Kan Singh vs Smt Bhagya
2022 Latest Caselaw 7901 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 1ST DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.No.1629 OF 2021 (EJE)
BETWEEN
KAN SINGH
S/O. LATE PANNE SINGH
AGED ABOUT 51 YEARS
PUSHPAK ENTERPRISES
SHOP PREMISES NO.1
BUILDING NO.764, NEW NO.13/A
GROUND FLOOR,
NEW THIPPASANDRA MAIN ROAD
BENGALURU-560 075
                                             ...APPELLANT
(BY SRI.P.YOGANANDA, ADVOCATE)

AND

1.     SMT.BHAGYA
       S/O.LATE NAGARAJA REDDY
       AGED ABOUT 64 YEARS

2.     N.VENKATESH
       S/O.LATE NAGARAJA REDDY
       AGED ABOUT 47 YEARS

3.     CHAITANYA
       S/O.N.VENKATESH
       AGED ABOUT 23 YEARS

       ALL ARE RESIDING AT NO.97
       6TH CROSS, N.R.COLONY,
       MURUGESHPALYA
       BENGALURU-560 017
                                          ...RESPONDENTS
(BY SRI.P.N.NANJA REDDY, ADVOCATE FOR C/R3)
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       THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
04.03.2021 PASSED IN O.S.NO.4709/2017 ON THE FILE OF THE LXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DECREEING THE SUIT FOR EJECTMENT AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal by the defendant in O.S.No.4709/2017 is

directed against the impugned judgment and decree dated

04.03.2021 passed by the learned LXI City Civil and Sessions

Judge, Bangalore (for short 'the trial court'), whereby the

aforesaid suit filed by the respondents - plaintiffs for ejectment

/ eviction of the appellant - defendant from the suit schedule

premises and other reliefs was decreed by the trial court.

2. Heard learned counsel for the appellant and learned

counsel for the respondents and perused the material on

record.

3. A perusal of the material on record will indicate that

the respondents - plaintiffs instituted the aforesaid suit for

eviction / ejectment of the appellant - defendant from the suit

schedule premises and for other reliefs. The said suit was

contested by the defendant, who interalia contended that the

termination of his tenancy was not valid or proper and the suit

for eviction / ejectment was not maintainable and the same

was liable to be dismissed.

4. After hearing both the parties, the trial court framed

the following issues for consideration:-

" (i) Whether the plaintiffs prove that the defendant was tenant under them?

(ii) Whether the plaintiffs further prove that the tenancy of the defendant is validly terminated as per Section 105 and 106 of Transfer of Property Act?

(iii) Whether the defendant further proves that the suit of plaintiff is not properly valued and Court fee paid is sufficient?

(iv) Whether the plaintiff is entitled for the relief of ejectment of the defendant as prayed for?

(v) What decree or order?"

5. The plaintiff No.2 examined himself as PW-1 and

Exs.P1 to P5 were marked on their behalf. PW-1 was partly

cross-examined by the defendant and having not been cross-

examined further, the trial court proceeded to hear the

arguments of both sides and decreed the suit in favour of the

plaintiffs against the defendant. Aggrieved by the impugned

judgment and decree passed by the trial court, appellant -

defendant is before this Court by way of the present appeal.

6. The following points arise for consideration in the

present appeal:-

" (i) Whether the trial court was justified in coming to the conclusion that the plaintiffs had validly terminated the tenancy of the defendant under them in respect of the suit schedule premises?

(ii) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?"

Re-Point Nos.1 and 2:-

7. Both these points being interlinked, they are taken

up together for consideration.

7.1 A perusal of the material on record will indicate that

the trial court has taken into account the statutory notice at

Ex.P2 dated 13.01.2017 issued by the plaintiffs to the

defendant in compliance with Section 106 of the Transfer of

Property Act. The trial court has also noted that apart from the

fact that the defendant did not cross-examine PW-1 (plaintiff

No.2) in full, the unimpeached, uncontroverted and

unchallenged oral and documentary evidence on record

coupled with the fact that the defendant did not adduce any

oral or documentary evidence to rebut the defence of the

plaintiffs and consequently, the plaintiffs had lawfully

terminated the tenancy of the defendant under them and were

entitled to a decree for eviction / ejectment. So also, the trial

court answered issue No.3 in favour of the plaintiffs by coming

to the conclusion that the suit had been properly valued and

the court fee paid was sufficient. While rendering the said

findings, the trial court held as under:-

"6. In order to prove the case of the plaintiff PW-1 was examined and got marked in all five documents at Ex.P.1 to Ex.P.5. PW-1 was partly cross-examined and thereafter even though sufficient opportunity was given for the cross- examination of PW-1, Defendant has not argued the matter and the

I.A. filed by the defendant under Order VIII rule IX of CPC was dismissed. Earlier to that the case was posted for argument. Hence, the case was once again posted for hearing argument. The plaintiff counsel has submitted his argument. But in spite of opportunity given and notice issued to the defendant served on the defendant and took time to argue the matter. But the defendant counsel not appeared before the court and argued the matter. Hence, it was posted for judgment.

