L. Chandrashekar vs R. Nanjappa

H. Billappa, J.

This revision is directed against the judgment and decree dated 12.12.2013 passed by the X Addl. Small Causes Judge, Bengaluru, in S.C. No. 1627/2011.

By the impugned judgment and decree, the Trial Court has decreed the suit of the respondent and has directed the petitioner to vacate and hand over vacant possession of the suit schedule premises to the respondent within two months. Further, the petitioner is directed to pay a sum of Rs. 14,796/- towards arrears of rent.

Aggrieved by that, the petitioner has filed this revision petition.

Briefly stated the facts are:

"The respondent filed suit in S.C. No. 1627/2011 for ejection of the petitioner. The case of the respondent-plaintiff was that the petitioner is in occupation of the suit schedule property bearing No. 18 measuring East to West 29 feet and North to South 14 feet consisting of kitchen, two latrines, one room, two halls situated at Hennur main road, Hennur cross, Kalyan Nagar, Bengaluru on a monthly rent of Rs. 2,000/- excluding power and water supply since 22.6.2001. The premises was let out for a period of 11 months for the purpose of running Bar and Restaurant. At the time of entering into lease agreement, the petitioner paid a sum of Rs. 50,000/- as security deposit. It was agreed if the petitioner continued in the schedule premises after the expiry of 11 months, the petitioner has to pay enhanced rent at the rate of 20% for every completed 11 months. Accordingly, the tenancy was extended from time to time. As on 21.7.2008 the petitioner has paid monthly rent of Rs. 5,948/-. Thereafter, the petitioner became defaulter in payment of monthly rents. As on 21.1.2009 the petitioner was due in a sum of Rs. 2,37,640/-. In spite of repeated requests and demand the petitioner failed to pay the arrears of rent. On the other hand, the petitioner had filed suit in O.S. No. 8459/2006 for permanent injunction. The dispute was settled before the Mediation Centre. The petitioner agreed to pay the arrears of rent as settled before the Mediation Centre for Rs. 1 lakh. The case was adjourned to 10.3.2008. The petitioner brought a sum of Rs. 1 lakh before the Mediation Centre and demanded for fresh lease agreement. As the settlement was broken, the case was posted before the court. It is stated, the petitioner evaded payment of arrears of rent. Thereafter, the respondent issued legal notice dated 22.4.2008 to pay arrears of Rs. 1,29,796/- which covers up to 22.4.2008. The petitioner duly acknowledged the receipt of the notice, but failed to comply with the demand made in the legal notice. It is stated, the respondent issued another notice dated 26/30.7.2008 calling upon the petitioner to pay arrears of rent of Rs. 1,47,640/- and terminating the tenancy with effect from 21.8.2008. The possession of the petitioner from 22.8.2008 is illegal and unlawful. The petitioner has no legal right to continue in the suit schedule premises. It is stated, if the petitioner had vacated the premises, it would have fetched rent of Rs. 15,000/- per month. Therefore, the respondent has prayed for ejection of the petitioner and to direct the petitioner to pay arrears of Rs. 2,37,640/- and damages at the rate of Rs. 15,000/- per month from 22.8.2008 till the date of delivery of possession."

The petitioner has filed his written statement. It is denied that the rent was Rs. 2,000/- per month. It is also denied that it was agreed to pay enhanced rent @ 20% for every completed 11 months. The petitioner has admitted that he has paid rents to the respondent of Rs. 5,948/-. It is stated, the petitioner paid the rents continuously and there is no arrears of rent. It is denied that the respondent demanded arrears of rent. It is stated, the petitioner is not in arrears of rent and he has been continuously paying the rents. Since the respondent interfered with the possession, the petitioner filed suit in O.S. No. 8459/2006. It is stated, in the Mediation Centre the petitioner never agreed for higher advance or higher rent. There is no arrears payable by the petitioner. Therefore, the petitioner has prayed for dismissal of the suit.

The Trial Court has raised the following points for consideration:

"1. Whether the plaintiff is entitled for the decree against the defendant for the suit claim?

Whether the plaintiff proves that he has issued the termination notice as per provisions of Sec. 106 of T.P. Act?

What decree or order?"

The Trial Court considering the material on record has answered point Nos. 1 and 2 in the affirmative and consequently, has decreed the suit directing the petitioner to vacate and hand over vacant possession of the suit schedule premises to the respondent within two months. Further, the petitioner has been directed to pay arrears of rent of Rs. 14,796/-. Aggrieved by that, the petitioner has filed this revision petition.

The learned counsel for the petitioner contended that the land in question is acquired by the BDA and therefore, the respondent is not the owner of the property and he has no title to the property. Therefore, the suit for ejection is not maintainable. He also submitted that the documents produced along with the memo show that the land has been acquired. He also submitted that the termination notice was not served on the petitioner as required under law. Therefore, there is no proper termination of tenancy. Further, he submitted that there is no finding regarding rate of rent. Therefore, the direction to pay the arrears is not correct. The Trial Court has failed to consider the evidence on record in proper perspective. Therefore, the impugned judgment and decree cannot be sustained in law.

