IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.2216 OF 2006 BETWEEN 1. Sri. D.G.Ramusa, S/o. Sri. D.Gangadarsa, Since dead by LRs 1(a). D.R.Gajendra, S/o. Late D.G.Ramusa, Aged about 42 years, R/at No.25/1, Sourastrapet, Akkipet Cross, Bengaluru-560003.
1(b). D.R.Prakash, S/o. Late D.G.Ramusa, Aged about 40 years, R/at No.25/1, Sourastrapet, Akkipet Cross, Bengaluru-560003.
1(c). Smt. Tanuja, W/o. Krishna, D/o. Late D.G.Ramusa, Aged about 38 years, R/at No.31, 7th Cross, B.M.Layout, Bengaluru-75.
1(d). Smt. Geetha, W/o. Nithyananda D/o. Late D.G.Ramusa, Aged about 36 years, R/at No.2 1st Cross, C-street, Opposite BOSCO, Magadi Road, Bengaluru-560023.
1(e). D.R.Kiran, S/o. Late D.G.Ramusa, Aged 30 years R/at No.25/1, Sourastrapet, Akkipet Cross, Bengaluru-560005.
1(f). Smt. Latha, W/o. Ravi Kiran, D/o. Late D.G.Ramusa, Aged about 26 years, R/at No.12, 1st Floor, L.V.Temple Street, OTC Road, Balepet, Bengaluru-560053.
1(g). D.R.Hari, S/o. Late D.G.Ramusa, Aged about 24 years, R/at No.25/1, Sourastrapet, Akkipet Cross, Bengaluru-560003.
1(h). D.R.Arjun, S/o. Late D.G.Ramusa, Aged about 22 years, R/at No.25/1, Sourastrapet, Akkipet Cross, Bengaluru-560003.
1(i). Smt. Honnamma, W/o. Late D.G.Ramusa, Aged about 60 years, R/at No.25/1, Sourastrapet, Akkipet Cross, Bengaluru-560003.
(Cause title amended as per Order dated 09.04.2008) (By Sri. Mohamed Nasiruddin, Advocate) AND K.V.Marutisa, S/o. K.H.Venkusa, Aged about 66 years, Residing at No.1, 2nd Floor, II Cross, A.M.Lane, BVK Iyengar Road Cross, Bengaluru-560053.
(By Sri Y.S.Shivaprasad, Advocate) …Appellants …Respondent This RFA is filed under Section 96 of CPC against the judgment and decree dated 29.07.2006 passed in O.S.No.1239/2005 on the file of the III Additional City Civil Judge, Bengaluru (CCH-25), partly decreeing the suit for ejectment.
This RFA coming on for orders this day, the court delivered the following:
JUDGMENT The III Additional City Civil Judge, Bengaluru (CCH no. 25) by his judgment dated 29.7.2006 in O.S.1239/2005 held that the plaintiff in the said suit was entitled to recover possession of the plaint schedule property from the defendant who was given six months time to vacate the premises. Aggrieved by this judgment, the defendant has preferred this appeal. Briefly stated the facts are as follows:-
2. The plaintiff claiming to be the landlord of property bearing no. 1, 1st Floor, 2nd Cross, A.M.Lane, B.V.K.Iyengar Road, Bengaluru, measuring East to West 20 feet and North to South 17 feet (for short referred to as ‘plaint schedule property’) instituted the suit for evicting the defendant. The plaintiff stated that the defendant occupied the plaint schedule property as a tenant on initial rent of Rs.2,800/-. The rent was enhanced periodically and Rs.3,000/- rent was being paid by the defendant at the time of institution of the suit. He stated further that the defendant became irregular in paying the rent. In spite of repetitive demands, the defendant did not pay the rent and therefore got issued a legal notice to the defendant and demanded of him to quit and deliver vacant possession of the plaint schedule property to him. In addition the plaintiff also claimed damages at the rate of Rs.6,000/- per month from date of termination of tenancy till date of decree.
