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The Printers (Mysore) Private Limited, Bengaluru v/s Vivekananda Auto Finance, Bengaluru & Others

    CRP. No. 95 of 2016

    Decided On, 25 November 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR

    For the Petitioner: K. Arun Kumar, Jacob, Alexander, Advocates. For the Respondents: -----



Judgment Text

1. This revision petition is filed by the unsuccessful plaintiff aggrieved by the dismissal of his suit in S.C.No.964/2011 on the file of the 20th ACMM and 22nd Addl.Small Causes Judge, Bangalore.

2. For the sake of convenience, the parties are referred to by their rank in the Court below.

3. The plaintiff has filed the instant suit for ejectment of the defendants from the suit schedule premises and for other reliefs. Originally, the plaintiff had instituted a suit in O.S.No.79/2008 for the aforesaid reliefs. In the said suit, defendants 1 and 2 remained ex-parte and defendants 3 and 4 appeared and filed their written statement contesting the suit. The undisputed material on record also indicates that after the suit was transferred to the Court of Small Causes and the suit having been renumbered as S.C.No.964/2011, the defendants did not chose to contest the said suit. It is also relevant to state that defendants 3 and 4 who had filed their written statement also did not chose to contest the suit filed by the plaintiff.

4. The plaintiff is a company incorporated under the Companies Act, 1956 and had leased out the vacant suit schedule premises in favour of M/s.United Construction Company, a partnership firm under a registered lease deed dated 31.07.1968 for a period of 30 years and 15 months and permitted them to put up construction and further permitted them to lease the building comprising of several commercial shops to different persons/concerns. Pursuant thereto, the said Company having put up the construction of a non-residential and commercial building consisting of various tenements, it leased out one shop i.e., Shop No.19 in favour of defendant No.1. The defendant No.1 is the partnership firm and defendant No.2 is a partner of the said partnership firm.

5. It is further contended by the plaintiff that defendants 3 and 4 were the sub-tenants in respect of a suit schedule premises bearing Shop No.19. It is further contended that the lease granted by the plaintiff in favour of the aforesaid M/s.United Construction Company expired by an efflux of time on 31.01.1999 and thereafter, the said tenant delivered the constructive possession of the premises to the plainiff on 01.11.1999. The defendants 1 and 2 were requested to attorn their tenancy in favour of the plaintiff w.e.f. 01.11.1999. Pursuant thereto, notices of attornment dated 20.12.1999 and 10.12.1999 were issued by the plaintiff and M/s.United Construction Company to the defendants and the same have been acknowledged by the defendants who have attorned their tenancy in favour of the plaintiff from 01.11.1999. Since, defendants 3 and 4 have already inducted as sub-tenants under defendants 1 and 2 by then, defendants 3 and 4 were paying monthly rent of Rs.500/- on behalf of defendant No.1 from November 1999 till the year 2000. It is further contended that from May 2000 onwards, the defendants failed to pay any rents to the plaintiff.

6. The plaintiff further contended that since it was not interested in continuing the tenancy in favour of the defendants and since the plaintiff required the suit schedule premises for its own business purpose, the plaintiff instituted HRC No.720/2002 against the defendants before the Small Causes Court seeking eviction of the defendants from the suit schedule premises and for other reliefs. By the order dated 14.06.02005, the HRC Court came to the conclusion that since the plinth area of the suit schedule premises was measuring more than 14 Sq.mtrs., the Karnataka Rent Act, 1999 was not applicable to the suit schedule premises and consequently, the petition was dismissed as not maintainable before the HRC Court.

7. The plaintiff has further alleged that after dismissal of the aforesaid HRC No.720/2002, the plaintiff issued a statutory notice dated 28.07.2005 terminating the tenancy of the defendants in respect of the suit schedule premises w.e.f.31.08.2005 and called upon the defendants to vacate on 01.09.2005.

8. Since the defendants did not comply with the demand made in the said notice, the plaintiff was constrained to issue one more notice on 16.06.2007 terminating the tenancy of the defendants w.e.f. 30.06.2007 and called upon the defendants to vacate w.e.f. 01.07.2007. The defendants having successfully avoided/evaded service of notice upon them, the plaintiff out of abundant caution, got copy of the notice pasted at the entrance of the suit schedule premises and a mahazar was drawn up by taking the photographs at the entrance of the premises, wherein it was established that defendants 3 and 4 had received the notice.

9. The plaintiff has contended that despite having duly received the aforesaid notice as stated supra, the defendants 3 and 4 did not vacate the suit schedule premises and the tenancy being calendar month tenancy, the defendants do not have any right to continue to remain in occupation of the suit schedule premises after termination of the tenancy. Since the tenancy had been terminated, in the meanwhile, the defendants are also liable to pay mesne profits for illegal and unauthorized occupation of the suit schedule premises. Under these circumstances, the plaintiff instituted the aforesaid suit in the Court below.

10. As stated above, after the suit was transferred from the City Civil Court to the Small Causes Court (Court below), none of the defendants chose to either appear or contest the matter. However, in the suit O.S.No.79/2008 which was transferred to the Court below, while defendants 1 and 2 did not file their written statement, defendants 3 and 4 have filed their written statement and the same is produced before this Court along with a memo dated 01.08.2019.

11. A perusal of the written statement filed by defendants 3 and 4 in O.S.No.79/2008 which was transferred to the Court below resulting in the impugned order would indicate that the primary ground, on which the defendants 3 and 4 chose to contest the suit was that there was no relationship between the landlord and tenant between them and the plaintiff. The defendants 3 and 4 admitted that they were the tenants under defendants 1 and 2 and having referred to the lease between defendants 1 and 2 and M/s.United Construction Company referred to above, it was contended by defendants 3 and 4 that they were not aware of the lease between the plaintiff and M/s.United Construction Company. It was also contended that the notice had not been received by them and the mahazar purporting to show pasting of the notice on the entrance of the suit schedule premises was disputed by them. Hence, the defendants 3 and 4 sought for dismissal of the suit.

