Partly allowed

K Gopala Shetty v. Sri Naveen Jayaram

Karnataka HC4 Dec 2020RFA/2115/2019

Case brief

AI extract

What is this about?

The High Court, on appeal, partially allowed the appeal against the judgment of the Additional City Civil Judge. While confirming the eviction decree based on the expiry of the tenancy and valid notice, the Court disallowed the trial court's award of Rs.64,000 monthly damages, directing a separate reference for proper valuation before fixing such amount.

What did the court decide?

Eviction of defendant confirmed; time for vacating extended by six months; order for Rs.64,000 damages rejected; separate enquiry for damages ordered.

K Gopala Shetty Vs Sri Naveen Jayaram — Landlord and Tenant | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.F.A.No.2115/2019

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BETWEEN:

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K GOPALA SHETTY SON OF LATE K KRISHNAPPA SETTY HINDU, AGED ABOUT 48 YEARS NO.266, 1^ST FLOOR, 3^RD 0CROSS, 5^TH BLOCK, K .H .B. COLONY KORAMANGALA, BANGALORE – 560 095. ..APPELLANT

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(BY SRI GANGADHARA AITHAL S, ADVOCATE)

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AND:

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1 . SRI NAVEEN JAYARAM S/O LATE D JAYARAM HINDU, AGED ABOUT 46 YEARS.

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2 . SRI PRAVEEN JAYARAM S/O LATE D JAYARAM HINDU, AGED ABOUT 44 YEARS.

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3 . SRI HANUMAN JAYARAM S/O LATE D JAYARAM HINDU, AGED ABOUT 42 YEARS.

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ALL ARE RESIDING AT No.6/1, 6/2, PENT HOUSE, ‘B BLOCK, MSR DEW DROPS,

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5^TH FLOOR, KASAVANAHALLI VILLAGE, OPP:SARJAPUR MAIN ROAD, BANGALORE – 560 103. ..RESPONDENTS

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(BY SRI AZHAR MEER, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.08.2019 PASSED IN O.S.No.2580/2015 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL JUDGE, BANGALORE [CCH No.42], PARTLY DECREEING THE SUIT FOR EJECTMENT.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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Appeal is directed against the Judgment and decree dated 22.08.2019 passed in O.S.No.2580/2015 by the XLI Additional City Civil Judge, Bengaluru, wherein suit of the plaintiffs came to be decreed in part and that the defendant was directed to quit, vacate and hand over vacant possession of the schedule property to the plaintiffs within two months from the date of said Judgment.

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Defendant was further ordered to pay a sum of

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Rs.64,000/- to the plaintiffs by way of damages to the plaintiffs from December 2018 till handing over of vacant possession of the suit property and also payment of entire damages. The plaintiffs were directed to return the deposit of Rs.3,50,000/- to the defendant and set off was also permitted.

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In order to avoid confusion and overlapping parties are addressed in accordance with the rankings held by them before the trial court.

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Plaintiffs filed suit for ejectment of defendant

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from the suit schedule property and prayed for grant of damages at the rate of Rs.64,000/- per month from the date of suit till the date of delivery of possession of the suit schedule premises.

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5. The substance of the matter between the parties

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is that defendant is the tenant under plaintiffs in respect of suit schedule premises. Lease deed was executed by the plaintiffs in respect of the property bearing Nos.348 and 349, ground floor, 7^th Block, Koramangala Extension, Bengaluru, measuring super built up area of 800 sq. ft. under the registered lease agreement dated 22.01.2005. The monthly rental was fixed at Rs.20,000/-. There was consensus between the parties for enhancement of rent and said rent has been enhanced from time to time as per the lease agreement and defendant paid monthly rent of Rs.32,000/- from 01.01.2013 to 31.12.2014.

