Mrs Tabasum Sajjad Vs Mr H Diwakar Shetty

¶1

1 -

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 9^TH DAY OF JANUARY, 2026

¶4

BEFORE

¶5

THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

¶6

REGULAR FIRST APPEAL No.1693/2016 (RES)

¶7

BETWEEN:

¶8

MRS. TABASUM SAJJAD W/O. SYED SAJJAD AHMED SALEH, AGED ABOUT 48 YEARS, NO.18, CUNNINGHAM ROAD, BANGALORE-560052 REPRESENTED BY HER GPA HOLDER AND HUSBAND MR. SYED SAJJAD AHMED SALEH.

¶9

...APPELLANT

¶10

(BY SRI DHANANJAY V. JOSHI, SENIOR COUNSEL FOR SMT. KAVITHA AND SRI NITHIN BHARGAV, ADVOCATES)

¶11

AND:

¶12

MR. H. DIWAKAR SHETTY S/O. LATE MAHABALA SHETTY, AGED ABOUT 63 YEARS, NO.35/1, 1^ST CROSS, CHOWDAIAH BLOCK, R.T. NAGAR, BANGALORE. ...RESPONDENT

¶13

(BY SMT. A. NANCY PRINCE, ADVOCATE FOR C/R (ABSENT)

¶14

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.09.2016 PASSED IN O.S.NO.7677/2007 ON THE FILE OF THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH NO.25), DISMISSING THE SUIT FOR EJECTMENT AND DAMAGES.

¶15

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17/12/2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶16

2 -

¶17

CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

¶18

CAV JUDGMENT

¶19

This Regular First Appeal is filed by the plaintiff calling in question the judgment and decree dated 19.09.2016 passed in OS No. 7677/2007 by the III Additional City Civil and Sessions Judge, Bengaluru (‘the trial Court’ for short) whereby the suit for ejectment and damages came to be dismissed.

¶20

Plaint averments:

¶21

The plaintiff states that she is the owner and landlord of the suit schedule property being a basement car parking area forming part of the property bearing No. 48, Hospital Road, Bengaluru (‘suit property’). The defendant was inducted into possession initially under the lease deed dated 21.08.2004 and subsequently under a lease agreement dated 09.06.2006 each for 11 months. It was specifically pleaded that the premises, though meant for parking was temporarily let out on humanitarian grounds,

¶22

3 -

¶23

subject to conditions and that the defendant agreed to vacate on expiry of the lease period. It is further averred that repeated requests and reminders were issued, followed by a legal notice dated 21.02.2007, terminating the tenancy with effect from 31.05.2007. Despite termination, the defendant failed to vacate and continued in unauthorised occupation, rendering himself liable to pay damages for use and occupation at the agreed rate. Hence, the suit for ejectment and damages.

¶24

Written statement

¶25

The defendant filed written statement denying the plaint averments. It was contended that the plaintiff was not the absolute owner of the suit property and that one Bhaskar Rao was the owner. The defendant admitted the lease deed and lease agreement, but denied any agreement to pay “penal rent”, or damages at the rate claimed. The defendant further denied issuance and service of termination notice and asserted that he was in lawful possession Alleging

¶26

4 -

¶27

harassment by the plaintiff, the defendant justified filing an earlier suit for injunction. It was also contended that the suit was not maintainable, lacked cause of action and that the Court fee paid was insufficient.

¶28

The trial Court by the impugned judgment and

¶29

decree held that the issues relating to the ownership and status of the plaintiff as landlord did not survive for consideration, as the defendant has admittedly handed over possession of the suit schedule property during the pendency of the suit. It was observed that the suit was founded on admitted lease transactions and that, in law, a tenant cannot dispute the title of the landlord. Consequently, the contention that the plaintiff was only a caretaker was held to be inconsequential. On the question of termination of tenancy, the trial Court found that although the plaintiff pleaded issuance of legal notice dated 21.02.2007 terminating the tenancy, the said notice was neither produced nor marked in evidence. The letters relied by the plaintiff were treated only as a reminder and not as a notice evincing intention to

¶30

5 -

¶31

terminate the tenancy. In view of the specific denial by the defendant regarding issuance and service of termination notice, the Court held that the plaintiff failed to prove lawful termination of tenancy. With regard to the claim of damages, the trial Court held that the concept of “penal rent” is unknown to law and at best, the landlord could claim damages or mesne profits. However, since valid termination of tenancy was not established the Court concluded that determination of damages did not arise. The trial Court further held that in absence of a definite date of termination, it was not possible to ascertain the commencement of liability for mesne profits and by the judgment and decree the trial Court dismissed the suit. Aggrieved, the plaintiff is before this Court.

¶32

Learned Senior Counsel Sri Dhananjay Joshi appearing for the appellant submits that the trial Court adopted a hyper technical approach and failed to appreciate the lease was for a fixed term and stood determined by efflux of time. It is contended that non-production of

¶33

6 -

¶34

termination notice could not have resulted in dismissal of the suit, particularly when expiry of lease and continued possession were admitted. It is further contended that once possession was delivered during pendency of the suit, the trial Court was bound to adjudicate the claim for damages, mesne profits, for the period of unauthorized occupation.

¶35

Failure to do so has resulted in miscarriage of justice.

¶36

The respondent though has entered caveat has remained absent.

¶37

The appeal was admitted on 08.02.2017.

¶38

Having heard the learned Senior Counsel, the point that arises for consideration is,

¶39

whether the trial Court was justified in dismissing the suit in entirety without adjudicating the claim for damages/mesne profit, despite admitted expiry of lease and delivery of possession during the pendency of the suit?

¶40

7 -

¶41

On careful consideration of the pleadings, evidence and the impugned judgment, this Court finds that the trial Court failed to consider that the lease agreements were for a fixed term and termination of tenancy by efflux of time. The admitted fact was that the respondent/defendant continued in possession after the expiry of lease and subsequently handed over possession during the pendency of the suit, obligated the Court to adjudicate the claim for damages/ mesne profits. The dismissal of the entire suit on the sole ground of non- production of termination notice reflects a hyper-technical approach, defeating substantive justice. The trial Court does not decide the real controversy between the parties, namely the legal consequence of occupation after expiry of lease. In view of the above, the impugned judgment is vitiated, by failure to exercise jurisdiction and non-consideration of the material aspect, warranting interference by this Court. The point framed for

¶42

8 -

¶43

consideration is answered accordingly and this Court pass

¶44

the following :

¶45

ORDER

¶46

(i) The Regular First Appeal is allowed. (ii) The judgment and decree dated 19.09.2016 passed in OS No. 7677/2007 on the file of the III Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

¶47

(iii) The matter is remitted back to the trial Court for fresh disposal in accordance with law, with a direction to adjudicate the suit afresh in accordance with law particularly (a) determination of tenancy on expiry of the lease period. (b) entitlement, if any, of the plaintiff to damages/ mesne profits for the period of occupation after the expiry of the lease until delivery of possession.

¶48