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2013 DIGILAW 616 (KAR)

Amir Rahamathulla Khan v. Meera Harinath

2013-06-03

ARAVIND KUMAR

body2013
JUDGMENT Aravind Kumar, J.—This is a defendant's appeal challenging the judgment and decree passed by XXVI Addl. City Civil Judge, Mayohall, Bangalore dated 09.12.2011 in O.S. No. 15443/2005 whereunder plaintiffs suit for ejectment has been decreed by directing the defendant to hand over vacant possession of schedule premises within three months from the date of the order. Though the matter was listed for admission, by consent of learned Advocates appearing for the parties and also taking into consideration that the suit for ejectment was pending before trial Court from the year 2005, appeal is taken up for final disposal. 2. I have heard the arguments of Sri B.S. Krishnamurthy learned Advocate appearing for appellant and Sri Shailesh learned Advocate appearing for respondent. The parties are referred to as per their rank in the trial Court. 3. Plaintiff instituted a suit for ejectment against defendant contending that defendant is a tenant under the plaintiff in respect of the suit schedule property on a monthly rent of Rs. 11,000/- and plaintiff got issued a legal notice dated 28.12.2004 terminating the tenancy and defendant did not comply with the demand made in the notice as such, she sought for ejectment of defendant from the suit schedule property. The defendant filed his written statement contending that he was inducted as a tenant through the Rent Controller by way of allotment and the rate of rent fixed was Rs. 6,000/- per month and it was enhanced from time to time and the present rent is Rs. 11,000/- per month. Regarding requirement of the plaintiff of suit schedule property came to be denied. It was contended that on account of plaintiffs inability to extract higher rent from the defendant the suit for ejectment has been filed. It was also contended that defendant had effected plastering of the entire house including colouring and white washing and also raising the compound wall for safety of inmates and had expended Rs. 25 lakhs and has also further spent amounts towards periodical maintenance on the assurance that said amount would be adjusted towards rent. Receipt of notice of termination was accepted. 4. 25 lakhs and has also further spent amounts towards periodical maintenance on the assurance that said amount would be adjusted towards rent. Receipt of notice of termination was accepted. 4. On the basis of pleadings of the parties, trial Court framed the issues and after evaluation of entire evidence both oral and documentary, trial Court by its judgment and decree dated 09.12.2011 decreed the suit directing the defendant to hand over vacant possession of the schedule premises within three months from the date of order. It is this judgment and decree which is questioned in the present appeal. 5. It is the contention of Sri Krishnamurthy that termination notice dated 27.12.2004 Ex. P-2 is bad in law and it is not in accordance with 106 of Transfer of Property Act, 1882. He contends under the said notice, plaintiff ought to have given 15 clear days notice for the tenant to vacate which should have expired, commencing from the end of the date on which the tenancy comes to an end and draws the attention of the Court to the said notice Ex. P-2 whereunder it has been not stated as to when the tenancy would come to an end and from the said date there being 15 days clear notice, as such, he contends that the said notice is bad in law. He would further elaborate his submission by contending that plaintiffs father had periodically; enhanced the rents under the threat of eviction and as such the plaintiff did not intentionally enter the witness box and her power of attorney holder has been examined on behalf of the plaintiffs and as such said evidence should not be taken into consideration. He would elaborate his submission by contending that defendant has a lien over the suit schedule premises inasmuch as, at the behest and by consent of plaintiff's father defendant had spent enormous amount namely, to an extent of Rs. He would elaborate his submission by contending that defendant has a lien over the suit schedule premises inasmuch as, at the behest and by consent of plaintiff's father defendant had spent enormous amount namely, to an extent of Rs. 25 lakhs for plastering the entire suit schedule premises, colouring, white washing and on the assurance that same will be adjusted or repaid and till such time, defendant can continue to reside in the premises and this aspect has not been properly appreciated by the trial Court and the finding of the trial Court that there has been no counter claim or set off not having been sought for in the written statement, could not have been a ground to decree the suit and as such he prays for setting aside the judgment and decree passed by trial Court. He contends that the finding of trial Court that except oral evidence of D.W.1 there is nothing on record to show that the father of respondent assured the appellant to deduct the amount said to have been invested by defendant on the schedule premises is erroneous inasmuch as, the