The Chief Secretary Governemnt of Karnataka 27 Vidhana Soudha Ambefkar Veedhibengaluru 560001 Vs K Shashidhar vs/O Virupakshappa Age 45 Yrs Businessman R/O 5TH Ward Kampli Ballari 583101

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1 - NC: 2025:KHC-D:1212-DB RFA No. 100253 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22^ND DAY OF JANUARY, 2025 PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100253 OF 2023 (RES)

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BETWEEN:

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THE CHIEF SECRETARY, GOVERNEMNT OF KARNATAKA 27, VIDHANA SOUDHA, AMBEDKAR VEEDHI BENGALURU-560001.

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THE PRINCIPAL SECRETARY, DEPARTMENT OF MINORITIES WELFARE, VIDHANA SOUDHA, AMBEDKAR VEEDHI BENGALURU -560001.

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THE DIRECTOR, THE DIRECTORATE OF MINORITIES WELFARE 20^TH FLOOR, VISHWESHWARAIAH TOWER, BENGALURU-560001.

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Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

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THE DEPUTY COMMISSIONER, MINORITIES & BACKWARD CLASSES WELFARE DEPARTMENT, NEAR RTO OFFICE, BALLARI -583104.

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THE TALUK EXTENSION OFFICER, BACKWARD CLASS AND MINORITIES DEPARTMENT, HOSAPETE -583201.

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THE PRINCIPAL/ HEADMASTER SRI MURARJI DESAI RESIDENTIAL SCHOOL, KAMPLI- 583132.

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THE DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSSIONER, BALLARI- 583101.

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NC: 2025:KHC-D:1212-DB RFA No. 100253 of 2023

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THE JOINT SECRETARY, DEPARTMENT OF MINORITY WELFARE VIKAS SOUDHA, DR. AMBEDKAR VEEDHI BENGALURU- 560001.

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…APPELLANTS

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(BY SRI. KESHAV REDDY, AGA)

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AND:

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K. SHASHIDHAR S/O K. VIRUPAKSHAPPA AGE. 45 YEARS, BUSINESSMAN R/O. 5^TH WARD, KAMPLI-583132 BALLARI DISTRICT-583132.

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SMT. K. GEETA W/O K. SUBHASH AGE 47 YEARS, HOUSE WIFE, R/O. 5^TH WARD, KAMPLI, BALLARI DISTRICT-583101.

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BOTH OF THEM BEING REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER K. SUBHASH S/O K. VIRUPAKSHAPPA, AGE: 50 YEARS, BUSINESSMAN, R/O: NEAR POLICE STATION, KAMPLI, BALLARI DISTRICT-583101.

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…RESPONDENTS

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(BY SRI. H.N. GULARADDI, ADV FOR R1 & R2)

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RFA FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.01.2023 PASSED IN O.S.NO.07/2021 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HOSAPETE, DECREEING THE SUIT FILED FOR RECOVERY OF RENT.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:1212-DB RFA No. 100253 of 2023

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This regular first appeal is filed by the appellants

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challenging the judgment and decree dated 19.01.2023 passed in O.S.No.7/2021 by the learned Additional Senior Civil Judge and JMFC, Hosapete.

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For convenience, the parties are referred to,

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based on their ranking before the trial court. The appellants were the defendants and respondents were the plaintiffs.

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Brief facts leading rise to the filing of this regular first appeal are as follows:

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The plaintiffs filed the suit to recover the arrears of rent of Rs.34,19,471/-, including the interest up to 31.12.2020, and for future interest on Rs.27,14,947/-, i.e., the balance consideration amount, at the rate of 18% p.a. till realization of the entire amount. It is the case of

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the plaintiffs that Sri.Bachaiah Mutt Sangathreya Samskrutha Patashala, Ward No.3, Kampli, Ballari District, is the absolute owner of the property, described under ‘A’ schedule property. Sri.H.Veerappa s/o Late. Panchappa, being the President of the said Patashala has executed a registered lease agreement dated 25.09.2000 in favour of the plaintiffs for 30 years. The plaintiffs have established a film theatre by building structures and all other necessary infrastructures. The plaintiffs unable to run the theatre in schedule ‘A’ property, have executed a registered General Power of Attorney dated 22.02.2012 in favour of one K.Subhash s/o K.Virupakshappa, who is none other than the husband of plaintiff No.2. The Power of Attorney holder was empowered to look after the affairs of the ‘A’ schedule property. The Backward Class and Minorities Welfare Department was intended to open Sri.Morarji Desai Residential School at Kampli and for that the department authorities, through the defendants were searching for suitable premises at Kampli. As such, the department headed by the defendants has taken the possession of ‘A’

