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Karnataka High Court
M.C.MOHAMMED - Appellant
Versus
GOWRAMMA - Respondent
Decided On : 11-09-06
Regular First Appeal No. 756 of 2006.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Civil Procedure Code, 1908 -Order 41, Rule 11 -Admission of first appeal -Neither presentation of appeal means automatic admission nor it cannot be dismissed at admission stage itself. [S.R. Bannurmath and Subhash B. Adi, JJ.]
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Civil Procedure Code, 1908 -Section 122 -Rules framed under -Cannot be inconsistent with Code. [S.R. Bannurmath and Subhash B. Adi, JJ.] Section 122 of the CPC confers power on the High Courts to make Rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence, and also provides power on the First Schedule. By reading the provisions of Section 122, it is clear that the High Court has the power to make Rules regulating its own procedure as well as the procedure of the Civil Courts. It has also power to annul, alter or add to all or any of the Rules of the First Schedule, Section 122 provides for the matters for which Rules may be framed. Under this Section, the Rules framed shall not be inconsistent with the provisions in the Code of Civil Procedure, but subject thereto may provide for any matters relating to procedure of the Civil Court
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Civil Procedure Code, 1908 -Order 20, Rule 12 (ba) -Mesne profits -Rent control matter -Lease under 1961 Act -Non-residential premises measuring more than 14 sq.mtrs. -Tenant continuing in possession even after determination of lease and even after 1961 Act was repealed -Liability of tenant to pay mesne profits. See, Karnataka Rent Act, 1999 -Section 2(3)(g).
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Code of Civil Procedure, 1908 - Order 41, Rule 11 - First appeal - There is no indication that it cannot be dismissed at admission stage - It can be disposed of. [S.R. Bannurmath and Subhash B. Adi, JJ.]: In the light of the provisions of Order XLI Rule 11, Section 128 of CPC and the provisions of the Rules made by this Court under Section 122 of CPC, we do not find there is any justification in the contention of the learned Counsel for the appellant that the appeal cannot be disposed of at the admission stage. We hold that the Regular First Appeals are required to be posted for admission and also are required to be heard for admission and it is only after the Court satisfies itself of the prima facie case for admission, either the Court may admit or may issue notice, if no case is made out for admission or if the matter could be disposed of after hearing both the contesting sides at the stage of admission itself, the Court can dispose of the appeal at the admission stage.
Karnataka Rent Act, 1999 -Section 2(3) (g) -Mesne profits -Lease under 1961 Act -Non-residential premises measuring more than 14 sq.mtrs. -Tenant continuing in possession even after determination of lease and even after 1961 Act was repealed -Liability of tenant to pay mesne profits. [S.R. Bannurmath and Subhash B. Adi, JJ.] The question is as to whether the appellant is only required to pay the rent agreed by way of mesne profits till he delivers possession or he is required to pay the damages for the period after the repeal of the Karnataka Rent Control Act? The Karnataka Rent Control Act is repealed by virtue of the Karataka Rent Act, which came into force on 31-12-2001. No doubt till 31-12-2001, the appellant continued to be a statutory tenant and in law was liable to pay only rent. Accordingly, it is held that the appellant is liable to pay the damages at the agreed rent till 31-12-2001. But for the remaining period, since the Rent Act is not applicable to the non-residential premises, having plinth area of more than 14 square meters, the appellant will not continue as a statutory tenant and said benefit is not available under the Rent Act. As such, for the remaing period from 1-1-2002 onwards, the appellant is not protected as a statutory tenant and is liable to pay the damages or mesne profits. In this case, the Trial Court on the evidence available on record has found that the tenant is liable to pay mesne profits at the rate of Rs. 8,760/- per month. Accordingly, we hold that the appellant is liable to pay mesne profits from 1-1-2002 till the delivery of possession at the rate of Rs.8,760/- is liable to pay mesne profits from 1-1-2002 till the per month. We also hold that the Trial Court has a power to determine the mesne profits under the provisions of Order XX Rule 12(ba) in case the evidence is available on record. Having regard to the facts and circumstances of this case, insofar as mesne profits is concerned, we modify the judgment and decree, holding that the appellant is liable to pay the damages at the rate of agreed rent upto 31-12-2001 and for the remaining period, the appellant is liable to pay the damages as determined by the Trial Court till the delivery of possession.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Karnataka Rent Act, 1999 -Section 27 -Defence of statutory tenant -Lease for a contractual period -He is not entitled to notice after expiry of that period -He cannot contend that by acceptance of rent after expiry of contractual period, a fresh tenancy was created which had to be determined by a fresh quit notice -Settled Principle (AIR 1978 SC 1518).