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It is stated that father of the plaintiffs namely D.Jayaram was alive at the time of executing lease agreement now he is dead leaving behind the plaintiffs as his only legal heirs. Tenancy is month to month

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commencing on first day of every month. It is further stated the purpose of lease was for running a restaurant and period of tenancy was 10 years commencing from 01.01.2005 expiring on 31.12.2014.

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7. As per clause 12 of the lease agreement either

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party shall give three months notice in writing to the other, in case either party wants to terminate the lease. Father of the plaintiffs is no more and building is 35 years old. There is no proper strength in the building and it is very much in a dilapidated condition. As such for the said reasons among other including self acquisition they seek possession of the property and issued three months notice on 01.12.2014 seeking eviction of defendant from the schedule property. Lease period expired on 31.12.2014 and even after repeated requests and demand the

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defendant failed to vacate the schedule property. The defendant had paid an amount of Rs.3,50,000/- to the plaintiffs as interest free security deposit on 22.01.2005. Plaintiffs requested defendant several times to vacate the schedule property. Notice sent through registered post acknowledgement due is served on the defendant. But one sent to defendant’s residential address has been returned.

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The defendant contended that the plaintiffs have

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not come to court with clean hands. Defendant filed a suit for permanent injunction against the plaintiffs so also filed writ petition before the High Court of Karnataka and an order of injunction was granted in favour of defendant. The averments of the plaint that defendant is a tenant in respect of premises indicate that the tenancy is not terminated and suit is not maintainable as all the legal heirs of D.Jayaram are

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not brought on record. Tenancy is very much intact and the property is not valued as per the provisions of the Karnataka Court Fees and Suit Valuation Act.

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It is stated that earlier the premises was let out by Vijaya, w/o late D.Jayaram under the lease agreement dated 01.07.2000 and rent agreed was Rs.9,000/per month. Said Vijaya received Rs.1,85,000/- as security deposit. Plaintiffs have not stated anything about the said security deposit. Under the alleged lease agreement dated 22.01.2005 the plaintiffs received Rs.3,50,000/- and they have further received Rs.1,50,000/- as security deposit. Thus plaintiffs are to pay a sum of Rs.6,85,000/- as security deposit and due to interference of the plaintiffs, defendant could not run the business for one week and incurred loss of Rs.35,000/- and plaintiffs will have to pay the same. Defendant contended that

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the notice dated 01.12.2014 is created document and said notice is not served on the defendant. Without admitting the notice defendant contends that the right of notice was waived at the instance of the plaintiffs. Infact they accepted subsequent rents without any demur or protest and that the provisions of Karnataka Rent Control Act, 1961 would apply to the case and the present suit is not maintainable.

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With this being the pleadings of the parties learned trial Judge framed issues on the basis of material proposition asserted by one and denied by other, related to entitlement for eviction,

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maintainability and other relief sought for.

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The moot question here would be when a lease period expires and the tenant pays the increased amount to the landlord does it amount to revival of

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tenancy for the same period? Further without additional material the damages could be fixed as prayed for of Rs.64,000/- per month?

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The oral evidence available before learned trial

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Judge is as under:

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On behalf of plaintiffs:

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P.W.1 --- Naveen Jayaram

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On behalf of defendants:

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D.W.1 --- K.Gopal Shetty D.W.2 --- Shankar Shetty

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Documents exhibited on behalf of plaintiffs:

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Ex.P.1 --C/c of lease deed dated 22.1.2005 Ex.P.2 --Khatha certificate Ex.P.3 --Katha extract Ex.P.4 --Tax paid receipt Ex.P.5 --Office copy of legal notice dated 1.12.2014 Ex.P.6 --Postal receipt Ex.P.7 --Postal acknowledgment Ex.P.8 --Unserved RPAD Cover

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Document exhibited on behalf of defendant:

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Ex.D-1- Statement of account of Vijaya Bank

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Learned counsel for appellant-defendant

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Sri.Gangadhara Aithal would submit that the threshold bar for the suit are: the right of eviction through issuing notice by plaintiffs has been expressly waived and notice issued by them no longer can be a cause of action for the present suit.

