Sri. Jagadish M. S vs Sri. Arun Rakshith
2023 Latest Caselaw 5522 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 11TH DAY OF AUGUST, 2023

                          BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

        REGULAR FIRST APPEAL NO.1898 OF 2022

BETWEEN:

SRI. JAGADISH M. S.
S/O SRI SUBBARAYA SETTY M
AGED ABOUT 39 YEARS
R/A NO.702, 29TH CROSS
POORNA PRAGNA LAYOUT
UTTARAHALLI
BENGALURU - 560 061                       ... APPELLANT

(BY SRI PAWADEGOWDA, ADVOCATE)

AND:

SRI. ARUN RAKSHITH
S/O BABU SUVARNA V.
AGED ABOUT 51 YEARS
R/A NO. 260A, 10TH MAIN
HAPPY VALLEY LAYOUT
UTTARAHALLI
BENGALURU - 567 061                      ... RESPONDENT

(BY SRI SHRIDHARA M.K., ADVOCATE)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 23.09.2022 PASSED IN
O.S.No.9129/2019 ON THE FILE OF THE LXVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING
THE SUIT FOR EJECTMENT.
                             2


     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 4.8.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                   JUDGMENT

This appeal is filed by the appellant-defendant under

Section 96 of Code of Civil Procedure for setting aside the

judgment and decree passed by the LXVI Additional City

Civil and Sessions Judge, Bengaluru in O.S.No.9129/2019

dated 23.09.2022 for decreeing the suit and directing the

appellant to vacate the premises within 30 days and

directing to pay arrears of rent of Rs.1,46,679/- and pay

Rs.15,000/- per month for damages.

2. Heard learned counsel for the appellant and

learned counsel for respondent.

3. The rank of the parties before the trial Court is

retained for the sake of convenience.

4. The case of the plaintiff before the trial Court is

that the plaintiff is the landlord of the schedule premises

and the defendant was tenant in the said schedule

premises. There was a rental agreement dated 16.9.2014

for a period of 11 months and to pay monthly rent of

Rs.11,500/- excluding the electric and water charges. The

defendant has paid advance of Rs.1,00,000/- and also the

defendant agreed to enhance rent of 5% for every 11

months and the defendant is in arrears of rent from

February 2017 to November 2019 amounting to

Rs.2,46,679/- and after deducting the advance amount, he

has to pay arrears amount Rs.1,46,679/- but the

defendant has kept the premises under lock and not

vacating the premises. Notice was issued to the defendant

a on 15.10.2019 terminating the tenancy and directing to

vacate the premises and sought for damages charges to be

payable for Rs.25,000/- per month.

5. In pursuance of the notice, defendant appeared

through the counsel and filed written statement by denying

the claim of the plaintiff, however he has admitted he is

the tenant under the plaintiff and contended that the rent

was Rs.10,500/- per month, he has deposited

Rs.1,00,000/- as security amount. An additional amount of

Rs.25,000/- paid during renewal of agreement on

15.02.2019 and the plaintiff after receiving the rent till July

2019 by cash locked the grill gate and stopped the access

of the defendant to the premises. The reply notice also

issued and defendant kept articles in the premises. Hence

prayed for dismissing the suit.

6. Based upon the rival pleadings, the trial Court

framed 6 issues which are as under:-

"1. Whether the plaintiff proves that he has legally terminated the tenancy of the defendant over the suit premises?

2. Whether the plaintiff further proves that the defendant is in arrears of rent of Rs.1,46,679/- as on November 2019?

3. Whether the plaintiff further proves that the defendant is liable to pay Rs.25,000/- per month as damages for his alleged illegal occupation of the suit premises?

4. Whether the defendant proves that there is no cause of action to the relief of ejectment?

5. Whether the defendant further proves that the plaintiff is in due to him a sum Rs.1,50,000/- the advance amount?

6. What order or decree?"

7. To prove the case of the plaintiff, he himself

examined as PW.1, got marked 22 documents and on the

other hand, the defendant examined 2 witnesses and got

marked 12 documents. After hearing the arguments, the

trial Court answered Issue Nos.1 and 2 in the Affirmative.

Issue No.3 in the partly affirmative. Issue Nos.4 and 5 in

the Negative and finally passed the judgment by decreeing

the suit which is under challenge.