12. On behalf of the plaintiff, two witnesses PWs 1 and 2 were examined and documentary evidence at Exs.P1 to P11 were marked. As stated above, before the Court below after the suit was transferred to the Court below, none of the defendants including defendants 3 and 4 chose to contest the suit. It is not in dispute that defendants 3 and 4 neither cross- examined PW-1 nor PW-2. It is also not in dispute that defendants 3 and 4 did not adduce any oral or documentary evidence on their behalf. Despite this, the Court below proceeded to pass the impugned judgment and order dismissing the suit of the plaintiff. It is further relevant to state that PW-1s evidence was discarded since he did not chose to appear before the Court and consequently, PW-2 was examined on behalf of the plaintiffs company.

13. It is relevant to state that even in this revision petition despite having received notice of the revision petition, the defendants have not chose to appear before this Court and they are not represented. Further, along with the aforesaid Memo dated 01.08.1999, the plaintiffs have also produced the latest photographs pertaining to the suit schedule premises which clearly indicate that the premises is in a dilapidated condition and has been vacated by the defendants 3 and 4 without putting any lock on the premises and the same has been abandoned as on date.

14. The learned Senior counsel appearing on behalf of the petitioner would contend that the defendants 1 and 2 had remained absent both in the suit as well as in the petition before the Court below and the pleadings and evidence of the petitioner qua defendants 1 and 2 remained unimpeached, unchallenged and uncontroverted. Further, apart from the fact that defendants 3 and 4 had admitted that they were the sub- tenants under defendants 1 and 2, they had also admitted that defendants 1 and 2 were tenants under M/s.United Construction Company, who in turn had taken the property on lease from the plaintiff and put up the construction of the building wherein the suit schedule premises is situated. It is therefore contended by the learned Senior counsel that having regard to the provisions contained in Section 116 of the Indian Evidence Act, having admitted the tenancy under defendants 1 and 2, defendants 3 and 4 were estopped from disputing the relationship of landlord and tenant either between the plaintiff and defendants 1 and 2 or between the plaintiff and defendants 3 and 4. Further, despite having filed the written statement, defendants 3 and 4 did not chose to either cross-examine PW- 2 nor did they adduce any evidence in support of their defence and consequently, the Court below committed a grave and serious error of law, fact and jurisdiction in not properly appreciating the entire material on record and this resulted in miscarriage of justice. The learned Senior counsel would contend that the impugned judgment and order passed by the Court below being perverse and opposed to the facts and probabilities of the case, the same requires interference by this Court.

15. I have given my anxious consideration to the rival submissions made by the learned Senior counsel for the petitioner and perused the material on record.

16. As rightly contended by the learned Senior counsel, a perusal of the written statement filed by defendants 3 and 4 in the suit which is the only defence put forth by them as against the claim made by the plaintiff would indicate that they have categorically and unambiguously admitted that they were the tenants under defendants 1 and 2. In the written statement, they have also admitted that defendants 1 and 2 took the premises on lease from M/s.United Construction Company who in turn had taken the premises on lease from the plaintiff for the purpose of putting up construction of the building comprising of the suit schedule premises also.

17. Section 116 of the Indian Evidence Act reads as under:-

116. Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person n possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

18. Having regard to the averments made in the written statement, coupled with the principles contained in Section 116 of the Act, it is clear that having admitted their tenancy under defendants 1 and 2 in respect of the suit schedule premises, the defendants 3 and 4 are estopped from denying the relationship of landlord and tenant between the plaintiff and defendants in respect of the suit schedule premises. In fact, defendants 3 and 4 are also estopped from denying the right, title and interest of the plaintiff in respect of the suit schedule premises by virtue of the provisions contained in Section 116 of the Act.

19. This admission made by defendants 3 and 4 in their written statement is sufficient to entail an order of eviction as against them. As rightly contended by the learned Senior counsel, the unimpeached, unchallenged and uncontroverted evidence of PW2 and the documentary evidence at Exs.P1 to P11 clearly establishes that there exists the jural relationship of landlord and tenant between the plaintiff and the defendants.

20. The Court below has clearly misdirected itself in coming to the conclusion that the plaintiff does not have title over the suit schedule premises, in as much as the Court below has misr

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ead, misconstrued and misinterpreted the unimpeached oral and documentary evidence on record without appreciating that no rebuttal evidence has been adduced by the defendants. The material on record clearly establishes that the plaintiff had successfully proved not only its title over the suit schedule premises but also the relationship of landlord and tenant between the plaintiff and the defendants as well as the termination of tenancy of the defendants in respect of the suit schedule premises by issuance of notice dated 16.06.2007 coupled with the other surrounding circumstances narrated above. 21. A perusal of the material on record clearly establishes that the Court below has acted illegally and with material irregularity in exercise of its jurisdiction in dismissing the suit filed by the plaintiff and the same calls for interference at the hands of this Court. 22. Hence, I pass the following order:- (i) The civil revision petition is hereby allowed. (ii) The impugned judgment and order dated 09.02.2016 passed by the Court below is hereby set aside. (iii) The suit of the petitioner-plaintiff stands decreed with costs throughout. (iv) The respondents-defendants are directed to vacate and hand over possession of the schedule premises to the petitioner plaintiff within a period of 1 (one) month from today.
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