evidence of defendant has not been considered by trial Court in proper perspective namely, it can be implied by the conduct of parties and the fact that the recitals in Ex. D-32 written by plaintiffs father itself would go to indicate that the schedule premises required plastering, colouring and white washing and also raising of the compound wall, which ought to have been taken into consideration by trial Court to hold that the defendant has a lien over the suit schedule premises. He would also contend that the contention of the plaintiff about defendant having caused substantial damage to the suit schedule premises is to be construed as substantial improvement having been made by taking into consideration Ex. D-31, Ex. D-32 and Ex. D-33 since they would indicate that defendant having carried out substantial repairs to the suit schedule premises. He submits that on general equitable principle it has to be held that defendant is entitled to continue in the suit schedule premises till the amounts expended by the defendant is paid by the plaintiff namely, to the tune of Rs. 25 lakhs as certified by the Chartered Engineer as per certificate Ex. D-33. 6. He submits that on general equitable principle it has to be held that defendant is entitled to continue in the suit schedule premises till the amounts expended by the defendant is paid by the plaintiff namely, to the tune of Rs. 25 lakhs as certified by the Chartered Engineer as per certificate Ex. D-33. 6. He would also draw the attention of the Court to the order passed by trial Court on I.A. No. 4 whereunder application filed under Order 14 Rule 5 CPC by the defendant seeking for recasting of issues came to be allowed by trial Court by order dated 05.04.2010 and said additional issue having been framed by the trial Court, it ought to have recorded the finding on the said additional issue. Since, no such specific finding has been recorded by the trial court, he seeks for setting aside the judgment and decree passed by trial Court and remanding the matter back to trial Court for adjudicating the matter afresh. 7. In support of the submissions made herein above, he relies upon the following judgments: 1) Indian Decisions 12 Madras page 320 - Kunhammed vs. Narayan Mussad 2) B.P. Sinha Vs. Som Nath, AIR 1971 All 297 3) 1975 (1) KLJ 379 - Town Municipal Council, Harihar vs. Murkal Mahalingappa 8. Per contra, Sri Shailesh, learned Advocate appearing for plaintiff would not only support the judgment and decree passed by trial Court, but would also contend that plaintiff had filed I.A. No. 2 seeking a direction to defendant to pay arrears of rent amounting to Rs. 2,97,000/- and also to continue to pay monthly rents and in this regard he draws the attention of this Court to the order of trial Court dated 22.4.2009 whereunder said application came to be allowed and defendant was directed to deposit the amount of Rs. 2,97,000/- within one month from the date of order and a further direction was issued to the defendant to go on paying rent at the rate of Rs. 11,000/- per month from November 2008 till disposal of the suit and said order having not been complied defendant is not entitled to prosecute this appeal. He would submit that till date rents have not been paid namely, for 54 months and the arrears of rent as on date is Rs. 55,94,000/- and submits this would clearly establish the conduct of defendant. He would submit that till date rents have not been paid namely, for 54 months and the arrears of rent as on date is Rs. 55,94,000/- and submits this would clearly establish the conduct of defendant. He would further draw the attention of Court to the order of trial Court dated 05.04.2010 whereunder the defendant had sought for amendment of the written statement whereunder defendant intended to introduce a plea as paragraph 4(a) by contending that "plaintiff is estopped from evicting the defendant from schedule premises whom she induced him by his representation and conduct to believe that he had a fixity of tenure, although not of rent in the premises that had been leased to him" and said application having been dismissed, same had reached finality and hence he prays for affirming the judgment and decree passed by trial Court. 9. He would also state that though additional issue was ordered to be framed by trial Court by its order dated 05.04.2010 by allowing I.A. No. 4 filed by defendant whereunder he had sought for recasting of the issue which related to the defendant proving investment of Rs. 25 lakhs over the suit schedule premises with the consent of plaintiffs father, though not specifically answered by the trial Court under the said heading of additional issue, the perusal of judgment and decree of trial Court would clearly indicate that trial Court has evaluated the evidence tendered by parties in this regard and has arrived at a conclusion that defendant had failed to prove that there was a contract between plaintiffs father on the one hand and defendant on the other hand to deduct the said amount of Rs. 25 lakhs from the rents and till such deduction is completed, defendant has got a right to continue in the suit schedule premises vide paragraph 11 of the judgment. He would submit that 