Syed Abdul Rub vs M. Nirmala
2023 Latest Caselaw 5107 Kant

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                                                      NC: 2023:KHC:26843
                                                            RSA No. 904 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 1ST DAY OF AUGUST, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.904 OF 2023 (EJE)

                   BETWEEN:

                   1.    SYED ABDUL RUB
                         AGED ABOUT 45 YEARS
                         S/O ABDUL JAHEER
                         R/AT NO.422,
                         INDUSTRIAL SUBURB,
                         1ST STAGE,
                         VISHWESHWARANAGARA,
                         MYSURU - 570001
                                                               ...APPELLANT

                                 (BY SRI B.S.NAGARAJ., ADVOCATE)
                   AND:

                   1.    M. NIRMALA
                         AGED ABOUT 58 YEARS
Digitally signed
by SHARANYA T            W/O LATE VIJAYENDRA KUMAR
Location: HIGH
COURT OF           2.    V. MADHUSUDHAN
KARNATAKA
                         AGED 38 YEARS
                         S/O LATE VIJAY KUMAR

                         BOTH ARE RESIDING AT NO.613/1,
                         2ND MAIN, GIRIDARSHINI BADAVANE,
                         ALANAHALLI, MYSURU-570001.
                                                               ...RESPONDENTS

                             (BY SRI MOHANKRISHNA R.G., ADVOCATE)

                        THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
                   AGAINST THE JUDGMENT AND DECREE DATED 02.03.2023
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                                         NC: 2023:KHC:26843
                                             RSA No. 904 of 2023




PASSED IN R.A.NO.117/2021 ON THE FILE OF THE IV
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 22.04.2021 PASSED IN O.S.NO.495/2018
ON THE FILE OF THE IX ADDITIONAL CIVIL JUDGE AND JMFC,
MYSURU.

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

                          JUDGMENT

This matter is listed for admission.

I have heard the learned counsel appearing for the

appellant.

2. The main contention of the appellant's counsel that

Exs.P3 and P4 are created and signature is forged and both the

Courts have committed an error in accepting the documents

Exs.P3 and P4 and notice of termination and postal

acknowledgement and appellant's counsel also framed the

substantive question of law contending that suit is not

maintainable in law in the absence of issuance of statutory

notice as required under Section 106 of Transfer of Property Act

and both the Courts below are not justified in giving finding on

issue Nos.1 and 2 as affirmative without considering the wrong

address on Ex.P3 and forged signature on Ex.P4 and judgment

NC: 2023:KHC:26843 RSA No. 904 of 2023

and decree of both the Courts are not sustainable and

concurrent finding is erroneous and notice issued has not been

served to the defendant and the same is not sufficient to

dismiss the suit.

3. Having heard the appellant's counsel and also on

perusal of the material available on record, particularly the

judgment and decree of the Trial Court, the appellant has not

led any evidence before the Court, even not cross-examine

PW1 in spite of the written statement is filed before the Court

and with regard to the issuance of notice in paragraph No.25 of

the judgment of the Trial Court, it is specifically mentioned that

notice was issued and the same was duly served on the

defendant and admittedly by paying two months arrears of rent

to the second plaintiff, the defendant himself admitted that

there is a relationship of landlord and tenant between the

plaintiff and defendant and also in paragraph No.26 of the Trial

Court judgment, the Trial Court held that no reasons need to be

assigned for termination of lease under Section 106 of the

Transfer of Property Act and the same is settled law and also in

case of termination of lease under Section 106 of the Transfer

of Property Act, no reasons need to be assigned and the same

NC: 2023:KHC:26843 RSA No. 904 of 2023

is valid termination and even not cross examined PW1 and also

not led any evidence to rebut the evidence of the plaintiff and

hence the evidence given by PW1 and documents produced by

the plaintiff are remained unchallenged.

4. The counsel for the appellant would submit that no

opportunity was given to cross examine PW1 and on perusal of

order of the Trial Court it is very clear that when the case was

set down for cross examination, he did not choose to cross-

examine the witness PW1 even though written statement was

filed and the same is considered in paragraph No.26 of the Trial

Court judgment and when the defendant took the defence that

an amount of Rs.8,00,000/- was given as security deposit, in

order to prove the same, not cross examined the witness and

even not led any evidence and his defence remains as defence

in the written statement and no material is placed before the

Trial Court and the First Appellate Court also on consideration

of oral and documentary evidence available before the Court,

even finding on re-appreciation of evidence taken note of

issuance of notice in paragraph No.44 of the order of the

Appellate Court and in paragraph No.48 also given a concurrent

finding that notice was issued and tenancy was terminated and

NC: 2023:KHC:26843 RSA No. 904 of 2023

hence defendant is not entitled for any relief and also in

paragraph No.49 the Appellate Court taken note of the fact that

even the defendant has not come forward to rectify the

mistakes occurred before the Trial Court and the appellant

continued the very same attitude and the judgment of this

Court reported in ILR 2004 KAR 2864 considered in

paragraph No.50 and in paragraph No.51 categorically the

Appellate Court held that defendant has completely fail to

produce any such document before the Court of law and show

that suit premises is necessary for its business usage without

complying the terms and conditions. The defendant is also

directed to pay arrears of rent by vacating the premises and in

the absence of any documentary evidence and first of all

evidence of PW1 is not rebutted by cross-examining the

witness and also not produced any document to substantiate

his case and even not led any evidence and defence which was

taken by the defendant remains as defence and suit was also

filed in the year 2018 and disposed of on 22.4.2021, after three

years and hence I do not find any error committed by both the

Courts, since there is no material on behalf of the appellant

herein to consider the same and there is no substantive

NC: 2023:KHC:26843 RSA No. 904 of 2023

question of law to frame the same and the counsel would

vehemently contend that there is no proper service of notice

and the same also cannot be considered unless the evidence

has been led before the Trial Court to substantiate his

contention, first of all he has not cross-examined PW1 and also

not produced any document and also not rebutted the evidence

of PW1 before the Trial Court and hence, I do not find any

substantive question of law to frame the same to consider the

matter in a second appeal in the absence of any material on

record.

Accordingly, the appeal is dismissed.

Consequently, IA No.1/2023 filed before this Court is also

dismissed.

Sd/-

JUDGE

AP