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Karnataka Rent Act, 1999 -Section 27 -Termination of lease -Notice for -Lease for a fixed period of time -No need of notice therefor. See, Transfer of Property Act, 1882 -Section 111.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Karnataka Rent Control Act, 1961 -Section 31 -Lease under the Act -Non-residential premises measuring more than 14 sq.mtrs. -Tenant continuing in possession even after determination of lease and even after the Act was repealed -Liability of tenant to pay mesne profits. See, Karnataka Rent Act, 1999 -Section 2(3) (g).
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Landlord and Tenant -Defence of statutory tenant -Lease for a contractual period -He is not entitled to notice after expiry of that period -He cannot contend that by acceptance of rent after expiry of contractual period, a fresh tenancy was created which had to be determined by a fresh quit notice -Settled Principle (AIR 1978 SC 1518).
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Landlord and Tenant -Termination of lease -Notice for -Lease for a fixed period of time -No need of notice therefor. See, Transfer of Property Act, 1882 -Section 111.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Legal Fictions -Shara of postal Department -Carries a rebuttable presumption. [S.R. Bannurmath and Subhash B. Adi, JJ.]
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Indian Evidence Act, 1872 -Section 114 --Shara of postal Department -Carries a rebuttable presumption.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Karnataka High Court Rules, 1959 -Chapter VI, Rule 5 -Admission of first appeal -Neither presentation of appeal means automatic admission nor it cannot be dismissed at admission stage itself. [S.R. Bannurmath and Subhash B. Adi, JJ.] By reading of these rules, they do not indicate that the First Appeals are not required to be listed for admission. The procedure contemplated under the Rules clearly indicates that the Registry is required to notify the matters for admission and it is only after the Court directs the issue of notice, the Registry will cause notice to the respondents and it this regard, the appellant is required to furnish necessary process fee, cover, acknowledgement, appeal memo in such number as may be required in a given case. Nomention of the admission under rule 5 of Chapter VI, does not mean that the matter is automatically admitted. Section 128 of CPC learly indicates that Rules framed by the High Court should not be inconsistent with the provisions of the body of the Code. Reference to Order XLI Rule 11 in the definition of to admit a case and the provisions of Order XLI Rule 11 and other provisions of the Rules framed by this Court do not indicate that the first appeal shall not be dismissed at the stage of admission.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Legal Fictions - Burden to lead rebuttal evidence - Notice by registered post sent to correct address of party - Shara of postal department carries a presumption - It is for the addressee to lead evidence to rebut the same.
General Clauses Act 1897 -Section 27 -Shara of postal Department -Carries a rebuttable presumption. [S.R. Bannurmath and Subhash B. Adi, JJ.]
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Karnataka High Court Rules, 1959 - Chapter II, Rule 1(p) & (q) - To admit case - Listing matter for admission - Should be dealt with for preliminary hearing under Order 41, Rule 11 or similar provisions of CPC.
Karnataka Rent Control Act, 1961 -Section 31 - Mesne profits - Statutory tenant remaining in possession even after expiry of lease period - Mesne profits more than agreed rent as long as he is protected as staturoty tenant - Thereafter he is liable as determined by court Sri.
Notices -Notice of termination of lease -Notice sent to admitted address by registered post acknowledgement due -Refusal -Shara to that effect -Notice was served by affixture -Held, notice is effected in terms of the provision. See, Transfer of property Act, 1882 -Section 106.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Practice and Procedure -Admission of first appeal -Neither presentation of appeal means automatic admission nor it cannot be dismissed at admission stage itself.
