Sri. Bhanwarlal D. Jain vs Sri. T. N. Umesh
2023 Latest Caselaw 3080 Kant

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                                                    NC: 2023:KHC:19809
                                                       CRP No. 206 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 9TH DAY OF JUNE, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         CIVIL REVISION PETITION NO.206 OF 2023 (SC)

                   BETWEEN:

                   1.    SRI. BHANWARLAL D. JAIN
                         S/O DEVICHAND UDECHANDJI
                         AGED 68 YEARS
                         KARTHA OF HUF

                   2.    SRI SOHAN LAL D JAIN
                         S/O DEVICHAND UDECHANDJI
                         AGED ABOUT 56 YEARS

                         AT SHOP BEARING MUNCIPAL NO 727
                         1ST FLOOR, SITUATED AT OTC ROAD
                         CHICKEPT, BENGALURU 560053
Digitally signed
by SHARANYA T
Location: HIGH
COURT OF                                                   ...PETITIONERS
KARNATAKA
                   (BY SRI. D PRABHAKAR, ADVOCATE)
                   AND:

                   SRI. T. N. UMESH
                   S/O LATE SRI TALLAM N NANJUNDA SETTY
                   AGED ABOUT 71 YEARS
                   R/AT 106, SERPENTINE ROAD
                   KUMARAPARK WEST
                   BENGALURU 560020
                                                           ...RESPONDENT
                   (BY SRI SHREENIVASA G A, ADVOCATE)
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                                   NC: 2023:KHC:19809
                                       CRP No. 206 of 2023




    THIS CRP IS FILED UNDER SECTION 18 OF THE
SMALL CAUSES COURT ACT AGAINST THE JUDGMENT AND
DECREE DATED 09.01.2023 PASSED IN SC.No.116/2019
ON THE FILE OF THE IX ASCJ, SMALL CAUSES AND ADDL.
MACT BENGALURU AND ETC.

     THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:


                        ORDER

This petition is filed challenging the judgment and

decree dated 09.01.2023 passed in S.C.No.116/2019 on

the file of the IX ASCJ, Small Causes and Addl. MACT,

Bengaluru.

2. This petition is listed for admission. Heard the

learned counsel appearing for the respective parties.

3. The factual matrix of the case of the plaintiff

before the Trial Court that the schedule premises belongs

to the plaintiff and the same was let out to the defendants

under the lease agreement dated 11.10.1998 for a period

of 11 months. The defendants have agreed to pay the

enhanced rent at the rate of 15% on every three years on

a monthly rent of Rs.4,000/-. The tenancy commenced

NC: 2023:KHC:19809 CRP No. 206 of 2023

from 10th of every month and now, the monthly rent is

Rs.12,170/-. The plaintiff requested the defendants to

handover the vacant possession of the suit schedule

property on or before 31.07.2018 for that the defendants

requested for two months time and again sought for

further time to vacate the same and thereafter, they have

not vacated the schedule property and the defendants are

also chronic defaulter in paying the rents. Hence, the

plaintiff has issued legal notice to them terminating their

tenancy and called upon them to pay the arrears of rent of

Rs.73,020/-. The said notice was served on the defendants

and the defendants gave untenable reply to the said notice

denying the contention of the plaintiff and also not vacated

the premises. Hence, filed the suit claiming to pay the

arrears of rent, damages of Rs.25,000/- per month and

mesne profit.

4. In pursuance of suit summons, the defendants

have appeared and filed their written statement

contending that the plaintiff is the owner of the schedule

NC: 2023:KHC:19809 CRP No. 206 of 2023

property and they are the tenants under the plaintiff and

they disputed the measurements of the schedule

premises. The defendants further contended that the

father of the plaintiff was the absolute owner of the

schedule property and he inducted them as tenant in the

suit schedule property as per the lease deed executed in

between them and they paid an amount of Rs.1,00,000/-

towards security deposit and Rs.11,00,000/- towards

goodwill hence, in all, they have paid an amount of

Rs.12,00,000/-. The lease was perpetual as they have

paid Rs.11,00,000/- as goodwill to the plaintiff and very

intention of the plaintiff at the time of execution of the

lease agreement was that at no circumstances they would

be evicted from the schedule property in lieu they have

paid a huge amount of goodwill. The very claim of the

plaintiff is against the understanding between the

defendants and the father of the plaintiff and only with an

intention to get higher rent, the legal notice was issued

and he never approached the defendants to vacate the

NC: 2023:KHC:19809 CRP No. 206 of 2023

schedule property. It is also contended that the plaintiff

has commercial buildings in and around Bengaluru.