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Learned counsel would further submit that the amount received by the plaintiffs is not the same amount of rent as applicable under the agreement. The excess amount which presupposes that there was consensus between the parties for the defendant to pay enhanced rent and plaintiffs to allow the defendant to continue. With these facts, it can clearly be inferred there cannot be eviction. In this connection learned trial Judge erred completely on substantive and procedural aspect. Learned counsel further submit when the notice was issued for

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terminating tenancy the subsequent treatment does not depict seeking damages of Rs.64,000/-. Amount of Rs.64,000/- ordered by trial court cannot be an amount of guess work. On the other hand it is fixing the rental valuation payable for occupation and enjoyment of the said property. There requires a proper enquiry on all the material aspects preceded by issue and requires evidence more particularly when it has a commercial value and in that context and circumstances the order failed.

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Learned counsel Sri.Azhar Meer for respondentplaintiffs would submit the matter need not be read too much on the premises, that there was a lease for a period of 10 years by the plaintiffs and notice (Ex.P-

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was issued to quit and deliver possession it was on 01.12.2014 and the lease period ended by

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31.12.2014.

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In either way ownership of the schedule property is not disputed. Relationship is not disputed. Notice contextually admitted but validity is disputed. However in context of issuance of notice, termination period are being established, trial court rightly applied the law applicable to the case on hand and passed the order of eviction. Though this is a regular first appeal under Section 96 of CPC but involves question of law as well. Insofar as relationship of landlord and tenant there is no dispute. It commenced on a particular date. Agreement and contractual relationship came to an end on 31.12.2014. Meanwhile notice dated 01.12.2014 was issued by the plaintiffs asking defendant to vacate the property and deliver possession and to pay amount of Rs.64,000/- by way of damages for the occupation in the schedule premises. Now insofar as basic objection of Karnataka Rent Control Act is concerned according to defendant

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applicability of Karnataka Rent Control Act, 1961 and not the provisions of Transfer of Property Act, 1882.

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In the given circumstances considering the super built up area and rent per month agreed by the parties, it is clear that space is more than 14 sq. mtrs. and the provisions of Karnataka Rent Control Act to the case on hand is no obligation and suit is maintainable and renewal of lease as evidenced by facts.

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Learned counsel for appellant Sri.Gangadhara Aithal submits that the rent of Rs.32,000/-,

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Rs.35,000/- and Rs.38,000/- were paid.

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Definition of lease under the Transfer of Property Act is as under:

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“A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”

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The lessor and lessee are bound to comply with their duties. Insofar as present case is concerned learned counsel Sri.Gangadhara Aithal for appellant would submit by virtue of receiving enhanced rent three times without protest amounting to Rs.32,000/-, Rs.35,000/- and Rs.38,000/-, the earlier rental relationship gets waived and plaintiffs received the subsequent enhancement amount in accordance with the fresh contract. In this connection learned counsel for respondent/plaintiffs has relied on the decision in

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the case of M/s.Auto World, Bangalore Vs

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Smt.K.V.Sathyavathi reported in AIR 2015 Karnataka 128 regarding non treatment of a contract, which has been renewed to bank at waiver of notice. Contract is an agreement enforceable by law under the Indian Contract Act, 1872. The essentials of a valid contract are offer and acceptance, legal relationship, lawful consideration, capacity and competency to enter into contract and legal formalities. Now the contention of learned counsel for defendant is that receiving of extra amount/additional rental amount means only one aspect that the lease period is extended.

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Here legal question that would arise is when a lease is for a fixed period it is registerable or non registerable. Regard being had to the fact when it is for 12 months or more it becomes registerable on stamp duty. When contract of lease is entered into for

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a particular period say 10 years for example and after the expiry of the said period if the plaintiffs have received the rent on one or two or three occasion whether does it amount to withdrawal or waiver of earlier notice to quit. In this connection the defendant would submit payment is accepted, receipt of money is accepted and cautiously rent was paid and that were paid under the erstwhile lease. The answer to this question would be as I stated in a legally enforceable contract what is required is action. The lease of transfer of interest in an immovable property which also requires legal formalities relating to stamp duty and registration. The main ingredients that play their part in a lease is lessor, lessee and leasehold property, premium(rent), period of lease.