7. In view of the evidence adduced by the plaintiff and the documents got marked by the plaintiff and the arguments canvassed by the learned plaintiff counsel, now my answer to the above issues are as follows;

Issue No.1 : In affirmative Issue No.2 : In affirmative Issue No.3 : In negative Issue No.4 : In affirmative Issue No.5 : As per the final order for the following:

REASONS

8. Issue Nos.1 & 2:- Since, these two issues are interconnected with each other and these issues are to be answered on the same set of facts, circumstances and reasonings, in order to avoid the repetition of facts, circumstances and evidence, I am discussing both these issued together.

9. Now, the plaintiff has specifically took up a contention that the defendant was tenant under the plaintiff with respect to the suit schedule property which is a non residential property. Further, it is also contended by the plaintiff that since the defendant was tenant by virtue of rental agreement, he has continued in the possession and enjoyment of the suit schedule property even after expiry of the lease as a tenancy holding over and there by he has continued in possession and enjoyment of the suit schedule property. Further, it is also contended that though according to the terms and conditions of the rental agreement the defendant has to pay rent regularly and the consumption charges such as water chargers, electricity charges to be paid by the defendant that was not paid by the defendant in accordance with the agreed terms. In such a circumstances, the notice has been issued to the plaintiff from authorities demanding the payment.

10. Further, it is also contended by the plaintiff that the space which is available in front of the schedule property was blocked by the defendant even though he has no right to do so, By the act of the defendant the corporation has issued a notice to the plaintiff. Alleging all these allegations in the plaint the suit has been filed. Further, it is contended by the plaintiff that

as the defendant has agreed to vacate the property after expiry of eleven months, as per he agreement dated 29.03.2017 but inspite of expiry of eleven months he has not vacated the property as the property was required by the plaintiff for demolition and putting up a new structure as the property is in a dilapidated condition, the plaintiff has issued a notice to the defendant intimating the termination of tenancy of the defendant and requesting to handover the vacant possession of the property.

11. But inspite of service of notice the defendant has not delivered the property. Hence, this suit has been filed. Now inorder to prove the case of the plaintiff, the plaintiff has produced the original rental agreement which is marked as Ex.P.1 wherein the rental agreement was executed in favour of the 2nd plaintiff who is the son of the first plaintiff. By looking into the document Ex.P.1 which is a rental agreement clearly establishes the fact that the rent agreement was executed between the defendant and 2nd plaintiff for a period of eleven months. In the agreement it is specifically stated that the defendant has to pay the electricity and water consumption charges. Also stated in the agreement that the defendant should keep the premises in good condition.

12. In Clause No.12 it is specifically stated that three months time has to be given for termination of tenancy. Accordingly, the plaintiff has issued a notice on 13.03.2017 calling upon the plaintiff to hand over the vacant possession of the property within three months from the date of receipt of the notice. The notice sent to the defendant is returned as intimation delivered, not claimed. To corroborate the facts of ownership of plaintiff, the khatha certificate is also produced which stands in the name of the plaintiff No.2. The khatha certificate which is marked as Ex.P.5 also stands in the name of 2nd plaintiff. Now according to the Transfer of Property Act, Section 105 and 106 of the Act clearly says that in case of termination of tenancy a notice has to be issued for terminating the tenancy. Under Section 106 of the Transfer of Property Act, it is specifically stated that a notice of termination has to be issued if it is a month to month tenancy a 15 days notice has to be issued. Even under section 106(1) and (3) of Transfer of property Act, specifically states that if it is fall short of the period specified in sub-section (1) the suit filed after expiry of the period cannot be held to be not maintainable. Where as in this case the defendant has not denied about the issue of notice by the plaintiff for terminating the tenancy. The defendant has also not denied about the continuing of tenancy with the suit schedule property.

13. On the other hand, it is specifically contended that he has become a tenant of the premises at the time of 2nd plaintiff father Nagaraj Reddy and continued till this date that is to say till the date of filing of the sit and further. But now it is to be specifically noted the defendant has took up a specific contention with regard to the status of the premises that is with respect of the dilapidated condition of building no such suggestion has been made to the PW-1 in the course of cross- examination. Though the plaintiff has contended that the defendant has not paid the rent regularly but in the course of cross-examination he has specifically admitted that from 2007 till the date of recording of evidence of PW-1 he has paid rent regularly and he has specifically admitted about the filing of the suit against one Prathap Singh also.

