Maniram Industrial Enterprises Repr. by Its General Manager Mrs. A.S. Subramanian Vs. B.S. Sathya Kumar S/O Lt. B.R. Sreeram, Prop. Sreerama Cottage Industries - Court Judgment

V. Gopala Gowda, J.

1. In these two appeals the respondent is the landlord/plaintiff and appellant is the tenant/defendant. The petition schedule premises were rented-out to the tenant by the father of the plaintiff. The parties are common. Hence, both these appeals have been heard together at the stage of admission at the request of the learned Counsel for the parties and are disposed of by this common judgment.

2. The landlord filed two ejectment suits against the tenant in O.S. Nos. 1799/2001 and 8451/2002 in respect of the schedule premises respectively and after contest, the same have been decreed by the trial Court by the judgments and decrees under these appeals. The tenant has assailed the legality and correctness of the same by urging various grounds. The legal contentions urged on behalf of the tenants will be dealt with separately.

3. During the pendency of these appeals, applications have been filed. I.A.I/2005 for producing additional documents, I.A.III/2005 for amendment of written statement, I.A.IV/2005 for raising additional grounds, I.A.V/2005 again for production of additional documents, I.A.VI/2005 for production of additional evidence in the first Appeal. Another application is also filed for amendment of written statement in the original suit in respect of which first Appeal is filed by the tenant. In support of these applications, the learned Counsel Mr. N.K. Gupta, for the appellants/tenants relied upon the following decisions:

1. 2004(2) SC 706, 2. ILR 2006 KAR 4337 3. 2004 SCW 4422, 4. : AIR1978All66 :

The plaintiff/landlord has filed objections to the applications. Opposing the applications, Mr. Ravi Kumar, learned Counsel for the tenant has relied upon the following decisions:

1. AIR 1978 SC 799, 2. AIR 1970 SC 42 3. : AIR1986Kant109 , 4. ILR 1986 Karnataka 18, 5. ILR 2001 Karnataka 3060:

In order to determine the real controversy between the parties, the above applications are allowed and the additional plea in the written statement and additional grounds urged in the First Appeal is also examined and considered in answering the rival legal contentions urged on behalf of the parties.

4. The tenant has questioned the locus standi of the plaintiff for filing the suits. According to the tenant, there is no relationship of landlord and tenant between the parties. The stand taken by the tenant is wholly untenable and is liable to be rejected. It is pertinent to note that the tenancy of the tenant in respect of the suit schedule properties is not in dispute. Originally, the father of the plaintiff was the owner. After his death the plaintiff became the owner of the suit schedule properties. The tenant has produced modified lease deed along with I.A.I/2005 to show that the tenancy is with plaintiff's father and that plaintiff has no right to file suit for ejectment. Plaintiff's father expired on 28-8-2000. Thereafter, as per the family arrangement that took place on 28-9-2000 the plaintiff became the owner of the suit schedule premises. Accordingly, katha had been changed in his name. After the death of plaintiff's father, the tenant paid rents to the plaintiff through account payee cheques. Even the mother of plaintiff who is examined as PW-2 has supported the case of the plaintiff. The brothers and sisters of the plaintiff, who were examined as PWs 3 to 7 also stated that in the family arrangement the suit schedule properties gone to the share of the plaintiff. That apart, since the tenant paid rents to the plaintiff, the plaintiff will be the landlord under Section 109 of Transfer of Properly Act. In view of all these, it is not open for the tenant to contend that plaintiff has no locus stand to file the suits for ejectment against the defendant/s in the suits.

5. The next aspect to be considered is, whether the notice got issued by the plaintiff father in the original suit, in respect of which first Appeal is filed, terminating the tenancy of the defendant in the suit in respect of the schedule property covered in the suit is valid?. It is seen from the judgment in the connected appeal that the tenant has admitted service of notice as per Ex. P-4 and the same has been replied as per Ex.P-17. In respect of the first appeal, Plaintiffs father got issued legal notice dated 2-6-2000 as per Ex.P-6. But, the notice returned unserved with share 'not claimed'. The above said postal endorsement is sufficient to hold that the notice is served upon the defendant, as she has not proved that the endorsement made upon the unserved notice cover is not correct. However, the notice issued under Certificate of Posting is served. Exs.P9 and P-10 are the postal receipts for having sent the notice under Certificate of Posting. I have carefully examined the additional documents produced in the first Appeal to show that the residential address of the defendant is at Malleshwaram as described in the above documents. Therefore, the contention that notice sent to the defendant to the other address other than Malleshwaram is not served, cannot be accepted. The defendant has received notice in respect of the other property covered in O.S No. 8541/2002 and sent the reply notice. Further the plaintiff has produced documentary evidence to show that the defendant was residing in the address to which the plaintiffs father got issued Ex.P6. In this view of the matter, I am of the firm view that the additional documents produced by the defendant do not support the contention to set aside the finding recorded by the learned trial judge that the notice Ex.P6 was duly served upon the defendant. In fact, the trial court after careful examination of legal evidence has rightly answered the contention in favour of the plaintiff and therefore the same cannot be interfered with.

