Dismissed

Srinivasanayaka v. Honnamma @ Usha

Karnataka HC3 Sept 2021RSA/546/2020

Case brief

AI extract

What is this about?

This second appeal challenged a decree recovering rent and possession. The court dismissed the appeal, holding that no substantial question of law arose regarding tenancy termination since the defendant did not plead valid termination or property description discrepancies. It affirmed the lower courts finding of rent arrears.

What did the court decide?

The appeal filed under Section 100 of CPC against the rent and possession decree was dismissed.

Srinivasanayaka Vs Honnamma @ Usha — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.546/2020

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BETWEEN:

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SRINIVASANAYAKA, S/O PUTTANAYAKA, AGED ABOUT 39 YEARS, RESIDING AT 4^TH DIVISION, 18^TH WARD, GUNDLUPET TOWN-571 111. … APPELLANT

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[BY SMT. SUMATHI S., ADVOCATE]

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AND:

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HONNAMMA @ USHA, D/O K. NAGENDRA, AGED ABOUT 30 YEARS.

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DODDAMMA @ ASHA, D/O K. NAGENDRA, AGED ABOUT 28 YEARS.

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BOTH ARE RESIDING AT MANCHACHARI CIRCLE, 4^TH DIVISION, 18^TH WARD, GUNDLUPET TOWN-571 111. ... RESPONDENTS

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THIS R.S.A IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 12.09.2019 PASSED IN R.A.NO.30/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUNDLUPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.02.2019 PASSED IN O.S.NO.121/2015 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GUNDLUPET.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the

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learned counsel for the appellant.

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This appeal is filed challenging the judgment and decree dated 12.09.2019 passed in R.A.No.30/2019 on the file of the Senior Civil Judge and JMFC, Gundlupet.

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The factual matrix of the case is that the plaintiffs filed the suit for the relief of recovery of rent amount and for possession of the premises, which is in occupation of the appellant/defendant. The case of the plaintiffs before the Trial Court is that the suit property originally belongs to the plaintiffs’ grandmother by name Nagamma and she has executed a registered Will in favour of the plaintiffs on 17.01.2001. Thereafter, the plaintiffs are in possession and enjoyment of the suit property. The defendant is in possession of the property on the basis of the rental agreement and the same is for a period of 11 months at the rate of 1,100/- per month executed on 01.01.2012. The defendant has not paid the rent for a period of

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27 months and hence the plaintiffs issued a notice on

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01.02.2015 to pay the entire rent amount and also sought to direct the defendant to hand over the vacant possession. In spite of service of notice, the defendant has not paid the amount nor handed over the possession of the property. Hence, the plaintiffs were constrained to file the suit for recovery of money and vacant possession of the property.

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In pursuance of the suit summons, the defendant appeared and filed the written statement denying the contentions of the plaintiffs. It is also contended that prior to the filing of the suit, the defendant had agreed to hand over the possession of the property, but the plaintiffs did not come forward to take the possession. Therefore, the defendant again started the business in the said shop and incurred loss to the tune of Rs.2,00,000/- and hence the plaintiffs are bound to pay the damages.

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Based on the pleadings, the Trial Court framed four issues. The plaintiffs examined plaintiff No.2 as P.W.1 and got marked the documents at Exs.P.1 to 4. On the other hand, the defendant examined himself as D.W.1 and examined one witness as D.W.2 and got marked the documents at Exs.D.1 to 16. The

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Trial Court, after considering both oral and documentary evidence placed on record, decreed the suit in coming to the conclusion that the defendant is in arrears of rent of Rs.29,700/as on the date of filing the suit and also arrears of electricity charges to the tune of Rs.7,136/-, in all Rs.36,836/- and directed the defendant to pay the rent at the rate of Rs.1,100/per month and the same has to be adjusted out of the amount of Rs.25,000/- advance paid to the plaintiffs and directed to vacate the premises within 60 days by making the payment of arrears of rent and electricity charges.

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Being aggrieved by the judgment and decree of the Trial Court, the defendant/appellant herein has filed the appeal before the First Appellate Court and the same is numbered as R.A.No.30/2019. The First Appellate Court, on re-appreciation of the material available on record, since the defendant has contended that he has sustained loss to the tune of Rs.2,00,000/-, framed the point for consideration as point No.1. The First Appellate Court, on re-appreciation comes to the conclusion that the judgment of the Trial Court does not require any interference and comes to the conclusion that the defendant has not proved the contention that he has incurred the loss to

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the tune of Rs.2,00,000/- at the instance of the plaintiffs. Hence, the present appeal is filed before this Court.

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The main contention of the appellant before this Court is that there is no legal termination under Section 106 of the Transfer of Property Act. The Trial Court has not framed any issue with regard to valid termination of tenancy under the law. The other contention raised by the learned counsel for the appellant is that the description mentioned with regard to measurement and boundaries in the legal notice i.e., Ex.P.2 is entirely different from the plaint schedule and also the judgment of the Trial Court and the First Appellate Court are erroneous and it requires interference of this Court.

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Having perused the grounds urged in the appeal and also the submissions of the learned counsel for the appellant, in order to frame the issue with regard to valid termination of tenancy is concerned, no such defence is taken in the written statement and to frame the substantive question of law with regard to identification of the property also, no such defence is taken. Apart from that, the very defence of the defendant before the Trial Court is that he was keeping the tenanted

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premises vacant to hand over the same, but the plaintiffs did not come forward to receive the vacant possession and hence he restarted the business and incurred the loss to the tune of Rs.2,00,000/-. Except these statements, there is no any defence of the defendant that there is no any valid termination of the tenancy and also with regard to discrepancy in mentioning the measurement and boundaries in Ex.P.2 as well as in plaint schedule. When such being the case, the question of framing an issue with regard to valid termination of tenancy and description of the premises does not arise, as contended by the learned counsel for the appellant.

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The Trial Court considering the evidence available on record comes to the conclusion that the appellant herein is in arrears of rent and also not paid the electricity charges. The First Appellate Court also on re-appreciation of both oral and documentary evidence, given the concurrent finding that the defendant has not paid the rent and also not paid the electricity charges. When such being the concurrent finding, the very contention of learned counsel for the appellant that no issue has been framed with regard to the valid termination and description of the premises cannot be accepted and unless there is a

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pleading to that effect, the question of framing of issue does not arise. I do not find any ground to admit the second appeal and there are no grounds to invoke Section 100 of CPC to frame the substantial question of law in the absence of any error on the part of the Trial Court and the First Appellate Court. Hence, I do not find any merit in the appeal.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Srinivasanayaka v. Honnamma @ Usha

Case brief

What is this about?

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Srinivasanayaka v. Honnamma @ Usha

Case brief

What is this about?

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