Dismissed

The Branch Manager v. Sri D P Yathiraj

Karnataka HC30 Oct 2023RSA/352/2014

Case brief

AI extract

What is this about?

This regular second appeal concerns a suit for ejectment and damages due to unlawful possession after lease expiry. The High Court upheld the lower courts' decision enhancing rent to Rs.18 per sq.ft. per month, rejecting the appellants' claim for higher damages due to lack of evidence.

What did the court decide?

The appeal was dismissed, and the judgments and decrees passed by the courts below were confirmed.

The Branch Manager Vs Sri D P Yathiraj — Landlord and Tenant | Karnataka HC (2023)

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1 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 352 OF 2014 (POS)

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BETWEEN:

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THE BRANCH MANAGER UNION BANK OF INDIA DUMMY COMPLEX, B D ROAD, CHITRADURGA 577501

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THE ZONAL MANAGER UNION BANK OF INDIA ZONAL OFFICE, MOORUSAVIRA MUTT PRESS BUILDING, NCM ROAD, HUBLI 573133

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…APPELLANTS

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(BY SRI. V B RAVISHANKER., ADVOCATE)

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AND:

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AND: Digitally signed by SUNITHA GANGARAJU SRI D P YATHIRAJ Location: High S/O SRI DUMMI PANCHAKSHARAPPA, Court of AGED ABOUT 76 YEARS, Karnataka PRESENTLY RESIDING AT NO.311, NISLE SULTE-C FAIR FIELD, OH 45014, UNITED STATES OF AMERICA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI D.M. THIPPESWAMY S/O SRI D MURGEPPA, B D ROAD, CHITRADURGA 577501

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…RESPONDENT

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(BY SRI. N G KOTRE, ADVOCATE)

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2 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.11.2013 PASSED IN R.A.NO.44/2013 ON THE FILE OF THE PRL. DISTRICT & SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 29.6.2013 PASSED IN OS.NO.43/2012 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & ADDL. MACT, CHITRADURGA.

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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 second appeal is filed by the appellants challenging the judgment and decree dated 30.11.2013 passed in R.A.No.44/2013 by the Principal District and Sessions Judge, Chitradurga, confirming the judgment and decree dated 29.06.2013 passed in O.S.No.43/2012 by the Principal Civil Judge (Sr.Dn.) and Additional MACT, Chitradurga.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the defendants and respondent is the plaintiff.

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3 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiff filed a suit for ejectment and damages. It is the case of the plaintiff that plaintiff is the owner of suit schedule property and the said property was let out to the defendants on a lease for a period of 5 years commencing from 15.02.2002 to 15.02.2005 and the lease was extended from time to time. The lease agreement was expired on 15.02.2010. It is contended that after the expiry of lease period, the defendants are in unlawful possession of the suit property, without renewal of the lease agreement and also without fixing the rent for said premise. The plaintiff requested the defendants to enhance the rent @ Rs.20/- per sq.ft. per month from 2010 onwards. The defendants deliberately postponed the matter on one or the other pretext saying that the higher authorities of the Bank will take up the issue and fix up the revised rent on the said issue. The plaintiff waited for the reply from the defendants, but the defendants did not gave any reply. The plaintiff got issued a legal notice

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NC: 2023:KHC:38419 RSA No. 352 of 2014

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terminating the tenancy under Section 106 of Transfer of Property Act and also sought for damages for use and occupation of the premises unlawfully after the expiry of lease period. The said notice was served on the defendants. Inspite of service of notice, the defendants continued to be in possession of the suit schedule property. Hence, cause of action arose for the plaintiff to file the suit for ejection and damages.