8. Learned counsel for the appellant has

strenuously contended that the trial Court committed error

in decreeing the suit even though the defendant marked

Exs.D.1 to D.12. Ex.D.9 is the statement of accounts

issued by the Banker which clearly reveals the rents were

paid by the defendants regularly till July 2019 and there

was dispute between them and thereafter, he has not paid

the rent. The plaintiff locked the door from outside and

deprived his right of entrance and literally dispossess. The

reply notice also given by the defendant and he was ready

to vacate and he is not in possession of the suit premises

in order to pay the charges of damage to the plaintiff. The

trial Court committed error in holding that there was

arrears of rent till November 2019, except 4 months

arrears, there is no arrears of rent, even till date the

defendant is ready to go out if the plaintiff open the door

and allow to take his articles kept in the house by paying 4

months arrears of rent and hence, prayed for allowing the

appeal.

9. Per contra, learned counsel for the plaintiff-

respondent has supported the judgment of the trial Court

and contended that absolutely there is no document to

prove the payment of rents by the defendant. Therefore,

the trial Court has rightly directed to pay the arrears of

rent and when the rent itself is not paid, the question of

giving Rs.25,000/- as additional advance amount does not

arise. The defendant kept the premises under lock.

Therefore, he has to pay the arrears of rent and hence

prayed for dismissing the appeal.

10. Having heard the arguments and perused the

records, the points that arise for my consideration are:

"1. Whether the plaintiff proves that he has legally terminated the tenancy of the defendant over the schedule premises?

2. Whether the plaintiff proves that defendant has arrears of rent of Rs.1,46,679/- after deducting the advance amount of Rs.1,00,000/-?

3. Whether the plaintiff proves the defendant is liable to pay the damages of Rs.25,000/- per month for illegal occupation of the premises.

4. Whether the defendant proves there is no cause of action to file the suit for ejectment?

5. Whether the defendant proves that the plaintiff is due to him a sum of Rs.1,50,000/-?

6. Whether the judgment of the trial Court calls for any interference?"

11. Having heard the arguments and perusal of the

records and as per the evidence of PW.1 and DW.1, it is an

admitted fact that the plaintiff is the owner of the schedule

premises and the defendant is the tenant under him. There

was a rental agreement between them dated 16.9.2014 for

a period of 11 months and it is alleged by the plaintiff in

his evidence that the respondent is in arrears of rent from

February 2017 to November 2019. Therefore, he has

terminated the tenancy by issuing notice as per Section

109 of the Transfer of Property Act, 1882. In respect of

terminating the tenancy, affixing the notice on the door of

the schedule premises has been admitted by the

defendant. The notice at Ex.P.1 also reveals the notice has

been issued by the plaintiff by terminating the tenancy

which was issued as per Ex.P.1 and the defendant also

replied as per Ex.P.4 on 8.11.2019. On the other hand,

the evidence of the defendant and the document i.e.,

Ex.P.4, Exs.D.11 and D.12 and the evidence of DW.2 goes

to show that the plaintiff himself has locked the door on

19.09.2019 itself by denying the access to the defendant

and subsequently issued the notice on 15.10.2019 and

even he has received the amount of Rs.14,200/- on

15.10.2019 as well as on 16.10.2019.

12. However the main contention of the plaintiff is

that there was arrears of the rent by the defendant and in

the cross examination, PW.1 admits that the defendant

paid Rs.25,000/- as additional advance and further

admitted that previously rent was fixed for Rs.10,500/-

and later it was increased time to time from Rs.10,500/- to

Rs.11,500/- and thereafter he increased further. The

plaintiff further admitted in the cross examination that

there is no extension of rental agreement after 2017

onwards except admitting the collecting of additional

amount of Rs.25,000/- on 15.02.2019. Further disputed

total advance amount was Rs.1,50,000/- but admitted it

was only Rs.1,25,000/-.

13. As regards to the payment of rent, PW.1

himself admits at paragraph No.7 of the evidence he has

received rent of Rs.10,000/- on 17.04.2019, Rs.17,500/-

on 11.04.2019, Rs.25,000/- on 15.02.2019, Rs.5,950/- on

8.2.2019, Rs.14,500/- on 18.1.2019, Rs.14,200/- each on

15.10.2019 and 16.10.2019 respectively and Rs.14,200/-

on 12.9.2018. Though PW.1 stated that the defendant has

paid rent for only 10 months instead of 20 months, but the

admission of PW.1 clearly reveals that the defendant was

continuously paying rents even in October 2019. Such

being the case, the defendant also stated in his evidence

and produced Ex.D.9 that he has continuously paying rents

till July 2019 and there was a dispute among them and a

complaint was lodge by the defendant in August 2019,

thereafter, the rents were not paid.

