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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
JYOTI MULIMANI, J.
Hemanth Educational Society, Rep. by its Secretary, Mrs. Sheela & Ors. - Appellants
Versus
Smt. H.R. Seethalakshmamma, W/o. Late Sri H.K. Sathyanarayana Rao & Ors. - Respondents
Regular First Appeal No. 243 of 2006 (RES)
Decided On : 19-05-2021
Civil Procedure Code,1908 - Order 13 Rule 4 - Section 96 - KRC Act, 1961 - Section 2(1)(a) - Karnataka Rent Act, 1999 - Section 70 (2) © - Transfer of Property Act, 1882 - Section 106 - Absolute owner in possession of the property - Arrears of rent - Seeking a decree of permanent injunction - Whether the plaintiffs are the landlords of the premises defendants are in possession - Whether defendants are tenants in suit property on a monthly rent of apart from electricity & water charges - Whether the defendants are in arrears of rent onwards - Whether termination of tenancy is in accordance with law - Whether the plaintiffs are entitled for the arrears of rent and possession - To what order and relief, the parties are entitled to - Defendant is the tenant of plaintiffs and whose tenancy stands determined and terminated in regard to property MES Road, Post, which is a property described in schedule of plaint - Alleging that he had taken steps to dispossess the first defendant - Society by force said suit came to be dismissed on account of death- First defendant had agreed to pay a monthly rent per month and the tenancy of the first defendant commenced from 1st of each month - Second defendant is Secretary of first defendant – Society - first defendant - Society was called upon to effect payment of rents which became due - Plaintiffs issued legal notice demanding arrears of rent - First defendant - Society failed to effect payment of arrears of rent become due - Plaintiffs were constrained to initiate action against first defendant - Society before the Small Causes Court - – Held, Rule as to endorsement of documents admitted in evidence must strictly followed. Order 13, Rule 4(1) of CPC prescribes that there shall be an endorsement on every document which has been admitted in evidence in suit, the number and title of the suit, the name of the person producing the document, the date on which it was produced and a statement of its having been so admitted - Endorsement shall be signed or initialled by the judge - Trial Court marked the documents with consent and the same is clear from deposition and order sheet is curious to note that the documents admitted in evidence were not endorsed in terms of Order 13 Rule 4 of CPC. Considering the fact that documents were admitted and were marked with consent, the trial Court ought to have endorsed the same and allowed to be relied upon - trial Court as is apparent from the proceedings did not make the endorsement as contemplated by order 13 Rule 4 of CPC - Observation of the Privy Council case that there is no possible excuse for neglect of duty imposed by the statute amply applies to the facts and circumstances of present case – Court have stated have grave doubt as to whether the judgement and decree of the trial Court can be supported - Trial Court has dealt with the matter which were not related to the grounds of eviction - Trial Court did not adhered to the mandatory provisions of CPC - By doing so, it must be said that the trial Court did not conduct the trial in accordance with law and the procedure adopted suffered from serious infirmity - Case requires remand to trial court for fresh trial - appeal is allowed.
JUDGMENT :
Sri M. Shivaprakash, learned counsel for appellants and Sri B.N. Ananthanarayana, learned counsel for respondents have appeared in person.
2. This is an appeal from the Court of the XV Additional City Civil and Sessions Judge, Bengaluru City.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the trial Court.
4. The plaint averments are under :
The first defendant is the tenant of plaintiffs and whose tenancy stands determined and terminated in regard to property bearing Nos.5 and 7, 4th A Main road, Mutyalanagar, MES Road, Gokul, Jalahalli Post, Bengaluru-54 which is a property described in the schedule of the plaint. The first defendant had agreed to pay a monthly rent of Rs.1,000/- per month and the tenancy of the first defendant commenced from 1st of each month. The second defendant is the Secretary of the first defendant - Society.
It is stated that the suit scheduled property belonged to one Late H.S. Anil Kumar and he was the absolute owner in possession of the property. Late H.S. Anil Kumar has leased the schedule property in favor of the first defendant - Society. The lease was for the purpose of running an Educational Institution and the tenancy commenced from 1st of each month. The first defendant - Society had even filed a suit in O.S.No.5513/1998 against Late H.S. Anil Kumar seeking a decree of permanent injunction alleging that he had taken steps to dispossess the first defendant - Society by force. The said suit came to be dismissed on 06.03.1999 on account of death of H.S. Anil Kumar.
It is stated that H.S. Anil Kumar died bachelor intestate on 17.08.1998. The first plaintiff is the mother and second plaintiff is elder brother of Late H.S. Anil Kumar. Plaintiffs being class-1 heir of deceased H.S. Anil Kumar, became the absolute owner of the suit schedule property. The Khata of the suit schedule property stands in the name of second plaintiff.
The first defendant - Society was called upon to effect payment of rents which became due from 01.08.1998. Plaintiffs issued legal notice on 26.03.2001 demanding arrears of rent. The first defendant - Society failed to effect payment of arrears of rent become due. Therefore, plaintiffs were constrained to initiate action against the first defendant - Society before the Small Causes Court, Bengaluru City seeking eviction of defendants under Section 2(1)(a) of the KRC Act, 1961 in HRC No.739/2001.
It is stated that the schedule property being non-residential in nature and the measurement being more than 14 Sq. mts and the construction of the building not being more than 15 years. In view of Section 70 (2) (c) of the Karnataka Rent Act, 1999, the proceedings in HRC No.739/2001 came to be abated.
It is averred that defendants are due rents from 01.08.1998 onwards and a sum of Rs.51,000/- has become due towards arrears of rent calculated up to 31.10.2002. It is also stated that rents exceeding 3 years have become time barred, the plaintiffs sought recovery of sum Rs.36,000/- only being the arrears of rent for a period of 36 months calculated up to 31.10.2002.
The first defendant - Society being a tenant from month to month in respect of suit schedule property and the tenancy came to be determined and terminated by means of legal notice dated 06.09.2002 with effect from the expiry of 31st day of October 2002. The defendants were called upon to quit and deliver back the vacant possession of the suit schedule property. Despite the issue of legal notice, the defendants have not vacated the suit schedule property. Hence, plaintiffs have filed the present suit for ejectment of the defendants from the suit schedule property. The defendants are liable to pay damages for wrongful use and occupation of the schedule property. Plaintiffs also sought for an enquiry be held with regard to the mesne profits.
It is further contended that the cause of action for the suit arose on and subsequent to 01.11.1999 from when the rents became du
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