IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No.42869/2016(GM-CPC) BETWEEN:
1. Dr. Padmavathy B.N., W/o Shri. B.M.Prakash Aged about 48 years.
2. Shri. B.M.Prakash S/o Shri. Maraiah Aged about 42 years.
Both R/at No.1057, 50Ft. Main Road, Kumaraswamy Layout 1st Stage, Bangalore-560 078.
(By Sri S.R.Muralidhar, Advocate) AND:
1. Dr.H.Moodalagiriyappa S/o late Hanumanthappa Aged about 74 years.
2. Smt. N.Dharmavathi W/o Dr.H.Moodalagiriyappa Aged about 66 years …Petitioners Both R/at No.5, Dharmagiri Raghavendra Layout, Gubbalala, Uttarahally Hobli, Subramanyapura Post, Bangalore-560 061.
3. Shri. T.K. Sadashivanayak S/o Shri. T.K.Krishnanayak Aged about 37 years R/at. No.104, ‘Valmiki Nilaya’ Maruthi Extn, Malur, Malur Tq. Kolar District-563 130.
4. Dr.Nematullah M., S/o Shri. Mehboob Alam Aged about 35 years R/at No.370, 11th Cross Iliyasnagar, J.P.Nagar Post Bangalore-560 078.
5. Shri. Syed Ahmed S/o late Syed Abbas Aged about 35 years R/at No.13/16, Kanakanagar Main Road Yelchenahally, J.P.Nagar Post Bangalore-560 078.
6. Dr.Hanumanthachari Aged about 65 years R/at No.892/A, 3rd Cross, Ashoknagar, BSK 1st Stage, 2nd Block, Bangalore-560 050.
7. M/s. S.R.Hospital No.1525/1526, 14th Main Road Kumaraswamy Layout 1st Stage Bangalore-560 078.
Rep. by its Partners.
…Respondents (By Sri H.V.Harish, Advocate for Caveator/Respondents Nos.1 and 2;
Notice to R-3 to R7 dispensed with vide order dated 30.5.2017) This writ petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 20.6.2016 passed by the learned Civil Judge, City Civil Court at Bangalore on IA No.3 in OS.No.2829/2014 vide Annexure-G.
This writ petition coming on for preliminary hearing, this day, the Court made the following:-
O R D E R Heard Sri Muralidhar S.R., learned counsel appearing for petitioner and Sri Harish H.V., learned counsel appearing for Caveator-respondents 1 and 2.
2. Since no order adverse to the interest of respondents 3 to 7 is being passed and prayer sought for by the petitioner before trial Court was only against respondents 1 and 2, there is no necessity for issuing notice to respondents 3 to 7. Hence, notice to respondents 3 to 7 stands dispensed with.
3. Petitioners had obtained the suit premises on lease from first respondent under a lease deed dated 14.12.2011- Annexure-‘A’ agreeing thereunder to pay rent @ Rs.35,000/- per month initially and with effect from 1.6.2012 @ Rs.40,000/- per month. First respondent herein after issuing notice of termination to the defendants by terminating the tenancy, filed the suit in question for ejectment and for recovery of arrears of rent/damages together with interest at 24% per annum till the date of filing of the suit and also sought for a decree against defendants to pay a sum of Rs.75,000/- per month as damages for use and occupation of the suit schedule premises.
4. On service of suit summons, defendants 1 and 2 have appeared, contested the matter by filing written statement – Annexure-D and during the pendency of the suit plaintiff i.e. first respondent herein filed an interlocutory application – IA No.3 –Annexure-E seeking for a direction to defendants 1 and 2 to pay arrears of rent/damages from June 2013 till May 2014 at the rate of Rs.44,000/- per month amounting to Rs.5,28,000/- and from June 2014 till September 2014 at the rate of Rs.48,400/- per month amounting to Rs.1,93,600/- in all Rs.7,21,600/- and for a further direction to the defendants 1 and 2 to pay admitted rent till handing over vacant possession of the suit schedule premises. This application came to be opposed by defendants 1 and 2, denying the contents thereof and also denying that the termination of tenancy as improper amongst other grounds. Trial Court by the impugned order dated 20.6.2016 – Annexure-G allowed the application in part and directed the defendants 1 and 2 to pay rents to the plaintiffs from October 2012 till the date of order @ Rs.35,000/- per month by rejecting the claim of the plaintiffs to pay enhanced rent and also noticing that rental agreement itself indicate the rate of rent per month as Rs.35,000/-. Being aggrieved by the same, defendants 1 and 2 have filed this writ petition.
