Karnataka High Court

Sri. H.S.Arun Kumar vs Sr. T.N.Chandrashekar Setty on 4 September, 2024

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                                                                        NC: 2024:KHC:36193
                                                                     RFA No. 1426 of 2010




                                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                         DATED THIS THE 4TH DAY OF SEPTEMBER, 2024

                                                           BEFORE
                                          THE HON'BLE MR JUSTICE UMESH M ADIGA
                                       REGULAR FIRST APPEAL NO. 1426 OF 2010 (MON)
                                 BETWEEN:
                                 1.    SRI. H.S.ARUN KUMAR
                                       S/O SRI. H.M SHIVANNA
                                       HINDU, AGED ABOUT 41 YEARS

                                 2.    SMT. H.S MANJULA
                                       W/O SRI. L. NAGARAJA,
                                       HINDU, AGED ABOUT 39 YEARS,

                                       BOTH ARE AT NO.24,
                                       OLD NO.552/9, 50 FEET ROAD,
                                       HANUMANTHANAGAR,
                                       BANGALORE-560 019
                                                                            ...APPELLANTS
                                 (BY SRI. S GANGADHARA AITHAL., ADVOCATE)

                                 AND:

                                 SRI. T.N.CHANDRASHEKAR SETTY,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
                                 S/O SRI. NARAYANASWAMY SETTY,
KARNATAKA
                                 AGED ABOUT 55 YEARS,
                                 NO.38, 9TH MAIN, II BLOCK,
                                 B.S.K, IST STAGE,
                                 BANGALORE-560 050.
                                                                            ...RESPONDENT
                                 (BY SRI. C.V SUDHINDRA., ADVOCATE (ABSENT))

                                      THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
                                 THE JUDGMENT AND DECREE DATED 19.03.2010 PASSED IN
                                 O.S.7270/2002 ON THE FILE OF THE XXX-ADDL. CITY CIVIL
                                 JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR
                                 RECOVERY OF MONEY.
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                                           NC: 2024:KHC:36193
                                         RFA No. 1426 of 2010




    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


CORAM:    HON'BLE MR JUSTICE UMESH M ADIGA


                        CAV JUDGMENT

This is defendants appeal directed against judgment

and decree passed in OS.No.7270/2002 on the file of 30th

Additional City Civil Judge, Bengaluru city dated

19.03.2010.

2. I refer to the parties as per their rankings

before the trial Court.

3. It is the case of plaintiff that plaintiff is the

landlord of the suit schedule property. During the year

1995, he had leased out one corner shop premises to

defendants on monthly rent of Rs.2,000/- and defendant

has to pay security deposit of Rs.1,00,000/-. Within two

months, defendant Nos.1 and 2 again approached plaintiff

to let out adjacent shop premises to the defendants on

same terms and conditions. The plaintiff has agreed for

NC: 2024:KHC:36193

the same and let out adjacent shop premises to

defendants on the same terms. Defendants had to pay

additional advance amount of Rs.1,00,000/- and total rent

of both the shop was Rs.4,000/-p.m. The defendants did

not pay additional advance amount of Rs.1,00,000/- while

taking the second shop premises on lease. Hence lease

agreement of the said shop was not executed.

4. It is further case of the plaintiff that on

24.06.1998, the plaintiff renewed lease of corner shop;

since the defendants did not pay the additional advance

amount of another shop as per terms, the plaintiff did not

execute the lease deed or renewal lease deed in respect of

another shop let out to defendants. However, lease of

both the shops continued. It was agreed between the

parties earlier that after completion period of lease of

every two years, 10% of rent has to be enhanced.

Accordingly, defendants were liable to pay enhanced rent

of Rs.4,400/- per month.

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5. It is further case of plaintiff that he insisted for

payment of unpaid advance amount of Rs.1,00,000/- in

respect of one of the shops, thereafter, defendants

stopped paying rent in respect of both shop premises from

April 2000 to October, 2002. Plaintiff issued notice to

defendants, calling upon them to pay the arrears of rent.

Inspite of receipt of notice, they did not pay the same.

With these reasons, plaintiff's prayed for arrears of rent

from April, 2000 to October 2002 @Rs.4,400/- per month

along with interest @ 24% per annum amounting to

Rs.1,36,400/-.

6. The defendants have appeared before the trial

Court, through an advocate, but did not file written

statement.

7. Plaintiff to prove his case examined himself as

PW-1 and got marked Ex.P1 to P18. The defendants have

not led evidence, but in the cross-examination of PW-1,

defendants got is marked as Ex.D1.

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8. The learned trial Judge, after hearing both the

parties and on perusal of the materials available on record,

framed one point for determination and answered the

point in affirmative and decreed the suit by impugned

judgment and decree. Same is challenged by the

defendants on the grounds mentioned in the appeal

memo.

9. Heard the arguments.

10. Learned counsel for the appellant would submit

that according to plaint averments, defendants initially

took one shop on lease during the year 1995 and an

agreement of lease was executed and they paid

Rs.1,00,000/- as advance. Defendants were paying rent

at Rs.2,000/- per month. As per the case of the plaintiff,

defendants took another shop on lease on the same terms

and conditions. The defendants assured that they would

pay deposit of Rs.1,00,000/- but they have not paid the

same. The plaintiff has also contended that defendants

have not paid the rent from April, 2000 to October, 2002,

NC: 2024:KHC:36193

at the rate of Rs.4,400/- per month. But in the cross-

examination PW-1 admitted that during the year 1998,

defendants have paid Rs.1,00,000/- as deposit. He also

admitted execution at Ex.D-1 in this regard.