14. The defendant has not denied about filing of ejectment sit before the Small Causes Court and about the settlement arrived in that suit. Now, when Ex.P.1 has been produced by the plaintiff which unequivocally establishes the fact of tenancy of the defendant with respect to the suit schedule property and it is admitted fact by the defendant also that is tenancy was continued from inception date till date of issue of notice and till the date of filing of the suit and when it is specifically

admitted by the defendant about the filing of the Small Causes Suit before the court for eviction in my opinion the question of non consideration of tenancy of the defendant with respect to the suit schedule property does not arise at all. Further, it is to be specifically noted when case was posted for further cross- examination inspite of opportunity given he has not completed cross-examination. Further it is also to be noted though a specific contention has been taken with respect to the jurisdiction contending that there is a arbitration clause in the agreement. Hence, no jurisdiction to this court. It is a well established principle of law that whenever the defendant took up a jurisdictional aspect it is to be taken at the earliest point of time. But where as in this case the defendant has filed additional written statement contending that this court has no jurisdiction. On 18.02.2019 i.e., after partly cross-examining the PW-1 hence it is not permissible under law. Further, though the defendant has denied about the status of the building with regard to the dilapidated condition as stated by the plaintiff in order to prove that aspect no evidence has been adduced by the defendant. Further, it is also to be specifically noted earlier the case was posted for defendant evidence on 21.01.2019 and till 19.02.2019. the case was posted for defendant evidence inspite of that the defendant evidence not adduced. Now when the specific

contention has been taken by the defendant that he has become tenant under Nagaraj Reddy and continued in possession and enjoyment of the property as a lessee by producing Ex.P.1 the contention of the plaintiff has been successfully established by the plaintiff with regard to the tenancy of the defendant.

15. Further, though the issue has been framed with regard to the termination of tenancy, now there is no specific denial of termination of tenancy by the defendant in his entire written statement. It is also stated that there is no cause of action for the suit. But inorder to establish the defence that the tenancy was not property terminated it is the burden on the defendant to establish the fact that the tenancy was not terminated as required under law.

16. Now in accordance with Section 106 of the Transfer of Property Act it is a well established principle of law that if the plaintiff has issued a notice terminating the tenancy by giving a specified period which is mentioned in the agreement of lease then it is to be held as a valid notice. In Ex.P.1 there is a specific clause mentioned in clause 12 of the agreement wherein it is agreed between both the parties that the tenancy has to be terminated by issuing three months notice. Now the notice has been

issued on 13.03.2017 wherein it has been specifically stated about terminating the tenancy and period given is three months this suit is filed on 11.07.2017. That means to say after issue of notice three months time was granted to vacate the premises to the defendant upon failure to vacate the property, he has filed a suit. Under such circumstances, I am of the opinion that the petitioner has successfully established the issue No.1 and 2 in their favour. Hence, I have no hesitation to answer issue No.1 and 2 in affirmative.

17. ISSUE No.3:- This issue has to be proved by the defendant. Because the defendant has took up a specific contention in the written statement that the suit valuation made by the plaintiff is not in accordance with law and Court fee paid is insufficient. But it is to be specifically noted this is a suit filed for ejectment of the defendant who is a tenant under the plaintiff. In accordance with the Court Fee and Suit Valuation Act, now it is to be specifically for filing of the suit, the plaintiff has to calculate the rent for a period of one year and on that basis the plaintiff has to pay the court fee. Now where as in this case the plaintiff is contending that the suit schedule property was on a lease on a monthly rent of Rs.19,500/- and upon calculating the 12 months the amount will come to Rs.2,34,000/- and under Section 41 of the KCFSC Act, the amount if it is calculated it will come to

Rs.16,005/- and accordingly, the plaintiff has paid the court fee of Rs.16,005/-.

18. Now the defendant has took up a specific contention that the Court fee is not properly valued and Court fee paid is not sufficient, then it is burden on the defendant to establish the fact that the court fee paid by the plaintiff is not in accordance with law and court fee paid by the plaintiff is insufficient.

19. But in order to substantiate the contention of the defendant, the defendant has not entered into the witness box and he has not adduced any evidence to corroborate the defence which has been taken in the written statement. It is a well established principle of law that whenever a specific defence has been taken by the defendant it is to be proved by the defendant by a specific and cogent evidence it must be established before the court that the defence which has been taken by the defendant. But where as in this case the defendant has not stepped into the witness box though sufficient opportunity was given for the defendant. It is also a well established principle of law that whenever a specific fact has been traversed by the person and when he has with hold from entering witness box to establish that traversed contention, then adverse inference has to be drawn against the person who has taken that contention. Now, in this

case the plaintiff has properly paid the court fee by calculating one year rent. If it is not in accordance with law then it is to be established by adducing evidence. In the absence of any specified evidence adduced by the defendant, the question of considering that defence in favour of the defendant does not arise at all. In such a circumstances, I have no hesitation to answer Point No.3 in the negative.