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schedule property and started to run the school in the said schedule property, and the rent was fixed at Rs.69,200/-

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per month by the Executive Engineer, Department of Public Works, Ballari. The defendants started paying the rent to the plaintiffs and part of the rent was due. The plaintiffs requested the defendants to release the balance

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rent amount. The government released an amount of Rs.8,99,600/- towards rent, and the defendants have made the payment of only Rs.7,91,186/-. The plaintiffs submitted a representation to Defendant Nos.3, 5, 7 and 8 and other concerned departments. The defendants did not settle the rent due to the plaintiffs. The plaintiffs issued legal notice dated 26.06.2019 calling upon the defendants to pay the rent amount. After receiving the notice, the defendants handed over the key of schedule ‘A’ property to the plaintiffs on 22.07.2019. The plaintiffs have renovated the schedule ‘A’ property and obtained licence on 18.11.2019 to restart the film theatre. It is contended that the defendants were in possession of the schedule ‘A’ property since from 02.05.2015 to 22.07.2019, and

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handed over the possession of the suit schedule property on 22.07.2019. It is further contended that, out of Rs.35,06,133/-, the defendants have paid only Rs.7,91,196/-, The defendants did not repay the balance rent. The plaintiffs issued a legal notice to the defendants under Section 80 of the CPC. Defendant Nos.6 and 7 replied to the legal notice and refused to pay the arrears of rent. Hence, a cause of action arose for the plaintiffs to file the suit for recovery of rent.

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Defendant No.4 filed a written statement denying the averments made in the plaint and admitted taking the ‘A’ schedule property on rent for the establishment of Sri.Murarji Desai Residential School and the rent agreement was executed between the plaintiffs and the defendants. He also admitted the issuance of notice. The Secretary, Sri.Gurusidda Maridevara Stapita Sangatreya Patashala issued notice to defendant Nos.4, 5

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and 6, contending that they have opened the school without the permission of the Trust and that the Trust is

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the absolute owner of the suit schedule property. Defendant No.5 replied to the said notice to the President of Sangatraya Patashala on 05.02.2016. It is contended that the defendants after obtaining the necessary permission from the concerned department have started to run a school in schedule ‘A’ property and defendant No.6 handed over the possession of the ‘A’ schedule property to the plaintiffs in April, 2016. The defendants were not in possession of the suit schedule ‘A’ property up to 2019. Hence, they are not entitled to pay the rent, as claimed by the plaintiffs. Hence, prays to dismiss the suit.

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The trial court, based on the pleadings of the

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parties, framed the following issues;

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Whether the plaintiffs prove that plaint ‘A’ schedule property was in the possession of the defendants from 02.05.2015 to 22.07.2019 as such the defendants are liable to pay the agreed rent for the said period?

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1. Whether the defendants prove that they have handed over the possession of the plaint ‘A’ schedule property to the plaintiffs on 15.04.2016 after paying the entire rent due to the plaintiffs through Cheque?

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1. Whether the plaintiffs are entitled for the relief sought?

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1. What order or decree?

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The plaintiffs to substantiate their case, Power

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of Attorney holder of the plaintiffs was examined as P.W.1, and marked 40 documents as Exs.P1 to P40. Defendant No.6 was examined as D.W.1 and marked 21 documents as Exs.D1 to D21. The trial court, after recording the evidence, hearing on both sides and on assessment of the oral and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. The suit of the plaintiffs is decreed with costs vide

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judgment dated 19.01.2023. It is declared that the plaintiffs are entitled to recover a sum of Rs.34,19,471/and interest at the rate of 6% p.a. from the date of the suit till the date of realization on the principle amount of Rs.27,14,947/-. The defendants shall pay the decreetal amount to the plaintiffs within three months from the date of the decree. Aggrieved by the impugned judgment, the defendants filed this Regular First Appeal.

