Karnataka High Court

Sri Thimme Gowda @ Thimmaiah vs Sri N S Narendra on 5 February, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                             -1-
                                                         NC: 2024:KHC:4851
                                                        RFA No. 75 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 5TH DAY OF FEBRUARY, 2024

                                            BEFORE
                      THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                          REGULAR FIRST APPEAL NO. 75 OF 2024 (EJE)
                   BETWEEN:

                   SRI THIMME GOWDA @ THIMMAIAH
                   S/O LATE HUCHAPPA
                   AGED ABOUT 63 YEARS
                   R/AT NO 4027/144, 7TH CROSS
                   7TH BLOCK, WEST OF KANAKAPURA ROAD
                   JAYANAGAR, BANGALORE - 560070.
                                                              ...APPELLANT
                   (BY SRI. MANJUNATH G KANDEKAR, ADVOCATE FOR
                   SRI.SACHAN KUMAR.,ADVOCATE)


                   AND:

                   SRI N S NARENDRA
                   S/O LATE N C SUBBARAJU
Digitally signed   AGED ABOUT 53 YEARS
by HEMALATHA       R/AT NO 4, 15TH CROSS
A                  100 FEET RING ROAD
Location: High
Court of           J P NAGAR, 6TH PHASE
Karnataka          BANGALORE - 560070
                                                            ...RESPONDENT
                   (BY SRI.ABHINAV R., ADVOCATE C/R)

                         THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
                   THE JUDGMENT AND DECREE DATED 30.10.2023 PASSED IN
                   OS.NO.5337/2020 ON THE FILE OF THE X ADDITIONAL CITY
                   CIVIL   AND    SESSIONS    JUDGE,  BENGALURU,    PARTLY
                   DECREEING THE SUIT FOR EJECTMENT.
                              -2-
                                            NC: 2024:KHC:4851
                                          RFA No. 75 of 2024




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

                         JUDGMENT

This appeal is filed by the defendant challenging the

judgment and decree dated 30.10.2023 passed by the X

Additional City Civil and Sessions Judge, Bengaluru in

O.S.No.5337/2020, whereby the suit filed by the plaintiff

for ejectment has been allowed.

2. For the sake of convenience, the parties are

referred to as per their ranking before the trial court.

3. The case of the plaintiff is that he is the absolute

owner of the suit schedule property. He has let out the

same to the defendant on a rental basis under the rental

agreement dated 06.12.2017 for running a Paying Guest

accommodation. The rent payable by the defendant as on

the date of the suit was Rs.49,005/- per month.

4. The further case of the plaintiff is that as per the

terms of the rental agreement, the period of lease was 11

months, thereafter as per the request of the defendant, it

was extended by mutual consent as per the shara made

NC: 2024:KHC:4851

on the rental agreement, subject to the revised monthly

rent. Accordingly, the defendant was said to be liable to

pay the aforesaid rent. The defendant was said to be a

chronic defaulter in the matter of payment of monthly rent

and he was not paying the monthly rent regularly and

intentionally withheld the said amount from 01.02.2020 till

this date, without any valid reason. Therefore, the plaintiff

said to have issued a legal notice to the defendant on

03.08.2020, thereby terminating his tenancy with effect

from 31.08.2020, calling upon him to quit and surrender

the vacant possession of the schedule premises. Inspite of

receiving the notice, the defendant has not vacated the

premises. Hence, the plaintiff filed a suit for ejectment and

for arrears of rent and damages.

5. On service of summons, defendant appeared

through counsel and filed the written statement denying

the claim of the plaintiff. He has also denied that

defendant is liable to pay arrears of rent from 01.02.2020

to 31.08.2020. He has also denied that defendant was on

a monthly tenancy not paying the monthly rent. He

NC: 2024:KHC:4851

further denied the execution of the rent agreement. He

contended that he has taken the premises on lease and

he has paid Rs.45,00,000/- as the lease amount and

therefore, he cannot be a defaulter for payment of rent.

Hence, he sought for dismissal of the suit.