As against this, the learned counsel for the respondent submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit. Therefore, the impugned judgment and decree does not call for interference. He also submitted that the petitioner has not raised any plea regarding acquisition of land in the written statement. Therefore, the petitioner cannot contend that the land has been acquired. The petitioner had filed suit in O.S. No. 8459/2006 for permanent injunction. In the said suit, the petitioner admitted that he is the tenant in respect of the suit schedule premises. In this case also, the petitioner has admitted that he is the tenant under the respondent. Therefore, the petitioner cannot contend that he cannot be evicted from the suit schedule property. Further he submitted that Clause-9 of the agreement shows that the parties had agreed for enhancement of rent by 20% after competition of every 11 months. The petitioner has admitted that up to 21.7.2008 he was regularly paying the rent by increasing every year 20% from 2001. Therefore, the petitioner cannot contend that there was no agreement for enhancement of rent. Further he submitted that the respondent has issued legal notice as per Exs. P8 and P9 terminating the tenancy. The legal notice was sent through registered post and also under certificate of posting. Exs. P10, P11, P12 and P13 are the postal acknowledgement receipts and certificate of posting. The petitioner has not denied the receipt of the notice. Therefore, the Trial Court was justified in decreeing the suit. The impugned judgment and decree does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The point that arises for my consideration is:

"Whether the impugned judgment and decree calls for interference?"

It is relevant to note, the suit in S.C. No. 1627/11 has been filed by the respondent for ejection of the petitioner and claiming arrears of rent and damages at the rate of Rs. 15,000/-per month from 22.8.2008 till the date of handing over vacant possession of the suit schedule premises. The petitioner has denied that he is in arrears of rent. According to him, he has paid the entire rent. The relationship is not disputed. In the written statement the petitioner has not pleaded that the suit schedule property was acquired by the BDA. The petitioner has not whispered anything about the acquisition in his evidence. It is only in the revision petition the petitioner is contending that the land was acquired by the BDA. He has produced some documents along with the memo. In the absence of specific plea in the written statement, the petitioner cannot be now allowed to contend that the land was acquired. It is clearly after thought. There is no foundation in the pleadings. Therefore, the contention of the petitioner the land was acquired by the BDA and therefore, the respondent cannot evict him cannot be considered. In fact, the petitioner himself had filed O.S. No. 8459/2006 for permanent injunction contending that he is the tenant of the suit schedule premises and the respondent is interfering with his possession. In his written statement the petitioner has stated that he has paid entire rents and he is not in arrears of rent. The relationship is not disputed. Therefore, the petitioner cannot contend that the land is acquired and therefore, the respondent cannot evict him.

Insofar as termination of tenancy is concerned, it was contended that the petitioner was not served with the notice as required under law. Therefore, there is no proper termination of tenancy. The learned counsel for the respondent submitted that legal notice was sent as per exhibits P8 and P9 both through registered post and also under certificate of posting. Exhibits P10, P11, P12 and P13 are the postal receipts, acknowledgment and certificate of posting. The petitioner has received the notice and he has not replied the same. There is no specific plea in the written statement that notice was not served on the petitioner. In his evidence, the petitioner has not stated anything regarding service of notice.

It is clear from exhibits P8, P9, P10, P11, P12 and P13 that legal notice was sent to the petitioner by RPAD and also under certificate of posting. Exhibits P8 and P9 are the copies of the legal notice dated 22.4.2008 and 26/30.7.2008. The legal notice has been sent through RPAD and also under certificate of posting. The address given in the postal acknowledgement and certificate of posting is the same address which the petitioner himself has given in O.S. No. 8459/2006. The acknowledgement is signed by one Gangadhar. The legal notice is also sent through certificate of posting. It is not returned. It is clear from exhibits P8, P9, P10, P11, P12 and P13 that notice was sent to the petitioner and it was served. There is no specific denial of service of notice. So also there is no evidence. It is clear from P8, P9, P10, P11, P12 and P13 that notice was served and tenancy was duly terminated. Therefore, the petitioner cannot contend that there was no proper service of notice. The Trial Court has rightly decreed the suit for ejection.

The respondent has claimed arrears of rent of 2,37,640/- and damages at the rate of Rs. 15,000/- per month from 22.8.2008 till the date of handing over possession of the suit schedule premises. The Trial Court taking into consideration that the respondent has stated in the plaint that the petitioner is due in a sum of Rs. 1,47,640/- upto 22.7.2008 and that the PW.1 has deposed that he had received two cheques for a sum of Rs. 50,000/- and Rs. 65,000/-, in all, Rs. 1,15,000/-. The respondent in the legal notice has stated that the defendant is due in a sum of Rs. 1,29,796/- towards arrears of rent as on 22.4.2008. Deducting a sum of Rs. 1,15,000/- from Rs. 1,29,796/- the petitioner has been directed to pay a sum of Rs. 14,796/-. The respondent has claimed damages at the rate of Rs. 15,000/- per month from 22.4.2008 till the date of handing over possession. The Trial Court has not considered it. It cannot be considered in this revision petition. The respondent can pursue his remedy.

There is no merit in this revision petition. Therefore, it is liable to be dismissed.

Accordingly, the revision petition is dismissed.

The petitioner is running a bar and restaurant in the suit schedule premises. Therefore, a reasonable time needs to be granted to vacate the premises. The petitioner is granted time till 31.10.2015 to vacate the premises. The petitioner shall vacate and deliver vacant possession of the suit schedule premises to the respondent on or before 31.10.2015. The respondent can workout his remedy for damages in accordance with law.