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KARNATAKA HIGH COURT
B.S. Patil, J.
Smt. Bharathi Shetty —Appellant
versus
B. Hanumanthappa —Respondent
R.S.A. No. 2072
Decided on 27.3.2013
Counsel for the Parties:
For the Appellant:Vishwajith Shetty, Advocate.
For the Respondent:S.V. Prakash, Advocate.
IMPORTANT POINT
There can be no forfeiture either by inference or by implication.
Headnote:Transfer of Property Act, 1882—Sections 111(g) and 114—Tenancy—Forfeiture of—There are concurrent findings of fact holding that defendant has not paid any rent for premises in question although she occupied same during 2002 and suit itself came to be instituted during year 2008—However, there is no forfeiture clause in agreement enabling plaintiff to re-enter premises in case of breach of any express condition—Lease is a contract where both lessor and lessee will agree for certain conditions, covenants and stipulations—If they have not chosen to make breach of condition to pay rent as an express stipulation entailing forfeiture of lease with a right vested in landlord to re-enter, High Court cannot apply forfeiture clause to evict tenants on the ground that tenant has defaulted in paying rents—Conduct of appellant-tenant is unbecoming of a tenant—He has violated terms and conditions agreed upon for payment of rent—This has to result in imposition of cost, interest and such other consequences against him—But, it cannot be a ground to evict him as such a right can be claimed by landlord only if there is forfeiture clause in agreement of lease—Plaintiff cannot evict defendant and get possession of property—Tenant will continue to enjoy property—But, he has to make payment of rent along with interest and costs. (Paras 20, 21, 22, 28 to 33, 40 to 43)
Result: Appeal allowed.
B.S. Patil, J.— These two regular second appeals are preferred against the common judgment dated 9.10.2012 passed by the learned Senior Civil Judge, Sorab, in RA.Nos.3l/2012 and 35/2012.
2. Appellant and the respondent in these two appeals are the landlord and tenant. Plaintiff-respondent herein instituted O.S.No.250/2008 for possession of the suit schedule property, recovery of arrears of rent and also for damages from the defendant/tenant.
3. It is not in dispute that the suit schedule property bearing Khatha No.342/240 carved out of Sy.No.1I3 measuring 150' North East and 110' East West situated at Sorab was leased in favour of the defendant-appellant herein for the purpose of running a petrol bunk vide registered lease deed dated 15.3.2002. The duration of the lease was 15 years. It was stipulated that annual rent shall be Rs.10,000 per annum for the first five years and Rs.25,000 per annum for the next five years and Rs.35,000 per annum for the remaining 5 years.
4. Though the tenant was allotted dealership to run a petrol bunk, the said allotment was cancelled in view of the judgment of the Apex Court in M/s. Sharma Metal Co’s case, which had general application to all such allotments. The landlord issued a quit notice dated 7.6.2005 vide Ex.P4 terminating the lease and calling upon the defendant to handover possession of the premises. The legal notice was replied contending that there was one more agreement dated 16.3.2002, whereunder a sum of Rs. One lakh had been paid by the tenant as advance deposit with a stipulation that interest accrued thereon shall be utilized as rent. The plaintiff did not institute the suit immediately. He filed the suit on 16.12.2008 alleging that the tenant did not pay any rent right from the inception and therefore, was in arrears. It was also urged by the plaintiff that tenancy having been validly terminated and the tenant having committed default in paying the rents accrued, he was liable to be evicted from the premises. The so-called second agreement dated 16.3.2002 setup by the defendant was denied.
5. The defendant contended that he was given dealership of the Indian Oil Corporation to run the outlet and therefore, he had taken the suit schedule property on lease for a period of 15 years with a right of renewal for a further period of 15 years. After taking the land on lease, she had invested more than Rs.15 lakhs for its development and was running a petrol bunk in the land in question by constructing a building with four rooms as per the approved layout plan. It was urged by the defendant that plaintiff had no right to terminate the tenancy as per his whims and fancies and that there was no valid termination of tenancy.
6. The defendant reiterated his stand taken in the “reply urging that a sum of Rs. one lakh had been paid as advance rent. She also contended that the plaintiff who owned a canter lorry in the name of his wife was purchasing diesel on credit basis from the petrol bunk of the defendant and was due to the defendant a certain sum of money towards such purchases alongwith interest and therefore, if any rent was found due from him the said rent could as well be adjusted in the dues owed by the plaintiff towards purchase of diesel from the petrol bunk owned by the defendant.
7. Based on the respective pleadings, the Trial Court framed the following issues and additional issues.
“(i) Whether the plaintiff proves that he has entered into lease agreement dated 15.3.2002 for the period of 15 years with defendant in respect of suit schedule property?
(ii) Whether plaintiff proves that defendant has failed to pay the rent as agreed in the said lease agreement dated 15.3 .2002?
(iii) Whether plaintiff proves that defendant violated the terms and conditions of the lease deed dated 15.3.2002?
(iv) Whether plaintiff proves that tenancy of the defendant is properly revoked through the legal notice dated 7.6.2005?
(v) Whether defendant proves that plaintiff and def