6. Even according to the modified agreement of lease dt. 26/3/1980 the defendant is not entitled to continue in occupation as a lessee after expiry of 5 years period from that date. The stand of the defendant is that in view of Clause-II of the agreement the defendant was entitled to continue tenancy by paying 20% enhanced rent on Rs. 1440/- p.m after completion of every 5 years. This contention is wholly untenable for the reason that neither the plaintiffs father nor the plaintiff have agreed for further extension of lease period. Since the tenancy is determined by issuing notice, defendant has no right to continue in occupation. That apart, a tenant has no right to continue in occupation of tenanted premises for ever by paying enhanced rent periodically. Landlord can exercise his right to terminate the tenancy in accordance with law. The contention is also wholly untenable in view of the decision of the Apex Court reported in ILR 2005 KAR 3587 (SC) in the case of Shanti Prasad Devi and Anr. v. Shankar Mahto and Ors. The trial Court considered all these aspects and applied the law laid down in : AIR1988All305 wherein it is held that a son can maintain suit for ejectment on the basis of the notice issued by his father. In another decision reported in : [1990]3SCR825 the Apex Court has held that on the basis of the notice issued by the landlord the beneficiary successor can maintain suit for ejectment. In yet another decision reported in AIR 1977 Bombay 181, it is held that the legal notice issued by the landlord enures to the benefit of the successor. This Court in ILR 2003 Karnataka 3871 has held that in view of the definition of 'landlord', eviction petition need not be filed by owner himself. In yet another decision reported in ILR 2001 Karnataka 3300 it is held that in respect of family arrangement, there is no transfer of property within the meaning of Section 5 of Transfer of Property Act and hence notice of attornment is not necessary. The trial Court, applying the legal principles enunciated in the aforementioned decisions, has rightly held that there was valid notice as required under Section 106 of the Transfer of Property Act in terminating the tenancy and the Original Suit No. 1799/2001 filed by the plaintiff was maintainable in law.

7. On the basis of the additional pleadings, another contention raised by the tenant is that the institution of suits by arraying the firm not represented by its proprietary as a party defendant but representing the firm by its General Manager is bad in law. This contention of the Appellant/defendant is liable to be rejected in the light of the admitted facts. DW-1 who has been examined in the case has admitted that the tenant M/s. Maniram Industrial Enterprises belongs to his wife Smt. Parvathi Subramanyam and that he is handling and looking after its business and management. He got replied to the legal notice issued by the plaintiff determining the tenancy in respect of the schedule premises pertaining to other suit in O.S. No. 8451/2002 out of which the connected appeal has arisen. DW-1 also admitted that the lease agreement was entered into by him with the plaintiffs father on behalf of the defendant. The correspondence between the parties in relation to the schedule premises in respect of both the suits clearly establish the fact that the General Manager of the defendant (DW-1) is entirely managing and looking after the affairs of the defendant's concern. Even these appeals are also filed by him representing the defendant as its General Manager. It was he who used to pay the rents to the plaintiff in respect of the schedule premises. Therefore, it is not open for the tenant to contend at this stage that the suits as filed impleading defendant represented by its General Manager are not maintainable. The General Manager is none other than the husband of the proprietary of the defendant's concern. In fact he had signed the lease deeds representing the defendants as General Manager and he got issued the reply notice to the plaintiff to the notice of termination of the tenancy in respect of the schedule premises covered in the original suit No. 8451 /2002.

8. After termination of the lease, since the tenant has not vacated the suit schedule premises, the plaintiff filed the suits for ejectment of the defendants and rightly the trial Court decreed the suits after answering the contentious issues in favour of the plaintiff in the impugned judgments by recording valid and cogent reasons, which findings of fact are accepted by me in these Appeals, as the same are based on proper appreciation of legal evidence on record. The trial Court also rightly ordered for payment of damages by the defendants to the plaintiff towards the occupation charges for the schedule premises as they have continued in unauthorized occupation in respect of the schedule premises in both the suits and defendant has failed to discharge her statutory duty as provided under Section 108(q) of the Transfer of Property Act by not handing over the vacant possession of the schedule premises to the plaintiff even after termination of tenancy in respect of the schedule premises. Therefore, no fault can be found with the same by this Court.

9. An alternative prayer is made by the appellants counsel in both the appeals that if, the appeals are to be dismissed, reasonable time may be granted to the tenant for vacating and delivering vacant possession of the suit premises to the plaintiff. The said request is seriously opposed by the learned Counsel for the plaintiff contending that defendant is not entitled for the same as she has got number of alternative premises, to which she can shift her establishment. It is seen that proceedings were initiated by the plaintiff for ejectment of the tenant way back in the year 1989 by filing House Rent case under the provisions of repealed Karnataka Rent Control Act of 1961, and the same was dismissed as not maintainable in law. Thereafter the suits were filed by the plaintiff for ejectment against the defendant in respect of the schedule premises. The tenant is doing business in the schedule premises. Taking into consideration all these factors, I feel that ends of justice would be met if some reasonable time is granted to the tenant.

10. For the reasons stated above, the appeals are dismissed as devoid of merit The tenant is granted six months time to vacate and deliver vacant possession of the premises to the plaintiff. Time is granted subject to payment of occupation charges/means profits awarded in the impugned judgments by the trial court and also filing an Affidavit within one week undertaking to vacate the schedule premises within the stipulated period.