Karnataka High Court
Smt. Sampa Sen vs M/S. R.K. Raju Dwelling on 3 September, 2024
Author: V. Srishananda
Bench: V. Srishananda
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NC: 2024:KHC:35946
RFA No.472 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL NO.472 OF 2018 (EJE)
BETWEEN:
SMT. SAMPA SEN
W/O LATE R.K. RAJU
AGED ABOUT 35 YEARS
GANESHA RESIDENCY
FLAT NO.102, 1ST FLOOR
Digitally NO.55, 13TH CROSS
signed by 4TH MAIN, MALLESWARAM
MALATESH BANGALORE-560 003.
KC ...APPELLANT
Location: (BY SRI. RAVINDRANATHA K, ADV.,)
HIGH
COURT OF
KARNATAKA AND:
M/S R.K. RAJU DWELLING
PRIVATE LIMITED
HAVING ITS OFFICE AT:
NO.95, 3RD MAIN
G.D. PARK EXTENSION
OPP: STELLA MARY'S CONVENT
VYALIKAVAL, BANGALORE-560 003
REP. BY IT'S DIRECTOR
NAGARAJ S/O MANIYAPPA.
...RESPONDENT
(BY SRI. A. KESHAVA BHAT, ADV.,)
---
THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 R/W
SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 8.6.2017 PASSED IN O.S. NO.298/2015 ON THE FILE
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RFA No.472 of 2018
OF THE XX ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY, DECREEING THE SUIT FOR EJECTMENT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V. SRISHANANDA
ORAL JUDGMENT
Defendant is the appellant challenging the validity of the
judgment and decree passed in O.S.No.298/2015 dated
08.06.2017 whereby defendant is directed to vacate and
handover the suit property on or before one month from the
date of decree.
2. Facts in brief, which are utmost necessary for the
disposal of the present appeal are as under:
Plaintiff contended that it is a Company incorporated
under the Company's Act, 1956 and authorised its Director
Sri.Nagaraj to file the present suit. Plaintiff contended that the
suit property which is an immovable residential property
situated at "Ganesh Residency", Apartment in Flat No.102, first
floor, property No.55, 13th Cross, Malleshwaram, Bengaluru-
560 003 consisting of three bedrooms measuring 1525 sq. ft.
(hereinafter referred to as the 'suit property'). Plaintiff further
contented that the same was let out to defendant under the
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rent agreement dated 19.08.2010. Rent was fixed at
Rs.15,000/- per month. It is the further contention of the
plaintiff that there is violation of the terms and conditions of
the rent agreement necessitating the plaintiff to file suit in
O.S.No.298/2015 for ejectment.
3. Defendant was placed ex parte and thereafter,
defendant demanded Rs.5,00,000/- to vacate the suit premises
and plaintiff paid a sum of Rs.5,00,000/- through Cheque.
After the said settlement, the defendant handed over the keys
of the premises to the plaintiff. Thereafter, the suit came to be
dismissed.
4. It is also contended by the plaintiff that
immediately after withdrawal of the suit, defendant again
approached the plaintiff to allow her to reside in the suit
premises since she was in search of new residential premises
on rental basis in the same locality. She also assured that she
would vacate the suit premises without any trouble to the
plaintiff and agreed to pay monthly rent of Rs.15,000/- as per
the earlier agreement.
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5. Thereafterwards, when the defendant did not
vacate the premises, a notice was issued on 02.12.2014
terminating the fresh tenancy and called upon the defendant to
vacate and handover the premises. Though legal notice is
served on the defendant, she did not vacate which gave cause
to the plaintiff to file the present suit.
6. Pursuant to the suit summons, the defendant
entered appearance and filed written statement denying the
plaint averments in toto. There is a specific defense taken by
the defendant that suit premises belongs to her husband and
the present authorised signatory who is claiming himself as
Director of the plaintiff company is not authorised to evict the
defendant and after the death of her husband she is residing in
the suit property as the legal heir of her husband and not as a
tenant as contended by the plaintiff and sought for dismissal of
the suit.