6. On the basis of the pleadings of the parties, the

trial court has framed the following issues and additional

issue:

(1) Whether the plaintiff proves the existence of jural relationship of landlord and tenant between himself and the defendant with respect to the suit schedule premises?

(2) Whether he further proves that the suit rent agreement dated 06.12.2017 between himself and the defendant with the recitals contained therein?

(3) Whether he further proves the alleged default committed by the defendant in payment of the regular rental amount with respect to the schedule premises?

(4) If so the plaintiff proves that the defendant is in arrears of Rs.3,43,035/- towards the rent of schedule premises?

NC: 2024:KHC:4851

(5) If so, he is entitled to recover the arrears of rent from the defendant as claimed in para 14(b) of the plaint?

(6) Whether plaintiff further proves the alleged termination of tenancy of the defendant with respect to the suit property with effect from 31.08.2020?

(7) If so, whether the plaintiff is entitled to recover the vacant possession of the schedule premises from the defendant as sought for in para 14(a) of the plaint?

(8) Whether the defendant proves that he is in lawful possession of the schedule premises as a mortgagee?

(9) Whether he further proves that the plaintiff had obtained his signature on some typed stamped papers without making him aware of their contents?

(10) Whether the plaintiff proves that the possession of the defendant over the schedule premises after termination of his tenancy is unlawful?

(11) If so, whether he is entitled to claim damages from the defendant as sought in para-14(c) of the plaint?

(12) What order or decree?

NC: 2024:KHC:4851

Addl.Issue:

(1) Whether the plaintiff proves that the defendant is called by two names as Thimmegowda and Thimmaiah?

7. To prove the case, plaintiff examined himself as

PW1 and marked documents as Exs. P1 to P16 and during

the cross-examination he has also marked two documents

as Exs. 17 and 18 and also examined two independent

witnesses as PW2 and PW3. Defendant examined himself

as DW1 and marked documents as Exs. D1 to D6. He has

examined his brother-in-law as DW2 and through him, got

marked documents as Exs. D7 to D12. He also examined

one more witness as DW3.

8. The trial court, on appreciation of the oral and

documentary evidence, answered issue Nos. 1 to 7 and

additional issue No.1 in the affirmative and issue Nos. 8

and 9 in the negative and decreed the suit. Being

aggrieved by the judgment and decree, the defendant is

before this Court.

NC: 2024:KHC:4851

9. The learned counsel appearing for the appellant

/defendant has raised the following contentions:

(i) Firstly, as per the plaintiff, there was a rental

agreement, under Clause (7) of the said agreement, the

lessor is required to give three months notice. The notice

issued by the plaintiff as per Ex.P2 is dated 03.05.2020,

giving less than one month's notice. Hence, the suit itself

is not maintainable.

(ii) Secondly, even if the lease period expired,

thereafter, as per Clause (6) it requires three months

notice. In support of his contention, he relied on the

judgment of the Apex Court in the case of MANUJENDRA

DUTT vs. PURNEDU PROSAD ROY CHOWDHURY AND

OTHERS reported in AIR 1967 SC 1419 (paras 6 and

7). Hence, he sought for allowing the appeal.

10. Per contra, learned counsel appearing for the

respondent/plaintiff has raised the following contentions:

(i) Firstly, in the written statement the defendant has

not taken any such defence stating that three months

notice has not been given as per Clause (6) of the rental

NC: 2024:KHC:4851

agreement. On the other hand, he has denied the

execution of the rental agreement.

(ii) Secondly, under the very same agreement, there

is a default Clause 21 which states that if there is any

breach of terms of the agreement and default of payment

of arrears of rent for a period of two months, the lessor

shall be entitled to terminate the lease with immediate

effect and re-enter the leased premises. Therefore, the

question of giving three months notice does not arise. In

support of his contention he relied on Section 111(g) of

the Transfer of Property Act, 1882 (for short, 'TP Act').