Transfer of Property Act, 1882 -Section 106 -Notice -Service of -Notice sent to admitted address by registered post acknowledgement due -Refusal -Shara to that effect -Notice was served by affixture -Held, notice is effected in terms of the provision. [S.R. Bannurmath and Subhash B. Adi, JJ.] It has come in the evidence of DW-1 that the notice was served by affixture. It has also come in the evidence that the address mentioned on the cover was correct and it was his residential address. It has also come in the evidence that enve the notice sent by the Court is not received by the appellant. Section 106 of the Transfer of Property Act requires the notice to be served either by registered post acknowledgement due or by tender or by affixture. In this case, the notice is returned as it was refused by the appellant. Further there is a service of notice by affixture. In our considered view, in the light of the admission of DW-1 in his cross-examination that the address shown on the cover of the notice is his residential address ad in the light of the notice having been sent by registered post acknowledgement due, the cover containing the document and being property stamped, properly addressed with acknowledgment due, the shara of the Postal Department carries a presumption under Section 27 of the General Clauses Act and also under Section 114 of the Evidence Act and the appellant, who denies the same, is required to lead rebuttal evidence. In this case, the appellant having admitted the address being correct address, we hold that the service is effected in terms of Section 106 of the T.P. Act.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Transfer of Property Act, 1882 -Section 111 -Termination of lease -Notice for -Lease for a fixed period -No need of notice therefor. [S.R. Bannurmath and Subhash B. Adi, JJ.] In this case, the notice is not required to be served on the appellant. It is nto in dispute that the appellant was put in possession as a tenant under Ex.P1-lease deed and the said lease deed is admittedly for a period of five years. It is also not in dispute that the said period has expired. Section 111 of the T.P. Act deals with determination of the tenancy. Once the tenancy gets determined by virtue of expiry of the time, no further determination arises in law. Appellant after the expiry of lease period continued in possession under the protection of Karnataka Rent Control Act as a statutory tenant. It is on record that the respondent Nos.1 to 6 had filed H.R.C. No. 1069/1997 as the old Section 31 of the Karnataka Rent Control Act at relevant point of time was struck down. It is also not in dispute that the said HRC case was dismissed as not maintainable. As such, the only procedure that was available for the respondents-landlords was to seek ejectment of tenant by instituting suit. In this case, the respondents - landlords had issued notice dated 6.6. 1999 terminating the tenancy and the suit is filed after the stipulated period under Section 106 of T.P. Act. It is also on record that the tenancy is monthly tenany. Even otherwise, tenant continuing as a statutory tenant after the expiry of the contractual period, does not require another notice of termination of his tenancy.
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Transfer of Property Act, 1882 -Sections 106, 111(a) & 116 -Defence of statutory tenant -Lease for a contractual period -Is not entitled to notice after expiry of that period -He cannot contend that by acceptance of rent after expiry of contractual period, a fresh tenancy was created which had to be determined by a fresh quit notice -[S.R. Bannurmath and Subhash B. Adi, JJ.] Settled Principle (AIR 1978 SC 1518).
Case Referred: AIR 1983 SC 269; (2001) 4 SCC 756; AIR 1972 SC 1932; ILR 1991 Kar 2185; (1992) 2 SCC 46; AIR 1976 KAR 97; AIR 1961 SC 1067; AIR 1998 SC 3085; ILR 1991 KAR 1492; AIR 1964 SC 461; AIR 1978 SC 1518; AIR 1988 SC 1845; (1981) 2 SCC 199.
Indian Evidence Act, 1872 - Section 114 - Notice - Presumption as to its service. See Transfer of Property Act, 1882 - Section 106.