5. Based on the pleadings of the parities, the Trial

Court framed the issues and allowed the parties to lead

their evidence. In order to prove the case of the plaintiff,

he himself examined as PW1 and got marked the

documents at Ex.P1 to P6. On the other hand, the

defendant No.2 examined as DW1 and also examined two

witnesses as DW2 and DW3 and closed their side. The

Trial Court having considering both oral and documentary

evidence placed on record comes to the conclusion that

there was a lease deed entered in between the father of

the plaintiff and the defendants and the defendants clearly

admitted that the plaintiff is the owner of the schedule

property and during the lifetime of the father of the

plaintiff they have inducted as tenant over the schedule

property. Hence, it is clear that the plaintiff is the owner

and the defendants are the tenants under the plaintiff and

also taken note that the plaintiff has terminated the

NC: 2023:KHC:19809 CRP No. 206 of 2023

tenancy by issuance of notice as contemplated under

Section 106 of Transfer of Property Act calling upon the

defendants to quit and vacate the schedule premises

within three months.

6. The counsel for the petitioners/defendants

would vehemently contend that the very order passed by

the Trial Court is against the material on record. The

counsel also vehemently contends that the petitioners

have paid a huge amount or Rs.11 lakh as goodwill and it

was agreed between them that the petitioners will not be

evicted from the premises until the petitioners quit on

their own. The counsel also vehemently contend that

before filing the petition, a draft lease agreement was also

sent hence, it is clear that the plaintiff was not in need of

the premises. The counsel would vehemently contend that

the order passed by the Trial Court is against the material

on record. The schedule property is not required to the

plaintiff as he has properties in and around Bengaluru.

The counsel submits that inspite of specifically pleaded

NC: 2023:KHC:19809 CRP No. 206 of 2023

that Trial Court has no jurisdiction to entertain the suit,

the Trial Court committed an error in decreeing the suit of

the plaintiff. It is also contended that the petitioners have

availed substantial loan from the bankers to run their

business and the petitioners are suffering from order of

eviction passed by the Trial Court. Hence, it requires

interference.

7. Per contra, the counsel for the

respondent/plaintiff would vehemently contend that the

very counsel appeared in other cases which have been

filed by the plaintiff wherein the matter was compromised

and vacated the premises. The counsel also would

vehemently contend that this Court has to consider

whether there is a valid termination of tenancy and the

plaintiff has issued the notice as contemplated under

Section 106 of the Transfer of Property Act and the

plaintiff is in need of the premises. The counsel also

submits that the petitioners herein took the premises in

the year 1998 that is almost from 25 years, they are in

NC: 2023:KHC:19809 CRP No. 206 of 2023

the suit schedule property. Hence, the Trial Court taking

note of all these materials, particularly, taking note of

legal notice which was marked at Ex.P5 and reply to the

notice at Ex.P6, passed an order of eviction. The counsel

for the respondent/plaintiff also submits that no such draft

agreement was finalized as contended by the revision

petitioners' counsel and no such document is placed before

the Court except oral evidence of DW1 to DW3. Hence,

the Trial Court has not committed any error in decreeing

the suit of the plaintiff hence, it does not require any

interference.

8. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

on record it discloses that there is no dispute with regard

that the premises was let out in the year 1998 and also

lease agreement is for a period of 11 months. The very

contention of the petitioners that they have paid the

goodwill of Rs.11 lakhs and it is a perpetual lease and the

said contention cannot be accepted since the lease deed at

NC: 2023:KHC:19809 CRP No. 206 of 2023

Ex.P3 is for a period of 11 months. In order to prove the

fact that the petitioners have paid an amount of Rs.11

lakh towards goodwill, no material is placed before the

Court. In the case on hand, the legal notice was issued in

terms of Ex.P5 and the same was served requesting the

defendants to quit and vacate the premises and the said

fact is not in dispute. And also given reply in terms of

Ex.P6. This is not the contention of the petitioners that the

legal notice was not in accordance of law. Hence, when the

termination of tenancy was made in terms of Ex.P5 as

contemplated under Section 106 of Transfer of Property

Act, the scope of the Court is to see that whether the

tenancy is legally terminated or not. Having considering

the material available on record, the Trial Court comes to

the conclusion that that there was a landlord and tenant

relationship and the tenancy was legally terminated. When

such being the case, the other contention of the counsel

for the petitioners that schedule property is not required

for the plaintiff cannot be a ground to decide the issue in a

suit filed by for ejection and the Court has to see whether

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NC: 2023:KHC:19809 CRP No. 206 of 2023

there is a legal termination or not. The material discloses

that the business is being run from 1998 i.e., almost from

25 years hence, I do not find any ground to interfere with

the finding of the Trial Court and the scope of the revision

is also very limited. Thus, I do not find any grounds to

reverse the finding of the Trial Court in the revision

petition.

9. In view of the discussions made above, I pass

the following:

ORDER

The revision petition is dismissed. However, time is

granted upto 31.12.2023 to the revision petitioners

subject to payment of monthly rent of Rs.20,000/- with

GST from 01.06.2023 to 31.12.2023.

Sd/-

JUDGE

SN