3. Defendant in his written statement admitted that he is the tenant of the plaintiff. He stated that he occupied the plaint schedule property on 25.3.1996. It was the plaintiff’s father who leased the property to him, but the agreement of lease was executed by the plaintiff in the capacity of general power of attorney holder of his father. He admitted the rate of rent, but contended that he had paid security deposit of Rs.50,000/- and goodwill of Rs.2,50,000/-. He denied that he became defaulter in payment of rent and also denied to have received the notice.
4. Based on the pleadings, the trial court framed the following issues : -
1) Whether the plaintiff proves the existence of relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit schedule Property?
2) Whether the plaintiff further proves that the plaintiff legally and validly terminated the tenancy of the defendant in respect of suit schedule Property?
3) Whether the plaintiff is entitled to recover damages by way of mesne profits at the rate of Rs.6,000/- per month from the date of termination of tenancy till delivery of vacant possession of the schedule property by the defendant?
4) Whether the plaintiff is entitled to the reliefs as sought?
5) What decree or order?
5. Plaintiff examined himself as PW1 and produced 9 documents as per Exs. P1 to P9. The defendant also examined himself as DW1 and did not produce any document. After assessing the evidence, the trial court answered issues 1 and 2 in affirmative and 3 in negative. Actually the controversy is with regard to service of notice covered under issue no.2. With regard to issuance of termination of notice, the trial court has held that notice as per Ex.P1 was sent to the defendant through certificate of posting and registered post. The trial court has presumed there was service of notice on the defendant. It has assigned the reason that the plaint schedule property is situated within a distance of 1 km from the post office and therefore notice must have been served on the defendant in the ordinary course within three days. On issue no.3, the trial court held that the plaintiff has not paid the court fee on that relief and therefore claim for damages was disallowed answering issue no.3 in negative.
6. Learned counsel for the appellants mainly argues two points. Firstly that the trial court has not answered all the issues as required under Order XX Rule 4 of CPC. In this regard he has placed reliance on the judgment of this court in Mahaboob Saheb vs V. Anjaneyulu [1973 (2) Mys. L.J 91] and also two judgments of the Supreme Court in Mohammad Mustafa vs Sri Abu Bakar and Others [AIR 1971 SC 361] and U.Manjunath Rao vs U.Chandrashekar [Civil Appeal no. 9951/2017]. The second point he argued was with regard to service of notice on the defendant/appellant. He referred to one answer given by PW1 in the cross-examination and argued that according to the admission given by PW1, the address was incomplete and therefore drawing presumption with regard to service of notice was improper. He also argued that from Ex.P4 itself it can be seen that the registered post was returned without service on the defendant. This being the case, the trial court should not have drawn presumption that there was due service of notice on the defendant. He also referred to the evidence given by PW2 to argue that from his evidence also conclusion can be drawn that there was no service on the defendant. On this point he referred to the judgment of the Supreme Court in the case of The State of Mysore vs K.Manche Gowda [AIR 1964 SC 506]. Therefore, he submitted that the judgment of the trial court does not stand to reason. There is a case for remand by allowing the appeal.
7. On the other hand, the counsel for respondent/plaintiff argued that the address written on the postal cover is not disputed. The shara written by the post man shows that intimation was delivered to the defendant to come and collect the mail from the post office. Defendant did not go to the post office. Notice was also sent through certificate of posting. In these circumstances, the trial court was justified in applying section 114 of the Evidence Act to draw presumption with regard to service of notice on the defendant. He also argued that the trial court has answered all the issues. He has placed reliance on many authorities which are not necessary to be referred here.
8. I have considered the arguments and perused the lower court records.
9. With regard to the first point of argument that the trial court has not answered all the issues, it has to be stated that perusal of the judgment indicates that the trial court has answered all the issues separately. Since the relationship of landlord and tenant is not disputed, the trial court has not discussed this issue and in para 5 of the judgment it is simply held that issue no.1 is answered in the affirmative. Paragraphs 6 to 9 deal with discussion of issue no.2. In para 9, conclusion on issue no.2 can be seen. Likewise para 10 deals with discussion on issue no.3. Therefore, without there being need to refer to the authorities cited by the appellants’ counsel on this point it can be held that this argument of the learned counsel for the appellants cannot be accepted.