14. The plaintiff counsel admitted in the cross

examination that a complaint was lodged by the defendant

and denied that the suit premises were locked by locking

the grill gate and the plaintiff counsel suggested to DW.1

that there was demand of Rs.1,50,000/- for the advance

subsequently and he has paid only Rs.25,000/- and some

cheques were dishonored as per Exs.P.6 and P.8. For the

same, the defendant has stated that he had paid the cash

but the plaintiff did not return the cheque. Further DW.1

stated that he has paid Rs.28,600/- under Ex.P.8 through

online which was admitted by the plaintiff counsel. The

DW.1 denied there was due of Rs.1,46,679/-.

15. On careful reading of the documents especially

Exs.D.11, D.12 and D.9 which reveals the plaintiff locked

the door outside and not permitted the defendant to enter

into the premises and affixed the notice on the grill door

and Ex.D.9 produced by defendant were not seriously

disputed by the Police where it reveals that the defendant

was paying the rent till 2019 and the same is admitted by

PW.1 in his cross examination, even the plaintiff received

Rs.14,200/- on 15.10.2019 and another Rs.14,200/- on

16.10.2019.

16. These aspects clearly goes to show that the

defendant was paying the rent continuously during the

year 2019, the legal notice was issued by the plaintiff

terminating the tenancy on 15.10.2019 and even on the

said day and on the next day, the plaintiff received rent for

2 months of Rs.14,200/- each from the defendant. The

same was not at all mentioned by the plaintiff in the plaint

however he has admitted in the cross examination,

thereby, it is a clear case where the defendant was paying

the rent till 2019.

17. Admittedly, the defendant himself has stated

after July 2019 when the dispute arises between them, a

complaint was lodge by the sister of the defendant to the

police as per Ex.D.10 on 14.8.2019 and till date the

defendant failed to pay the rent. However, in September

2019 itself, the plaintiff locked the door and literally he has

dispossess the defendant and not allowed to enter the

schedule premises. Therefore in his evidence and

admission of defendant that he paid the rent till July 2019

which clearly goes to show that there is no arrears of rent

payable by the defendant to the plaintiff till April 2019 and

the arrears of rent starts only from May 2019 till

September 2019 when the door was locked by the plaintiff

which was proved by the defendant through the evidence

of DW.2 and Exs.P.11 and P.12.

18. Therefore, the contention of the plaintiff cannot

be acceptable that there was due of rent from Feb 2017 till

November 2019 is not acceptable and therefore, the

question of arrears of rent payable to the plaintiff by the

defendant as claimed in the suit for Rs.1,46,679/- is not

correct. On the other hand, there was arrears of rent for 4

months by the defendant which amounts to Rs.14,200 x 4

months i.e., Rs.56,800/- is the actual arrears of rent and

the amount of Rs.1,25,000/- towards advance is also

pending with the plaintiff, there is no proper calculation

made by the plaintiff by producing necessary documents.

On the other hand, the statement of accounts reveals the

defendant continuously paid the rents even in the year

2018, subsequently as per the admission the plaintiff

received the rent in the month of October 2019 itself.

Therefore, the contention of the plaintiff cannot be

acceptable, there was huge arrears of rent from February

2017 is not acceptable thereby the trial Court finding that

there was arrears of rent payable from February 2017 till

November 2019 is not correct and the same shall be liable

to be set a side, accordingly answered point Nos.1 and 2

in the NEGATIVE.

19. As regards to the point No.4 that the

defendant has contended that there is no cause of action

for filing the suit. In view of point No.1 that the plaintiff

legally terminated the tenancy in favour of the plaintiff,

therefore, he was not paid 4 months arrears of rent even

after May 2019 till September 2019 until locking the door

by the plaintiff and therefore, there is no cause of action

allows for filing the suit for ejectment as the plaintiff

himself locked the door in September 2019 and filed the

suit and he has not come with the clean hands. Therefore

answered point No.4 in the NEGATIVE.

