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2012 DIGILAW 364 (KAR)

Kannamma, Muthaiah v. R. Poornachandra

2012-04-16

H.S.KEMPANNA

body2012
JUDGMENT H.S. KEMPANNA, J.—Though this appeal has been listed for admission with consent it is heard on merits and disposed of by this judgment. 2. This is a defendants’ appeal challenging the judgment and decree of the trial Court granting decree of eviction against them. 3. For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the suit. 4. The brief facts of the case are as follows: The suit schedule property is a shop bearing No. 4 situated in ground floor of the entire property bearing No. 22, I Main Road, III Cross, Sudhamnagar, Bangalore-27, more fully described in the schedule appended to the plaint (hereinafter referred to as the ‘suit premises’ for short). 4.1. The plaintiff instituted the suit against the defendant seeking the relief of ejectment of the defendants from the suit premises and for recovery of the damages of Rs. 10,000/- p.m. with interest at 24% . 4.2. It is the case of the plaintiff that he is the owner of the suit schedule property. The said property belonged to his late father G. Rajashekaraiah. His late father bequeathed the suit schedule property under the will dated 22.4.1981 in favour of his wife Smt. R. Gowramma. As such his mother Smt. R. Gowramma became the absolute owner of the property. She died on27.12.1995. As he was the only son to his parents, he inherited the suit schedule property. He got the katha of the suit property changed to his name on 5.4.2007. 4.3. The defendants are the legal representatives of late Muthaiah who had been inducted as defendant/lessee of the suit schedule property. The defendants are now running the suit shop premises. They are not regularly paying the rent to him. The lease agreement executed was in the year 1981 and it was for a period of 11 months. The defendants are carrying on the business of kerosene under the name and style of Sri. Manjunatha Swamy Prasanna Kerosene Shop’. They have not paid the rents. Hence, he got issued the legal notice to the defendants on 10.2.2004 calling upon them to pay the rents, to which the defendants sent a reply on 1.3.2004. They contended that they have paid advance of Rs. 25,000/-which is not correct as mentioned in the reply. Manjunatha Swamy Prasanna Kerosene Shop’. They have not paid the rents. Hence, he got issued the legal notice to the defendants on 10.2.2004 calling upon them to pay the rents, to which the defendants sent a reply on 1.3.2004. They contended that they have paid advance of Rs. 25,000/-which is not correct as mentioned in the reply. Thereafter, he issued another legal notice dated 7.7.2007 terminating the tenancy of the defendant and also called upon the defendants to pay the arrears of rent. The defendants have sent the reply to the same on 23.7.2007 and they have also paid an amount of Rs. 40,000/- by way of pay order bearing No. 036361 dated 20.7.2007. They are liable to pay the balance of Rs. 7,000/- to the plaintiff. As they are not regular in payment of rent and as they have refused to deliver vacant possession of the premises, the plaintiff filed the suit seeking for an order of eviction against the defendants and for recovery of arrears of rent and mesne profits. 4.4. After service of suit summons, the defendants appeared and contested the suit. In the written statement among other things it was contended that the suit is not maintainable either in law or on facts. The measurement of the schedule premises is not correct and it has been given with an ulterior motive. The defendants are not aware of the fact that the plaintiff is the owner of the suit schedule property. They also denied the plaintiff having inherited the property from his parents. They admitted that they are the legal heirs of late Muthaiah, the original tenant. But they denied after his death having occupied shop No. 4 as legal representatives. They also contended that they have paid an advance of Rs. 25,000/- and not Rs. 1,000/-. The Court has no jurisdiction to entertain the suit. There is no cause of action. There is no valid termination of tenancy and the Court has no jurisdiction to try the suit and accordingly, sought for dismissal of the same. 4.5. On the basis of the above pleadings the trial Court framed the following issues: 1. Whether the plaintiff proves the jural relationship of landlord and tenant between himself and the defendant No. 1.? 2. Whether the plaintiff proves that he has duly terminated the tenancy of the defendants? 3. 4.5. On the basis of the above pleadings the trial Court framed the following issues: 1. Whether the plaintiff proves the jural relationship of landlord and tenant between himself and the defendant No. 1.? 2. Whether the plaintiff proves that he has duly terminated the tenancy of the defendants? 3. Whether the plaintiff is entitled to recover the arrears of rent as prayed for? 4. Whether this Court has jurisdiction to try the suit? 5. Whether the plaintiff proves that the valuation of the suit is proper and payment of Court-fee is sufficient? 6. Whether the defendants prove that the plaintiff has waived the notice to quit as contemplated under Section 112 and 113 of the Transfer of Property Act? 7. What order or decree? Additional issue: “Whether the plaintiff is entitled for damages at the rate of Rs. 10,000/- p.m. with interest at the rate of 24% from the defendants from the date of termination of tenancy till the filing of the suit?” 4.6. The plaintiff in support of his case got himself examined as PW1, produced 13 documents which came to be marked as Exhibits P1 to P13. The defendants in support of their case examined defendant No. 2 as DW1, produced 5 documents which came to be marked as Exhibits D1 to D5. 