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Heard the learned Additional Advocate General (AAG) for the defendants and the learned counsel for the plaintiffs.

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Learned AAG submits that the original owner of the suit premises was a Trust. They issued notice on 01.07.2015 to the Principal of Murarji Desai Residential School stating that without the permission of the original owner, they had started the school. He submits that the defendants have vacated the premises within 3-4 days after receipt of the notice from the original owner. He also submits that there was no agreement for 2015-16. He

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submits that the defendants are not liable to pay the amount as claimed by the plaintiffs in the plaint. Hence, the trial court has failed to consider the material placed on record by the parties to the suit. He submits that the impugned judgment and decree passed by the trial court is arbitrary and erroneous. Therefore, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiffs submits that the plaintiffs have let out the suit schedule ‘A’ property to the defendants. The defendants have agreed to pay the rent to the plaintiffs and, paid part of the rent amount. The defendants have vacated the premises only in 2019 and not in 2016. Hence, he submits that there is

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privity of contract between the plaintiffs and the defendants. The defendants are liable to pay the rent, till the date, they have vacated the premises. The defendants did not pay the balance rent amount to the plaintiffs. The

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plaintiffs issued a legal notice to the defendants. Defendant No.5 replied to the said legal notice on

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untenable grounds. The trial court was justified in passing the impugned judgment and decree. Hence, on these grounds, he prays to dismiss the appeal.

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Heard, perused the records and considered the

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submissions of the learned counsel for the parties. The points that would arise for our consideration are;

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1. Whether the plaintiffs prove that a rent agreement was executed between the plaintiffs and the defendants regarding payment of rent at Rs.69,200/- p.m.?

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1. Whether the defendants prove that the suit schedule property was vacated on 15.04.2016?

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1. Whether the defendants prove that the judgment and decree passed by the trial court is perverse and arbitrary?

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1. What order or decree?

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Point Nos.1 and 2.

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Point Nos.1 and 2 are interlinked, and are taken

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up together for common discussion to avoid repetition of facts.

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The plaintiffs to substantiate their case, the Power of Attorney holder of the plaintiffs was examined as P.W.1. He reiterated the plaint averments in his examination-in-chief. To prove the case of the plaintiffs, the plaintiffs have produced an original registered lease agreement dated 15.09.2000, marked as Ex.P1, which discloses that the Trust executed the lease in favour of the plaintiffs for a period of 30 years. Ex.P2 is the certified copy of the Power of Attorney, wherein plaintiff Nos.1 and 2 have executed the Power of Attorney on 22.02.2012 in favour of Subhash, requesting him to sign on behalf of the plaintiffs. Ex.P3 is the letter written by the Power of Attorney holder to defendant No.4 offering to let out the schedule ‘A’ property on rent at the rate fixed by the Public Works Department, as per the Government norms, to the defendants. Ex.P4 is the corresponding letter dated 08.03.2016 regarding the determination of the monthly rent for the said building at Rs.69,200/-. Ex.P5 is the Government order dated 11.11.2016 approving the proposed rent as in Ex.P4, applicable from 02.05.2016, for

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schedule ‘A’ property. Ex.P6 is the Form No.16A. Ex.P7 is the letter dated 03.12.2016, addressed to defendant No.3 by defendant No.4, regarding the approval to clear the rent amount, from 02.05.2015 to 31.05.2016 with respect to schedule ‘A’ property. Exs.P8 to 11 are the office copies of the legal notice dated 26.06.2019, sent by the plaintiffs

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to the defendants. Ex.P12 is the letter dated 18.11.2019, regarding renewal of the theater licence. Ex.P13 is the letter dated 02.05.2015 sent by the Department of Minorities and Backward Class to defendant No.5. Ex.P14 is an office copy of the legal notice dated 17.04.2020 sent by the plaintiffs to the defendants. Ex.P15 is the reply notice dated 10.06.2020. Ex.P16 is the copy of the legal notice dated 12.09.2020 sent on behalf of the plaintiffs. Ex.P17 is the reply notice dated 27.10.2020. Ex.P18 is the reply dated 14.05.2020. Ex.P19 is the postal receipt. Exs.P20 to P27 are the postal letters. Ex.P28 are the seven postal receipts. Ex.P29 are the four postal receipts. Exs.P30 to P33 are the postal acknowledgements. Exs.P34 to P36 are the postal letters. Ex.P37, Ex.P38, and Ex.P39

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are the letters dated 10.07.2018 and Ex.P40 is the letter dated 26.07.2018.