'general equitable principle' pressed into service by the learned counsel for defendant cannot be accepted to be applicable to the facts of the case since it should be supported by evidence and not based on surmises and conjectures. He would also contend that it is not a case of defendant having paid any advance to the plaintiff or to her father to enable him to claim refund of the said amount. He submits that author of Ex. He would also contend that it is not a case of defendant having paid any advance to the plaintiff or to her father to enable him to claim refund of the said amount. He submits that author of Ex. D-33 has not been examined and it would not indicate as to when and how the amounts reflected therein have been spent for improvement of the suit schedule premises. 10. In reply to Mr. Krishnamurthy's contention with regard to statutory notice not being in conformity with Section 106 of Transfer of Property Act, 1882 he contends that defendant did not reply to the said notice nor he has raised any plea in this regard in the written statement and as such defendant cannot now contend that statutory notice issued terminating the tenancy is bad in law. 11. Even otherwise, he would contend that under sub-section (3) of Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as "T.P. Act" for brevity) defective statutory notice by itself would not be a ground to dismiss the suit for ejectment or to arrive at a conclusion that it was fatal for filing a suit for ejectment. He would also contend that with regard to plea of Rs. 25 lakhs said to have been spent by defendant towards the renovation of suit schedule premises, he has not placed any evidence whatsoever and the alleged valuation certificate Ex. D-33 cannot be accepted for want of material particulars and also on account of the author of said document having not been examined. On these grounds he prays for dismissal of the appeal and seeks for affirming the judgment and decree passed by trial Court. 12. Having heard the learned Advocates appearing for the parties and on perusal of the judgment and decree passed by trial Court and also records secured from the trial Court, I am of the considered view that following points would arise for my consideration. (1) Whether the notice dated 27.12.2004 Ex. P-2 terminating the tenancy of defendant is bad in law and same is not in conformity with Section 106 of Transfer Property Act, 1882? (2) Whether the judgment and decree passed by the trial Court is erroneous for want of non framing of additional issue as ordered by the trial Court on 05.04.2010 and as such, the matter requires to be remanded to the trial Court or otherwise? (2) Whether the judgment and decree passed by the trial Court is erroneous for want of non framing of additional issue as ordered by the trial Court on 05.04.2010 and as such, the matter requires to be remanded to the trial Court or otherwise? (3) Whether the judgment and decree passed by the trial Court decreeing the suit and directing the defendant to hand over vacant possession of schedule premises within three months from the date of order is liable to be set aside on account of non appreciation of available evidence or erroneous appreciation of available evidence? (4) What order? BRIEF BACKGROUND OF THE CASE 13. Suit schedule property is a residential building which originally belonged to the plaintiffs father. Defendant was inducted as a tenant by the then Rent Controller - Allotment by fixing the rent at the rate of Rs. 600/- per month by order dated 16.10.1985. Undisputedly, the rents came to be enhanced from time to time as agreed to between the defendant and the erstwhile landlord namely, plaintiffs father. The rate of rent as on the date of alleged termination of tenancy notice i.e., dated 27.02.2004 was Rs. 11,000/-. On the demise of the plaintiffs father, tenancy came to be attorned in favour of the plaintiff herein and defendant continued to pay the rents to the plaintiff. There is no dispute with regard to relationship between plaintiff and defendant. Learned counsel for the appellant defendant has also fairly admitted this fact during the course of his arguments before this Court. Plaintiff got issued a notice dated 27.12.2004 terminating the tenancy of the defendant. Said notice has not been replied by the defendant. These are undisputed facts. RE: POINT NO. (1): 14. Notice terminating the tenancy dated 27.12.2004 has been produced by the plaintiff in the course of evidence and it has been marked as Ex. P-2. Defendant admits receipt of the said notice on 28.12.2004. It has been contended by learned counsel for the appellant as already noticed herein above that the said notice Ex. P-2 is not in accordance with Section 106 of T.P. Act on the ground that plaintiff ought to have given clear 15 days time for the tenant to vacate which should have expired, commencing from the end of the date on which the tenancy comes to an end and in the instant case, it has not been done. P-2 is not in accordance with Section 106 of T.P. Act on the ground that plaintiff ought to have given clear 15 days time for the tenant to vacate which should have expired, commencing from the end of the date on which the tenancy