IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.808/2010 BETWEEN:
1. SRI B.S. SUNAG S/O SRI B.S. SRINIVASA MURTHY AGED ABOUT 27 YEARS NO.44, 1ST CROSS, KALIDASA ROAD, JAYALAKSHMIPURAM MYSORE-570 012 2. SMT. NAGALAKSHMI B.S., MAJOR W/O SRI B.R. SANJEEVAMURTHY I MAIN, JAYALAKSHMIPURAM MYSORE-570 012 3. SMT. THEJAVATHI MAJOR W/O SRI B.R. VISWANATH I MAIN, JAYALAKSHMIPURAM MYSORE-570 012 4. SMT. SUMATHISHRI MAJOR W/O LATE M.G. SRINATH BAZAR STREET T. NARASIPURA MYSORE-571124 5. SRI M.V. NAGARAJASETTY MAJOR S/O SRI M.S. VISVESWARA SETTY BAZAR STREET T. NARASIPURA, MYSORE -571124 6. SRI M.C. MOHAN KUMAR, MAJOR S/O SRI B.A CHANDRASHEKARA SHETTY, BRIGADE ROAD, HUNSUR-571 602 (BY SRI Y.K. NARAYANA SHARMA & SRI Y.V. PRAKASH, ADVOCATES) AND:
ALLAHABAD BANK REPRESENTED BY ITS MANAGER RAMAVILAS ROAD DEVARAHA MOHALLA MYSORE-570 001 (BY SRI R.S. RAJESH, ADVOCATE) ..APPELLANTS ..RESPONDENT THIS RSA IS FILED UNDER SECTION 100 R/W ORDER XXXXI, RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:15.06.2005 PASSED IN R.A.No.3/2003 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.), MYSORE, DISMISSING THE APPEAL & CONFIRMING THE JUDGMENT AND DECREE DATED:09.10.2002 PASSED IN O.S.NO.56/99 ON THE FILE OF THE III ADDITIONAL I CIVIL JUDGE (JR. DN.), MYSORE.
THIS APPEAL COMING FOR DICTATING JUDGMENT ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the Judgment and decree passed in R.A. No.3/2003 on the file of Principal Civil Judge, Senior Division, and CJM, Mysore, renumbered as R.A. No.702/2009 wherein appeal came to be dismissed with cost confirming the Judgment and decree dated 09.10.2002 passed by the III Additional I Civil Judge, Junior Division, Mysore and order dated 27.11.2009 passed on I.A.No.4 by the IV Additional District Judge, Mysore in R.A.3/2003 rejecting the review petition filed under Order 47, Rule 1 of C.P.C.
2. In order to avoid confusion and overlaps the parties are referred to in accordance with the ranks held by them before the trial Court.
3. The appellants are the plaintiffs. It is claimed that the plaintiffs are the owners of the property bearing registration No.552, 552/1 and 646 situated at Gaadi Lakkanna Lane, Devaraja Mohalla, Mysore. The defendant -M/s. Allahabad Bank was the tenant in the schedule property on a monthly rent of Rs.3,000/-. The nature of lease was said to be non- residential. Due to requirement and other necessities of the schedule property, the plaintiffs filed original suit in O.S. No.56/1999 on the file of the III Additional I Civil Judge, Junior Division, Mysore for eviction of the defendant from the schedule property and for mesne profits. The matter was contested. The original suit No.56/1999 was decreed on 09.10.2002. The defendant-Allahabad Bank was ordered to vacate and deliver the possession of the schedule property to the plaintiffs within three months. The matter was further fought in RA No.3/2003, which is the appeal preferred by the defendant. Now, as the matter was silent in the judgment insofar as the mesne profits are concerned, the plaintiffs preferred a cross-appeal in the said Regular Appeal No.3/2003 that was preferred by the defendant, on the file of the Principal Civil Judge (Sr.Dn.), Mysore, against the decree dated 15.06.2005. Thus there came to be two appeals; one by the defendant and the other by the plaintiffs. As the defendant preferred an appeal against the decree directing him to deliver possession, regard being had to the fact that the plaintiffs also preferred an appeal for non-ordering of mesne profits. The appeal preferred by the defendant came to be dismissed, however, there was no order regarding the disposal of the cross appeal which was preferred by plaintiffs. It is also brought to the notice of the court that the plaintiffs being aggrieved by the incomplete order by the trial Judge preferred a petition under Order 47, Rule 1 of CPC seeking review of the order. However, same was rejected to quantify the damages at Rs.3,000/- but no specific order is passed in this connection and same was registered as I.A.No.4. I.A.No.4 filed by the plaintiffs under Order 47, Rule 1 of C.P.C. came to rejected.