10. Then arises the question whether there was due service of notice on the defendant for termination of tenancy. It is true that the learned trial judge has just drawn a presumption giving reason that the plaint schedule property is situated at a distance less than 1 km from the Post Office and therefore the notice must have been served on him. This is not the way of giving answer with regard to service of notice. If the evidence on this aspect is re-appreciated it is seen that the plaintiff who adduced evidence as PW1 has stated that he got issued a notice to defendant as per Ex.P1. It was sent by registered post acknowledgement due as also certificate of posting. Ex.P2 is the postal receipt, Ex.P3 is the certificate of posting, Ex.P4 is the notice enclosed in the undelivered postal cover. Ex.P4(a) is undelivered postal cover. In his cross-examination, suggestions have been given that the notice issued by him was not served on the defendant, but his answer is that defendant rejected to receive the notice. That means he asserts the defendant received the notice. Learned counsel for the appellant/defendant referred to one answer given by PW1 in the cross-examination. The said answer is “the address of the defendant shown in the cause title is incomplete address”. He argued that the address was incomplete, therefore service of notice on the defendant was not done. But, this argument cannot be accepted because what is elicited from PW1 is address given in the cause title is incomplete. There was no suggestion that address written on the postal cover was incomplete. When Ex.P4(a) is perused, it is seen that the full address of defendant is written. The endorsement made by the post man on the reverse of the cover shows that intimation was delivered to the defendant. To prove further that the defendant did not receive notice, the plaintiff examined the post man as PW2. This witness in his examination-in-chief stated that the post man carried the post for delivery on 13.1.2005 and 15.1.2005. There was no service of notice on these two days and therefore he brought back the postal cover to the post office by delivering an intimation to the addressee. He has stated that the addressee, i.e., the defendant did not come to the post office to claim the postal cover. He has explained the meaning of the words ‘intimation delivery’ which means “the addressee is residing in given address”. Seeing Ex.P3, the certificate of posting, he has answered that the address mentioned in the certificate is sufficient to deliver the post to addressee. If his cross-examination is seen, an effort is made to discredit him with regard to the fact that he was incompetent to speak about delivery of the postal article or mail as he was not the post man. But, PW2 has made it very clear that based on records he is able to speak whether there was any attempt made by the post man to deliver the mail to the addressee. I do not think that PW2 has been impeached in the cross-examination.
11. DW1 has also been cross-examined and his address has been elicited from him. The address he has given is “Sri. Venkateshwara Electricals, No.64, A.M.Lane, B.V.K.Iyengar Road Cross, Bengaluru-53”. He has given answer that the same address is written on the postal cover and postal acknowledgement and the address thus written is correct. His another answer is that if letter is posted to this address, he receives it. Therefore, considering the evidence of PW1 and DW1 and also the address mentioned on the postal cover, Ex.P4(a), an inference is possible to be drawn that the certificate of posting was delivered to the defendant. He did not claim the notice sent to him by registered post acknowledgement due. The address given in the cause title of the plaint may be incomplete, but the full address is written on the postal cover. In these set of circumstances, a presumption with regard to due service of notice can be drawn. Though the learned judge has not discussed the evidence on issue no.2, the re-appreciation of evidence takes me to conclude that there was due service of notice. I wonder as to how the judgment of the Supreme Court in the case of The State of Mysore vs K.Manche Gowda (supra) is helpful to the appellants.
12. From the above discussion, I come to the conclusion that though the judgment of the trial court is some what cryptic, the same cannot be set aside and consequently the appeal fails. The judgment of the trial court is confirmed. There is no order to as costs.
Respondent’s counsel prays for permission to withdraw the amount deposited by the appellants in this Court.
The trial Court while passing the impugned decree in the suit ordered for enquiry into mesne profits. The respondent has not yet initiated final decree proceedings for determination of mesne profits or the damages to be paid by the appellants.
Learned counsel for the respondent submits that his client will initiate final decree proceedings. Therefore whatever the amount that has been deposited by the appellants in this Court pursuant to order dated 14.06.2007 shall be taken into account while determining the quantum of damages and now the respondent is permitted to withdraw this amount.
sd/- JUDGE ckl