Appeal by tenants against a decree directing them to hand over vacant possession of leased premises and pay mesne profits after expiry of a registered 35-year lease. The High Court upheld possession but granted two years' time for ground floor shops on payment of Rs.50,000 per month, with first floor shops to be vacated immediately.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF AUGUST, 2024 PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100076 OF 2024 (POS)
BETWEEN:
SPT COMPLEX N.C.M., HUBBALLI-580029.
Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA
…APPELLANTS
(BY SRI. PRAKASH K. JAWALKAR, ADVOCATE)
AND:
…RESPONDENTS
(BY SRI. K.C. PATI, ADVOCATE FOR R1 TO R12. R13 TO R18 NOTICE DISPENSED WITH)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 20.12.2023 PASSED IN O.S.NO.374/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD AND THE HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)
This appeal is by the defendants in OS No.374/2019 on the file of II Addl. Senior Civil Judge and JMFC., Hubballi [for short, ‘ the civil Court] , and they are aggrieved by the civil Courts judgment and decree dated 20.12.2023 directing them to handover vacant possession of the subject property within three months from the date of the judgment and to pay mesne profits at the rate of Rs.1,00,000/- per year commencing from 24.01.2019 [i.e. the date of notice of eviction] till the handing over of the vacant possession. The parties for reason of convenience are referred to as they are arrayed before the civil Court, and the contesting defendants are referred to accordingly.
owners and landlords of the property in CTS No.122/87 of
Ward No.III situated at New Cotton Market, Hubballi [the subject property]. The plaintiffs have granted lease of this property to the first defendant under the registered Lease Deed dated 24.10.1983 for a period of 35 years commencing from 24.10.1983 and ending on 23.10.2018. The plaintiffs have permitted the first defendant and its partners [the second to fourth defendants] – hereafter referred to as ‘the Contesting Defendants’1 - to put up construction in the subject property with the right to let out the constructed premises to third parties on rent, but on the condition that on the expiry of 35 years, the defendants shall hand over the subject property with the vacant possession of the constructed area without any damage.
years, have caused notice dated 24.01.2019 [Ex.P.3] calling upon the contesting defendants to vacate and hand over vacant possession of the property. These defendants
1 The other defendants are the sub-tenants inducted by the contesting defendants
.
have filed their written statement without disputing the aforesaid but contending that they have not been able to recover even 50% of the investment and when they approached the plaintiff’s representative, they are assured, though orally, to sell the property to them. These defendants have further averred that the plaintiffs have caused the subject notice despite the assurance as aforesaid, and they have also referred to certain inter se disputes amongst the plaintiffs.
pleadings, has framed different Issues which require the plaintiffs to prove cause of action for the suit and the relief that they would be entitled to. The plaintiffs have examined one of them as PW 1 [the third of them] and marked a copy of the Lease Deed dated 24.10.1983 and the legal notices while the contesting defendants have examined one of the partners and another as DWs.1 and 2 and marked Ex. D1 to D3, which are essentially photographs.
has granted mesne profits without an Issue in that regard or an opportunity to the contesting defendants. The learned counsel also submits that plaintiffs have not even paid the proper Court fee. The learned counsel in elaboration canvasses that the failure to frame Issue as regards mesne profit has resulted in a denial of opportunity to the contesting defendants. However, when it is pointed out by Sri K.L.Patil, learned counsel for the plaintiffs, that the contesting defendants are pursuing with their grievance against delivery of possession of the property notwithstanding the fact that in their pleading they have stated that they would handover vacant possession of the property on completion of an additional five years and that it has been more than five years now, Sri Prakash K. Javalkar fairly submits that he cannot dispute that the contesting defendants have indeed stated so in their Written Statement.
adjudication in the present appeal within a very narrow canvass, and the point for consideration will be.
Whether this Court must intervene with the civil Court’s impugned judgment and decree either on the delivery of possession of the subject property within three months from the date of its judgment or the direction to pay mesne profit at the rate of Rs.1,00,000/- per annum from 24.01.2019 .
disputed that they are the tenants and that their right to hold the subject property is under the terms of the registered lease deed, this Court must opine that no exception can be taken with the civil Court directing the delivery of possession especially when the contesting defendants cannot dispute that the plaintiffs have duly terminated the lease and calling upon them to hand over vacant possession. These are the decisive circumstances, and the question then is whether the contesting defendants must deliver forthwith, as they should if the
civil Court’s judgment is confirmed by this Court without any modification.
participated in the proceeding being aware of the exact nature of dispute. This Court, on perusal of the evidence, has no hesitation in opining that the contesting defendants cannot deny that they were aware of the plaintiffs’ claim for the mesne profits. Further, the plaintiffs can pay Court fee on mesne profits when the decree is passed determining the mesne profit, and the Court fee can be paid even while pursuing enforcement of the civil Court’s direction for mesne profit. This Court, in this regard, may refer to Section 42 of the Karnataka Court Fees and Suits Valuation Act, 1958.
such fee as may be justifiably directed by this Court for such use. This Court, on a careful consideration of the rival submissions and material on record, is of the considered view that a sum of Rs.50,000/- per month for all the shops in ground floor premises will be just and reasonable. This Court must also clarify that the plaintiffs are not required to pay Court fee on this amount as it is being made payable for leave to continue in possession of the ground floor premises for the next two years because of the submissions made in these appeal proceedings. In the light of the above, the following.
ORDER
The appeal stands disposed of modifying the Civil Court’s impugned judgment and decree dated 20.12.2023 with the following directions.
a) The contesting defendants-appellants are
directed to hand over vacant possession of all shop premises in the first floor of the subject property to the plaintiffs on or before 30.08.2024 and hand over the keys along
NC: 2024:KHC-D:11736-DB RFA No. 100076 of 2024
with an affidavit affirming that all
water/electricity charges and property tax in respect of these shops are fully paid.
b) The contesting defendants are directed to hand over the vacant possession of the shop premises in the ground floor of the subject property immediately after a period of 24 months commencing from 01.09.2024 but on
the condition that they shall pay to the plaintiffs Rs.50,000/- per month as fee for these shops. The contesting defendants, under no circumstances, shall be entitled to seek enlargement of period of 24 months now
granted
furnish bank account in the pending execution proceedings to enable the
contesting defendants to credit the fee now permitted. It is needless to observe that if
there is failure in paying this amount for three[3] consecutive months, the default shall be construed entitling the plaintiffs to seek immediate possession of even the ground floor shop premises.
All the pending IAs are disposed of, and the Office is directed to draw decree accordingly.
Sd/(B.M.SHYAM PRASAD) JUDGE
Sd/(C M JOSHI) JUDGE
HMB LIST NO.: 1 SL NO.: 24
2 issues framed by the court
Whether the civil court's decree for possession and mesne profits after expiry of a 35-year lease required interference.
What time and conditions should be allowed to the lessees for handing over vacant possession.
2 provisions across 2 enactments
M/S. Sardar Pratapsingh Transport Co.
Narendrasingh
Surendersingh
Sri. Mohindersingh
Subhas s/o Lingappa Benni
Shobha d/o Lingappa Benni
B.M. Shyam Prasad
C M Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