4. The learned counsel Sri Y.K. Narayana Swamy appearing for the plaintiffs would submit that the matter regarding mesne profits in the trial Court invariably requires adjudication and though the appeal was dismissed in R.A. No.3/2003, the plaintiffs did not get their dues due to irregularities in the judgment. Learned counsel would further submit that the adjudication of mesne profits is also main matter in a suit for eviction by the landlord.
5. Learned counsel Sri R.S.Rajesh, appearing for the defendant would submit that the plaintiffs are already comfortable with the order of eviction passed against the defendant.
6. Learned counsel would further submit that in case Bank is ordered to pay mesne profits, it would suffer irreparable loss and hardship and it was the intention of the trial Court that the plaintiffs are not entitled for mesne profits.
7. In the circumstances of the case, the matter is simple. It is a typical suit for eviction of defendant filed in O.S. No.56/1999. As the Karnataka Rent Control Act, 1961 is not applicable to the case on hand as the nature of lease is for non-residential purpose i.e. to carry out banking operation and activities by virtue to Section 31 of Karnataka Rent Control Act 1961. The filing of suit seeking eviction of a tenant in the rented property coming under the provisions of Karnataka Rent Control Act 1961. The defendant was ordered to vacate by decree passed in O.S. No.56/1999, wherein the operative portion is as under:
“The suit of the Plaintiffs is decreed with cost.
The defendant is hereby directed to vacate and hand-over vacant possession of the suit schedule property in the name and favour of the plaintiffs within 3 (three) months from the date of this order.
The plaintiffs are entitled for rent from the date of termination of tenancy till the date of handing-over the vacant possession of the suit schedule property in the name and favour of the plaintiffs herein.”
8. On careful reading of the operative portion of the judgment passed by the trial Court, it is clear that, the learned Judge has decreed the suit, directed the defendant to vacate and hand-over possession within three months from the date of order. Incidentally, there is no order as to the grant of mesne profits. As provided under Order XX Rule 12 of the Code of Civil Procedure so long the tenancy is in force the relationship between the landlord and tenant would be contractual. Once a tenant/lessee on termination of tenancy/lease transforms into a person in occupation of the then leased property and who is liable to pay damages for his occupation without authority.
9. Thus, the basic principle is when once the lessor files the suit for eviction as happened in this case after terminating the tenancy, the duty to pay rents comes to grinding halt the moment termination of tenancy takes place. However, the rent payable by a person in unlawful occupation of the property is termed as “damages”. It is further necessary for the court to determine the damages payable by the person in unlawful occupation of the property for having derived the utility of staying in the late tenanted property and as the periodical payment is not agreed upon. Enquiry would be necessary as contemplated under Order XX Rule 12 of Code of Civil Procedure. Here in the case on hand the learned Judge has unnoticed the said fact and requirement of law and passed the Judgment to evict the defendant in simplicitor. Order of eviction of schedule property was brought to the notice of the court by both the learned counsel. Fact remains that the operative portion of the Judgment as stated above lacks adjudication under Order XX Rule 12 of CPC filed for enquiry.
10. It was open to the trial Judge to quantify the damages if the same was available and same could have been done from the available materials consisting of oral and documentary evidence. Having chosen to not to determine the same there is no order regarding enquiry. In the process the plaintiffs was made to prefer the appeal with the exclusive prayer for enquiry.
11. Learned counsel for respondent-defendant would submit that the matter has been adjudicated and that plaintiff is not entitled for the relief.
12. Adding to the irregularity the learned first appellate Judge has stopped the disposal at the precise time of ordering dismissal and there is no whisper regarding ordering for enquiry. The learned trial Judge also erred in not ordering enquiry nor determining damages.
13. But surprisingly learned first appellate Judge does not whisper the conclusion on the cross appeal filed by plaintiffs regarding enquiry.
14. This is a serious lapse. The cross appeal has all the legal efficacy to that of main appeal literally respondents are appellants and they are entitled for proper adjudication of the appeal preferred by them in the form of cross objection or counter appeal. The observation of learned appellate Judge regarding the entitlement of the plaintiffs being limited to collection of rent does not appear to be proper and suitable. Learned Judge has committed mistake in applying the basic law regarding adjudication of the matter and sustenance of said order cannot be allowed to run longer and liable to be set aside.
Accordingly I proceed to pass the following:
ORDER Appeal is allowed.
The Judgment and decree passed by the learned first appellate Judge in R.A.No.3/2003 renumbered as R.A.No.702/2009 with connected cross appeal is hereby declared as incomplete insofar as not ordering enquiry. In the result the learned first appellate Judge is hereby directed to adjudicate the matter regarding enquiry as contemplated under Order XX Rule 12 of Civil Procedure Code and to determine the damages payable by the respondent-Bank.
Considering the lapse of time, disposal shall be completed within a period of 150 days from the date of first hearing.
In order to avoid wastage of judicial time both the parties are hereby directed to appear before the trial court on 03.06.2019.
Send back the records.
Sd/- JUDGE SBS/SBN