Allowed

Sri. Rafeeq Sait v. Sri. V.M. Machendranath

Karnataka HC10 Dec 2020MFA/2352/2013

Case brief

AI extract

What is this about?

In Misc. First Appeal No.2352/2013, the High Court of Karnataka allowed the appellant's appeal against a temporary injunction regarding terrace hoardings. The trial court failed to consider the prima facie case on rent default and breach of lease terms. The court remanded the matter for reconsideration and disposal within one month.

What did the court decide?

The appeal was allowed; the matter was remanded to the trial court for reconsideration of the interim application after giving both parties an opportunity of hearing and disposal within one month.

Sri. Rafeeq Sait Vs Sri. V.M. Machendranath — Civil Procedure and Limitation | Karnataka HC (2020)

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M.F.A.No.2352/2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.2352/2013

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BETWEEN:

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SRI RAFEEQ SAIT AGED ABOUT 55 YEARS S/O LATE M.Y. OSSMAN SAIT R/AT 74/1, MOSQUE ROAD, FRASER TOWN BENGALURU – 560 005 ALSO AT R/AT 301, K. KAMARAJ ROAD BENGALOORU – 560 042 …APPELLANT

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(BY SMT. JAYASREE NARASIMHAN., ADVOCATE)

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AND:

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SRI V.M.MACHENDRANATH

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AGED ABOUT 55 YEARS S/O LATE VHAVALE M. MUNIDEVARAO

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R/AT 135/1, 1 FLOOR, I STAGE BASAVESHWARANAGAR BENGALOORU -560 079

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SMT. POORNIMA AGED ABOUT 44 YEARS W/O V.M. MACHENDRANATH R/AT 135/1, 1 FLOOR, I STAGE BASAVESHWARANAGAR BENGALOORU – 560 079.

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SMT. V.S. BEENA AGED ABOUT 37 YEARS W/O V.M.SRIHARI R/AT 135/2, 1 FLOOR, I STAGE BASAVESHWARANAGAR BENGALOORU – 560 079.

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M.F.A.No.2352/2013

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SHRI V.M.SRIHARI AGED ABOUT 46 YEARS S/O LATE VHAVALE M. MUNIDEVARAO R/AT 135/2, 1 FLOOR, I STAGE BASAVESHWARANAGAR BENGALOORU – 560 079 …RESPONDENTS

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(BY SRI G.S.PRASANNA KUMAR, ADVOCATE FOR C/R4 R1, R2 & R3 SERVED)

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THIS MFA IS FILED UNDER SECTION 43 RULE 1(R) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 10.01.2013 PASSED BY XXV ADDITIONAL CITY CIVIL & SESSIONS JUDGE BANGALORE ON I.A.NO.1 IN O.S.NO.841/2011.

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THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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No representation for the respondents. Heard the appellant‘s Counsel.

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Aggrieved by the order of temporary injunction passed against the appellant by the XXV Additional City Civil & Sessions Judge (CCH-23), Bengaluru restraining him from erecting hoardings on the terrace of the suit property pending the suit, the defendant has preferred the above appeal.

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The subject matter of the suit was the commercial building bearing BBMP No.301 situated at Kamaraj Road consisting of ground floor, I floor and II

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M.F.A.No.2352/2013

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floor. The said property originally belonged to one Gunaji Sutrave and H.B.Dharmaraj. They let out the said property to the appellant under registered lease deed dated 28.07.2003 for a term of 25 years for the purpose of the appellant carrying on his business.

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The term with regard to payment of rent was at Clause 2 of the lease deed. The rent was revisable once in three years. In the year 2011, the rent payable was around Rs.10,543/per month. The original lessors/owners sold the property to respondent Nos.1 to 4 under the registered sale deed dated 18.01.2010 and attorned the tenancy in their favour.

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The respondents issued notice dated 07.01.2011 to the appellant terminating the tenancy for default in payment of rent since September 2010 and use of the property contrary to the purpose for which it was let out and called upon him to pay the rent. Respondents claimed that the appellant has committed breach of terms of the agreement, therefore he is liable to be evicted.

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M.F.A.No.2352/2013

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The respondents filed O.S.No.841/2011 before the trial Court for ejectment contending that despite termination of the tenancy on the aforesaid two grounds, the appellant failed to pay rent and hand over possession of the property. They also sought recovery of the arrears of rent of Rs.63,892/- and damages etc.

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In the suit, the respondents filed I.A.No.1 under Order XXXIX Rules 1 & 2 read with Section 151 of CPC seeking temporary injunction against the appellant from putting up any hoardings on terrace portion of the schedule property. In the affidavit filed in support of the application, respondent No.4 contended that the appellant has failed to pay the rent and hand over possession and despite that he is illegally trying to put up hoardings in the schedule premises without required sanction and permission and act of the appellant is putting the respondents to great hardship and inconvenience.