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The defendants filed the written statement

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contending that the defendants have taken the suit property on a lease initially for a period of 5 years. Thereafter, it was extended from time to time and it is denied that the lease agreement was expired on 15.02.2010 and the defendants are in unlawful possession of the suit schedule property without renewal of the agreement. It is denied that the plaintiff requested to enhance the rent at the rate of Rs.20/per sq.ft per month from the month of February 2010 onwards as the same was prevailing in the locality, but the defendants deliberately postponed the matter, saying, the higher authorities of the Bank would take up the issue and

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5 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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the contention of the plaintiff that the defendants have occupied the suit premise even after the expiry of lease period without paying the rent. It is stated that the defendants are paying the agreed rate of rent to the plaintiff regularly. It is admitted that the plaintiff has requested the defendants' Bank to enhance the rent @ Rs.20/- per sq.ft. per month orally and as well as through e-mail and also admitted that the plaintiff got issued a quit notice dated 09.04.2012. It is contended that defendants not at all agreed with the plaintiff for enhancement of rent and further contended that the suit schedule premise is not adequate, comfortable and viable for running banking business in recent years. Hence, it is contended that there is no necessity for enhancing the rent on suit schedule premises. Hence, they prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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Whether plaintiff proves, plaintiff is entitled for the enhance rent from Rs.7/- per sq.ft. to Rs.20/- per sq.ft. from 15.02.2010 to 09.04.2010 and further enhanced rent at Rs.65/- per sq.ft. from 09.04.2012 till vacating of the suit property as pleaded?

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NC: 2023:KHC:38419 RSA No. 352 of 2014

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1. Whether the plaintiff proves that he is entitled for the relief as prayed?

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1. What order and what decree ?

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The plaintiff in order to substantiate his case, GPA holder of plaintiff was examined as PW.1 and got marked 9 documents as Exs.P.1 to 9. Officers of the defendants Bank were examined as DW.1 and DW.2 and got marked 01 document i.e., Ex.D.1. The trial court considering the oral and documentary evidence placed on record, answered issue Nos.1 and 2 in partly affirmative and consequently decreed the suit of the plaintiff in part with cost. It is ordered and decreed that defendant Nos.1 and 2 are held liable to pay the enhanced rent of suit property at the rate of Rs.18/- per sq.ft. per month for the area of 2684 sq.ft. commencing from 15.02.2010 till 31.10.2012. Further, directed the defendants to pay the enhanced rent after deducting the rent already paid to the plaintiff. Further directed the defendants to pay the enhanced rent within 3 months from the date of judgment, failing which, the defendants bank are liable to pay interest at the rate of 12% per annum on the balance amount, after expiry of 3 months.

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NC: 2023:KHC:38419 RSA No. 352 of 2014

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The defendants, aggrieved by the judgment and

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decree passed by the trial court, preferred an appeal in R.A.No.44/2013 before the Court of Principal District and Sessions Judge, Chitradurga.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1) Has the learned trial judge committed any error in directing the defendant Nos.1 and 2 to pay enhanced rent at the rate of Rs.18/per sq.ft. per month from 15.02.2010 till 31.12.2012?

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2) What order ?

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The First Appellate Court, on re-appreciating the oral and documentary evidence, answered point No.1 in the negative and consequently dismissed the appeal with costs, confirming the judgment and decree passed by the trial court vide judgment dated 30.11.2013.

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The defendants, aggrieved by the judgments

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and decrees passed by the Courts below have filed this second appeal.

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8 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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Heard the learned counsel for the defendants.

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Learned counsel for the defendants submits

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that the defendants have already vacated the premises on 31.12.2012. He submits that he confine the appeal only in respect of damages awarded by the trial court. He submits that the trial court has committed an error in awarding the damages @ Rs.18/- per sq.ft per month. He submits that the plaintiff has not produced any record to show that as on the date of expiry of lease, the said rent was prevailing in the locality. He submits that Courts below have not properly appreciated the material placed on record. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the submissions of learned counsel for the defendants.

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It is not in dispute that the plaintiff is the owner of the suit schedule property and the plaintiff has let out the said property to the defendants initially for a period of

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9 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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5 years commencing from 15.02.2000. The lease was extended for another period of 5 years with effect from 16.02.2005 to 15.02.2010, for a total period of 10 years on a monthly rent @ Rs.7 per sq.ft and the said lease period had expired on 15.02.2010. Thereafter, the plaintiff orally requested the defendants to enhance the rent from Rs.7/- per sq.ft. per month to Rs.20/- per sq.ft. per month. The defendants did not gave any heed to the oral request made by the plaintiff. The plaintiff sent an E- mail to the defendants requesting to enhance the rent from Rs.7/- per sq.ft. per month to Rs.20/- per sq.ft. per month. The defendants did not enhance the rent from Rs.7/- per sq.ft. per month to Rs.20/- per sq.ft. per month. The plaintiff got issued a legal notice terminating the tenancy under Section 106 of Transfer of Property Act. Even after termination of tenancy, the defendants continued to be in possession of the suit schedule property unlawfully. Hence, the plaintiff claimed damages at the rate of Rs.65/- per sq.ft. per month for use and occupation of the suit schedule property.

