 2 & 3 in respect of suit shop rooms.
24. Sec.106 of Transfer of Property Act (T.P. Act) deals regarding termination of tenancy. From the evidence on record, it is evident that, the tenancy between the plaintiffs and defendants 2 & 3 in respect of suit shop rooms is a monthly tenancy. In Ex.P.1 Notice, it is stated that, the tenancy commences on the first date of the calender month and ends on the last date of the same month. In Ex.P.5 Reply, defendants 2 & 3 have stated that, they received Ex.P.1 notice on 05.08.2009. Plaintiffs have filed the instant suit on 19.11.2009. Therefore they have filed the instant suit 15 days after service of Ex.P.1 notice to defendants. Thus plaintiffs have validly terminated the tenancy of defendants 2 & 3 in respect of suit shop rooms by issuing Ex.P.1 Quit Notice. In view of the above, I answer Issue No.1 in the AFFIRMATIVE.
25. ISSUE NO.3: PW1 has stated that defendants are the chronic defaulters in payment of rents. They stated that, as on the date of suit, defendants were in due of Rs.3,60,000/ towards arrears of rents. Plaintiffs contend that, the rate of rent is 25 OS.27300/2009 Rs.10,000/ per month. By taking the rent at the rate of Rs.10,000/ per month, plaintiffs claiming Rs.3,60,000/ arrears as of rent of 3 years before filing the instant suit. While answering Addl. Issue No.3 I have held that, the rate of rent of suit shop rooms is Rs.4,300/. Defendants 2 & 3 have not produced any document to show that, they paid rents. When such is the case, there is no reason to disbelieve the testimony of PW1 that, defendants 2 & 3 are in arrears of rents of more than 3 years prior to the date of filing of the suit. When such is the case, plaintiffs are entitled to recover arrears of rent of 3 years prior to the date of filing of the suit. The rent of 3 years is (Rs.4,300/ X 36 i.e.,) Rs.1,54,800/. In view of the above, I hold that, plaintiffs are entitled to recover arrears of rent of Rs.1,54,800/ from defendants 2 & 3. In view of the above, I answer Issue No.3 in the AFFIRMATIVE.
26. ISSUE NO.4: Plaintiffs claiming damages/ mesne profit at the rate of Rs.20,000/ per month. While answering issue No.1, I have held that, plaintiffs by issuing Ex.P.1 Quit Notice validly terminated the tenancy of defendants 2 & 3 in respect of 26 OS.27300/2009 suit shop rooms. After termination of tenancy, defendants 2 & 3 have not vacated the suit shop rooms. They contested the suit by raising various contentions but they failed to prove. Defendants 2 & 3 are using the suit shop rooms for commercial purpose. Except selfserving testimony of PW1, there is no cogent and convincing evidence regarding the rental value of suit shop rooms as on the date of filing of the suit. Therefore I am of the view that, it would be just and reasonable to fix the mesne profit/ damages at the rate of Rs.5,000/ per month. In view of the above, I hold that, defendants 2 & 3 are liable to pay mesne profit/ damages at the rate of Rs.5,000/ per month from the date of suit, till they vacate and hand over the vacant possession of suit shop rooms to plaintiffs. Accordingly, I answer Issue No.4 PARTLY IN AFFIRMATIVE.
27. ISSUE NO.5: In view of my reasons and findings on afore said issues, plaintiffs are entitled for the relief of ejectment, arrears of rent of Rs.1,54,800/ and damages/ mesne profit at the rate of Rs.5,000/ per month from the date of suit till they vacate and hand over the vacant possession of the suit shop 27 OS.27300/2009 rooms to plaintiffs. Accordingly, I answer Issue No.5 in the AFFIRMATIVE.
28. ISSUE NO.6: In view of my reasons and findings on Issue No.1 to 5 & Addl. Issue No.1 to 4, I pass the following:
ORDER Plaintiffs suit is decreed with costs. Defendants 2 & 3 are directed to vacate and hand over the vacant possession of the suit shop rooms to plaintiffs within a month from today, pay arrears of rent of Rs.1,54,800/ and damages/ mesne profit at the rate of Rs.5,000/ per month from the date of the suit till they vacate and hand over the vacant possession of the suit shop rooms to plaintiffs.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 21 st day of March 2020) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 28 OS.27300/2009 ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFFS:
PW1 C. NARAYAN @ BABU LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 Legal notice Ex.P.2 & 3 Postal acknowledgment Ex.P.4 Postal cover Ex.P.5 Reply notice Ex.P.6 Order sheet in OS.3050/2009 Ex.P.7 Plaint in OS.3050/2009 Ex.P.8 Valuation Slip in OS.3050/2009 Ex.P.9 Written statement in OS.3050/2009 Ex.P.10 to 12 Postal acknowledgments
LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 JAYARAMA REDDY LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:
Ex.D.1 Receipt
Ex.D.2 & 3 Trade licenses
Ex.D.4 Registration Certificate
Ex.D.5 Invoice
Ex.D.6 Trade license certificate
Ex.D.7 - 20 Receipts
29
OS.27300/2009
Ex.D.21 & 22 Electricity Demand Bill
Ex.D.23 BWSSB Receipt
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge
Mayohall Unit, City Civil Court
Bengaluru. (CCH - 75)