20. ISSUE NO.4:- Now, this is a suit filed by the plaintiff for the relief of ejectment of the defendant from the suit schedule property and directing the defendant to hand over the vacant possession of the suit schedule property to the plaintiff. Now it is the specific contention of the plaintiff that on account of termination of tenancy the defendant is not entitled to continue in possession and enjoyment of the property by virtue of terminating the tenancy, the defendant was under the obligation to deliver the vacant possession of the property.

21. Now it is a well established principle of law that whenever the lease deed is expired or the lease period is over the tenant can continue in possession and enjoyment of the property which was taken on as a tenancy holding over. Accordingly, the defendant has continued in possession of the property. But when the plaintiff has taken specific steps to terminate

the tenancy of the defendant by issuing notice in accordance with law and in accordance of Section 105 and 106 of Transfer of Property Act, accordingly notice was issued which was not received by the defendant though it was intimated and even after filing of the suit the defendant is contending that he has continued in possession and enjoyment of the property by way of lease deed executed in favour 2nd plaintiff, then it is the bounden duty of the defendant to handover the vacant possession of the suit schedule property to the plaintiff. Though the defendant has took up a specific contention in the written statement stating that the plaintiff is not intended to use the property for his own as he is not intended to demolish the entire structure as contended in the plaint. To establish that fact about non requirement of premises for demolishion no evidence is adduced by the defendant. In the absence of a specific evidence given by the defendant with regard to those aspect and with regard to the denial of the plaintiff case in my opinion the plaintiff case will have to be accepted.

22. Further, as the defendant is in possession and enjoyment of the property after expiry of lease period and continued in possession and enjoyment of the property by virtue of the lease executed in favour of the defendant it is the bounden duty of the defendant

to hand over the vacant possession of the property to the plaintiff as the plaintiff has established his landlord right by producing document such as Ex.P.4 and 5. In the absence of any specific evidence adduced by the defendant with regard to deny the claim of the plaintiff with regard to the disproving claim of the plaintiff absolutely there is no impediment for the court to pass decree in favour of the plaintiff holding that the defendant is hereby directed to vacate the schedule property. Accordingly, in my opinion the plaintiff has established the issue No.4 in their favour. Hence, I have no hesitation to answer issue No.4 in the affirmative.

7.2 Upon re-appreciation and re-evaluation of the

entire material on record, I am of the considered opinion that

the impugned judgment and decree passed by the trial court is

just and proper and does not suffer from any illegality or

infirmity warranting interference by this Court in the present

appeal. However, having regard to the fact that the suit

schedule premises is a commercial premises, I deem it just

and appropriate to grant reasonable time to the appellant -

defendant to vacate, quit and deliver vacant possession of the

suit schedule premises to the plaintiffs.

8. In the result, I pass the following:-

ORDER

(i) The appeal is hereby dismissed.

(ii) The impugned judgment and decree dated

04.03.2021 passed in O.S.No.4709/2017 on the file of the

learned LXI Additional City Civil and Sessions Judge,

Bengaluru, is hereby confirmed.

(iii) The appellant - defendant is granted time upto

30.04.2023 to vacate and deliver vacant possession of the suit

schedule premises to the respondents - landlords, subject to

the appellant - defendant filing an undertaking within a period

of four weeks from today to the following effect by

incorporating the following contentions:-

a) The appellant - defendant shall voluntarily vacate and deliver vacant possession of the suit schedule premises to the respondents - landlords without driving them to execution proceedings.

b) Appellant - defendant shall pay all the arrears of rent at the rate of Rs.21,000/- per month payable upto 31.05.2022 within a period of four weeks from today.

c) Appellant shall pay the enhanced rent of Rs.23,000/- per month to the respondents - landlords from June 2022 upto 30.04.2023.

d) Appellant shall not sub-let / under-let / part-in the possession into any third parties into the suit schedule premises till he hands over the vacant possession of the suit schedule premises to the respondents.

(iv) Subject to the appellant fulfilling the aforesaid

undertaking and complying with the terms and conditions of

this order, respondents - landlords shall refund the refundable

security deposit back to the appellant - defendant at the time

of handing over vacant possession of the suit schedule

premises by the appellant in favour of the respondents.

SD/-

JUDGE Sv/Srl.