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In this connection another essential factor of a valid contract is it must be capable of being

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performed, there must be certainty in it and legal formalities is one of the prime importance of a contract. Normal legal formalities as meant by many is stamp duty for registration. Stamp Act requires proper stamp duty paid under the article mentioned therein and when it is a lease of 12 months or more then that it has to be registered that is where we come across umpteen number of lease for 11 months. The question in such a case would be stamp duty is payable on 11 months rent. However registration is optional. Here it is question of date when a lease is entered into for 12 months and more in respect of an immovable property there cannot be any exemption other than a registered document on a duly paid stamp duty. The consensus of the parties and legality, the difference is it is left open to their conscious. But once when the matter has to be as per law the basic requirement is parties have to complete

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the legal formalities at the time of entering into contract itself. Nodoubt the agreement when entered into will be with mutual inclination and shake hand situation. It is only when there is controversy, legal requirements, then lapse of parties come as dilution. Regard being had to the fact that the notice insofar as termination of tenancy or lease as it is called alternatively as required by Section 106 of Transfer of Property Act which reads as under:

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“106. Duration of certain leases in absence of written contract or local usage.—

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(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be

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deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.

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(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

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(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection.

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(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his

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family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]”

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However when premature termination is made it requires the issuance of notice as contemplated under Section 106 of Transfer of Property Act. In the whole circumstances even the parties have entered into consensus of a fresh lease that cannot be accepted in the light of on going dispute more particularly on 31.12.2014 the tenancy comes to an end then expiry

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of tenancy takes the shape of expiry through efflux of time.

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Insofar as legal aspect is concerned trial court has ordered for payment of Rs.64,000/- per month by way of damages till the vacant possession is handed over. As could be seen from the issues framed it is

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regarding description of the property, termination of tenancy, valuation for the purpose of court fee, maintainability in the light of Karnataka Rent Control Act,1961 and other relief.

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In order to fix damages in other words rent controller fixes the rent basing on the location and other reference from the concerned department for a house or a shop.

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But here neither there was an issue regarding ascertaining of rent possible, available valuation possible, valuation that could be ascertained for, not fixing capability of the building and location or topographical advantage, nor was the commissioner appointed for local inspection more over the plaintiffs say their suit property has become dilapidated. Moreover, nor there was an issue in this connection.

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In the circumstances without giving a detailed enquiry

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fixing Rs.64,000/- is not agreeable.

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In the circumstances I find learned trial Judge was right in decreeing the suit in part and evicting the defendant but erred seriously in directing the defendant to pay damages at the rate of Rs.64,000/per month till handing over vacant possession. However, insofar as damages is concerned there shall be a separate enquiry under Order XX Rule 12 CPC for adjudication of damages. However if any amount is paid it shall be subject to out come of such enquiry.

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In the result, I proceed to pass the following:

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ORDER

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Appeal is partly allowed. Judgment and decree dated 22.08.2019 passed in O.S.No.2580/2015 decreeing the suit to the extent of eviction of defendant is confirmed. However time period for

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vacating suit schedule premises set is extended for a

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period of six months from today.

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The order regarding direction to pay damages at Rs.64,000/- per month is rejected. In this connection there shall be a separate enquiry under Order XX Rule 12 CPC. However if any amount is paid it shall be

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subject to out come of such enquiry.

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Sd/JUDGE

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SBN

K Gopala Shetty v. Sri Naveen Jayaram

Case brief

What is this about?

What did the court decide?

K Gopala Shetty v. Sri Naveen Jayaram

Case brief

What is this about?

What did the court decide?

What the court decided

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