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In rebuttal, the defendants have admitted regarding taking the suit schedule ‘A’ property, on rent for the establishment of Sri.Murarji Desai Residential School at Kampli, and the establishment of the Sri.Murarji Desai Residential School at Kampli as per the government order. Meanwhile, the Power of Attorney holder of the plaintiffs approached defendant No.5 and submitted a letter of letting out schedule ‘A’ property for rent and submitted a lease agreement. Defendant Nos.4 and 5 have took the possession of schedule ‘A’ property on 02.05.2015. It is the case of the defendants that Sri.Gurusidda Maridevara Stapita Sangatreya Patashala issued a notice to defendant Nos.4 to 6 stating that the Trust is the absolute owner of the schedule ‘A’ property, and the school was established without the permission of the Trust and called upon the defendants to vacate the premises. Further, defendant No.6 was examined as D.W.1 and reiterated the written

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statement averments in his examination-in-chief and

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marked 21 documents as Exs.D1 to D21.

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From the perusal of the entire evidence on

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record, the question arises for consideration is, whether the defendants have vacated the premises in 2016 or in 2019.

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The plaintiffs have contended that the defendants vacated the premises in July 2019. However, the defence of the defendants is that they have vacated the premises in 2016. Admittedly, there was a lease agreement between the plaintiffs and defendant Nos.4 to 6 agreeing to pay monthly rent of Rs.69,200/-. The defendants have established Sri.Murarji Desai Residential School in the suit schedule ‘A’ property. The plaintiffs issued a legal notice on 26.06.2019 calling upon the defendants to vacate and hand over the possession of the premises. The defendants have not produced any records to show that the possession was delivered, in 2016. Admittedly, the defendants have not paid the balance rent

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amount to the suit schedule ‘A’ property. The plaintiffs issued a legal notices, marked as Exs.P8 to 11. The defendants have replied to the legal notice stating that, they have vacated the premises in 2016. But, as observed above, the defendants have not produced any acknowledgement for having delivered the possession of the suit schedule ‘A’ property. The defendants have not produced any records to show that they have paid the rent till possession was handed over to the plaintiffs. Thus, the defendants are liable to pay the arrears of rent, as demanded by the plaintiffs. The trial court considering the oral and documentary evidence, has rightly held that the plaintiffs have proved that schedule ‘A’ property was in possession of the defendants from 02.05.2015 to 22.07.2019. The defendants are liable to pay the agreed rent for the said period. The trial court further held that the defendants had failed to prove that they had handed over possession of the schedule ‘A’ property to the plaintiffs on 15.04.2016 after paying the rent due to the

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plaintiffs through cheque and rightly decreed the suit of the plaintiffs.

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The defendants themselves have admitted regarding the transaction/agreement between the plaintiffs and defendant Nos.4 to 6. The said admission itself is sufficient to hold that the plaintiffs have let out schedule ‘A’ property to the defendants. Hence, in view of the said admission, the plaintiffs have proved that a lease agreement was executed between the plaintiffs and the defendants. In view of the above discussion, we answer point No.1 in the affirmative and point No.2 in the negative.

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Point No.3.

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The trial court, considering the oral and documentary evidence, has rightly held that the plaintiffs have proved that the plaintiffs have let out the schedule ‘A’ property to the defendants and the defendants agreed to pay the rent. The defendants failed to prove that they

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have vacated the suit schedule ‘A’ property on 15.04.2016 and that they had paid the arrears of rent to the plaintiffs.

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Thus, the plaintiffs have proved that the defendants have handed over the possession of schedule ‘A’ property on 22.07.2019. The defendants are liable to pay the arrears of rent from 02.05.2015 to 22.07.2019. The trial court has rightly answered issue No.1 in favour of the plaintiffs and issue No.2 against the defendants. We do not find any error in the impugned judgment. We concur with the judgment and decree passed by the trial court. In view of the above discussion, we answer point No.3 in the negative.

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Point No.4.

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