Transfer of Property Act, 1882 - Section 111 - Termination of tenancy by efflux of time - No further determination arises in law - No need of giving notice to quit. . [S.R. Bannurmath and Subhash B. Adi, JJ.]: Section 111 prescribes mode of determination of tenancy. Once the lease determines in any of the modes prescribed under Section 111, the contract comes to an end and there is no question of giving a notice to quit to such lessee, who continued in possession after determination of lease i.e., after the contract comes to an end, there is no question of terminating the contract over and again by notice.
Statute Law - Rules framed by High Court - Should not be inconsistent with provisions of CPC.
General clauses Act, 1897 - Section 27 - Notice - Presumption as to its service. See Transfer of Property Act, 1882 - Section 106.
Though the matter was posted for admission, since the contesting respondents 1 to 5-plaintiffs had entered caveat and as the question involved in this appeal is only as to whether the termination of tenancy is valid or not, matter was taken up for disposal.
2. This is the first defendant's appeal, questioning the judgment and decree dated 7th January, 2006 in O.S. No. 8183 of 1999 on the file of the XV Additional City Civil and Sessions Judge, Bangalore.
3. Respondents 1 to 6 are the plaintiffs. As far as respondents 7 to 11 are concerned, they were the defendants 2 to 6 in the Trial Court and had not contested the suit.
4. The suit is one for ejectment of the defendants from the suit schedule property and also for mesne profits at the rate of Rs. 500/- per day till the plaintiffs are put in possession.
5. Property bearing No. 83, Bazar Street, Ulsoor, Bangalore, measuring n feet x 30 feet was owned by one Jayarama Reddy and after his death, the plaintiffs have succeeded to the estate as wife and children of said Jayarama Reddy. Defendant I-appellant herein was put in possession of the suit schedule property as a tenant by deceased Jayarama Reddy on 12-9-1977 under a lease deed, for a period of 5 years on agreed rent of Rs. 800/- per month at the inception and Rs. 900/- for the first two years. Since the tenancy rights were protected under the provisions of the Karnataka Rent Control Act, 1961 and Section 31 of the said Act having been struck down, plaintiffs had filed H.R.C. No. 1069 of 1997. However, the said H.R.C. came to be dismissed as not maintainable by order dated 2-12-1998 in view of restoration of Section 31 of the Karnataka Rent Control Act. As the premises being non-residential premises having rent of more than Rs. 500/-, after the dismissal of the HRC petition as not maintainable, plaintiffs got issued legal notice dated 6-6-1999 terminating the tenancy from the expiry of the tenancy month of June 1999, which came into effect on 11-7-1999. First defendant though received the notice did not vacate the premises. Plaintiffs were forced to file the ejectment suit.
6. Defendant 1 on appearance filed his written statement. Defendants 2 to 6 did not appear even after the receipt of the summons and they were placed ex parte.
7. Defendant 1 in his written statement denied the allegations that he was inducted in the year 1977 for the period of five years. He also denied the receipt of the notice issued by the plaintiffs and further stated that he had not sublet the suit property and also denies his liability to pay the damages to the plaintiffs.
8. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
1. Whether the plaintiffs prove the termination of tenancy in accordance with law ?
2. Whether the plaintiffs further prove that they are entitled for mesne profits at Rs. 500/- per day from the date of suit, till the date of delivery of plaint premises?
3. To what order or decree?
The second plaintiff-Dr. J. Ramachandra Reddy got himself examined as P.W. 1 and also got Exs. P. 1 to P. 12 marked in his evidence. First defendant got himself examined as D.W. 1 and got Exs. D. 1 to D. 13 marked in his evidence. The Trial Court on appreciation of the evidence held that the termination is proper and also held that the plaintiffs are entitled for mesne profits at the rate of Rs. 8,760/- per month from the date of filing of the suit till the delivery of possession. It is this judgment and decree of the Trial Court that is called in question in this appeal.
9. Learned Counsel Sri Shekar Shetty appearing for the appellant submitted that the first appeals filed under Section 96 of the Code of Civil Procedure before this Court are required to be admitted automatically. He further submitted that the first appeals are not required to be posted for admission. He submitted that this appeal cannot be disposed of at the admission stage. Nextly, he submitted that the decree is liable to be set asid
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