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The appellant contested the application denying the allegations made against him and the case of the plaintiffs. He further contended that Clause Nos.5 and

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M.F.A.No.2352/2013

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6 of the lease agreement permit him to sub-let the property including the terrace area and to use that for his business, accordingly, he is entitled to sub-let the property for the purpose of putting hoardings and for his business.

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The trial Court on hearing both the parties, by the impugned order allowed the application and granted temporary injunction on the following grounds:

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(i) Clause Nos.5 and 6 of the lease agreement permit the appellant to use the property lawfully for the purpose of his business. But the appellant has permitted one Joyallukas to put up hoardings of the jewellary advertisement. Thus, prima-facie it is clear that the appellant has violated the terms of the lease agreement;

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(ii) Plaintiffs have made out prima-facie case of their right and injury to such right;

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(iii) Balance of convenience lies in favour of the plaintiffs/respondents.

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Smt.Jayasree Narasimhan, learned Counsel for the appellant submits that as per Clause Nos.5 and 6 of the lease agreement, the appellant is entitled to sub-let and use the building more particularly the terrace area for

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M.F.A.No.2352/2013

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the purpose of his business. Therefore, he was entitled to sub-let the property for putting hoardings by others also.

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So far as payment of rent, learned Counsel for the appellant submits that as pleaded in the written statement, the appellant tendered rent, but the respondents themselves did not accept that. She further submits that the suit is pending since 2011 and despite payment of rent, due to the injunction order, the appellant is not able to reap any benefits from the property, thereby put to irreparable injury.

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An order under XXXIX Rules 1 and 2 of CPC is a discretionary order. Unless it is shown that the order suffers perversity or glaring illegality, the same cannot be interfered with.

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The appellant himself admits that the property is sold to respondent Nos.1 to 4 and they have stepped into the shoes of the original owners/landlords. Though it was contended that the appellant has paid the rent or tendered the rent, there is nothing on record to show that the notice was replied and with such reply the rent was

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M.F.A.No.2352/2013

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tendered. Only in the written statement filed on 01.10.2011, appellant claimed that he tendered rent. In fact in his pleading he disputed the issuance of termination notice.

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Though Learned Counsel for the appellant submits that the trial Court while considering prima-facie case to grant injunction did not ascertain whether the respondents have made out case with reference to default in payment of rent. She further submits that neither the appellant nor the respondents are in a position to exploit the full potentiality of the property due to long pendency of the case and the interim injunction granted against the

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appellant. Thus she submits that the matter may be remanded to the trial Court with a direction to the trial Court to consider the case with reference to non payment of rent as well as breach of terms of agreement regarding sub letting and putting the property to use by sub-tenants.

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The suit was filed and the injunction was sought on two grounds namely there was default in payment of rent and the appellant put the property to use

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M.F.A.No.2352/2013

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through sub tenant for the purpose of putting up hoardings on the terrace area which was not permissible. Though the appellant in his pleadings contended that he has paid the rent, the trial Court did not consider prima - facie case with reference to that aspect.

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As rightly pointed out by learned Counsel for the appellant, the property is in commercial locality. Neither the plaintiffs could get possession of the property as the case is pending for almost 10 years nor the appellant was in a position to exploit the full benefits of the property with regard to terrace area.

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Under the circumstances, this Court is of the opinion that the trial Court has failed to consider the entire case of the parties while granting injunction. Thereby Trial Court has failed to exercise its discretion properly . Therefore, the appeal is allowed.

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The matter is remanded to the trial Court for the purpose of reconsideration of I.A.No.1 after giving opportunity of hearing to both the parties. Since the matter is very old, the trial Court shall hear both the

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M.F.A.No.2352/2013

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parties on I.A.No.1 and dispose of the same within one

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month from the date of receipt of copy of this order.

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Registry shall transmit the records to the trial Court forthwith.

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Till the trial Court disposes I.A.No.1, the appellant shall not put up any hoardings in the terrace area except for the purpose of his own business.

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Further the trial Court is requested to try and dispose of the suit as expeditiously as possible.

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To avoid further delay, the parties are directed to appear before the trial Court on 04.01.2021 without any further notice.

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Sd/JUDGE

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KSR

Sri. Rafeeq Sait v. Sri. V.M. Machendranath

Case brief

What is this about?

What did the court decide?

Sri. Rafeeq Sait v. Sri. V.M. Machendranath

Case brief

What is this about?

What did the court decide?

What the court decided

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