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NC: 2023:KHC:38419 RSA No. 352 of 2014

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The plaintiff in support of his case, examined GPA holder as PW.1. He has reiterated the plaint averments in the examination-in-chief and further produced the documents, Ex.P1 General Power of Attorney executed by the plaintiff in favour of Pw.1; Ex.P.2 is the copy of legal notice dated 09.04.2012, wherein the plaintiff terminated the tenancy of the defendants; Ex.P.3 is the notice of Corporation Bank; Ex.P.4 is the copy of E- mail notice sent by the plaintiff to the defendants requesting to enhance the rent from Rs.7/- per sq.ft. per month to Rs.20/- per sq.ft. per month; Ex.P.5 is the letter issued to the plaintiff by the Bank dated 06.03.2012 and the plaintiff gave a reply to the Ex.P.5 dated 30.06.2011 vide Annexure Ex.P.6; Ex.P.7 is the E-mail sent by the plaintiff to the defendants; Ex.P8 is the certified copy of lease agreement and Ex.P9 is the amended lease agreement dated 29.06.2011. On rebuttal, the defendants examined it’s officers as DW.1 and DW.2. DW.1 has reiterated the written statement averments in the examination-in-chief, but in the course of cross

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NC: 2023:KHC:38419 RSA No. 352 of 2014

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examination, he has clearly admitted that plaintiff has requested the defendants to enhance the rent from Rs.7/per sq.ft. per month to Rs.20/- per sq.ft. per month commencing from 10.02.2010, orally and through E-mail. Further, he also admitted that defendants Bank agreed to enhance the rent at the rate between Rs.16/- to Rs.18/per sq.ft. per month, but the plaintiff did not agreed, as such the said enhanced rent was still under negotiation.

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From the perusal of the evidence of plaintiff and defendants, it is clear that the plaintiff is the owner of suit schedule property and said property was let out to the defendants initially for a period of 5 years and thereafter, it was extended for a period of 5 years and the same period was expired on 15.02.2010. After the expiry of lease period, the plaintiff requested the defendants orally and also through E-mail to enhance the rent from Rs.7/per sq.ft. to Rs.20/- per sq.ft. per month, but the defendants agreed to enhance the rent between Rs.16/- to Rs.18/- per sq.ft. per month.

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12 - NC: 2023:KHC:38419 RSA No. 352 of 2014

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As observed above, the plaintiff claimed

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damages at the rate of Rs.65/- per sq.ft. per month, but the plaintiff has not produced any record to show that the rent rate at the rate of Rs.65/- per sq.ft. per month was prevailing at that time i.e., in the year 2010. The trial court considering the evidence of DW.1 has enhanced the rent at the rate of Rs.18/- per sq.ft. per month. Further, it was also recorded that plaintiff has not produced any record to show that if the suit property was let out to third party the rent would have fetched at the rate of Rs.65/per sq.ft. per month. The trial court was justified in decreeing the suit of the plaintiff holding that defendants are liable to pay the enhanced rent of the suit property at the rate of Rs.18/- per sq.ft. per month for an area of 2684 sq.ft commencing from 15.02.2010 to 31.10.2012. The First Appellate Court on re-appreciating the material on record was justified in confirming the judgment and decree passed by the trial court. Both the Courts below have concurrently recorded the finding of fact against the defendants. Hence, I do not find any substantial question

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NC: 2023:KHC:38419 RSA No. 352 of 2014

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13 -

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of law arise in this appeal and I do not find any grounds to

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interfere with the impugned judgments and decrees.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgments and decrees passed by the Courts

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below are hereby confirmed.

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No order as to the costs.

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sks

The Branch Manager v. Sri D P Yathiraj

Case brief

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The Branch Manager v. Sri D P Yathiraj

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