comes to an end and in the instant case, it has not been done. It has been stated in Ex. P-2 by the plaintiff as under: 5. For all the above reasons, my client terminates your tenancy through this notice. WHEREFORE please take notice that your tenancy is hereby terminated and you are called upon to vacate the premises under your occupation in 15 days time from the date of receipt of this notice failing which I have definite instructions to proceed against you in a Court of law at your cost. 15. Undisputedly, defendant has not issued any reply to this notice. Even in the written statement filed before trial Court, there is no whisper with regard to termination of tenancy being improper or notice Ex. P-2 not conforming with Section 106 of T.P. Act. It is no doubt true that a notice issued under Section 106 has to satisfy twin conditions namely, (i) it should be a 15 days notice i.e., it must give clear 15 days time for the tenant to vacate; and (ii) the date to quit must expire after fifteenth day after the end of the tenancy. It no doubt does not satisfy the twin requirement contemplated under Section 106 of T.P. Act, however, on account of objection regarding the validity of the notice having not been raised at the first available opportunity, defendant is estopped from contending that the suit for ejectment ought to fail for want of notice. In this regard, judgment of the Apex Court in the case of Dharmpal vs. Harbans Singh reported in (2006) 9 SCC 216 can be looked up, whereunder it has been held as follows: 7. Learned counsel for the appellant xxx in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant". The thrust of the pleas raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The pleas so taken has-been found devoid of merit by the High Court and the court and the courts below. The plea that the notice was insufficient in the sense that it did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy, has not been taken in the written statement. 16. As already noticed herein above, in the instant case, defendant has neither replied to the notice Ex. P2 nor has raised any plea in his written statement filed before the trial Court. As such, said plea cannot be permitted to be raised before this Court for the first time. 17. Even otherwise, sub-section (3) of Section 106 of T.P. Act, would come to the rescue of the plaintiff inasmuch as, subsection (3) specifically provides for arriving at a conclusion that a notice issued under subsection (1) would not be deemed invalid on account of the period mentioned therein would fall short of the period specified under that sub-section, where the suit is filed after the expiry of period mentioned in that subsection. In the instant case, notice terminating the tenancy is dated 27.12.2004 and suit in question has been filed on 07.02.2005 and in the said notice, defendant has been notified of termination of tenancy by giving 15 days clear notice and suit has been filed after the said period i.e., on 07.02.2005. as such, sub-section (3) of Section 106 of T.P. Act would come to the rescue of plaintiff and suit cannot be thrown out for want of proper notice. as such, sub-section (3) of Section 106 of T.P. Act would come to the rescue of plaintiff and suit cannot be thrown out for want of proper notice. Hence, point No. (1) formulated herein above is answered in favour of respondent-plaintiff and against the appellant-defendant. RE: POINT NO. 2 18. Records of the trial Court would indicate that defendant filed an application under Order 14 Rule 5 read with Section 151 CPC to frame two additional issues. Said application came to be resisted by plaintiff by filing objection statement. On adjudication, trial Court allowed the said application in part and permitted for the following additional issue being framed, namely:- Whether defendant proves that by investing Rs. 25 lakhs, he has improved schedule premises with the consent of plaintiffs father? 19. The thrust of arguments advanced by Sri Krishnamurthy is that trial Court did not frame such an additional issue and it proceeded to adjudicate the issues which were initially framed and as such the judgment and decree is bad in law. 20. Defendant contended before trial Court in his written statement that plaintiffs father had given consent to defendant to effect plastering of the entire suit schedule premises, colouring and white washing and also raising of the compound wall by permitting him to spend Rs. 25 lakhs. It was also contended by him that towards periodical maintenance and up keep of the building, with an assurance that it would be adjusted towards rent, defendant had spent amounts towards the same. In the background of plea put forward in the written statement and reiterated in his evidence, trial court while adjudicating issue No. 1 has discussed succinctly these aspects in paragraphs 9 to 13 about the alleged monies spent by the defendant that too, to the tune of Rs. 25 lakhs and rejected the said plea as without proof. In the background of plea put forward in the written statement and reiterated in his evidence, trial court while adjudicating issue No. 1 has discussed succinctly these aspects in paragraphs 9 to 13 about the