Karnataka High Court
M/S Prime Label Pvt Ltd vs Sri Kantilal Pukhraj Jain on 16 October, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:41816
RFA No. 2168 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 2168 OF 2022 (EJE)
BETWEEN:
1. M/S PRIME LABEL PVT LTD
REP BY ITS MANAGING DIRECTOR
MR RAJESH JAIN ALIS
RAJESH MANORATH JAIN
R/AT NO B-164
4TH MAIN
2ND STAGE
PEENYA
BANGALORE 560058 .. APPELLANT
(BY SRI. IRSHAD AHMED K.,ADVOCATE)
AND:
Digitally signed by
HEMALATHA A 1. SRI KANTILAL PUKHRAJ JAIN
Location: HIGH
COURT OF AGED 67 YEARS
KARNATAKA S/O SRI PUKHAJ DHOKA
NO B-1, 5TH FLOOR
NO 934/59
NAGARATHPET MAIN ROAD
NAGARATHPET
BANGALORE 560002 .. RESPONDENT
(VIDE ORDER DATED 25.09.2024, NOTICE TO RESPONDENT
HELD SUFFICIENT)
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NC: 2024:KHC:41816
RFA No. 2168 of 2022
RFA FILED UNDER SECTION 96 R/W ORDER 41 RULE 1
OF CPC AGAINST THE JUDGMENT AND DECREE DATED
30.07.2022 PASSED IN OS No.5827/2021 ON THE FILE OF THE
XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING THE SUIT FOR EJECTMENT
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this appeal came up for admission, heard for
final hearing as the notice to respondent is served absent.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court.
3. This appeal is filed by the appellant - plaintiff
under Section 96 of Civil Procedure Code for setting aside
the judgment, dismissing the suit of the plaintiff for
ejectment, in O.S.No.5827/2021 dated 30.07.2022 before
the XXXIV Additional City Civil and Sessions Judge,
Bengaluru.
NC: 2024:KHC:41816
4. The case of the plaintiff before the trial court is
that he is the owner of the suit schedule premises -
Apartment bearing No. A, 5th Floor, at property No.934,
situated at Dharmaswamy Temple Road - Nagarthpet
main road, Bangalore and the plaintiff let out the premises
to the defendant from 01.04.2019 at the rate of
Rs.18,000/- per month. The defendant was paying the
rent regularly. Thereafter, after some time, he has neither
paid the rent nor vacated the premises, he locked the door
and was not coming to the schedule premises and he is
absconding. Hence, the plaintiff issued a legal notice,
which is also affixed on the door as well as the business
area. But he has not replied and also not vacated the
premises. Hence, the plaintiff filed a suit. Notice was
served on the defendant by way of affixture and the trial
court has held the notice as sufficient and the defendant
was placed ex-parte.
5. To prove the case, the plaintiff himself was
examined as PW1 and got marked 9 documents. There is
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no cross-examination and no evidence from the side of the
defendant. After hearing the arguments, the trial court
formulated the point for consideration, as to,
"whether the plaintiff is entitled for the
relief as sought for?"
The trial court answered the point in the negative and
dismissed the suit. Being aggrieved by the same, the
plaintiff is before this Court.
6. The learned counsel for the appellant - plaintiff
seriously contended that the trial court dismissed the suit
only on the ground that there is no lease agreement. The
trial court committed an error in not accepting Ex.P5 -
bank statement, where the rents were paid continuously
by the defendant through bank transfer. The defendant
was also running a gold business called as 'Alankar Gold'
and the amounts of Rs.18,000/- per month were
transferred by way of online transfer. The said document
is not properly considered and appreciated by the trial
court. The plaintiff is the owner and the defendant is the
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tenant. A case is made out by the plaintiff before the trial
court to prove his ownership and tenancy. But the trial
court failed to appreciate the evidence on record and
dismissed the suit. Hence, prayed for setting aside the
same.
7. After hearing the arguments, the points that arises
for consideration are,
(i) Whether the plaintiff proved that he is the
owner and the defendant is the tenant of the
suit schedule premises?
(ii) Whether the plaintiff is entitled for the relief
of ejectment in the suit?
(iii) What order?
8. On perusal of the record, especially Ex.P1 reveals
that the plaintiff is the owner of the suit schedule
premises. Ex.P2 is the tax paid receipt. Ex.P3 is the khata
extract, which reveals that he is the owner of the suit
schedule premises. Ex.P4 is the letter given by the plaintiff
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to the Manager of the State Bank of India, Peenya
Industrial Estate Branch, for furnishing the bank
statement. Ex.P5 is the bank statement which reveals
that the plaintiff is having account at State Bank of India,
Peenya Industrial Estate Branch, Bengaluru. The
statement reveals that the plaintiff received a sum of
Rs.2,50,000/- from the defendant as earnest money/
advance to the premises and every month he was paying a
rent of Rs.18,000/- to the plaintiff. It is being transferred
from the account of 'Alankar Gold', to which the defendant
is said to be the proprietor. One of the entries in the bank
statement reveals that once, the defendant has paid
Rs.54,000/- towards arrears of rent for three months.
Finally, the rent was paid on 12th December 2020 and
thereafter there is no transfer of any rent from the
defendant to the plaintiff. It clearly reveals that the
defendant was staying in the suit schedule premises
without paying the rent to the plaintiff only on oral
agreement. Ex.P6 is the legal notice issued to the
defendant for vacating the suit schedule premises. Ex.P7
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is the postal receipt, Ex.P8 is the unserved postal envelope
and Ex.P9 is the tax paid receipt. These documents were
not considered by the trial court. Considering the same,
there is no reason for the trial court to reject the claim of
the plaintiff to show that he is the owner and the
defendant was the tenant. Though the defendant has not
appeared and contested the matter, the trial court ought
to have considered the evidence on record and as per the
evidence of PW1, who has categorically stated that he is
the owner and the defendant was the tenant. The suit is
dismissed merely because there is no lease agreement
produced by the plaintiff. Even otherwise, the court can
presume that the lease agreement is always with the
tenant and when he is ex-parte, the question of expecting
the lease agreement is not correct. The defendant was
ex-parte and not contested the matter before the trial
court. Such being the case, the plaintiff made out a case
that the defendant is a tenant and the property was leased
out to the defendant on 01.04.2019 and thereafter he was
a defaulter and neither paid the rent nor vacated the
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premises after receiving notice. Therefore, it is a fit case
for allowing the appeal.
9. Since the defendant has not vacated the premises,
the court can execute the decree and vacate the premises.
The trial court without properly appreciating the evidence
on record dismissed the suit of the plaintiff, which called
for interference and liable to be set aside.
10. Accordingly, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment passed by the trial court is set
aside.
(iii) The suit of the plaintiff is decreed and the
defendant is directed to quit and vacate the
schedule premises within 30 days from the
date of receipt of a copy of this judgment.
(iv) It is stated that the defendant locked the
house and absconding. Therefore, the
appellant is at liberty to file execution petition
and execute the decree of this Court.
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(v) The plaintiff is also entitled to arrears of rent
and it can be adjusted with the earnest
money or advance money.
(vi) Office to draw the decree accordingly.
Sd/-
(K.NATARAJAN)
JUDGE
CM