11. The learned advocate has further submitted

that as per the plaint averments, plaintiff has received

Rs.1,00,000/- as deposit during 1995 and PW-1 admitted

receipt of deposit at Rs.1,00,000/- during 1998. Hence, in

all Rs.2,00,000/- deposit was available with the plaintiff.

The plaintiff should have deducted the said arrears of rent

from the said deposit and refunded excess amount of

deposits to defendants. Admittedly, plaintiff had filed

another suit for possession of the property and said suit

was ended in compromise and defendants vacated the

leased premises and handed over the possession to the

plaintiff.

12. It is further submitted by the learned counsel

for appellant that there were materials on record before

the trial Court that defendants paid deposit of

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Rs.2,00,000/- to plaintiff as stated above. The suit claim

was for Rs.1,24,000/-. The learned trial Judge could have

given set-off of the said arrears from the deposit available

with the plaintiff and ordered to refund the additional

amount of deposits to the defendants. But learned trial

Judge in the impugned judgment observed that he has not

dealt with deposit amount and parties are at liberty to

claim the same in an appropriate proceedings, giving room

for one more litigation. Therefore, learned trial Judge

erred in decreeing the suit and hence prayed for allowing

the appeal by setting aside the impugned judgment and

order to set-off the deposit amount available with plaintiff

and refund of excess amounts to defendants.

13. The case of the plaintiff is narrated in the above

paragraphs. Admittedly, defendants did not file written

statement and lead evidence before the trial Court.

Defendants rest their claim of set off on the basis of the

cross-examination of PW-1.

NC: 2024:KHC:36193

14. The learned trial Judge appreciated both oral

and documentary evidence placed by the parties, in the

impugned judgment to arrive at the conclusion. The trial

Court considered the cross-examination of PW-1 by the

defendants. Defendants have not produced an iota of

evidence, either oral or documentary to prove that they

paid rent claimed in the suit. Even there was no pleading

of defendants on record to consider their contention by the

trial court.

15. Plaint averments show that during the year

1995, when the corner shop was taken by the defendants

on lease Rs.1,00,000/- was paid as deposit as stated in

Ex--2. This is an undisputed fact. In the entire plaint,

nothing is stated about the said deposit amount given by

the defendants.

16. Plaint averments also states about the renewal

of lease agreement between the parties on 24.02.1998.

The plaintiff has contended that defendants have not paid

additional deposit amount of Rs.1,00,000/- as per terms of

NC: 2024:KHC:36193

agreement. During the cross-examination, PW-1 admits

Ex.D-1 and his signature on the said document. He also

admits that under the said document, he received

Rs.1,00,000/-, but does not explain about it. In the

further cross examination, PW-1 denied the suggestion

that plaintiff has received deposit of Rs.2,00,000/- from

defendants and also that defendants were not liable to pay

any arrears of rent. No further cross examination was

made in respect of so called set-off. There was no oral

evidence for defendants.

17. It is not in dispute that plaintiff herein has filed

suit in O.S.No.7270/2002 for the relief of possession. The

said suit appears to be compromised. The copy of the

plaint in the said suit is produced at Ex.P15. The prayer

made in the said suit was to direct the defendants Nos.1

and 2 to quit and vacate the leased property and the

mense profit at the rate of Rs.5,000/- per month from 1st

October 2002 till the date of delivery of the vacant

possession of the suit schedule property. The said suit

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was compromised and copy of the compromise petition is

at Ex.P16. The decree passed in the said case is at

Ex.P17. Both in Exs.P-16 and 17, there is no reference

regarding the deposit amount. Both the parties remained

silent in respect of the said deposit amount. That might be

proper suit where in adjustment of deposit could be made,

because the lease was come to an end and it was a

security deposit.

18. To consider claim of defendant for set-off, it is

necessary to refer order VIII Rule 6 of CPC.

Order VIII Rule 6 of CPC reads as under:

"6. Particulars of set-off to be given in written statement:(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off".

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NC: 2024:KHC:36193

19. Defendants did not file written statement and

hence question of counter claim would not arise.

Appellants cannot make new case in the appeal, which was

not their case before the trial court. In this appeal,

defendants cannot surprisingly make out new case in

respect of the said deposit amount. There are no pleadings

or evidence in this regard led by the appellant/defendants.

On the basis of vague questions asked in the cross-

examination, even without pleadings and stray answers

given by the witness, cannot be considered as an

admission to grant the relief, as submitted by the learned

counsel for the appellant. The defendant who has not filed

written statement is not entitled to suggest his

defence/case in the cross examination of plaintiff; His

right, at the best, is only denying the evidence given by

the plaintiff and his witnesses. However, the learned trial

judge allowed the defendant to suggest his case in the

cross examination without pleadings. That cannot be basis

for granting of relief of set-off, as prayed during course of

arguments.

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20. The plaintiff by oral evidence proved that an

amount of Rs.1,24,000/- was due to him from defendants

as arrears of rent. In the cross-examination of PW-1,

though the said facts were denied but nothing was brought

out to disbelieve the same.

The defendants have not filed written statement or

led oral evidence or produced any documents to show that

they had paid the said amount of rent to the plaintiff

claimed in the suit. The learned trial Judge on the basis of

the material available on record rightly decreed the suit. I

do not find any reasons to interfere in the findings of the

trial Court.

21. The trial Court, in the impugned judgment has

given a liberty to both the parties in respect of alleged

deposit made by the defendants. It does not call for

interference.

22. For the aforesaid reasons, I pass the following:

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                                           NC: 2024:KHC:36193





                            ORDER

       i.     The Appeal is dismissed.


       ii.    The impugned judgment and decree dated