alleged monies spent by the defendant that too, to the tune of Rs. 25 lakhs and rejected the said plea as without proof. When the parties have consciously understood the additional issue, tendered their evidence in support of their contentions particularly having understood the additional issue, and in the background of the oral and documentary evidence tendered by the parties, if the trial Court has examined, scrutinized and analysed the said evidence, though not specifically answering the said additional issue under a distinct heading, the judgment and decree of the trial Court would not suffer from any infirmity if it can be discerned from the judgment that the trial Court had in fact considered this issue on the basis of the available evidence on record and has recorded its finding, then, such finding cannot be found fault with as sought to be contended by learned counsel for the appellant. Hence, mere non recording of a specific finding under a distinct head (additional issue) would not be fatal, if the finding is found to have been recorded in the judgment by the trial court and this would suffice. Hence, Point No. 2 is answered in the negative i.e., against defendant. RE: POINT NO. 3: 21. This Court being Court of appeal and the appellate proceedings being continuation of the original proceedings, enables this Court to reappreciate the entire evidence. When such an exercise is undertaken, I do not find any good ground to depart from the finding recorded by the trial Court with regard to the plea of Rs. 25 lakhs said to have been spent by the defendant to be an acceptable plea, to enable the defendant to have a lien over the suit schedule premises as claimed by him, since the trial Court has proceeded to assess the entire evidence on record to reject the claim of the defendant. Insofar as merits of the claim namely, of Rs. 25 lakhs said to have been expended by the defendant towards renovation of suit schedule premises is concerned is discussed by me herein below. 22. Defendant claims that on account of he having invested Rs. Insofar as merits of the claim namely, of Rs. 25 lakhs said to have been expended by the defendant towards renovation of suit schedule premises is concerned is discussed by me herein below. 22. Defendant claims that on account of he having invested Rs. 25 lakhs which was at the assurance given by plaintiffs father he spent the said amount towards renovation of suit schedule premises. In support of his submission, he has relied upon two documents namely, Ex. D-31 - order dated 01.10.1986 passed by this Court in W.P. Nos. 799 and 3547/1996 which relates to challenge to the proceedings of Rent Controller relating to the suit schedule premises and there an observation has been made by the co-ordinate Bench of this Court that suit schedule premises is not in the good condition and (2) Ex. D-33 valuation certificate dated nil issued by Chartered Engineer which reflects the renovation costs of the suit schedule premises would be around Rs. 25,10,000/-. At the outset, it is to be noticed that neither the author of Ex. D-33 was examined nor the contents of the said certificate has been proved for being accepted. As such, much credence cannot be extended to Ex. D-33. Undisputedly defendant has not sought for any set off nor has he raised any counter claim in his written statement. He claims that on account of express permission granted by the plaintiffs father permitting him to carry out the renovation and he having carried out such renovation, he has a lien over the property till the said amount is repaid. In this regard, the letter written by plaintiffs father to the defendant dated 21.04.1994 has been produced. It was in reply to the letter of the defendant dated 10.04.1994, which has not been produced. Even otherwise, the contents of Ex. D-32 would indicate that plaintiffs father had agreed to the suggestion of the defendant being approved subject to the rent being raised to Rs. 3,000/-. By reading of this letter, it would emerge that from 1985 (date of occupation of suit schedule premises by defendant) till 1994 defendant was residing therein without raising any issue regarding the habitable condition of the building, and the permission granted by the plaintiffs father was to permit the defendant to carry out the renovation work by raising the quantum of rent. If really plaintiff's father intended to permit the defendant to carry out the renovation at his cost, he would have said so. The letter Ex. D-32 does not indicate so nor it conveys any such meaning. Thus, the plea of the defendant that plaintiffs father had assured him to deduct the cost of renovation in the rents payable by him cannot be accepted. In this background, trial Court has rightly held as under: 10(A) Even for a moment it is taken as defendant has invested Rs. 25,00,000/- but defendant failed to prove that there was a contract between plaintiff or plaintiffs father on the one hand and defendant on the other hand to deduct the said amount in the rents and till such deduction he has got right to continue in the premises. 