4.7. The trial Court thereafter on hearing the counsels for the respective parties and on perusal of the evidence and the documents on record held that the plaintiff has proved that there exist jural relationship of landlord and tenant between him and defendant No. l, plaintiff has validly terminated the tenancy of the defendants, he is entitled to recover the arrears of rent, the Court has jurisdiction to try the suit, valuation of the suit and payment of Court fee is proper and sufficient, the defendants have failed to prove that the plaintiff has waived the notice to quit as contemplated u/Ss.112 and 113 of the Transfer of Property Act and plaintiff is entitled to the damages as per the order with interest. Accordingly, by its judgment dated 1.12.2011 decreed the suit of the plaintiff granting an order of eviction in favour of the plaintiff and against the defendants and also ordered that the plaintiff is entitled to arrears of rent of Rs. Accordingly, by its judgment dated 1.12.2011 decreed the suit of the plaintiff granting an order of eviction in favour of the plaintiff and against the defendants and also ordered that the plaintiff is entitled to arrears of rent of Rs. 7,000/- up to 30.6.2007 with interest at 6% p.a. from the date of the suit till complete realisation from the defendants and he is also entitled to mesne profits at the rate of Rs. 5,000/-p.m. from the date of the suit till complete realisation and directed the defendants to quit, vacate and hand over the suit schedule premises within three months from the date of the order. 4.8. It is the correctness and legality of the said judgment and decree that has been assailed by the appellants/defendants in this appeal. 5. The learned counsel for the appellants/defendants contended that the impugned judgment and decree cannot be sustained as the same is contra to the evidence and the documents on record. The trial Court erred in trying the suit despite it having no jurisdiction to try the same as the value of the suit and the rent claimed falls within the jurisdiction of the Small Causes Court. It ought to have transferred the suit to the Court of Small Causes. In the alternative he submitted that reasonable time be granted to the tenant to quit, vacate and deliver vacant possession of the premises. 6. Per contra, learned counsel appearing for the respondent/plaintiff submitted that the impugned judgment and decree having been based on evidence and documents placed on record, it does not suffer from any infirmity calling for any interference in this appeal. He further submitted that, in respect of the two other tenements of which plaintiff is the owner, the tenants have preferred RFA 353/2012 and RFA 354/12 challenging the order of eviction. In the said appeals this Court has dismissed the same granting 6 months to the tenants in the said appeals to quit, vacate and deliver vacant possession of the premises and four weeks time to pay the arrears of rent and mesne profits as indicated in the said order. In the said appeals this Court has dismissed the same granting 6 months to the tenants in the said appeals to quit, vacate and deliver vacant possession of the premises and four weeks time to pay the arrears of rent and mesne profits as indicated in the said order. Since the suit premises is one of the tenements among the three tenements of which the plaintiff is the owner, the plaintiff has no objection to grant 6 months time to the appellants/defendants to quit, vacate and hand over vacant possession of the suit schedule premises to the plaintiff/respondent with a further direction to pay arrears of rent and mesne profits with interest at 6% p.a. within four weeks as ordered in the other connected appeals. 7. The material on record reveals the plaintiff apart from being the owner of the suit premises is also owner of two other tenements which are located adjacent to the suit premises. He has initiated eviction proceedings against all the tenants including the present defendants. All the eviction suits filed by him have been decreed including the one on hand. In the other two eviction proceedings, the tenants who have suffered the decree have preferred RFA 353/12and RFA 354/12. The said appeals according to the counsel for the respondent/plaintiff have been dismissed by this Court granting six months time to the said tenants to quit, vacate and deliver vacant possession of the premises and also to pay arrears of rent and mesne profits with interest at 6% from the date of the suit till its realisation. Though it was vehemently contended that the plaintiff has failed to establish that there is no jural relationship of land lord and tenant between him and tenants, as the trial Court on an appreciation of the evidence and the documents placed on record has come to the conclusion that the plaintiff has established the jural relationship and has held that the defendants are his tenants which finding is also recorded in the other two eviction proceedings initiated by him in respect, of the other tenants which has been confirmed in the appeals inasmuch as dismissing the appeals preferred by the tenants, there is no merit in the contention urged by the counsel for the appellants/tenants that there is no relationship of landlord and tenant. The finding of the trial Court on this issue having been based on the evidence and the documents on record, which is justifiable in law, does not call for any interference. In that view of the matter taking into consideration that in the connected appeals preferred by the tenants, as submitted by the counsel for the respondent/plaintiff, which is not disputed to by the counsel for the appellants, that six months time has been granted to quit, vacate and deliver vacant possession of the premises and further ordering to pay the arrears of rent with mesne profits with interest at the rate of 6% within four weeks from the date of the order, the appeal does not merit any consideration and deserves to be dismissed by granting time to deliver vacant possession of the premises and to pay arrears of rent and mesne profits. 8. In the result, for the foregoing reasons, I proceed to pass the following : ORDER (i) The appeal is dismissed; (ii) However, the appellants/tenants are granted 6 months time from today to quit, vacate and deliver vacant possession of the suit premises to the respondent/plaintiff; (iii) The appellants/tenants are further granted four weeks time to pay arrears of rent and mesne profits with interest at the rate of 6% p.a. from the date of the suit till the date of the payment, failing which the respondent/plaintiff is entitled to take steps as are available to him in accordance with law.