Court emphasized the need for adjudication of damages for unauthorized occupancy post-lease expiry, asserting that procedural technicalities should not hinder substantive justice.

JUDGMENT :

K.S. HEMALEKHA, J.

1. 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.

Plaint averments:

2. 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, 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.

Written statement

3. 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 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.

4. The trial Court by the impugned judgment and 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 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.

5. Learned Senior Counsel Sri Dhananjay Joshi appearing for the appellant submits that the trial Court adopted a hyper techn