Allowed

M/S. Barton Real Estate Investment Pvt. Ltd. v. M/S. Southern Investments

Karnataka HC3 Nov 2023RFA/521/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal against the dismissal of a suit for declaration and permanent injunction. The Court set aside the impugned judgment, finding the trial court erred in concluding the lease had not terminated and in deeming a suit for declaration without possession maintenance claims immaterial.

What did the court decide?

The impugned judgment and decree dated 23.02.2021 in O.S.No.7306/2017 are set aside and the suit of the appellant is decreed as prayed for.

M/S. Barton Real Estate Investment Pvt. Ltd. Vs M/S… — Landlord and Tenant | Karnataka HC (2023)

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NC: 2023:KHC:39316 RFA No. 521 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 521 OF 2021 (DEC/INJ)

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BETWEEN:

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M/S. BARTON REAL ESTATE INVESTMENT PVT LTD NO. 201, 2^ND FLOOR, BARTON CENTRE, 84, MG ROAD, BANGALORE 560 001. REP BY ITS DIRECTORS,

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MR. AASHISH B. MEHTA

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SON OF MR. BHARATH MEHTA

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AGED ABOUT 40 YEARS.

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MR. DANISH FAROOQ SON OF MR. FARROK MAHMOOD

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AGED ABOUT 30 YEARS.

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…APPELLANT

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(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. VIVEK HOLLA, ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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M/S. SOUTHERN INVESTMENTS NO. 65, MONTIETH ROAD, EGMORE, CHENNAI 600 008, REP BY MR. P V CHERIAN.

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(VIDE ORDER DATED:04.10.2023 NOTICE TO RESPONDENT IS HELD SUFFICIENT)

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…RESPONDENT

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 23.02.2021 PASSED IN OS.No.7306/2017 ON THE FILE OF THE II ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AND SPECIAL JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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NC: 2023:KHC:39316 RFA No. 521 of 2021

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.7306/2017 is directed against the impugned judgment and decree dated 23.02.2021 passed by the II Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the appellant – plaintiff against the respondent – defendant for declaration and other reliefs in relation to the suit schedule immovable property was dismissed by the trial court.

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Heard learned Senior counsel for the appellant and perused the material on record.

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Though the notice was served on the respondent, it has not entered appearance and has not contested the appeal.

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The material on record discloses that the appellant instituted the aforesaid suit seeking declaration that the lease of the suit schedule immovable property in favour of the defendant as per registered lease deed dated 01.10.1981 and Assignment Deed dated 28.08.1986 stood determined w.e.f. 27.05.2017 and that the defendant was no longer a lessee in respect of the suit schedule

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3 - NC: 2023:KHC:39316 RFA No. 521 of 2021

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property. After referring to the facts surrounding the aforesaid lease deed, assignment deed, partnership deed dated 25.08.2005 etc., and other documents, the plaintiff averred that the defendant – lessee did not comply with the terms and conditions of the lease deed and in particular, did not pay the monthly rents due to the plaintiff as agreed under Clause – 17 of the lease deed. It was contended that since the defendant failed and neglected to pay the rentals due from 01.04.2015 onwards, the plaintiff got issued a notice dated 27.01.2017 calling upon the defendant to pay arrears of rent which were overdue for more than 21 months, much beyond the stipulated period of four months as per Clause - 17 referred to supra and since the defendant neither paid the said arrears of rent nor complied with the demands made by the plaintiff, thereby entailing determination / termination of the lease, plaintiff instituted the aforesaid suit for declaration and other reliefs.

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The defendant – respondent having been served with suit summons / notice, did not appear before the trial court and was placed ex-parte.

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The plaintiff examined its Director as PW-1 and Exs.P1 to P7 were marked, pursuant to which, the trial court proceeded to pass the impugned judgment and decree dismissing the suit, aggrieved by which, the appellant – plaintiff is before this Court by way of this appeal.

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A perusal of the material on record will indicate that the trial court has rejected the claim of the plaintiff on two grounds viz., that the appellant – plaintiff had failed to prove that the lease had stood determined w.e.f. 25.07.2017 and that suit for declaration without seeking consequential relief of possession was not maintainable. In this context, the trial court placed reliance upon clause – 18 of the Lease deed dated 01.10.1981 which contemplated issuance of two notices prior to determination / termination of tenancy and since the plaintiff had issued only one Notice dated 27.01.2017 (Ex.P4), it was not entitled to determine / terminate the tenancy. However, the trial court failed to consider and appreciate clause – 17 of the Lease deed (Ex.P1) which stipulates that the appellant – plaintiff was entitled to terminate / determine the tenancy of the respondent – defendant by issuing a notice if the defendant commits default in payment of rent for a

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NC: 2023:KHC:39316 RFA No. 521 of 2021

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continuous period of four months. In the instant case, the unimpeached, uncontroverted and unchallenged material on record discloses that the respondent had committed default in payment of rent to the plaintiff from 01.04.2015 onwards for about 21 months as on the date of issuance of the Notice at Ex.P4 dated 27.01.2017, which was clearly beyond the stipulated period of four months as required in clause – 17 of the Lease deed. It is therefore clear that the trial court fell in error in coming to the incorrect conclusion that the plaintiff had not established termination of tenancy, particularly when the material on record clearly established that the respondent had committed default in payment of rent for a period more than 21 months prior to institution of the suit, thereby entailing determination / termination of its tenancy in respect of the suit schedule property and consequently, the said finding recorded by the trial court deserves to be set aside.

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Insofar as the finding recorded by the trial court that a suit for declaration without seeking possession was not maintainable under Section 34 of the Specific Relief Act is concerned, apart from the fact that the defendant had sublet the suit schedule property in favour of third parties and was not either in possession or capable

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of delivering possession in favour of the plaintiff as held by the Apex Court in the case of Deokuer vs. Sheoprasad Singh – AIR 1966 SC 359, a suit for declaration without seeking possession was maintainable as held by the Apex Court in the case of Akkamma vs. Vemavathi – 2021 SCC Online 1146. Under these circumstances, even this finding recorded by the trial court deserves to be set aside.

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Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the trial court clearly erred in dismissing the suit filed by the appellant – plaintiff without considering or appreciating the unimpeached, uncontroverted and unchallenged material on record produced by the appellant, particularly when the respondent – defendant had not contested the suit either before the trial court or before this Court and consequently, the impugned judgment and decree passed by the trial court deserves to be set aside and the suit of the plaintiff deserves to be decreed.

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In the result, I pass the following:-

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ORDER

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(i) Appeal is hereby allowed.

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NC: 2023:KHC:39316 RFA No. 521 of 2021

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(ii) The impugned judgment and decree dated 23.02.2021

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passed in O.S.No.7306/2017 passed by the trial court is hereby set aside.

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(iii) Suit of the appellant is decreed as prayed for.

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Sd/JUDGE

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DHA/SRL List No.: 1 Sl No.: 47

M/S. Barton Real Estate Investment Pvt. Ltd. v. M/S. Southern Investments

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M/S. Barton Real Estate Investment Pvt. Ltd. v. M/S. Southern Investments

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