7. Based on the rival contentions of the parties, the
learned Trial Judge raised the following issues:
"1. Whether the plaintiff proves that the defendant is a
tenant under him and the defendant agree to pay rent of
Rs.15,000/- per month?
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2. Whether the plaintiff further proves that the
defendant has not paid the rent?
3. Whether the plaintiff is entitled for the vacant
possession of the suit schedule property?
4. Whether the plaintiff is entitled for the reliefs
sought for?
5. What order or decree?"
8. In order to prove the suit claim, authorised
signatory of the plaintiff by name D.Srinivas got examined as
PW-1 and placed on record 13 documents which were exhibited
and marked as Exs.P1 to P13 comprising of Board Resolution,
authorization letter, certified copy of rental agreement, copy of
order sheet in O.S.No.394/2011, certified copy of Bank
statement, legal notice, postal receipt, RPAD cover, one more
board resolution, Form No.32 filed by the plaintiff Company,
certified copy of the sale deed, encumbrance certificate, khata
extract, Memorandum and Articles of Association of the plaintiff
company.
9. The plaintiff was cross-examined in detail by the
defendant but no useful material is elicited in such cross-
examination to advance the case of the defendant that she is
residing in the suit property as of her own right.
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10. As against the oral and documentary evidence
placed on record, for the reasons best known to the defendant,
defendant did not choose to enter into the witness box and
place any oral evidence on record nor any documents were
placed on behalf of the defendant to advance her case that she
is residing in the property on the basis of the alleged legal
representative of her husband who is the Director of the
plaintiff company.
11. Under such circumstances, the learned Trial Judge
heard the parties in detail and on cumulative consideration of
the oral and documentary evidence placed on record, decreed
the suit of the plaintiff and granted a month's time to the
defendant to vacate and handover the suit property.
Thereafterwards, being aggrieved by the said judgment, the
defendant is in appeal before this Court.
12. Learned counsel for the appellant, reiterating the
grounds urged in the appeal memorandum, contended that the
defendant is staying in the suit property as of her own right,
especially after the compromise which was entered in
O.S.No.394/2011. Therefore, the contentions urged in the
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plaint that defendant is a tenant in the suit property and there
is a fresh tenancy that has taken place after the compromise in
O.S.No.394/2011 is incorrect and sought for admitting the
appeal for further consideration.
13. Per contra, learned counsel for the respondent
supported the impugned judgment and opposed the grounds of
appeal and contended that it is disputed that defendant is the
wife of one of the Directors of the plaintiff Company.
Therefore, the claim of the defendant that she is residing in the
suit property as of her own right cannot be countenanced and
sought for dismissal of the appeal.
14. Having heard the parties in detail, this Court
perused the material on record meticulously. On such perusal
of the material on record, according to the plaint averments, a
legal notice came to be issued on 02.12.2014 terminating the
tenancy and suit came to be filed on 07.01.2015. Therefore,
the validity of the legal notice terminating the tenancy cannot
be faulted with.
15. In a suit for ejectment, the scope of the suit is only
to find out the validity of the termination notice if at all the
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defendant is claiming any independent right over the suit
property.
16. It is settled principles of law that defendant should
vacate the premises and thereafter establish her right, if any,
in the newly constituted suit and claim possession back by
resorting to Section 144 of CPC.
17. Reserving such liberty for the defendant, this Court
is of the considered opinion that the impugned judgment does
not call for interference by exercising the power vested in this
Court under Section 96 of CPC. This Court also noted that
there is no contra evidence placed on record by the defendant
to substantiate her defense. Under such circumstances, the
following:
ORDER
(i) Appeal grounds are merit less. Hence, admission
declined.
(ii) Appeal is dismissed.
(iii) However, taking note of the fact that the defendant
needs a reasonable time to vacate and handover the premises,
time is granted for the defendant to vacate and handover the
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premises on or before 30.09.2024 subject to clearing the entire
arrears of rent.
Pending applications are consigned to record.
Sd/-
(V SRISHANANDA)
JUDGE
RV