20. As regards to the point No.5, the defendant

has contended that he has filed Rs.1,50,000/- towards the

advance amount but in the cross examination of PW.1, he

has admitted receiving Rs.1,00,000/- as advance and

subsequently on 15.2.2019 through online received

Rs.25,000/- in addition to the said amount and this Court

has already held that the defendant continuously paying

rent to the plaintiff and there is no arrears of rent except 4

months arrears. Therefore, the defendant is able to

establish that the advance of Rs.1,25,000/- is with the

plaintiff and it was not adjusted with the arrears of rent

and when the rents were continuously paid by the

defendant, the question of adjusting Rs.1,00,000/- does

not arise and the Trial Court committed error in holding

Rs.1,00,000/- has been adjusted with the rent and not

stated anything about the amount of Rs.25,000/- received

by the plaintiff through online and absolutely, there is no

document to show that the plaintiff has repaid advance

amount to the defendant. The very claim of the plaintiff is

that the arrears of rent from February 2017 till November

2019 itself has been proved NEGATIVE by this Court.

Therefore, the plaintiff required to repay the advance

amount of Rs.1,25,000/- to the defendant. Therefore, I

answered point No.5 as Partly in AFFIRMATIVE in favour of

the defendant.

21. The Plaintiff claims the damage of Rs.25,000/-

per month for illegal occupation. In order to prove the

contention, the plaintiff has stated that he has terminated

the tenancy by issuing notice as per Ex.P1 on 18.11.2019

and in view of the termination of the tenancy, the

defendant is in illegal possession. Therefore, he is entitled

for Rs.25,000/- per month towards damages and on the

other hand, the defendant contended that he has replied

the notice as per Ex.P.4 by denying the averments and

also stated to repay Rs.1,50,000/- and so that he would

vacate the premises and the defendant also established

that the plaintiff locked the grill door and denied the

access to the defendant from September 2019 onwards

which depicts from the photographs as per Exs.D.11 and

D.12 and affixing the notice on the grill door also admitted

by the plaintiff and the legal notice issued by the

defendant clearly reveals he is ready to vacate the

premises but the plaintiff locked the schedule premises

from outside of the grill door. The plaintiff denied the

access to the defendant thereby defendant is able to prove

that the plaintiff illegally dispossessed the defendant by

locking the door. It is also clear from the record that the

defendant's articles were kept in the house and the same

was locked by the plaintiff on the grill door. Therefore

neither the plaintiff nor the defendant were able to enter

the schedule premises. The plaintiff locking the grill door

denying the entry of the defendant clearly reveals the

plaintiff illegally dispossess the defendant and filed the suit

and claiming the damages for Rs.25,000/- p.m. which

cannot be granted. Though plaintiff filed suit for ejectment

but he has locked the door subsequently, such being the

case, the question of paying the damage charges of

Rs.25,000/- p.m. cannot be granted and the issuing notice

cannot be a legal termination and hence, the trial Court

committed error in awarding Rs.15,000/- p.m., hence

liable to be set aside.

22. For the reasons stated above, this Court is of

the view that though the plaintiff terminated the tenancy

by issuing notice, but the plaintiff locked the door of the

schedule premises and not allowed the defendant to use

the premises, therefore, it cannot be said that there is a

legal termination of tenancy and failed to prove the arrears

of rent of Rs.1,46,000/- and on the other hand, he has to

pay Rs.1,25,000/- towards advance amount and defendant

to pay only arrears of rent from May 2019 to September

2019 for the period of 4 months. Thereby, the plaintiff has

not approached the Court with clean hands in order to

grant relief in the suit.

23. However, the learned counsel for the appellant

submits that he is ready to vacate if the respondent allows

the appellant to remove his articles from the premises and

if he pays the advance amount and he is ready to pay the

arrears of rent, on the other hand, the respondent locked

the door and if he open the lock and allow the defendant to

take his valuables by mutual agreement that will meet the

ends of justice and both parties can approach the trial

Court in execution for taking possession of the articles by

the defendant by paying the arrears of rent and the

plaintiff shall refund the earnest money which can be

adjusted under while enquiry under Order XX Rule 12 of

the CPC.

24. Accordingly, the appeal is allowed.

The judgment and decree passed by the Trial Court

in O.S.No.9129/2019 dated 23.09.2022 is hereby set aside

and the suit of the plaintiff is dismissed.

Looking to the facts and circumstances of the case,

no order for cost.

Sd/-

JUDGE AKV