(iii) Thirdly, Even under Section 106(3) of the TP

Act, if the period falls short of the period of notice and if

the suit is filed after the expiry of that period, it is to be

considered as within limitation. In support of his

contention, he relied on the judgment of the Apex Court in

the case of SHREE RAM URBAN INFRASTRUCTURE

LTD. (FORMERLY KNOWN AS SHREE RAM MILLS

LTD.) Vs. COURT RECEIVER, HIGH COURT OF

NC: 2024:KHC:4851

BOMBAY reported in AIR 2014 SC 2286. Hence, he

sought for dismissal of the appeal.

11. By way of rejoinder, learned counsel appearing

for the appellant/defendant contended that Section 106

will become applicable in the absence of written contract

or local usage. Since the plaintiff has issued notice on the

basis of the existing rental agreement, that provision is

not applicable.

12. Heard the learned counsel appearing for the

parties and perused the impugned judgment and the

records.

13. The only point raised by the appellant/defendant

is that three months notice as prescribed under Clause (6)

of the rental agreement has not been given. In this

context, the point that arises for consideration in this

appeal is, 'Whether the notice issued by the plaintiff as per

Ex.P2 is in terms of the rental agreement - Ex.P1?

14. The specific case of the plaintiff is that he is the

owner of the suit schedule property, there was a rental

- 10 -

NC: 2024:KHC:4851

agreement between the plaintiff and the defendant dated

06.12.2017 fixing the rent at Rs.40,500/- per month.

15. The further case of the plaintiff is that as per the

shara, the rental agreement period has been extended

from 06.10.2019 for a period of 11 months fixing the

monthly rent at Rs.49,005/-. It is also the further case of

the plaintiff that the defendant is a chronic defaulter in

payment of rent. As per Clause 21 of the agreement, the

lessor can terminate the lease agreement and re-enter the

leased premises. The defence of the appellant/defendant

is that he is in the possession as a lessee and he has paid

Rs.45,00,000/- for the entire premises. Now, in the

appeal before this Court, the appellant/defendant, for the

first time, taken the contention that as per Clauses 6 and

7 of the rental agreement, even during the existence or

after the expiry of the rental agreement, three months

notice is required and further contended that even the

defendant may deny the rental agreement, but the case of

the plaintiff is based upon the rental agreement, therefore,

three months notice is required.

- 11 -

NC: 2024:KHC:4851

16. In the light of the said submissions, I have

considered the rental agreement as per Ex.P1. That has

been executed on 06.12.2017 for a period of 11 months.

But there is a shara in the said document dated

15.10.2019 and the tenancy period has been extended for

a period of 11 months from 06.10.2019 on a monthly rent

of Rs.49,005/-. Clause 21 of the lease agreement - Ex.P1

is extracted below:

"21. If the amount payable stated in para 4 in arrears for a period of two months after the same has fallen due or if there is a breach of any other terms of this agreement, the lessor shall be entitled to terminate the lease with immediate effect and re-enter upon the leased premises."

17. It is very clear from the aforesaid clause that if

there is any arrears of rent for a period of two months and

there is any breach of an agreement, lessee is entitled to

terminate the lease with immediate effect and re-enter

upon the leased premises. Section 111(g) of the TP Act is

extracted hereinbelow:

- 12 -

NC: 2024:KHC:4851

"111. Determination of lease - A lease of immoveable property determines -

...................

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."

18. The trial court also framed the issue regarding

default of payment of rent as issue No.3. The same is

extracted below:

(3) Whether he further proves the alleged default committed by the defendant in payment of the regular rental amount with respect to the schedule premises?

The issue No.3 is answered in the affirmative. Therefore, it

is very clear that the defendant is a defaulter in payment

- 13 -

NC: 2024:KHC:4851

of regular rent. As per Clause 21 of Ex.P1 and Section

111(g) of the TP Act, the plaintiff has issued notice -

Ex.P2, dated 03.08.2020, to terminate the tenancy.

19. Under these circumstances, the contention of the

appellant/defendant that three months notice required as

per Ex.P1 is unsustainable. Therefore, there is no error in

the judgment and decree passed by the trial court. The

point determined is answered accordingly.