23. Though defendant has contended that he renovated the suit schedule premises in the year 1986 no evidence whatsoever has been placed, neither the Engineer nor the contractor who carried out such renovation work has been examined. No acceptable piece of evidence is available on record in this regard. The admission in the cross examination dated 7.2.2011 extracted herein below would clearly indicate that the feeble plea put forward in the written statement and amplified in examination-in-Chief is not an acceptable piece of evidence. In the year 1986 I have renovated lavatory and kitchen of the premises. I have not taken any written consent from father of plaintiff, but he orally asked me to renovate the premises. I was maintained account by recording payments made towards the renovation of building. Same was not produced in this case. I have paid amount in cash towards the renovation. I have not mentioned investment of Rs. 25 lakhs to the premises in my income tax returns Witness voluntarily says that I have not invested such amount at once, date wise I have paid. Defendant also admitted in his cross examination that he has not intimated the plaintiffs father in writing that till Rs. I have not mentioned investment of Rs. 25 lakhs to the premises in my income tax returns Witness voluntarily says that I have not invested such amount at once, date wise I have paid. Defendant also admitted in his cross examination that he has not intimated the plaintiffs father in writing that till Rs. 25 lakhs which is said to have been spent by him is adjusted towards the rents and till such time it is adjusted, he would continue to be the tenant of the suit schedule premises This admission itself would go to indicate that the plea put forward is an after thought and by no stretch of imagination it can be construed as a plea expected to have been raised by a person of ordinary prudence. In fact, defendant admits that he had also not intimated the plaintiff about adjustment of Rs. 25 lakhs towards rent and not vacating the premises till same is paid. His admission reads as under: After receipt of notice like Ex. P.2 I have not replied by saying that till adjustment of Rs. 25 lakhs adjusted by me I will not vacate the premises. After filing this suit also I am paying rent to plaintiff. It is incorrect to say that from last 2-3 years I am not paying the rents, but from 1 and half years I am not paying the rents. 24. In the light of aforesaid discussion, there cannot be any equity in favour of the defendant. As such, I am of the considered view that there has been no improper appreciation of evidence available on record nor non appreciation of available evidence. Hence, point No. 3 deserves to be answered against the appellant-defendant and in favour of respondent-plaintiff. RE: POINT No. (4): 25. It is to be noted that during the pendency of the matter before the trial Court, plaintiff had filed an application seeking direction to the defendant to deposit the arrears of rent amounting to Rs. 2,97,000/- covering the period July, 2006 to October, 2008 (27 months rent) on the ground that defendant is squatting on the property without paying rent. Said application came to be resisted by the defendant. On adjudication, trial Court by its order dated 22.04.2009 directed the defendant to deposit the arrears of rent of Rs. 2,97,000/- covering the period July, 2006 to October, 2008 (27 months rent) on the ground that defendant is squatting on the property without paying rent. Said application came to be resisted by the defendant. On adjudication, trial Court by its order dated 22.04.2009 directed the defendant to deposit the arrears of rent of Rs. 2,97,000/- and also gave further direction to defendant to continue to pay rent at the rate of Rs. 11,000/- per month from the month of. November, 2008. The said amount of Rs. 2,97,000/- had been deposited and plaintiff was permitted to withdraw the said amount by trial Court by order dated 26.07.2009 and cheque also came to be issued by the Registry in favour of the plaintiff on 17.09.2009. It is not in dispute that the rents covering the months of November, 2008 to April, 2013 has neither been paid by the defendant to the plaintiff nor deposited before this Court. Even according to the defendant, last paid rent was Rs. 11,000/- per month and thus, the arrears of rent is to the tune of Rs. 5,94,000/- i.e., for 54 months. Till date said arrears of rent, or damages for the use and occupation of the suit schedule premises has not been paid by the defendant to the plaintiff which would clearly indicate the attitude of the defendant. It is for this reason also defendant requires to be mulcted with costs. Thus, question of extending the olive branch to the defendant by granting him time to quit, vacate and hand over vacant possession of the suit schedule premises does not arise. For the aforestated reasons, following order is passed: (1) Appeal is hereby dismissed with costs. (2) Judgment and decree passed in O.S. No. 15443/2005 dated 09.12.2011 by XXVI Addl. City Civil Judge, Mayohall, Bangalore is hereby affirmed. (3) Appellant to pay costs of Rs. 10,000/- to respondent-plaintiff within 30 days from; today failing which respondent would be at liberty to execute the decree to recover the same. (4) Registry to draw the decree accordingly.