5. It is contention of Muralidhar, learned counsel appearing for petitioners that very termination of the tenancy is contrary to clause-11 of the rental agreement dated 14.12.2011, since said clause does not enable the plaintiff-landlord to terminate the tenancy till completion of five years from the date of agreement and only in the event of defendants 1 and 2 are incapable of running the hospital for complete five years, then only the tenancy can be terminated by respondents 1 and 2/plaintiffs. Hence, it is contended that the termination is improper.
6. Per contra, Sri Harish H.V. learned counsel appearing for Caveator-respondents 1 and 2 would not only support the impugned order, but would contend that the termination of tenancy is proper. He would contend that defendants 1 and 2 had entered into a lease agreement with plaintiffs and under the guise of some interse disputes between defendants 1 and 2 on the one hand and defendants 3 to 7 on the other hand. Rents have not been paid from June 2013 and defendants have not been running the hospital and it is kept under lock and key. As such he prays for rejection of the writ petition.
7. Having heard the learned Advocates appearing for the parties and on perusal of the records, the rental agreement produced at Annexure-A, it would prima facie indicate that tenancy was created by the landlord in favour of defendants 1 and 2 i.e. writ petitioners in respect of suit schedule property, whereunder the defendants 1 and 2 have taken the said property on lease agreeing thereunder to pay rent @ Rs.35,000/- per month up to 31.5.2012 and Rs.40,000/- per month from 1.6.2012 onwards. Merely because defendants 1 and 2 have entered into an internal arrangement with defendants 3 to 7 and there is a dispute between them, does not absolve defendants 1 and 2 from payment of rent. Though it is contended by Mr.Muralidhar that partnership firm was paying rent, it cannot be accepted since this was not the plea raised either before trial Court. No material was placed in that regard to substantiate said claim. On the contrary, recitals in the rental agreement clearly discloses that it is defendants 1 and 2 i.e. writ petitioners who are required to pay rent since they have obtained the suit schedule premises on lease. Hence, trial Court has recorded a finding that defendants 1 and 2 are liable to pay rent. It is also noticed by the trial Court that on account of tenancy having been terminated, defendants would be liable to pay damages for use and occupation of the suit schedule premises. Either on account of interse dispute between defendants 1 and 2 and defendants 3 to 7 or for any other reason defendants 1 and 2 cannot heard to contend that they would not be liable to pay the rent or damages for use and occupation of the suit schedule premises. This Court would not embark upon conducting any enquiry with regard to the termination of tenancy, inasmuch as, any such exercise undertaken by this Court would definitely prejudice the rights of the parties in the pending suit. Hence, in the interest of both the parties it would be appropriate to leave that question to be adjudicated by the trial Court itself.
8. On prima-facie material placed by the parties and particularly the lease deed dated 14.12.2011 which discloses that writ petitioners had obtained the suit schedule premises on lease from the plaintiffs i.e. respondents 1 and 2 and trial Court has rightly allowed IA No.3 in part and has directed defendants 1 and 2 to pay rent/damages @ Rs.35,000/- per month from October 2012 till date which would be Rs.17,50,000/- (Rs.35,000x50 months as on 31.5.2017). Neither the rent/damages have been paid by defendants 1 and 2 nor they have vacated the suit schedule premises. As such, they cannot be heard to contend that they would squat on the property without paying rent/damages for its use and occupation till dispute with defendants 3 to 7 is resolved.
9. In the light of aforestated discussions this Court is of the considered view that trial Court was fully justified in allowing IA No.3.
Hence, the following ORDER (i) Writ Petition is hereby dismissed.
(ii) Order dated 20.6.2016 passed in O.S.No.2829/2014 – Annexure-G by the 25th Additional City Civil and Sessions Judge, Bangalore is hereby affirmed.
(iii) Trial Court is directed to dispose of the suit expeditiously at any rate within three months from the date of receipt of certified copy of this Order.
(iv) Both the parties are directed to co-operate with the trial Court and in the event of either of the parties were to seek for an adjournment without offering any justifiable cause to the satisfaction of the Court, it would be at liberty to regulate its proceedings by imposing costs if necessary on such of the parties who seek for adjournment by keeping in mind Order 17 of CPC.
Ordered accordingly.
Sd/- JUDGE *ap/-